Unpublished Disposition, 923 F.2d 863 (9th Cir. 1989)

MEMORANDUM^** 

On September 20, 1989, a jury in the Superior Court of Guam returned a verdict of guilty against Pesega Muamua Tavete for First Degree Criminal Sexual Conduct, a violation of 9 Guam Code Ann. Secs. 25.15(a) (1), 25.15(b) (1987). Tavete appealed his conviction to the Appellate Division of the District Court of Guam. Tavete's conviction was affirmed, and he timely appealed. We have jurisdiction pursuant to 48 U.S.C. § 1424-3(c).

The victim of the alleged sexual misconduct was a seven year-old girl. She was eight years-old when she testified at trial. Tavete appeals his conviction on three grounds:

1. The trial court erred in giving jury instructions that required unanimous acquittal on the greater offense before consideration of any lesser included offenses.

2. The trial court erred in determining that the minor victim was competent and in admitting her testimony.

3. The trial court erred in excluding evidence that would have demonstrated the victim's prejudice against the defendant.

There are two forms of lesser-included offense jury instructions. One form, the type employed by the trial court in this case, requires a jury to "unanimously acquit on the greater charge before considering the lesser-included charge." United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984). The second form instructs a jury to proceed to the lesser-included offense if after reasonable effort, the jury is unable to reach a verdict on the greater offense. Id. In Jackson, we held that either form is acceptable, but that the trial court should give the form selected by the defendant. Id. at 1469-1470.

Tavete has failed to show that he specifically requested either of the two types of forms or that he objected to the form that was given to the jury. As such, it was within the discretion of the trial court to choose either of the two forms. No error was committed.

The trial court's determination of the competence of a witness to testify and the concomitant decision on the admissibility of that testimony is reviewed for abuse of discretion. See Pocatello v. United States, 394 F.2d 115, 116-117 (9th Cir. 1968). The trial court's determination "will not be disturbed unless clearly erroneous." Id.

Tavete contends that the victim was incompetent to testify because she did not understand the difference between lying and telling the truth. A review of the record demonstrates that the trial court was not clearly erroneous in determining that, although the witness did not understand the meaning of the term "oath," she did appreciate the difference between truth and falsehood.

Tavete contends that the trial court wrongfully denied his effort to bring out testimony relative to the victim's fear of her father. Tavete asserts that this testimony was relevant to show that the victim shifted the blame for the sexual misconduct from her father to Tavete. According to Tavete, the victim was afraid of her father and rather than identifying her father as the wrongful actor, she shifted the blame to Tavete.

A review of the record demonstrates that the trial court did limit Tavete's counsel's attempt to elicit testimony from the victim's mother about domestic violence in the victim's residence. The trial court ruled that testimony from the victim's mother about whether the victim's father was abusive to the mother or got along with the victim was not related to the question of whether Tavete committed the charged conduct.

However, the trial court did not cut off all avenues that Tavete's counsel could pursue to introduce evidence that the victim may have been afraid of her father and thus wrongfully identified another male as the perpetrator. The trial court stated that Tavete could call the victim as his own witness and could inquire into the victim's feelings toward her father. The trial court also stated that Tavete's counsel could present the theory of shifted blame in his closing argument.

Moreover, the trial court did not make a final ruling on this issue. The trial court instructed the parties to proceed with their questions stating that it would rule on this issue on a question by question basis. Tavete never called the victim as his witness and thus never pursued the line of inquiry left open by the trial court. Accordingly, the trial court did not deny Tavete an opportunity to present testimony concerning the victim's fear of naming the person who actually committed the charged conduct.

AFFIRMED.