James S. Scott v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES S. SCOTT,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-269

MARCH 10, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

FIFTH DIVISION

NO. CR01-2417,

HON. WILLARD PROCTOR, JR, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant James Scott was tried before a jury on charges of rape and sexual abuse of his daughter, who was two and a half years old at the time of the alleged incidents. Evidence at trial pertaining to the rape charge included testimony of the child, then four years old, via closed-circuit television from the judge's chambers. Evidence of the sexual-abuse charge, based on a separate incident, included eyewitness testimony of a teenager who was a family friend and the child's babysitter. Appellant was acquitted of rape but convicted of sexual abuse, for which he was sentenced to ten years' probation, 120 days in the Pulaski County Jail, and a fine of $15,000. On appeal he contends that the trial court erred in permitting leading questions of the child witness and in declining to vacate its pretrial holding that she was competent to testify. He argues that even though he was acquitted of the rape charge about which she testified, the "spillover effect" of her testimony affected the jury's consideration of the sexual-abuse evidence. Finding no error, we affirm the conviction.

In a pretrial hearing where the child testified via closed-circuit television, the trial court found that she was a competent witness. The child stated that she was four years old, that her birthday was February 4, and that she had been three years old the February before.

She named members of her family, her babysitter and babysitter's daughter, and her "funny" dog, Abigail. She said that it would be a lie to say that a yellow pad with blue lines was purple, that she would tell the truth to the judge, and that she knew it was important to do so. She testified that appellant's office, which was downstairs in the home and where she indicated the alleged rape had occurred, no longer had a couch in it and had been painted by her mother.

The child also testified at the pretrial hearing about the alleged rape. She said that her daddy had put his penis in her mouth and, pointing between her legs, said that he had put his penis "inside way up" her body. She said that it was hard to remember all of the things he had done, and that she did not remember what she had done one and two years ago. She said that her mother had told her to tell the truth, and had told her to "come down here and say these things." She said that she did not miss her daddy because he was mean to her. At trial, the child testified that she lived with her mom and brothers. She named appellant as her father and said that he did not live with them anymore. Defense counsel objected that the prosecution was leading when she was asked if her daddy "did anything to you that hurt you or made you feel bad." The trial court sustained the objection but ruled that it would allow leading questions if the child could not answer an open-ended question. The prosecution asked the child if her daddy had done something to her, and defense counsel again objected to leading questions. The trial court ruled that it would allow some leading. The child said that she could not remember what her father had done, and that it was hard to talk about. At this point, the trial court granted the prosecution permission to ask leading questions. Under this questioning, she testified that her daddy told her not to tell or he would spank her; that she did not tell anyone for awhile; and that after her daddy left, she told her mother and others.

The child testified that she could not remember "the stuff" that her daddy had done to her. Again, defense counsel objected to the State's leading questions. Counsel argued that the prosecutor had led for twenty minutes and was asking specific questions so that the child, who had been ruled competent, would agree or disagree. The State responded that the child had stated a lack of memory. Defense counsel objected that the child now appeared to be incompetent. The court allowed the prosecutor, over the continuing objection of defense counsel, to lead the child's testimony. Under this questioning the child testified, as she had done at the pretrial hearing, that her daddy had put his penis in her mouth. She also stated that he had put his penis inside her "body," and she pointed between her legs to indicate the location. She said that this incident had occurred downstairs in her daddy's office, with the door shut, while her mother was at the grocery store.

In response to a question proposed by a juror, the trial court asked the child if she remembered if her daddy ever had put his mouth between her legs. The child answered "no." On redirect examination, she answered "no" when asked if there were some things that she remembered when she was two and some things that she did not remember at the time of trial. Defense counsel next objected to the State's asking the child if she remembered telling the judge that her dad "did a lot of things" to her. The State responded that the question went to her memory, and defense counsel countered that she had not yet remembered anything. The court ruled in the State's favor. Subsequently, the child was asked the following questions:

Do you remember telling the judge the last time you testified that it's hard for you to remember all the things he did to you?

Is it hard for you to remember?

And some things you remember and some things you don't ?

The child answered "yes" to each question.

A child's competency to testify is an issue largely within the discretion of the trial judge, who sees the witness in fine relief and can weigh her manner and demeanor under direct and cross-examination. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). The relevant criteria for determining competency are: (1) the ability to understand the burden of the oath; (2) an understanding of the consequences of false witness; and (3) the ability to receive and retain impressions so as to impart a reasonably accurate account of what transpired. Id.

The practice of examining a child witness through leading questions is also within the sound discretion of the trial judge. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). This procedure is approved in child rape cases because of (1) the seriousness of the crime, (2) the natural embarrassment of the witness about the incident, (3) the child's fear of being in a courtroom full of people, (4) the necessity of testimony from a victim, (5) threats toward victims from these perpetrators, and (6) to avoid the possibility that an accused might escape punishment for a serious offense simply because of the victim's reluctance to testify. Id. If it appears necessary to lead a child witness to elicit the truth, we will affirm the judge's allowing leading questions absent an abuse of discretion. Id. The youth, ignorance, and timidity of the child witness are important factors militating against the finding of abuse of discretion. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994).

At the end of the pretrial hearing, the trial court explained its conclusion that the child was competent to testify:

I think that she understands. She quite clearly understood the oath and what the oath meant and the obligation. She understood the consequences of false swearing. I believe she had ability to receive and retain accurate impressions. She was able to distinguish things that she remembered, and she had a concept of memory from things that she didn't remember. And she had capacity to transmit the statement into a - transmit a reasonable statement of what was seen, heard, and felt.

The court noted that it would revisit the ruling at the trial itself, depending upon the child's testimony at that time.

Appellant submits that the trial court abused its discretion in permitting the prosecutor to "repeatedly put words in the child's mouth." He argues that the child was not testifying in a courtroom full of people in that she testified in chambers, and that her testimony was not necessary in that the introduction of "child hearsay" had already been approved. He argues that the child's testimony demonstrated that she was incompetent to testify.

As set forth above, the four-year-old child testified at the pretrial hearing regarding allegations that her father had raped and sexually abused her. At trial, she said that she could not remember what he had done, and that it was hard to talk about. As is shown by the testimony summarized in this opinion, the child's testimony at trial, although given in large part under leading questions due to her expressed lack of memory, told the same version of events about the alleged rape as she gave in the omnibus hearing.

The circumstances surrounding the child's testimony included her tender age, her fear of appellant, her reluctance to testify, and the serious and embarrassing nature of the charges. In light of these circumstances, it appears that it was necessary to lead the child's testimony in order to elicit the truth. See Clark, supra. We find no abuse of discretion on the part of the trial court in allowing the prosecution to obtain her testimony through the use of leading questions. We also find that the trial court did not abuse its discretion in allowing the child to testify and in refusing to vacate that order during her testimony at trial. Appellant also argues that although he was acquitted of rape, the jury was likely confused because an incompetent witness was led into making accusations against him. He contends that if the trial court erred in permitting leading questions and in refusing to vacate its finding that the child was competent to testify, his conviction for sexual abuse should be remanded for trial because of a "prejudicial spillover effect" of the child's testimony.

We need not address this issue in light of our holding that the trial court did not abuse its discretion in allowing leading questions and in finding that the child was competent to testify at trial. Were we to address it, however, we would hold that any error was harmless in the face of overwhelming evidence on the sexual-abuse charge. See Cook v. State, 350 Ark. 398, 415, 86 S.W.3d 916, 927 (2002). The evidence, which we need summarize only briefly here, included testimony of the teenage babysitter and family friend that she had seen appellant place his lips on the child's genital area, and testimony of the babysitter and child's mother that the child had an abnormal interest in masturbation and in her own nudity.

Affirmed.

Stroud, C.J., and Vaught, J., agree.