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Docket Number

A89A2205.

Attorney(S)

Steve Bennett, for appellant. Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Judges

BEASLEY, Judge.

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Smart Summary

Case Summary: Hunter v. The State, A89A2205 (Court of Appeals of Georgia, Mar. 5, 1990)

Factual and Procedural Background

Kenneth Hunter appealed following the denial of his amended motion for new trial after conviction and sentence for child molestation under OCGA § 16-6-4(a). The evidence, construed to uphold the verdict, established that McDaniel took her four-year-old granddaughter to spend a weekend at Hunter's residence. After the child was returned to her mother, the mother observed redness in the child's vaginal area; when asked, the child said, "Kenny hurt me." The mother and stepfather took the child to a hospital where a physician found mild redness around the vagina that could have resulted from fondling by a finger or similar object and was unlikely to have resulted from a fall (a defense theory). The next morning the child was interviewed at the county Department of Family Children's Services; during the videotaped interview the child related that, while her grandmother was asleep, Hunter removed the child's panties, put her on the floor, and touched her on the front of her bottom with his nails. The nearly five-year-old child was also examined in court for competency and testified before the jury. The trial court denied the defendant's motion for a new trial, and this appeal followed.

Legal Issues Presented

Whether the trial court abused its discretion in determining the child (who had no conception of an oath) was competent to testify and, based on that ruling, admitting the videotaped interview into evidence, including whether the hearsay on the videotape had sufficient indicia of reliability (and whether the defendant's federal confrontation rights were implicated).
Whether the trial court's manner in conducting the competency examination (sitting on the floor with the child, playing with her, offering a soft drink) and its demeanor during the child's testimony before the jury improperly emphasized the child's testimony or intimated the court's opinion in violation of OCGA § 17-8-57.
Whether the evidence was insufficient as a matter of law to sustain a conviction (i.e., whether the videotaped interview was uncorroborated hearsay and whether the circumstantial evidence failed to exclude any reasonable hypothesis other than guilt), thereby entitling the defendant to a directed verdict of acquittal.

Arguments of the Parties

Appellant's Arguments

The child was not competent to testify because she had no conception of an oath; therefore the trial court erred in ruling her competent and in admitting the videotaped interview.
The videotaped interview constituted hearsay lacking sufficient indicia of reliability and therefore should not have been admitted.
The trial court's method of conducting the competency hearing (including informal behavior to put the child at ease) and its demeanor during the child's testimony before the jury improperly emphasized the child and indicated the court's opinion, violating OCGA § 17-8-57.
The evidence was wholly insufficient to sustain a conviction; the videotaped interview was uncorroborated hearsay and circumstantial evidence did not exclude every other reasonable hypothesis except the defendant's guilt, so the defendant was entitled to a directed verdict of acquittal.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's specific legal arguments; the record reflects the State presented medical evidence, the child's in-court testimony, and the videotaped interview, and the trial court admitted and found the videotape reliable under applicable statutory and case law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thomas v. State, 175 Ga. App. 873, 874 (1), 334 S.E.2d 903 (1985)	General principle that evidence is construed so as to uphold the verdict.	The court invoked this principle at the outset to frame the standard of review for the sufficiency of evidence.
Smith v. State, 247 Ga. 511-12, 277 S.E.2d 53 (1981)	Definition of a child's competency to testify: competency is not ability to define an oath but knowing and appreciating the obligation to tell the truth and that violation can be punished.	The court applied Smith as the governing standard for determining the child's competency.
Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131 (1988)	Explains appellate deference to trial court competency rulings after thorough in-court testing of the child; appellate reversal only if record clearly shows incompetency.	The court relied on Westbrook to uphold deference to the trial court's competency determination given its opportunity to observe the child.
In the Interest of J. E. L., 189 Ga. App. 203, 204 (1), 375 S.E.2d 490 (1988)	Support for the deference and standard applied in competency determinations of child witnesses.	Cited as further authority supporting deference to trial court rulings on competency.
Ortiz v. State, 188 Ga. App. 532, 535 (3), 374 S.E.2d 92 (1988)	Factors to consider in determining reliability of out-of-court statements: atmosphere, circumstances, spontaneity, demeanor.	The court listed these factors and indicated it considered them in finding the videotaped interview reliable.
Newberry v. State, 184 Ga. App. 356, 361 S.E.2d 499 (1987)	Further authority on assessing reliability of statements (similar factors as Ortiz).	Cited in support of the court's approach to assessing the reliability of the videotaped interview.
Keasler v. State, 165 Ga. App. 561, 301 S.E.2d 915 (1983)	Failure to object at trial to the competency examination precludes later complaint on appeal.	The court applied Keasler to hold the appellant waived complaint about the manner of the competency examination by not objecting at trial.
Bowen v. State, 170 Ga. App. 49, 50, 316 S.E.2d 33 (1984)	An appellant must show both alleged error and resulting harm.	The court cited Bowen to note that the appellant did not demonstrate harm from the court's conduct in putting the child at ease.
Castillo v. State, 178 Ga. App. 312, 342 S.E.2d 782 (1986)	Failure to object and to move for mistrial precludes appellate review of the alleged misconduct during testimony.	The court relied on Castillo to bar review of the appellant's complaints about the court's conduct during the child's testimony because no objection or mistrial motion was made.
Ware v. State, 191 Ga. App. 896, 383 S.E.2d 368 (1989)	Admissibility of videotaped interview evidence under OCGA § 24-3-16 when reliable.	The court cited Ware in holding that the videotape was reliable and admissible under OCGA § 24-3-16.
Jerdine v. State, 137 Ga. App. 811, 812 (1), 224 S.E.2d 803 (1976)	When the State relies on circumstantial evidence, such evidence must exclude every reasonable hypothesis except the defendant's guilt, but it need not remove every possibility of innocence.	The court applied this principle in assessing whether circumstantial evidence supported the conviction.
Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1979)	Standard for reviewing sufficiency of the evidence—whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements proven beyond a reasonable doubt.	The court cited Jackson to affirm that the evidence (direct and circumstantial) was sufficient to uphold the jury's determination of guilt.

Court's Reasoning and Analysis

The court's analysis proceeded in three numbered parts corresponding to the appellant's primary challenges.

First, on the competency and admissibility of the videotaped interview, the court applied the Smith v. State competency standard (a child need not understand the formal oath but must appreciate the duty to tell the truth and the possibility of punishment for lying). The trial court had extensively questioned and observed the nearly five-year-old child; the child acknowledged that lying was wrong, that she would tell the court the truth, that Jesus would be upset with lying, and that she had told the truth to the caseworker during the videotaped interview. The trial court also viewed the videotape. Given the in-court examination and the trial court's opportunity to observe the child, the appellate court concluded the record supported the trial court's ruling that the child was legally competent.

The trial court also made a specific determination that the videotaped interview was reliable. The court noted that factors such as atmosphere, circumstances, spontaneity, and demeanor should be considered in determining reliability (citing Ortiz and Newberry). The trial court considered these factors and the procedure used to make the videotape; the appellate court found the record supported the trial court's determination of reliability and admitted the videotape under OCGA § 24-3-16 (as reinforced by Ware v. State).

Second, regarding the trial court's manner in conducting the competency hearing and demeanor during testimony, the appellate court stressed waiver principles: the appellant did not object at trial to how the competency examination was conducted nor to the court's conduct during the child's testimony before the jury, and he did not move for a mistrial. Citing Keasler, Bowen, and Castillo, the court held review was precluded by the failure to object and the appellant failed to show resulting harm.

Third, on the sufficiency of the evidence, the appellate court held the videotape was reliable and admissible, the child was available and testified in court providing direct victim testimony, and the combination of direct and circumstantial evidence sufficed to uphold the jury's verdict. The court noted that circumstantial evidence (if relied upon alone) must exclude every reasonable hypothesis except guilt but need not eliminate every possibility of innocence (citing Jerdine). Applying the Jackson v. Virginia standard for sufficiency review, the court concluded a rational trier of fact could find guilt beyond a reasonable doubt and therefore the defendant was not entitled to a directed verdict of acquittal.

Holding and Implications

Holding: Judgment affirmed.

Implications: The trial court's determinations that the child witness was competent and that the videotaped interview was reliable and admissible were upheld on appeal; the court further held that the appellant waived review of complaints about the trial court's conduct by failing to object and failed to show harm. The conviction and sentence for child molestation under OCGA § 16-6-4(a) were therefore affirmed. The opinion does not announce any novel legal rule or purport to set new precedent beyond applying existing authorities to the facts of this case.

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HUNTER v. THE STATE.

BEASLEY, Judge.

Following the denial of his amended motion for new trial, Kenneth Hunter appeals his conviction and sentence for child molestation, OCGA § 16-6-4 (a).

The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga. App. 873, 874 (1) ( 334 S.E.2d 903) (1985). McDaniel took her four-year-old granddaughter with her to her boyfriend Hunter's residence to spend a weekend. After the child was returned to her mother at the end of the weekend, the mother bathed the child and noticed a redness in the child's vaginal area that had not been there before. When asked about it, the child stated, "Kenny hurt me." The mother and the child's stepfather took the little girl to the hospital. The examining physician found a mild degree of redness around the vagina which could have been the result of fondling by a finger or some such object but was unlikely to have resulted from a fall, as was suggested by the defense.

The following morning the child was taken to the county Department of Family Children's Services and was interviewed by a caseworker. During the videotaped interview the child related that while her grandmother was asleep, Hunter had taken off the child's panties, put her on the floor, and touched her on the front of her bottom with his nails.

1. The first question is whether the court abused its discretion in ruling that the child, who had no conception of an oath, was competent to testify and, based on this ruling, allowing into evidence the videotape of the interview with the child. Whether the hearsay testimony had sufficient indicia of reliability is also raised. Appellant invokes his right to confrontation under the Federal, but not the State Constitution.

"`In Smith v. State, 247 Ga. 511-12 ( 277 S.E.2d 53) (1981), the Supreme Court defined the standard of competency of a child to be a witness as being "not that he be able to define the meaning of an oath, not that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.'" Westbrook v. State, 186 Ga. App. 493 (1) ( 368 S.E.2d 131) (1988).

This court has applied the standard thusly: "`Once a child's competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. [Cits.] Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent as defined in Smith v. State, supra. [Cits.] A further reason for the hesitation of appellate courts to interfere with competency rulings is that the trial court's ruling as a matter of law that the child is competent [cits.] is followed by the jury's independent determination of the child's credibility as a matter of fact. [Cit.]' [Cit.]" Westbrook v. State, 186 Ga. App. 493 (1), supra (non-precedential). See also In the Interest of J. E. L., 189 Ga. App. 203, 204 (1) ( 375 S.E.2d 490) (1988). (OCGA § 24-9-5 (b) effective April 19, 1989, is not applicable to this case.)

The court extensively questioned and observed the nearly-five-year-old girl. Although not very verbal during the court's examination, the child agreed that it was wrong to tell a lie, that she would tell the court the truth, that she went to church, that Jesus would be upset with her if she told a lie, and that she had told the truth to the caseworker during the videotaped interview. The court also viewed the videotape, as we have done. The record supports the court's conclusion that the child was legally competent as a witness.

The trial court also made a specific determination that the testimony on the videotape was reliable. Such factors as atmosphere, circumstances, spontaneity, and demeanor should be considered in determining reliability. Ortiz v. State, 188 Ga. App. 532, 535 (3) ( 374 S.E.2d 92) (1988); Newberry v. State, 184 Ga. App. 356 ( 361 S.E.2d 499) (1987). The court considered all of these factors including the procedure followed in making the videotape, and the record supports the trial court's determination of reliability.

2. Appellant contends that the manner in which the trial court conducted the competency hearing was improper in that the court sat on the floor with the child, played with her, and gave her a soft drink. He further asserts that the manner in which the court conducted itself during the testimony of the child before the jury gave it particular emphasis and intimated to the jury the court's opinion concerning the truth of the child's statements in violation of OCGA § 17-8-57.

Appellant did not object to the manner in which the court conducted its competency examination and cannot now complain. See Keasler v. State, 165 Ga. App. 561 (1) ( 301 S.E.2d 915) (1983). Nor does appellant indicate how he was harmed by the court's attempt to put the child at ease to determine competency, outside the presence of the jury. An appellant must show not only alleged error but also ensuing harm. Bowen v. State, 170 Ga. App. 49, 50 (1) ( 316 S.E.2d 33) (1984).

Likewise appellant failed to object to the court's conduct during the child's testimony before the jury. He did not move for mistrial on that basis either. Review is precluded. Castillo v. State, 178 Ga. App. 312 (3) ( 342 S.E.2d 782) (1986). Moreover, immediately before the child testified, the court explained that the jury was not to take the court's solicitousness towards the child during her testimony as any indication of court sympathy for the child or of any attempt to cause her to be viewed differently than any other witness.

3. Appellant contends the trial court erred in failing to direct an acquittal because the evidence was wholly insufficient to convince any rational trier of fact of his guilt beyond a reasonable doubt. He maintains the videotaped interview was uncorroborated hearsay and that the circumstantial evidence did not exclude any other reasonable hypothesis and therefore could not corroborate the videotape to support the conviction.

The videotape was reliable and admissible under OCGA § 24-3-16. See Division 1, supra. See also Ware v. State, 191 Ga. App. 896 (2) ( 383 S.E.2d 368) (1989). The child was available and testified giving direct victim evidence. Even if the State's case had relied solely on circumstantial evidence, such evidence had to exclude every reasonable hypothesis except the guilt of the accused, but it did not have to remove every possibility of his innocence. Jerdine v. State, 137 Ga. App. 811, 812 (1) ( 224 S.E.2d 803) (1976).

The direct and circumstantial evidence was sufficient to uphold the jury's determination of guilt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979). Defendant was not entitled to a directed verdict of acquittal.

Judgment affirmed. Carley, C. J., and McMurray, P. J., concur.

DECIDED MARCH 5, 1990.

HUNTER v. STATE