In orde r t o pro t ect t he p ri vacy o f t he vi ct i m and her fam i l y , we wi l l us e i ni t i al s i nst ead of nam es where 1

appr opr i at e t o do s o. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs D ec em be r 6, 200 5

STA TE OF TEN NES SEE v. JA MIE EM ERS ON NEW

Appeal f romthe Circ uit Court for Madison Cou nty No. 04-31 Donald H. Allen, Ju dge

No. W2005-01014-C CA-R 3-CD - F iled Janu ary 24, 2006

Th e De fe nd a nt, Jami e Em e rs on Ne w, wa s c on vic te d of a g g ra vate d s e xua l batte ry a ndse nte nc e d to

e ig ht y e ars of inc arc e ratio n. On app e a l, he c on te nd s th a t; ( 1) the e vid e nc e is i ns uf fi c ie nt t o s us ta in his c on vic ti on , and (2 ) the tw o c hil d w itn e sse s w ho te sti fi e d a g a ins t hi m w e re no t c omp e te nt t o te sti fy . F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opi nion of t he court, in which T H O M A S T. W O O D A LL and A L AN E. G L EN N , J J ., joined.

J eff Mueller, Jackson, Tenne ssee, f or the Appe llant, J amie Emer son New.

Paul G

. Summers, Attorney Gene ral a nd Reporter ; J ane L . Be ebe, A ssistant Attorney Gene ral; James G. (Jerry ) Woodall, District Attor n ey Gene ral; Alfr ed L . Earls a nd Shaun A. B rown, Assistant District Attorney s Gene ral, for the Appellee , State of Tenne ssee.

OP IN ION I. F ac ts

Th is c a se ari se s fr om the De fe nd a nt’ s c on vic tio n f or a g g ra vate d s e xua l batte ry . B e fo re his trial, the De fendant contende d that the two child witnesses who te stified ag ainst him were not competent to testify . Acc ording ly , the trial court allowed the witnesse s to be questioned outside the prese nce of

the jury in order to de termine their c ompetency . One c hild wi t n ess, K.T., testified 1 during direc t examination t hat she kne w the diffe renc e betwee n a lie and the truth. She expl ained that a lie is w he n o ne te lls a sto ry a nd that, wh e n on e te lls a lie
, he or sh e g e ts int o tr ou ble

. She sa id that she has ne ver told a lie. Upon questi oning by the trial court, K.T. testified that she kne w thatK

. T

. ’ s mo t h e r l a t e r t e s t i f i e d t h a t s h e w a s bo r n on S e pt e mb e r 9, 19 96
, ma k i n g h e r e i g h t y e a r s ol d a t t h e t i me 2

o f t ria l.

-2- ly ing g ot p e op le int o tro ub le , she un de rs too d tha t she ne e de d to te ll the truthwh e n s he te sti fi e d in court, a nd, if she di d not tell the t ruth, then she c ould ge t into serious trouble. On cr oss-examination, K.T. testified that her mother told he r to te ll the truth when testify ing in c ourt, she had alr eady talked to her mom about what happene d, and she did not know how many times she di scussed with ot her people the inc ident at issue.

Th e oth e r c hil d w itn e ss, D. B
., te sti fi e d d uring dir e c t e xami natio n th a t he c a n d if fe re nti a te betwee n what is true a nd what is false . He sa id that he g ets whipped whe n he lies, and said that he would tell the t ruth if he was allowed to testify

. Upon questi oning of the t rial court, D.B. sa id that he re alized that he nee ded to tell the truth about what oc curr ed betwee n the Def endant and his sist er. He sa id that he understood that, if he did not tell the t ruth, he may be in trouble with the court and with the judge

. On cross-e x amination, D.B

. said that a lie is w hen one is not telling the tr u t h and the truth is when one is not telling a lie.

Thetrial court de termined that both witnesses we re c ompetent, and the jury was broug ht back int o th e c ou rt

ro om. Th e re a ft e r, the fo llo wi ng e vid e nc e wa s p re se nte d d uring the De fe nd a nt’ s tria l. K.T. testified that, on the nig ht of the crime, her pa rents we re not home, a nd t h e De fe n dant was 2 ba by -s itt ing he rs e lf

a ndhe r thr e e br oth e rs . Sh e sa id that, pur su a nt t o th e De fe nd a nt’ s in str uc tio ns , D.B . squeezed into her mother ’s room and g ot a “na ked” movie. K .T. said that the ente rtainment
cente r broke , and something happene d to her brothe r’s stomac h , and then D.B . g ot the movie and g ave it to the Def

endant who put the movie in the VCR so they could watch some of the movie. She
t es t i fi ed t h at , wh i l e s h e wa s o n t h e co u ch
, t h e De fe n d an t k i s s ed h ero n t h e l i p s , ru b b ed h ero n t h e l eg, kissed her on the leg , and touche d her private. K.T . reme mbere d that she wa s wea ring shorts and a t-shirt and that the Def endant touche d her on the inside of h er cl o t h i n g when he touched he r private. She te stified that he put his ha nd in he r shorts but did not stick a ny thing inside he r, and he did not keep his hand in her shorts that long. K.T. t estified that D.B . smacke d the Def endant’ s hand awayfro m h er pr iv ate , b ut he d id no t say any th in g to th e Defen dan t. K.T . t est if ied th at, aft er D. B. smacke d the Defenda nt’s hand away
, nothing else happene d. K.T. said that the Defenda nt turned the m ovie off when her m other pull ed up in the driveway , and K.T. told her mother and the police what happene d that night. K.T. testified that she did not want to w atch the movie, but the Def endant told her that he w ould tell her mother that she had watche d the m ovie i f she did not watc h the movie. K. T. sa id tha t th e y

didno t w a tc h th e mov ie fo r v e ry lon g, and she didno t w a nt the De fe nd a nt t o touch her private. When asked wher e the Def endant touched her, K.T. pointed to he r g roin are a and testified that the De fenda nt touched her in the part that she use s to go to the bathroom.

On cr oss-examination, K.T. said that she re membere d talking w ith p eo p l e from the pr os e c uto r’ s o ff

ic e abo ut w ha t th e De fe nd a nt didto h e r andthat sh e ha s ta lke d w ith nu me ro us a du lts about what ha

ppened. She sa id that the Def endant ba by sat for the m on severa l occa sions, but the Def endant ne ver sc olded them and ne ver told them that they could not do cert ain t hings. She explained that sometimes the Defe ndant would try to ma ke the kids do the rig ht thing. She said thatD .B . w a s te n ye a rs o ld d u rin g the ti m e o f his te stim o n y. 3

-3- the Def endant ne ver “ g ot after ” the kids for g oing into their mother ’s roo m an d that, when the Def endant ba by sat for the kids, he would cook them dinne r and te nd to their nee ds. She said that she neve r knew that the “na ked” vide os and ca ndy

wer e in her

mother’s room.

D.B

. testified that he kne w the Defenda nt, and that, on the ni g ht of t he crime, the De fenda nt 3 sent him into hi s mother’s room to g et some batteries for a remote so that they co u l d wa t ch the “nake d” tape

. D.B

. said that, ea rlier, the D efe ndant sent him into the room to ge t the “nake d” tape

. He e x plained that, af

ter he g ot the batteries, the Defenda nt made D.B. and K.T. sit down and wa tch the tape. H e re called that the Def endant kissed K.T. on the l eg , touched K.T. on her private ar ea, a nd kissed K.T. on t he li ps. D.B

. reme mbere d that the Defenda nt put his hand in his sister’s shorts on the part that people use to g o to the bathroom. D.B . testified t hat he hit t he De fenda nt on his back, but he did not say

anything to him. He said that they watche d a little of the “na ked” ta pe bef ore the Def endant turne d it off. He testified t hat his mother ca me home af ter these events oc curr ed, and he told her wha t happene d the next morning. D.B . testified that, the day afte r the De fenda nt touched his sist er, his mother c aug ht the Defen d ant t ry ing to make the kids smoke. He e x plained that the Def endant told the kids that he would whip them if they did not smoke. D.B. testified that he talked with a police of

fice r and pe ople at the De partment of Children’ s Services a bout the incident that

oc c ur re d b e tw e e n K .T . a ndthe De fe nd a nt.

On cr oss-examination, D.B. said that he had neve r bee n into his mother’s room to g et ca ndy but that he had been in the re befor e to g et movies. He said that, on the nig ht of this incident, he went into his m other’s r oom and stepped up on the entertainment cente r to g et batteries that were in a draw er on a white s helf on the wall. D.B . rec alled that, whe n he opene d the dra wer containing the ba tte ri e s, the sh e lf

fe ll o n h im. D. B . te sti fi e d th a t he g ot a g a sh on his sto ma c h, a ndhe wa s a fr a id that he wa s g oin g to g e t in to t ro ub le be c a us e he kn e w he wou ld hav e to e xpla in the sc ratc h to his pare nts. D.B. e x plained that the De fenda nt baby sat for the children in his fa milyfairl y o ft en and took car e of the ir nee ds when he baby sat them. D.B . said that he did not like the De fenda nt when the Def endant disciplined the kids. He testified that he talke d with a lot of people a bout the incident that occur

red be tween K .T. and the D efe nd an t , i n cl u ding a woman fr om the Depa rtment of Chi ldr e n’ s Se rv ic e s a ndpe op le fr om the pr os e c uto r’ s o ff ic e . D .B . s a id that peo ple tol d h im h ow to

answe r questions about whe re the De fe n dant touched his sister. D.B . said that he did not like the Def endant, a nd he wanted t he Defenda nt to move out of hi s house. D.B. testified that he did not say differ ent things to dif

fe re n t people whe n he testified at the preliminary hearing. T he De fenda nt’s counsel showe d D.B . a tra nscript from the pr eliminary hearing and rea d a portion of the transc ript in w hic h D .B

. tol d a n a tto rn e y fo r the Sta te that th e De fe nd a nt h a d a c tua lly tou c he d K .T .’ s p ri va te

are a a ndthe n r e a d a portio n in w hic h D .B . to ld an atto rn e y fo r the De fe nd a nt that th e De fe nd a nt d id
not a ctually touch K.T.’s private a rea . D.B . testified that, at the pr eliminary hearing, he did not say that the Def

endant ne ver touc hed K.T.’ s private area

. When asked if he made a mistake and if the alleg ed eve nts betwee n the Def endant and K.T. never happene d, D.B . said “no.” D.B . ag ree d that
te sti fying in c ou rt

is a n in tim idatin g e xpe ri e nc e , th a t he ha d to te sti fy tw ic e in c ou rt

re g ard ing thi s matter a nd that he mig ht have g otten confuse d.-4-

On re di re ct ex amination, D.B . ag ree d that, at the pre liminary hearing, he testified that the Def endant kissed his sister on her leg
, touched her on her leg
, and touched her on her private. He

a g r e e d t h a th e w a s n o tl yi n g i n c o u r t , a n d h e w a s tr yi n g t o t e l l t h e tru t h t o t h e b e s to f h i s ab i l i t y.

B.G . testified that D.B . and K.T. a re he r childre n and that the De fenda nt is her husband’s cousin. She said that the Def endant’ s house burned down, and he was staying in he r house. B .G. le ar n e d ab o u t w h a t h ap p e n e d to h e r c h il d r e n th e d a y a f te r th e in c id e n t o c c u rr e d

. B.G . asked the Def endant what happene d to her son’s stomac h, and the Defe ndant told her that he r cat had g otten into her bedr oom, broken something
, and scratche d her son who was standing outside the bedroom do or . B .G . r e c a lle d th a t, the ne xt mornin g , s he dis cov ered th at her son h a d a sc ra pe , a ndno t a

sc ratc h. She a sk e d h e r s on abo ut h is s c ra pe , a ndhe sa id that he wa s g e tti ng batte ri e s o ut o f the lit tle cabine t on the entertainment cente r, and the entertainment cente r broke in ha lf. She testified that she asked he r son how he g ot a big cut on his stomach, and he e x plained that he g ot it while retrieving a “na ked” ta pe fr om her be droom. She s ai d t h at s he also lea rned a bout what else ha d occur red betwee n her c hildren and the Def endant. She explained that, after learning of

the other a lleg ations ag ainst the Def

endant, she ag ain aske d the Def endant what had happe ned on the pr evious nig ht. The Def endant told her

that he watche d the “nake d” tape with the kids because D.B . wanted to watch the tape, but he d i d n o t touch K.T. Afte r B .G. found out what happene d, she ca lled the police a nd reported the incident. The next day , she took the childre n to the Depa rtment of Children’s Service s

a nd re po rt e d wh a t ha

pp e ne d. On the fo llo wi ng da y , sh e too k he r c hil dr e n to a famil y do c tor be c a us e the police office rs told he r that a hospital e merg ency room would perf orm a ra pe kit on K.T., which would traumatize her. She te stified that she had a sked the Def endant to move out of her home bef ore this incident when she sa w him smoking cig are ttes with her childre n. She said that K.T. had se en

a counse lor for be tween e ight a nd nine months but h ad s t ar t ed wetting her bed and ha ving nightmar es. She testified that K.T. is unde r the a g e of thirtee n y ear s old and was born on September 5, 1996.

On cr oss-examination, B.G. testi fi ed that she wa s working at a tattoo par lor that was “ by appointment only ,” and she fre quently had to g o o ut during evening hours, which wa s why the Def endant of ten baby sat her c hildren. She said that the e ntert ai n m en t cente r is located in he r bedroom and that the bedroom door i s padlocke d. She explained that the padlock is attac hed to the bedroom door w ith a latch, but the door opens e noug h so that a per son can sque eze throug h the door. She said that she kept t en o r t we l ve “X -rated” videos in the be droom. B.G . testified that the kids knew that there wer e movies in he r bedroom, but the y did not know what type of movies were in the bedroom. She a lso said that she kept candy in he r bedroom. B.G

. explained that he r kids kne w that she kept the movies underne ath the ente rtainment ce nter a nd that she kept the c andies on a dresse r on the other side of

the room. F urther, she said that the batteries wer e o n a shelf ne x t to the

e nte rt a inm e nt c e nte r. B .G . e xpla ine d th a t a n a du lt w ou ld ha ve to h oldop e n th e do or fo r a c hil d to g et throug h the padlocke d door and into her bedroom.

Nanc y Carol New man testified that B .G. broug ht K.T. in to see her. Newma n testified that she is a fa milynurse pr actitioner at the Be mis Medical Clinic, and she has be en a nur se pra ctitioner for nine y ear s. She said that she examined K .T.’s entire body and perf ormed a pelvic exam on her.-5-

Newma n determined that K.T. had no phy sical problems. She wa s not able to find conc lusive proof of any phy sical abuse , neg lect, or injury . On cr oss-examination, Newman testified that K.T. did not

sa y that the De fe nd a nt pe ne tr a te d he r or hu rt he r. She a g re e d th a t sh e wo uldno t e xpe c t a ny re dn e ss

or injury if K.T.’s private are a had just bee n touched a nd that there was nothing inconsistent betwee n her diag nosis and K.T.’s claims. She explained that she has experience and tra ining with whe ther or not there is bruising or te aring and other phy sical abuse t o a child’s g enitalia. On r edire ct examination, Ne wman testified that, afte r conducting a full phy sical examination, she did not find anything that indicated that K.T. ha d been tr aumatized.

On direc t e x amination, A.J

. Gross testified that he knew the vic tim’s family for the pa st three and a ha lf y ear s. He said that D.B . told him that K.T. said that the Def endant did not re ally

touch her. H e testified that sometimes D.B . and the Def endant did not g et along beca use D.B . had a ba d attitude. On cr oss-examination, Gross said that he did not inform any one that D.B

. was ly ing a bout the alleg ations ag ainst the Def endant even though he knew that the Def endant f ace d criminal cha

rg es due to these a ccusations.

The De fenda nt t es t i fi ed on his own beha lf and a g ree d that he had a mental condition. He testified t hat he lived with his cousin and his fa milyafte r his house burne d down. He e x plained that he helpe d around the house by cutting the g rass, fixing the c ars, a nd baby sitti ng for the kids. The Def endant testified that he knew that he wa s acc used of inappr opriately touching the little girl. He

sa id that he c ou ld no t g e t thr ou g h the pa dlo c ke d do or le a din g to t

hebe dr oo m, b ut that a

sma ll c hil d could g et thro u g h the door c rac k. The De fenda nt ag ree d that, when he baby sat for his cousin’s

c hil dr e n, he wa s g e ne ra lly the re a lon e wi th the m. He de nie d tha t he ev e r watc he d a “ nake d” mov ie with the kids. The Def

endant kne w that there wer e “na ked” movies in the house beca use he had se en the pa re nts tr y to se ll the mov ie s to oth e r p e op le . H e sa id that, w he n b aby sit tin g on prior oc c a sio ns , he ha d s e e n D .B . s lip int o D .B .’ s mo the r’ s r oo m. Th e De fe nd a nt t e sti fi e d th a t, w he n h e ba by sa t, he ha d d isc ipl ine d th e kid s b y te lli ng the m “no ” or by makin g the m g o in a c orne r u nti l th e ir

pa re nts g ot home

. The Def

endant rec alled that, on the night of the crime, he did not see D.B

. g o into D.B.’s mother’s room but that one of D.B .’s y oung er br ot h er s t o l d him that D.B. wa s in there. The Def endant a sked D.B . what he w as doing , and D.B . told him t hat he wa s try ing to g et batteries. The Defen dan t s aid th at h e to ld D.B. to com e ou t becau se D.B.’ s dad wou ld be mad if he knew th at D .B. was in the be droom and that D.B . came o u t o f t h e b edroom with t he batteries and a scratched stomach. The D efe ndant testified that D.B . asked him not to tell his parents what ha ppened, and the Def endant sa id that he would try but that it would be hard b ecause the e ntertainment sy stem was broken. The Def

endant sa id that, next , he cooke d the kids something to eat, that the kids then took their baths, and that the ki ds then went to bed. The Def endant sa id that he neve r watched a “nake d” movie with the children, a nd he neve r touche d K.T.

On c ro ss- e xami na tio n, the De fe nd a nt sa id that he told B .G . tha t a c a t sc ratc he d D .B . b e c a us e he ha d p ro mis e d D .B . th a t he wo uldtr y no t to le t D .B .’ s p are nts fi ndou t that D.B . w a s in the ir bedroom. He said that, in the past, he had problems with D .B. be cause D.B . threw “ fits” when the Def endant disciplined him. The De fenda nt said that D.B. ha d told him sever al times that he did not lik e the De fe nd a nt liv ing in his ho me , a nd he wa nte d the De fe nd a nt t o le a ve . T he De fe nd a nt s a id-6-

that K.T. had no r eason to lie about t he Defenda nt’s behavior

. The Defendant acknow ledg ed that the kids were in bed when the ir mother re turned home, and they did not have any opportunity

to ge t to g e th e r a n d ma

k e u p li e s ab o u t h is b e h a v io r

. H e s a id th a t h e n e v e r to ld B

. G

. th a t h e w a tc hed a “nake d” video with the kids. The Def endant sa id that he had c aug ht D.B. smoking cig are ttes befor e.

B a s e d u p o n t h i s e v i d e n c e , t h e j u r y f o u n d t h e D e f

e n d a n t g u i l t y o f a g g r a v a t e d s e x u a l b a t t e r y.

II. Ana lys is

On app e a l, the De fe nd a nt c on te nd s th a t: ( 1) the evid e nc e is i ns uf fi c ie nt t o s us ta in h is

c o n v i c t i o n ; a n d ( 2 ) t h e t w o c h i l d w i t n e s s e s w h o t e s t i f i e d a g a i n s th i mw e r e n o tc o m p e t e n t t o t e s t i f y.

A. Suf fi ciency of the evidence

Th e De fe nd a nt a lle g e s th a t th e e vid e nc e pr esent e d at tria l is ins uf fi c ie nt t o s up po rt

his conviction for a g g ravated s ex u al battery . Specifica lly , he conte nds that there w as no phy sical evidenc e of a g g ravated sexual battery and that the State’ s case rests sol ely on the t estimony of two small chi ld ren. He fu rthe r a lle g e s th a t th e tw o c hil dr e n w e re inc omp e te nt t o te sti fy . T he Sta te counter s that the evidenc e at tria l is sufficient to support the Def endant’ s conviction.

When an accuse d challeng es the suff iciency of the e vidence , this Court’s standard of r eview is whether, a fter c onsidering the evidence in the light most favor able to the pr osecution, any rational trier of fac t could have f

ound the essential e lements of the crime bey ond a reasonable doubt. Tenn. R. App. P. 1 3 (e) ; State v. Goodwin, 143 S.W .3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W .3d 247, 276 (Tenn. 2002) ). This rule a pplies to findings of g uilt based upon direc t evidence
, circ umstantial evidence , or a c ombination of both direct and c ircu m s t an t ial evidenc e. State v. Penderg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

I n d e te rm ini ng the su ff

ic ie nc y of the e vid e nc e , th is C ou rt

sh ou ld n ot re -w e ig h or

re -e va luate the e vid e nc e . St a te v. Matthe ws , 8 05 S.W. 2d77 6, 77 9 ( Te nn . Crim. Ap p. 19 90 ). No r m a y thi s Cou rt su bs titute its inf

e re nc e s f or tho se dr a wn by

the tr ie r of

fa c t f ro m th e e vid e nc e . St a te v. B ug g s, 995 S.W .2d 102, 105 (Tenn. 1999) ; L iakas v. State, 286 S.W .2d 856, 859 (Tenn. 1956) . Questions

conce rning the cr edibilityof the witnesse s, the weig ht and value of the e v i d en ce , an d all fac tual issues raised by

the evidenc e ar e re solved by the trier of fac t. Liakas, 286 S.W.2d at 859. This Court must afford the State of Tenne ssee the strong est leg itimate view of the e vidence contained in the

rec ord, as well as a ll reasona ble infer ence s which may be dra wn from the e vidence . Goodwin, 143 S.W. 3da t 77 5 (ci ti ng S tate v . Sm ith , 2 4 S. W.3 d 2 74 , 2 79 (T e nn . 2 00 0) . It is we ll- se ttl e d la w i n Tenne ssee that “ the testimony of a vic tim, byitself, is sufficie nt to support a conviction.” State v. Strickland, 8 8 5 S.W .2d 85, 87 (Tenn. Crim. App. 1993) ; State v. Wi lliams, 623 S .W.2d 118, 120 (Tenn. Crim. App. 1981). Be cause a verdic t of g uilt against a defe ndant re moves the pre sumption of innoce nce a nd raises a

presumption of g uilt, the convicted def endant bears the burden of showing that the evidenc e wa s leg ally insufficient to sustain a guilty verdic t. I d.; see State v. Car ruthers, 35 S.W .3d 516, 557-58 (Te nn. 2000).-7-

Tenne ssee Code Annotated section 39-13-504( a) (2003) defines ag g ravated sexual battery as “the unlawful sexual contac t with a victim by the defe ndant or the defe ndant by a victim if . . . the victim is l ess than thirteen y ea rs o f age.” Tenne ssee Code A nnotated sec tion 39-13-501 (2003) define s “sexual contact” as “the intentional touching of the victim’s intimate parts, or the intentional touching of the c lothing cove ring the immediate ar ea of the vi ctim’s intimate parts, if that intentional touching can be rea sonably construed a s being for the pur pose of sexual arousa l or g ratification.”

I n the case under submissi on, the evidenc e, whe n viewed in the lig ht most favorable to the State, is sufficient to support the De fenda nt’s conviction for aggr avated sexual battery . Both the victim and her olde r brother provided the jury

with consi s t en t t est imony explaining that the Def endant, while w atching an“ X

- r ate d ” v id e o , r e a c h e d u n d e rneath the victim’s clothing a nd touched her vag ina. Further, K.T.’ s mother testified that K.T. w as born on Septembe r 9, 1996, making her less than thirteen y ear s old. After he aring testimonyfrom the De fenda nt, the two children involved in the inc ide nt, a ndthe ir

mot her, th e ju ry

c ho se to b e lie ve the te sti mon y of the c hil dr e n a ndthe ir mother. This Court does not second- g uess the we ight, va lue, or c redibility aff orded to the e vidence by the jury . Acc ording ly , we c onclude that the e vidence is leg all y s u ff icient to sustain the jury ’s fi nd ing that th e De fe nd a nt c omm itt e d a g g ra vate d s e xua l batte ry . T he De fe nd a nt i s n ot e nti tle d to relief on this iss ue.

B. Com petency of the Witnesses

The Defendant contends that the t rial court err ed when it found that K.T. and D.B ., the two chil d w it n e s s e s , w e r e c o mp e te n t to te s ti f y

. Sp e c if ic a ll y , th e D e f

e n d a n t c o n te n d s th a t D

. B . was incapa ble of re lating f

acts a ccur ately as evidenc ed by varia tions in his te stimonyat the pre liminary hearing a nd at t rial. He further alleg es t hat bot h children failed to g ive m eaning ful response s when

a sk e d to dif

fe re nti a te be tw e e n th e trutha nd a lie . T he Sta te su bmi ts that th e tr ia l c ou rt pr op e rl y allowed the w itnesses to testify at t rial. The trial court found that both of the child witnesses we re competent to testify . The trial c ourt noted that K.T.

[U] nderstands that if y ou don’t tell the truth that y ou can g et into trouble, and she’ s told me on a couple of occa sions he re today that she will tell the truth if she’s asked to do so. I

find that she does unde rstand the nature a nd the meaning o f t he oath. I do find that she does ha ve the intellig ence to understand th e s u b j ec t matter of the
te sti mon y , a nda lso Th e Cou rt fi nd s th a t sh e is c apa

ble of re la tin g the fa c ts a c c ur a te ly

. . . . T h e C o u r td o e s f

i n d t h a ts h e i s c o m p e t e n tt o t e s t i f y.

Wit h respe ct to D.B ., the trial court noted:

[C]le arl y un de rs ta nd s th e me a nin g of takin g the oath. I a sk e d h im i f I

a llo we d h im to testify would he tell t he truth. He sa id he would. He unde rstands the diff ere nce betwee n something – telling something that’s not true a s opposed to something that is t ru e . H e app e ars to b e int e lli g e nt .

. . . He

. . . w a s a ble to r e la te

. . . w hat th e fa c ts

we re abo ut w ha t he wa s h e re fo r, abo ut w ho thi s [D]ef e nd a nt i s, a ndc le a

rl y he ’s able-8-

to relate fac ts about what he observe s

. . . . So, The Court finds that he is compete nt t o t e s t i f y.

Tenne ssee Rule of E vidence 601 provides that “[e]very person is pre sumed competent to be a witness except as othe rwise provided in these rules or by statute.” “Virtua lly all witnesses may be permitted to te stify : c hildren, mentally incompetent persons, convicted felons.” Tenn. R. Evid. 601, Advisory Comm. Com. When e x amining a child’s compete ncy to testify a judg e should determine whether the child under stands the nature and meaning of an oath, has the intellige nce to unde rstand the subject matter of t he testi mony , and is ca pable of rela ting the f

acts a ccur ately . State v. Fe ars, 659 S.W. 2d37 0 ( Te nn . Crim. Ap p. 19 83 ). Th e pu rp os e of de te rm in in g co mp e te nc y of the wi tne ss i n

c hil d sex ual ab us e c a se s is to a llo w a vic tim to t e sti fy

if it c a n b e de te rm ine d th a t th e c hil d understands the nece ssityof telling the truth while on the witness stan d

. State v. Ba llard, 855 S.W .2d 557, 560 (Tenn. 1993) . The que stion of competency is a matter lef t to the discretion of the trial court. State v. Caug hron

, 855 S.W .2d 526, 538 (Tenn. 1993). The trial c ourt’s dete rmination on competenc y

will not be overturne d absent a showing of an abuse of discretion. State v. Howar d, 926 S.W .2d 579, 584 (Tenn. Crim. App. 1996)

.

After thoroug hly

revie wing the re cord, w e find that the tria l court did not abuse its discre tion when de termining that the two child witnesses wer e competent to testify . The re cord de monstrates that the victim a nd her olde r brother understood the nature of the ir oaths. B oth children kne w that telling a lie g ot them “in trouble” a nd that telling the tr uth did not. Although the ch i l d ren did not pr ov ide pe rf

e c t de fi nit ion s of “t

ru th” a nd “ lie ,” su c h pe rf e c tio n is not re qu ir e d in or de r f or the m to be de e me d comp ete nt to te sti fy . T hr ou g h d ir e c t qu e sti on ing , th e tr ia l c ou rt de te rm ine d th a t bo th K.T. an d D. B. knew the dif fer ence betwee n a truth and a lie. The intervie w satisfied the require ments nece ssary

to establish the com p et en cyof a c hild witness and demonstrated that the child witnesses under stood the importance of telling the tr

uth. There fore
, t h e De fe n d ant is not entitled to relief on this issue.

III. Conclusi on

I n a c c or da nc e wi th the fo re g oin g , we c on c lud e that th e tr ia l c ou rt didno t c omm it r e ve rs ibl e

err or. Ther efor e, the judg ment of the trial c ourt is affirmed.

________________

_ _ _ _ _ _ _ _ _ _ _ _ _ ________ ROBERT W. WEDEMEYER, J UDGE