This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 34,616 4 HIRAM MORRIS, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Darren M. Kugler, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John Kloss, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Lilley and O’Connell, P.A. 14 Jess R. Lilley 15 Erin O’Connell 16 Las Cruces, NM 17 for Appellee 18 MEMORANDUM OPINION 19 HANISEE, Judge. 202 {1} Defendant was charged by indictment w ith ten counts of first-degree criminal 1 sexual penetration of A.M., a child under the age of thirteen, inviolation of NMSA 2 1978, Section 30-9-11(D)(1) (2009) and onecount of contributing to A.M.’s 3 delinquency in violation of NMSA 1978, S ection 30-6-3 (1990). The State filed a 4 motion to conduct a videotaped deposition of A.M. in lieu of in-court testimony at 5 trial under NMSA 1978, Section 30-9-17 (1978) and Rule 5-504 NMRA. Defendant 6 opposed the State’s motion and filed his ow n motion for an independent assessment 7 of A.M.’s competency to testify as a witness at trial. 8
{2} The district court held a hearing on th e motions on February 27, 2015. At the 9 hearing, A.M. stated her name, age and birthday, the school she attended, who she 10 lived with, and the name of her mother. A.M. told the court the name of her counselor, 11 her appointment schedule with the counselor, identified the judge and stated that she 12 was in a courtroom to answer questions. A.M. further explained that she understood 13 the difference between telling the truth and te lling lies, that she was obliged to tell the 14 truth in court, that the consequences for lying in court could include jail, and that 15 taking an oath meant making a promise to tell the truth, raising one’s hand, and saying 16 “I am telling the truth[.]” Asked why she had not immediately reported her alleged 17 abuse by Defendant, A.M. responded that De fendant had told her not to tell anyone 18 about the abuse and that she had essentially repressed her recollection of the abuse 193 until she saw a therapist some years later. 1
{3} The district court held that A.M. was not competent to testif y as a witness and 2 declared her unavailable to testify at trial. In its written findings of fact, the district 3 court found that A.M. was able to tell th e difference between truth and falsehood as 4 well as the consequences of telling lies while under oath. Nonetheless, the district 5 court found A.M. incompetent to testify be cause she “does not have the capacity to 6 sufficiently recall, recollect, or relate th e events surrounding the allegations at issue, 7 and [her] memory is sketchy and not reliable.” 8
{4} This was error. Rule 11-601 NMRA provide s that “[e]very person is competent 9 to be a witness unless these rules provide otherwise.” Th e only rules of evidence that 10 “provide otherwise” are Rules 11-602 (requiring personal knowledge) and 11-603 11 NMRA (requiring a witness to swear “an oath or affirmation to testify 12 truthfully . . . . in a form designed to impress that duty on the witness’s conscience”). 13 As we recently explained in State v. Perez , 2016-NMCA-033, 367 P.3d 909, cert. 14 denied, 2016-NMCERT-___, ___ P.3d ___, “when the competency of a witness is at 15 issue, the district court is required to determine only whether he or she meets a 16 minimum standard, such that a reasonabl e person could put any credence in their 17 testimony.” Id. ¶ 14 (internal quotation marks and citation omitted). This “minimum 18 standard” is simply “ ‘a ba sic understanding of the difference between telling the truth 194 and lying, coupled with an awareness that lying is wrong and may result in some sort 1 of punishment.’ ” Id. (quoting State v. Hueglin , 2000-NMCA-106, ¶ 24, 130 N.M. 54, 2 16 P.3d 1113). It does not permit the trial court to assume the role of a gatekeeper, 3 preventing the jury from hearing lay w itness testimony based on the judge’s own 4 assessment of a witness’s credibility or usefulness at trial. 5
{5} Defendant argues that the district court acted within its discretion because “[t]he 6 ability to recall and recount issues” is a permissible area of inquiry when the district 7 court is evaluating the competency of “a young child or . . . [a witness with] mental 8 deficiencies[.]” But there is no requirement in the Rules of Ev idence or our caselaw 9 that a witness’s recollection of an event have some minimally verifiable level of 10 accuracy in order for the witness to be found competent to testify regarding that event. 11 Whether or not the witness’s memory is photographic, murky, or some point in 12 between goes to the weight the jury gives to the witness’s testimony, not whether the 13 witness is permitted to take the stand in the first instance. See Hueglin , 2000-NMCA14 106, ¶ 22 (“[A] witness wholly without [mental] capacity is difficult to imagine [and 15 t]he question is one particularly suited to the jury as one of weight and credibility[.]” 16 (internal quotation marks and citation omitted)). 17
{6} The cases Defendant cites, in support of his contrary reading of Rule 11-601, 18 do not support his position. Both In re Pamela A.G. , 2006-NMSC-019, 139 N.M. 459, 195 134 P.3d 746, and State v. Doe , 1980-NMCA-091, 94 N.M. 637, 614 P.2d 1086, 1 concern (and upheld) the admission of a child’s out-of-court statements under the 2 residual exception to the rule against hearsay. Their discussion of the child’s 3 willingness or ability to recall previous events relates to the requirement that hearsay 4 admitted pursuant to the residual clause be“more probative on the point for which it 5 is offered than any other evidence that the proponent can obtain through reasonable 6 efforts[,]” not an available witness’s co mpetency to testify. Rule 11-807(A)(3) 7 NMRA; see In re Pamela A.G. , 2006-NMSC-019, ¶¶ 1-7; State v. Doe , 1980-NMCA8 091, ¶ 7. 9
{7} Defendant cites State v. Whitfield, No. 29,774 mem. op. (N.M. Ct. App. July 27, 10 2011) (non-precedential), for the proposition that a district court may inquire into a 11 child witnesses’ family, plans for the future, etc., in order to test the ability to observe, 12 recollect, and communicate only relates these i nquiries in its description of the district 13 court’s voir dire to the witness on his or her competency. See id. at 5. More 14 importantly, the Whitfield court rejects an argument indistinguishable from the one 15 Defendant makes here, holding that a childwitnesses’ inconsistent testimony about 16 his recollection of the events at issue went to the witness’s credibility with the jury, 17 not his competency to testify. Id. at 6. 18
{8} Defendant quotes State v. Macias , 1990-NMCA-053, ¶ 13, 110 N.M. 246, 794 196 P.2d 389. In Macias , this Court stated that it is within the district court’s discretion to 1 inquire into a witness’s “ understanding, intelligence, and capacities to observe, recall, 2 and communicate” in deciding a witn ess’s competency to testify. Id. ¶ 15. But Macias 3 says that such an inquiry is to be made“in light of the consequences that the 4 [competency] determination w ill have”—in other words, th at the witness will be able 5 to understand and recall that he or sh e took an oath to tell the truth. Id. Such a limited 6 inquiry is different from onein which the presence or absence of some objectively 7 evaluated capacity to recall allows or di sallows the testimony of a trial witness. See 8 Hueglin , 2000-NMCA-106, ¶ 22 (“Rule [11-]601 co mpletes the restructuring of the 9 judge’s and jury’s functions that began whencourts and legislatures began abrogating 10 rules of disqualification . . . . [and] repres ents the culmination of the trend that has 11 converted questions of competency into questions of credibility[.]”). 12
{9} Defendant lastly suggests that even if th e district court’s decision is erroneous, 13 we should nonetheless affirm it as within the traditional discretion we afford to district 14 courts’ rulings on questions of competency. But we do not owe the district court any 15 deference if it applied an incorrect standard of law to reach its competency 16 determination. Perez , 2016-NMCA-033, ¶ 11. The district court did just that by 17 conflating the accuracy and credibility of A.M.’s recollections, a question solely of 18 concern to the jury, with her ability to distinguish truth from falsehood and understand 197 the significance of taking an oath. We th erefore reverse the district court’s 1 determination that A.M. is not competent to testify as a witness attrial and remand for 2 further proceedings. See Perez , 2016-NMCA-033, ¶ 24 (reversing a district court’s 3 determination that a child witness was incompetent to testify). 4
{10} IT IS SO ORDERED. 5

___________________________ ______ 6 J. MILES HANISEE, Judge 7

WE CONCUR: 8

_________________________________ 9 MICHAEL E. VIGIL, Chief Judge 10

_________________________________ 11 RODERICK T. KENNEDY, Judge 12