### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 13 , 2003 Ses sion STATE OF TENN ESSEE v. FRAN KIE LEDBETTER Direct Appeal from the Circuit Court for Marion County No. 5311 Thomas W. Graham, Judge

No. M2002-02125-CCA-R3-CD - F iled August 7, 2003

The defendant was convicted of incest and ra pe of a child and sentenced to twenty -three y ears at 100% for the rapeof a chil d convict ion and ei ght y

ears asa Range

II , multiple

offende r for the incest conviction, the senten ces to be served concurrently . The defendant was also fined $50,000 for the rape of a child conviction and $10,000 for the incest conviction. On appeal, the defenda nt prese nts the following

claims: ( 1) the evidence w as insuff icient to support his convictions; (2) the trial court erred in det ermin ing that the six-year-old victim was competent to testify and improperly vouc

hed for the credibility of the c

hild-victim; (3) the trial court erred in giving the e xpert witness instruction to the jury; and

(4) the tr ial cour t denied t he defe ndant a f air tria l by refusin g to let h

im conduc t a voir dire examination of eachjuror individually and out of the presence of the other jurors. Upon re view, we affirm the judgments of the trial court but remand for entry

of corrected judgments to reflect that the defendant

was convicted of

Counts 3 and 4, ra

ther tha n Counts 1 a

nd 2, of the

indictmen

t and to reflect the def

endant’ s fines wh

ich were omitted fr

om the judg

ments. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nts of the Ci rcuit Court Affirm ed and Remanded for Entry of Corrected Judgments A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M

. T IPTON and D AVID H. W ELLES , JJ., joined. Philip A. Condra, District Public Defender (on appeal and a t trial); and Jeffe ry Har

mon, Assistant District Public Defender (at trial), for the appellant, F rankie Ledbetter. Paul G. Summers, Attorney Genera l and Repo

rter; B raden H . Bouce

k, Assista nt Attorne

y General ; James Michael

Tay lor, Distr ict Att orney Ge neral; and Sherry D. Gouger and Julia N. Oliver, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.1 It is the po licy of this co urt to refe r to min or victim s of sexu al abu se by the ir initials only. -2- OPINION FACTS On Ju ne 1 3, 2 000 , t he v ict im , ML, 1 stayed with the def endant, who was her father, at her grandmother’s home, whi le her mo ther and grand mother wo

rked. Th e victim testifie d that, at some pointduring the day , she was watching television when the defenda nt “took [her] in the dining room and put a sock in [her] mouth.” The defendant then carried the victim into her mother’s bedroom and laid her on her back

on the floor. Thereafter, the defe ndant sat on the victim’s stomach, unzipped hi s pants, and “stuck his privates in [the victim’s] mouth and peed.” The victim also said that the defendant told her not to tell an yone what ha d happened; however, the victim informed her grandmother of the sexual abuse as soon as she re turned home from work. The victim’s grandmother, Debra Lay ne, testified that on June 13, 2000, she and her daughter, the victim’s mother, left for wo rk at 6:00 a.m., lea ving the victim and

her sist er in the care of the defenda nt. Lay ne’s husb and and o ther chi ldren al so lived in the home a

t that time. W hen La yne returned home fro m work at 4 :00 p.m., th e victim di d not gre et her a t the car , which wa s unusual. After le arning

from the d

efenda nt that the victim was at a neighbor’s, Layne summoned the victim home. The def

endant a nd one of Lay ne’s sonsleft to g o pick up th e victim’ s mother f

rom w ork

. After speaking with the victim, L ayne took her and her sister to the police station, where they were referred to the Department of Human Services (“DHS”). Lay ne later accompanied the victim, the victim’s sister, and their mother to T.C. Thompson Chi ldren’s Hos pital, where the victim was examined. The victim’s mother, Holly Sanders, testified as L ayne did, that she lef

t the victim in the care of the defe ndant, wh ile she a nd La yne went to wo

rk on June 13 , 2000. Sanders’ s tepfather, three brother s, and young est sister were also at the house when she left for work that morning. When she returned home fro m work ar

ound 6:30 p .m., an of

ficer c ame to the resid

ence. A fter spe aking w ith this officer, Sanders went to the DHS, where she me t Lay ne and the victim. Thereafter, Sanders drove the victim

to T.C. Thompson Children’s Hospital, where she was examined by Kevin Mounce, a licens ed phy sician’sassistant

. Fi na ll y, th e S ta te ca ll ed Ke vi n M ou nc e t o t es ti fy. Mounce stated that he examine d the vict

im on Ju ne 13 , 2 00 0, at ap pr ox im at el y 11:00 p.m. and found edema (swelling) on her lowe r lip and disco lorat ion i n the m iddl e of her lower lip re sembl ing earl y bruisi ng. After the prosecution put on its proof, the defendant called Colette Young and Ta ffy Wilson as witnesses. Young, a forensic interviewer for the Children’s Advocacy Center of Ha mi lt on Co un ty, testified that she interviewed the victim on June 15 and 16, 2000. Wilson, a child protective services investigator with the Marion County Department of Children’ s Services (“DCS”), testified that the-3-

victim’s grand

mother br ought the victim tothe DCS around 5:30 p.m. on the day of the incident. The victim’s mother and

Office r Gene H argis l ater ca

me to the D CS. Next, the defendant

called Detective Gene Harg is of the Marion County Sheriff’s Depa rtment who testified that

he wa s present at the DCS with the victim, Sanders, and Lay ne. The victim’s clothing wa s s ub se qu en tl y co llected a nd sent to t

he Tenne ssee Bu

reau of Inve stigatio n Crime Lab or at or y. The defendant thenrecalled Mrs. Lay ne who said that, approximately one wee k after the June 13, 2000, incident, the victim told her that on the date in question she was mad at her father because he wou ld no t let her go s wimm ing. The defendant testified that he often baby sat the victim and her siste r while their grandmother and mother worked, and he was baby sitting them on June 13, 2000. Sa

nders’ stepfather and brother were at the house that day, a s well. He recalled the victim throwing a tantrum that day because he didnot allow h

er to go swimming . The def

endant d enied all al lega tions of se xual abuse

and also deniedputting a sock in the victim’s mouth. He further testified that he was not aware that any thing unusual had happened that day un til a police off

icer ar rived at the L ayne home a

nd asked him to vacate the premises. The defendant a dmitted having a prior felony theft conviction. ANALYSIS I. Sufficiency of the Evidence The defenda

nt argu es that the

evidenc e was insu

fficien t to suppor

t his convi ctions be cause the facts to w

hich the v ictim testi fied “le ad to the i nescapable conclusion the Defendant could not have inserte d his penis into ML’s mouth from the position that she placed him.” Additionally , the defendant argues that the vict im’s testimony was not credible bec ause she could not describe the defendant’s penis and she “had no rea ction to pee going down her throat.” In consider

ing this is sue, we a

pply the famil iar rule that where sufficiency

of the convicting evidence is challenged, the relevant question of the re viewing court

is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. V irginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 ( 1979); see also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1 992); State v. Anderson , 835 S.W.2d 6 00, 604 (Tenn. Crim. App. 1992) ; Tenn. R. A pp. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be s et aside

if the evidence is insuffi cient to su pport the findings by

the trier of fact of guilt bey ond a rea sonable doubt.”). All questions involving the credibility of witnes ses, the weight and value given to the evidence, and all factual issues are resolved by the trier of f

act. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty ve rdict by the jury , approved by the trial judge, accredits the testimonyof the witnesse s for the State and resolve s all conf

licts in favor of the theory of the State.”-4-

Statev. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationa le for this rule: This wel l-settled rule rests on a sound foundation. The tri a l

judge and the jury see

the witnesses face to face, hear their testimony and observe

their demeanor on the stand. Thus the trial judge and jury are the prima

ry instrumen

tality of justice to determine the weight and credibi lity

to be giv en to the testimony of witnesses. I n the trial forum alone is there h

uman atmo sphere a

nd the tota

lity of the evidence cannot be reprodu ced with a

written r ecord in this Court. Bolin v. State , 405 S .W.2 d 768, 771 (T enn. 1 966) ( citi ng C arrol l v. State , 370 S.W.2d 523 (Tenn. 1963)). A jury conviction removesthe pres umption of innocenc e with whi ch a def endant isinitially cloaked and repl aces it w ith one of guilt, so that on appeal, a convicted defendant has the bur den of demonstra ting that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Ten n . 1982). The defendant was convicted of rape of a child and incest. Tennessee Code Annotated section 39-13-522(a) defines rapeof a child as “the unlawful sexual penetration of a victim by the defendant or the defendant by

a victim, i f such victim is less th an thirte en (13) y ears of age.”Inc est

is defined, in pertine nt part, a s: (a) A person commits incest who engagesin sexual penetration as defined in § 39-13-501, with a person, knowing such person, to be, wi th ou t r eg ar d t o l eg it im ac y: (1) The person's natural parent, child, grand parent, grandchild, uncle, aunt, neph ew, niece, s teppare nt, stepchild, adoptive par ent, adoptive child[.] Tenn. Code Ann. § 39-15-302(a). On direct examination, the victim testified that the d efendant took her into her mother’s bedroom, laid her on her back on the floor, and sat on her sto mach. She

said that the defendant “stuck his privates in [her] mouth and peed,” and th en told her not to tell anyone. Ke vin Mounce, the physician’s assistant

who later

examined th

e victim, f

ound “[s]ome

swelling in her lower lip[] and

. . . noticed in the mid-line or the middle of her lip ther e was some d iscolora tion, which [he], in looking at that, f

elt like it w as some e arly

bruising,” although stating he could not determine what had caused the br uisi ng. Our supreme court has stated that “‘[n]o jury ca n be allowed to return a verdict based upon oral evidenc e which isflatly opposed to

phy sical fa

cts , the e xistence o f which isincontro vertibly established,’” State v. Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993) (quoting Wood v. United States ,-5-

342 F.2d 708, 713-14 (8 th Cir. 1965)). However, the defendant presented no proof of any physical facts that would make the victim’s explanation impossible to have occurr ed. Ther e wereno crossexamination questions regarding the position of the defenda nt and the victim nor w as there any testimonyby t

he defe ndant’s witnesses, including the defe ndant hims elf, tha

t such positioning w ould have made the act in question impossible. That the facts which the defe ndant att empts to utilize in the present

appeal t o support h

is impossibi lity

claim ar e in adequate to do so is apparent when compared with testimony establishing such a c laim. See Wood , 342 F.2d at 713 (“From

th e s ca nt y, indefinit e and indecisive pro of adduc ed at app ellant’strial, it iswholly inconce ivable, b y a

ny p rocess of logic or reasoning from the fa cts disclosed in this record, how appellant might, could, or did, board a moving freight car, trave ling ten (10) to fifteen (15) miles per hour, a nd within a distance of ‘ten blocks’ i.e. less than one ( 1) mile, or within at th

e very most four to six minutes, ‘break the seal’ of the refrig erator

car . . ., make ‘e

ntry ’ there

in with inte

nt to, and d

id throw meat therefrom.”); see also Horn sby , 8 58 S.W.2d at 896 (“While the two eyewitnesses testified that the pic kup truck was travelling northbound . . . and t he Pontiac

was trav elling e ast

boun d . . ., the physical fa cts do not support their testimony. The damag e to the Pontiac was limited to the left or driver’s side of the vehicle. The damage to the pickupwas limited to the front of the vehicle. Had the two vehicles been travelling as indicated by the witnesses, the damage to the Pontiac would h ave been t o the right or passenger’s side of the vehicle--not the left or driver’s side. The ph ys ical facts are c onsistent with the [Defenda

nt’s] testim

ony regar ding the directio n of the ve

hicles. M oreover , th e in vestigating officer . . . reached this conclusion based upon the statements of t he witnesses at the scene, the location of the damage on the respective ve hicles, the gouge mark found in the paveme nt, and other physical facts.” ). In

sum, the testimony

in the pre sent appe al does not support th e defendant’s c laim of im po ss ib il it y. Moreover, questions about the victim’s credibility were resolved by the jury . The jury heard the testimony and observed the de meanor of both the victim and the defendan t. The defendant testified that the incident di d not happen; the victim testified that it did. The jury resolved the obvious conflic t in favor

of the victim. The f

act that t he victim d

id not see the defe ndant’s p enis may

go to her credibility, but it does not make the facts in question impossible nor overcome the fact that the jury resolved the conflicts in testimony in fa vor of the victim. Accordingly , we conclude that the evidenc e was suf

ficient t o support b oth convictions. II. Qualifica

tion of the V

ictim a s a Witness As to ML, who was six y ears old and in the first grade

at the time of trial, the defendant argue s boththat the tr

ial cour t did not fo llow the r

equired procedu res i n det ermining whether she was competent

to testify and, when she then testified, neglected to proper ly administer the oath, trea ting her in such a way a s to confer the court’s “stamp of a ppro val” to her testimony. B ecause of the relationship of these issues, we will consider them jointly f or purposes of our review. Rule 601 of the Tennessee Rules of Evidence cre ates a presumption that all witne sse s are compe tent

to testify unless otherwise provided in the r ules or by statute. Tenn. R. Evid. 601 . Th e Advisory Commission Comment explains this presumption:-6- Virtually all witne sses may

be permitted to tes tify : child ren , mentally incompetent persons, convicted felons. Rules 602 a nd 6 03 should be re ad in connection with this rule, however, because any witness must swear

or affir m to tell the truth and must have personal knowl edge of that tr

uth. The c ommon law r ebutta b ly presumed children under fourteen incompetent, Ball v. State , 188 Tenn. 255, 219 S.W.2d 166 (1949), but the proposed rule is contra.

. . . . The amendment removes the ea r lier language requiring

“of s ufficient capacity to understand the obligation of an oath o r affirmation” and esta

blishes a rebuttable presumption of co mp et en cy. Tenn. R. Evid. 601 , Advisor y Co mmission Cmt. Rule 603 of th e Tennessee Rules of Evidence requires that “[b]efore testifying , every witness shall be required to declare that the witness will testify truthfull y by oa t h or affirmation, administered in a form calculated to aw aken the witness’s conscience and impress the witness’s mind with the duty to do so.” The determination as to whether ML wa s competent to testify was a discretionary

decision of the trial court, which will not be overturned on appeal unless the court clearly

abused its discretion. Statev. Hallock , 875 S.W.2d 285, 293 (Tenn. Crim. App. 1993). The key issue for the trial court was whether the six-year-old victim had the ability to understand the nec essity of telling the truth w

hile testifying in the proceed ings. State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993). “[T]here is no requirement

that the witness have sufficient academic lear ning to defi ne an oath or articula te its obligations.” State v. Fears , 659 S.W.2d 370, 375 (Tenn. Crim. App. 1983). Pri or t o he r te st im ony, th e tr ial cou rt q ues ti one d ML: THE CO URT: Okay . Now , are yo u [ML]? [ML]: (Nods head up and down.) THE COURT: If y

ou’ll come

around a nd sit in that chair right there, I wa nt to as k yo u a co up le of qu es ti on s, ok ay. [ML], y ou’re [ML

], is that rig

ht? [ML]: (Nods head up and down.) THE COURT: How old are y ou? [ML ]: Six.-7- THE COURT: [ML

], I ne ed to ask y

ou a coup le of que stions a bo ut your understa nding of what the t ruth is and what

a lie is. Do you know the diffe rence in what the

truth is and what a li e is? [ML]: (Nods head up and down.) THE COURT: What is the truth? [ML]: You tell them what they did. THE COURT: And what would a lie be? Give me an example of what a lie would be? [ML]: You ’ll get in trouble if y ou don’t te

ll them. THE CO URT: Is a lie a b ad thi ng? [ML]: (Nods head up and down.) THE COURT: To tell a lie is somethin g that y

ou should not do, is that right? [ML]: (Nods head up and down.) TH E CO URT : Yo

u shoul d te

ll t he tru th, is t ha t ri gh t? [ML]: (Nods head up and down.) THE COURT: Now, if I ask y ou to tell me and promise me that you will tell the truth, w ill y ou do that? [ML]: (Nods head up and down.) THE COURT: You won’t tell me a lie, will you? [ML]: (Nods head from left to right.) THE CO URT: A

re y ou in t he fi rst g rade righ t now, [ML ]? [ML]: Yeah. THE COURT: Were you in kinderg arten last ye ar?-8- [ML]: Yeah. THE COURT: Where did you g o to kindergarten? [M L] : S wi ss El em en ta ry.

. . . . TH E CO URT : Wh er

e a re y ou in sc hoo l no w? [ML]: Still

the same school. THE CO URT: Still at Swiss, okay. Do y ou remember things that happened last year whil e y ou were at eleme nt ary school, I

mean kin derg ar te n? [ML]: (Nods head up and down.)

. . . . THE COURT: Are you le arning how to read? [ML]: I know how to read now

. THE CO URT: You do, good. . . . Did they teach you to r

ead som e last year in kinder

garten? [ML]: No. THE COURT: But y

ou do know

how to re ad some no w, is that rig ht? [ML]: (Nods head up and down.) THE COURT: What can you re ad? [M L] : I c an re ad Ma c t he Ca t a nd Cr ac k S to ry.

. . . . TH E CO URT : Do es [si c] p eo ple ta lk i n y our ro om s ome

tim es ? [ML]: Raven comes in and jumps on me, that’s my baby sister.-9- THE COURT: Oh, I see, she jumps on you. Well, I

was thinking more about in school, do peo ple talk a lot of times in school and pe opl e h as to s ay

be qui et ? [ML]: Huh-uh. THE COURT : Do y ou know ho w many people a re in y our clas s? [ML]: Thirteen. THE COUR T: Thirte en. Okay . Now, y ou’re g oing to be

ask [ed ] some questionsabout some things th at happe

ned abou t a year ago and do y ou r em em ber those thi ng s? [ML]: (Nods head up and down.) THE COURT: And if I

make y ou promise

to me that y

ou’ll tell only tho se thi ng s th at

y ou c an re me mbe r, will y ou k

ee p th at promi se ? [ML]: (Nods head up and down.) The defendant presented no proof to rebut the pre sumption that ML wa s c om pe te nt to te st if

y. Ac co rd in gl y, our

determination as to whether the trial court abused its discretion in concluding that ML was competent to testify is base d upon the questions of the trial court and her respons es . We conclude that this exchange between the trial court and ML shows that she understood the differe nce betweenthe truth and a lie, that lying was “bad ,” an d t ha t s he wo ul d n ot li e d ur in g h er te st im on y. Thus, her testimony showed that she understood the need to tell the truth. See Fears , 659 S.W.2d at 375. The ability o f ML to remembe r facts and rela

te them to the jury about the time surrounding the incident was demonstrated by her respons es to the tr

ia l court, as well as to counsel during her te st im on y. Her responses to the court’s questions as to where s he attended s chool, her grade and classmat es, and her ability to re ad, sho wed that she could remember and relate fac ts. On direct examinatio n, she re sponded to the State ’s questio ns: Q [ML], ca

n yo u tell us wh at y our whole name is? A [ML ]. Q And [ML], how old are y ou now? A Six.-10- Q And do y

ou know wh

en y our birthday

is? A April the 9th. Q Okay. And do y

ou go to school anywhere? A Swiss. Q Swi ss E

le me nta ry ? A Yes. Q And what grade are y ou in? A First grade. Q First g

rade. D o yo

u like go ing to school? A Yes. Q How many

people do

you have in y our clas s? A Thirteen. Q Thirteen people? A Yes. Q And what’s your te acher’s name? A Ms. Higg

ins. Q Do you remember what y our teac her’s na me was la st y ear in kindergarten? A No. Q Ok ay. A Her name was Ms. Reid. Q Ms. Reid. [ML

], do y ou know wh at y our rea l mama’s n ame is?-11- A Ho ll y. Q An d h ow ab ou t yo ur re al da dd y? A Frankie.

. . . . Q Before you started kindergarten who did y ou live with? A My real mama

. Q Ok ay. Th at wo ul d b e H ol ly? A Yes. Q Who else did you live with? A I li ve d w it h G ra nn y. Q And what is her name? A Gran ny Debr a [L ay ne]. Q Okay. Who else lived with y ou? A Crystal and Matthew. Q Crystal and that would [be] Aunt Cry stal and Uncle Matthew? A Yes. Q Who else? A Uncle B o and that ’s it. Q Okay. Do y

ou have a baby

sister? A Yes. Q And what’s her name? A Raven.-12- Q Did your daddy

live with you last y

ear? A No. Q Did he come over some? A Yes. Q Last y ear did you[r] mama and y our grandma work? A Yes. Q Who watched you whe n they went to work? A My real da

ddy. The victim was able to recall these facts, despite the fact that she had bee n living with a foster family from the t

ime of the

incident to the date of the trial. Therefore, it is evident that she had the ability to rememb er and r

elate fa cts about the time su

rroundin g the inc ident wit h little dif

fi cu lt y. Facts that she could not remember with great detail or that c onflict e d with the testimony of other witnesses were matters for the jury to weigh in determining her believability

. State v. Carruthers , 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757 (2001) (the “appellate court may not reconsider the jury ’s credibility assessments”)

. Appellat e courts have recognized the trial court’s “unique ability to observe the witness,” as in United States v. Thai , 29 F.3d 785, 810 (2nd Cir. 1994), where the district court judge had observed that a robbery

witness, who was six and o ne-half ye ars old at the time of the crime, was “a very intelligent child, a bright child wh o underst

ood the pr

ocess and knew wh at this wa s about, so I find her – to the extent that that is even an issue, I find her compete nt to testify.” Id. at 809. In the pre sen t ap pea l, th e tr ial cou rt s tat ed a t t he m ot io n fo r ne w tr ial as t o ML:

I want the r ecord to

be clea r that the Court thoug

ht this wasa particularly

believa ble small child and

I und erstood how the jur

y c ould find the way they

did b ased on the way this child testified. She was extremely direct. The transcript

is not maybe as clea

r about how she appeared in court was actually

the case and s o I think this is a credibi lity

i ssue that both the jury and the Court thoug ht that her testimony on the significant important issue wa s believable. We conclude that the trial court did not abuse its discretion in determining that ML was competent to te st if y. See State v. G

riffis , 964 S.W.2d 577, 591-92 (Tenn. Crim. App. 1997) (child-victim, five years old a

t the time of trial, was competent to testify)

.-13-

Ad di ti on al ly, the defendant argues that the trial court did not act impartia lly b ecause , by

its treatment of ML, it vouched for he r credibility. This contention is based upon a n exchange, which occurred after the court had concluded that she was competent to testify and as the jury w as to return to the cou rtroom. Just

before the jury returne d, defen se counse l stated to the trial court: Judge, I just want to make it clear on the record ag ain of my concer

n and the Court’s questioning of [the victim] in front of the jury is that the Court does not inadvertently lea ve the impression that

it i s suggested that no matter

what she says it’s going

to be true, that’s what I’m concerne d with. The jury then re

turned, and the trial court introduced the victim and questioned her: THE COURT: All r

ig ht, this is [ML], w

ho’s sea ted here in the cha

ir and obviously

she’s six years old and not toota ll . I h op e e ve ryb od y – can e very body see [M L]? [ML ], you and I

had a little talk before the jury c ame in and I talked to you about telling the

truth. Do y

ou remem ber that ? [ML]: (Nods head up and down.) THE COURT: Okay. And y ou promise d that y ou will tell

the truth t

o the jury and to eve

rybody here, didn’t you? [ML]: Ye s. THE COURT: Okay. And y ou also indicatedto the Court that you knew if you wou ld tel l a li e that that w ould be a bad thin g, is that right? [ML ]: Ye s. THE COURT: Okay, now these la wyers a re going to ask a few questions of you and y

ou just answer

from your own me

mory of event s as be st you po ss ib ly c an , o ka y. [ML]: (Nods head up and down.) ML then proceeded to testify without comment or objection by the def ense. On appeal, the defendant arg ues that “[t]he Court never asked the question it stated it

would ask so as to require ML ‘to declare [she] will testify truthfully by

oath or affirmation, administered-14-

in a form c alculated to awak en the wit ness’s c onscienc e and impr ess [her] mind wi

th the duty

to do so,’” quoting from Rule 603, Tennessee Rules of Evidence. Additionally , he argues that after the trial court had dete rmined tha

t ML should testify, “it was incumbent upon the Court to proc eed with the child as with any other witness: administer an oath and allow counsel to question.” Instead, accor ding to the defendant’s argument, the trial cour t gave the jury

the message that ML “

had told the trial court a true story a

nd now she was going to tell a true story to the jury.” We respec tfully

disagr ee with th

e defendant’s vi ew of the trial cou rt’s res ponsi b ilities or actions. In dealing with a c hild who is to te stify , the tria l court ma

y ut ilize lang uage w hich is appropr iateto the s ituation, as explained by Neil P. Cohen et al., Tennessee Law of Evidence , § 6.03[4] (4th ed. 2000):

Becau se child ren lac k the u nders tandi ng, voca bulary, and experience of adults, courts may fa shion a child-oriented oath f or a child witn es s. This oath may deal simply with such matters as the difference

between truth and

falsehood, that lying

is improper, and that the child promises to tell the truth. In the present appeal, the

trial cou rt in the pr

esence of the jur y r eminded ML

that she earlier had promised

to be truth

ful and ha d said tha t telling a lie“would be a bad thing,” asking then that she answer the lawy ers’ que stions “a s best [she] p ossibly can.” By this language, we believe that the trial court complied in a reasonable fashion with the requirement of Rule 603 that it impr

ess u pon the sixye ar-old witness her duty to b e truthful. Since the defendant did not advise the court, as ML was about to testify, that, in the defenda nt’s view, the court had vouched for her as a witness, no d etermination was made

as to whe

ther a curative

instructi on should b e given . Accor dingly , w e conclude that this ob

jection iswaived. See

Tenn. R. A

pp. P. 36(a

). Even if not waive d, howeve

r, it is without me

rit. III. Expert Witness Instruction The defendant contends that the trial court erred in charging

the jury with an expe

rt witnes s instruction for

the testim

ony of Kevin Mounce, the phy sician’sassistant who examined the vict

im, ar gu in g t ha t t hi s c au se d t he ju ry t o g iv e u nd ue we ig ht to hi s t es ti mo ny. The admission of expert testimony is governed by Tennessee Rules of Evidence 702 and 703. The qualification of a witness as an expert is left to the sound discretion of the tri al co urt. See Ballard , 855 S.W.2d a

t 562; Otis v. Cambridge Mut. Fire I ns. Co. , 850 S.W.2d 439, 442 (Tenn. 1992). Principles for the trial court to follow in deciding whet her to ad mit scient ific or technical evidence are set out in Rule 7 02, which

states: Testim ony By Experts . — If scientific, technical, or other specialized knowl edge will substan ti al ly assist the trier of fact to understand the evidence or to dete

rmine a f act in issu e, a wit

ness qua lified as an-15- expertb y k nowledge, skill, experience, training, or educ ation may testify in the form of an opinion or othe rwise. Tenn. R. Evid. 702 ; see also McDanie l v. CSXTransp. , 955 S.W.2d 257, 264 (Tenn. 1997). Scientifi c or technical evidence, like all evidence, must first be relevant to a f act at issue in the case. See Tenn. R. Evid. 401, 402. If relevant, scie ntific or tec hnical evidence must also meet the requirements of Rule 702. Mounce t estified that he had a bachelor’s deg ree in allied health, including twenty -four months of medical training. Additionally , he had been employed in the medica

l field for seventeen ye ars, thirteen of which was in thearea of pediatrics. Although opining that Mounce was more of a fact witness than an expert

witness, the trial court stated that he was “expert enough to know whethe r it’s something

that was a

bruise or not a bruise.” Based on this statement, it is evident that the trial court concluded that Mounce was going to testify as an expert reg arding the victim’s injuries. It is eviden t that Mounce qualified as an expert in terms of his education, training, and experience with children. As such, his opinion as to what constituted edema and the signs of early bruising on a child

was permissible pursuant to Rule 702. Accordingly , we cannot conclude that the trial court abused its discretionin deter mining th at the expe

rt jury instructi on should

be give n, as it is the court’s obligation to p ro pe rl y c harge the jury on all the issues of law that were raised by the evidence at trial. State v. McAfee , 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987).

IV. Denial of Individual Voir Dire of Prospective Jurors The def endant asserts that the trial court erred by not allowing individualized voi r dir e because of the nature of

the charges – incest and child rape

. To support his proposition, the defendant note s that when the judge asked the jurors, “Doe s anybody have any experience your self or with a close family member with a c

harge of any

kind of sexual mi sconduct of a small ch ild or an y ch ild ?” three potentia

l jurors r aised the ir hands. The defendant further asserts that six more jurors indicated, in response

to the trial

court’s question a s to whethe r they could re main impar

tial in a c aselike this, that they would have a

hard time being impartial and would lean toward believing the child. The purpose of voir dire is to ensure that jurors seated at trial are competent, unbiased, and impartial. See State v. Mann , 959 S.W.2d 503, 533 (Tenn. 1997). The trial court is granted broad discretion in deciding the manner in which voir dire will be conducted, a nd its decisi ons in

this regard will not be disturbed on appeal absent a showing of abuse of discretion. See State v. Stephenson , 878 S.W.2d 530, 540 (Tenn. 1994). We review the defendant’s issue, ther efore, u nder an abuse of discretion standard. Rule 24(a ) of the T ennesse e Rules of Criminal Pr

ocedure states: The court shall cause the prospective jurors to be sworn or

affirme d to answer truthfully the

questions they

will be asked during the selection-16- process , identify

the part ies and th eir coun sel, and briefly outline the nature of the case. The co urt may put to the respective jurors appropr iatequestions regarding their qualifica tions to serve as jurors in the case

and shall permit questioning by the parties for

the purpo se of disco verin g bases for cha llenge for cause and enabling an intelligent exercise of peremptory

challenges. The court, upon motion of a party or on its own motion, may direct that any por tion of the questioning of a prospec tive juror

be condu cted out o f the pre sence of the tenta tively selecte d jurors a

nd other p

rospect ive juror s. Tenn. R. Crim. P. 24 (a) (e mphasis a

dded). F urther, “[t]he pre

vailing practic e in th is state is to examine the jurors collectively r ather than individually.” State v. Oody , 823 S.W.2d 554, 563 (Tenn. Crim. App. 199l) . Ind

ividual vo ir dire, however , is manda tory when the re is a significant chance that a prospective juror has been exposed to potentially prejudicial material. Id. ; see al so State v. Shepherd , 862 S.W.2d 557, 568 (Tenn. Crim. App. 1992) (noting that at least nine of the members of the jury had seen an “Unsolved My steries” television program about the defenda nt, and ten of

the jurors were aware that the def endant was charged with more than one murder). The defendant argues the trial cour t erred in disallowing individualized voir dire; however, the record clearly reflec ts that those seven individuals were removed from the general jury

pool and questioned individua

lly. Although the tria

l c ourt di d n ot in it ia ll y qu es ti on th e j ur or s i nd iv id ua ll y, there were no

facts to indicate

such a pr ocess was necessary , the record not reflecting that this was a highly pub licized ca se or tha t any of the jur

ors were familiar with the c ase or the defendant. Without something

in addition to the nature of the crime to necessitate individual voir dire, we cannot conclude that the trial court abused its discretion. In making this determination, we note tha t when the court became aware that seve ral of the jurors had personal knowledge or feelings about

the nature of the crime

that prevented th

em from be

ing impa rtial, the y w ere excu sed from

the cour troom, questioned individually, and ultimately excused. CONCLUSION Based on the foregoing authorities and re asoning, we affirm the judgments of the tria l court butremand for entry

of corrected judgments to reflectthat the defe ndant wa s convict

ed of Coun

ts 3 and 4 of the indictment and that fines of $10,000 and $50,000, respectively , were assessed.

___________________________________ ALAN E. GL

ENN, JUDGE