Travis v. State ( 2015 )

Cite as 2015 Ark. App. 572
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-84
Opinion Delivered October 21, 2015
TRISTAN TRAVIS APPEAL FROM THE PULASKI COUNTY
APPELLANT CIRCUIT COURT, FIRST DIVISION
[NO. CR-2012-1710]
V.
STATE OF ARKANSAS HONORABLE LEON JOHNSON, JUDGE
APPELLEE
AFFIRMED
BART F. VIRDEN, Judge
On June 20, 2014, appellant, Tristan Travis, was convicted in the Pulaski County
Circuit Court of Class Y felony rape and Class D felony second-degree battery of then
three-year-old K.S. A jury sentenced Travis to thirty-seven years’ imprisonment in the
Arkansas Department of Correction on the rape count, and six years’ imprisonment for the
count of second-degree battery. The circuit court ordered that the sentences should run
concurrently, which resulted in an aggregate sentence of thirty-seven years. Travis filed a
timely notice of appeal, and for his sole point on appeal Travis asserts that the circuit court
erred in finding that K.S. was competent to testify. We disagree, and we affirm.
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Cite as 2015 Ark. App. 572
I. Facts
The incident from which the charges against Travis stemmed occurred on April 20,
2012, when Travis was babysitting then three-year-old K.S. and her younger brother so
that his wife and K.S.’s mother could attend a church social function. On June 5, 2014, a
pretrial hearing was held to determine whether K.S., who was five years old at the time of
the hearing, was competent to testify. At the hearing, the State asked K.S. if she knew the
difference between the truth and a lie:
ATTORNEY: . . . [I]f I told you your blanket was red, is that the truth or is it a lie?
WITNESS: Lie.
ATTORNEY: Why is that a lie?
WITNESS: Because you are telling not the truth.
ATTORNEY: Okay. What is the truth?
WITNESS: That you’re telling the truth and you don’t get sent to your room.
ATTORNEY: Okay. But what’s the truth about your blanket?
WITNESS: That it’s not red. It’s pink.
ATTORNEY: That it’s pink. Okay. All right. And can you promise to tell us the
truth?
WITNESS: Yes.
K.S. was sworn in, and again asked if she understood the difference between the
truth and a lie:
ATTORNEY: All right. So what did you just tell that lady? What did you tell her?
What did you just say to her?
WITNESS: I told her that I swear to tell the truth.
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ATTORNEY: Okay. And so can you tell us the truth?
WITNESS: Uh-huh.
ATTORNEY: What happens if you don’t tell the truth?
WITNESS: You get in trouble.
On direct examination, K.S. described the events of the evening of April 20, 2012.
She testified that Travis put a broken crayon into her pee-pee while she was lying on the
living room floor. She testified that he put wire hangers in her pee-pee after he put the
crayon inside her and that her mother was not there when it happened. She testified that it
hurt and that she bled.
K.S. was then cross-examined. K.S. relayed many of the same facts, but she
contradicted herself as questioning became lengthy. When questioned, she explained that
her mother left her with Travis at his home where they watched television, and she colored.
She explained that Travis put a crayon in her pee-pee, and that she was lying on a towel in
the living room of his house when it happened. On further questioning, she testified that
she could not remember which room in Travis’s house she was in when he put the crayon
inside her. She testified that after he had put the crayon inside her, he put wires and hangers
inside her, and again she testified that it had happened in the living room. K.S. testified that
only Travis had touched her pee-pee that day. She testified that her mother came back after
Travis had hurt her. K.S. offered contradictory testimony about when and with whom she
left the Travis home, and K.S. testified that she recalled speaking to a woman who showed
her a drawing of a boy and a girl but that she did not remember talking to a police officer
after the incident.
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Cite as 2015 Ark. App. 572
Cross-examination continued, and K.S. related more facts concerning the events of
April 20. As the questioning went on, K.S.’s relation of the facts became more contradictory.
The circuit court ruled that K.S. was competent to testify because she had the
capacity to transmit a reasonable statement of the events to the jury, and because she had
the ability to tell the truth.
The jury trial was held June 18–20, 2014, and K.S. testified. On direct examination,
K.S. told the jury that she could tell the difference between a lie and the truth and promised
to tell the truth. Many times during direct examination, K.S.’s initial answer was “I don’t
know.” However, when asked again, or if the question was rephrased, K.S. was able to relay
facts. When asked several times and several different ways, K.S. consistently supplied the
information that Travis put a crayon and hangers inside of her pee-pee and that the event
occurred at Travis’s home, in his living room. She testified that blood came out of her pee-
pee and that it hurt.
K.S.’s testimony became more contradictory and less responsive upon extensive
cross-examination. After responding to the defense that she understood the difference
between a lie and the truth and that she promised to tell the truth, the defense asked K.S. if
she remembered her mother telling her what would happen if she told a lie. K.S. responded,
“No” and continued to respond “no” to questions from counsel that attempted to ascertain
whether she remembered particular events. The defense argued that K.S. was not
competent, and the circuit court resolved the issue by stating that K.S. was competent, but
it was for the jury to decide whether she was credible. Eventually, after more questioning,
K.S. was nonresponsive and answered “a lie” when asked if she had told the truth or a lie
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about Travis. The circuit court stated that it had concerns, but still found that K.S. was
competent to testify and that her inconsistency was a credibility issue for the jury.
The State called several other witnesses to testify. According to Dr. Andrew
Bozeman, the senior pediatric surgeon who examined K.S. within hours of the incident,
K.S.’s injuries in and around her vagina, urethra, and labia caused bleeding and bruising,
and it was extremely unlikely that she had caused this trauma to herself because it would
have caused “excruciating pain.” Experts from the Arkansas State Crime Lab (ASCL)
testified that the shorts and underwear worn by K.S. had both K.S.’s blood and Travis’s
semen on them. There was expert testimony that “within all scientific certainty” the semen
was Travis’s. The forensic-DNA examiner from the ASCL testified that the coat hanger and
the pliers submitted to the lab had K.S.’s blood on them. The State also introduced a
videotaped statement Travis made to Detective Jeremiah Terrell, admitting that he had
inserted a coat hanger and pliers into K.S.’s vagina. In this videotaped statement, Travis
claimed that he panicked, and that is why he did not seek medical attention for the child.
He stated to Detective Terrell that he could tell it was very painful to K.S. when he inserted
the pliers into her vagina to remove the crayon. Travis never offered an explanation of how
his semen got on K.S.’s underwear.
At the conclusion of the trial, the jury found Travis guilty of the charges and
sentenced him to a total of thirty-seven years in the Arkansas Department of Correction.
This appeal followed.
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Cite as 2015 Ark. App. 572
II. Competency of the Child Witness
The question of the competency of a witness is a matter lying within the sound
discretion of the circuit court, and in the absence of clear abuse we will not reverse on
appeal. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Any witness is presumed to be
competent unless proven otherwise. Id.; Ark. R. Evid. 601. The party alleging that a witness
is incompetent has the burden of persuasion. Clem, supra. We have previously set out the
procedure and guidelines for determining the competency of a witness:
To meet that burden the challenging party must establish the lack of at least one of
the following: (1) the ability to understand the obligation of an oath and to
comprehend the obligation imposed by it; or (2) an understanding of the
consequences of false swearing; or (3) the ability to receive accurate impressions and
to retain them, to the extent that the capacity exists to transmit to the factfinder a
reasonable statement of what was seen, felt or heard.
Holloway v. State, 312 Ark. 306, 314, 849 S.W.2d 473, 477—78 (1993) (citations omitted).
We have applied the same presumption and standards in deciding the capacity of a child
witness to testify. Id. We further have observed that the evaluation of the circuit court in
these cases is particularly important due to its opportunity to observe the child witness and
to assess the child’s intelligence and understanding of the need to tell the truth. Id. Further,
as long as the record supports a circuit court’s finding of a moral awareness of the obligation
to tell the truth and an ability to observe, remember, and relate facts, we will not hold that
there has been a manifest error or abuse of discretion in allowing the testimony. Ward v.
State, 2014 Ark. App. 408, at 5, 439 S.W.3d 56, 60. Finally, in determining the competency
of a child witness, the trial court will examine the child’s testimony in its entirety and will
not rely solely on the preliminary questioning. Id.
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In Modlin v. State, 353 Ark. 94, 110 S.W.3d 727 (2003), our supreme court dealt
with a similar issue. In Modlin, a seven-year-old witness testified at the murder trial of his
father who had killed his mother two years earlier. At the pretrial hearing, the witness
offered somewhat garbled testimony, first telling the court that he did not remember what
happened at the Ramada Inn the night his mother died, but then offering coherent
testimony as to the events of that night. When the witness was asked if he understood the
oath to tell the truth, he shrugged and said that he did not know what it meant to make an
oath and that he not did know what would happen if he did not tell the truth. However,
he also said thereafter, “I know the difference between right and wrong. If you tell
something—when you say something that’s wrong—when you say something that’s wrong,
you’ll get in trouble.” Id. at 100, 110 S.W.3d at 730. The witness also shook his head “no”
when asked if he understood what kind of trouble would result. Our supreme court held
that the child witness’s testimony showed “a moral awareness of the obligation to tell the
truth and an ability to observe, remember and relate facts.” Id. In the present case, K.S.’s
testimony at both the pretrial hearing and at the trial similarly showed that she understood
the importance of telling the truth and could relate facts to the jury.
Travis asserts that because K.S. offered conflicting testimony about the events of April
20, the circuit court erred in finding that she could remember and relate the facts to the
jury. However, our court has held that “it is well-settled that it is the job of the jury, as fact
finder, to weigh inconsistent evidence and make credibility determinations. Further, a
witness’s inconsistent testimony does not render it insufficient as a matter of law.” Warner
v. State, 93 Ark. App. 233, 249–50, 218 S.W.3d 330, 339 (2005) (citations omitted).
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Cite as 2015 Ark. App. 572
Though K.S.’s testimony was inconsistent at times and became more so upon extensive
questioning, her testimony was never incoherent. An example of incoherence is illustrated
in a recent case before our court, Ward, 2014 Ark. App. 408, at 5, 439 S.W.3d at 60, where
the child witness responded to questions concerning his ability to tell the truth with non-
responsive, nonsensical answers. In Ward, when the witness was asked “what is a lie” he
responded “because him think—I tell you that.” When he was asked “can you tell me what
a lie is” his answer was, “not again.” The witness testified that the appellant touched his
“privates” but could not identify what part of his body that was. Id. In the present case,
K.S.’s statements became contradictory after lengthy questioning; however, she never
displayed the incoherence of the witness in Ward.
III. Conclusion
K.S.’s testimony showed a moral awareness of the obligation to tell the truth and an
ability to observe, remember, and relate facts. We find no abuse of discretion in the circuit
court allowing K.S. to testify, and therefore, we affirm.
Affirmed.
GLOVER and VAUGHT, JJ. agree.
Sandra S. Cordi, Deputy Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.
Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
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