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08/04/89 the People of the State of v. Chester Barfield

August 4, 1989





543 N.E.2d 157, 187 Ill. App. 3d 257, 134 Ill. Dec. 874 1989.IL.1201

Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Judge, presiding.


JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.


Defendant was indicted by a grand jury on one count of aggravated sexual assault based on the age of the victim, one count of criminal sexual assault, one count of aggravated criminal sexual abuse based upon the age of the victim, one count of unlawful restraint, and one count of aggravated criminal sexual assault based upon the use of force. Before trial, the defendant moved to suppress the statement he had made to the assistant State's Attorney while in custody. After a hearing, the motion to suppress was denied by the trial Judge.

Following a bench trial, the defendant was convicted of aggravated criminal sexual assault of a victim under 13 years of age (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)) and sentenced to seven years' incarceration. Defendant appeals, raising three issues: (1) whether the victim was competent to testify; (2) whether the mother's testimony was beyond the scope of that permitted by section 115-10 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10), and therefore, inadmissible; and (3) whether the defendant was proven guilty beyond a reasonable doubt.

The only facts not in dispute at the trial were that at approximately 1:30 a.m. on July 20, 1986, the mother was outside her apartment building talking with a friend. Her 12-year-old daughter (the victim) was in their first-floor apartment. The 33-year-old defendant entered the apartment and had sexual intercourse with the girl.

The victim testified that the defendant came to the apartment saying that her mother had asked for a chair, that she told defendant to wait in the hall while she got the chair, but that when she returned she found that he had entered the apartment. The victim testified that the defendant then grabbed her by the arm, pushed her into a closet, tore at and pulled down her shorts, and raped her. The defendant then ran out of the apartment and the victim ran downstairs to tell her mother what had happened.

While persons aged 14 years of age and older are presumed competent to testify in court in Illinois, it is for the trial Judge to determine whether a child under the age of 14 is competent to testify. (In re E.S. (1986), 145 Ill. App. 3d 906, 908, 495 N.E.2d 1334, 1335.) Competency depends not upon a child's age but her intellectual ability. (In re A.M.C. (1986), 148 Ill. App. 3d 775, 778, 500 N.E.2d 104, 106.) The determination of a minor's competency to testify is to be made by the trial Judge, who has the best opportunity to observe the witness' demeanor and Judge her credibility (People v. Campos (1987), 155 Ill. App. 3d 348, 357, 507 N.E.2d 1342, 1347-48), and this determination should not be disturbed on review unless it is clear that the determination of competency was a manifest abuse of discretion or misapprehension of a legal principle. People v. Keesee (1977), 47 Ill. App. 3d 637, 641, 365 N.E.2d 53, 56; In re Cruz (1979), 76 Ill. App. 3d 565, 568, 395 N.E.2d 388, 390.

The criteria for determining whether a child is competent to testify in court are whether "the witness is sufficiently mature (1) to receive correct impressions by his senses, (2) to recollect these impressions, (3) to understand questions and narrate answers intelligently, and (4) to appreciate the moral duty to tell the truth (and comprehend the meaning of the oath)." People v. Sims (1969), 113 Ill. App. 2d 58, 61, 251 N.E.2d 795, 797.

It is not necessary for the child to give perfect answers to questions asked during the competency determination or at trial for the child to be deemed a competent witness. (People v. Powell (1985), 138 Ill. App. 3d 150, 156, 485 N.E.2d 560, 564, citing People v. Novotny (1968), 41 Ill. 2d 401, 411-12, 244 N.E.2d 182, 188, and People v. Newbern (1974), 18 Ill. App. 3d 532, 540, 310 N.E.2d 42, 48.) Here, the victim was not certain of her year in school, which could be explained by the fact that there was a teacher's strike in progress at the time. The victim admitted that she had made a mistake as to the name of her school, showing awareness of her answers and of the facts. When asked on cross-examination the year she was born, the victim answered "1974," which date was later corroborated by her mother. "Minor discrepancies in a child's testimony do not necessarily render the testimony incompetent, unbelievable, or necessarily impeached" (People v. Brewer (1983), 118 Ill. App. 3d 189, 193, 454 N.E.2d 1023, 1027, citing People v. Sharp (1943), 384 Ill. 503, 506-07, 51 N.E.2d 554, 556), but are to be weighed against the credibility of the witness' testimony. (People v. McNichols (1986), 139 Ill. App. 3d 947, 953, 487 N.E.2d 1252, 1257.) It is for the trier of fact to determine the witness' credibility. People v. McCoy (1987), 156 Ill. App. 3d 194, 200, 509 N.E.2d 567, 571.

Although the defendant places significance on the victim's statement that liars get in trouble "[w]ith your friends" and not with God, in determining the competency of a witness, courts have held that religious opinion or belief is no longer a requisite. (People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, 12, citing People v. Marsh (1949), 403 Ill. 81, 91, 85 N.E.2d 715, 720.) Other juvenile witnesses have been found competent who said that if they lie they get "grounded" (People v. Goble (1976), 41 Ill. App. 3d 491, 498, 354 N.E.2d 108, 114), or punished by their mother (People v. Brewer (1984), 127 Ill. App. 3d 306, 308, 468 N.E.2d 1242, 1243).

Although the victim's testimony on the record appears hesitant, and the People noted that she is "a little slow for 12 years of age," the trial court held that "under all the attendant circumstances, . . . I would find that she is competent." The record supports the trial court's finding of the minor ...

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