{ "id": 6139621, "name": "Clifton Robert WARNER v. STATE of Arkansas", "name_abbreviation": "Warner v. State", "decision_date": "2005-11-30", "docket_number": "CA CR 05-452", "first_page": "233", "last_page": "250", "citations": [ { "type": "official", "cite": "93 Ark. App. 233" }, { "type": "parallel", "cite": "218 S.W.3d 330" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "340 Ark. 18", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365128 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0018-01" ] }, { "cite": "306 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900957 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "366" }, { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0360-01" ] }, { "cite": "349 Ark. 195", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513738 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0195-01" ] }, { "cite": "633 F.2d 77", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1298062 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/633/0077-01" ] }, { "cite": "317 Ark. 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443742 ], "weight": 4, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0630-01" ] }, { "cite": "353 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155520 ], "weight": 3, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0094-01" ] }, { "cite": "20 Ark. App. 56", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6645512 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/20/0056-01" ] }, { "cite": "351 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158877 ], "weight": 7, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/351/0112-01" ] } ], "analysis": { "cardinality": 863, "char_count": 22315, "ocr_confidence": 0.724, "pagerank": { "raw": 2.0799175866326645e-07, "percentile": 0.7589289954742535 }, "sha256": "16ed483d35cae1565bac5137f3851a6292219796990ec4931b9de5d524b62550", "simhash": "1:e608cf6a3304107f", "word_count": 3919 }, "last_updated": "2023-07-14T22:52:25.043286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins and Bird, JJ., agree." ], "parties": [ "Clifton Robert WARNER v. STATE of Arkansas" ], "opinions": [ { "text": "Wendell L. Griffen, Judge.\nClifton Robert Warner ap-udge. for rape. He argues that the trial court erred in allowing testimony regarding a hearsay statement that the victim made and erred in determining that the victim, who was seven years old at the time of the trial, was competent to testify. We disagree and affirm.\nAppellant is not related to the victim but was living with the victim\u2019s family at the time the alleged abuse occurred. The victim, K.P., who was then five years old, alleged that appellant touched her on the inside of her \u201cpee pee\u201d with his finger. K.P. initially confided in her uncle, Billy Powell, while visiting Powell and his family in Oklahoma. She later disclosed the events to the Children\u2019s Advocacy Center in Little Rock, Arkansas.\nBased on K.P.\u2019s allegations, appellant was charged with rape as a habitual offender. During pre-trial proceedings, appellant made an oral motion in limine to exclude the hearsay testimony of K.P.\u2019s second cousin, Debbie Pulliam, regarding an incriminating statement made by K.P. after the alleged event. The trial court held a hearing and denied appellant\u2019s motion on the ground that K.P.\u2019s statement qualified as an excited-utterance exception to hearsay pursuant to Ark. R. Evid. 803(2). At the subsequent jury trial, Pulliam testified that when K.P. saw her sister getting into a truck in which the defendant was a passenger, K.P. shouted, \u201cRobert, don\u2019t you hurt my sister like you hurt me.\u201d\nThe issue of K.P.\u2019s competency arose during the trial. When the State attempted to call her as a witness, she initially indicated in the jury\u2019s presence that she did not know the difference between the truth and a lie. The court then conducted a sua sponte hearing outside of the jury\u2019s presence. After subsequent questioning of K.P., the court was ultimately convinced that she was competent. K.P. thereafter testified that appellant touched her on the inside of her \u201cpee pee\u201d with his finger and that it made her feel \u201cscared\u201d and \u201call shaky.\u201d She also identified appellant in court as the offender. The jury found appellant guilty and sentenced him to serve twenty years in the Arkansas Department of Correction. This appealed followed.\nI Witness Competency\nAlthough appellant challenges the trial court\u2019s determination that K.P. was competent to testify in his second point on appeal, we address this issue first before considering any eviden-tiary errors. The question of the competency of a witness is a matter lying within the sound discretion of the trial 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. The issue of the competency of a witness is one in which the trial judge\u2019s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clem, supra.\nA witness\u2019s competency may be established by the following criteria: (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 fact finder a reasonable statement of what was seen, felt, or heard. Clem, supra. As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Clem, supra.\nFurther, in a case involving the rape of a child, the trial court is in the best position to determine the child\u2019s intelligence and understanding of the need to tell the truth. Conley v. State, 20 Ark. App. 56, 723 S.W.2d 841 (1987). In determining the competency of a child witness, the trial court will examine the child\u2019s testimony in its entirety and will not solely rely on the preliminary questioning. Id.\nThe competency hearing proceeded as follows:\nCourt: Would you tell me what your name is?\nA: [K.P.]\nCourt: And what is your last name?\nA: [K.P.]\nCourt: And how old are you [K.P.]?\nA: Seven.\nCourt: Eleven?\nA: Seven.\nCourt: Seven, okay and [K.P.] do you know what the truth is?\nA: Yes.\nCourt: Do you know what a he is?\nA: Um hum \u2014\nCourt: You don\u2019t, you don\u2019t know the difference? What do you think the truth is?\nA: The truth is \u2014\nCourt: I\u2019m sorry?\nA: \u2014 what Robert did. The truth is what Robert did.\nCourt: Well, what\u2019s a lie?\nA: I don\u2019t know the He.\nCourt: I\u2019m sorry?\nA: I don\u2019t know the he.\nCourt: You don\u2019t know what, you don\u2019t lie or you don\u2019t\u2014\nA: I don\u2019t know it.\nCourt: You don\u2019t know it, you didn\u2019t do it.\nA: I don\u2019t know the he.\nProsecution Examination:\nQ: Hey [K.P.], when we talked about this today do you know the difference between the truth and a lie?\nA: No.\nQ: Are you going to tell the truth today?\nA: Yes.\nQ: Okay, are you \u2014 you know, we talked about raising your right hand and having to tell the truth?\nA: Yes.\nQ: Okay.\nQ: Are you satisfied, Judge?\nCourt: No.\nQ: Hey, [K.P.], do you know what a lie is, do you know that a lie is not telling the truth?\nA: Yes.\nQ: And do you know that the truth means to tell what really happened?\nA: Yes.\nQ: And that you just have to answer us truthfully?\nA: Yes.\n[Bench conference held outside of the hearing of the jury.]\nCourt: Counsel, approach. She doesn\u2019t know.\nProsecutor: Judge, she does.\nCourt: Well, she\u2019s not saying she does.\nProsecutor: She knows, we talked to her about telling the truth and you know, that she can\u2019t He on the witness stand. She says that we\u2019re asking her if she\u2019s going to He.\nCourt: WeH, she doesn\u2019t understand, I . . .\nProsecution Examination:\nQ: Hey, [K.P.], that nice man up there you were just talking to?\nA: Um hum.\nQ: Do you see he has a robe on, what color is that robe?\nA: Black.\nQ: It\u2019s black, if I told you that the robe that the Judge has on was green, would that be the truth or a lie?\nA: I don\u2019t know.\nQ: Would I be telling the truth if I said that robe was black?\nA: You\u2019d be telling the truth.\nQ: Hey, [K.P.], do you have any pets?\nA: Yeah.\nQ: You do, what kind of pets do you have?\nA: I\u2019ve got one that\u2019s a Pomeranian.\nQ: Is a Pomeranian a dog or a cat?\nA: It\u2019s a dog.\nQ: If you told me that your Pomeranian was a cat would that be the truth or would that be a He?\nA: Alie.\nQ: And if you told me your Pomeranian was a dog, would that be the truth or would that be a lie?\nA: The truth.\nQ: If you told me [K.P.] that the Judge\u2019s robe was black, would that be the truth or a He?\nA: Truth.\nQ: If you told me [K.P.] that the Judge\u2019s robe was green, would that be the truth or a He?\nA: Alie.\nQ: What about my suit, [K.P.], what color is this?\nA: Black.\nQ: If you told me that this suit was yellow, would that be the truth or a lie?\nA: A he.\nQ: Okay, and if you told me it was black, would that be the truth or a lie?\nA: Truth.\nQ: Okay.\nDefense Examination:\nQ: And we talk about the truth and lies sometimes too, okay, if.I told you that it was the truth that the Judge\u2019s robe was green, would that be the truth?\nA: No.\nQ: Okay, sometimes Jackson [his son] and I play a game, I\u2019ll tell you something, I hate to tell on Jackson, one time Jackson said that his Daddy was a dummy, now, what did Jackson say?\nA: He said his daddy was a dummy.\nQ: Okay.\nCourt: I didn\u2019t hear it.\nQ: What did you say.\nCourt: What did you say?\nA: He said his name was a dummy.\nQ: Do you know that\u2019s the truth?\nA: No.\nQ: But I told you it was the truth didn\u2019t I?\nA: Yes.\nQ: Just because I say it, does that make it the truth?\nA: No.\nQ: Okay.\nDefense: Judge, if I might. Your honor, I noted the Court\u2019s consternation. [K.P.j\u2019s initial responses to the questions were that she did not know the difference between a truth and a He and she stuck to that assertion several times. Now, in all fairness, she was able to name her colors and differentiate between your robe being black and green and Shane\u2019s coat being blue and black or whatever, but I\u2019m not firmly convinced that she truly appreciates the difference between the truth and telfing a lie. I think she figured out what we wanted her to say. And I think she sort of got the game of the questions, that this is different so I said a He, this is the same so I say the truth, but I don\u2019t \u2014 I didn\u2019t detect that synthesis level knowledge of falsehood versus truth and I\u2019m not prepared to stipulate to her competency at this time. I\u2019d ask the Court to make a ruling.\nCourt: [K.P.] is competent to testify. She was able to grasp several important points, one of them being just because someone said something was true it\u2019s not, doesn\u2019t make is true. Did a good job there, [prosecutor].\nProsecutor: Thanks.\nCourt: And also she was able to distinguish between fact and fiction and I find her to be competent....\nAppellant asserts that K.P. was incompetent to testify because she stated several times that she did not know what a lie is and because there was no evidence indicating that she understood the consequences of false swearing or that she had a moral awareness of the obligation to tell the truth. His argument does not persuade.\nK.P. originally testified that the truth is what appellant did, and that she did not \u201cknow the lie.\u201d She also stated that she did not know the difference between the truth and a lie. However, upon further questioning, she indicated that she understood that \u201cthe truth\u201d means to tell what really happened and that she knew that a lie is not telling the truth.\nIn addition, her subsequent responses indicated that she knew the difference between the truth and a lie, as shown in the questions concerning the color of the judge\u2019s robe, the attorneys\u2019 suits, and her pet Pomeranian dog. While appellant\u2019s attorney argued below that K.P. had merely figured out \u201cthe game of the questions\u201d that \u201csame\u201d equals \u201ctruth\u201d and \u201cdifferent\u201d equals \u201clie\u201d and that K.P. had merely demonstrated knowledge of different colors, her responses went far beyond that. Rather, her responses established that she knew the difference between the truth and a lie, or as the trial court stated, between fact and fiction.\nWhile appellant also asserts that there was no evidence to indicate that K.P. understood the consequences of false swearing, that is of no moment, because a witness\u2019s competency can be established by an understanding of the consequences of false swearing, or by the ability to understand the obligation of an oath and to comprehend the obligation imposed by it, in other words, by an awareness of the moral obligation to tell the truth, or the ability to receive, retain, and transmit accurate impressions. Modlin v. State, 353 Ark. 94, 110 S.W.3d 727 (2003); Clem, supra. The Modlin court specifically stated that it was not necessary for the witness in that case to understand the nature of an oath, the legal concept of false swearing, or why he was holding up his hand because his testimony demonstrated a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts.\nSimilarly, here, K.P. demonstrated awareness of her moral obligation to tell the truth and her ability to receive, retain, and transmit accurate impressions. She stated that she was going to tell the truth and she remembered the discussion about swearing an oath to tell the truth, which the prosecutor referred to as \u201craising your right hand and having to tell the truth.\u201d She further indicated that she knew a lie is not telling the truth, that the truth means to tell what really happened, and that she was required to answer truthfully.\nIn addition, as indicated by her answers to the questions posed to her by defense counsel\u2019s questions concerning his son calling him a \u201cdummy,\u201d K.P. demonstrated her ability to receive, retain, and transmit accurate impressions and demonstrated that she understood that simply because a statement is made does not mean the statement is true. Certainly, her questions regarding her pet dog and regarding the \u201cdummy\u201d statement indicated more than a mere comprehension that \u201csame equals true\u201d and \u201cdifferent equals lie.\u201d\nIn sum, when all of K.P.\u2019s testimony is considered in its entirety, it is apparent that the record is one upon which the trial judge could find that she possessed moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts. Modlin, supra; Clem, supra. As such, we hold that the trial court did not abuse its discretion in allowing K.P. to testify.\nII. Excited Utterance\nAppellant further argues that the trial court erred in admitting Pulliam\u2019s testimony pursuant to the excited-utterance exception to hearsay. This rule, found at Ark. Rule Evid. 803(2) allows the admission of a statement that relates to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition. The testimony at issue is Pulliam\u2019s testimony that on August 2, 2002, several weeks after the abuse was disclosed, K.P. shouted at appellant, \u201cRobert, don\u2019t you hurt my sister the way you hurt me\u201d when her sister got into the vehicle in which appellant was a passenger.\nFor the excited-utterance exception to apply, there must be an event which excites the declarant and the resultant statement must be uttered during the period of excitement and must express the declarant\u2019s reaction to the event. Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994). The factors to consider in determining whether a statement is an excited utterance include: (1) the age of the declarant, (2) the physical and mental condition of the declarant, (3) the characteristics of the event, (4) the subject matter of the statement. Id. (citing United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)). The lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive whether a statement is an excited utterance. Id. In order for this exception to apply, it must appear that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002). It is within the trial court\u2019s discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Moore, supra.\nAppellant challenges the admission of Pulliam\u2019s testimony on the grounds that: 1) K.P.\u2019s statement was not made under the stress of the \u201cstartling event,\u201d because too much time had elapsed between the rape and K.P.\u2019s statement, and 2) Pulliam\u2019s testimony was so inconsistent that it was an abuse of discretion to admit it. We hold that the trial court did not abuse its discretion in admitting Pulliam\u2019s testimony.\nIt is not precisely clear when the abuse occurred in this case. K.P. testified that she was five years old when the abuse occurred. She first reported the abuse during the early part of July 2002. According to Billy Powell, K.P.\u2019s uncle, she came to visit his family near the July 4 holiday. He testified that she reported the incident to him during the second day of her visit.\nThe testimony is also unclear regarding when K.P. returned to Arkansas. Billy testified that K.P. stayed approximately two weeks. Vonda Powell, K.P.\u2019s mother, testified that K.P. had been back approximately one week before K.P. saw appellant on August 2 incident. Pulliam, by contrast, testified that K.P. returned to Arkansas on August 1, 2002.\nIn any event, Pulliam testified that on August 2, 2002, she, Vonda, K.P., K.P.\u2019s sister Jordan, and Pulliam\u2019s two children were riding in Pulliam\u2019s vehicle on the way to the Children\u2019s Advocacy Center. According to Pulliam, the rape allegations had not been discussed with K.P. that day and K.P. was unaware of the reason they were visiting the Center. She further testified that K.P. had not seen appellant that day, and to the best of Pulliam\u2019s knowledge, K.P. had not seen appellant since her return (which appellant does not dispute).\nPrior to seeing appellant, K.P. was laughing and joking with Pulliam\u2019s son, who was in the back seat with her. Pulliam stopped in the road when they met Linda Powell\u2019s vehicle. Linda is Pulliam\u2019s aunt and K.P\u2019s grandmother. Appellant was in the passenger seat of Pulliam\u2019s vehicle. Pulliam and Linda, who conversed for approximately one minute with their windows down, agreed that Jordan and Pulliam\u2019s daughter would go to Linda\u2019s house. Pulliam testified that when K.P. saw Jordan getting into the vehicle in which appellant was seated, K.P. removed her seatbelt, jumped between the bucket seats into Pulliam\u2019s lap, stuck her head out of the driver\u2019s side window and yelled, \u201cRobert, don\u2019t you hurt my sister like you hurt me.\u201d\nPulliam further testified that K.P. repeated the statement four or five times, and that she was \u201cvery upset\u201d and that \u201ctears [were] coming out of her eyes, streaming.\u201d She returned K.P. to her seat and began to drive away, but had to pull over to soothe and comfort her.\nOn these facts, we hold that the trial court did not err in admitting Pulliam\u2019s testimony. First, appellant is simply wrong in asserting that the exciting event must be the crime itself. For support, he erroneously relies on cases in which the startling event was the crime itself but ignores authority affirming the admission of statements made in relation to an event that was not the crime itself.\nFor example, in George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), the Arkansas Supreme Court affirmed the admission of a child sexual abuse victim\u2019s statement as an excited utterance where, following a nightmare, the child told her mother that the defendant had bitten her on her genital area. In that case, as here, it was not certain how much time had passed between when the abuse had occurred and when the startling event occurred. The victim in George had been enrolled in the defendant\u2019s day-care program from September 1988 through September 1989, but returned on occasion through October 1989, and visited with the George defendant and his wife on October 31, 1989. The victim was willing to see the defendant two weeks prior to Halloween but did not want to visit him on Halloween.\nIn George, the two-and-a-half year old victim awoke from a nightmare on November 2, 1989, complaining that there were dinosaurs in her room that might bite her. When her mother tried to allay her daughter\u2019s fears, the victim insisted, \u201cYes, there\u2019s dinosaurs in there and they are going to bite me and they are going to bite me like [the George defendant] bites me.\u201d When asked by her mother what she meant, the victim stated, \u201cHe bites me on my tee tee\u201d and then pointed to her genital area. The George court held the victim\u2019s statements were admissible as excited utterances because \u201cthey were made at an unusually late hour following a nightmare that clearly terrified the victim.\u201d Id. at 366, 813 S.W.2d at 796.\nThus, it is clear under George that the startling event may be something other than the crime alleged. To that extent, appellant\u2019s reliance on cases in which our courts have excluded statements regarding abuse as excited utterances because too much time had passed between the abuse and the statement is misplaced. Instead, the issue for this court is whether K.P.\u2019s observance of her sister getting into a vehicle with K.P.\u2019s alleged rapist was a startling event, and whether K.P.\u2019s statement was made in response to that event, while she was under the stress of that event.\nWe are convinced that a sexual abuse victim\u2019s observance of her sister getting into a vehicle with the alleged rapist only a few weeks after the victim had disclosed the abuse would be even more startling than the victim merely having a seemingly unrelated nightmare, as occurred in George. Further, the evidence is clear that K.P. was responding to the stress of seeing appellant and seeing her sister get into the vehicle with him. Pulliam testified that the issue of the rape had not been discussed that day, and that, to the best of her knowledge, the August 2 incident marked the first time after K.P.\u2019s return from Oklahoma that K.P. had seen appellant. Prior to seeing appellant, K.P. was laughing and joking with her cousin in the back seat. However, when K.P. realized that her sister was getting into the same vehicle as appellant, her demeanor markedly and immediately changed. She left her seat, jumped into Pulliam\u2019s lap, and repeatedly yelled at appellant not to hurt her sister the way he had hurt her. K.P. was also shaking and crying and had to be comforted. On these facts, there is no doubt that K.P.\u2019s response was immediate and that it was made under the stress of the event of seeing her sister get into the vehicle with the alleged rapist.\nAppellant also argues that the trial court erred in admitting Pulliam\u2019s testimony because her testimony was inconsistent in some respects. However, this argument is to no avail, because it is well-settled that it is the job of the jury, as fact finder, to weigh inconsistent evidence and make credibility determinations. Harmon v. State, 340 Ark. 18, 8 S.W.3d. 472 (2000). Further, a witnesses\u2019s inconsistent testimony does not render it insufficient as a matter of law. Id. As the State notes, although some of the peripheral details were difficult for Pulliam to recall, such as whether she had planned to meet Linda Powell, Pulliam\u2019s account of K.P\u2019s statement and response to the event were consistent. As such, we hold that the trial court did not err in admitting Pulliam\u2019s testimony.\nAffirmed.\nRobbins and Bird, JJ., agree.\nThe record is not clear regarding when Billy Powell reported the abuse to the family, when the family reported the abuse to the police, or whether appellant was allowed to remain in K.P.\u2019s household after the allegations were made.", "type": "majority", "author": "Wendell L. Griffen, Judge." } ], "attorneys": [ "Robert Scott Parks, Deputy Public Defender, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Karen Virginia Wallace, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Clifton Robert WARNER v. STATE of Arkansas\nCA CR 05-452\n218 S.W.3d 330\nCourt of Appeals of Arkansas\nOpinion delivered November 30, 2005\nRobert Scott Parks, Deputy Public Defender, for appellant.\nMike Beebe, Att\u2019y Gen., by: Karen Virginia Wallace, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0233-01", "first_page_order": 259, "last_page_order": 276 }