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State v. Mills

December 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
BRANDON M. MILLS, B.D. 05-21-80 APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-03742-1. Date filed: 07/26/95. Judge signing: Hon. Michael S. Spearman.

PER CURIAM. Brandon Mills appeals the Disposition entered in juvenile court finding him guilty of second degree assault, contending, among other things, that the 7-year old victim of the alleged assault, L.A., was not competent to testify against him. Even assuming this competency issue may be raised for the first time on appeal, Mills has not sustained his burden of showing that the complaining witness was in fact incompetent. Because the other issues raised on appeal also lack merit, we affirm.

FACTS

On the morning of June 8, 1995, Mills and several other youths chased after L.A. as she was walking to school. After the group caught up with L.A., they forced her to do a number of things against her will. When L.A. started crying and screaming for help, Mills and another member of the group allegedly displayed knives and threatened L.A. As a result of the encounter, both juveniles were charged with assault in the second degree.

At the adjudicatory hearing, L.A. testified that she was walking to school on June 8, 1995, when a group of six juveniles approached her. She identified Mills and his codefendant as being part of the group. L.A. testified that she didn't like what the youths were saying and attempted to run away from them. She testified that Mills and the other juveniles chased after her, that Mills was able to grab her arm, and that he forced her into some nearby woods. According to L.A., the group of juveniles then took off one of her shoes and threw it away, forced her to fight one of the girls in the group, and used Mills' black marking pen to place marks on her clothing and body. She stated that after she started crying Mills displayed a large open pocket knife and asked her, "Do you want this up you bottom?" L.A. testified that Mills' behavior scared her. She identified the knife Mills used to threaten her. L.A. also indicated that she spoke with police about the incident and signed a police report.

The State also called Lisa C., who admitted being present when the juveniles upset L.A. Lisa C. testified the group took off one of L.A.'s shoes, forced her into a fight, and used a black marker on her. Lisa C. also testified that L.A. "kept on crying and crying and it got on [Mills'] nerves." She further testified that Mills had an open pocket knife in his hand at one point during the incident. But Lisa C. testified that it was the codefendant, not Mills, who actually threatened to harm L.A. with a knife. However, Lisa C. admitted on cross-examination that she and Mills were friends and that someone else had told her "to blame [the incident] mainly on [the codefendant]."

The arresting officer testified that he contacted L.A. on June 8 and that she gave a brief description of the suspects involved in the assault.

The officer also stated he obtained a written statement from L.A. The officer testified that L.A. identified Mills and the codefendant as being two of the suspects and that he later arrested them. The officer stated that he searched them incident to the arrest and recovered a pocket knife from both suspects. The officer testified that the larger of the two knives belonged to Mills. The court found Mills guilty as charged. This appeal followed.

DECISION

Mills contends the juvenile court erred in admitting into evidence the testimony of L.A. He argues the court should have first conducted a hearing to determine whether she was competent to testify. Mills argues that, because the record shows L.A. was unable to recall the events accurately, his conviction of second degree assault must be reversed. We disagree.

Children are not deemed incompetent to testify by reason of their youth alone. *fn1 Intelligence, not age, is the single most important factor in determining the competency of a child witness. *fn2 Courts consider the following factors in determining whether a child witness is competent to testify:

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

State v. Allen, 70 Wash. 2d at 692.

Mills never sought a hearing to evaluate L.A.'s competency. Even assuming Mills can raise this competency issue for the first time on appeal, *fn3 the court below had no duty to conduct an inquiry into L.A.'s competency until ...


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