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08/30/93 DARWIN GALINDO v. UNITED STATES

August 30, 1993

DARWIN GALINDO, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Harriett R. Taylor, Trial Judge)

Before Rogers, Chief Judge, and Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellant Darwin Galindo appeals from his conviction by a jury of taking indecent liberties with a minor child. *fn1 D.C. Code § 22-3501 (a) (Repl. 1989). He contends that the trial Judge erred in finding that the three-year-old complainant was competent to testify, in precluding cross-examination of the complainant's mother about prior bad acts and allowing the mother to testify about the complainant's statements, and in admitting the testimony of the examining physician about the mother's statements. He also contends that the trial Judge erred in denying his motion for a judgment of acquittal. We affirm.

I.

The charges arose as a result of an incident on September 21, 1991, when the complainant's mother left the three-year-old complainant in the care of appellant (who was married to the mother's sister) while the mother and appellant's wife went to work. At trial, approximately five months later, the complainant testified through an interpreter. The complainant said that while her cousin, who was six at the time of trial, was in another room, appellant pulled her clothes down and "did something to me . . . . that he had right here," pointing to her genital area. The complainant further explained that appellant touched her with "a thing which is called a pee pee, and told her to "touch that thing." The complainant also said that something came out of the "thing."

The complainant's mother testified that when she left the complainant with appellant, the complainant's six-year-old cousin (appellant's son) and the mother's teenage brother (the uncle) were also in appellant's apartment. The mother was gone from approximately 9:45 a.m. to 3:00 p.m. When she returned with appellant's wife after work, the complainant immediately said she wanted to be with her mother, and appellant's wife asked, "what have they done to you, why are you so mad?" Appellant's son returned with the complainant and her mother to the complainant's apartment to play, but the mother eventually sent the boy home because the complainant was "very sniffly and crying." According to the mother, "almost right after [appellant's son] left," the complainant asked to be bathed "because has spilled something on me." *fn2 The complainant then told her mother that appellant had "put a thing there" and pointed to her genital area. When the mother asked her daughter, "where did he have the thing," the complainant pointed again to her genital area. The Judge immediately instructed the jury that the testimony about what the complainant told the mother could only be used to show that a complaint of sexual assault was made, and not to prove the truth of statements in the complaint.

On cross-examination, the mother testified that the complainant told her that appellant "had taken down his pants," taken the complainant's underwear off, wiped off the complainant with a towel, and kissed the complainant on the mouth. She further testified that the complainant's genitals were "irritated and rubbed," and that she had noticed changes in the complainant's behavior after the incident.

The uncle testified that the complainants mother arrived at appellant's apartment around 9 a.m. and left about an hour later; he (the uncle) left about an hour after that, leaving appellant and the two children (the complainant and appellant's six-year-old son) alone in the apartment. When the uncle returned approximately two hours later, the complainant was crying, and she was "kind of uncomfortable, didn't really . . . play like she did" for the rest of the afternoon. The uncle remained in the same room as the two children continuously from the time he returned home until the complainant's mother arrived. When the complainants mother returned around 4 p.m., the complainant ran to her and "told her mother she didn't want to he there no more."

Dr. Rosella Castro, who testified as an expert in general medicine and pediatrics, examined the complainant two days after the incident. At the time the doctor was unable "to get words from" the complainant, who was acting "a little shy and a little bit withdrawn." When the doctor questioned the complainant after speaking with the complainants mother, the complainant pointed to her genitalia. The doctor found redness in the complainant's inner genitalia that, in her opinion, was consistent with contact with a round, firm object, such as a male sexual organ, and with sexual abuse, but inconsistent with skin irritation or the complainant's causing the redness herself. On cross-examination, the doctor admitted that her Conclusion regarding sexual abuse was strongly influenced by the history given by the mother. The doctor also testified that the mother told her that "whoever was taking care of [the complainant] put his genitalia and touched her," and that this person urinated on the complainant. The doctor called the police to report suspected sexual abuse.

The defense theory was that appellant was being falsely accused as a result of an on-going family feud and that the complainant's testimony was not worthy of belief. In his defense, appellant called his wife, who testified that she and appellant had had some disagreements with the complainant's mother, who had said uncomplimentary things about appellant and taken at least one job away from appellant's wife. Appellant's wife claimed that she saw nothing unusual about the complainant's behavior upon returning from work on September 21, 1991. Appellant's six-year old son testified that he did not remember the complainant crying the last time he played with her, which was apparently the day of the incident; he had been playing a video game in a bedroom that day and claimed that appellant slept all day in one of the bedrooms.

Appellant also testified. He explained that he had had arguments with the complainant's parents. Appellant testified that the uncle had been out of the apartment for only ten or fifteen minutes on September 21, 1991, and that the complainants mother and appellant's wife had returned to the apartment around 3 p.m. He denied that he had done anything unusual to the complainant, removed her clothes, or seen her cry, and he testified that he spent part of the day resting in his bedroom and part of the day in the living room working.

II.

Appellant contends that the trial Judge erred in denying appellant's pretrial request for psychological or psychiatric examination of the complainant and in finding that the complainant was competent to testify at trial. Prior to trial the Judge conducted a competency hearing at which the complainant and her mother testified and the complainant was questioned by both counsel and the trial Judge. While acknowledging that the complainant had some problems recalling numbers, the Judge concluded that the complainant was competent because she understood the difference between truth and falsehood, was able to recount events, and was "remarkably accurate in her answers to the various questions."

The determination of a witness' competence to testify lies within the sound discretion of the trial Judge, and this court will not disturb the Judge's factual determination unless it is "plainly deficient." Vereen v. United States, 587 A.2d 456, 457 (D.C. 1991) (citing Collins v. United States, 491 A.2d 480, 484 (D.C. 1985), cert. denied, 475 U.S. 1124, 90 L. Ed. 2d 190, 106 S. Ct. 1646 (1986)); see also Beausoliel v. United States, 71 App. D.C. 111, 112, 107 F.2d 292, 293 (1939). *fn3 This court necessarily defers to the trial Judge's ability to observe the witness. *fn4 A child is a competent witness if she is able to "recall the events which are the subject of the testimony; and . . . understand the difference between truth and falsehood and appreciate the duty to tell the truth." Barnes v. United States, 600 A.2d 821, 823 (D.C. 1991). See also Beausoliel, supra, 71 U.S. App. D.C. at 113, 107 F.2d at 294; cf. Vereen, supra, 587 A.2d at 457. Obviously, with a very young child there is reason for the trial Judge to conduct a thorough voir dire. See Barnes, supra, 600 A.2d at 823. Here, the experienced trial Judge conducted an extensive voir dire and she specifically found that while the complainant "doesn't know why she has to tell the truth . . . it's quite clear from her repeated spontaneous ...


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