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05/25/83 STATE WISCONSIN v. BENNIE L. OLSON

May 25, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
BENNIE L. OLSON, JR., DEFENDANT-APPELLANT



Appeal from a judgment and an order of the Circuit Court for Dane County: Moria Krueger, Judge.

Gartzke, P.j., Dean, J. and Dykman, J.

The opinion of the court was delivered by: Dykman

Defendant appeals from a judgment of conviction for first-degree sexual assault, contrary to sec. 940.225(1) (d), Stats., *fn1 and from the order denying his post-conviction motions. *fn2 He contends that the trial court erred by allowing the four-year-old victim to testify at the preliminary hearing and at trial, by conducting voir dire of the victim before the jury, and by refusing to instruct the jury on lesser included offenses of child abuse and battery. He also contends that sec. 940.225 is unconstitutional as applied to this case. We affirm because we conclude that the trial court did not err and that sec. 940.225 is constitutional.

Defendant and his wife were baby-sitting for A.B., the victim, who was three years old at the time. While defendant and A.B. were in defendant's car, defendant questioned A.B. about an earlier biting incident between A.B. and defendant's daughter. A.B. refused to answer defendant's questions. Defendant stated that he was tired and frustrated and grabbed A.B. in the groin area and threw him down on the car seat. Defendant then hit A.B. with the back of his hand in the face and at the waistline.

A.B. testified at both the preliminary examination and at the trial. He stated that defendant "pinched his peewee" and hit him. Defendant objected to A.B.'s competency to testify at the preliminary hearing but did not raise that objection at trial.

A.B.'s mother testified that A.B. seemed nervous and upset when she picked him up on the day of the incident. She noticed a large bruise on his forehead and questioned him about it. A.B. told his mother that defendant pinched and twisted his penis and hit him several times. She noticed that A.B.'s penis was badly swollen, bruised and bent. This testimony was corroborated by Detective Koecke at the preliminary examination and by Koecke, social worker Sharon Martin and Dr. Laura Anderson at trial. Pictures of A.B.'s injuries were shown to the jury.

The trial court denied defendant's request to instruct the jury on the lesser included offenses of child abuse under sec. 940.201, Stats., and battery under sec. 940.19(1). *fn3 The jury found defendant guilty. The trial court denied defendant's post-conviction motions concerning A.B.'s competency to testify, the court's refusal to submit lesser included offenses to the jury and the constitutionality of sec. 940.225. The court sentenced defendant to four years' probation with four months' jail time as a condition of probation.

COMPETENCY TO TESTIFY

Defendant, who is represented by new counsel on appeal, did not object to A.B.'s competency to testify at trial. *fn4 An objection to a witness' competency to testify must be made before the witness is allowed to testify or it is waived. Love v. State, 64 Wis. 2d 432, 438-39, 219 N.W.2d 294, 297-98 (1974). We therefore will not address this issue.

Defendant did object to A.B.'s competency to testify at the preliminary examination. At a preliminary examination, the magistrate determines the plausibility of the witness's story, not the general trustworthiness of the witness. Wilson v. State, 59 Wis. 2d 269, 294, 208 N.W.2d 134, 148 (1973). The trial court allowed A.B. to testify at the preliminary examination over defendant's objection that it would determine after the testimony was given whether A.B. was competent. The determination concerning the competency of a witness is discretionary and will not be disturbed on appeal except for a clear abuse of discretion. State v. Davis, 66 Wis. 2d 636, 645-46, 225 N.W.2d 505, 509 (1975).

Section 906.01, Stats., provides that every person is competent to be a witness with a few noted exceptions which do not apply to this case. The Judicial Council Committee's Note concerning sec. 906.01 states:

Adoption of s. 906.01 necessitates repeal of s. 885.30, and withdrawal of the case law thus removing from judicial determination the question of competency and admissibility; judicial determination of sufficiency and the jury assessment of the weight and credibility survive. The effect of the change is to shift the opponent's emphasis from a voir dire attack on competency to a cross-examination and introduction of refuting evidence as to weight and credibility.

59 Wis. 2d at R158.

In Davis, the court addressed the question of an eight-year-old girl's competency to testify at trial. The court stated that under the current Wisconsin evidence rules every witness is competent to testify (with a few exceptions) and "all former competency issues are now issues of credibility ...


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