☢ test - Í

Austin v. State, 286 Ga.App. 149, 648 S.E.2d 414 (June 6, 2007). “Austin contends the [kidnapping] victim’s testimony should be disregarded because, since she was mildly ‘ mentally retarded ,’ she was incompetent to testify. However, ‘[e]veryone is presumed competent to testify, even people who have been shown to have mental disabilities .’ Lamunyon v. State, 218 Ga.App. 782, 783(1) (463 S.E.2d 365) (1995) (mentally retarded witness could appreciate the difference between truth and lie and appreciate obligation to tell the truth). In this case, there was no evidence adduced demonstrating that the victim was incompetent. Finally, absent an objection to competence, it is not error to allow a witness to testify without first determining her competence. Young v. State, 122 Ga. 725(1) (50 SE 996) (1905); see OCGA § 24-9-7 (competency to testify).” Wilson v. State, 270 Ga.App. 311, 605 S.E.2d 921 (November 2, 2004). Trial court did not err in finding nursing home resident competent to testify where he understood the difference between the truth and a lie, although “disability accommodations … had to be made in order to secure [witness/victim’s] testimony [due to] the obvious limitations in [his] ability to communicate.” No description of the accommodations. Norman v. State, 269 Ga.App. 219, 603 S.E.2d 737 (August 23, 2004). “Norman asserts that the trial court erred in finding the child witness competent to testify. He contends that the trial court failed to question the child sufficiently to determine that the child understood the necessity of telling the truth. Norman, however, cites cases predating the 1989 amendment to OCGA § 24-9-5. Prior to that time, children who did not understand the nature of an oath were incompetent witnesses under OCGA § 24-9-5. [Cits.] In 1989, the General Assembly amended OCGA § 24-9-5 to provide that in criminal cases in which a child is a victim of or witness to a crime, the child is not subject to a competency challenge based on the allegation that he does not understand the nature of an oath.[Cit.] Now, a competency challenge to the testimony of a child who witnessed a crime may be made only on the ground that the child lacks the use of reason, as provided by OCGA § 24-9-5(a). [Cit.] Furthermore, we hold that where, as here, the child observes the perpetrator fleeing the scene of the crime, the child is a witness to the crime within the meaning of OCGA § 24-9-5(b). Accordingly, his competency was not subject to the challenge asserted by Norman.” Thomas v. State, 266 Ga.App. 870, 598 S.E.2d 541 (April 8, 2004). “‘[A] child may be subject to a competency challenge based on the ground that the child does not have the use of reason, but a child is not incompetent as a matter of law based on infancy.’ (Citations omitted.) Hayes v. State, 274 Ga. 875, 878(3) (560 S.E.2d 656) (2002).” Six-year old was not per se incompetent, nor did having him testify while sitting on his mother’s lap demonstrate that he did not have the use of reason. See also James v. State , 268 Ga.App. 851, 602 S.E.2d 854 (July 30, 2004), where uncorroborated testimony of two year old victim (described as was “very articulate for her age”!) was sufficient to convict. Simmons v. State, 262 Ga.App. 164, 585 S.E.2d 93 (June 17, 2003). “Because of the 1998 amendment to OCGA § 24-9- 5, the age of a child witness to a crime is immaterial. In a criminal case a child witness is statutorily competent.” Court determines competency, not jury, so it would be improper to charge the jury on competency (as opposed to credibility). Jeffries v. State , 272 Ga. 510, 530 S.E.2d 714 (May 30, 2000). Malice murder and related convictions affirmed; child witness was properly allowed to testify. “Jeffries essentially contends that, in various ways, the victim's oldest son did not understand the nature of an oath, and that the trial court therefore erred in concluding that the child was competent to testify. This contention, however, is without merit, as OCGA § 24-9-5(b) excepts a child from such a competency challenge. Norton v. State, 263 Ga. 448, 449-450, 435 S.E.2d 30 (1993).” OCGA § 24-9-5(a) provides generally that “children who do not understand the nature of an oath shall be incompetent witnesses”; but under subsection (b), this rule doesn’t apply to cases of deprivation, child molestation, “and in all other criminal cases in which a child was a victim of or a witness to any crime.” Nelson v. State, 242 Ga.App. 63, 528 S.E.2d 844 (January 25, 2000). Armed robbery and firearm convictions affirmed; no error in allowing defendant’s minor stepdaughter to testify. “Whether a child witness is competent to testify within the meaning of OCGA § 24-9-7 is a matter which lies within the trial court's sound discretion. Wood v. State, 195 Ga.App. 424, 425, 393 S.E.2d 720 (1990). No evidence showed that this ten-year-old witness lacked the use of reason or could not comprehend the nature of an oath. See Norton v. State, 263 Ga. 448, 449-450(3), 435 S.E.2d 30 (1993); see OCGA § 24- 9-5(b). On the contrary, this witness testified that she knew the difference between a lie and the truth. She confirmed that she had told the truth to the jury and to the FBI.” Thompson v. State, 240 Ga.App. 26, 521 S.E.2d 876 (August 30, 1999). “A witness is not automatically disqualified as