## Facts

- Preston Lee Pierce was dating the mother of J.G., a seven-year-old child.
- On August 25, 2007, while Pierce was babysitting J.G., he contacted J.G.’s vagina and anus with his penis.
- Pierce was arrested the next day.
- After the arrest became public, other women came forward alleging Pierce had engaged in sexual misconduct against them when they were minors.
- The State charged Pierce with aggravated rape and sexual battery based on the incident involving J.G.
- Before trial, the court held a competency hearing to decide whether J.G. could testify.
- At the hearing, J.G. correctly stated her name, age, date of birth, and address, and showed she understood where she was and who the judge was.
- J.G. distinguished between truthful statements and lies, stated she needed to tell the truth in court, and said she could get in trouble for lying; she also tied truth-telling to religious consequences.
- J.G. admitted she had lied in the past but promised to tell the truth at trial.
- Evidence showed J.G. had been diagnosed with bipolar disorder and posttraumatic stress disorder; a doctor testified bipolar disorder would not affect her ability to tell right from wrong.
- The trial court found J.G. competent, J.G. testified at trial, and a jury found Pierce guilty.
- Pierce appealed his convictions and sentences to the Louisiana Court of Appeal.

## Issues

1. Whether the trial court abused its discretion by finding a seven-year-old child victim competent to testify despite her age and mental health diagnoses.
2. Whether a brief reference at trial to Pierce’s post-arrest silence required a mistrial or reversal.

## Decision

- The court affirmed Pierce’s convictions and sentences.
- The court held the trial judge did not abuse discretion in finding J.G. competent to testify.
- The court held that any brief reference to Pierce’s post-arrest silence did not warrant a mistrial or reversal in light of the overall fairness of the trial and the strength of the evidence.

## Legal Principles

- A witness is competent to testify when the witness can understand the duty to tell the truth and can observe, remember, and communicate facts.
- In determining a child’s competency, the trial court may consider the child’s ability to distinguish truth from lies, understanding of consequences for lying, and ability to communicate basic identifying information and events.
- A trial court’s competency ruling is reviewed for abuse of discretion, with deference to the judge who observed the child and heard the testimony first-hand.
- A brief, isolated reference to a defendant’s post-arrest silence does not automatically require mistrial or reversal when the State does not use the silence to impeach the defendant and the trial, viewed as a whole, was fair.
- Even when an error occurs, an appellate court may affirm if the record shows the error did not affect the verdict given the strength of the evidence.

## Conclusion

The Fifth Circuit affirmed because the competency hearing record supported the trial court’s finding that J.G. understood the obligation to tell the truth and could communicate what happened, and because any fleeting mention of Pierce’s post-arrest silence was not used against him and did not undermine the fairness of the proceedings.


State v. Pierce, 80 So. 3d 1267 (2011)