APPEAL FROM THE DISTRICT COURT OF BRYAN COUNTY THE HONORABLE
MARK R. CAMPBELL, DISTRICT JUDGE.
RENNIE RYAN RENNIE, COUNSEL FOR DEFENDANT.
WHITNEY KERR ASST. DISTRICT ATTORNEY, COUNSEL FOR THE STATE.
MACNIVEN OKLA. INDIGENT DEFENSE, COUNSEL FOR APPELLANT.
HUNTER ATTORNEY GENERAL OF OKLAHOMA JULIE PITTMAN ASST.
ATTORNEY GENERAL, COUNSEL FOR THE STATE.
Appellant, Bryon Lynd Gordon, was tried by jury and convicted
of Count 1, Forcible Oral Sodomy, in violation of 21
O.S.Supp.2016, § 888,  in the District Court of
Bryan County Case Number CF-2017-64. The jury recommended as
punishment ten years imprisonment. The trial court sentenced
Appellant accordingly. It is from this judgment and sentence
that Appellant appeals.
Appellant raises the following propositions of error in this
I. The trial court abused its discretion by ruling, without
inquiry, that the alleged victim was competent to testify at
jury trial violating the Sixth Amendment of the United States
Constitution, Article 2, § 20 of the Oklahoma
Constitution, and 12 O.S.2011, §§ 2601-2603.
II. The Magistrate abused its [sic] discretion by considering
testimony from an alleged victim who was incompetent during
preliminary hearing, in violation of the Sixth Amendment of
the United States Constitution, Article 2, § 20 of the
Oklahoma Constitution, and 12 O.S.2011, §§
III. The trial court abused its discretion when it allowed
the admission of unreliable hearsay without exception and
introduced without inquiring into the reliability of the
hearsay statements, in violation of 21 O.S.Supp. 2013, §
IV. Because the testimony and statements of the alleged
victim were inconsistent, incredible, and unbelievable,
corroboration was required. The testimony was not adequately
corroborated and therefor [sic] the evidence was insufficient
to support the conviction.
V. Error occurred when the trial court failed to properly
instruct the jury, in violation of Mr. Gordon's due
process rights under the 14th Amendment to the United States
Constitution and Art. II, § 7, of the Oklahoma
VI. Mr. Gordon was prejudiced by Vicki Palmore's
testimony vouching for the credibility of R.S.
VII. Mr. Gordon was denied his right to the effective
assistance of counsel, in violation of the 6th and 14th
Amendments to the United States Constitution and Art. II,
§§ 7, 9, and 20, of the Oklahoma Constitution.
VIII. Cumulative errors deprived Mr. Gordon of a fair
proceeding and a reliable outcome.
After thorough consideration of these propositions and the
entire record before us on appeal including the original
record, transcripts, and briefs of the parties, we have
determined that under the law and the evidence no relief is
In Proposition One, Appellant contends the trial court
committed an abuse of discretion by not making an inquiry
regarding the victim's, R.S.'s, competency to
testify.  Prior to trial, Appellant requested
the trial court to hold an in camera hearing to
determine if R.S. was able to differentiate between truth and
fiction. The trial court denied the motion, finding the
preliminary hearing court determined that R.S. was a
competent witness, either expressly or by virtue of the fact
that the magistrate allowed R.S. to testify.
"Determination of a witness' competency to testify
is a matter of discretion for the trial judge and that
determination will not be disturbed unless the party
asserting error shows a clear abuse of discretion."
Gilson v. State, 2000 OK CR 14, ¶ 59, 8 P.3d
883, 906. An abuse of discretion has been defined as a
clearly erroneous conclusion and judgment, one that is
clearly against the logic and effect of the facts presented
or, stated otherwise, any unreasonable or arbitrary action
taken without proper consideration of the facts and law
pertaining to the matter at issue. Neloms v. State,
2012 OK CR 7, ¶ 35, 274 P.3d 161, 170 (internal citation
and quotation marks omitted).
Reviewing the record, we find the trial court did not abuse
its discretion in finding R.S. to be a competent witness. The
Oklahoma Statutes provide, "[e]very person is competent
to be a witness except as otherwise provided in this
Code." 12 O.S.2011, § 2601. A witness must have
"personal knowledge of the matter" about which he
is testifying. 12 O.S.2011, § 2602. "Every witness
shall be required to declare before testifying that the
witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness's
conscience and impress the witness's mind with the duty
to do so." 12 O.S.2011, § 2603.
Although our cases have not addressed the competency of a
witness with Down Syndrome, we have many that address the
competency of child witnesses.  "A child is a
competent witness under 12 O.S.1991, § 2603, if he or
she can distinguish truth from fiction, has taken an oath,
and demonstrated that he or she has personal knowledge of the
crime." Gilson, 2000 OK CR 14, ¶ 59, 8
P.3d at 906. See also Hawkins v. State, 1994 OK CR
83, ¶ 27, 891 P.2d 586, 594-95 (where five year old
child indicated she knew right from wrong and promised she
would only tell what was right and her personal knowledge of
the crime was shown, trial court properly found her to be a
competent witness); Dunham v. State, 1988 OK CR 211,
¶ 8, 762 P.2d 969, 972 (where four year old child
acknowledged he would be punished for making up stories and
his personal knowledge of the crime was shown, trial court
properly found him competent as a witness despite some
confusion on his part during trial).
The record shows that R.S. was competent to testify. The
preliminary hearing magistrate administered the oath to R.S.
and he swore to tell nothing but the truth. R.S. told the
prosecutor he did not lie but only told the truth. He further
told the prosecutor that when people tell lies, they go to
Hell. R.S. demonstrated his personal knowledge of the crime
when he testified how Appellant put his penis into R.S.'s
That R.S.'s testimony may have been inconsistent in some
respects does not affect his competency as a witness but only
goes to the weight and credibility of his testimony, which
may properly be addressed on cross-examination.
Gilson, 2000 OK CR 14, ¶ 60, 8 P.3d at 907.
Defense counsel thoroughly cross-examined R.S.
R.S. similarly demonstrated his competence as a witness at
trial. R.S. received the oath and swore to tell the truth. He
demonstrated that he knew the difference between the truth
and a lie. When asked by the prosecutor whether it would be
okay if she told a lie that R.S. did something wrong, R.S.
answered in the negative. R.S. established his personal
knowledge of the crime when he testified that Appellant
touched R.S.'s mouth with his penis and had his penis in
While there may have been inconsistencies in R.S.'s trial
testimony, they were squarely before the jury and it was for
the jury to decide R.S.'s credibility and the weight to
give his testimony. Cf. Gray v. State, 1982 OK CR
137, ¶ 23, 650 P.2d 880, 885 (once a child has taken an
oath and has personal knowledge of the matters at issue,
"[i]t is then for the jury to decide the amount of
credence to be afforded such testimony").
Although it was error for the trial court to deny the defense
motion for a hearing on R.S.'s competence as a witness,
we find the error was harmless. The above record demonstrates
R.S. was a competent witness and further discussion in
Proposition Three also supports our finding of harmlessness
due to the ...