2019 Ohio 866
Ohio Ct. App.2019Background
- Juvenile court adjudicated J.J. delinquent of one count of kidnapping for "twerking" on his 5–6 year‑old half brother J.W.; other counts (rape, additional kidnapping) were dismissed for insufficient evidence.
- The state sought to admit out‑of‑court statements by J.W. (to his mother, a SANE nurse, a CCDCFS social worker, and the investigating officer) under Evid.R. 807 if J.W. was incompetent or unavailable to testify.
- At a preliminary voir dire, the juvenile court found six‑and‑a‑half‑year‑old J.W. incompetent to testify based largely on his reticent demeanor and apparent lack of understanding why he was in court; defense did not object below to the competence finding.
- The court admitted the other witnesses’ testimony recounting J.W.’s statements and relied on that testimony at adjudication; J.J. was committed to community control and ordered to sex‑offender programming.
- On appeal, the Eighth District sua sponte reviewed whether the voir dire was sufficient under Evid.R. 601(A) and State v. Frazier and found the court failed to examine key competency factors (ability to recall events, communicate them, and distinguish truth from falsehood).
- Court reversed and remanded for a proper voir dire because the competency determination was central to admissibility under Evid.R. 807 and the juvenile court abused its discretion by not addressing the Frazier factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court conducted a sufficient voir dire to find a child under 10 incompetent to testify | State: court’s competency finding was supported by the record (demeanor, confusion about courthouse) | J.J.: voir dire was inadequate; child could have been competent to testify | Reversed — voir dire was inadequate; court failed to address Frazier competency factors |
| Admissibility of child’s out‑of‑court statements under Evid.R. 807 when child is unavailable or incompetent | State: statements were reliable under totality of circumstances and therefore admissible | J.J.: admission violated hearsay rules and Confrontation Clause if child was competent; Evid.R. 807 not satisfied | Remanded — admissibility depends on competency; because competency inquiry was flawed, evidentiary ruling must be revisited after proper voir dire |
| Sufficiency of evidence that "twerking" constituted sexual activity supporting kidnapping conviction | State: evidence (statements and contextual facts) proved sexual activity beyond a reasonable doubt | J.J.: act of "twerking" is not sexual activity as defined by statute; evidence insufficient | Not decided on appeal — court reversed on procedural competency grounds, remanded for further proceedings |
| Whether plain error review warranted despite no timely objection to competency finding | State: competency finding should be reviewed for abuse of discretion; some evidence supports it | J.J.: plain error applies because competency affected admissibility and outcome | Court applied plain‑error review and found abuse of discretion warranting reversal and remand |
Key Cases Cited
- State v. Frazier, 61 Ohio St.3d 247 (trial judge must conduct voir dire addressing a child’s ability to observe, recollect, communicate, and distinguish truth from falsity)
- State v. Maxwell, 139 Ohio St.3d 12 (competency determinations are within trial court’s discretion)
- State v. Barnes, 94 Ohio St.3d 21 (plain error review and prejudice requirement for reversal)
- State v. Slagle, 65 Ohio St.3d 597 (appellate courts may address plain error to prevent miscarriage of justice)