State v. Liccardi
2017 Ohio 7947
| Ohio Ct. App. | 2017Background
- Defendant Richard Liccardi was indicted on two counts of third-degree gross sexual imposition for alleged sexual contact with a minor, D.L., covering a period from birth to age 4 years, 8 months.
- Liccardi moved in limine to exclude the child’s testimony, arguing the victim (then six at the competency hearing) was incompetent under R.C. 2317.01 and Evid.R. 601(A).
- At an August 31, 2016 competency hearing the judge, prosecutor, and defense counsel questioned six-year-old D.L.; she gave biographical details and recounted recent birthdays and Christmases, but could not explain what an oath is.
- The trial court found D.L. had difficulty receiving and relating impressions, expressed concern she may have been coached, and noted the indictment alleged acts dating back to infancy (which a child could not reliably recall).
- The trial court ruled D.L. incompetent to testify; the State appealed, arguing the ruling was an abuse of discretion.
- The appellate majority affirmed, deferential to the trial court’s ability to observe the child and applying the Frazier competency factors; one judge dissented, arguing the record showed sufficient understanding and recall and that exclusion denied the victim her day in court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in finding six-year-old D.L. incompetent to testify | The State argued the child demonstrated sufficient ability to receive, recall, communicate, and understand truthfulness, so competency should have been found | Liccardi argued the child lacked an understanding of an oath, had trouble relating impressions, and may have been coached; therefore she was incompetent under R.C. 2317.01 and Evid.R. 601(A) | The court affirmed: no abuse of discretion in finding the child incompetent based on Frazier factors, observed difficulties, and concern about coaching and memory for alleged infant events |
Key Cases Cited
- State v. Frazier, 61 Ohio St.3d 247 (1991) (sets out factors for determining competency of a child under ten to testify)
- State v. Ferranto, 112 Ohio St. 667 (1925) (defines abuse of discretion standard)
- State v. Wilson, 156 Ohio St. 525 (1952) (court must inquire whether a child witness has been coached)
- State v. Sellards, 17 Ohio St.3d 169 (1985) (prosecutor need not prove exact date of offense in indictment)