IN RE: E.C., DELINQUENT CHILD.
CASE NO. 4-15-08
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
November 23, 2015
[Cite as In re E.C., 2015-Ohio-4807.]
Appeal from Defiance County Common Pleas Court Juvenile Division Trial Court No. 31205-2 Judgment Affirmed
Charlyn Bohland for Appellant
Eric T. Michener for Appellee
WILLAMOWSKI, J.
{¶1} Appellant E.C. (“E.C.”) brings this appeal from the judgment of the Court of Common Pleas of Defiance County, Juvenile Division finding him to be a delinquent child and committing him to the care of the Department of Youth Services for a minimum of two years up to a maximum of when he reachеs the age of 21. On appeal E.C. claims that the trial court erred by 1) failing to make a finding that the eight year old victim was competent to testify; 2) failing to swear in witnesses and relying on that testimony in reaching its decision; and 3) finding him to be delinquent. E.C. also claims that he was denied the effective assistance of counsel. For the reasons set forth below, thе judgment is affirmed.
Procedural Background
{¶2} The State filed a complaint alleging that then 17-year-old E.C. was a delinquent child for allegedly committing two counts of statutory rape in violation of
The juvenilе court erred when it permitted eight-year-old M.R. to testify at trial because it never made a determination of competency, in violation of Evid.R. 601(A); the Fifth and Fourteenth Amendments to the U.S. Constitution; and Article I, Section 16, Ohio Constitution.
Second Assignment of Error
The juvenile court erred because it relied on unsworn testimony when it made its delinquency decision, in violation of Evid.R. 603 and R.C. 2317.30.
Third Assignment of Error
The juvenile court violated E.C.’s right to due process when it adjudicated him delinquent of statutory rape, in the absence of credible, and competent evidence and when the victim’s testimony was illogical and inconsistent, in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution; and Article I, Section 16, Ohio Constitution.
Fourth Assignment of Error
E.C. was denied the effective assistanсe of counsel, in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution, Section 10, Article I, Ohio Constitution.
Determination of Competency
{¶3} In the first assignment of error, E.C. alleges that the trial court erred by failing to make a determination that M.R. was competent to testify. Children under ten years of age at the time of giving testimony do not have a presumption of competency.
{¶4} In this case, the trial court did conduct a voir dire of M.R. Doc. 161. The trial court asked M.R. when his birthday was, where he lived, where he went to school, who his teacher was, what he liked about school, and who his friends were. Id. at 4-6. M.R.’s answers were all appropriate for the questions asked. The answers indicated that M.R. was capable of receiving information, remembering the information, and communicating that information to the court. The trial court also asked M.R. аbout the truth. Id. at 7.
The Court: Okay. And before I can let you testify, I have to give you an oath. Do you know what an oath is? Ever hear that before?
M.R.: I forgot what, some kind of speech.
The Court: Well I’m going to ask you to swear to tell the truth. Do you know what that means? When I ask you that?
M.R.: Tell the truth.
The Court: Yeah do you know what it means when I say you need to tell the truth?
M.R.: Don’t lie.
The Court: Don’t lie. Okay, well what’s a lie?
M.R.: Telling something that is not real.
The Court: Something not real. Okay. And so if you tell something that’s not real, if you tell a lie what happens to you?
M.R.: You get, you get, you start to be a liar and then pretty soon you won’t have any friends.
The Court: So is that, is that good, or is that bad?
M.R.: Bad.
The Court: That’s bad, yeah. So it wouldn’t be a good thing to be telling lies?
M.R.: No.
The Court: No. It’s not good to tell lies.
M.R.: No.
The Court: No. Okay, so if I say to you today I want you to swear to me to tell the truth, do you know what I mean when I say that?
M.R.: Be honest.
The Court: Be honest, you have to be complеtely honest and only tell things that are the truth. Understand that?
M.R.: Yeah.
The Court: Can you do that?
M.R.: Yeah.
Id. at 7-8. This testimony indicated that M.R. understood the difference between the truth and a lie and appreciated the necessity of telling the truth. The trial court did not make a specific finding that M.R. was competent to testify. However, a trial judge is required to make a preliminary determination as to thе competency of all witnesses, including children. State v. Wilson, 156 Ohio St. 525, 103 N.E.2d 552 (1952). Although the better practice would have been to make an explicit finding on the record since M.R. was under the age of ten, by permitting the testimony of M.R. at the trial, the trial court did make a determination that M.R. was competent to testify. A review of the record indicates that this determination оf competency was supported by the evidence. Thus, the trial court did not abuse its discretion in finding M.R. competent to testify and permitting him to testify.
{¶5} Even if the explicit finding was required, E.C. failed to object at the hearing to the failure to make the finding of competency. Thus, any alleged error
By its very terms, the rule places three limitations on a reviewing court’s decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of
Crim.R. 52(B) , an error must be an “obvious” defect in the trial prоceedings. * * * Third, the error must have affected “substantial rights.” We have interpreted this aspect of the rule to mean that the trial court’s error must have affected the outcome of the trial.
State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 (citations omitted). While the first prong and second prong could arguably be met based upon the record before this court, E.C. has provided no basis upon which to find that the outcome of the trial would have been different if the trial court had made a specific finding that M.R. was competent to testify. The record indicates that the trial court found him competent and that finding was supported by M.R.’s testimony during the voir dire. The mere fact that the trial court did not specifically state that M.R. was competent to testify did not alter the testimony at all and had no effect on the outcome. Thus, it is not plain error. The first assignment of error is overruled.
{¶6} In the second assignment of error, E.C. claims that the trial court erred by not swearing in two of the witnesses. “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administerеd in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”
{¶7} In this case, the record clearly shows that the two victims testified without being given the required oath.1 There is no question that the failure to
Sufficiency of the Evidence and Manifest Weight of the Evidence
{¶8} The third assignment of error raises arguments that the finding of delinquency is not supported by sufficient evidence and that it is against the manifest weight of the evidence. “The relevant question in a sufficiency-of-the-evidence review is whether, ‘after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15 (quoting State v. Jenks, 61 Ohio St.3d 259, 272-73, 574 N.E.2d 492 (1991)).
{¶9} In this case, the complaint alleged that E.C. was delinquent by committing 2 counts of what would be statutory rape, in violation of
{¶10} N.C. testified that she was twelve and that M.R. was her brother. Trial Tr. 37, 40. She stated that M.R. told her that E.C. had “put his private part in [M.R.’s] butt.” Trial Tr. 42. At that time, M.R. was speaking quietly and told her not to tell anyone. Trial Tr. 42-43.
{¶11} Celeste Kenning (“Kenning”) testified that she is a registered nurse at ProMedica Defiance Regional Hospital. Trial Tr. 46. On May 6, 2014, she assisted in treating M.R. Trial Tr. 49-50. M.R. was brought to the hospital as a result of reported sexual abuse. Trial Tr. 51. She asked M.R. numerous questions for the purpose of medical treatment. Trial Tr. 52. Kenning testified that M.R.
{¶12} T.R. tеstified that she is M.R.’s mother and that he was born in February of 2007. Trial Tr. 64. She testified that she took M.R. to the hospital in Defiance after learning of the allegations and from there she took him to the hospital in Toledo. Trial Tr. 72-73.
{¶13} J.C. testified that he was ten years old. Trial Tr. 116. J.C. then testified that E.C. had put his penis in his behind. Trial Tr. 122. Additionally E.C. placed his penis into J.C.’s mouth. Trial Tr. 123-24. These events occurred more than one time. Trial Tr. 124. At one point J.C. was taken to the hospital and questioned about what happened. Trial Tr. 127.
{¶14} In addition to this testimony, evidence was presented that there were no physical signs of sexual abuse on either of the victims. Additionally, E.C. presented evidence that he was not home on the date listed in the indictment.
{¶15} Viewing this evidence in a light most favorable to the State, there is evidence to show that E.C. engaged in sexual conduct with M.R. and J.C. and that both victims were under the age of 13 at the time of the conduct. Thus, the evidence is sufficient to support the findings of the trial court.
{¶17} A review of the record in this case shows that while E.C. has repeatedly denied the conduct with which he was charged, that there was no evidence of physical injury to the victims, and that the victims were unsure of the exact days when the events occurred, the victims knew that it was around the time alleged in the indictment, аnd the victims have repeatedly stated what E.C. did to them. The victims have consistently stated what was done and that it occurred multiple times. The evidence does not weigh heavily against the finding of
Ineffective Assistance of Counsel
{¶18} In the final assignment of error, E.C. claims that he was denied the effective assistance of counsel. E.C. claims his counsel was ineffective for failing to object to the trial court’s failures to make a finding of competency as to M.R. and to administer the oaths to M.R. and J.C. To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., рerformance falling below an objective standard of reasonable representation; and (2) prejudice—a reasonable probability that but for counsel’s errors, the proceeding’s result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 104S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. A reviewing court must recognize that there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and that strategy and tactical decisions exercised by defense counsel are well within the range of professionally reasonable judgment and need not be analyzed by a reviewing court. State v. Robinson, 108 Ohio App.3d 428, 670 N.E.2d 1077 (3d Dist.1996).
{¶19} Here, E.C. claims that counsel was ineffective for failing to object to mistakes in procedure made by the trial court. This court recognizes that there
{¶20} Likewise, in the second assignment of error, we addressed the trial court’s error in failing to place the victims under oath before allowing them to testify. This was a clear error as it contradicted both the rules of evidence and the statutory requirement. However, as discussed above, the error had no effect on the оutcome of the trial. The victims testified and were subject to cross-examination. If counsel had objected, the trial court would have sworn the witnesses and the trial would have continued in the same manner as it did. E.C. does not indicate how the objections would have affected what the testimony was or how it would have changed the outcomе. Thus, any error in the failure to object is not
{¶21} Having found no prejudicial errors in the particulars assigned and argued, the judgment of the Court of Common Pleas of Defiance County, Juvenile Division, is affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
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