THE STATE OF OHIO, APPELLANT, v. CLARK, APPELLEE.
No. 93-2490
SUPREME COURT OF OHIO
December 30, 1994
71 Ohio St.3d 466 | 1994-Ohio-43
Witnesses—Competency of child witness—Evid.R. 601(A), applied.
2. A trial judge, in the exercise of his or her discretion, may choose to conduct a voir dire examination of a child witnеss who is ten years of age or older if the judge has reason to question the child‘s competency. The decision not to voir dire a child witness under such circumstances will be viewed under an abuse-of-discretion standard. In such circumstances, absent a compelling reason to act otherwise, the failure to conduct a voir-dire examination of a child witness whо is ten years of age or older at the time of trial will not constitute reversible error.
(No. 93-2490—Submitted November 15, 1994—Decided December 30, 1994.)
CERTIFIED by the Court of Appeals for Franklin County, No. 93AP-193.
{¶ 1} On June 3, 1992, a Franklin County Grand Jury indicted appellee, Roscoe P. Clark, on one count of felonious sexual penetration in violation of
{¶ 2} During trial, the state‘s primary witness was the victim, Danyal, who was sixteen at the time of trial. Danyal testified that in 1985, at the age of nine, she resided with her mother and appellee in Columbus, Ohio. Danyal testified that on various occasions during the period of July 4, 1985 to August 1, 1985, she accompanied aрpellee in his pickup truck to perform various errands, such as picking up iron and aluminum scrap to deliver to junkyards. She stated that while on these errands, appellee drove to Eastland Square where he picked up aluminum from a large dumpster located in a parking lot. On three or four of those occasions, Danyal asserted appellеe “would pull over beside the dumpster where there would be no people, and he took his hand down my shirt and from my shirt down to my shorts *** [a]nd then he would touch my vaginal areas.”
{¶ 3} Danyal further testified that on several occasions appellee drove her to a location near the Olentangy River where “[h]e would do like the same thing, but at Olentangy, he wouldn‘t go down to my pants. He would just stay like on my chest areas.” She claimed that she did not tell anyone about these events because appellee “told me my mom already knew and she would just get mad at me for telling her. *** I was scared. *** He told me that if I told, that he would get me in a lot of trouble and get me put in DH, which is a [juvenile detention] center.” During this period, Danyal said she maintained a diаry in which she recorded “everything.”
{¶ 4} Danyal testified that in the summer of 1991, she ran away from home with one of her friends. She claimed that when she returned home two days later, her friend‘s mother informed Danyal that she had found Danyal‘s diary and had read the contents. As a result, Danyal stated she burned the diary. Danyal also indicated that at some point her own mother learned of the incidents involving appellee and that she suggested that Danyal seek counseling. Thereafter, Danyal testified that
{¶ 5} At no time during Danyal‘s testimony or any other stage of thе trial did appellee challenge Danyal‘s competency to testify as to the events which occurred when she was nine years old.
{¶ 6} Detective A.J. Bessell, an investigator for the Child Abuse Unit of the Columbus Police Department, also testified on behalf of the state. He related that in February 1992, he met with Danyal concerning her allegations of sexual abuse. During onе of their meetings, Detective Bessell stated that Danyal prepared a written description of the events and locations about which she had spoken. He further stated that afterwards, he drove Danyal to the locations she identified as the places where the abuse occurred, namely, the rear of Eastland Square Mall and the rear of 1117 Olentangy Rivеr Road.
{¶ 7} Upon completion of the state‘s case-in-chief, John Hamilton, an assistant director of Big Brothers/Big Sisters, testified on behalf of appellee. Hamilton stated that his organization conducts a summer camp in Hocking County, Camp Oty’ Okwa. He identified and described several camp records which indicated that Danyal had attended the camp‘s session from June 30, 1985, through July 13, 1985. He also testified that it would be highly irregular for a child to leave the camp prior to the end of a session.
{¶ 8} Appellee testified on his own behalf. He denied ever taking Danyal to Eastland Square or Olentangy River Road. He denied having engaged in any sexual conduct with his then-stepdaughter. Appellee also claimed that in 1985, he owned a Ford statiоn wagon, not a pickup truck as Danyal had stated.
{¶ 9} On January 19, 1993, the trial judge issued an entry in which he found appellee guilty of each of the three counts of gross sexual imposition. The court imposed a determinate sentence of two years as to each count, with all three counts
{¶ 10} Finding its decision to be in conflict with the decisions of the Twelfth District Court of Appeals in State v. Self (July 29, 1991), Clermont App. No. CA90-10-099, unreported, and State v. Smith (Dec. 30, 1991), Butler App. No. CA91-06-104, unreported, the appellate court certified thе record of the case to this court for review and final determination.
Michael Miller, Franklin County Prosecuting Attorney, Joyce S. Anderson and Michael L. Collyer, for appellant.
Judith M. Stevenson, Franklin County Public Defender, and David L. Strait, Assistant Public Defender, for appellee.
ALICE ROBIE RESNICK, J.
{¶ 11} The sole issue certified for our review is whether a trial court is under a mandatory duty to voir dire a witness, on the question of the witness‘s competency, when the witness is ten years or older at the time of trial but was under ten years of age at the time of the events giving rise to the witness‘s testimony. For the reasons which follow, we answer that question in the negative.
{¶ 12}
“Every person is competent to be a witness except:
“(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.***”
{¶ 14} The presumption established by
{¶ 15} At this juncture, we note that our decision in Turner v. Turner, supra, included as dicta a discussion of the presumptions created by
{¶ 16} It is well settled that as the trier of fact, a trial judge is required to make a preliminary determination as to the competency of all witnesses, including children. State v. Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552. Absent an abuse of discretion, competency determinations of the trial judge will not be disturbed on appeal. See State v. Frazier, 61 Ohio St.3d at 251, 574 N.E.2d at 486-487; State v. Boston (1989), 46 Ohio St.3d 108, 115, 545 N.E.2d 1220, 1228. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768, we determined “‘“[t]he trial judge, who saw the children and heard their testimony and passed on their competency, was in a far better position to judge their competency than is this court, which only reads their testimony from the record ***.“‘” Quoting Barnett v. State (1922), 104 Ohio St. 298, 301, 135 N.E. 647, 648. Furthermore, “‘[t]he term ‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable ***.‘” State v. Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898; State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.
{¶ 17} This court considered a case similar to the one at bar in Huprich v. Paul W. Varga & Sons (1965), 3 Ohio St.2d 87, 3 O.O.2d 61, 209 N.E.2d 390. In Huprich, the plaintiff sought to introduce the testimony of a thirteen-year-old boy concerning an automobile accident the boy had witnessed at the age of four.1
“1. Where a witness is over ten years of age when he testifies but was under ten at the time of the happenings about which he proposes to testify, the capability of such witness to receive ‘just impressions’ of such happenings must necessarily be determined as of the time of those happenings.
“2. Where a proffered witness is over ten years of age when he is called to testify but was only four years old at the time he witnessed happenings about which he proposes to testify, such witness is not as a matter of law incompetent to testify about such happenings. In such instance, the trial court should question the witness and consider any other proffered evidence as to his competency before determining whether such witness is or is not competent to testify.” Id. at paragraphs one and two of the syllabus.
{¶ 18} The conclusions reached in Huprich stretch beyond the clear terms of
{¶ 19} In conclusion, we hold that under the plain meaning of
{¶ 20} In the case at bar, sixteen-year-old Danyal Campbell testified concerning events which occurred while she was nine years old. Appellee never challenged Danyal‘s compеtency to testify. The trial court‘s decision to permit Danyal to testify without conducting a competency hearing rested soundly within the judge‘s discretion. That discretion was not abused. The court of appeals erroneously found plain error when no error existed.
{¶ 21} For the foregoing reasons, the judgment of the court of appeals is reversed, and the decisiоn of the trial court is reinstated.
Judgment reversed.
DOUGLAS, F.E. SWEENEY AND PFEIFER, JJ., concur.
WRIGHT, J., concurring in judgment only.
{¶ 22} I concur in the reversal of the judgment of the court of appeals, but am unable to join in the syllabus or in the full text of the majority opinion. I agree that the trial court acted properly in allowing Danyal, a sixteen-year-old witness, to testify without first conducting a competency hearing. I further agree that the “рlain error” rule does not apply to this case, because no error existed in the admission of Danyal‘s testimony. I believe, however, that appellee‘s judgment of conviction should be reinstated, because Danyal‘s competency was never at issue before the trial court. We need not determine whether the trial court acted within the scope of its discretion in allowing Danyal to testify, because appellee never objected to Danyal‘s testimony on the basis of incompetence. The trial court simply was never called upon by either the defendant or the circumstances to exercise its discretion in passing on the competency of Danyal.
{¶ 23} It is our constitutional duty to resolve conflicts that arise between the various courts of appeals upon certification of a question of law.
{¶ 24} The majority opinion accurately notes that
{¶ 25}
{¶ 26} I note in conclusion that the majority‘s statement that “a witness under the age of ten is not presumed incompetent” is clearly dictum. No proferred witness in the case at bar was under the age of ten at the time of trial. Proper resolution of controversial and complicated legal issues such as the competency of
MOYER, C.J., and A.W. SWEENEY, J., concur in the foregoing concurring opinion.
Notes
“All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”