State v. Clark
71 Ohio St. 3d 466
Ohio
1994
Check Treatment

*1 Appellee. Ohio, Appellant, Clark, as State v. Clark [Cite 466.] (No. 1994.) 93-2490 Submitted November 1994 Decided December *3 Miller,

Michael Franklin County Prosecuting Attorney, Joyce S. Anderson and Michael L. Collyer, Prosecuting Attorneys, Assistant for appellant. Stevenson, County Defender, Strait,

Judith M. Franklin Public and David L. Defender, Assistant Public for appellee. J. sole issue certified for our review is whether a Resnick,

Alice Robie trial court a mandatory duty is under to voir dire a witness on the witness’s when the ten years witness is or older at the time of trial but under was ten of at the time of the giving events rise to the follow, testimony. witness’s For the reasons which we answer that negative. general Evid.R. 601 sets out the rule of competency for all witnesses. It states:

“Every person competent except: be a witness “(A) of Those unsound and children under ten years age, appear of who incapable receiving just of impressions the facts and transactions respecting ” examined, are they truly. or of them 601(A) leads to conclusion reading A of Evid.R. of those presumed, or while ten older

of individuals 87, 94, (1988), 37 Ohio St.3d under ten must be established. State Wallace it even on those who 466, competency, conferring rule 472. “The favors N.E.2d ten, if are they under from the such children presumption, not benefit do of the facts and transactions ‘just capable impressions to be shown ” truly.’ ‘relating they capable are examined’ and respecting which 343, 1123, 1128. As a (1993), 617 N.E.2d 67 Ohio St.3d Turner v. Turner otherwise, an who is least result, individual some articulable concern absent testify. competent se per ten where a those cases by Evid.R. recedes established cases, or under the of ten. such either of unsound mind

witness is exhibits to establish the witness on the proponent burden falls determining a test for This court established certain indicia v. Frazier 941, 112 117 L.Ed.2d 629. 503 U.S. certiorari denied syllabus, competent child ten is There, whether a determining held that we to receive ability into the child’s court must take consideration: testify, the trial fact, those impressions, to recollect ability the child’s accurate observed, understanding truth child’s ability child’s to communicate what to tell the responsibility of his her falsity, appreciation and the child’s have been requirements that the threshold a trial concludes truth. Once satisfied, testify. under the will be deemed a witness Turner, included supra, in Turner v. juncture, At we note that our decision 601(A). First, we *4 by Evid.R. presumptions dicta created a discussion do from on those who not benefit competency that the rule confers “even stated * * 343, at 1128. We then 67 at 617 N.E.2d presumption Ohio St.3d unsound of ten of involving that in cases witnesses under stated ” Clearly Id. incompetency proven until otherwise. “the of upon Further reflection and opposing presumptions. rule two cannot create 601(A) clarify of leads us to our discussion meaning review not stating Turner that rather, testimony bears the of the witness’s incompetent, proponent but just capable that the witness proving burden of truthfully. to make a fact, judge required a trial It is settled that as the trier well witnesses, including all as to the determination preliminary 437, 525, (1952), 103 N.E.2d 552. v. 156 Ohio St. 46 O.O. children. Wilson State discretion, trial will judge determinations Absent an abuse Frazier, 251, 61 Ohio 574 on State v. St.3d appeal. not be disturbed See 470 486-487; (1989), 108, 115,

N.E.2d at State v. Boston 46 Ohio St.3d 545 N.E.2d 1220, (1989), 136, 373, 1228. In v. 42 Ohio Bradley St.3d 538 N.E.2d (1990), 1011, 3258, 768, certiorari denied 110 111 U.S. L.Ed.2d we “ ‘ judge, testimony determined trial who saw the children and heard their “[t]he passed on their was in a far position better their court, than only testimony is this reads their from the record ’ ” * * (1922), 298, 301, 647, *.” Barnett Quoting v. State 104 Ohio St. 135 N.E. “ Furthermore, 648. term ‘abuse of discretion’ ‘[t]he connotes more than an error judgment; implies unreasonable, of law or of the court’s attitude is ” * * arbitrary (1990), 58, or unconscionable State Moreland 50 Ohio St.3d 61, 894, 898; 151, N.E.2d State v. Adams 62 Ohio St.2d 16 O.O.3d 169, 173, 149. court

This considered a case similar to the one at in Huprich bar v. Paul W. Varga & Sons 3 O.O.2d 209 N.E.2d 390. In Huprich, the plaintiff sought to introduce the of a thirteen-year-old boy concern ing an automobile boy accident the had witnessed at of four.1 Without a voir-dire examination of the the trial court deemed him incompetent testify as to the events he had observed. The court of appeals affirmed, reversed and this court noting that the trial arbitrarily court decided to deny request for a In competency hearing. disapproving the actions of the the Huprich court reached two conclusions:

“1. Where a witness is over ten years when he testifies but was under ten at the time of the happenings about which he proposes testify, capability of such ‘just witness to receive impressions’ of such happenings must necessarily be determined as the time of those happenings.

“2. Where a proffered witness is over ten of age when he is called to testify only but was four years old at the time he happenings witnessed about proposes testify, which he such witness is not as a matter of law incompetent instance, about such happenings. such the trial court should witness and consider other proffered evidence as to his competency before determining whether such witness is or is testify.” paragraphs Id. at one and syllabus. two of the conclusions reached stretch Huprich beyond the clear terms of Evid.R. 601(A). above, As discussed a presumption creates of competency anyone favor of who is at least ten and is of sound mind. The rule *5 Huprich, prior adoption 2317.01, 1. application decided to the of Evid.R. involved the of R.C. which stated: persons competent except “All are witnesses those of unsound and children under ten age just appear incapable respecting who of the facts and transactions examined, they truly.” which are or of trial, the as of the time at which of the time of competency as addresses a dual evaluation require occurred. If we were to question in incident ten, be effectively we would age who have attained the of those of Evid.R. meaning contemplated by plain that is not requirement a creating 601(A). not the testimo- Furthermore, unwarranted. or such a rule is Whether the which occurred before concerning of ten an event of one over the ny Every fact. the trier of credibility by a issue to be resolved of ten is accurate is and truthfulness with perceived accuracy credibility hinges upon assessment counsel will be any opposing As with given. challenge in his or her the witness order an to cross-examine given opportunity Therefore, once a child attains recall the events. ability accurately equally to ten, applies created in adult, of when the events regardless that child witness as would occurred. question 601(A), a child conclusion, plain meaning that under the

In we hold trial, but who was under or older at the time witness who is ten occurred, in at time an incident of ten A in the exercise of his or her about the event. testify child witness if discretion, a examination of the may choose to conduct voir-dire not to voir the child’s The decision has reason to under an abuse-of- circumstances will be viewed dire a child witness under such otherwise, cases, to act compelling In such absent a reason discretion standard. of a child witness who is over the the failure to conduct a voir-dire examination Paul Hupriái Varga trial will not constitute reversible error. W. age of ten at Sons, holding that it with our is overruled to the extent is inconsistent supra, & case. bar, Danyal concerning testified sixteen-year-old Campbell the case never Appellee challenged which occurred while she was nine old. events permit Danyal The trial court’s decision to Danyal’s competency testify. hearing soundly rested within the without court of appeals That discretion was not abused. The judge’s discretion. no error existed. erroneously found error when reversed, reasons, of the court of foregoing judgment For the reinstated. and the decision of the trial court is

Judgment reversed. JJ., concur. Sweeney F.E. Pfeifer, Douglas, Moyer, C.J., JJ., only. in judgment concur Sweeney A.W. Wright, J., only. I concur the reversal concurring judgment Wright, syllabus in the join court of but am unable to appeals, judgment *6 472 in acted properly I that the trial court majority agree opinion.

full text of the a witness, first to without sixteen-year-old a allowing Danyal, to apply error” rule does not agree “plain I hearing. further competency I Danyal’s testimony. no in the admission of case, error existed this because reinstated, believe, however, of conviction should be judgment that appellee’s need the trial court. We was never at issue before competency Danyal’s because in of its discretion scope trial court acted within the not determine whether the objected Danyal’s testimony to appellee never allowing Danyal testify, because by simply upon The trial court was never called incompetence. on the basis in on passing circumstances to exercise its discretion either the defendant the competency of Danyal. various to resolve conflicts that arise between the duty It is our constitutional 2(B)(2)(e), a of law. Section upon question courts of certification of a IV, pursuant This court Article Constitution. case is before the Ohio a posited Tenth by Appeals, of conflict District Court of certification mandatory a under to voir question duty for resolution: “Is trial court a single is when the witness dire a on witness’s less at the years age ten at the time of trial but was than ten over testimony.” Appellate rise to the witness’s Tenth giving time the events its to this to be the affirmative and found District deemed answer 1991), No. (July App. in conflict with State v. Clermont judgment to be Self (Dec. 30, 1991), CA90-10-099, unreported, 1991 WL State v. Smith CA91-06-104, Butler No. 1991 WL 278241. The certified App. unreported, in the no negative us be answered that there is question now before should imposition mandatory requirement 601 for the of a of voir-dire basis where, here, objection ten or as no is raised examination of witness older But, see, parties competency proposed to the witness. 247, 250-251, 486-487, 61 Ohio certiorari Frazier St.3d (trial U.S.-, 112 117 629 court must denied L.Ed.2d is ten hearing age). hold a where the witness competency out accurately general that Evid.R. 601 sets majority opinion *7 ease accused that the acknowledges majority expressly challenged. of the trial stage other Danyal’s during no time “[a]t when which occurred as to the events Danyal’s competency [challenged] trial, no and old she was sixteen old.” Because she was nine obligated court was not the trial competence, her regarding was made objection on this should be reversed The court of hearing. to hold a alone. reasoning the age “a witness under majority’s statement

I note conclusion No proffered dictum. incompetent” clearly of ten is not Proper trial. resolution ten at the time of was under the the case at bar young such as the legal and issues complicated controversial facts in which the has before it case deferred until the court children should be advisory otherwise is to render considered. To do legal mirror the issues which we should refrain. an exercise from opinions, J., concurring opinion. C.J., foregoing Sweeney, concur Moyer, and A.W. Appellant Cross-Appellee, Ohio, State Appellee Cross-Appellant. Said, (1994), 71 Ohio St.3d 473.] v. Said [Cite 1994.) (No. December 1994 Decided October 93-1085 Submitted notes for a witness “Every person rule of all witnesses: be competency * * * * * rule, all except children under ten Pursuant competent. or older are to be treated as potential initially witnesses ultimately a matter committed to the Although competency of witness is does that a trial court require sound of the trial Evid.R. 601 discretion aby each and ten or older called upon competency every pass made never no for voir dire competency challenged, request where party examination, no objection made. create, with, presumptions nor does not concerned 601 is in reference “presumption” of the term The use Evidence which Rules of adoption predating from cases issues arises was once to determine upon called courts were