State v. SilvermanState v. Silverman
Lead Opinion
{¶ 1} Today we determine whether the statements of a child whose testimony is not reasonably obtainable are admissible when the trial court has not deter
Relevant Background
{¶ 2} During Memorial Day weekend in 2006, appellant Doron Silverman and his family
{¶ 3} Batya and M.S. spent the next day at the apartment complex’s swimming pool. After going back to her apartment, Batya decided to bathe M.S. to wash off the chlorine from the pool. Batya, whom M.S. called “Poti,” was undressing M.S. when he pulled on his penis, pointed to it, and said to her, “Poti, put your mouth on it.”
{¶ 4} Batya was shocked by this statement because it was the first time M.S. had ever said anything like that to her. She asked her boyfriend, Joe Farber, to come in and hear what M.S. had said. Farber first asked M.S., to no avail, why he said that to Batya. He then questioned M.S. whether he had ever seen that in a movie; M.S. answered no. M.S. also said no when Farber inquired whether he had ever seеn his parents do that. Finally, when Farber asked where M.S. learned it, M.S. responded, “Daddy did it. No more talk.” With that, Batya and Farber decided not to pressure M.S. any more at that time, and they finished up the bath.
{¶ 5} Silverman and his wife came over to Batya’s that night, but M.S.’s earlier comment was not mentioned. M.S. again stayed the night at Batya’s, and the next day Farber and Batya asked M.S. if he remembered what he had told them in the bathroom the previous day. M.S. said that he did, and they asked M.S. again if he had learned it from watching a movie or his parents, to which M.S. replied that his daddy had done it. When asked if he did it to his father too, M.S. said yes. Batya explored this line of questioning, and when she asked M.S. if he had kissed his father’s penis, he answered, “No, I lick it.” M.S. further indicated that Silverman was the only person who did this to him, that it was a secret, and that he did not want to talk any more because he would get in trouble. By the end of the conversation, M.S., who had been coloring, was stabbing the paper with his pen and shaking his clenched fists.
{¶ 6} Batya’s mother then arrived unannounced at Batya’s apartment. Batya relayed to her what M.S. had said. They left M.S. with Farber and another friend of Batya’s and went back to Batya’s parents’ house. When Silverman
{¶ 7} After further conversation, the family decided not to call the police and that M.S. and his sister would remain in Indiana for several days while Silverman received help. However, Batya learned about a week later that the children had been returned to Silverman’s care, which was sooner than the family had originally planned. Soon thereafter, she contacted the Montgomery County children services agency and the West Carrollton police department.
{¶ 8} The police interviewed Silverman and his wife on June 13. During the interview, Silverman explained that because his wife was a stay-at-home mоther, his only responsibility with the children was to bathe them. He told the detective that when he would get home from working at Chuck E. Cheese, he would take off his clothes and put on a robe — sometimes tying it, sometimes not. He and the kids would then take a bath together, and Silverman claimed that M.S. would climb over him like a “jungle gym.” On one occasion, Silverman claimed that M.S. pulled on Silverman’s penis in the bath, and Silverman responded by pulling on M.S.’s. Silverman also told the detective that one time when M.S. was climbing on him, M.S. bit Silverman’s penis while it was erect. When asked how many times Silverman had his mouth on M.S.’s genitals, Silverman said two or three times for about a second each time. When the interview was over, Silverman agreed to write down a statement.
{¶ 9} On July 21, 2006, the Montgomery County Grand Jury returned a three-count indictment against Silverman for rape and gross sexual imposition. Prior to the indictment, however, Silverman’s wife set fire to their residence. M.S. and K.S. were killed in the fire.
{¶ 10} Because of M.S.’s death, the state moved to declare M.S. unavailable for trial and to admit into evidence the statements that he had made to Batya and Farber. After conducting a hearing pursuant to
{¶ 11} Silverman appealed to the Second District Court of Appeals, arguing that the trial court erred by admitting M.S.’s statement. Relying upon this court’s decision in State v. Said (1994),
Analysis
{¶ 13} We begin our analysis by examining
{¶ 14} The rule provides an exception to the general exclusion of hearsay statements when a child under the age of 12 at the time of trial or hearing makes an out-of-court statement describing any sexual act that is performed on, with, or by the child.
{¶ 15} In Said, we were confronted primarily with the trial court’s failure to record the hearing determining the competence of a five-year-old witness. The majority held that the failure to record the hearing was reversible error. Id.,
{¶ 16} The dissent in Said foresaw the problems with the majority’s rationale and noted that the competence requirement established by the majority “exceeded] the boundaries of
{¶ 17} The prescience of the dissent was borne out in State v. Meadows (Feb. 12, 2001), 4th Dist. No. 99CA2651,
{¶ 18} The court of appeals rejected that argument, finding that “Said * * * exclude[d] hearsay statements that
{¶ 19} The distinction that the Fourth District Court of Appeals drew in an attempt to evade Said is artificial and does not withstand close scrutiny in light of Said’s far-reaching holding. In Said, this court held in no uncertain terms that a competence hearing was required for the statements to be admissible under
{¶ 20} We now hold that the better approach is to return to the plain text of
{¶ 21} The Supreme Court of Washington recently confronted the same problem we do today. In State v. C.J. (2003),
{¶ 22} In contrast, the court in C.J. found that the prerequisites of Washington’s child-hearsay-exception statute, Wash.Rev.Code 9A.44.120, like
{¶ 23} Likewise, the Supreme Court of Colorado has recognized that there is a “flawed assumption that a determination of incompetency at the time of the hearing invariably establishes that the child’s statement was not reliable.” People v. Dist. Court of El Paso Cty. (Colo.1989),
{¶ 24} As does the Washington statute previously discussed and
{¶ 25} The court in El Paso distinguished the purpose of a hearing on competence, which “determines only whether a child can accurately recollect and narrate at trial the events of abuse,” id.,
{¶ 26} The plain text of
{¶ 27} First, the court must consider a host of factors “surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental state of the child, the child’s motive or lack of motive to fabricate, the child’s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and thе statement.”
{¶ 28} Applying these requirements to the case at hand, the trial court carefully reviewed the totality of the circumstances surrounding M.S.’s statements and appropriately determined that there were sufficient indicia of reliability and particularized guarantees of trustworthiness that made the statements as reliable as those admitted under
{¶ 29} Furthermore, the remaining criteria of
{¶ 30} We are mindful that today’s holding entails limiting Said to the extent that Said requires that a child be found competent prior to admitting the statement under
{¶ 31} In Galatis, we recognized this tension and adopted a test for overruling precedent. However, “[considerations in favor of stare decisis are at their acme * * * where reliance interests are involved,” Payne,
{¶ 32} “[T]he opposite is true in cases * * * involving procedural and evidentiary rules,” Payne,
{¶ 33} The instant case addresses an evidentiary rule and procedure “that do[ ] not alter primary conduct.” Hohn v. United States (1998),
Conclusion
{¶ 34} For the foregoing reasons, we limit Said and hold that a hearsay statement of a child declarant can be admitted under
Judgment reversed.
Notes
. This included Silverman’s wife Heather, his three-month-old daughter, K.S., and his son, M.S.
. Heather Silverman has since pleaded guilty to two counts of murder and three counts of aggravated arson.
. Other states that adhere to this rationale include Florida, Perez v. State (Fla.1988),
. A 1995 review of child-hearsay statutes revealed that of the 34 states that then allowed an exception to hearsay for child victims of abuse, Ohio was the only one that required that the declarant’s statement be as reliable as one admitted under other hearsay exceptions, that the child declarant be unavailable to testify, and that there be independent corroboration of the crime. Robert Marks, Note, Should We Believe the People Who Believe the Children?: The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute (1995), 32 Harv.J. on Legis. 207, 238-240.
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Dissenting Opinion
dissenting.
{¶ 35} I concur in Justice Lanzinger’s dissent, which argues that the judgment of the court of appeals should be affirmed. But I do not agree with the dissent’s rejection of Westfield Ins. Co. v. Galatis,
{¶ 36} I would note, however, that the majority overstates the arguments from the United States Supreme Court cases. Beyond contending that reliance interests are not implicated by procedural rules, the court in Pearson also noted abundant criticism of the precedent at issue as well as its inconsistent application by the lower courts. Id. at-,
{¶ 38} The majority misconstrues the United States Supreme Court opinions, ignoring the factors, other than reliance interests, that were considered by the court before it overruled a prior decision. A thorough examination of the cases cited by the majority actually confirms the prudence of our test in Galatis. Because I believe Said was rightly decided and should be followed here, I find it unnecessary to apply Galatis. But even if one disagrees, as the majority does, our well-established test for overturning precedent should be fully applied. The majority’s opinion actually indirectly applies the first and third steps of the Galatis test, though it comes to the wrong conclusion, in discussing the purported problems with Said and the lack of reliance interests at stake. It nevertheless neglects to apply the second step and concludes that Galatis is inapplicable based only on the third step. For these reasons, as well as those offered by Justice Lanzinger, I dissent.
Dissenting Opinion
dissenting.
{¶ 39} Because
{¶ 40} The majority concludes that the text of
Competence of a mtness is governed by
{¶ 41} While it is true that
{¶ 42} “Every person is competent to be a witness except
{¶ 43} “(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.” (Emphasis added.) This rule, therefore, presumes that children under ten are incompetent unless certain factors have been met.
{¶ 44} A trial court must conduct a voir dire examination of a child under ten years of age to determine the child’s competence to testify. In making this determination, the court must consider “(1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child’s ability to recollect those impressions or observations, (3) the child’s ability to communicate what was observed, (4) the child’s understanding of truth and falsity, and (5) the child’s appreciation of his or her responsibility to be truthful.” State v. Frazier (1991),
{¶ 45} Competence is an issue separate from any hearsay exception.
Ohio’s child hearsay exception rale is
{¶ 46}
{¶ 47}
{¶ 48}
{¶ 49} “An out-of-court statement made by a child who is under twelvе years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under
{¶ 51}
{¶ 52} Far from imposing a judicially created requirement onto the rule, the majority in Said explained how
{¶ 53} “Competency under
(¶ 54} “Out-of-court statements that fall within
{¶ 55} This court’s rationale for requiring competence determinations shows that the principle established in Said was well grounded and was hardly made “without authority.”
Child-hearsay exceptions in other jurisdictions
{¶ 56} Other states have handled the concern over competence by statute, establishing that children under ten are competent if they are victims of certain offenses. See, e.g., Ala.Code 15-25-3(e) (“a child victim of a physical offense, sexual offense, or sexual exploitation, shall be considered a competent witness”); Conn.Gen.Stat.Ann. 54-86h (“any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification”); Utah Code Ann. 76-5-410 (“A child victim of sexual abuse under the age of ten is a competent witness and shall be allowed to testify without prior qualification in any judicial proceeding. The trier of fact shall determine the weight and credibility of the testimony”); Mo.Ann.Stat. 491.060(2).
{¶ 57} Similarly, in federal courts, child victims are presumed competent to testify. Seсtion 3509(c)(2), Title 18, U.S.Code. A court may conduct a competence examination of a proposed child witness only upon submission of a written motion by a party offering proof of incompetence and compelling reasons for the examination. Section 3509(c)(3) and (4), Title 18, U.S.Code.
{¶ 58} The majority cites cases from Washington and Colorado to bolster its conclusion that a competence determination is not needed in Ohio. State v. C.J. (2003),
Changes to the competence mies are a matter for the Rules Committee
{¶ 60} The court of appeals followed Said’s mandate that “a trial court must find that a declarant under the age of ten was competent at the time she made the statement in order to admit that statement under
{¶ 61} These are good policy arguments. But
{¶ 62} I also disagree with the majority’s discussion of Westfield Ins. Co. v. Galatis,
{¶ 63} State v. Said,