City of Akron v. Deem

Decision Date10 November 1999
Docket NumberNo. 19546.,19546.
Citation135 Ohio App.3d 523,734 NE 2d 877
PartiesThe CITY OF AKRON, Appellant, v. DEEM, Appellee.
CourtOhio Court of Appeals

Max Rothal, Director of Law, Douglas J. Powley, Chief City Prosecutor, and Gerald K. Larson, Assistant City Prosecutor, for appellant.

Gary McCleese, for appellee.

SLABY, Judge.

Appellant, the city of Akron, appeals an order of the Akron Municipal Court that excluded testimony of a minor based on the conclusion that the minor was incompetent to testify. We affirm.

The appellee, Harold A. Deem II, was charged with endangering children after a social worker reported injuries to the appellee's four-year-old son Anthony (Tony) to the police. On January 7, 1999, the appellee moved in limine to exclude all testimony and statements by the victim. The trial court conducted a hearing on January 12, 1999, to determine Tony's competency as a witness. Tony refused to answer the court's questions at the hearing, and the court ruled that he was not competent to testify. On February 9, 1999, the city moved the trial court to reconsider its oral ruling and served notice pursuant to Evid.R. 807(A)(4) of its intention to present testimony with respect to out-of-court statements made by Tony. A second hearing was conducted to determine whether Tony was unavailable as a witness within the meaning of Evid.R. 807. On February 24, 1999, the trial court concluded that the city had not demonstrated the trustworthiness of the statements at issue and that Anthony was not competent to testify at the time the statements were made. The trial court, therefore, denied the city's motion for reconsideration and excluded the hearsay statements proffered by the city. The city timely appealed, pursuant to Crim.R. 12(J) and R.C. 2945.67(A), and has raised two assignments of error for review.

ASSIGNMENT OF ERROR I

"The trial court erred in finding that the child/declarant was incompetent."

The city has argued in its first assignment of error that the trial court abused its discretion in concluding that Anthony was incompetent to testify within the meaning of Evid.R. 601(A).

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," are exceptions to the general rule that every person is considered competent to testify as a witness in Ohio. Evid.R. 601(A). The court must conduct a voir dire examination of a child under ten years of age in order to determine whether the child is competent to testify. State v. Frazier (1991), 61 Ohio St.3d 247, 250-51, 574 N.E.2d 483, 486-487. 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." Id. at syllabus.

Because the trial court is in a superior position to observe the child's appearance, demeanor, manner of response, and ability to testify accurately and truthfully, its determination will not be reversed absent an abuse of discretion. State v. McNeill (1998), 83 Ohio St.3d 438, 442, 700 N.E.2d 596, 603,.

In this case, the trial court attempted to assess Tony's competency, but abandoned questioning when he proved unresponsive. Under these circumstances, we cannot say that the court's decision was tainted by passion, bias, or perversity of will. See State v. Aldridge (1997), 120 Ohio App.3d 122, 140, 697 N.E.2d 228, 239-240. The determination that Anthony was not competent to testify, therefore, does not reflect an abuse of discretion. The city's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

"The trial court, based on its finding of incompetency, erred by prohibiting the city to admit into evidence out-of-court statements made by a child, which complied with the requirements under Evid.R. 807."

After the trial court ruled that Tony was incompetent to testify, the city gave notice of its intention to call Sergeant Jerry William Hughes to testify with respect to statements made by Tony identifying the appellee as his assailant. The city has argued that the trial court erred by excluding this testimony based on its previous finding that Tony was incompetent as a witness.

Although hearsay statements are generally inadmissible, see Evid.R. 802, an out-of-court statement by a child-declarant under twelve years of age describing any act of physical violence directed toward the declarant may be admitted pursuant to Evid.R. 807. The prosecution must provide notice of the intent to use the out-of-court statement and must establish (1) that the totality of the circumstances indicates "that the child was particularly likely to be telling the truth when the statement was made and that the test of cross-examination would add little to the reliability of the statement"; (2) that in-court testimony by the child cannot be reasonably obtained; and (3) that there is independent proof of the allegations of violence. Evid.R. 807(A). In addition, the...

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7 cases
  • State v. Rice, 2005 Ohio 3393 (OH 6/28/2005)
    • United States
    • Ohio Supreme Court
    • 28 Junio 2005
    ...child statements in abuse cases. {¶ 10} The Ninth District Court of Appeals affirmed this principle in Akron v. Deem (1999) 135 Ohio App.3d 523, 526, 734 N.E.2d 877, and stated the corollary: "a finding of incompetence mandates the exclusion of out-of-court statements offered under Evid.R. ......
  • State v. Sean P. Ashford
    • United States
    • Ohio Court of Appeals
    • 16 Febrero 2001
    ... ... exclusion of the out-of-court statements offered under ... Evid.R. 807. Akron v. Deem (1999), 135 Ohio App.3d ... 523, 526; State v. Street (1997), 122 Ohio App.3d ... ...
  • State v. Parks, 2007 Ohio 3145 (Ohio App. 6/20/2007), : 04 CO 19.
    • United States
    • Ohio Court of Appeals
    • 20 Junio 2007
    ...dire examination of a child less than ten years of age in order to determine whether the child is competent to testify. Akron v. Deem (1999), 135 Ohio App.3d 523, 525; State v. Said (1994), 71 Ohio St.3d 473, 476, 644 N.E.2d {¶48} "In determining whether a child under ten is competent to te......
  • State v. Jameeca Mittman
    • United States
    • Ohio Court of Appeals
    • 12 Diciembre 2002
    ...71 Ohio St.3d 473. If a trial court finds incompetence, the out-of-court statement must be excluded under Evid.R. 807. Akron v. Deem (1999), 135 Ohio App.3d 523; v. Street (1997), 122 Ohio App.3d 79. This determination is a separate determination from the Evid.R. 807 determinations. State v......
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