State v. Clark

• Decision Date: 30 December 1994
• Docket Number: No. 93-2490,93-2490
• Citation: 644 N.E.2d 331,71 Ohio St.3d 466
• Parties: The STATE of Ohio, Appellant, v. CLARK, Appellee.
• Court: Ohio Supreme Court

Page 466

71 Ohio St.3d 466

644 N.E.2d 331

The STATE of Ohio, Appellant, v. CLARK, Appellee.

No. 93-2490.

Supreme Court of Ohio.

Submitted Nov. 15, 1994.

Decided Dec. 30, 1994.

SYLLABUS BY THE COURT

1. Under the plain meaning of Evid.R. 601(A), a child witness who is ten years of age or older at the time of trial, but who was under the age of ten at the time an incident in question occurred, is presumed competent to testify about the event. (Huprich v. Paul W. Varga & Sons [1965], 3 Ohio St.2d 87, 32 O.O.2d 61, 209 N.E.2d 390, overruled.)

2. A trial judge, in the exercise of his or her discretion, may choose to conduct a voir-dire examination of a child witness 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 who is ten years of age or older at the time of trial will not constitute reversible error.

On June 3, 1992, a Franklin County Grand Jury indicted appellee, Roscoe P. Clark, on one count of felonious sexual penetration in violation of R.C. 2907.12, and three counts of gross sexual imposition in violation of R.C. 2907.05. The indictment alleged that the offenses were committed between July 1 or July 4, 1985, and July 31, 1985, involving appellee's then-stepdaughter, Danyal Campbell. Upon recommendation of the prosecutor, the trial judge entered a nolle prosequi as to count one of the indictment (felonious sexual penetration). Following appellee's waiver of a trial by jury, the remaining three counts of gross sexual imposition were tried before the court beginning December 7, 1992.

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 appellee 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 appellee "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."

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 diary in which she recorded "everything."

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 she spoke with a police detective about the abuse, to whom she provided detailed information as to the events that had occurred and the locations at which they had occurred.

At no time during Danyal's testimony or any other stage of the trial did appellee challenge Danyal's competency to testify as to the events which occurred when she was nine years old.

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 one 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 River Road.

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 that 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.

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 station wagon, not a pickup truck as Danyal had stated.

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 to be served concurrently. The court of appeals reversed the judgment of the trial court, finding reversible error in the trial court's failure to conduct an examination of Danyal Campbell to determine whether she was competent to testify about events that occurred when she was nine years old.

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, 1991 WL 144313, and State v. Smith (Dec. 30, 1991), Butler App. No. CA91-06-104, unreported, 1991 WL 278241, the appellate court certified the record of the case to this court for review and final determination.

Michael Miller, Franklin County Pros. Atty., Joyce S. Anderson, Columbus, and Michael L. Collyer, Dublin, Asst. Pros. Attys., for appellant.

Judith M. Stevenson, Franklin County Public Defender, and David L. Strait, Asst. Public Defender, for appellee.

ALICE ROBIE RESNICK, Justice.

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.

Evid.R. 601 sets out the general rule of competency for all witnesses. It states:

"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. * * * " A plain reading of Evid.R. 601(A) leads to the conclusion that the competency of individuals ten years or older is presumed, while the competency of those under ten must be established. State v. Wallace (1988), 37 Ohio St.3d 87, 94, 524 N.E.2d 466, 472. "The rule favors competency, conferring it even on those who do not benefit from the presumption, such as children under ten, if they are shown to be capable of receiving 'just impressions of the facts and transactions respecting which they are examined' and capable of 'relating them truly.' " Turner v. Turner (1993), 67 Ohio St.3d 337, 343, 617 N.E.2d 1123, 1128. As a result, absent some articulable concern otherwise, an individual who is at least ten years of age is per se competent to testify.

The presumption established by Evid.R. 601(A) recedes in those cases where a witness is either of unsound mind or under the age of ten. In such cases, the burden falls on the proponent of the witness to establish that the witness exhibits certain indicia of competency. This court established a test for determining competency in State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus, certiorari denied (1992), 503 U.S. 941, 112 S.Ct. 1488, 117 L.Ed.2d 629. There, we held that in determining whether a child under ten is competent to testify, the trial court must take into consideration: the child's ability to receive accurate impressions of fact, the child's ability to recollect those impressions, the child's ability to communicate what is observed, the child's understanding of truth and falsity, and the child's appreciation of his or her responsibility to tell the truth. Once a trial judge concludes that the threshold requirements have been satisfied, a witness under the age of ten will be deemed competent to testify.

At this juncture, we note that our decision in Turner v. Turner, supra, included as dicta a discussion of the presumptions created by Evid.R. 601(A). First, we stated that the rule confers competency "even on those who do not benefit from the presumption * * *." 67 Ohio St.3d at 343, 617 N.E.2d at 1128. We then stated that in cases involving witnesses under the age of ten or of unsound mind, "the presumption is of incompetency * * * " until proven otherwise. Id. Clearly the rule cannot create two opposing presumptions. Further reflection upon and review of the plain meaning of Evid.R. 601(A) leads us to clarify our discussion in Turner by stating that a witness...