State v. Duncan

• Decision Date: 15 March 1978
• Docket Number: No. 77-230,77-230
• Citation: 53 Ohio St.2d 215,7 O.O.3d 380,373 N.E.2d 1234
• Parties: , 7 O.O.3d 380 The STATE of Ohio, Appellant, v. DUNCAN, Appellee.
• Court: Ohio Supreme Court

Page 215

53 Ohio St.2d 215

373 N.E.2d 1234, 7 O.O.3d 380

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

No. 77-230.

Supreme Court of Ohio.

March 15, 1978.

Syllabus by the Court

1. Testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declarations spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration. (Paragraph two of the syllabus in Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140, approved and followed.)

2. Where a six year old child, still under the domination and nervous excitement of an abusive sex act, related the particulars of that act to her mother at the earliest opportunity, the mother's repetition of such utterances at trial was testimony as to a spontaneous exclamation, and was admissible in evidence as an exception to the hearsay rule.

On Saturday, March 8, 1975, at approximately 10:30 P. M., Leroy Duncan, appellee herein, was arrested in his home while watching television. The complaint, signed by his wife, Virginia Duncan, charged appellee with having had sexual contact with his six-year-old step-daughter earlier that day. After a timely preliminary hearing Duncan was bound over to the Court of Common Pleas and, on March 25, 1975, he was indicted on one count of gross sexual imposition, in violation of R.C. 2907.05. At his arraignment appellee entered a plea of not guilty, and counsel was assigned. Discovery proceedings were promptly commenced by both sides, and a copy of the testimony at the preliminary hearing (at which the victim testified) was furnished to the appellee.

The case was called for trial on May 15, 1975. Prior to the impanelling of the jury a voir dire examination was conducted to determine the testimonial competency of the victim, who was by then seven years old. She was thoroughly questioned by counsel for the state and the defense and by the trial court, and declared to be competent to testify. A jury trial was conducted, and on May 20, 1975, a guilty verdict was returned. At this time appellee was referred for a psychiatric examination. After his motion for a new trial was denied appellee was determined to be ineligible for commitment under the Ascherman Act, and on September 9, 1975, he was sentenced to a term of incarceration in the Ohio State Reformatory.

Notice of appeal was filed, and the Court of Appeals, on January 6, 1977, reversed the conviction and remanded the cause for further proceedings.

The cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Michael J. Corrigan, Cleveland, for appellant.

John W. Martin, Cleveland, for appellee.

CELEBREZZE, Justice.

Appellant contends that the Court of Appeals erred in holding that certain statements made by the victim to her mother, concerning the sexual conduct of the appellee, were inadmissible because they lacked the essential attributes of spontaneity.

The record discloses that near the hour of 11:00 A. M., on Saturday, March 8, 1975, the victim was at home in her bedroom, watching television, while her infant sister slept in a crib nearby. The girl's stepfather, appellee herein, was absent from the home when the victim's mother went out to a laundromat. Shortly thereafter, according to the victim, "Leroy snuck back." He told her to take off her pants and said "Let's have some sex." He then proceeded to stick a pen in her rectum and his finger in her "private." The victim also stated that "The Ding-a-ling was out" an apparent reference to the appellee's reproductive organ. After threatening the lives of the whole family appellee left the home; the victim then put her clothes back on, turned on the television, and hid in her mother's closet.

During this time, Mrs. Duncan had been attempting to gain access to the crowded corner laundromat. Being unsuccessful, she then returned home. Hearing that the television set was on upstairs, she called to her daughter, whose only response was "O. K. Everything's O. K." Mrs. Duncan then went to the building, near her own, which contained a washroom, where she was finally able to load her laundry into several washers. She made several trips between the washroom and her house, and, at approximately 1:00 P. M., returned to her house with some dry clothes. Hearing a noise upstairs, she immediately ascended the stairs and checked on the baby, who was asleep. It was at this time that the victim was observed emerging from Mrs. Duncan's closet. The victim's body was shaking like "an epileptic seizure" according to the testimony of the mother. Fearing the child had been into her cosmetics Mrs. Duncan grabbed her, whereupon the victim said, "No, mommy, no. Leroy been picking with me." Upon inquiry the victim described the alleged incident.

Appellant's counsel maintained at trial that although the statement of the victim to her mother was hearsay testimony when repeated by the mother, it should be allowed in evidence because it was part of the res gestae. Appellee strenuously objected to its admission, stating that Mrs. Duncan's testimony concerning the child's utterances was clearly hearsay. Appellee contends that too much time had elapsed between the incident and the exclamations for them to be considered spontaneous.

It should be pointed out that at trial, prior to the testimony of Mrs. Duncan, the victim vividly described the alleged incident. There was also testimony from the physician who had examined the victim on the afternoon of March 8, 1975, that she had observed inflammation in the vaginal area. The doctor testified further that when she attempted to examine the pelvic area of the victim the child became so hysterical that it was necessary to administer two sedatives.

In its opinion the appellate court below discussed the case of Hill v. Skinner (1947), 81 Ohio.App. 375, 79 N.E.2d 787. We note that while the court in the Hill case did find that testimony relating an injured boy's answer to his mother's questions was inadmissible, because of lack of spontaneity and intervening circumstances, it did not find such testimony to be prejudicial error. Further, the facts in the Hill case are easily distinguishable from the instant case. In the Hill case the young boy was calm and in the process of being bathed by his mother when certain statements were made. The victim in the instant case was alone, hiding in a closet, when her mother found her and the disputed exclamations occurred. Thus, although the time element is similar in the two cases, the emotional states of the declarants are so widely disparate as to obviate further analysis.

The reviewing court below also cited the case of Potter v. Baker (1955), 162 Ohio St. 488, 124 N.E.2d 140, wherein this court set forth certain standards for the admission of spontaneous exclamations under the res gestae exception to the hearsay rule. This court,...