State v. Johnson, No. CA-6775

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMILLIGAN; WISE; PUTMAN
Citation528 N.E.2d 567,38 Ohio App.3d 152
PartiesThe STATE of Ohio, Appellee, v. JOHNSON, Appellant. *
Decision Date09 June 1986
Docket NumberNo. CA-6775

Page 152

38 Ohio App.3d 152
528 N.E.2d 567
The STATE of Ohio, Appellee,
v.
JOHNSON, Appellant. *
No. CA-6775.
Court of Appeals of Ohio, Fifth District, Stark County.
June 9, 1986.
Syllabus by the Court

In a prosecution for parent-stepdaughter rape, R.C. 2907.02, the trial court's decision to permit the eight-year-old victim-witness to testify while sitting on the lap of her aunt will not be reversed absent a showing of an abuse of discretion. (Evid.R. 611[A].)

Robert D. Horowitz, Pros. Atty., and Paul A. Mastriacovo, Canton, for appellee.

Charles D. Hall III, Canton, for appellant.

Page 153

[528 N.E.2d 568] MILLIGAN, Judge.

The defendant-appellant was convicted of rape, R.C. 2907.02, by a Stark County common pleas court jury. The court sentenced appellant to ten to twenty-five years in the state penitentiary at Lucasville.

The appellant assigns two errors:

"Assignment of Error No. I

"The trial judge erred in admitting the testimony of an incompetent witness in violation of Wade Terrell Johnson's Sixth and Fourteenth Amendment rights under the Constitution of the United States of America and Article I, Section 10 of the Constitution of the state of Ohio.

"Assignment of Error No. II

"The trial judge erred in permitting assistance and encouragement to a minor witness in violation of Wade Terrell Johnson's Sixth and Fourteenth Amendment rights under the Constitution of the United States of America and Article I, Section 10 of the Constitution of the state of Ohio."

Appellant was convicted of rape of his seven-year-old stepdaughter on March 14, 1985.

The trial court conducted an extensive pretrial hearing on appellant's motion to suppress the child's testimony.

The court overruled the motion to suppress and found the child competent to testify.

The child, eight years old at the time of the trial, was the state's first witness. Over objection of the appellant, the child testified while sitting upon the lap of her aunt, the sister of the child's mother. (The trial court, in another pretrial hearing, granted the state's request to permit the child to testify in this manner.)

I

The gist of the first assignment of error is that permitting the child to testify from the lap of her aunt fractured the previous finding of competence and amounted to an acknowledgment by the trial court that the witness was not competent to testify in the jury trial. He argues that the child's testimony could not be "free and voluntary, nor free from coercion or encouragement by the adult aunt."

Appellant argues that the procedure denies him rights secured under the Sixth Amendment to the United States Constitution, which provides in part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him[.] * * * "

The trial court wrestled with this issue. The court concluded, inter alia:

"In this particular case in the pretrial hearing the court took note of the demeanor and the appearance of the alleged victim in this case on the witness stand and was able to form from her appearance and her demeanor what appeared to be a state of mind in which she was either frightened or embarrassed substantially and with what appeared to be a decided reluctance to speak concerning the matter at issue.

"The court is mindful of the risk which has just been enunciated by defense counsel with respect to a situation in which a child of tender years could be perhaps indirectly coerced or at least influenced by virtue of having someone with whom she is familiar with her at the time that she offers testimony * * * and in balancing these interests which rub off on the complete and total right under the Sixth Amendment right of the defendant to confront the witness in a way in which the child of tender years who is the witness is free from influence by outside sources in any way whatsoever or sources of any kind.

"In balancing these interests the court has determined in this particular case that the interests of society outweigh the concerns enunciated by the defense. * * * "

Page 154

The issue of witness competence is now governed by the Ohio Rules of Evidence, specifically Evid.R. 601:

"Every person is competent to be a witness except:

"(A) Those of unsound mind, and children under ten (10) 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 * * * [.]"

[528 N.E.2d 569] Evid.R. 601(A) is a replication of R.C. 2317.01 and applies in criminal and civil cases. See R.C. 2945.41, and Staff Note to Evid.R. 601(A).

The qualification upon competency of children under ten years of age requires a preliminary examination by the trial judge addressing both the witness' comprehension of the obligation to tell the truth and the witness' intellectual capacity of observation, recollection and communication. State v. Workman (1984), 14 Ohio App.3d 385, 14 OBR 490, 471 N.E.2d 853; State v. Lee (1983), 9 Ohio App.3d 282, 9 OBR 497, 459 N.E.2d 910.

A determination of competency by the trial judge may not be disturbed on appeal absent a clear abuse of discretion. Workman, supra.

In addition to the responsibility to determine competency of the infant-witness, the court is also invested with discretion in the mode of interrogating witnesses and presenting evidence. Evid.R. 611 (mode and order of interrogation and presentation) provides in part:

"(A) Controlled by court. The court shall exercise reasonable...

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28 practice notes
  • State v. Dye, No. 87929–0.
    • United States
    • United States State Supreme Court of Washington
    • September 26, 2013
    ...Pankraz, 382 Pa.Super. 116, 125–26, 554 A.2d 974 (1989); State v. Dompier, 94 Or.App. 258, 261, 764 P.2d 979 (1988); State v. Johnson, 38 Ohio App.3d 152, 154, 528 N.E.2d 567 (1986); Brooks v. State, 24 Md.App. 334, 342, 330 A.2d 670 (1975); Rodgers v. State, 30 Tex.App. 510, 528–29, 17 S.W......
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...S.E.2d 298, 301 (1989)(foster parent); State v. Reeves, 337 N.C. 700, 727, 448 S.E.2d 802, 816 (1994)(stepmother); State v. Johnson, 38 Ohio App.3d 152, 154, 528 N.E.2d 567, 569 (1986)(relative); State v. Dompier, 94 Or.App. 258, 261, 764 P.2d 979, 980 (1988) (foster parent); Commonwealth v......
  • People v. Adams, No. H009744
    • United States
    • California Court of Appeals
    • October 12, 1993
    ...by the trial judge was a reasonable exercise of control over the mode of the interrogation of witnesses. (State v. Johnson, supra, 528 N.E.2d 567.) As to the other factors raised by appellant, potential distraction is to be considered in determining whether the procedure violates the Confro......
  • State v. Gutierrez, CASE NO. 5-10-14
    • United States
    • United States Court of Appeals (Ohio)
    • June 27, 2011
    ...541 N.E.2d 105 (it is within court's discretion to allow state to ask leading questions of child rape victim); State v. Johnson (1986), 38 Ohio App.3d 152, 155, 528 N.E.2d 567 (listing special procedures used by various courts, such as allowing the child to sit in support person's lap while......
  • Request a trial to view additional results
28 cases
  • State v. Dye, No. 87929–0.
    • United States
    • United States State Supreme Court of Washington
    • September 26, 2013
    ...Pankraz, 382 Pa.Super. 116, 125–26, 554 A.2d 974 (1989); State v. Dompier, 94 Or.App. 258, 261, 764 P.2d 979 (1988); State v. Johnson, 38 Ohio App.3d 152, 154, 528 N.E.2d 567 (1986); Brooks v. State, 24 Md.App. 334, 342, 330 A.2d 670 (1975); Rodgers v. State, 30 Tex.App. 510, 528–29, 17 S.W......
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...S.E.2d 298, 301 (1989)(foster parent); State v. Reeves, 337 N.C. 700, 727, 448 S.E.2d 802, 816 (1994)(stepmother); State v. Johnson, 38 Ohio App.3d 152, 154, 528 N.E.2d 567, 569 (1986)(relative); State v. Dompier, 94 Or.App. 258, 261, 764 P.2d 979, 980 (1988) (foster parent); Commonwealth v......
  • People v. Adams, No. H009744
    • United States
    • California Court of Appeals
    • October 12, 1993
    ...by the trial judge was a reasonable exercise of control over the mode of the interrogation of witnesses. (State v. Johnson, supra, 528 N.E.2d 567.) As to the other factors raised by appellant, potential distraction is to be considered in determining whether the procedure violates the Confro......
  • State v. Gutierrez, CASE NO. 5-10-14
    • United States
    • United States Court of Appeals (Ohio)
    • June 27, 2011
    ...541 N.E.2d 105 (it is within court's discretion to allow state to ask leading questions of child rape victim); State v. Johnson (1986), 38 Ohio App.3d 152, 155, 528 N.E.2d 567 (listing special procedures used by various courts, such as allowing the child to sit in support person's lap while......
  • Request a trial to view additional results

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