State v. Lee

• Citation: 9 Ohio App.3d 282,9 OBR 497,459 N.E.2d 910
• Parties: , 9 O.B.R. 497 The STATE of Ohio, Appellee, v. LEE, Appellant.
• Decision Date: 20 April 1983
• Court: United States Court of Appeals (Ohio)

Page 282

9 Ohio App.3d 282

459 N.E.2d 910, 9 O.B.R. 497

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

Court of Appeals of Ohio, Ninth District, Summit County.

April 20, 1983.

Syllabus by the Court

1. The competency of a child under ten years of age to testify as a witness is governed by (a) her intellectual capacity to recount the events accurately, and (b) her comprehension of the obligation to tell the truth. (Hill v. Skinner, 81 Ohio App. 375, 79 N.E.2d 787 , paragraph one of the syllabus, followed.)

2. In a trial involving a charge of rape, the court does not abuse its discretion in permitting a five year old witness to use models (dolls) to illustrate her testimony.

Lynn Slaby, Pros. Atty., for appellee.

Michael C. Conway, Akron, for appellant.

GEORGE, Judge.

The appellant, Cornelius Lee, a.k.a. Cross, a.k.a. La Cross, was convicted of two counts of rape in violation of R.C. 2907.02. This court affirms.

The appellant alleges the victim was incompetent to render testimony.

"I. The trial court erred in overruling defendant-appellant's objection to the competency of a five (5) year old witness to testify in violation of the Sixth and Fourteenth Amendments to the United States Constitution."

The victim of the rape was a five year old girl. Persons under the age of ten are rebuttably presumed to be incompetent to testify. R.C. 2317.01. This court in Hill v. Skinner (1947), 81 Ohio App. 375, 377, 79 N.E.2d 787 [37 O.O. 213], set forth the test to be used in determining the competency of a witness under the age of ten:

"The essential test of the competency of an infant witness is his comprehension of the obligation to tell the truth and his intellectual capacity of observation, recollection and communication. The nature of his conception of the obligation to tell the truth is of little importance if he shows that he will fulfill the obligation to speak truthfully as a duty which he owes a Diety or something held in reverence or regard, and if he has the intellectual capacity to communicate his observations and experiences."

The test for determining competency which the trial court must apply is twofold. The court, in its hearing, must determine: first, that the witness has the intellectual capacity to recount the events accurately, and; second, that the witness understands the necessity of telling the truth. Evid.R. 601(A).

The appellant attacks the competency of the witness on several grounds. The appellant asserts the child had an inadequate perception of time to accurately recount the activities. The record indicates that the child placed events which happened in the past in terms of "yesterday." The child's inability to accurately assign a date to past events does not hinder her ability to competently render testimony. The date of the offense, material to a conviction, was testified to by other witnesses.

The appellant also asserts that the victim did not fully appreciate the need to tell the truth. The record shows the witness could not define oath nor did she know who told her about God. The fact that this five year old could not define "oath" is not dispositive of the question of the witness' competency. Further, being unable to remember the source of her knowledge about God does not render her testimony incompetent.

The record indicates that the trial court extensively questioned the witness in determining her competency. The information which was elicited from the witness supports the trial court's finding that the witness was competent to testify.

The determination of competency is within the sole discretion of the trial court. Hill v. Skinner, supra. State v. Rossi (Nov. 18, 1981), Summit App. No. 10124, unreported. Absent a showing of an abuse of discretion by the trial court, this court will not disturb its ruling. This court finds no abuse of discretion on the part of the trial court in permitting the witness to testify.

"II. The trial court erred in overruling defendant-appellant's objections to an improper courtroom demonstration, thereby denying defendant-appellant a fair and impartial trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution."

The record indicates that the appellee used two dolls with anatomical details to assist the victim in describing the action of the appellant. The appellant asserts that the dolls lacked anatomical accuracy which resulted in prejudice to the appellant. The trial court found that the dolls were adequately representative for purposes of the demonstration.

" * * * The rule is that the court has wide discretion in determining whether or not a jury shall be permitted to observe an exhibition of mechanical devices or experiments." Simes v. Dayton-Xenia Ry. Co. (1937), 24 Ohio Law Abs. 595, 598, 36 N.E.2d 517.

The trial court found that the young witness was aided by the models she used. The record indicates that the witness was unable to relate to the jury the events using the appropriate sexual or physiological terminology. The dolls were used to clarify the witness' explanation and to insure a common understanding between the witness and jury as to the events which took place.

The trial court did not abuse its discretion in permitting the witness to use the dolls to illustrate her testimony. The second assignment of error is overruled.

"III. The trial court erred in overruling defendant-appellant's motion to exclude the expert testimony of the state's medical doctor in violation of the Sixth and Fourteenth Amendments to the United States Constitution."

The appellant objects to the admission of the statements of the state's medical expert because the responses and opinions rendered...