State v. Morgan
| Citation | 31 OBR 241,31 Ohio App.3d 152,509 N.E.2d 428 |
| Decision Date | 10 December 1986 |
| Docket Number | No. C-850795,C-850795 |
| Parties | , 31 O.B.R. 241 The STATE of Ohio, Appellee, v. MORGAN, Appellant. |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
When on the record there appear indicia of a child's ability to receive just impressions of facts, to relate facts truthfully, and to understand the consequences of telling falsehoods, no prejudicial error exists where the child is permitted to testify without qualification by the trial court and without objection by opposing counsel.
Arthur M. Ney, Jr., Pros. Atty., Paul R. Markgraf and Robert P. Ruehlman, Cincinnati, for appellee.
Peter Rosenwald, Cincinnati, for appellant.
On April 4, 1985, the Grand Jury of Hamilton County, Ohio, indicted the defendant-appellant, Donie R. Morgan ("appellant"), with four counts of rape. The alleged victim was the appellant's seven-year-old daughter, Crystal Morgan. 1 The appellant entered a plea of not guilty to those charges and, commencing on October 1, 1985, a jury tried the cause in the court below.
On October 3, 1985, the jury returned verdicts of not guilty of rape but guilty of sexual battery as to counts one, two, and three of the indictment. The jury acquitted the appellant of the charges contained in the fourth count. The trial court entered judgment accordingly on October 16, 1985, and the appellant was sentenced as it appears of record. 2
The alleged victim, Crystal Morgan ("Crystal"), testified at trial that because her parents were separated she, her brother, and sister would visit with the appellant at his residence. She further testified that the last visit occurred over the weekend of March 9-10, 1985. 3 She maintained that on this occasion the appellant committed certain acts upon her that we discern to constitute sexual conduct. 4
The state also offered inter alia evidence from a physician who examined the child after she had reported the appellant's conduct to her mother. The doctor testified that she examined Crystal on March 11, 1985. She observed during the examination that the child was upset. The physician noted from her physical examination of the child that Crystal's mons veneris was reddish in color. Additionally, though the child's hymen was intact, the introitus was larger than normal for a child of Crystal's age.
The appellant denied Crystal's allegations. His girlfriend, Kathy Baker, and his nephew, Steven Chestnut, each of whom testified that they were at appellant's residence during the time that the events sub judice occurred, corroborated appellant's position.
From the judgment and sentence of the court below, the appellant brings this timely appeal in which he asserts two assignments of error. For his first assignment of error, the appellant maintains that the trial court committed prejudicial error by failing to voir dire Crystal Morgan concerning her competence to testify. For the reasons that follow, we overrule the first assignment of error.
Evid.R. 601(A) provides:
The Ohio Supreme Court interpreted this rule 5 as meaning that children under age ten are presumptively incompetent to testify. 6 State v. Wilson (1952), 156 Ohio St. 525, 529-530, 46 O.O. 437, 439, 103 N.E.2d 552, 555; see, also, State v. Lee (1983), 9 Ohio App.3d 282, 9 OBR 497, 459 N.E.2d 910. The presumption is rebuttable. Proper judicial procedure requires the trial judge to conduct a voir dire examination of a child under age ten to determine the child's competence to testify. Wilson, supra, 156 Ohio St. at 529, 46 O.O. at 439, 103 N.E.2d at 555. The trial judge has a duty to conduct the examination when the child is presented to the court and the fact is revealed that the child has not reached age ten. Wilson, supra, at 529, 46 O.O. at 439, 103 N.E.2d at 555. If the court determines that the child is competent, the child is then permitted to testify.
The appellant correctly notes that the trial court did not conduct the requisite voir dire examination before allowing Crystal to testify. The court's failure to do so is error. Wilson, supra, at 532-533, 46 O.O. at 440, 103 N.E.2d at 556-557. However, in the case at bar, defense counsel did not object to Crystal's testifying without qualification. It is well-settled that an appellate court need not consider an error to which the complaining party, at a time when such error could have been corrected or avoided, did not direct the trial court's attention. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156; Crim.R. 52(A). The instant inquiry is whether the failure of the trial court to voir dire Crystal Morgan to determine her competence to testify rises to the level of plain error. 7 Crim.R. 52(B).
The issue of a witness' competence to testify may be likened to other issues of admissibility. See, generally, Evid.R. 104(A). The threshold of admissibility is low, reflecting a policy of favoring the admission of relevant evidence for the trier of fact to weigh as opposed to preliminary admissibility determinations which prevent relevant evidence from reaching the trier of fact at all. 8 See Evid.R. 402. In the same fashion, a child witness' competence to testify is measured by the standard of whether the child is able to receive just impressions of facts and to relate these impressions truly. Evid.R. 601(A). If the child meets that minimal standard, the testimony of the child is received into evidence for the trier of fact to weigh. 9
A voir dire examination should consist of questions designed to elicit from the child answers which the court can use to test competence. 10 From the case law it is clear that a child should demonstrate the ability to distinguish truth from falsehood. The child should also be able to reasonably identify the consequences of giving false testimony. See, e.g., State v. Workman (1984), 14 Ohio App.3d 385, 388-389, 14 OBR 490, 494, 471 N.E.2d 853, 859; Lee, supra, 9 Ohio App.3d at 283, 9 OBR at 498, 459 N.E.2d at 911; Lewis, supra, fn. 10 4 Ohio App.3d at 277, 4 OBR at 496, 448 N.E.2d at 489; Crouch v. Fishbein (1919), 29 Ohio C.C. (N.S.) 573, 576, 35 Ohio C.D. 607, 610; accord Staton v. State (Ind.1981), 428 N.E.2d 1203; State v. Brewer (Me.1974), 325 A.2d 26; Williams v. State (1971), 11 Md.App. 350, 274 A.2d 403. These considerations form the basis for a competence determination with respect to a child of tender years.
Diligent research by this court revealed a paucity of cases in which a child of tender years, called to the stand, gives testimony without voir dire by the trial court or challenge from defense counsel. However, in those few cases, courts indicate that, whether because of waiver or harmless error, appellants may not later complain that a court improperly permitted a child of tender years to testify when the appellants did not object. 11 A trial judge is in a far better position than an appellate court to determine a child's capacity for truth-telling. The judge can observe the child's demeanor, composure, and behavior. Wilson, supra, 156 Ohio St. at 532, 46 O.O. at 440, 103 N.E.2d at 556; Barnett v. State (1922), 104 Ohio St. 298, 135 N.E. 647; Workman, supra, 14 Ohio App.3d at 388, 14 OBR at 494, 471 N.E.2d at 859; Lewis, supra, fn. 10, 4 Ohio App.3d at 277, 4 OBR at 496, 448 N.E.2d at 490; State v. Nicholson (Nov. 24, 1982), Hamilton App. No. C-810933, unreported; 44 Ohio Jurisprudence 3d (1983) 122, Evidence and Witnesses, Section 773. An appellate court may review the record to decide whether a witness was competent if the trial court did not determine the question. See Berea v. Petcher (1963), 119 Ohio App. 165, 168, 26 O.O.2d 383, 385, 188 N.E.2d 605, 607; Crouch, supra, 29 Ohio C.C. (N.S.) at 576, 35 Ohio C.D. at 610.
We now apply the principles discussed above to the facts of the case at bar. The prosecutor called Crystal to the stand. He asked her these questions:
The prosecutor then began to advance the state's case-in-chief. Defense counsel did not object.
Upon cross-examining Crystal, defense counsel asked her questions which also developed indicia of her ability to tell the truth.
Satisfied with her answers to his questions, defense counsel proceeded with the cross-examination.
The questions asked by both the prosecutor and defense counsel are precisely the kind of questions that a trial judge would ask during a...
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