State v. Said

Decision Date30 December 1994
Docket NumberNo. 93-1085,93-1085
Citation71 Ohio St.3d 473,644 N.E.2d 337
PartiesThe STATE of Ohio, Appellant and Cross-Appellee, v. SAID, Appellee and Cross-Appellant.
CourtOhio Supreme Court

SYLLABUS BY THE COURT

A hearing to determine the competency of a potential child witness under Evid.R. 601 must be recorded pursuant to Crim.R. 22.

This case involves the alleged sexual molestation of two young girls by their paternal grandfather, the appellee-defendant, Joseph Said. At the time of trial the older granddaughter, who is the appellee's stepgranddaughter, was fifteen years old and the younger girl was five years old.

The allegations of sexual abuse came after the older girl reported to her mother that she had witnessed her younger sister masturbating. The mother asked her younger daughter about what her older sister had said, and her daughter responded, "grandpa used to do that to [me] all the time." The mother then spoke again with the older daughter, who stated that the appellee had similarly touched her. Both the police and the Lake County Department of Human Services, Division of Children's Services, were contacted. During an interview with a sexual abuse investigator for children's services and her trainee, the younger daughter again stated that her grandfather had improperly touched her.

The appellee was indicted on seven counts of gross sexual imposition in violation of R.C. 2907.05. Six counts alleged improper conduct with the older granddaughter, and one count alleged improper conduct with the younger granddaughter.

Before trial, the court held a hearing to determine whether the five-year-old girl was competent under Evid.R. 601. The hearing was not recorded. However, it appears from a review of the trial transcript that the trial court found the five-year-old girl competent.

The five-year-old girl refused to testify at trial, even after prompting by the judge, the bailiff, the prosecutor and a licensed professional counselor involved in the police investigation. The trial court held a hearing to determine whether the five-year-old girl's statements regarding the alleged sexual abuse could be admitted pursuant to Evid.R. 807, the new hearsay exception which relates to statements of children in cases of physical or sexual abuse. After an extensive hearing, the trial court found that the requirements of Evid.R. 807 were met, and allowed her mother and the sexual-abuse investigator to testify as to statements the child made to each of them individually.

The jury found the appellee not guilty on five counts and guilty on two counts, with one count relating to each granddaughter.

The appellee appealed his conviction alleging, inter alia, that the trial court failed to comply with the requirements of Evid.R. 807. The court of appeals reversed the appellee's conviction on both counts and remanded the cause for a new trial. The court of appeals held that the licensed professional counselor could not qualify as a "trusted" person, and therefore the "not reasonably obtainable" requirement of Evid.R. 807 was not met. Additionally, the court of appeals held that the evidence the five year old masturbated did not meet the "independent proof of the sexual act" requirement of Evid.R. 807.

The state appealed the appellate court's reversal of the convictions. The defendant appealed the court of appeals' determination that the other elements of Evid.R. 807 had been met.

The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal. 67 Ohio St.3d 1512, 622 N.E.2d 659.

Steven C. LaTourette, Lake County Pros. Atty., Michael D. Murray and Ariana E. Tarighati, Asst. Pros. Attys., for appellant and cross-appellee.

Paul H. Hentemann, Willoughby, for appellee and cross-appellant.

David H. Bodiker, State Public Defender, Randy D. Ashburn and John B. Heasley, Asst. Public Defenders; and Cynthia S. Sander, Dublin, urging affirmance for amicus curiae, Office of Ohio Public Defender.

WRIGHT, Justice.

The parties and the court of appeals have focused on whether the facts of this case satisfy the particular requirements of Evid.R. 807. We do not reach those issues, because two fundamental errors preclude a proper review of the application of that rule in this case.

I

The trial court erred when it failed to record the competency hearing of the five-year-old granddaughter. Crim.R. 22 clearly provides: "In serious offense cases all proceedings shall be recorded." (Emphasis added.) Although "proceeding" is not defined under Crim.R. 22, it is generally defined as "[a]ll the steps or measures adopted in the prosecution of an action * * * [including] any act done by authority of the court of law and every step required to be taken in any cause by either party." Black's Law Dictionary (6 Ed.1990) 1204. A hearing held for the purpose of determining the competency of a potential witness surely falls within the above definition. Therefore, we hold that a hearing to determine the competency of a potential child witness under Evid.R. 601 must be recorded pursuant to Crim.R. 22. For the reasons stated below, failure to record a competency hearing of a potential child witness constitutes reversible error.

A competency hearing was required in this case. Even though the five-year-old granddaughter did not directly testify, her out-of-court statements were admitted through the testimony of her mother and a sexual-abuse investigator. As Professor Wigmore explains, hearsay statements must meet the same basic requirements for admissibility as live witness testimony: "The admission of hearsay statements, by way of exception to the rule, therefore presupposes that the asserter possessed the qualifications of a witness * * * in regard to knowledge and the like." (Emphasis sic.) (Citation omitted.) 5 Wigmore on Evidence (Chadbourn Rev.1974) 255, Section 1424. Competency is one of the few qualifications required of a witness. Evid.R. 601. See, also, State v. Boston (1989), 46 Ohio St.3d 108, 114, 545 N.E.2d 1220, 1228.

Evid.R. 601(A) provides that: "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." This rule requires that a competency hearing be conducted with regard to children under ten years of age.

A competency hearing is an indispensable tool in this and similar cases. A court cannot determine the competency of a child through consideration of the child's out-of-court statements standing alone. As we explained in State v. Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552, the essential questions of competency can be answered only through an in-person hearing: "The child's appearance, fear or composure, general demeanor and manner of answering, and any indication of coaching or instruction as to answers to be given are as significant as the words used in answering during the examination, to determine competency. * * *

"Such important and necessary observations cannot be made unless the child appears personally before the court." Id. at 532, 46 O.O. at 440, 103 N.E.2d at 556.

Evid.R. 807 clearly does not dispose of the need to find a child competent. Competency under Evid.R. 601(A) contemplates several characteristics. See State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483, 487, certiorari denied (1992), 503 U.S. 941, 112 S.Ct. 1488, 117 L.Ed.2d 629. Those characteristics can be broken down into three elements. First, the individual must have the ability to receive accurate impressions of fact. Second, the individual must be able to accurately recollect those impressions. Third, the individual must be able to relate those impressions truthfully. See, generally, 2 Wigmore on Evidence (Chadbourn Rev.1979) 712-713, Section 506.

Out-of-court statements that fall within Evid.R. 807, like the other hearsay exceptions, possess a "circumstantial probability of trustworthiness." See 5 Wigmore, supra, at 253, Section 1422. In other words, under unique circumstances we make a qualified assumption that the declarant related what she believed to be true at the time she made the statement. However, those same circumstances do not allow us to assume that the declarant accurately received and recollected the information contained in the statement. 1 Whether she accurately received and recollected that information depends upon a different set of circumstances, those covering the time from when she received the information to when she related it. As a result, even though a statement falls within a hearsay exception, two elements of the declarant's competency remain at issue and must still be established. Thus, a trial court must find that a declarant under the age of ten was competent at the time she made the statement in order to admit that statement under Evid.R. 807. See Boston, supra, 46 Ohio St.3d at 114, 545 N.E.2d at 1228; Schulte v. Schulte (1994), 71 Ohio St.3d 41, 42, 641 N.E.2d 719, 720, fn. 1.

II

The trial court also erred when it failed to make the findings required by Evid.R. 807 before admitting the five year old's statements under that rule. Evid.R. 807(C) expressly requires that a trial court "shall make the findings required by this rule on the basis of a hearing conducted outside the presence of the jury and shall make findings of fact, on the record, as to the bases for its ruling."

By its own terms, Evid.R. 807 provides what a trial court must find on the record. First, a trial court must find "that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness * * *." Evid.R. 807(A)(1). Second, a trial court must find that "[t]he child's testimony is not reasonably obtainable by the proponent of the statement." Evid.R. 807(A)(2). Third, a trial court...

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