State v. Street

Decision Date16 July 1997
Docket NumberNo. 96CA006459,96CA006459
Citation122 Ohio App.3d 79,701 N.E.2d 50
PartiesThe STATE of Ohio, Appellant, v. STREET, Appellee.
CourtOhio Court of Appeals

D. Chris Cook, Lorain County Assistant Prosecuting Attorney, Elyria, for appellant.

Kenneth Lieux, Elyria, for appellee.


The state appeals from the judgment of the Lorain County Court of Common Pleas excluding the testimony of the alleged victim in this case due to incompetency. We affirm.

In August 1995, defendant-appellee Donald Street was indicted by the Lorain County Grand Jury on two counts of felonious sexual penetration. These acts were allegedly committed against Street's minor son, Kevin. In May 1996, the trial court conducted a competency hearing to determine if Kevin was qualified to testify as a witness against his father. Kevin was four years old at the time of this hearing, and the lower court found him incompetent. Having so found, the court further ruled inadmissible under Evid.R. 807 the testimony of other witnesses regarding statements Kevin had made to them.

Following this determination by the lower court, the state moved in limine to admit the statements Kevin had made as excited utterances. The court granted this motion in part, allowing Kevin's mother and grandfather each to testify as to one incident. The state brought this appeal under Crim.R. 12(J), raising three assignments of error.

"I. The trial court erred and abused its discretion in ruling that Kevin Street was incompetent to testify as a witness."

Under Evid.R. 601(A), a child under the age of ten is not automatically considered a competent witness to testify at trial. The court must make a specific finding as to the individual capabilities of the child involved. This determination can only be made through an in-person competency hearing. State v. Said (1994), 71 Ohio St.3d 473, 476, 644 N.E.2d 337. When making this determination, the trial court must take into consideration the following:

"(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful." State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus.

A determination of competency is within the sound discretion of the trial court. Id. at 251, 574 N.E.2d at 486-487. A trial judge is far better situated than a reviewing court to gauge the competency of a child witness under the age of ten, State v. Holt (1969), 17 Ohio St.2d 81, 83, 246 N.E.2d 365, 366-367, and for that reason, the lower court's finding as to competency will not be disturbed absent an abuse of discretion. State v. Gott (Dec. 22, 1993), Lorain App. No. 93CA005560, unreported, 1993 WL 539595.

It is the last factor cited by Frazier above, the ability to appreciate the responsibility to be truthful, that primarily led the trial judge in this case to determine that Kevin was not a competent witness. Following are sample excerpts from the competency hearing:

"Q. * * * Do you think--that what do you think might happen if you didn't tell the truth?

"A. I don't know.

"Q. Do you think something good or something bad would happen if you didn't tell the truth?

"A. I don't know.

"Q. Did you talk to--well, Kevin, what do you think would happen to you at home if you told a lie and your mommy found out?

"A. I don't know.

"Q. Okay. Well, do you think your mommy would be happy that you lied or would she be mad that you lied?

"A. I don't know.

"Q. What?

"A. I don't know.

"Q. Do you think that if you lied at home that something good would happen because you lied, or something bad would happen to you because you lied?

"A. I don't know."

Later in the transcript, the child further testified:

"Q. * * * Do you think something good would happen to you if you lied to me today?

"A. No.

"Q. Do you think something bad would happen to you if you lied to me today?

"A. No.

"* * *

"Q. What do you think would happen to you if you fibbed, if you lied to Miss Denise?

"A. Nothing. Nothing would happen."

Following his personal interview with Kevin, the court stated:

"[T]he Court has not heard anything from Kevin which indicates to me that he has any appreciation for his responsibility to be truthful. That is, that there are any consequences for not being truthful.

"He certainly, during the initial examination of him, did not answer in a way that I felt revealed his appreciation for the need to be truthful. * * *

"* * *

"As a result thereof, the Court finds that Kevin Street is not competent to testify pursuant to Evidence Rule 601."

The state argues that the court abused its discretion in the above decision. It points out that there were some basic facts which Kevin did recollect correctly and that at several points he did indicate an understanding that lying was bad. The state further appears to contend that the questions Kevin did not answer correctly were due, at least in part, to the court asking questions that were too advanced for him. In light of the above testimony and the lower court's superior vantage point, we cannot agree. We are unable to conclude that the lower court abused its discretion in finding this child incompetent to testify. The state's first assignment of error is overruled.

"II. The trial court erred in ruling that admissibility of the child/victim's out-of-court statements was prohibited under the unavailability requirement of Evidence Rule 807(A)(2)."

Evid.R. 807 is a hearsay exception geared specifically toward situations such as this, where a child under twelve has allegedly been sexually or physically abused. The rule would allow certain out-of-court statements by the child to be admitted through the testimony of others when all of the following apply: (1) the totality of the circumstances surrounding the child's statements provides particularized guarantees of trustworthiness, (2) the child's testimony is not reasonably obtainable, (3) there is independent proof of the alleged act, and (4) proper notice is given that such testimony will be used. Evid.R. 807(A)(1)-(4). Evid.R. 807(B) goes on to specify the exclusive list of circumstances that will render a child's testimony "not reasonably obtainable."

The court in this case determined that Kevin's out-of-court statements could not qualify as hearsay exceptions under Evid.R. 807. Specifically, the court found that because Kevin was incompetent, his statements could provide no particularized guarantee of trustworthiness as required by Rule 807(A)(1). Also, because a child's incompetency is not specifically mentioned under Evid.R. 807(B) as reason to find that child's testimony "not reasonably obtainable," the court further found that Kevin's statements could not qualify as "not reasonably obtainable" under Rule 807(A)(2).

The state argues that both of these findings were in error. It contends that merely finding a child incompetent does not preclude the totality of the circumstances from indicating that, at the time a statement was made, it was trustworthy. The state also argues that when a child is prevented from testifying due to incompetency, certainly that child's testimony becomes "not reasonably obtainable."

There is logic to the state's arguments and, in fact, there has been some disagreement among Ohio appellate courts. See, e.g., State v. Cardosi (1997), 122 Ohio App.3d 70, 701 N.E.2d 44 (Second District Court of Appeals held that incompetence rendered testimony unavailable), State v. Rogers (Dec. 9, 1993), Cuyahoga App. No. 63979, unreported, 1993 WL 515635 (Eighth District Court of Appeals held that an unavailable witness included an incompetent one), State v. Black (1993), 87 Ohio App.3d 724, 728, 622 N.E.2d 1166 (Fourth District Court of Appeals held that incompetency was not a basis for finding testimony unobtainable), State v. Celestino (Mar. 19, 1993), Sandusky App. No. S-91-50, unreported, 1993 WL 77002 (Sixth District Court of Appeals held that incompetency did not mean testimony was unavailable). We believe, however, that the Ohio Supreme Court has provided closure in this area.

In State v. Said (1994), 71 Ohio St.3d 473, 644 N.E.2d 337, the Ohio Supreme Court determined that before a statement can be admitted as a hearsay exception, it "must meet the same basic requirements for admissibility as live witness testimony." Id. at 475, 644 N.E.2d at 340. Under Evid.R. 601, live witness testimony may only be admitted only if the witness is competent. The court concluded, "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." Id. at 477, 644 N.E.2d at 341.

In this case, the lower court found Kevin incompetent to testify as a witness. The judge was not specific in finding Kevin incompetent at the time he made the statements in question. While the better practice is for the judge to clearly relate the incompetency to the time the statements were made, we find it a harmless omission in this limited circumstance. At the time of the hearing, Kevin was only four years old. The incompetency the judge noted was directly related to Kevin's minority, primarily his inability to understand the consequences of telling lies. We find it unreasonable to presume that Kevin might have been more competent at an earlier age, such as when the statements in question were made.

Because the court found Kevin's tender age to render him incompetent, Said mandates the further conclusion that any earlier statements he made were inadmissible under Evid.R. 807. The state's second assignment of error is overruled.

III. The trial court erred in denying the state's motion in limine and...

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