State v. Clark - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO

**** SUBJECT TO FURTHER EDITING ****

The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State of Ohio, Appellant, v. Clark, Appellee.
[Cite as State v. Clark (1994), Ohio St.3d .]
Witnesses -- Competency of child witness -- Evid.R. 601(A),
applied.
1. Under the plain meaning of Evid. R. 601(A), a child witness
ho is ten years of age or older at the time of trial, but
who was under the age of ten at the time an incident in
question occurred, is presumed competent to testify about
the event. (Huprich v. Paul W. Varga & Sons [1965], 3
Ohio St.2d 87, 3 O.O.2d 61, 209 N.E.2d 390, overruled.)
2. A trial judge, in the exercise of his or her discretion,
may choose to conduct a voir dire examination of
a child witness who is ten years of age or older if the
judge has reason to question the child's competency. The
decision not to voir dire a child witness under such
circumstances will be viewed under an abuse-of-discretion
standard. In such circumstances, absent a compelling
reason to act otherwise, the failure to conduct a
voir-dire examination of a child witness who is ten years
of age or older at the time of trial will not constitute
reversible error.
(No. 93-2490 -- Submitted November 15, 1994 -- Decided
December 30, 1994.)
Certified by the Court of Appeals for Franklin County, No.
93AP-193.
On June 3, 1992, a Franklin County Grand Jury indicted
appellee, Roscoe P. Clark, on one count of felonious sexual
penetration in violation of R.C. 2907.12, and three counts of
gross sexual imposition in violation of R.C. 2907.05. The
indictment alleged that the offenses were committed between
July 1 or July 4, 1985, and July 31, 1985, involving appellee's
then-stepdaughter, Danyal Campbell. Upon recommendation of the
prosecutor, the trial judge entered a nolle prosequi as to
count one of the indictment (felonious sexual penetration).
Following appellee's waiver of a trial by jury, the remaining

three counts of gross sexual imposition were tried before the
court beginning December 7, 1992.
During trial, the state's primary witness was the victim,
Danyal, who was sixteen at the time of trial. Danyal testified
that in 1985, at the age of nine, she resided with her mother
and appellee in Columbus, Ohio. Danyal testified that on
various occasions during the period of July 4, 1985 to August
1, 1985, she accompanied appellee in his pickup truck to
perform various errands, such as picking up iron and aluminum
scrap to deliver to junkyards. She stated that while on these
errands, appellee drove to Eastland Square where he picked up
aluminum from a large dumpster located in a parking lot. On
three or four of those occasions, Danyal asserted appellee
"would pull over beside the dumpster where there would be no
people, and he took his hand down my shirt and from my shirt
down to my shorts *** [a]nd then he would touch my vaginal
areas."
Danyal further testified that on several occasions
appellee drove her to a location near the Olentangy River where
"[h]e would do like the same thing, but at Olentangy, he
wouldn't go down to my pants. He would just stay like on my
chest areas." She claimed that she did not tell anyone about
these events because appellee "told me my mom already knew and
she would just get mad at me for telling her. *** I was scared.
*** He told me that if I told, that he would get me in a lot of
trouble and get me put in DH, which is a [juvenile detention]
center." During this period, Danyal said she maintained a
diary in which she recorded "everything."
Danyal testified that in the summer of 1991, she ran away
from home with one of her friends. She claimed that when she
returned home two days later, her friend's mother informed
Danyal that she had found Danyal's diary and had read the
contents. As a result, Danyal stated she burned the diary.
Danyal also indicated that at some point her own mother learned
of the incidents involving appellee and that she suggested that
Danyal seek counseling. Thereafter, Danyal testified that she
spoke with a police detective about the abuse to whom she
provided detailed information as to the events that had
occurred, and the locations at which they had occurred.
At no time during Danyal's testimony or any other stage of
the trial did appellee challenge Danyal's competency to testify
as to the events which occurred when she was nine years old.
Detective A.J. Bessell, an investigator for the Child
Abuse Unit of the Columbus Police Department, also testified on
behalf of the state. He related that in February 1992, he met
with Danyal concerning her allegations of sexual abuse. During
one of their meetings, Detective Bessell stated that Danyal
prepared a written description of the events and locations
about which she had spoken. He further stated that afterwards,
he drove Danyal to the locations she identified as the places
where the abuse occurred, namely, the rear of Eastland Square
Mall and the rear of 1117 Olentangy River Road.
Upon completion of the state's case-in-chief, John
Hamilton, an assistant director of Big Brothers/Big Sisters,
testified on behalf of appellee. Hamilton stated that his
organization conducts a summer camp in Hocking County, Camp
Oty' Okwa. He identified and described several camp records

which indicated that Danyal had attended the camp's session
from June 30, 1985, through July 13, 1985. He also testified
that it would be highly irregular for a child to leave the camp
prior to the end of a session.
Appellee testified on his own behalf. He denied ever
taking Danyal to Eastland Square or Olentangy River Road. He
denied having engaged in any sexual conduct with his
then-stepdaughter. Appellee also claimed that in 1985, he
owned a Ford station wagon, not a pickup truck as Danyal had
stated.
On January 19, 1993, the trial judge issued an entry in
which he found appellee guilty of each of the three counts of
gross sexual imposition. The court imposed a determinate
sentence of two years as to each count, with all three counts
to be served concurrently. The court of appeals reversed the
judgment of the trial court finding reversible error in the
trial court's failure to conduct an examination of Danyal
Campbell to determine whether she was competent to testify
about events that occurred when she was nine years old.
Finding its decision to be in conflict with the decisions
of the Twelfth District Court of Appeals in State v. Self.
(July 29, 1991), Clermont App. No. CA-90-10-099, unreported,
and State v. Smith (Dec. 30, 1991), Butler App. No.
CA91-06-104, unreported, the appellate court certified the
record of the case to this court for review and final
determination.

Michael Miller, Franklin County Prosecuting Attorney,
Joyce S. Anderson and Michael L. Collyer, for appellant.
Judith M. Stevenson, Franklin County Public Defender, and
David L. Strait, Assistant Public Defender, for appellee.

Alice Robie Resnick, J. The sole issue certified for our
review is whether a trial court is under a mandatory duty to
voir dire a witness, on the question of the witness's
competency, when the witness is ten years or older at the time
of trial but was under ten years of age at the time of the
events giving rise to the witness's testimony. For the reasons
which follow, we answer that question in the negative.
Evid. R. 601 sets out the general rule of competency for
all witnesses. It states:
"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.***"
A plain reading of Evid. R. 601(A) leads to the conclusion
that the competency of individuals ten years or older is
presumed, while the competency of those under ten must be
established. State v. Wallace (1988), 37 Ohio St.3d 87, 94,
524 N.E.2d 466, 472. "The rule favors competency, conferring
it even on those who do not benefit from the presumption, such
as children under ten, if they are shown to be capable of
receiving 'just impressions of the facts and transactions
respecting which they are examined' and capable of 'relating
them truly.'" Turner v. Turner (1993), 67 Ohio St.3d 337, 343,
617 N.E.2d 1123, 1128. As a result, absent some articulable

concern otherwise, an individual who is at least ten years of
age is per se competent to testify.
The presumption established by Evid. R. 601(A) recedes in
those cases where a witness is either of unsound mind or under
the age of ten. In such cases, the burden falls on the
proponent of the witness to establish that the witness exhibits
certain indicia of competency. This court established a test
for determining competency in State v. Frazier (1991), 61 Ohio
St.3d 247, 574 N.E.2d 483, syllabus, certiorari denied
(1992), U.S. , 112 S.Ct. 1488, 117 L.Ed.2d 629. There,
we held that in determining whether a child under ten is
competent to testify, the trial court must take into
consideration: the child's ability to receive accurate
impressions of fact, the child's ability to recollect those
impressions, the child's ability to communicate what is
observed, the child's understanding of truth and falsity, and
the child's appreciation of his or her responsibility to tell
the truth. Once a trial judge concludes that the threshold
requirements have been satisfied, a witness under the age of
ten will be deemed competent to testify.
At this juncture, we note that our decision in Turner v.
Turner, supra, included as dicta a discussion of the
presumptions created by Evid. R. 601(A). First, we stated that
the rule confers competency "even on those who do not benefit
from the presumption ***." 67 Ohio St.3d at 343, 617 N.E.2d at
1128. We then stated that in cases involving witnesses under
the age of ten or of unsound mind, "the presumption is of
incompetency ***" until proven otherwise. Id. Clearly the
rule cannot create two opposing presumptions. Further
reflection upon and review of the plain meaning of Evid. R.
601(A) leads us to clarify our discussion in Turner by stating
that a witness under the age of ten is not presumed
incompetent, but rather, the proponent of the witness'
testimony bears the burden of proving that the witness is
capable of receiving just impressions and relating them
truthfully.
It is well settled that as the trier of fact, a trial
judge is required to make a preliminary determination as to the
competency of all witnesses, including children. State v.
Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552.
Absent an abuse of discretion, competency determinations of the
trial judge will not be disturbed on appeal. See State v.
Frazier, 61 Ohio St.3d at 251, 574 N.E.2d at 486-487; State v.
Boston (1989), 46 Ohio St.3d 108, 115, 545 N.E.2d 1220, 1228.
In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373,
certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111
L.Ed.2d 768, we determined "'"[t]he trial judge, who saw the
children and heard their testimony and passed on their
competency, was in a far better position to judge their
competency than is this court, which only reads their testimony
from the record ***."'" Quoting Barnett v. State (1922), 104
Ohio St. 298, 301, 135 N.E. 647, 648. Furthermore, "'[t]he
term 'abuse of discretion' connotes more than an error of law
or of judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable ***.'" State v.
Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898;
State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169,

173, 404 N.E.2d 144, 149.
This court considered a case similar to the one at bar in
Huprich v. Paul W. Varga & Sons (1965), 3 Ohio St.2d 87, 3
O.O.2d 61, 209 N.E.2d 390. In Huprich, the plaintiff sought to
introduce the testimony of a thirteen-year-old boy concerning
an automobile accident the boy had witnessed at the age of
four. Without conducting a voir-dire examination of the
witness, the trial court deemed him incompetent to testify as
to the events he had observed. The court of appeals reversed
and this court affirmed, noting that the trial court
arbitrarily decided to deny the request for a competency
hearing. In disapproving the actions of the trial judge, the
Huprich court reached two conclusions:
"1. Where a witness is over ten years of age when he
testifies but was under ten at the time of the happenings about
which he proposes to testify, the capability of such witness to
receive 'just impressions' of such happenings must necessarily
be determined as of the time of those happenings.
"2. Where a proffered witness is over ten years of age
when he is called to testify but was only four years old at the
time he witnessed happenings about which he proposes to
testify, such witness is not as a matter of law incompetent to
testify about such happenings. In such instance, the trial
court should question the witness and consider any other
proffered evidence as to his competency before determining
whether such witness is or is not competent to testify." Id.
at paragraphs one and two of the syllabus.
The conclusions reached in Huprich stretch beyond the
clear terms of Evid. R. 601(A). As discussed above, Evid. R.
601(A) creates a presumption of competency in favor of anyone
who is at least ten years of age and is of sound mind. The
rule addresses competency as of the time of trial, not as of
the time at which the incident in questions occurred. If we
were to require a dual evaluation of competency of those who
have attained the age of ten, we would effectively be creating
a requirement that is not contemplated by the plain meaning of
Evid. R. 601(A). Furthermore, such a rule is unwarranted.
Whether or not the testimony of one over the age of ten
concerning an event which occurred before the age of ten is
accurate is a credibility issue to be resolved by the trier of
fact. Every credibility assessment hinges upon the perceived
accuracy and truthfulness with which the testimony is given.
As with any witness, opposing counsel will be given an
opportunity to cross-examine the witness in order to challenge
his or her ability to accurately recall the events. Therefore,
once a child attains the age of ten, the presumption of
competency created by Evid. R. 601(A) applies equally to that
child witness as it would to any adult, regardless of when the
events in question occurred.
In conclusion, we hold that under the plain meaning of
Evid. R. 601(A), a child witness who is ten years of age or
older at the time of trial, but who was under the age of ten at
the time an incident in question occurred, is presumed
competent to testify about the event. A trial judge, in the
exercise of his or her discretion, may choose to conduct a
voir-dire examination of the child witness if the judge has
reason to question the child's competency. The decision not to

voir dire a child witness under such circumstances will be
viewed under an abuse of discretion standard. In such cases,
absent a compelling reason to act otherwise, the failure to
conduct a voir dire examination of a child witness who is over
the age of ten at trial will not constitute reversible error.
Huprich v. Paul W. Varga & Sons , supra, is overruled to the
extent that it is inconsistent with our holding in this case.
In the case at bar, sixteen-year-old Danyal Campbell
testified concerning events which occurred while she was nine
years old. Appellee never challenged Danyal's competency to
testify. The trial court's decision to permit Danyal to
testify without conducting a competency hearing rested soundly
within the judge's discretion. That discretion was not
abused. The court of appeals erroneously found plain error
when no error existed.
For the foregoing reasons, the judgment of the court of
appeals is reversed, and the decision of the trial court is
reinstated.
Judgment reversed.
Douglas, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., A.W. Sweeney and Wright, JJ., concur in
judgment only.

FOOTNOTES
1 Huprich, decided prior to the adoption of Evid. R. 601,
involved the application of R.C. 2317.01, which stated:
"All persons are competent witnesses except 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."
Wright, J., concurring in judgment only. I concur in
the reversal of the judgment of the court of appeals, but am
unable to join in the syllabus or in the full text of the
majority opinion. I agree that the trial court acted properly
in allowing Danyal, a sixteen-year-old witness, to testify
without first conducting a competency hearing. I further agree
that the "plain error" rule does not apply to this case,
because no error existed in the admission of Danyal's
testimony. I believe, however, that appellee's judgment of
conviction should be reinstated, because Danyal's competency
was never at issue before the trial court. We need not
determine whether the trial court acted within the scope of its
discretion in allowing Danyal to testify, because appellee
never objected to Danyal's testimony on the basis of
incompetence. The trial court simply was never called upon by
either the defendant or the circumstances to exercise its
discretion in passing on the competency of Danyal.
It is our constitutional duty to resolve conflicts that
arise between the various courts of appeals upon certification
of a question of law. Section 2(B)(2)(e), Article IV, Ohio
Constitution. This case is before the court pursuant to a
certification of conflict by the Tenth District Court of
Appeals, which posited a single question for resolution: "Is a
trial court under a mandatory duty to voir dire a witness, on
the question of the witness's competency, when the witness is
over ten years of age at the time of trial but was less than

ten years of age at the time of the events giving rise to the
witness's testimony." The Tenth Appellate District deemed the
answer to this question to be in the affirmative and found its
judgment in conflict with State v. Self (July 29, 1991),
Clermont App. No. CA90-10-099, unreported, and State v. Smith
(Dec. 30, 1991), Butler App. No. CA91-06-104, unreported. The
certified question now before us should be answered in the
negative in that there is no basis in Evid.R. 601 for the
imposition of a mandatory requirement of voir dire examination
of any witness age ten or older where, as here, no objection is
raised by the parties to the competency of the proposed
witness. But, see, State v. Frazier (1991), 61 Ohio St.3d 247,
250-251, 574, N.E.2d 483, 486-487, certiorari denied
(1992), U.S. , 112 S.Ct. 1488, 117 L.Ed.2d 629 (trial
court must hold a competency hearing where the witness is under
ten years of age).
The majority opinion accurately notes that Evid.R. 601
sets out the general rule of competency for all witnesses:
"[e]very person is competent to be a witness except ***
children under ten years of age ***." Pursuant to this rule
all potential witnesses age ten or older are to be initially
treated as competent. Although the competency of a witness is
a matter ultimately committed to the sound discretion of the
trial judge, Evid.R. 601 does not require that a trial court
pass upon the competency of each and every witness age ten or
older called by a party where competency is never challenged,
no request is made for voir dire examination, and no objection
is made.
Evid.R. 601 is not concerned with, nor does it create,
presumptions as to competency. The use of the term
"presumption" in reference to competency issues arises from
cases predating the adoption of the Rules of Evidence in which
trial courts were called upon to determine competency once
competency was challenged. The majority expressly acknowledges
that the accused in this case "[a]t no time during Danyal's
testimony or any other stage of the trial *** [challenged]
Danyal's competency to testify as to the events which occurred
when she was nine years old." Because she was sixteen years
old at trial, and no objection was made regarding her
competence, the trial court was not obligated to hold a
competency hearing. The court of appeals should be reversed on
this reasoning alone.
I note in conclusion that the majority's statement that "a
witness under the age of ten is not presumed incompetent" is
clearly dictum. No proferred witness in the case at bar was
under the age of ten at the time of trial. Proper resolution
of controversial and complicated legal issues such as the
competency of young children should be deferred until the court
has before it a case in which the facts mirror the legal issues
considered. To do otherwise is to render advisory opinions, an
exercise from which we should refrain.
Moyer, C.J., and A.W. Sweeney, J., concur in the foregoing
concurring opinion.