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

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THE STATE OF OHIO, APPELLEE, v. CARDOSI, A.K.A. CORDOSI, APPELLANT.
[Cite as State v. Cardosi (1998), ___ Ohio St.3d ___.]
Certification of conflict dismissed as improvidently allowed.
(No. 97-688 -- Submitted March 3, 1998 -- Decided September 16, 1998.)
CERTIFIED by the Court of Appeals for Clark County, No. 95-CA-0126.
__________________

Suzanne M. Luthe, Clark County Assistant Prosecuting Attorney, for
appellee.

Noel Edward Kaech, Clark County Assistant Public Defender, for appellant.

Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor,
Simon B. Karas, Deputy Chief Counsel, and Alice Robinson-Bond, Assistant
Attorney General, urging affirmance for amicus curiae, Attorney General.
__________________

The certification of conflict is dismissed, sua sponte, as having been
improvidently allowed.

DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

COOK, J., dissenting. I must respectfully dissent from the majority's
decision to dismiss this case as improvidently allowed. I believe we should, in
accordance with our rules, resolve the conflict between the evidentiary rulings in
this case and in State v. Black (1993), 87 Ohio App.3d 724, 622 N.E.2d 1166.

The issue certified to this court by the Second District Court of Appeals is
"[w]hether a finding pursuant to Evid.R. 601(A) that a child under ten years of age
is incompetent to testify at trial makes that child's testimony `not reasonably
obtainable' for purposes of Evid.R. 80[7](A)(2) under the standards set out in

Evid.R. 807(B)(2) * * *." See State v. Cardosi (1997), 78 Ohio St.3d 1494, 678
N.E.2d 1230.
In
Black, the Fourth District Court of Appeals affirmed the judgment of the
trial court denying the state's application to present hearsay testimony pursuant to
Evid.R. 807, by reasoning that admissibility of testimony under 807(A)(2) based
on the child's testimony being "not reasonably obtainable" is not triggered where
there is a finding that the child-victim is incompetent to testify at trial. 87 Ohio
App.3d at 728-729, 622 N.E.2d at 1169.

By contrast, in Cardosi's case the Second District Court of Appeals affirmed
the judgment of the trial court admitting hearsay evidence of the child's
statements, stating that "[t]he condition of absence prescribed in [Evid.R. 807] * *
* applies to any substantial impediment to the child's appearance as a witness in
the proceeding. Certainly a finding of incompetency does just that. Therefore,
when a court finds that a child is not competent to be a witness her testimony is
`not reasonably obtainable' pursuant to Evid.R. 807(B)(2)." State v. Cardosi (Jan.
17, 1997), Clark App. No. 95-CA-0126, unreported, 1997 WL 52924.

Because these two districts differ on the same legal point, this court should
resolve that difference of opinion. Had we done so, my view would have been that
the admissibility problem was properly analyzed by the Black court.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.

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