State v. Said

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The State of Ohio, Appellant and Cross-Appellee, v. Said,

Appellee and Cross-Appellant.

[Cite as State v. Said (1994), Ohio St.3d .]

Criminal law -- Evidence -- Hearing to determine competency of

potential child witness under Evid.R. 601 must be recorded

pursuant to Crim.R. 22.

A hearing to determine the competency of a potential child

witness under Evid.R. 601 must be recorded pursuant

to Crim.R. 22.

(No. 93-1085 -- Submitted October 25, 1994 -- Decided

December 30, 1994.)

Appeal from the Court of Appeals for Lake County, No.

92-L-018.

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 step-granddaughter, 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

Childrens' Services were contacted. During an interview with a

sexual abuse investigator for childrens' 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 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.

Steven C. LaTourette, Lake County Prosecuting Attorney,

Michael D. Murray and Ariana E. Tarighati, Assistant

Prosecuting Attorneys, for appellant and cross-appellee.

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

David H. Bodiker, State Public Defender, Randy D. Ashburn

and John B. Heasley, Assistant Public Defenders; and Cynthia S.

Sander, urging affirmance for amicus curiae, Office of Ohio

Public Defender.

Wright, J. 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 will 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,

U.S. , 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." Cf. 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, at 114, 545 N.E.2d at

1228; Schulte v. Schulte (1994), 71 Ohio St.3d 41, 42,

N.E.2d , , 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 must find "independent proof of the sexual act or

act of physical violence." Evid.R. 807(A)(3). Finally, a trial

court must find that the proponent of the statement fulfilled

the notice requirements under Evid.R. 807(A)(4). Evid.R.

807(C) also requires a trial court to make findings of fact to

support each of the general findings.

The trial court in this case failed to make three of the

findings required by Evid.R. 807(C). Before the hearing, the

trial court made and explained its finding that the child's

testimony was "not reasonably obtainable." The court discussed

the circumstances surrounding the child refusing to testify.

However, the court failed to make a finding of fact that any of

the individuals who urged the girl to testify qualified as a

person "trusted by the child." Evid.R. 807(B)(1). The only

other findings by the trial court were made at the close of the

Evid.R. 807 hearing, when the trial court merely stated:

"Very well. The court finds that the testimony of the

child may be given by another party.

"The elements of the statute, in the court's view, have

been met, and the court finds that the child is without the

ability to testify, and therefore, her testimony may be

substituted."

Findings in the form of skeletal conclusions are

inadequate under Evid.R. 807, as they fail to meet the express

requirements of the rule and they preclude a reviewing court

from adequately reviewing the application of the rule to the

particular facts of the case.

For the foregoing reasons, we affirm the judgment of the

court of appeals.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Douglas and Pfeifer, JJ.,

concur.

Resnick, J., concurs in part and dissents in part.

F.E. Sweeney, J., dissents.

FOOTNOTES:

1 As we noted in State v. Wallace (1988), 37 Ohio St.3d

87, 94-95, 524 N.E.2d 466, 473, the circumstances involving an

excited utterance make that exception sui generis with respect

to requiring competency of a child declarant. See, also,

Boston, supra, at 114, 545 N.E.2d at 1228 fn. 1.

State v. Said.

Alice Robie Resnick, J., concurring in part and dissenting

in part. Because I believe the majority engages in an

erroneous discussion of the requirements of Evid. R. 807, I

concur only with the majority's conclusion that the trial court

was required to record the competency hearing. I disagree,

however, with the majority's conclusions that a competency

hearing was required in this case, and that the trial court

failed to make specific findings of fact as required by Evid.

R. 807(C).

I

The majority first considers whether the trial court was

obligated to record the competency hearing it conducted in

connection with the five-year-old victim. The terms of Crim.

R. 22 clearly require all proceedings to be recorded. I agree

that a competency hearing falls well within the definition of

"proceeding" as contemplated by Crim. R. 22. I respectfully

disagree, however, with the majority's conclusion that a

competency hearing was required in this case.

The provisions of Evid. R. 807(A) require that four

elements be established in order to admit the out-of-court

statements of a child under the age of twelve as they relate to

sexual or physical abuse. The first prerequisite of

admissibility set forth in Evid. R. 807(A)(1) is that:

"The court [find] that the totality of the circumstances

surrounding the making of the statement provides particularized

guarantees of trustworthiness ***. In making its determination

of the reliability of the statement, the court shall consider

all of the circumstances surrounding the making of the

statement, including but not limited to spontaneity, the

internal consistency of the statement, the mental state of the

child, the child's motive or lack of motive to fabricate, the

child's use of terminology unexpected of a child of similar

age, the means by which the statement was elicited, and the

lapse of time between the act and the statement. ***"

Given the specifications of Evid. R. 807(A)(1), a trial

judge is clearly obligated to consider all attendant

circumstances to the making of the out-of-court statement.

Everything and anything that could have impacted the child's

likelihood to speak the truth should be considered. The

majority reads into this provision a requirement that the trial

judge conduct a competency hearing in order to determine if the

child declarant was competent, as defined by State v. Frazier

(1991), 61 Ohio St.3d 247, 574 N.E.2d 483, certiorari denied,

(1992), U.S. , 112 S.Ct. 1488, 117 L.Ed.2d 629, at the time

he or she made the statement. That position exceeds the

boundaries of Evid. R. 807.

Under the various hearsay exceptions, selected

out-of-court statements are deemed to possess certain indicia

of reliability which warrant their admissibility into evidence

regardless of whether the declarant will testify during trial.

Evid. R. 803 and 804. In State v. Wallace (1988), 37 Ohio

St.3d 87, 524 N.E.2d 466, for example, we considered the

out-of-court statements of a five-year-old declarant as they

fell under the excited-utterance exception to the hearsay rule,

Evid. R. 803(2). With respect to the child declarant's

competency, we considered the requirements of telling the truth

and recalling events accurately:

"These requirements are not relevant to the admissibility

of an excited utterance because an excited utterance is made

while the declarant is dominated by the excitement of the event

and before there is opportunity to reflect and fabricate

statements relating to the event. The trustworthiness of the

declaration (as being what the declarant actually believes to

be true) derives from the lack of opportunity to fabricate, not

the moral character or maturity of the declarant. Similarly,

the declarant's ability to recall is not an issue because of

the requirement that the declaration be contemporaneous with

its exciting cause or made while that cause dominates the

declarant's thoughts. The credibility and weight of the

declarations will, or course, still be judged by the

fact-finder." Id. at 95, 524 N.E.2d 473.

The provisions in Evid. R. 807(A)(1) offer similar

guarantees of trustworthiness which, if established, eliminate

the need for specifically finding the child declarant was

competent at the time he or she made the statement. As stated

above, the trial judge must consider, inter alia, the

spontaneity of the statement, the use of age-inappropriate

terminology, and the contemporaneous nature of the statement.

All these considerations enable a trial judge, in the exercise

of his or her sound discretion, to conclude whether the

totality of circumstances warrant a finding of trustworthiness

and, therefore, admissibility of the statement. A competency

hearing simply is not required by the plain terms of Evid. R.

807(A).

The effect of instituting the majority's position that a

competency hearing is required prior to admitting a statement

under Evid. R. 807 will be to preclude the admission of

otherwise qualified out-of-court statements into evidence. For

example, in those situations where the abused victim falls into

a coma or dies at some point after making statements to a

parent or therapist concerning the source of his or her abuse,

the statements would not be admissible given the child's

inability to attend a competency hearing. That result surely

defeats the obvious purpose for which Evid. R. 807 was

adopted. The example need not be so dramatic. What of the

child anticipated by Evid. R. 807(B)(1) who refuses to testify

concerning the out-of-court statements when called to the

stand? The fact that the child is frightened by the courtroom

proceedings, as occurred in the case at bar, sheds no light on

the "guarantees of trustworthiness" contemplated by Evid. R.

807(A)(1).

For these reasons, I would find that a trial court is not

required to hold a competency hearing in order to admit an

out-of-court statement under the hearsay exception for

statements regarding child abuse. However, as stated above,

when the trial judge decides to hold a competency hearing, he

or she is required to record the proceeding as prescribed by

Crim. R. 22. The failure to do so constitutes reversible error.

II

I disagree with the majority's conclusion that the trial

court failed to make the findings required by Evid. R. 807(C).

Ideally, a trial judge will state at the conclusion of an Evid.

R. 807 hearing that each of the four prerequisites to

admissibility has been satisfied and then specifically

delineate the evidence offered to support each factor. The

realities of courtroom procedure, however, may cause a trial

judge to state his or her conclusions at various stages

throughout the hearing. This reality, which occurred in this

case, does not preclude a finding that a trial judge has

complied with the requirements of Evid. R. 807(C).

The record reveals that during the course of the

evidentiary hearing, the trial judge stated that the child's

testimony was not reasonably obtainable, as required by Evid.

R. 807(A)(2), given her repeated refusal to speak once she was

called to the stand. The record further indicates that in the

middle of the hearing the court determined that Peggy Taylor, a

licensed sexual abuse counselor who had attempted to coax the

girl to speak on the stand, qualified as a "person trusted by

the child," as required by Evid. R. 807(B)(1), given the

rapport she likely developed with the child during their

counseling sessions. The record additionally demonstrates that

the trial judge believed that the testimony of the older

daughter was sufficient to qualify as "some independent

evidence that a sexual act was perpetrated ***," thereby

satisfying the requirement of Evid. R. 807(A)(3). Finally, at

the conclusion of the hearing, the trial judge indicated that

the totality of the evidence presented during the hearing

warranted a finding that the elements had been met and,

therefore, that the hearsay statement would be admissible.

Appellee did not object to any of the court's findings until

the end of the hearing, at which point he raised a blanket

objection to the court's finding of admissibility under Evid.

R. 807.

After reviewing the record in this case, I believe that

the evidence supports a finding that the trial court satisfied

the requirements of Evid. R. 807(C). The trial judge acted

well within the bounds of his discretion when he decided to

admit the victim's statements, and thus, this decision should

not have been reversed on appeal. Therefore, I would reverse

the judgment of the court of appeals on this issue.

III

For all the foregoing reasons, I would affirm the judgment

of the court of appeals with respect to its conclusion that the

competency hearing held in this case should have been

recorded. I would reverse the court of appeals, however, as to

its determination that the trial judge failed to make the

findings required by Evid. R. 807(C).

Francis E. Sweeney, Sr., J., dissenting. I respectfully

dissent from the majority's affirmance of the court of appeals'

decision because (1) I do not believe that the failure to

record the competency hearing was reversible error, and (2) I

believe that the requirements of Evid.R. 807 have been met.

Accordingly, I would reverse the decision of the court of

appeals.

The majority, sua sponte, holds that the failure to record

the Evid.R. 601 hearing to determine the child's competency to

testify at the time of trial was reversible error. However,

whether the child was competent to testify at the time of trial

is irrelevant in this case, as the child ultimately refused to

testify at trial.

The only issue here is whether the child was competent at

the time she made the out-of-court statements that were

admitted under Evid.R. 807. The majority itself states, "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, 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." This competency

determination was not made in the Evid.R. 601 hearing but,

rather, in the separate Evid.R. 807 hearing. Therefore, I do

not believe that the failure to record the Evid.R. 601 hearing

constitutes reversible error.

I also disagree with the majority's contention that the

trial court's findings made pursuant to Evid.R. 807 are no more

than "skeletal conclusions." The record demonstrates that the

trial court discussed at some length its reasons for finding

that the requirements of Evid.R. 807 had been met. This

discussion included the trial court's finding that the

testimony of the older daughter, Lori Pugh, was some

independent evidence of the sexual act as required by Evid.R.

807(A)(3). Also, the trial court found that the counselor who

urged the child to testify had a rapport with the child and had

been working with the child. This discussion obviously

supported the trial court's conclusion that the child had been

urged to testify by someone "trusted by the child," as required

by Evid.R. 807(B)(1). Therefore, I believe that the findings

of fact made by the trial court satisfy the requirements of

Evid.R. 807.

I will now address the issues which form the basis of the

court of appeals' reversal of appellee's conviction in this

case; i.e., whether the child had been urged to testify by

someone "trusted by the child" as required by Evid.R. 807(B)(1)

and whether evidence that the five-year-old masturbated met the

requirement of Evid.R. 807(A)(3) of "independent proof of the

sexual act."

Evid.R. 807(B)(1) requires a finding that a child's

testimony is unavailable if the child refuses to testify after

"a person trusted by the child" urges the child to testify in

the presence of the court. In the present case, the child's

mother was unable to urge the child to testify as she was under

a court order for separation of witnesses. However, a licensed

professional counselor urged the child witness to testify and

this counselor had spent considerable time with the child.

Based on this evidence, the trial court, in its discretion,

found that the counselor was a person trusted by the child.

The court of appeals, after noting that the mother was

unavailable, stated that it questioned "whether a person

trusted by the child ever urged her to testify." I disagree.

Evid.R. 807(B)(1) does not specify that the person who urges

the child to testify must be a parent or relative, as the court

of appeals appears to suggest. Accordingly, upon a review of

the evidence, I believe the trial court did not abuse its

discretion in finding that the counselor was a person trusted

by the child.

The court of appeals also found that there was no

"independent proof of the sexual act" as required by Evid.R.

807(A)(3). The court, while admitting that "excessive

masturbation" by the child declarant would be independent

evidence of the sexual act, found that excessive masturbation

had not been shown. Experts had defined this as the child's

continuation of masturbation in public after it had been

explained to the child that that behavior was inappropriate.

The court of appeals noted that there was no evidence that the

child victim had ever been told to discontinue the masturbation

by the mother. Thus, the court of appeals concluded that the

state failed to establish "excessive masturbation." However,

the older daughter, during direct examination, testified that

she had told her sister not to continue masturbation. This

testimony is some evidence to support a finding that the child

had engaged in excessive masturbation. Therefore, I believe

that the trial court did not abuse its discretion in finding

that the state had satisfied the independent-proof requirement

of Evid.R. 807.

In conclusion, I believe that the decision of the court of

appeals should be reversed and, accordingly, the appellee's

conviction should be affirmed.