State v. Said

OPINIONS OF THE SUPREME COURT OF OHIO

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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.