In Re Joshua C., Unpublished Decision (12-5-2003)

Ohio Court of Appeals

In Re Joshua C., Unpublished Decision (12-5-2003)

2003 Ohio 6752

CourtOhio Court of Appeals

DecidedDecember 5, 2003

DocketNo. E-03-015, Trial Court No. 2002-JF-198.

StatusUnpublished

Cited by2 cases

This text of 2003 Ohio 6752 (In Re Joshua C., Unpublished Decision (12-5-2003)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Joshua C., Unpublished Decision (12-5-2003), 2003 Ohio 6752 (Ohio Ct. App. 2003).

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Opinion

DECISION AND JUDGMENT ENTRY {¶ 1} This appeal comes to us from a judgment issued by the Erie County Court of Common Pleas, Juvenile Division, in a delinquency case involving allegations of rape. Because we conclude that the trial court erred in determining the competency to testify of a four-year-old child and the admission of hearsay evidence, we reverse.

{¶ 2} Appellant, Joshua C., age 13, was charged with delinquency on the basis of rape. Appellant allegedly placed his mouth on the vagina of his four-year-old cousin, Adriana, while she and her mother were visiting one afternoon at his home. The following information was presented at the adjudicatory hearing.

{¶ 3} While the adults visited, Joshua and Adriana spent several hours playing video games in Joshua's bedroom. Adriana's mother checked in on them periodically. Over appellant's objections, mother was permitted to testify as to Adriana's statements made to her in the car on the way home. Adriana said to her mother that Joshua had allegedly "licked" her "privacies." Following this disclosure, however, mother stated that she did not take Adriana to be examined by a doctor or for psychological counseling.

{¶ 4} The court then conducted a voir dire of Adriana and, over appellant's objection, determined that she was competent to testify. Adriana testified as to the alleged actions of Joshua, as well as a former babysitter, Savannah, and "another person." At the conclusion of the hearing, the court determined that all the elements of rape had been proven beyond a reasonable doubt and found appellant to be delinquent on that basis.

{¶ 5} Appellant now appeals that judgment, setting forth the following three assignments of error:

{¶ 6} "Assignment of Error #1: That [sic] the trial court abused its discretion when it found the four-year old witness competent to testify.

{¶ 7} "Assignment of Error #2: That [sic] the trial court's finding of delinquency against appellant by reason of having committed the offense of rape was against the manifest weight of the evidence.

{¶ 8} "Assignment of Error #3: That [sic] the trial court erred in admitting hearsay statements as excited utterances."

I. {¶ 9} We will first address appellant's third assignment of error, in which he argues that the trial court erred in admitting, as an excited utterance, testimony of Adriana's mother regarding Adrian's statements made to her regarding appellant's alleged actions.

{¶ 10} Evid.R. 803(2) provides that the following statement will not be excluded as hearsay, even though the declarant is available as a witness:

{¶ 11} "(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. * * *" The admission of a statement as an excited utterance under Evid.R. 803(2) is generally within the sound discretion of the trial court. State v. Duncan (1978),53 Ohio St.2d 215, 219; State v. Smith (1986), 34 Ohio App.3d 180,190-191. An appellate court will not reverse the trial court's decision absent an abuse of discretion. See State v. Brown (1996),112 Ohio App.3d 583, 601; State v. Fowler (1985), 27 Ohio App.3d 149,152.

{¶ 12} For an alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) an event startling enough to produce a nervous excitement in the declarant; (2) the statement must have been made while still under the stress of excitement caused by the event; (3) the statement must relate to the startling event; and (4) the declarant must have personally observed the startling event. State v. Taylor (1993), 66 Ohio St.3d 295, 300-301; Duncan, supra, paragraph one of the syllabus, approving and following Potter v. Baker (1955), 162 Ohio St. 488, paragraph two of the syllabus.

{¶ 13} Additionally, when deciding whether a statement qualifies as an excited utterance, consideration will be given to such factors as "(1) the lapse of time between the event and the declaration; (2) the mental and physical condition of the declarant; (3) the nature of the statement; and (4) the influence of intervening circumstances." See Staff Note to Evid.R. 803(2);State v. Humphries (1992), 79 Ohio App.3d 589,598. We are mindful that the test for an excited utterance is often applied liberally to out-of-court statements made by child declarants who are alleged to have been sexually assaulted. State v. Shoop (1993),87 Ohio App.3d 462, 472. See also, Taylor, supra at 304. The rationale for doing so is based on the recognition that a young child's limited reflective powers make it more likely that a given statement is trustworthy. Taylor, supra, at 304; State v. Wagner (1986),30 Ohio App.3d 261, 264.

{¶ 14} Nevertheless, merely being upset does not meet the standard for admissibility as an excited utterance. Taylor, supra, at 303. Time is also not the main consideration. Humphries, supra. The "controlling factor is whether the declaration was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." Id.

{¶ 15} In this case, Adriana's mother stated that the child did not seem much different than normal. Mother stated that Adriana was perhaps a little quieter, but she attributed that to the effects of fighting over wearing a seat belt. Adriana never cried or appeared upset. While Adriana may have been affected by the events of the day, there is little if any evidence that she was ever in or remained in a state of "nervous excitement" caused by alleged sexual abuse. In addition to the lapse in time before Adriana related the alleged abuse, she chatted with her mother for awhile before saying that she had something to tell her. Adriana also indicated that she feared that her aunt and Joshua might be angry with her. Rather than being a spontaneous, under-the-stress-of-the-moment statement, Adriana's statements and the surrounding facts indicate reason and reflection by Adriana. Even under a liberal application of the rule, in our view, the statement simply did not meet the minimum requirements for admissibility as an excited utterance. To rule otherwise, every statement made by a child after an alleged sexual abuse incident would qualify as an excited utterance. Therefore, we conclude that the trial court abused its discretion in permitting the mother to testify as to Adriana's out-of-court statements.

{¶ 16} Accordingly, appellant's third assignment of error is well-taken.

II. {¶ 17} Appellant, in his first assignment of error, contends that the trial court erred in determining that Adriana was competent to testify.

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