State v. Duncan

373 N.E.2d 1234, 53 Ohio St. 2d 215, 7 Ohio Op. 3d 380, 1978 Ohio LEXIS 518
CourtOhio Supreme Court
DecidedMarch 15, 1978
DocketNo. 77-230
StatusPublished
Cited by165 cases

This text of 373 N.E.2d 1234 (State v. Duncan) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Duncan, 373 N.E.2d 1234, 53 Ohio St. 2d 215, 7 Ohio Op. 3d 380, 1978 Ohio LEXIS 518 (Ohio 1978).

Opinion

Celebrezze, J.

Appellant contends that the Court of Appeals erred in holding that certain statements made by the victim to her mother, concerning the sexual conduct of the appellee, were inadmissible because they lacked the essential attributes of spontaneity.

The record discloses that near the hour of 11:00 A. M., on Saturday, March 8, 1975, the victim was at home in her bedroom, watching television, while her infant sister slept in a crib nearby. The girl’s stepfather, appellee herein, was absent from the home when the victim’s mother went out to a laundromat. Shortly thereafter, according to the victim, “Leroy snuck back.” He told her to take off her pants and said “Let’s have some sex.” He then proceeeded to stick a pen in her rectum and his finger in her ‘ ‘private.” The victim also stated that “The Ding-a-ling was out” — an apparent reference to the appellee’s reproductive organ. After threatening the lives of the whole family appellee left the home; the victim then put her clothes back on, turned on the television, and hid in her mother’s closet.

During this time Mrs. Duncan had been attempting to gain access to the crowded corner laundromat. Being unsuccessful, she then returned home. Hearing that the television set was on upstairs, she called to her daughter, whose only response was “O. K. Everything’s O. K.” Mrs. Duncan then went to a building, near her own, which contained a washroom, where she was finally able to load her laundry into several washers. She made several trips between the washroom and her house, and, at approximately 1:00 P. M., returned to her house with some dry clothes. Hearing a noise upstairs, she immediately ascended the stairs and checked on the baby, who was asleep. It was at this time that the victim was observed emerging from Mrs. Duncan’s closet. The victim’s body was shaking' like “an epileptic seizure” according to the testimony of the mother. [218]*218Fearing the child had been into her cosmetics Mrs. Duncan grabbed her, whereupon the victim said, “No, mommy, no. Leroy been picking with me.” Upon inquiry the victim described the alleged incident.

Appellant’s counsel maintained at trial that although the statement of the victim to her mother was hearsay testimony when repeated by the mother, it should be allowed in evidence because it was part of the res gestae. Appellee strenuously objected to its admission, stating that Mrs. Duncan’s testimony concerning the child’s utterances was clearly hearsay. Appellee contends that too much time had elapsed between the incident and the exclamations for them to be-considered spontaneous.

It should be pointed out that at trial, prior to the testimony of Mrs. Duncan, the victim vividly described the alleged incident. There was also testimony from the physician who had examined the victim on the afternoon of March 8, 1975, that she had observed inflammation in the vaginal area. The doctor testified further that when she attempted to examine the pelvic area of the victim the child became so hysterical that it was necessary to administer two sedatives.

In its opinion the appellate court below discussed the case of Hill v. Skinner (1947), 81 Ohio App. 375. We note that while the court in the Hill case did find that testimony relating an injured boy’s answer to his mother’s questions was inadmissible, because of lack of spontaneity and intervening circumstances, it did not find such testimony to be prejudicial error. Further, the facts in the Hill ease are easily distinguishable from the instant case. In the Hill case the young boy was calm and in the process of being bathed by his mother when certain statements were made. The victim in the instant case was alone, hiding in a closet, when her mother found her and the disputed exclamations occurred. Thus, although the time element is similar in the two cases, the emotional states of the declarants .are so widely disparate as to obviate further, analysis.

The reviewing court below also cited the case of Potter [219]*219v. Baker (1955), 162 Ohio St. 488, wherein this court set forth certain standards for the admission of spontaneous exclamations under the res gestae exception to the hearsay rule. This court, in Potter, stated the following at page 500:

“It is elementary that the trial judge is to decide those questions of fact which must be decided in order to determine whether certain evidence is admissible. * * * In the instant case, the trial judge, in determining whether this declaration was admissible, necessarily had to decide certain questions of fact. If his decision on those questions of fact, as reflected in his ruling on the admissibility of this declaration, was a reasonable decision, an appellate court should not disturb it. In other words, we believe that the decision of the trial judge, in determining whether or not a declaration should be admissible under the spontaneous exclamations exception to the hearsay rule, should be sustained where such decision appears to be a reasonable one, even though the reviewing court, if sitting as a trial court, would have made a different decision.” Thus, this court has established precedent holding that an appellate court should allow a wide discretion in the trial court to determine whether in fact a declarant was at'the'time of an offered statement still under the influence of an exciting event.

The length of time elapsed between the commission of the crime and the victim’s exclamation appears to be the crux of the decision by the Court of Appeals. Indeed, Professor McCormick has stated that, as a general rule, when an oral utterance is made while the exciting event is still in progress courts have little difficulty in invoking the spontaneous exclamation exception to the hearsay rule, but as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance. McCormick On Evidence (2 Ed. 1972) 706, Section 297. •'

Nevertheless, in our opinion each case must be del eided on its own circumstances, since if is patently futile to [220]*220attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation. In this regard we note that Dean Wigmore has made the following observations in relation to the spontaneous exclamation exception to the hearsay rule:

“From the judicial expositions the following limitations, and these only, may legitimately be deduced:

“(a) Nature of the occasion. There must be some occurrence, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. * * *

“(b) Time of the Utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. * * *

“It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. # * *

¿Í* * *

“Furthermore, there can be no definite and fixed limit of time. Each case must depend upon its own circumstances * * *.

ÍÍ* * *

“(c) Subject of the Utterance. The utterance must

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Cite This Page — Counsel Stack

Bluebook (online)
373 N.E.2d 1234, 53 Ohio St. 2d 215, 7 Ohio Op. 3d 380, 1978 Ohio LEXIS 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-ohio-1978.