COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59079, 59080 : : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND DONALD MANGEN : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-240076, CR-242082 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, Cuyahoga PAUL F. MARKSTROM, Esq. County Prosecuting Attorney Ohio Savings Bldg., Suite 208 RICHARD J. BOMBIK, Assistant 22255 Center Ridge Road Prosecuting Attorney Rocky River, Ohio 44116 Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, J.: Appellant, Donald Mangen, was convicted of ten counts of rape, R.C. 2907.02, five counts of gross sexual imposition, R.C. 2907.05 (all by force of a victim under the age of thirteen), and one count of intimidation, R.C. 2921.03. He was sentenced to ten life terms for the rapes and five two-year terms for gross sexual imposition (consecutive) and a concurrent two-year term for intimidation. Appellant's step-daughter testified that appellant, her mother ("Mrs. Mangen"), her six-year-old brother Donnie and she lived together. According to the victim, appellant committed the rapes and instances of gross sexual imposition on Saturday, April 22, 1989, and on several Wednesdays and Thursdays when her mother was either shopping or taking a nap. Her brother was asked to either stay upstairs or outside, depending on the day and location in the house of the assaults. On appeal appellant assigns one error for review. I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR VIOLATING THE APPELLANT'S RIGHT TO DUE PROCESS WHEN THE COURT ERRONEOUSLY RULED THE APPELLANT'S SIX YEAR OLD SON TO BE INCOMPETENT TO TESTIFY REGARDING RELEVANT AND MATERIAL MATTERS. Appellant attempted to call Donald ("Donnie") Mangen, appellant's six-year-old son, as a witness. There was no objection from the state. The trial judge conducted a hearing in which Donnie was examined. The trial judge applied R.C. -3- 2317.01 (virtually duplicated in Evid. R. 601(A)) and stated that the boy "is incompetent unless the Court feels that his testimony might throw any light on [the areas covered by the proffer]." (Tr. 218.) The trial judge concluded that the testimony would not be rebutted and that he was incompetent under R.C. 2317.01. (Tr. 221.) The Ohio Supreme Court has stated the test for competency: In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsi- bility to be truthful. State v. Frazier (1991), 61 Ohio St. 3d 247. The court stated as follows: Evid. R. 601 provides that "[e]very person is competent to be a witness except: (A) *** children under ten (10) 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...." It is the duty of the trial judge to conduct a voir dire examination of a child under ten years of age to determine the child's competency to testify. Such determination of competency is within the sound discretion of the trial judge. The trial judge has the opportunity to observe the child's appearance, his or her manner of respond- ing to the questions, general demeanor and any indicia of ability to relate the facts accurately and truthfully. Thus, the responsibility of the trial judge is to determine through questioning whether the child of tender years is capable of receiving just impressions of facts and events and to accurately relate them. -4- Id. at 250-251. Donnie told the judge that he did not know what an oath was but that God is someone who watches you and what you do. (Tr. 211-212.) He said that he knew what truth is and would tell the truth. (Tr. 212.) He stated that he knew that a lie was some- thing very bad but did not remember what happens when he tells a lie. (Tr. 213.) He did know that he would be punished if he did something wrong. (Tr. 214.) He first said he did not recall things or events that took place in the last four or five months but then stated that he could remember back to when the victim and her mother were living together (four or five months before). On cross-examination Donnie said that when he had told lies he was punished by being sent to his room. (Tr. 216.) Defense counsel argued that he wished to have Donnie testify that when he was left with his father and the victim while his mother was not home, appellant never asked him to stay upstairs or outside and that he never saw appellant and the victim without most or all of their clothing. (Tr. 217-218.) Counsel added that Donnie also "knows something about [a bleeding incident]." (Tr. 218-219.) This last reference concerned a doctor's testimony that the victim told her she had some bleeding after the first violation. However, counsel failed to proffer the testimony Donnie would have offered on this subject. -5- The victim testified that Donnie was never there when the incidents happened. His testimony that he never saw them without most or all of their clothing would not be relevant. Donnie knew the difference between right and wrong and the consequences of telling a lie. However, other than stating his school and street, Donnie failed to demonstrate that he had the ability to receive accurate impressions of fact or to observe acts about which he would testify, to recollect those impressions or observations and communicate what was observed. A statement that he could remember back to the period in question is insuf- ficient without some demonstration that he in fact does remember and relate the facts. The trial court did not abuse its discre- tion. Even if the decision had been an abuse of discretion the error would have been harmless given not only the victim's testimony but the doctor's statement that Mrs. Mangen told her appellant threatened her if she did not take a nap on Wednesdays and go shopping on Thursdays. (Tr. 116.) Appellant's convic- tions are affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. SARA J. HARPER, J., CONCURS JOHN F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY (SEE ATTACHED CONCURRING OPINION) _________________________________ PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59079/59080 : STATE OF OHIO : : : C O N C U R R I N G Plaintiff-Appellee : : O P I N I O N vs. : : DONALD MANGEN : : : : Defendant-Appellant : : DATE: OCTOBER 3, 1991 J.F. CORRIGAN, J., CONCURS IN JUDGMENT ONLY: My review of the record compels me to conclude that the trial court did abuse its discretion in determining that the child called as a defense witness was incompetent to testify. Under the totality of the facts presented, however, I find this error harmless beyond a reasonable doubt, and I therefore write separately to concur in judgment only. Pursuant to Evid. R. 601(A) and R.C. 2317.01, all children are competent to testify except those children under ten who: (1) appear incapable of receiving just impressions of fact as to which they are examined; or (2) are incapable of relating those facts truly. See, generally, State v. Kirk (1987), 42 Ohio App. -8- 3d 93, 94. This rule is unfettered by evidentiary or procedural presumptions and requires a demonstration that the child is "incapable of receiving just impressions *** or relating [the facts] truly." Id. In addition, it is the duty of the trial judge to conduct a voir dire examination to determine the child's competency to testify. State v. Frazier (1991), 61 Ohio St. 3d 247, 250-251. The responsibility of the trial judge is to determine through questioning whether the child of tender years is capable of receiving just impressions of facts and events and to accurately relate them. Id. While the determination of competency is within the sound discretion of the trial judge, id. at 251, the trial judge must take into consideration the following: "(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful." In this case, however, the trial judge obviously began with the presumption that the witness was incompetent, as he stated: "Counsel you may attempt to qualify this incompetent witness." (Tr. 211). In addition, the trial judge did not indicate that its determination was based upon consideration of the child's ability -9- to receive just impressions of facts and events and to accurately relate them, but rather, described the essence of his determination as follows: "By statute, he is incompetent unless the court feels that his testimony might throw light on those three [factual] questions." (Tr. 218). Moreover, in my view, the voir dire of the child did indeed establish competency pursuant to the five part test set forth in State v. Frazier, supra. Accordingly, I would conclude that the trial judge abused his discretion in this instance. In view of the totality of the evidence of record, however, I would find this error harmless beyond a reasonable doubt as the victim's testimony was corroborated by the doctor's testimony that Mrs. Mangen reported that defendant threatened her if she did not take a nap on Wednesdays and shop on Thursdays. (Tr. 111). Thus, I concur in the judgment rendered. .