COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67124 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TONY PAYNE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 305632 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN GIBBONS, ESQ. Cuyahoga County Prosecutor 2000 Standard Building JOSEPH HOFFER, ESQ. 1370 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on three counts of rape, one count of gross sexual imposition and one count of child endangering for incidents which occurred between October 1, 1992 and January 5, 1993. The victim, Talecia Payne, was born in January 1985. Appellant waived his right to a jury trial and evidence was then presented to the bench. After the State presented its evidence, the court granted appellant's Crim.R. 29 motion in part, dismissing counts two and three and amending count one to gross sexual imposition. The motion was denied as to counts three and four. The trial court found appellant guilty of both counts of gross sexual imposition and the count of child endangering. Appellant was sentenced to one year for count one and one year for count four, to run concurrently. The court also sentenced appellant to one year incarceration on count five, to run consecutively to the sentences for counts one and four. Appellant filed a timely appeal from his convictions and sentences, asserting four assignments of error. I THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT THE VICTIM, AGE NINE, WAS COMPETENT TO TESTIFY AS A WITNESS. Appellant argues that Talecia was not competent to testify based on her answers to the court's questions at the competency hearing. Appellant asserts that she was unable to receive accurate - 3 - impressions of fact and unable to recollect those impressions. Nor, appellant argues, could Talecia understand truth or falsity or her responsibility to be truthful. Therefore, the trial court abused its discretion in finding her competent to testify against him. Appellant's argument is not well taken. 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 responding 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. See State v. Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552. State v. Frazier (1991), 61 Ohio St.3d 247, 250-51. In this case a competency hearing was held during which the trial judge asked Talecia questions to determine her understanding of what constituted the truth and her ability to communicate facts of which she had received impressions. Appellant's brief misstates the exchange which took place during the hearing between the trial judge and Talecia. The dialogue proceeded as follows: Q. All right. Spell your first name for me. A. T-a-l-i-c-e-a. Q. And spell your last name. A. P-a-y-n-e. Q. All right. And would you tell me how old you are. - 4 - A. Nine. Q. Nine. And when is your birthday? A. January 1st. Q. All right. And do you know why you are down in court today? A. Yes. Q. Tell me why you think you are down here. Do you know why? A. Not really. Q. Not really. Okay. Do you know what it means to tell the truth? A. Yes. Q. Well, tell me about what that means, to tell the truth. A. To tell the truth won't get on punishment or nothing. Q. You won't get a punishment. And if you don't tell the truth, then what happens? A. You will get on punishment. * * * Q. Suppose I asked you the question, and you didn't know the answer to it, what would you say? A. I don't get it. Q Q. Okay. You don't get it. Okay. Well, le say, suppose I asked you did you see the Olympics; did you watch any of that on television? A. Sometimes. Q. What events did you see? A. Skating. - 5 - Q. You saw the skating? Is there some skater that you enjoyed watching? A. Yes. Q. Who? A. Nancy Kerrigan. Q. You did like watching her, didn't you? Now, what other events did you see? A. That's all. Q. That's all. So suppose I asked you, how did you enjoy the men's bobsled racing; what would you say to a question like that? A. I don't know. Q. You wouldn't know what to say, because you didn't see it, right? So would you be able to say, I don't know how I enjoyed it because I didn't watch it? Would you say that? A. Yes. Q. Okay. And if you said, oh, I enjoyed it a lot, that was great; would that be okay to say that? A. No. Q. It wouldn't, because you didn't see it, and that would be a lie. Do you understand what I mean about telling a lie and not -- A. Yes. Q. -- telling the truth, huh? A. Yes. (Transcript pp. 12-16.) At the conclusion of the questioning, the court found Talecia "competent; both capable of receiving just impression and relaying truthfully those answers as to the evidence which she will offer in - 6 - the case and to the impressions she has regarding current events." (Transcript p. 20.) We find no support in the record of the competency hearing for appellant's contention that the trial court abused its discretion in finding Talecia competent to testify. She exhibited the ability to receive accurate impressions of fact and to recollect and relate those facts to the court. She also showed an appreciation of her responsibility to be truthful and an understanding of truth and falsity. The trial court did not abuse its discretion in finding Talecia competent. Appellant's first assignment of error is overruled. II THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE PROSECUTING ATTORNEY TO INQUIRE FURTHER OF THE VICTIM AFTER STATING THAT HE HAD NO MORE QUESTIONS AND AFTER A SUGGESTION FROM THE TRIAL JUDGE THAT THE PROSECUTING ATTORNEY HAD NOT SATISFIED ALL THE ELEMENTS OF THE CRIMES CHARGED. Appellant argues that the trial judge disregarded his duty to remain impartial during the proceedings by informing the prosecutor that he may not have satisfied all of the elements of the crimes. The court erred further, appellant asserts, in allowing the prosecutor to reopen his questioning of Talecia. Appellant's argument is without merit. Appellant cites R.C. 2945.03 as support for his proposition that the trial court abused its discretion in commenting upon the state of the evidence and allowing the prosecutor to reopen questioning of the State's witness. R.C. 2945.03 sets forth the trial court's duty as follows: - 7 - The judge of the trial court shall control all proceedings during a criminal trial, and shall limit the introduction of evidence and the argument of counsel to relevant and material matters with a view to expeditious and effective ascertainment of the truth regarding the matters in issue. The court stated while making a record of the sidebar conference conducted with the attorneys following the prosecution's initial questioning of Talecia: [T]hat perhaps the state had not provided evidence on all of the elements of all of the cases, because the Court knows that the victim in the case is an eight- year-old-girl who is having some difficulty in testifying. The Court wants to provide absolute leeway to both the state and defense counsel to examine her so that we can reach the truth in the case, and the Court knows that there are some responses contained in the record, which were offered by the victim, which the Court has some question about, but which would be dispositive of many of the issues in this case. Court indicated to Mr. Hoffer [prosecutor] that he would have the opportunity, and only he, to discuss the matter further with her, that she would not be visited by anyone during the short recess that the Court took. And the Court has now indicated -- it has been now indicated to the Court that Mr. Hoffer would like to ask additional questions of the victim/witness in this case, the eight-year-old-girl. (Transcript pp. 86-87.) At this point defense counsel entered an objection to allowing the State to reopen questioning. In overruling the objection, the trial judge recognized that the additional examination was appropriate given the "family-type situation," "the age of the victim and the nature of the case." (Transcript pp. 87-88.) - 8 - We find that the trial court acted within its discretion to allow the State to continue questioning Talecia. The judge did not disregard his duty to remain impartial during the proceedings by allowing further questioning, given the clear reluctance of the witness to testify against her father. The court could have asked Talecia questions from the bench rather than suggesting to the prosecutor that all of the elements of the offenses may not have been met by the evidence elicited at that point in the trial. See Nabakowski v. 5400 Corporation (1986), 29 Ohio App.3d 82 and Evid.R. 611(A). Permitting the prosecutor to reopen questioning rather than questioning the witness himself was a demonstration of impartiality by the trial judge. We do not find an abuse of discretion by the court as asserted by appellant. Appellant's second assignment of error is overruled. III THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29, OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. Appellant argues in his third assignment of error that viewing the evidence in a light most favorable to the prosecution, no rational trier of fact could find that the essential elements of the offenses of gross sexual imposition and child endangering were proven beyond a reasonable doubt. While appellant concedes that evidence existed that Talecia was molested, he asserts that there is no evidence that he was involved. We disagree. - 9 - The evidence presented at trial indicated that Talecia Payne was in the care of appellant, her father, after school between October 1, 1992 and January 5, 1993. Her parents were divorced but remained on good terms. Talecia's mother worked evenings until nine o'clock or eleven-thirty. Appellant at the time lived on the bottom of a two-family dwelling. His sister Brenda lived on the top half with three children named Larry, Bob and Kevin, also known as Wheezy. According to the testimony of Talecia's mother, Doris Newsome, she became suspicious that Talecia was being abused one evening in October. Ms. Newsome was bathing Talecia when she noticed that Talecia was sensitive to the touch in her vaginal area. Talecia told her mother that Bob had been bothering her. Ms. Newsome called appellant at that time and advised him that he had better keep a closer eye on Talecia while she was staying with him. Talecia again showed symptoms of sensitivity to being washed in December. She reluctantly told her mom, after being bribed with ten dollars, that Bob was bothering her again, but asked that her father not be told. Ms. Newsome took Talecia to the doctor the following day. She followed up by contacting Human Services, but the case was dropped ostensibly because Bob was only ten. Talecia no longer stayed with her father after this. In April of 1993, Ms. Newsome decided to get counseling for Talecia because Talecia told her that Larry and Wheezy were also involved. After the second counseling session with Dr. Vance - 10 - Talecia told her mother that her father had participated. Talecia's mother took her back to Human Services where they were interviewed by a Miss Trimarco and also spoke to Detective Walton. At one point, Talecia told her mother that she had seen her father "pumping it up." After a year of counseling, Ms. Newsome testified that Talecia finally told her that her father had "put himself in her." Talecia's testimony was very hesitant, although not inconsistent as appellant's brief would argue. After demonstrating with anatomically correct dolls what "humping" was, Talecia testified that Wheezy, Bob, "and I think, my father" had done that to her. (Transcript p. 77.) She claimed to remember only one time when her father had done that to her. When first asked whether her father had ever touched her private she answered, "I don't know" and "Or I forgot." (Transcript p. 84.) After reopening the questioning of Talecia, she testified that her father had touched her privates with his hands. Maryann Trimarco, a social worker with the Cuyahoga County Department of Children and Family Services, testified that she interviewed Talecia in April of 1993. Talecia told Ms. Trimarco that her daddy had "humped" her one or two times. She demonstrated with the dolls that he had pulled her pants down and touched her on the vaginal area. Dr. Amy Richardson also testified to the results of her physical examination of Talecia. Dr. Richardson stated that there - 11 - existed an indication of "penetrating trauma, usually of a repeated nature" based upon the shape and condition of the hymen. (Transcript p. 115.) Her diagnosis was that Talecia had been sexually abused, probably in multiple episodes. Finally, Dr. Marilyn Vance testified to her psychological treatment of Talecia. The initial session with Talecia disclosed that several boys had been touching her and bothering her, including Wheezy and Bob. During the second session Talecia informed Dr. Vance that she had seen her father with his "thing stiff," "that he had gotten on top of her and was shaking, and that it hurt." (Transcript pp. 127-128.) Appellant was convicted of gross sexual imposition, R.C. 2907.05, and child endangering, R.C. 2919.22. Gross sexual imposition requires that one have had sexual contact with one whose age at the time of the contact was under thirteen. Clearly, the trial court could have found beyond a reasonable doubt that appellant had had sexual contact with Talecia, who was under the age of thirteen, on several occasions. Talecia's testimony was well supported by her mother and the health professionals who treated her. Child endangering requires that one create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support, resulting in serious physical harm. Again, the trial court could have found beyond a reasonable doubt, viewing the evidence in a light most favorable to the prosecution, that appellant created such a risk which caused - 12 - serious physical harm, when he failed to protect Talecia from the sexual abuse by his nephews while Talecia was in his care. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED IN DETERMINING THAT THE OFFENSES CHARGED WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT. Appellant asserts that upon a review of the elements of the two offenses of gross sexual imposition and child endangerment, it is clear that the elements correspond to such a degree that the commission one offense will result in the commission of another. Under State v. Anderson (1984), 16 Ohio App.3d 251, appellant argues, this finding would make them allied offenses of similar import and therefore, he appellant should only be convicted for one of the crimes. Appellant's argument is not well taken. The State argued at trial and in its appellate brief that the charge of child endangering was based, not upon the acts of appellant in abusing Talecia, but upon his failure to protect her from the sexual assaults of his nephews. Given evidence to prove the offense of child endangerment which is separate and distinct from the evidence to prove the gross sexual imposition offense, we find that the two are not allied offenses of similar import. Appellant's fourth assignment of error is overruled. The convictions on all three counts and the subsequent sentencing by the court are affirmed. - 13 - 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 Court of Common Pleas 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 Rules of Appellate Procedure. DAVID T. MATIA, P.J., AND NAHRA, J., CONCUR. ANN DYKE JUDGE 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, .