COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67135 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : BERNARD CROOM : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 18, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-293443 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. THOMAS E. SHAUGHNESSY, ESQ. Cuyahoga County Prosecutor 11510 Buckeye Road A. S. DEVER, ESQ. Cleveland, Ohio 44104 Assistant Prosecuting Attorney LOUIS BRODNIK, ESQ. BERNARD CROOM, Pro Se Assistant County Prosecutor Serial No. 284-325 8th Floor Justice Center P. O. Box 901 1200 Ontario Street Leavittsburg, Ohio 44430-0901 Cleveland, Ohio 44113 -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant Bernard Croom appeals his conviction for 1 murder and assigns ten errors for our review. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Michele Finklea was found murdered in her home on the morning of January 10, 1993. Death was caused by thrusts of a sharp instrument to Michele's neck, a deep wound through her heart, and perforations of the lung, liver, stomach, and back. In total, she was stabbed 25 times. A jury convicted her son Bernard Croom of the murder. The state called several witnesses who testified regarding her death, and their observation of Croom on that morning. Cleveland Paramedic Wayne Lach concluded Michele Finklea was murdered as recently as thirty minutes before he arrived on the scene. He arrived at 4:10 a.m. He observed Michele Finklea's body lying on the carpeted floor with her head propped against the couch. On the carpet was a large amount of blood, which had not dried and was mushy. He also noticed the blood on Michele's body was also moist. The blood was warm, and from his experience rigor mortis had not occurred. Lach recited his experience as a paramedic. He had been a paramedic for six years. He had worked for Cleveland for a year. 1 See Appendix for assigned errors. -4- Before that he had worked for various other fire departments. During his time as a Cleveland paramedic, he had observed 15 to 20 fatalities a month. His education included both Tri-C and on the job. Consequently, he offered his opinion as to the time of the murder and opined that although the stiffness existed in Michele's fingers, no stiffness existed in her joints. Moreover, the stiffness in her neck was from her head being propped against the couch. From this along with the mushy, bloody carpet and the lack of dry blood on the carpet and on Michele's body, he concluded the time of the murder was within a half hour to an hour before he arrived. Lach also described Croom's behavior as unusual. During his experience with 15 to 20 fatalities as a Cleveland Paramedic, he had observed many family members of fatality victims. These family members would neither make eye contact nor stay in the room with the victim. Lach said Croom did both. Lach said Croom was more interested in developing his theory of the crime event rather than his mother. Croom made sure that everyone in the room heard his story, even making eye contact, Lach said. Lach, furthermore, observed Croom's repetitive yelling would end suddenly when he exited the room where the body was located. Michele Finklea's brother, Alvin Croom, testified his sister had been upset with the long hours her sons were keeping. She had the only keys to the front screen door and had told him she was planning to lock them out in the future. He said she was also concerned about drugs in her house. -5- Homicide Detective John Bornfield found no forced entry to the house. The outside and back of the house revealed no suspicious entry. On the couch near Michele's body, he found a set of house keys. They matched the front screened security door and the front wooden door. During the police questioning of Croom, he said he entered the house with his keys. Yet, after he was released from police custody, he called the police to get his mother's keys to lock the front door of the house. Detective Bornfield also found a knife handle near Michele Finklea's body. The blade was located in the dining room. Michele's blood was on the broken knife, which was believed to be the murder weapon. Detective Bornfield observed Michele Finklea's body. Her shoulder, neck, and face were covered with blood. Gashes were about her body specifically the right side and back of her neck. The cuts on her arms indicated she either struggled or attempted to block the attack. Near her body on the couch was a bloody, broken crockpot. There was a thumb print on the inside of the broken piece, which matched Croom's thumb. Detective Prinz stated it was in a position consistent with having been placed there either before construction or after it was broken. Blood was on the walls in the living room, dining room, and kitchen. It was on the banister going into the upstairs. No blood was found in the victim's room. Her room was reasonably undisturbed. Money was on the dresser. -6- Croom's room was ransacked, and he claimed money had been taken. A blanket with a drop of blood on it was found in one of the opened dresser drawers. Later Croom's hands were examined for blood. Blood was found in his fingernails and cuticles. The blood analysis from the crime scene and Croom revealed Michele's blood on the crockpot, on Croom's jeans, on the broken knife, and on the blanket in Croom's room. Blood was also on the pillowcase near Michele's purse, which was Croom's blood. In the last bedroom, three year old Oliver Finklea, Jr. was located. He had been asleep. He shared this room with his other brother who was in the hospital suffering from a gunshot wound. In a statement to the police, Croom said he left home at midnight and returned at 4:00 a.m. He entered the house with his key and found his mother's purse open on the dining room table. In the living room, he found his mother. He immediately exited the house to seek help from the neighbors. He returned, lifted his mother's head, and knew she was dead. He said Oliver was in his mother's room asleep. Bornfield noticed Croom's jeans were torn on the right knee, and he had blood on his thigh. Bornfield asked him if he touched anything. He adamantly said "No." Croom told Bornfield the killer knew his mother because she would not allow a stranger to enter her home. Bornfield arrested Croom because of the inconsistency in his statement. He removed his pants and jacket. The jacket had blood on the left shoulder, but not the sleeves where Croom had said he -7- cradled his mother. Bornfield also noticed a fresh, untorn scratch mark on Croom's neck. Croom called the coroner to learn, if any, skin evidence was found under his mother's fingernails. Croom spoke with Detective Kovacic on the day he went to the station to obtain his mother's keys. While there he offered to Kovacic his belief as to how his mother was murdered. He said his mother would not allow a stranger in her house, and the killer used short, rapid thrusts with a knife to inflict the wounds. He explained he was not afraid to stay in the house because the killer was someone his mother knew. The officer was impressed that Croom so accurately portrayed how Michele was murdered. Three year old Oliver Finklea, Jr. had told his father Oliver Finklea, Sr. that Bernard had killed his mother. However, Croom had told Oliver, Sr. that his brother did not see anything. At trial, during questioning by the prosecution, Oliver, Sr. testified his son had identified the murderer. On cross-examina- tion the defense asked about William Blunt, and whether he knew that Blunt was a suspect. Oliver, Sr. replied "yes." On re- direct, the prosecution asked if Blunt was the person his son identified, and Oliver, Sr. said "No." On re-cross, the defense asked if Oliver, Jr. had been inconsistent in his identification of the murder. Oliver, Sr. said "No." Thereafter, the court allowed the prosecution to ask who Oliver, Jr. consistently identified, and Oliver, Sr. said "he first said it was a black man and then he said -8- it was 'Ber.'" Oliver, Sr. said he identified Bernard Croom as the killer. Croom, during questioning by the police, was asked if he killed his mother. He never denied it, he simply asked to take a lie detector test. During the interview the police described Croom as emotionless, cool, and calm. After he was arrested, he cried with heaving, sighing, noises, the officer termed phony. Croom offered testimony of an alibi but failed to ask the court for an instruction on the alibi defense. Croom's alibi witness said Croom left the Q-Five Lounge in East Cleveland at 3:30 a.m. Croom said in one statement to the police that he arrived at his house at 3:53 a.m.; in another statement he said 3:45 a.m.; in another he said 4:00 a.m. On February 25, 1993 Detective Kovacic drove his car from the Q-Five Lounge to Michele Finklea's home under similar conditions as the night in question at a speed of 27 miles per hour. He determined the drive could be made in nine and a half minutes. In his first assignment of error, Croom urges the trial court committed plain error by failing to instruct the jury on the defense of alibi. We disagree. R.C. 2945.11 requires the trial court to instruct the jury with all the law required to return a verdict. If a defendant does not adduce evidence tending to show that he was elsewhere when the crime occurred, a jury instruction on alibi is not warranted. State v. Mitchell (1989), 60 Ohio App.3d 106 at paragraph three of the syllabus, citing State v. Ferguson (Dec. 7, 1987), Cuyahoga App. No. 53029, unreported. -9- "Whether or not an alibi instruction is requested, the failure to give such an instruction is harmless error when the evidence clearly supports a guilty verdict beyond a reasonable doubt." State v. Mitchell (1989), 60 Ohio App.3d 106 at paragraph three of the syllabus. In the present case, Croom's alibi is he left the Q-Five Lounge at 3:30 a.m. His alibi witness testified Croom should have arrived at his home in fifteen minutes on the night of the homicide. Therefore, he could have been home by 3:45 a.m. Michele Finklea was killed at some time before 4:06 a.m., which is the time her neighbor called 911. Thus, Croom did not account for the block of time between 3:45 and 4:06 a.m. Accordingly, Croom failed to adduce evidence tending to show he had an alibi for the time in which his mother was murdered. Therefore, no alibi instruction was warranted. In his second assignment of error, Croom asserts the trial court erred in allowing Paramedic Lach to render an opinion on both the time of the crime and his demeanor and behavioral or mental state at the crime scene. Croom concludes unless a matter is in the comprehension of a lay witness, then an expert is necessary. He suggests only a doctor can determine rigor mortis and only a psychiatrist can access behavior. Since Lach is neither, he could not testify as to either the time of the crime or Croom's behavior. We disagree. Under Evid.R. 701, a lay witness can testify about their perceptions when the testimony is to determine a fact at issue. Furthermore, Lach was qualified by his knowledge, skill, -10- experience, training, and education. Therefore, he could provide his opinion. Lach was qualified as an expert. He testified about both his formal and job training. His education included completed courses at Tri-C and on the job. He had been with the city for a year and had worked as a paramedic for five years. He had examined 15 to 20 fatalities a month since becoming a Cleveland paramedic. After stating his qualifications and examining Michele Finklea, he gave his opinion. He testified the time of the crime was as recent as thirty minutes before he arrived. He based this opinion on the fact that the body was warm and the lack of stiffness in the joints. He said the only stiffness was in her fingertips and neck. The stiffness in the neck he attributed to her head being propped against the couch. He also observed the bloody carpet and said it was mushy and not dried. On her body the blood was not dry. He said, based on his experience, these factors signaled the absence of rigor mortis and a recent crime. When a witness is speaking from experience and the observation and experience aids the factfinder, the witness's testimony is properly admitted under Evid.R. 701. State v. Norman (1982), 7 Ohio App.3d 17 (where a police officer provided lay opinion about shot pattern made by a shotgun). Here, Lach testified Croom's behavior and demeanor was unusual compared to other relatives of crime victims he had observed. He -11- described Croom's sudden behavioral change when he would leave the room and the constant eye contact when explaining his theory of the murder. Lach found Croom more concerned with his theory of the case than his mother's death. This testimony was based on Lach's observations and was offered to aid in the determination of an issue in the case. Consequently, under Evid.R. 701, Lach's lay testimony on Croom's behavior was correctly admitted into evidence. In his third assignment of error, Croom argues the verdict was against the manifest weight of the evidence. The standard for reviewing the manifest weight of the evidence is as follows: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. Resolving inconsistencies in the evidence and determining the credibility of the witnesses is primarily up to the factfinder. State v. DeHass (1967), 10 Ohio St.2d 230, 231. See, also, State v. Jenks (1991), 61 Ohio St.3d 259, 279. "Where reasonable minds can reach different conclusions upon conflicting evidence, determination as to what occurred is a question for the trier of fact. It is not the function of an appellate court to substitute its judgment for that of the factfinder. Rather, upon appellate review, the evidence must be viewed in the light most favorable to the prosecution." Id. -12- In the present case, the thumb print on the inside of the broken crockpot, the victim's blood on a blanket in Croom's bedroom, and the blood under his fingernails and cuticles clearly link him to the murder. There were also several inconsistencies in Croom's written and oral statements that made his account incredible. He denied touching the crockpot, but his fingerprints were found inside of it. He had a fresh scratch mark on his neck. He suggested the killer was someone the victim knew and would let in her home at 4:00 a.m.; there was no forced entry; and he did not have a key to the security door. He stated his relationship with his mother was normal, but other evidence revealed they did not get along and she was ready to put him out of the house. Furthermore, several witnesses testified his actions were uncharacteristic of a grieving son. After a careful review of all the evidence, we find that the verdict was not against the manifest weight of the evidence. In his fourth assignment of error, Croom argues he was denied a fair trial by several instances of prosecutorial misconduct. "The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused." State v. Lott (1990), 51 Ohio St.3d 160, 165. A prosecutor should be given wide latitude in closing arguments and the use of colorful language that accurately characterizes the offense. See State v. Frambach (1992), 81 Ohio App.3d 834, 845. The prosecutor in the present case accurately described this particular murder as a "brutal, vicious crime caused -13- by somebody in an intense state of rage." Because the prosecutor's remarks accurately reflected the crime, there was no misconduct. Croom also argues it was improper for the prosecutor to cross- examine his uncle, Alvin Croom, about his nephews' "business activity," and insinuate Croom and his brother were drug dealers. Evid.R. 403(A) provides: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evidence of Croom's involvement with drugs was probative in as much as it tended to explain the conflict he had with his mother. Cross-examination revealed Finklea was, in fact, concerned about her sons' involvement with drugs. Moreover, it tended to explain Croom's initial statements to the police in which he suggested to the police his brother was involved in the drug trade in the belief it was related to the crime. Finally, Croom argues it was improper and misleading to call him a maniac and cites State v. Smith (1984), 14 Ohio St.3d 13 (held name-calling which insinuates defense counsel suborned perjury or tends to mislead the jury is prejudicial). While calling a defendant a maniac was not proper, it was also not prejudicial. In his closing argument, the prosecutor made the following argument: If you recall some of the wounds showed one entrance wound to the chest and a number of different perforations in the lungs. So that jabbing motion with that knife as was repeated more than one time, a number of times, to cause -14- multiple injuries to the lung and only one entry wound to the surface of the skin. That's what happened. And it shows the state of mind of this maniac, Bernard Croom. He was in a rage. And that rage was directed at his mother. Maniac has been defined as "a person characterized by an inordinate or ungovernable enthusiasm for something." Webster's New Collegiate Dictionary (1976) 699. The murder in this case could accurately be described as maniacal. See Frambach, supra. Although it was improper to call Croom a maniac, there is no possibility the jury would be misled or be prejudiced by this reference. Accordingly, this argument has no merit. In his fifth and sixth assignments of error, Croom argues it was improper to admit the presumably incompetent hearsay testimony of Oliver Finklea, Sr. that his three year old son, Oliver, Jr., identified Bernard Croom as the murderer. Hearsay evidence of a child's out-of-court identification is not admissible without the benefit of a voir dire examination and the opportunity for cross-examination. See State v. Boston (1989), 46 Ohio St.3d 108. However, a party may "open the door" to such evidence. "The concept of 'opening the door' is based upon a theory that it is unjust to prevent a party from introducing irrelevant evidence to rebut irrelevant evidence that was submitted by the opposing party." State v. Staats (Apr. 13, 1994), Summit App. No. 15706, unreported. "Furthermore, the rule of 'invited error,' a corollary of the principle of equitable estoppel, prohibits a party who induces error in the trial court from taking -15- advantage of such error on appeal." State v. Woodruff (1983), 10 Ohio App.3d 326, 327. Invited error would preclude a defense counsel who induces hearsay evidence on cross-examination from precluding further hearsay testimony on re-direct examination. See State v. Miller (1988), 56 Ohio App.3d 130. In the present case, defense counsel opened the door to the hearsay testimony of Oliver Finklea, Sr. and invited the error. Accordingly, Croom is precluded from assigning an error his counsel created. In his seventh assignment of error, Croom argues the trial court erred in failing to admonish the jury to disregard hearsay testimony regarding whether he and the victim were "getting along." Evid.R. 803(3) provides as follows: "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)***." In the present case, the statement made by the victim to Oliver Finklea, Sr. was clearly admissible to show her state of mind and mental feeling about her son, Bernard Croom. Accordingly, this assignment of error has no merit. In his eighth assignment of error, Croom argues he was denied effective assistance of counsel. The standard of review for ineffective assistance of counsel requires a two-part test and is set forth in Strickland v. Washington (1994), 466 U.S. 668. See, also, State v. Bradley (1989), 42 Ohio St.3d 136. ***[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. The -16- defendant must also prove "***there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Where defense counsel uses a debatable trial tactic and makes a tactical error, that error is not the proper basis for a claim of ineffective assistance of counsel. See State v. Clayton (1980), 62 Ohio St.2d 45, 48-49. In this case, defense counsel made a tactical error in his cross-examination of Oliver Finklea, Sr. about his son's hearsay statements and opened the door to re-direct examination. Although it was clearly a tactical error, it was a debatably sound trial tactic to attempt to impeach the credibility of Oliver Finklea Sr. and discredit his son's statement. Accordingly, this assignment of error is not well taken. In his first supplemental assignment of error, Croom argues there was insufficient evidence to support his conviction. The test for sufficiency of the evidence is whether "*** after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia (1979), 443 U.S. 307, 319. After a careful review of all of the evidence, we find there was sufficient evidence to convict Croom of murder. In his second supplemental assignment of error, Croom argues the cumulative effect of all of the errors in this case denied him a fair trial. "Although violations of the Rules of Evidence during -17- trial, singularly, may not rise to the level of prejudicial error, a conviction will be reversed where the cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial." See State v. Allen (1995), 73 Ohio St.3d 626. After a careful review of the record this court finds the cumulative effect of the errors in this trial was not so great that they deprived Croom of a fair trial. Accordingly, this assignment of error has no merit. Judgment affirmed. -18- 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 Rules of Appellate Procedure. JOHN T. PATTON, C.J., CONCURS. SARA J. HARPER, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION) PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -19- APPENDIX ASSIGNMENTS OF ERROR I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE DEFENSE OF ALIBI IN VIOLATION OF OHIO REVISED CODE SECTION 2945.11. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING A LAY WITNESSES TO TESTIFY TO MATTERS REQUIRING EXPERT TESTIMONY. [sic] III. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. IV. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY SEVERAL INSTANCES OF PROSECUTORIAL MISCONDUCT AT TRIAL. V. THE TRIAL COURT ERRED BY DENYING DEFENDANT HIS RIGHT OF CONFRONTATION BY PERMITTING THE STATE TO ELICIT TESTIMONY THAT DEFENDANT'S THREE YEAR OLD BROTHER ALLEGEDLY ACCUSED HIM OF THE CRIME. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING HEARSAY TESTIMONY FROM AN INCOMPETENT DECLARANT OVER DEFENDANT'S OBJECTION. VII. THE TRIAL COURT ERRED BY FAILING TO ADMONISH THE JURY TO DISREGARD INADMISSIBLE HEARSAY EVIDENCE REGARDING THE DEFENDANT'S RELATIONSHIP WITH THE VICTIM. VIII. THE DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL WAS DENIED BY THE INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS. SUPPLEMENTAL ASSIGNMENTS OF ERROR A. THE DEFENDANT WAS DENIED DUE PROCESS OF THE LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN HE WAS CONVICTED WITH INSUFFICIENT EVIDENCE. B. THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED THE DEFENDANT DUE PROCESS OF LAW AND HIS RIGHT TO A FAIR TRIAL UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67135 STATE OF OHIO : : : PLAINTIFF-APPELLEE : D I S S E N T I N G : v. : O P I N I O N : BERNARD CROOM : : : DEFENDANT-APPELLANT : DATED: JANUARY 18, 1996 HARPER, J., DISSENTS: I respectfully dissent from the majority's affirmance of appellant's conviction for murder. I find appellant's fifth and sixth assignments of error require a reversal of his conviction, and a remand of the case for new trial. The majority brushes over appellant's fifth and sixth assignments of error by reasoning that appellant invited the introduction of Oliver, Jr.'s identification of appellant as the decedent's assailant through Mr. Finklea's cross-examination. The trial court likewise found that appellant invited the error. I am fully aware of the doctrine of "invited error," but I also recognize that "'[t]here is considerable risk *** that this doctrine of invited error may be applied "mechanically to inappropriate situations" ***.'" State v. Burrell (1993), 89 Ohio App.3d 737, 745, quoting Louisell & Mueller, Federal Evidence (1977) Section 19, 103-104 and Traynor, The Riddle of Harmless - 2 - Error 76 (1970). The majority's application of the invited error doctrine to appellant's fifth and sixth assignments of error is the "mechanical" application cautioned against in Burrell. Appellant's fifth assignment of error deals with that portion of Oliver Finklea, Sr.'s testimony which stemmed from his conversation with his son, Oliver, Jr., who was three years old at the time of the incident and under ten years of age at the time of trial. Mr. Finklea was allowed to testify that in his conversations with Oliver, Jr. about who hurt the decedent, Oliver, Jr. was consistent; identified the attacker as a black male; and named "Ber" as the assailant. Appellant argues that this testimony essentially amounted to an eyewitness identification, but without his right to confront Oliver, Jr., all in violation of the Sixth Amendment to the United States Constitution. Appellant raises a similar issue in his sixth assignment of error, alleging that Oliver, Jr.'s statement that "Ber" committed the crime was inadmissible hearsay. Moreover, he argues that this error was compounded since Oliver, Jr. was presumed an incompetent witness under Evid.R. 601(A). The Supreme Court of Ohio revisited Evid.R. 601(A) in State v. Said (1994), 71 Ohio St.3d 473 and State v. Clark (1994), 71 Ohio St.3d 466. These cases disclose the egregious error committed by the majority in the present case. Oliver, Jr. did not directly testify at appellant's trial. However, his statements were admitted through Mr. Finklea's testimony. "As Professor Wigmore explains, hearsay statements must - 3 - 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 ***.'" (Emphasis sic.) Said, 475-476. See, State v. Boston (1989), 46 Ohio St.3d 108, 114. One of the few qualifications of a witness is his or her competency. Id. Evid.R. 601(A), the general rule of competency, provides that every person is a competent witness except "[t]hose 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." Children under the age of ten years are not presumed incompetent under the rule; rather, the proponent of the witness bears the burden of proving that the child is capable of receiving just impressions and truthfully relating them. Clark, 469. Under these circumstances, a trial court must conduct a competency hearing when faced with a child witness under the age of ten years. Said, 476; Clark, 469, citing State v. Wilson (1952), 156 Ohio St. 526; see, State v. Frazier (1991), 61 Ohio St.3d 247. The Said court explained the purpose behind the competency hearing as follows: A competency hearing is an indispensable tool in this [Evid.R. 807 case] and similar cases. A court cannot determine the competency of a child through consideration of the child's out-of-court statement 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 - 4 - 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 400, 103 N.E.2d at 556. Said, 476. As stated supra, as a preliminary matter, the trial court first had to find that Oliver, Jr. was a competent witness under Evid.R. 601(A) before considering whether his statements were admissible hearsay. The trial court, however, allowed these statements at trial without first determining Oliver, Jr.'s competency in violation of Evid.R. 601(A), and the Supreme Court of Ohio's directive in Said and Clark. The trial court compounded the error by not determining the second issue, i.e., whether Oliver, Jr.'s statements were admissible hearsay. The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a defendant's confrontation rights. An alleged violation of the Confrontation Clause is commenced by determining the availability of a declarant for cross-examination. If the declarant is not available, the truthfulness of his or her hearsay statements are not subject to inquiry. "Therein lies a major problem because such statements, if accepted at face value, can be used to make a case against a defendant without ever giving the defendant a chance to show that the statements may be unreliable or were made under circumstances that are, at the time of trial, being taken out of - 5 - context." Boston, 125. The jury is ultimately left with no framework with which to calculate the weight to be given the admitted hearsay. Id. The Supreme Court of Ohio revisited the issue of hearsay statements of child declarants as they relate to the Confrontation Clause in State v. Storch (1993), 66 Ohio St.3d 280. The court noted State v. Dever (1992), 64 Ohio St.3d 401 wherein it was held: "The admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant's right to confrontation." Id., paragraph three of the syllabus, (White v. Illinois (1992), 502 U.S. , 112 S.Ct. 736, 116 L.Ed.2d 848 followed). However, the Storch Court clarified this holding by finding that the admission may nonetheless violate our state constitutional right of confrontation contained in Section 10, Article I, Ohio Constitution. Storch, 291; see, State v. Ulis (1993), 91 Ohio App.3d 656; State v. McWhite (1993), 91 Ohio App.3d 508. Once again, however, appellant's constitutional right to confrontation was violated in this case regardless of whether the federal or state right to confrontation was applicable, and regardless of whether Oliver, Jr.'s testimony was admissible hearsay under the general rules of hearsay or a firmly rooted hearsay exception such as Evid.R. 803(4) or 807. The trial court permitted the introduction of Oliver, Jr.'s identification of appellant as the decedent's assailant through Mr. Finklea, all without conducting a competency hearing, and consequently - 6 - determining the admissibility of Oliver, Jr.'s hearsay statements. See, Storch, Dever, Boston, Ulis, and McWhite. The fact that this line of case deals with firmly rooted hearsay exceptions only intensifies the trial court's and majority's error with respect to Oliver, Jr.'s statements to Mr. Finklea. Oliver, Jr.'s statements could not be admitted pursuant to the firmly rooted hearsay exceptions, either Evid.R. 803(4) (statement for medical diagnosis or treatment) or Evid.R. 807 (child statement in abuse cases), even if the trial court complied with the competency hearing requirement. Moreover, the record fails to conclusively show that the statements would be admissible under Evid.R. 803(2) (excited utterance). Based upon the foregoing, I conclude that appellant's fifth and sixth assignments of error should have been sustained, requiring a reversal of his conviction. The majority neatly sweeps the trial court's errors under a rug, including a constitutional one, and indecorously justifies the action with the "invited error" .