COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70211 STATE OF OHIO : : PLAINTIFF-APPELLEE : : JOURNAL ENTRY -vs- : AND : OPINION LAYSHON FRANKLIN : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COOURT OF COMMON PLEAS CASE NO. CR-327389 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: RICHARD J. BOMBIK (#0009962) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: VALERIE R. ARBIE (#0061962) Assistant Public Defender 1200 West Third St. N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 - 2 - SPELLACY, C.J.: Defendant-appellant Layshon Franklin ("appellant") appeals his conviction for involuntary manslaughter during the commission of a felony, that being felonious assault in violation of R.C. 2903.04(A). Appellant assigns the following error for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED LAYSHON FRANKLIN OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XIV OF THE OHIO CONSTI- TUTION WHEN IT PERMITTED A CHILD WITNESS TO TESTIFY AFTER CONDUCTING A COMPETENCY HEARING WHICH WAS INSUFFICIENT AS A MATTER OF LAW. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. On August 28, 1995, appellant was indicted on one count of murder in violation of R.C. 2903.02 with a firearm specification. A jury trial was subsequently held on November 27, 1995, through November 30, 1995. On December 1, 1995, appellant was found guilty of involuntary manslaughter in the commission of a felony, ORC 2903.04, a lesser and included offense under the charge of the indictment. (Journal Entry, December 12, 1995). Appellant was subsequently sentenced by the trial court to a term of three (3) years actual incarceration on the gun specification, to be served prior to ten (10) years to twenty-five (25) years, on involuntary manslaughter in commission of a felony. (Journal Entry, February 12, 1996). I. The history of this case reveals the following. - 3 - This case arises from an incident which occurred on August 9, 1995, at 9802 Parkview Avenue, Cleveland, Ohio. On the date in question, appellant entered the property to observe a craps game which was taking place in the backyard. 9802 Parkview was the home of Ms. Terri Turner, who was inside the residence with her husband Jeffery Rivers at the time appellant arrived. Some time after appellant had arrived, Turner decided to go to the store. (Tr. 320). At this time, Rivers told Turner to tell everyone in the backyard to leave the premises. (Tr. 320). As Turner entered the backyard, she asked appellant to leave. (Tr. 303-304). Subsequently, appellant and Turner began to argue. (Tr. 303-304). Turner, however, proceeded to get into the driver's side of her vehicle and start the car. Appellant went to the passenger side of the vehicle and pulled out a gun. At this time, Jeffery Turner, Terri Turner's nine-year old son, who had been observing the entire incident, heard appellant say to Turner "I cap you", meaning "I'll shoot you". (Tr. 370, 380). Jeffery Turner further testified that his mother told appellant that she was not afraid of any gun. (Tr. 370). Following this verbal exchange, Jeffery Turner stated that he observed appellant put the gun inside the window of the vehicle. (Tr. 374). Subsequently, Jeffery Turner heard a shot and ran back inside the house. (Tr. 372). Jeffery Rivers testified at trial as well. Rivers stated that he had observed the argument between appellant and Turner from - 4 - inside the house and, upon seeing appellant with a gun, began to make his way to the car. Rivers, however, heard a gunshot before he could get out the door. (Tr. 324). After hearing the gunshot, Rivers observed Turner tilted to the side leaning out of the car with blood coming out of her head. (Tr. 325). Rivers noticed that nobody else was in the area at that time. (Tr. 325). Appellant testified at trial on his own behalf. In particular, appellant stated that he had been involved in an altercation prior to August 9, 1995 and, as a result, he had gone to the hospital for treatment. (Tr. 472). On August 9, 1995, appellant, after leaving the hospital, went to pick up his daughter from her grandmother's house which was located in the Parkview area. (Tr. 474). Prior to picking up his daughter, however, appellant learned that the guys who had previously jumped him were looking for him in the neighborhood. (Tr. 474). As a result, appellant testified that he went to Turner's residence and retrieved a gun from under the porch. (Tr. 475). Appellant further stated that after he retrieved the gun, he left the premises, but later returned. (Tr. 476). Approximately fifteen minutes after appellant returned to Turner's residence, Turner came out of the house. At this time, appellant testified that Turner told him to leave her house. (Tr. 478). Appellant, however, told Turner that he did not want to hear it from her that day because his head and ear were hurting. (Tr. 478). Appellant and Turner began arguing and appellant pulled the - 5 - gun out and began waving it. (Tr. 478). Subsequently, as the two continued to argue, Turner got into her car and started it up. Appellant reached into the passenger window of the car and began waving the gun. (Tr. 479). Turner, however, told appellant that she was not afraid of him or the gun. Subsequently, appellant tried to hit Turner with the gun. (Tr. 481). However, Turner leaned out as if she was trying to get out of the car and the gun went off. (Tr. 481). Appellant testified that he took off his shirt, wrapped the gun in it, and began running through the back yard. (Tr. 481). Furthermore, appellant stated that he did not intentionally pull the trigger, nor was he trying to kill Turner by hitting her. (Tr. 482). Subsequently, appellant turned himself into the police for shooting Turner. I. In his sole assignment of error, appellant contends that the competency hearing held by the trial court was insufficient as a matter of law and amounted to an abuse of discretion. In particular, appellant contends that the trial court conducted an incomplete voir dire examination of Jeffery Turner when it failed to inquire into the child's ability to obtain, retain and eventually relate information. 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. A determination of - 6 - competency, therefore, will not be reversed absent an abuse of discretion. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 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 * * *." 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. State v. Frazier (1991), 61 Ohio St.3d 247, 251. 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. Id. See State v. Wilson (1952), 156 Ohio St. 525. The Ohio Supreme Court in Frazier set forth the following factors to be taken into consideration in determining whether a child under ten is competent to testify: (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 - 7 - child's appreciation of his or her responsibility to be truthful. Frazier, supra. See also State v. Tucker (August 17, 1995), Cuyahoga App. No. 68206, unreported. In the present case, the trial court conducted a competency hearing prior to Jeffery's testimony. During this hearing, both defense counsel and the prosecution were present. The record reveals that the trial judge elicited from Jeffery his grade in school, his teacher's name, as well as the place and individuals with whom he was currently living. In addition, the trial court ascertained that Jeffery understood the difference between the truth and a lie and that you get in trouble if you lie. At the end of the trial court's questioning, defense counsel questioned Jeffery on what happens if you do not tell the truth. Defense counsel also asked Jeffery "[s]o when you testify in court, what are you going to do?"; to which Jeffery responded "[t]ell the truth." (Tr. 338). The trial court satisfactorily inquired of the child in a manner sufficient to determine the necessary prongs of Frazier, supra. Our review of the competency hearing fails to show that the trial court abused its discretion in finding Jeffery competent to testify. Accordingly, appellant's assignment of error is not well taken. Judgment affirmed. - 8 - 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. DAVID T. MATIA, J. CONCURS; TIMOTHY E. McMONAGLE, J. CONCURS. (See Concurring Opinion Attached) LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). - 9 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70211 STATE OF OHIO : : Plaintiff-appellee : : vs. : CONCURRING OPINION : LAYSHON FRANKLIN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : __JANUARY 30, 1997__ TIMOTHY E. McMONAGLE, J., CONCURRING: Although I concur with the decision of the majority today, I write separately to state my reasons for affirmance. After careful review of the record before us, I do not see that the dialogue between the judge and the child during the voir dire takes into consideration each of the factors enunciated by the court in Frazier, supra. I, therefore, would not base my affirmance on that premise as the majority does here. Appellant claims that it was an abuse of discretion and prejudicial error to permit the child to testify following a competency hearing that was insufficient, as a matter of law, for - 2 - its failure to inquire of the child his ability to recollect events and relay the information at a later time. A two-step process is to be undertaken when an appellant alleges that it was prejudicial error to allow the jury to hear certain testimony. First, we must determine whether it was error to allow the jury to hear that testimony and second, if so, whether such error was prejudicial or 1 harmless. "The determination of competency is within the sole discretion of the trial court. [Citations omitted.] Absent a showing of an abuse of discretion by the trial court, this court will not disturb 2 its ruling." Appellant complains that the failure of the trial judge to inquire during the voir dire into the child's ability to obtain, retain, and relate information as required by the standard of Frazier is fatal to the determination of the competency of the child by the court. On the contrary, the court in Frazier did not limit its review to the voir dire examination in its determination of the child's competency but, in fact, analyzed the testimony that the child gave at trial in its determination as to whether each of the factors had been met. The Frazier court, upon a review of the complete record, determined that the child witness had met the criteria of competency. Similarly, in the matter sub judice, when I review the complete record before this court, I find that the record in toto demonstrates that this child witness was able to 1 State v. Davis (1975), 44 Ohio App.2d 335. 2 State v. Lee (1983), 9 Ohio App.3d 282, 283. - 3 - accurately recollect events and relate that information as required by the Frazier court. Accordingly, the trial court did not abuse its discretion in allowing the child to testify. .