OPINIONS OF THE SUPREME COURT OF OHIO 

 

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The State of Ohio, Appellant, v. Clark, Appellee. 

[Cite as State v. Clark (1994), Ohio St.3d .] 

Witnesses -- Competency of child witness -- Evid.R. 601(A), 

 applied. 

1. Under the plain meaning of Evid. R. 601(A), a child witness 

 ho is ten years of age or older at the time of trial, but 

 who was under the age of ten at the time an incident in 

 question occurred, is presumed competent to testify about 

 the event. (Huprich v. Paul W. Varga & Sons [1965], 3 

 Ohio St.2d 87, 3 O.O.2d 61, 209 N.E.2d 390, overruled.) 

2. A trial judge, in the exercise of his or her discretion, 

may choose to conduct a voir dire examination of 

 a child witness who is ten years of age or older if the 

 judge has reason to question the child's competency. The 

 decision not to voir dire a child witness under such 

 circumstances will be viewed under an abuse-of-discretion 

 standard. In such circumstances, absent a compelling 

 reason to act otherwise, the failure to conduct a 

 voir-dire examination of a child witness who is ten years 

 of age or older at the time of trial will not constitute 

 reversible error. 

 (No. 93-2490 -- Submitted November 15, 1994 -- Decided 

December 30, 1994.) 

 Certified by the Court of Appeals for Franklin County, No. 

93AP-193. 

 On June 3, 1992, a Franklin County Grand Jury indicted 

appellee, Roscoe P. Clark, on one count of felonious sexual 

penetration in violation of R.C. 2907.12, and three counts of 

gross sexual imposition in violation of R.C. 2907.05. The 

indictment alleged that the offenses were committed between 

July 1 or July 4, 1985, and July 31, 1985, involving appellee's 

then-stepdaughter, Danyal Campbell. Upon recommendation of the 

prosecutor, the trial judge entered a nolle prosequi as to 

count one of the indictment (felonious sexual penetration). 

Following appellee's waiver of a trial by jury, the remaining 
three counts of gross sexual imposition were tried before the 

court beginning December 7, 1992. 

 During trial, the state's primary witness was the victim, 

Danyal, who was sixteen at the time of trial. Danyal testified 

that in 1985, at the age of nine, she resided with her mother 

and appellee in Columbus, Ohio. Danyal testified that on 

various occasions during the period of July 4, 1985 to August 

1, 1985, she accompanied appellee in his pickup truck to 

perform various errands, such as picking up iron and aluminum 

scrap to deliver to junkyards. She stated that while on these 

errands, appellee drove to Eastland Square where he picked up 

aluminum from a large dumpster located in a parking lot. On 

three or four of those occasions, Danyal asserted appellee 

"would pull over beside the dumpster where there would be no 

people, and he took his hand down my shirt and from my shirt 

down to my shorts ** * [a]nd then he would touch my vaginal 

areas." 

 Danyal further testified that on several occasions 

appellee drove her to a location near the Olentangy River where 

"[h]e would do like the same thing, but at Olentangy, he 

wouldn't go down to my pants. He would just stay like on my 

chest areas." She claimed that she did not tell anyone about 

these events because appellee "told me my mom already knew and 

she would just get mad at me for telling her. *** I was scared. 

*** He told me that if I told, that he would get me in a lot of 

trouble and get me put in DH, which is a [juvenile detention] 

center." During this period, Danyal said she maintained a 

diary in which she recorded "everything." 

 Danyal testified that in the summer of 1991, she ran away 

from home with one of her friends. She claimed that when she 

returned home two days later, her friend's mother informed 

Danyal that she had found Danyal's diary and had read the 

contents. As a result, Danyal stated she burned the diary. 

Danyal also indicated that at some point her own mother learned 

of the incidents involving appellee and that she suggested that 

Danyal seek counseling. Thereafter, Danyal testified that she 

spoke with a police detective about the abuse to whom she 

provided detailed information as to the events that had 

occurred, and the locations at which they had occurred. 

 At no time during Danyal's testimony or any other stage of 

the trial did appellee challenge Danyal's competency to testify 

as to the events which occurred when she was nine years old. 

 Detective A.J. Bessell, an investigator for the Child 

Abuse Unit of the Columbus Police Department, also testified on 

behalf of the state. He related that in February 1992, he met 

with Danyal concerning her allegations of sexual abuse. During 

one of their meetings, Detective Bessell stated that Danyal 

prepared a written description of the events and locations 

about which she had spoken. He further stated that afterwards, 

he drove Danyal to the locations she identified as the places 

where the abuse occurred, namely, the rear of Eastland Square 

Mall and the rear of 1117 Olentangy River Road. 

 Upon completion of the state's case-in-chief, John 

Hamilton, an assistant director of Big Brothers/Big Sisters, 

testified on behalf of appellee. Hamilton stated that his 

organization conducts a summer camp in Hocking County, Camp 

Oty' Okwa. He identified and described several camp records 
which indicated that Danyal had attended the camp's session 

from June 30, 1985, through July 13, 1985. He also testified 

that it would be highly irregular for a child to leave the camp 

prior to the end of a session. 

 Appellee testified on his own behalf. He denied ever 

taking Danyal to Eastland Square or Olentangy River Road. He 

denied having engaged in any sexual conduct with his 

then-stepdaughter. Appellee also claimed that in 1985, he 

owned a Ford station wagon, not a pickup truck as Danyal had 

stated. 

 On January 19, 1993, the trial judge issued an entry in 

which he found appellee guilty of each of the three counts of 

gross sexual imposition. The court imposed a determinate 

sentence of two years as to each count, with all three counts 

to be served concurrently. The court of appeals reversed the 

judgment of the trial court finding reversible error in the 

trial court's failure to conduct an examination of Danyal 

Campbell to determine whether she was competent to testify 

about events that occurred when she was nine years old. 

 Finding its decision to be in conflict with the decisions 

of the Twelfth District Court of Appeals in State v. Self. 

(July 29, 1991), Clermont App. No. CA-90-10-099, unreported, 

and State v. Smith (Dec. 30, 1991), Butler App. No. 

CA91-06-104, unreported, the appellate court certified the 

record of the case to this court for review and final 

determination. 

 

 Michael Miller, Franklin County Prosecuting Attorney, 

Joyce S. Anderson and Michael L. Collyer, for appellant. 

 Judith M. Stevenson, Franklin County Public Defender, and 

David L. Strait, Assistant Public Defender, for appellee. 

 Alice Robie Resnick, J. The sole issue certified for our 

review is whether a trial court is under a mandatory duty to 

voir dire a witness, on the question of the witness's 

competency, when the witness is ten years or older at the time 

of trial but was under ten years of age at the time of the 

events giving rise to the witness's testimony. For the reasons 

which follow, we answer that question in the negative. 

 Evid. R. 601 sets out the general rule of competency for 

all witnesses. It states: 

 "Every person is competent to be a witness except: 

 "(A) Those 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.***" 

 A plain reading of Evid. R. 601(A) leads to the conclusion 

that the competency of individuals ten years or older is 

presumed, while the competency of those under ten must be 

established. State v. Wallace (1988), 37 Ohio St.3d 87, 94, 

524 N.E.2d 466, 472. "The rule favors competency, conferring 

it even on those who do not benefit from the presumption, such 

as children under ten, if they are shown to be capable of 

receiving 'just impressions of the facts and transactions 

respecting which they are examined' and capable of 'relating 

them truly.'" Turner v. Turner (1993), 67 Ohio St.3d 337, 343, 

617 N.E.2d 1123, 1128. As a result, absent some articulable 
concern otherwise, an individual who is at least ten years of 

age is per se competent to testify. 

 The presumption established by Evid. R. 601(A) recedes in 

those cases where a witness is either of unsound mind or under 

the age of ten. In such cases, the burden falls on the 

proponent of the witness to establish that the witness exhibits 

certain indicia of competency. This court established a test 

for determining competency in State v. Frazier (1991), 61 Ohio 

St.3d 247, 574 N.E.2d 483, syllabus, certiorari denied 

(1992), U.S. , 112 S.Ct. 1488, 117 L.Ed.2d 629. There, 

we held that in determining whether a child under ten is 

competent to testify, the trial court must take into 

consideration: the child's ability to receive accurate 

impressions of fact, the child's ability to recollect those 

impressions, the child's ability to communicate what is 

observed, the child's understanding of truth and falsity, and 

the child's appreciation of his or her responsibility to tell 

the truth. Once a trial judge concludes that the threshold 

requirements have been satisfied, a witness under the age of 

ten will be deemed competent to testify. 

 At this juncture, we note that our decision in Turner v. 

Turner, supra, included as dicta a discussion of the 

presumptions created by Evid. R. 601(A). First, we stated that 

the rule confers competency "even on those who do not benefit 

from the presumption ***." 67 Ohio St.3d at 343, 617 N.E.2d at 

1128. We then stated that in cases involving witnesses under 

the age of ten or of unsound mind, "the presumption is of 

incompetency ***" until proven otherwise. Id. Clearly the 

rule cannot create two opposing presumptions. Further 

reflection upon and review of the plain meaning of Evid. R. 

601(A) leads us to clarify our discussion in Turner by stating 

that a witness under the age of ten is not presumed 

incompetent, but rather, the proponent of the witness' 

testimony bears the burden of proving that the witness is 

capable of receiving just impressions and relating them 

truthfully. 

 It is well settled that as the trier of fact, a trial 

judge is required to make a preliminary determination as to the 

competency of all witnesses, including children. State v. 

Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552. 

Absent an abuse of discretion, competency determinations of the 

trial judge will not be disturbed on appeal. See State v. 

Frazier, 61 Ohio St.3d at 251, 574 N.E.2d at 486-487; State v. 

Boston (1989), 46 Ohio St.3d 108, 115, 545 N.E.2d 1220, 1228. 

In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, 

certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 

L.Ed.2d 768, we determined "'"[t]he trial judge, who saw the 

children and heard their testimony and passed on their 

competency, was in a far better position to judge their 

competency than is this court, which only reads their testimony 

from the record ***."'" Quoting Barnett v. State (1922), 104 

Ohio St. 298, 301, 135 N.E. 647, 648. Furthermore, "'[t]he 

term 'abuse of discretion' connotes more than an error of law 

or of judgment; it implies that the court's attitude is 

unreasonable, arbitrary or unconscionable ***.'" State v. 

Moreland (1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898; 

State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 
173, 404 N.E.2d 144, 149. 

 This court considered a case similar to the one at bar in 

Huprich v. Paul W. Varga & Sons (1965), 3 Ohio St.2d 87, 3 

O.O.2d 61, 209 N.E.2d 390. In Huprich, the plaintiff sought to 

introduce the testimony of a thirteen-year-old boy concerning 

an automobile accident the boy had witnessed at the age of 

four. Without conducting a voir-dire examination of the 

witness, the trial court deemed him incompetent to testify as 

to the events he had observed. The court of appeals reversed 

and this court affirmed, noting that the trial court 

arbitrarily decided to deny the request for a competency 

hearing. In disapproving the actions of the trial judge, the 

Huprich court reached two conclusions: 

 "1. Where a witness is over ten years of age when he 

testifies but was under ten at the time of the happenings about 

which he proposes to testify, the capability of such witness to 

receive 'just impressions' of such happenings must necessarily 

be determined as of the time of those happenings. 

 "2. Where a proffered witness is over ten years of age 

when he is called to testify but was only four years old at the 

time he witnessed happenings about which he proposes to 

testify, such witness is not as a matter of law incompetent to 

testify about such happenings. In such instance, the trial 

court should question the witness and consider any other 

proffered evidence as to his competency before determining 

whether such witness is or is not competent to testify." Id. 

at paragraphs one and two of the syllabus. 

 The conclusions reached in Huprich stretch beyond the 

clear terms of Evid. R. 601(A). As discussed above, Evid. R. 

601(A) creates a presumption of competency in favor of anyone 

who is at least ten years of age and is of sound mind. The 

rule addresses competency as of the time of trial, not as of 

the time at which the incident in questions occurred. If we 

were to require a dual evaluation of competency of those who 

have attained the age of ten, we would effectively be creating 

a requirement that is not contemplated by the plain meaning of 

Evid. R. 601(A). Furthermore, such a rule is unwarranted. 

Whether or not the testimony of one over the age of ten 

concerning an event which occurred before the age of ten is 

accurate is a credibility issue to be resolved by the trier of 

fact. Every credibility assessment hinges upon the perceived 

accuracy and truthfulness with which the testimony is given. 

As with any witness, opposing counsel will be given an 

opportunity to cross-examine the witness in order to challenge 

his or her ability to accurately recall the events. Therefore, 

once a child attains the age of ten, the presumption of 

competency created by Evid. R. 601(A) applies equally to that 

child witness as it would to any adult, regardless of when the 

events in question occurred. 

 In conclusion, we hold that under the plain meaning of 

Evid. R. 601(A), a child witness who is ten years of age or 

older at the time of trial, but who was under the age of ten at 

the time an incident in question occurred, is presumed 

competent to testify about the event. A trial judge, in the 

exercise of his or her discretion, may choose to conduct a 

voir-dire examination of the child witness if the judge has 

reason to question the child's competency. The decision not to 
voir dire a child witness under such circumstances will be 

viewed under an abuse of discretion standard. In such cases, 

absent a compelling reason to act otherwise, the failure to 

conduct a voir dire examination of a child witness who is over 

the age of ten at trial will not constitute reversible error. 

Huprich v. Paul W. Varga & Sons , supra, is overruled to the 

extent that it is inconsistent with our holding in this case. 

 In the case at bar, sixteen-year-old Danyal Campbell 

testified concerning events which occurred while she was nine 

years old. Appellee never challenged Danyal's competency to 

testify. The trial court's decision to permit Danyal to 

testify without conducting a competency hearing rested soundly 

within the judge's discretion. That discretion was not 

abused. The court of appeals erroneously found plain error 

when no error existed. 

 For the foregoing reasons, the judgment of the court of 

appeals is reversed, and the decision of the trial court is 

reinstated. 

 Judgment reversed. 

 Douglas, F.E. Sweeney and Pfeifer, JJ., concur. 

 Moyer, C.J., A.W. Sweeney and Wright, JJ., concur in 

judgment only. 

 

FOOTNOTES 

1 Huprich, decided prior to the adoption of Evid. R. 601, 

involved the application of R.C. 2317.01, which stated: 

 "All persons are competent witnesses except those 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." 

 Wright, J., concurring in judgment only. I concur in 

the reversal of the judgment of the court of appeals, but am 

unable to join in the syllabus or in the full text of the 

majority opinion. I agree that the trial court acted properly 

in allowing Danyal, a sixteen-year-old witness, to testify 

without first conducting a competency hearing. I further agree 

that the "plain error" rule does not apply to this case, 

because no error existed in the admission of Danyal's 

testimony. I believe, however, that appellee's judgment of 

conviction should be reinstated, because Danyal's competency 

was never at issue before the trial court. We need not 

determine whether the trial court acted within the scope of its 

discretion in allowing Danyal to testify, because appellee 

never objected to Danyal's testimony on the basis of 

incompetence. The trial court simply was never called upon by 

either the defendant or the circumstances to exercise its 

discretion in passing on the competency of Danyal. 

 It is our constitutional duty to resolve conflicts that 

arise between the various courts of appeals upon certification 

of a question of law. Section 2(B)(2)(e), Article IV, Ohio 

Constitution. This case is before the court pursuant to a 

certification of conflict by the Tenth District Court of 

Appeals, which posited a single question for resolution: "Is a 

trial court under a mandatory duty to voir dire a witness, on 

the question of the witness's competency, when the witness is 

over ten years of age at the time of trial but was less than 
ten years of age at the time of the events giving rise to the 

witness's testimony." The Tenth Appellate District deemed the 

answer to this question to be in the affirmative and found its 

judgment in conflict with State v. Self (July 29, 1991), 

Clermont App. No. CA90-10-099, unreported, and State v. Smith 

(Dec. 30, 1991), Butler App. No. CA91-06-104, unreported. The 

certified question now before us should be answered in the 

negative in that there is no basis in Evid.R. 601 for the 

imposition of a mandatory requirement of voir dire examination 

of any witness age ten or older where, as here, no objection is 

raised by the parties to the competency of the proposed 

witness. But, see, State v. Frazier (1991), 61 Ohio St.3d 247, 

250-251, 574, N.E.2d 483, 486-487, certiorari denied 

(1992), U.S. , 112 S.Ct. 1488, 117 L.Ed.2d 629 (trial 

court must hold a competency hearing where the witness is under 

ten years of age). 

 The majority opinion accurately notes that Evid.R. 601 

sets out the general rule of competency for all witnesses: 

"[e]very person is competent to be a witness except *** 

children under ten years of age ***." Pursuant to this rule 

all potential witnesses age ten or older are to be initially 

treated as competent. Although the competency of a witness is 

a matter ultimately committed to the sound discretion of the 

trial judge, Evid.R. 601 does not require that a trial court 

pass upon the competency of each and every witness age ten or 

older called by a party where competency is never challenged, 

no request is made for voir dire examination, and no objection 

is made. 

 Evid.R. 601 is not concerned with, nor does it create, 

presumptions as to competency. The use of the term 

"presumption" in reference to competency issues arises from 

cases predating the adoption of the Rules of Evidence in which 

trial courts were called upon to determine competency once 

competency was challenged. The majority expressly acknowledges 

that the accused in this case "[a]t no time during Danyal's 

testimony or any other stage of the trial *** [challenged] 

Danyal's competency to testify as to the events which occurred 

when she was nine years old." Because she was sixteen years 

old at trial, and no objection was made regarding her 

competence, the trial court was not obligated to hold a 

competency hearing. The court of appeals should be reversed on 

this reasoning alone. 

 I note in conclusion that the majority's statement that "a 

witness under the age of ten is not presumed incompetent" is 

clearly dictum. No proferred witness in the case at bar was 

under the age of ten at the time of trial. Proper resolution 

of controversial and complicated legal issues such as the 

competency of young children should be deferred until the court 

has before it a case in which the facts mirror the legal issues 

considered. To do otherwise is to render advisory opinions, an 

exercise from which we should refrain. 

 Moyer, C.J., and A.W. Sweeney, J., concur in the foregoing 

concurring opinion.