[Cite as State v. Jones, 2013-Ohio-3784.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 8-12-16 

 v. 

TERRY A. JONES, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Logan County Common Pleas Court 

Trial Court No. 11-12-0253 

Judgment Affirmed in Part, Reversed in Part and Cause Remanded 

Date of Decision: September 3, 2013 

 

APPEARANCES: 

 

Marc S. Triplett for Appellant 

William T. Goslee for Appellee 
Case No. 8-12-16 

-2- 

WILLIAMOWSKI, J.

{¶1} Defendant-appellant Terry A. Jones (“Jones”) brings this appeal from 

the judgment of the Court of Common Pleas of Logan County finding him guilty 

of two counts of rape and two counts of gross sexual imposition. For the reasons 

set forth below, the judgment is affirmed in part and reversed in part. 

{¶2} On December 13, 2011, the Logan County Grand Jury indicted Jones 

for two counts of rape in violation of R.C. 2907.02(A)(1)(b), both felonies of the 

first degree, two counts of gross sexual imposition in violation of R.C. 

2907.05(A)(4), both felonies of the third degree, and one count of importuning in 

violation of R.C. 2907.07(A), a felony of the third degree. Jones entered pleas of 

not guilty to all counts on December 16, 2011. The victim in this case was a child 

under the age of ten. On July 31, 2012, Jones filed a motion to determine the 

competency of the victim to testify. The State filed a motion on August 2, 2012, 

to allow the victim to testify remotely rather than requiring her to be in the 

courtroom with Jones. On August 8, 2012, the trial court held a hearing on both of 

these motions. The trial court granted the State’s motion to allow the victim to 

testify via closed circuit video. The trial court denied Jones’ motion to exclude the 

testimony of the victim, finding her competent to testify. 

{¶3} A jury trial was held on August 14-15, 2012. At the conclusion of the 

State’s case-in-chief, Jones made a Criminal Rule 29 motion to dismiss. The trial 
Case No. 8-12-16 

-3- 

court granted the motion as to the importuning charge. The jury subsequently 

returned a verdict of guilty on all remaining charges. On September 24, 2012, the 

trial court held a sentencing hearing. The trial court ordered Jones to serve ten 

years to life in prison on each of the rape charges and three years in prison on each 

of the gross sexual imposition charges. All four sentences were ordered to be 

served concurrently for a total prison term of ten years to life. Jones appeals from 

this judgment and raises the following assignments of error. 

First Assignments of Error 

The trial court abused its discretion when it found the [victim] 

was competent to testify. 

Second Assignment of Error 

The trial court erred when it permitted the [victim] to testify 

outside the presence of [Jones] and the jury. 

Third Assignment of Error 

The trial court erred when it imposed costs and additional fees 

in its sentencing entry. 

{¶4} In the first assignment of error Jones claims that the trial court erred 

by finding the nine-year-old victim competent to testify. Generally, children 

under the age of ten years of age are considered incompetent to testify if they 

“appear incapable of receiving just impressions of the facts and transactions 

respecting which they are examined, or of relating them truly.” Evid.R. 601(A). 

“[T]he responsibility of the trial judge is to determine through questioning whether 
Case No. 8-12-16 

-4- 

the child of tender years is capable of receiving just impressions of facts and 

events and to accurately relate them.” State v. Frazier, 61 Ohio St.3d 247, 251 

(1991). The determination of competency is left to the sound discretion of the trial 

court. Id. However, the Ohio Supreme Court has articulated five factors that a 

trial court must consider. Id. “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 responsibility to be truthful.” Id. at 251. “A child may be competent to testify 

even though the child is unable to recollect some facts or initially does not 

recognize the concept of truth, so long as other answers demonstrate that the child 

can perceive and recall generally and understands the concept of truthfulness.” 

State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶76.

{¶5} Jones in this case filed a motion challenging the competency of the 

victim. He then submitted questions to be asked of the victim. A review of the 

record shows that the trial court held an in camera interview with the victim in this 

case. The trial court asked the victim several questions, many of which were 

leading. The victim responded appropriately to those questions. The trial court’s 
Case No. 8-12-16 

-5- 

questions revealed that the victim was oriented as to time and place. She knew her 

family, who she lived with, all of the parties, and why she was there. The trial 

court specifically asked the victim about telling the truth and she indicated that she 

would “get in trouble” for telling a lie. The victim was also able to nod when 

asked if Jones had engaged in a “bad touch” with her. When the victim did not 

know the answer to a question, she admitted as much. Following the interview, 

the trial court made the following statements in open court.

The Court conducted an in-chambers interview with the child. 

That both attorneys were there, the child’s father. It was on the 

record. Mr. Triplett submitted some questions. I think the 

Court – his questions were brief, and the Court’s were too. I 

thought – the child was nine years old, one year away from the 

age of presumed competency. I thought she was intelligent. She 

could tell me what grade she was going into. She said math was 

her favorite subject. She knew who she was living with. She 

knew the accused. She was, as most children I think of that age 

would be, was embarrassed to tell what happened to her, but 

with the Court’s leading she said the defendant engaged in bad 

touches with her. I think this child is competent. The Court so 

finds. 

Aug. 8, 2012, Tr. 42. 

{¶6} There is no question that the trial court’s questioning of the witness 

was not ideal. A better example of the type of questions which should be asked in 

a competency voir dire can be seen in State v. Tebelman, 3d Dist. No. 12-09-01, 

2010-Ohio-481. In Tebelman, the trial court asked multiple, non-leading 

questions concerning the difference between the truth and a lie to show that the 
Case No. 8-12-16 

-6- 

child understood the difference. Id. at 19. The trial court expounded on what 

would happen if there was a lie told and what it meant to tell a lie. Id. The trial 

court asked open-ended questions about why the child was in the courtroom and 

what happened. The child was required to answer questions with more than a yes 

or no and with more than a shake of the head. This provided the court with a clear 

indication that the child victim in Tebelman was competent to testify. 

{¶7} Here, the trial court did not engage in an extensive voir dire of the 

witness. However, although Jones argues that the trial court erred in finding the 

victim competent, he does not argue that the victim is actually incompetent to 

testify.1

 Interestingly enough, if this court were to sustain the assignment of error 

and remand this matter for a new trial, the victim would be over the age of ten and 

would be presumed competent to testify, no competency hearing would be 

required. In addition, the doctor was permitted to testify as to what the victim had 

told her had happened. The nurse testified that the victim told her that Jones had 

hurt her “private” and testified to the report that the victim had made to her 

regarding the conduct of Jones. The victim’s sister also testified to what she 

observed in the room when Jones would climb into bed with the victim. Thus, 

Jones has not shown that the error is prejudicial in any way. Given all of this 

additional testimony, there was no prejudice arising from the testimony of the 

 

1

 The victim did testify and was able to relate what happened to the jury without the use of leading 

questions. 
Case No. 8-12-16 

-7- 

victim. Without a showing of prejudicial error, the first assignment of error is 

overruled. 

{¶8} In the second assignment of error, Jones claims that the trial court 

erred by allowing the victim to testify via closed circuit video. A review of the 

record shows that Jones did not object to the victim testifying by closed circuit 

video at the time of trial. Thus, the second assignment of error will be reviewed 

under a plain error standard. State v. McConnell, 2d Dist. No. 19993, 2004-Ohio4263. The use of closed circuit video is governed by R.C. 2945.481. 

(C) In any proceeding in the prosecution of any charge of a 

violation [of R.C. 2907.02 or R.C. 2907.05] * * * in which an 

alleged victim of the violation or offense was a child who was less 

than thirteen years of age when the complaint, indictment, or 

information was filed, whichever occurred earlier, the 

prosecution may file a motion with the judge requesting the 

judge to order the testimony of the child victim to be taken in a 

room other than the room in which the proceeding is being 

conducted and be televised, by closed circuit equipment, into the 

room in which the proceeding is being conducted to be viewed 

by the jury, if applicable, the defendant, and any other persons 

who are not permitted in the room in which the testimony is to 

be taken but who would have been present during the testimony 

of the child victim had it been given in the room in which the 

proceeding is being conducted. * * * The judge may issue the 

order upon the motion of the prosecution filed under this 

section, if the judge determines that the child victim is 

unavailable to testify in the room in which the proceeding is 

being conducted in the physical presence of the defendant, for 

one or more of the reasons set forth in division (E) of this 

section. * * * The defendant shall be permitted to observe and 

hear the testimony of the child victim giving the testimony on a 

monitor, shall be provided with an electronic means of 

immediate communication with the defendant’s attorney during 
Case No. 8-12-16 

-8- 

the testimony, and shall be restricted to a location from which 

the defendant cannot be seen or heard by the child victim giving 

the testimony, except on a monitor provided for that purpose. 

The child victim giving the testimony shall be provided with a 

monitor on which the child victim can observe, during the 

testimony, the defendant. 

* * * 

(E) For purposes of [division C], a judge may order the 

testimony of a child victim to be taken outside the room in which 

the proceeding is being conducted if the judge determines that 

the child victim is unavailable to testify in the room in the 

physical presence of the defendant due to one or more of the 

following: 

(1) The persistent refusal of the child victim to testify despite 

judicial requests to do so; 

(2) The inability of the child victim to communicate about the 

alleged violation or offense because of extreme fear, failure of 

memory, or another similar reason; 

(3) The substantial likelihood that the child victim will suffer 

serious trauma from so testifying. 

R.C. 2945.481. In order to allow the use of the closed circuit video for testimony, 

the trial court must find at least one of the statutory factors applies. McConnell, 

supra. 

{¶9} Here, there is no allegation that the victim would refuse to testify 

unless it was via closed circuit video, so the first factor does not apply. The 

victim’s counselor testified that the victim could potentially suffer emotional harm 

by being forced to testify in the same room. The counselor talked about what 
Case No. 8-12-16 

-9- 

possibly could happen in that a child might regress, or could experience fear. 

However, the counselor did not testify as to the probabilities that the child would 

suffer serious trauma or that the child would be unable to communicate. The 

counselor’s testimony was that these things might happen, turning a probability 

into a possibility. A mere possibility of something happening is not sufficient to 

satisfy the statutory requirements. Id. However, since there was no objection, 

the question is whether the error of allowing the victim to testify via closed circuit 

video would change the outcome. Jones has not shown that the outcome would be 

different had the victim testified in the courtroom. Thus, there is no plain error. 

The second assignment of error is overruled. 

{¶10} Finally, Jones claims that the trial court erred by imposing court 

costs and fees in its sentencing entry when they were not stated at the sentencing 

hearing. The State concedes that this was an error. Pursuant to the holding of 

Ohio Supreme Court in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, and 

this court in State v. Risner, 3d Dist. No. 8-12-02, 2012-Ohio-5954, we find that 

the trial court erred by imposing sanctions in the sentencing entry without 

informing Jones of them at the sentencing hearing. Thus, the matter must be 

remanded to the trial court for the limited purpose of informing Jones of these 

sanctions and allowing him to address them in open court. Joseph, supra and 

Risner, supra. The third assignment of error is sustained. 
Case No. 8-12-16 

-10- 

{¶11} The judgment of the Court of Common Pleas of Logan County is 

affirmed in part and reversed in part. The matter is remanded for further 

proceedings in accord with this opinion. 

Judgment Affirmed in Part, 

Reversed in Part and 

Cause Remanded 

SHAW, J., concurs. 

ROGERS, J., concurs in Judgment Only as to 

 Assignments of Error No. 1 and No. 2. 

/jlr