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The State of Ohio, Appellant and Cross-Appellee, v. Said, 

Appellee and Cross-Appellant. 

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

Criminal law -- Evidence -- Hearing to determine competency of 

 potential child witness under Evid.R. 601 must be recorded 

 pursuant to Crim.R. 22. 

A hearing to determine the competency of a potential child 

 witness under Evid.R. 601 must be recorded pursuant 

 to Crim.R. 22. 

 (No. 93-1085 -- Submitted October 25, 1994 -- Decided 

December 30, 1994.) 

 Appeal from the Court of Appeals for Lake County, No. 

92-L-018. 

 This case involves the alleged sexual molestation of two 

young girls by their paternal grandfather, the appelleedefendant, Joseph Said. At the time of trial, the older 

granddaughter, who is the appellee's step-granddaughter, was 

fifteen years old and the younger girl was five years old. 

 The allegations of sexual abuse came after the older girl 

reported to her mother that she had witnessed her younger 

sister masturbating. The mother asked her younger daughter 

about what her older sister had said, and her daughter 

responded "grandpa used to do that to [me] all the time." The 

mother then spoke again with the older daughter, who stated 

that the appellee had similarly touched her. Both the police 

and the Lake County Department of Human Services, Division of 

Childrens' Services were contacted. During an interview with a 

sexual abuse investigator for childrens' services and her 

trainee, the younger daughter again stated that her grandfather 

had improperly touched her. 

 The appellee was indicted on seven counts of gross sexual 

imposition in violation of R.C. 2907.05. Six counts alleged 

improper conduct with the older granddaughter, and one count 

alleged improper conduct with the younger granddaughter. 

 Before trial, the court held a hearing to determine 
whether the five-year-old girl was competent under Evid.R. 

601. The hearing was not recorded. However, it appears from a 

review of the trial transcript that the trial court found the 

five-year-old girl competent. 

 The five-year-old girl refused to testify at trial, even 

after prompting by the judge, the bailiff, the prosecutor and a 

licensed professional counselor involved in the police 

investigation. The trial court held a hearing to determine 

whether the five-year-old girl's statements regarding the 

alleged sexual abuse could be admitted pursuant to Evid.R. 807, 

the new hearsay exception which relates to statements of 

children in cases of physical or sexual abuse. After an 

extensive hearing, the trial court found that the requirements 

of Evid.R. 807 were met, and allowed her mother and the 

sexual-abuse investigator to testify as to statements the child 

made to each of them individually. 

 The jury found the appellee not guilty on five counts and 

guilty on two counts, with one count relating to each 

granddaughter. 

 The appellee appealed his conviction alleging, inter alia, 

that the trial court failed to comply with the requirements of 

Evid.R. 807. The court of appeals reversed the appellee's 

conviction on both counts and remanded the cause for a new 

trial. The court of appeals held that the licensed 

professional counselor could not qualify as a "trusted" person, 

and therefore the "not reasonably obtainable" requirement was 

not met. Additionally, the court of appeals held that the 

evidence the five-year-old masturbated did not meet the 

"independent proof of the sexual act" requirement of Evid.R. 

807. 

 The state appealed the appellate court's reversal of the 

convictions. The defendant appealed the court of appeals' 

determination that the other elements of Evid.R. 807 had been 

met. 

 The cause is now before this court pursuant to the 

allowance of a motion and cross-motion for leave to appeal. 

 

 Steven C. LaTourette, Lake County Prosecuting Attorney, 

Michael D. Murray and Ariana E. Tarighati, Assistant 

Prosecuting Attorneys, for appellant and cross-appellee. 

 Paul H. Hentemann, for appellee and cross-appellant. 

 David H. Bodiker, State Public Defender, Randy D. Ashburn 

and John B. Heasley, Assistant Public Defenders; and Cynthia S. 

Sander, urging affirmance for amicus curiae, Office of Ohio 

Public Defender. 

 

 Wright, J. The parties and the court of appeals have 

focused on whether the facts of this case satisfy the 

particular requirements of Evid.R. 807. We do not reach those 

issues, because two fundamental errors preclude a proper review 

of the application of that rule in this case. 

 I 

 The trial court erred when it failed to record the 

competency hearing of the five-year-old granddaughter. Crim.R. 

22 clearly provides: "In serious offense cases all proceedings 

shall be recorded." (Emphasis added.) Although "proceeding" 

is not defined under Crim.R. 22, it is generally defined as 
"[a]ll the steps or measures adopted in the prosecution of an 

action ** * [including] any act done by authority of the court 

of law and every step required to be taken in any cause by 

either party." Black's Law Dictionary (6 Ed. 1990) 1204. A 

hearing held for the purpose of determining the competency of a 

potential witness surely falls within the above definition. 

Therefore, we hold that a hearing to determine the competency 

of a potential child witness under Evid.R. 601 must be recorded 

pursuant to Crim.R. 22. For the reasons stated below, failure 

to record a competency hearing of a potential child witness 

constitutes reversible error. 

 A competency hearing was required in this case. Even 

though the five-year-old granddaughter did not directly 

testify, her out-of-court statements were admitted through the 

testimony of her mother and a sexual-abuse investigator. As 

Professor Wigmore explains, hearsay statements must 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 *** in regard to 

knowledge and the like." (Emphasis sic.) (Citation omitted.) 

5 Wigmore on Evidence (Chadbourn Rev. 1974) 255, Section 1424 

Competency is one of the few qualifications required of a 

witness. Evid.R. 601. See, also, State v. Boston (1989), 46 

Ohio St.3d 108, 114, 545 N.E.2d 1220, 1228. 

 Evid.R. 601(A) provides that: "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." This rule requires 

that a competency hearing will be conducted with regard to 

children under ten years of age. 

 A competency hearing is an indispensable tool in this and 

similar cases. A court cannot determine the competency of a 

child through consideration of the child's out-of-court 

statements 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 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 440, 103 N.E.2d at 556. 

 Evid.R. 807 clearly does not dispose of the need to find a 

child competent. Competency under Evid. R. 601(A) contemplates 

several characteristics. See State v. Frazier (1991), 61 Ohio 

St.3d 247, 251, 574 N.E.2d 483, 487, certiorari denied, 

U.S. , 112 S.Ct. 1488, 117 L.Ed.2d 629. Those 

characteristics can be broken down into three elements. First, 

the individual must have the ability to receive accurate 

impressions of fact. Second, the individual must be able to 

accurately recollect those impressions. Third, the individual 

must be able to relate those impressions truthfully. See, 

generally, 2 Wigmore on Evidence (Chadbourn Rev. 1979) 712-713, 
Section 506. 

 Out-of-court statements that fall within Evid.R. 807, like 

the other hearsay exceptions, possess a "circumstantial 

probability of trustworthiness." Cf. 5 Wigmore, supra, at 

253, Section 1422. In other words, under unique circumstances 

we make a qualified assumption that the declarant related what 

she believed to be true at the time she made the statement. 

However, those same circumstances do not allow us to assume 

that the declarant accurately received and recollected the 

information contained in the statement.1 Whether she 

accurately received and recollected that information depends 

upon a different set of circumstances, those covering the time 

from when she received the information to when she related it. 

As a result, even though a statement falls within a hearsay 

exception, two elements of the declarant's competency remain at 

issue and must still be established. Thus, a trial court must 

find that a declarant under the age of ten was competent at the 

time she made the statement in order to admit that statement 

under Evid.R. 807. See Boston, supra, at 114, 545 N.E.2d at 

1228; Schulte v. Schulte (1994), 71 Ohio St.3d 41, 42, 

N.E.2d , , fn. 1. 

 II 

 The trial court also erred when it failed to make the 

findings required by Evid.R. 807 before admitting the 

five-year-old's statements under that rule. Evid.R. 807(C) 

expressly requires that a trial court "shall make the findings 

required by this rule on the basis of a hearing conducted 

outside the presence of the jury and shall make findings of 

fact, on the record, as to the bases for its ruling." 

 By its own terms, Evid.R. 807 provides what a trial court 

must find on the record. First, a trial court must find "that 

the totality of the circumstances surrounding the making of the 

statement provides particularized guarantees of trustworthiness 

***." Evid.R. 807(A)(1). Second, a trial court must find that 

"[t]he child's testimony is not reasonably obtainable by the 

proponent of the statement." Evid.R. 807(A)(2). Third, a 

trial court must find "independent proof of the sexual act or 

act of physical violence." Evid.R. 807(A)(3). Finally, a trial 

court must find that the proponent of the statement fulfilled 

the notice requirements under Evid.R. 807(A)(4). Evid.R. 

807(C) also requires a trial court to make findings of fact to 

support each of the general findings. 

 The trial court in this case failed to make three of the 

findings required by Evid.R. 807(C). Before the hearing, the 

trial court made and explained its finding that the child's 

testimony was "not reasonably obtainable." The court discussed 

the circumstances surrounding the child refusing to testify. 

However, the court failed to make a finding of fact that any of 

the individuals who urged the girl to testify qualified as a 

person "trusted by the child." Evid.R. 807(B)(1). The only 

other findings by the trial court were made at the close of the 

Evid.R. 807 hearing, when the trial court merely stated: 

 "Very well. The court finds that the testimony of the 

child may be given by another party. 

 "The elements of the statute, in the court's view, have 

been met, and the court finds that the child is without the 

ability to testify, and therefore, her testimony may be 
substituted." 

 Findings in the form of skeletal conclusions are 

inadequate under Evid.R. 807, as they fail to meet the express 

requirements of the rule and they preclude a reviewing court 

from adequately reviewing the application of the rule to the 

particular facts of the case. 

 For the foregoing reasons, we affirm the judgment of the 

court of appeals. 

 Judgment affirmed. 

 Moyer, C.J., A.W. Sweeney, Douglas and Pfeifer, JJ., 

concur. 

 Resnick, J., concurs in part and dissents in part. 

 F.E. Sweeney, J., dissents. 

FOOTNOTES: 

 1 As we noted in State v. Wallace (1988), 37 Ohio St.3d 

87, 94-95, 524 N.E.2d 466, 473, the circumstances involving an 

excited utterance make that exception sui generis with respect 

to requiring competency of a child declarant. See, also, 

Boston, supra, at 114, 545 N.E.2d at 1228 fn. 1. 

State v. Said. 

 Alice Robie Resnick, J., concurring in part and dissenting 

in part. Because I believe the majority engages in an 

erroneous discussion of the requirements of Evid. R. 807, I 

concur only with the majority's conclusion that the trial court 

was required to record the competency hearing. I disagree, 

however, with the majority's conclusions that a competency 

hearing was required in this case, and that the trial court 

failed to make specific findings of fact as required by Evid. 

R. 807(C). 

 I 

 The majority first considers whether the trial court was 

obligated to record the competency hearing it conducted in 

connection with the five-year-old victim. The terms of Crim. 

R. 22 clearly require all proceedings to be recorded. I agree 

that a competency hearing falls well within the definition of 

"proceeding" as contemplated by Crim. R. 22. I respectfully 

disagree, however, with the majority's conclusion that a 

competency hearing was required in this case. 

 The provisions of Evid. R. 807(A) require that four 

elements be established in order to admit the out-of-court 

statements of a child under the age of twelve as they relate to 

sexual or physical abuse. The first prerequisite of 

admissibility set forth in Evid. R. 807(A)(1) is that: 

 "The court [find] that the totality of the circumstances 

surrounding the making of the statement provides particularized 

guarantees of trustworthiness ***. In making its determination 

of the reliability of the statement, the court shall consider 

all of the circumstances surrounding the making of the 

statement, including but not limited to spontaneity, the 

internal consistency of the statement, the mental state of the 

child, the child's motive or lack of motive to fabricate, the 

child's use of terminology unexpected of a child of similar 

age, the means by which the statement was elicited, and the 

lapse of time between the act and the statement. ***" 

 Given the specifications of Evid. R. 807(A)(1), a trial 

judge is clearly obligated to consider all attendant 

circumstances to the making of the out-of-court statement. 
Everything and anything that could have impacted the child's 

likelihood to speak the truth should be considered. The 

majority reads into this provision a requirement that the trial 

judge conduct a competency hearing in order to determine if the 

child declarant was competent, as defined by State v. Frazier 

(1991), 61 Ohio St.3d 247, 574 N.E.2d 483, certiorari denied, 

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

he or she made the statement. That position exceeds the 

boundaries of Evid. R. 807. 

 Under the various hearsay exceptions, selected 

out-of-court statements are deemed to possess certain indicia 

of reliability which warrant their admissibility into evidence 

regardless of whether the declarant will testify during trial. 

Evid. R. 803 and 804. In State v. Wallace (1988), 37 Ohio 

St.3d 87, 524 N.E.2d 466, for example, we considered the 

out-of-court statements of a five-year-old declarant as they 

fell under the excited-utterance exception to the hearsay rule, 

Evid. R. 803(2). With respect to the child declarant's 

competency, we considered the requirements of telling the truth 

and recalling events accurately: 

 "These requirements are not relevant to the admissibility 

of an excited utterance because an excited utterance is made 

while the declarant is dominated by the excitement of the event 

and before there is opportunity to reflect and fabricate 

statements relating to the event. The trustworthiness of the 

declaration (as being what the declarant actually believes to 

be true) derives from the lack of opportunity to fabricate, not 

the moral character or maturity of the declarant. Similarly, 

the declarant's ability to recall is not an issue because of 

the requirement that the declaration be contemporaneous with 

its exciting cause or made while that cause dominates the 

declarant's thoughts. The credibility and weight of the 

declarations will, or course, still be judged by the 

fact-finder." Id. at 95, 524 N.E.2d 473. 

 The provisions in Evid. R. 807(A)(1) offer similar 

guarantees of trustworthiness which, if established, eliminate 

the need for specifically finding the child declarant was 

competent at the time he or she made the statement. As stated 

above, the trial judge must consider, inter alia, the 

spontaneity of the statement, the use of age-inappropriate 

terminology, and the contemporaneous nature of the statement. 

All these considerations enable a trial judge, in the exercise 

of his or her sound discretion, to conclude whether the 

totality of circumstances warrant a finding of trustworthiness 

and, therefore, admissibility of the statement. A competency 

hearing simply is not required by the plain terms of Evid. R. 

807(A). 

 The effect of instituting the majority's position that a 

competency hearing is required prior to admitting a statement 

under Evid. R. 807 will be to preclude the admission of 

otherwise qualified out-of-court statements into evidence. For 

example, in those situations where the abused victim falls into 

a coma or dies at some point after making statements to a 

parent or therapist concerning the source of his or her abuse, 

the statements would not be admissible given the child's 

inability to attend a competency hearing. That result surely 

defeats the obvious purpose for which Evid. R. 807 was 
adopted. The example need not be so dramatic. What of the 

child anticipated by Evid. R. 807(B)(1) who refuses to testify 

concerning the out-of-court statements when called to the 

stand? The fact that the child is frightened by the courtroom 

proceedings, as occurred in the case at bar, sheds no light on 

the "guarantees of trustworthiness" contemplated by Evid. R. 

807(A)(1). 

 For these reasons, I would find that a trial court is not 

required to hold a competency hearing in order to admit an 

out-of-court statement under the hearsay exception for 

statements regarding child abuse. However, as stated above, 

when the trial judge decides to hold a competency hearing, he 

or she is required to record the proceeding as prescribed by 

Crim. R. 22. The failure to do so constitutes reversible error. 

 II 

 I disagree with the majority's conclusion that the trial 

court failed to make the findings required by Evid. R. 807(C). 

Ideally, a trial judge will state at the conclusion of an Evid. 

R. 807 hearing that each of the four prerequisites to 

admissibility has been satisfied and then specifically 

delineate the evidence offered to support each factor. The 

realities of courtroom procedure, however, may cause a trial 

judge to state his or her conclusions at various stages 

throughout the hearing. This reality, which occurred in this 

case, does not preclude a finding that a trial judge has 

complied with the requirements of Evid. R. 807(C). 

 The record reveals that during the course of the 

evidentiary hearing, the trial judge stated that the child's 

testimony was not reasonably obtainable, as required by Evid. 

R. 807(A)(2), given her repeated refusal to speak once she was 

called to the stand. The record further indicates that in the 

middle of the hearing the court determined that Peggy Taylor, a 

licensed sexual abuse counselor who had attempted to coax the 

girl to speak on the stand, qualified as a "person trusted by 

the child," as required by Evid. R. 807(B)(1), given the 

rapport she likely developed with the child during their 

counseling sessions. The record additionally demonstrates that 

the trial judge believed that the testimony of the older 

daughter was sufficient to qualify as "some independent 

evidence that a sexual act was perpetrated ***," thereby 

satisfying the requirement of Evid. R. 807(A)(3). Finally, at 

the conclusion of the hearing, the trial judge indicated that 

the totality of the evidence presented during the hearing 

warranted a finding that the elements had been met and, 

therefore, that the hearsay statement would be admissible. 

Appellee did not object to any of the court's findings until 

the end of the hearing, at which point he raised a blanket 

objection to the court's finding of admissibility under Evid. 

R. 807. 

 After reviewing the record in this case, I believe that 

the evidence supports a finding that the trial court satisfied 

the requirements of Evid. R. 807(C). The trial judge acted 

well within the bounds of his discretion when he decided to 

admit the victim's statements, and thus, this decision should 

not have been reversed on appeal. Therefore, I would reverse 

the judgment of the court of appeals on this issue. 

 III 
 For all the foregoing reasons, I would affirm the judgment 

of the court of appeals with respect to its conclusion that the 

competency hearing held in this case should have been 

recorded. I would reverse the court of appeals, however, as to 

its determination that the trial judge failed to make the 

findings required by Evid. R. 807(C). 

 Francis E. Sweeney, Sr., J., dissenting. I respectfully 

dissent from the majority's affirmance of the court of appeals' 

decision because (1) I do not believe that the failure to 

record the competency hearing was reversible error, and (2) I 

believe that the requirements of Evid.R. 807 have been met. 

Accordingly, I would reverse the decision of the court of 

appeals. 

 The majority, sua sponte, holds that the failure to record 

the Evid.R. 601 hearing to determine the child's competency to 

testify at the time of trial was reversible error. However, 

whether the child was competent to testify at the time of trial 

is irrelevant in this case, as the child ultimately refused to 

testify at trial. 

 The only issue here is whether the child was competent at 

the time she made the out-of-court statements that were 

admitted under Evid.R. 807. The majority itself states, "Thus, 

a trial court must find that a declarant under the age of ten 

was competent at the time she made the statement in order to 

admit that statement under Evid.R. 807. See Boston, supra, at 

114, 545 N.E.2d at 1228; Schulte v. Schulte (1994), 71 Ohio 

St.3d 41, 42, 641 N.E.2d 719, 720, fn. 1." This competency 

determination was not made in the Evid.R. 601 hearing but, 

rather, in the separate Evid.R. 807 hearing. Therefore, I do 

not believe that the failure to record the Evid.R. 601 hearing 

constitutes reversible error. 

 I also disagree with the majority's contention that the 

trial court's findings made pursuant to Evid.R. 807 are no more 

than "skeletal conclusions." The record demonstrates that the 

trial court discussed at some length its reasons for finding 

that the requirements of Evid.R. 807 had been met. This 

discussion included the trial court's finding that the 

testimony of the older daughter, Lori Pugh, was some 

independent evidence of the sexual act as required by Evid.R. 

807(A)(3). Also, the trial court found that the counselor who 

urged the child to testify had a rapport with the child and had 

been working with the child. This discussion obviously 

supported the trial court's conclusion that the child had been 

urged to testify by someone "trusted by the child," as required 

by Evid.R. 807(B)(1). Therefore, I believe that the findings 

of fact made by the trial court satisfy the requirements of 

Evid.R. 807. 

 I will now address the issues which form the basis of the 

court of appeals' reversal of appellee's conviction in this 

case; i.e., whether the child had been urged to testify by 

someone "trusted by the child" as required by Evid.R. 807(B)(1) 

and whether evidence that the five-year-old masturbated met the 

requirement of Evid.R. 807(A)(3) of "independent proof of the 

sexual act." 

 Evid.R. 807(B)(1) requires a finding that a child's 

testimony is unavailable if the child refuses to testify after 

"a person trusted by the child" urges the child to testify in 
the presence of the court. In the present case, the child's 

mother was unable to urge the child to testify as she was under 

a court order for separation of witnesses. However, a licensed 

professional counselor urged the child witness to testify and 

this counselor had spent considerable time with the child. 

Based on this evidence, the trial court, in its discretion, 

found that the counselor was a person trusted by the child. 

The court of appeals, after noting that the mother was 

unavailable, stated that it questioned "whether a person 

trusted by the child ever urged her to testify." I disagree. 

Evid.R. 807(B)(1) does not specify that the person who urges 

the child to testify must be a parent or relative, as the court 

of appeals appears to suggest. Accordingly, upon a review of 

the evidence, I believe the trial court did not abuse its 

discretion in finding that the counselor was a person trusted 

by the child. 

 The court of appeals also found that there was no 

"independent proof of the sexual act" as required by Evid.R. 

807(A)(3). The court, while admitting that "excessive 

masturbation" by the child declarant would be independent 

evidence of the sexual act, found that excessive masturbation 

had not been shown. Experts had defined this as the child's 

continuation of masturbation in public after it had been 

explained to the child that that behavior was inappropriate. 

The court of appeals noted that there was no evidence that the 

child victim had ever been told to discontinue the masturbation 

by the mother. Thus, the court of appeals concluded that the 

state failed to establish "excessive masturbation." However, 

the older daughter, during direct examination, testified that 

she had told her sister not to continue masturbation. This 

testimony is some evidence to support a finding that the child 

had engaged in excessive masturbation. Therefore, I believe 

that the trial court did not abuse its discretion in finding 

that the state had satisfied the independent-proof requirement 

of Evid.R. 807. 

 In conclusion, I believe that the decision of the court of 

appeals should be reversed and, accordingly, the appellee's 

conviction should be affirmed.