Background
Randy Anderson was charged with two counts of gross sexual imposition involving his step-granddaughter, O.P., who was five to six years old at the time of the alleged abuse. O.P. disclosed that Anderson touched her genitals on multiple occasions, forced her to look at his penis in a Walmart restroom, and showed her a pornographic video. O.P. underwent a forensic interview and medical examination at Nationwide Children’s Hospital.
Immediately before trial, the trial court found O.P. incompetent to testify under Evid.R. 601 without conducting an in-person competency examination. The State presented its case through the testimony of O.P.’s mother, the detective, the forensic interviewer, the examining doctor, and a child advocacy worker. The jury watched O.P.’s recorded forensic interview. Anderson was convicted and sentenced to ten years in prison.
The Court’s Holding
The Fifth District affirmed. On the competency issue, the court found that while an in-person examination is the preferred practice under Evid.R. 601 and R.C. 2317.01, the trial court had the discretion to make the competency determination based on available information, including the child’s age and the nature of the proceedings. The court noted that the defense did not object to the competency ruling at the time it was made, limiting review to plain error.
On the Confrontation Clause issue, the court held that the trial court did not err by prohibiting defense counsel from commenting during closing argument on the fact that O.P. did not testify in person. Because the trial court found O.P. incompetent, she was not a “witness” for Confrontation Clause purposes, and the defense had no right to highlight her absence to the jury. The court also found the evidence was sufficient and not against the manifest weight, relying on the forensic interview, the mother’s testimony, and Anderson’s own partial admissions.
Key Takeaways
- Under Ohio law, a trial court may determine a child witness is incompetent to testify without conducting an in-person competency examination, though this approach may be subject to plain error review if the defense fails to object.
- When a child is found incompetent, the Confrontation Clause does not give the defense a right to comment on the child’s absence at trial, because an incompetent witness is not a “witness” within the meaning of the Clause.
- A recorded forensic interview, combined with corroborating testimony from other witnesses and the defendant’s partial admissions, can be sufficient to sustain a conviction for gross sexual imposition.
Why It Matters
This decision addresses a recurring and sensitive issue in Ohio child abuse prosecutions: how to handle a young victim who cannot testify in court. The Fifth District’s approach gives trial courts significant latitude in making competency determinations, but defense practitioners should note that a timely objection to an in-chambers-only competency ruling would preserve a stronger appellate issue. The Confrontation Clause holding is particularly significant—it means the defense cannot use closing argument to draw the jury’s attention to the child’s absence when the court has already ruled the child incompetent. Prosecutors handling similar cases should ensure that sufficient corroborating evidence exists independent of the child’s testimony to withstand appellate review.