Appeal from Logan County Common Pleas Court Trial Court No. 11-12-0253
Marc S. Triplett for Appellant
William T. Goslee for Appellee
(¶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 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 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 ...