[Cite as State v. Mercer,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26361

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DANIEL LEE MERCER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 09 2389

DECISION AND JOURNAL ENTRY

Dated: April 17, 2013

CARR, Judge.

{¶1} Appellant Daniel Mercer appeals his conviction in the Summit County Court of

Common Pleas. This Court affirms.

I.

{¶2} Mercer was indicted on one count of rape of a child under the age of thirteen and

one count of gross sexual imposition of a child under the age of thirteen. The rape charge

included an allegation that Mercer purposely compelled the victim to submit by force or threat of

force. This additional allegation would have supported the enhancement of the penalty if Mercer

were found guilty of the charge.

{¶3} The victim in this case was ten years old at the time of the incident and eleven

years old at the time of trial. Mercer filed a motion for a competency hearing to determine

whether the victim, who was developmentally delayed, was competent to testify. The trial court

held a hearing during which the judge questioned the child. The trial court permitted counsel to 2

submit proposed questions, although the judge indicated that she would not necessarily ask all or

any of the proposed questions. Counsel for both Mercer and the State were permitted to observe

the hearing as it occurred from another room via a closed circuit television. Prior to the hearing,

Mercer, relying upon R.C. 2945.481, objected to his and counsels’ separation from the victim

during the competency hearing. The State argued that the statute was inapplicable under the

circumstances and the trial court agreed. By stipulation of the parties, the trial court reviewed

the victim’s interview by a social worker at Akron Children’s Hospital’s Children At Risk

Evaluation (C.A.R.E.) Center for purposes of determining the child’s competency to testify at

trial. The trial court found that the child had the ability to accurately perceive, recollect, and

communicate impressions; that she understood the difference between truth and falsity; and that

she had the capacity to appreciate her moral responsibility to be truthful.

{¶4} The matter proceeded to trial, during which the State presented evidence,

including the testimony of fourteen witnesses. During the State’s closing argument, the assistant

prosecutor displayed a slide to which Mercer objected. Although the trial court instructed the

State to remove the slide and the jury to disregard the slide, Mercer moved for a mistrial. The

trial court denied Mercer’s motion.

{¶5} At the conclusion of trial, the jury found Mercer guilty of rape and gross sexual

imposition, although it found that the defendant did not compel the victim to submit by force or

threat of force. At the sentencing hearing, the State informed the court that, under the facts of

this case, the gross sexual imposition charge would merge into the rape charge for purposes of

sentencing. Mercer agreed that the charges should merge. At sentencing, the trial court initially

imposed a sentence on both counts, running the sentence for gross sexual imposition

concurrently with the sentence for rape. In the sentencing entry, however, the trial court noted 3

that it performed an analysis pursuant to State v. Johnson,

,

,

and determined that Mercer’s two charges were allied offenses of similar import. The trial court,

therefore, vacated the sentence it earlier imposed for the count of gross sexual imposition. It

ordered that that count merged with the rape count for purposes of sentencing. The trial court

sentenced Mercer to life in prison with eligibility for parole after ten years. Mercer appealed and

raises four assignments of error for review.

II.

ASSIGNMENT OF ERROR I

TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL BASED UPON IMPROPER STATEMENTS MADE DURING THE STATE’S CLOSING ARGUMENT.

{¶6} Mercer argues that the trial court erred by denying his motion for a mistrial based

on alleged improper comments and a slide displayed by the State during closing argument. This

Court disagrees.

{¶7} “‘Mistrials need be declared only when the ends of justice so require and a fair

trial is no longer possible.’” State v. Witcher, 9th Dist. No. 26111,

,

quoting State v. Franklin,

(1991). “The essential inquiry on a motion for

mistrial is whether the substantial rights of the accused are adversely affected. Great deference is

afforded to a trial court’s decision regarding a motion for mistrial[.]” (Internal citations omitted.)

State v. Howes, 9th Dist. No. 24665,

, ¶ 11. We recognize that the trial court

judge maintains the best position to determine whether the declaration of a mistrial is warranted

under the circumstances as they have arisen in the courtroom. State v. Kyle, 9th Dist. No. 24655,

, ¶ 25, citing State v. Glover,

(1988); State v. Ahmed,

,

, ¶ 92. Accordingly, “[t]his court will not second-guess such a 4

determination absent an abuse of discretion.” Ahmed at ¶ 92. An abuse of discretion is more

than an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore,

(1983). When

applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd.,

(1993).

{¶8} Mercer argues that a mistrial was warranted because of improper comments and

images presented to the jury by the State during closing argument. When considering whether

certain remarks constitute prosecutorial misconduct, a reviewing court must determine “(1)

whether the remarks were improper and (2) if so, whether the remarks prejudicially affected the

accused’s substantial rights.” State v. Jackson,

,

, ¶ 142, citing

State v. Smith,

(1984). The Ohio Supreme Court continued that

[t]he touchstone of analysis “is the fairness of the trial, not the culpability of the prosecutor.” This court will not deem a trial unfair if, in the context of the entire trial, it appears beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments.

(Internal citations omitted.) Jackson at ¶ 142.

{¶9} Mercer argues that the State improperly portrayed the facts by arguing that

Mercer “lured” the victim to a “secluded area” and “sexually assaulted this little girl in many

different ways.” Mercer further complains about the State’s following argument:

He did this with full intention, nefarious intention. He had every bad intention of committing this crime against this little girl. You heard us talk about the perfect victim. You know, that day he said I’ll be your boyfriend and you be my girlfriend to this little, little girl. You saw her. And she is the perfect victim. He lured her back there.

{¶10} As the assistant prosecutor made these comments, she displayed a slide depicting

a block-form man with horns holding the hand of a block-form little girl. Mercer asserts that the

image of the man was red. Although the copy of the slide submitted with the record is not in 5

color, the State does not dispute that the image of the man displayed during closing argument

was red.

{¶11} Mercer immediately objected to the State’s display of the slide and the trial court

immediately directed the State to remove it. In addition, the trial court directed the jury to

disregard the slide. There is a long-standing presumption that a jury follows the trial court’s

instructions. State v. Jones,

(2001), citing State v. Raglin,

(1998).

{¶12} This Court concludes that the assistant prosecutor’s comments that Mercer lured

the victim to a secluded area and sexually assaulted her in various ways comports with the

evidence adduced at trial. In addition, there was evidence by an expert witness who specializes

in the field of child-victim sexual abuse trauma that the victim in this case was very vulnerable

and constituted “perfect prey” for someone with bad intentions. Accordingly, while the assistant

prosecutor’s comments were direct, harsh, and cast Mercer in a negative light, they did not cross

the line into impropriety.

{¶13} The same cannot be said about the State’s use of the slide which depicted Mercer

as the devil. The presentation of the slide constituted conduct by the State that this Court can

only describe as egregious. Such flagrant overstepping of the bounds of professionalism and

decorum would normally result in reversal of the conviction but for the existence of

overwhelming evidence of Mercer’s guilt.

{¶14} In this case, the victim and her mother testified that Mercer gave the child a candy

bar before asking her to accompany him to his sister’s house. The victim testified that Mercer

took her to the woods behind his sister’s garage, where he took off their clothes, digitally and

painfully penetrated her vagina, and caused her to bleed. The victim’s reports to others 6

regarding the incident consistently alleged vaginal penetration. The certified nurse practitioner

at Akron Children’s Hospital’s CARE Center, who performed the victim’s physical examination

after the assault, testified that one quarter of the child’s hymenal surface was gouged and torn in

a manner consistent with penetrating trauma. The nurse testified that this was one of the very

rare cases in which physical trauma was evident after an assault, because in most child sexual

assault cases, there is no evidence of physical harm. Moreover, an expert witness from the DNA

section of the Bureau of Identification and Investigation testified that a DNA profile taken from a

swab of the victim’s underwear was consistent with Mercer. When Mercer was interrogated by

police after the incident, he admitted that he offered the ten-year old victim, whom he described

as “not all there,” a candy bar and $5 to accompany him; that he took her to a secluded area

behind his sister’s garage where they got undressed; and that he licked the child’s vagina, placed

his finger in her vagina, and had the child touch his penis and try to perform oral sex on him. A

trauma therapist from the CARE Center confirmed that the victim was a “very vulnerable child”

and “perfect prey” for someone with bad intentions based on the child’s developmental delays,

lack of personal boundaries which allows her to trust people she does not know, and a bad

temper and disrespectful attitude arising out of a home environment without much structure or

rules and which would likely cause the adults in her life to disbelieve her allegations.

{¶15} This Court concludes that, while the State’s conduct during closing argument was

improper, the publication of the slide depicting Mercer as the devil did not prejudicially affect

Mercer’s substantial rights. The trial court gave the jury a curative instruction, directing them to

disregard the slide. Moreover, apart from any impropriety by the State, there was overwhelming

evidence of the defendant’s guilt. Given the nature and amount of testimonial and physical

evidence, coupled with Mercer’s confession, the evidence presented by the State demonstrated 7

Mercer’s guilt beyond a reasonable doubt. We caution the State that the absence of any of the

evidence presented in this case, however, might very well have compelled a different result.

Under what are surely rare circumstances where the defendant admitted his alleged wrongdoing

and the confession comports with the testimonial and physical evidence, we conclude that the

trial court did not abuse its discretion by denying Mercer’s motion for a mistrial on the grounds

of prosecutorial misconduct. The first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH THE REQUIREMENTS OF R.C. 2945.481.

{¶16} Mercer argues that the trial court erred by conducting the child victim’s

competency hearing in a room where he was not permitted to be present and could only view the

proceedings via closed-circuit television in violation of R.C. 2945.481. This Court disagrees.

{¶17} The child victim in this case was eleven years old at the time of trial. Evid.R.

601(A) states that “[e]very person is competent to be a witness except[] [t]hose 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.” Mercer

filed a motion for a competency hearing to determine the victim’s competency to testify at trial

based on allegations that the child suffered from developmental disabilities. On the date

originally scheduled for the competency hearing, the trial court informed the parties that they had

no right to question the child relative to the competency determination but that the court would

allow them to submit proposed questions that the court may or may not ask. The trial court

judge further stated that she would conduct the competency hearing in another courtroom that

had the technological capability to allow Mercer and all attorneys to watch the hearing from

another room. The State neither filed a motion nor orally requested such separation; rather, it 8

appeared that the trial court raised the issue sua sponte based on its understanding that the child

victim was afraid to see Mercer. Mercer made no objection on the record on the date originally

scheduled for the hearing. On the date the hearing ultimately occurred, Mercer objected to the

separation and argued that R.C. 2945.481 required the State to file a motion for separation at

least seven days earlier. The State responded that the statute only pertained to sworn testimony at

trial, not unsworn statements made during an informal hearing. The trial court agreed and

conducted a voir dire of the child victim to determine her competency to testify later at trial.

{¶18} Mercer argues that the trial court erred by failing to comply with R.C.

2945.481(C), which states in relevant part:

In any proceeding in the prosecution of any charge of a violation listed in division (A)(2) of this section or an offense of violence and 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 being 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. Except for good cause shown, the prosecution shall file a motion under this division at least seven days before the date of the proceeding. 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.

{¶19} R.C. 2945.481(E) lists the following reasons which justify the taking of the child

victim’s testimony outside the room in which the proceeding is being conducted: (1) the child

victim persistently refuses to testify despite judicial requests to do so; (2) the child victim is

unable to communicate about the alleged offense due to extreme fear, memory failure, or other

similar reason; or (3) there is a substantial likelihood that the child victim will suffer serious 9

emotional trauma from being compelled to testify in the room in which the proceeding is being

conducted.

{¶20} Mercer has cited no authority in support of the proposition that R.C. 2945.481(C)

is applicable to a victim’s competency hearing. By its plain language, the statute is implicated in

relation to a child victim’s testimony. The child did not testify at the competency hearing. The

trial court did not swear in the child, but merely conducted an informal question and answer

session to determine whether the child was able to accurately perceive and effectively

communicate perceptions in a truthful manner.

{¶21} The child victim did not testify at the competency hearing. Because R.C.

2945.481(C) is applicable with regard to a child victim’s testimony, by its plain language it was

not implicated during the trial court’s voir dire of the victim during her competency hearing at

which the child did not testify. Accordingly, the State was not required to file a motion at least

seven days prior to the hearing requesting the separation of the victim and defendant, and the

trial court was not required to make findings pursuant to R.C. 2945.481(E) before conducting

voir dire of the victim in a room other than where the proceeding was occurring. Mercer’s

second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DETERMINING THE ALLEGED VICTIM WAS COMPETENT TO TESTIFY AT TRIAL.

{¶22} Mercer argues that the trial court erred by determining that the child victim was

competent to testify at trial. This Court disagrees.

{¶23} “A determination of competency is within the sound discretion of the trial court.

A trial judge is far better situated than a reviewing court to gauge the competency of a child

witness * * *, and for that reason, the lower court’s finding as to competency will not be 10

disturbed absent an abuse of discretion.” (Internal citations omitted) State v. Street,

(9th Dist. 1997). An abuse of discretion is more than an error of judgment; it

means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore,

. When applying the abuse of discretion standard, this Court may

not substitute its judgment for that of the trial court. Pons,

.

{¶24} The victim in this case was eleven years old at the time of trial. Accordingly, she

was presumed competent pursuant to Evid.R. 601(A) by virtue of her age. Mercer argues,

however, that, because she suffered from developmental disabilities and was diagnosed with

attention deficit hyperactivity disorder, she functioned effectively as a child under ten years old,

was of unsound mind and was, therefore, not competent to testify.

{¶25} “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.” State v. Frazier,

(1991), syllabus.

{¶26} Mercer challenges the child victim’s competence not based on any inability to

recount events accurately, but rather solely based on the child’s alleged inability to understand

the necessity of telling the truth. The trial court found that the victim understood the difference

between truth and falsity and had the capacity to appreciate her moral responsibility to tell the

truth. It based its findings on its review of the child’s videotaped interview with the CARE

Center social worker and the court’s voir dire of the child. 11

{¶27} Based on our review of the child’s interview with the social worker and the trial

court’s voir dire of the child, we conclude that the trial court did not abuse its discretion when it

found the child competent to testify at trial. During both the interview with the social worker

and the court’s voir dire, the victim was forthright in her responses. The social worker and judge

asked certain questions about the child’s family and personal life, the answers to which were

readily verifiable by information already in their possession. The child was truthful as to those

issues. For example, she truthfully disclosed her birthdate and school and the identities of her

household members. The social worker set ground rules for her session with the victim,

including rules that the child not make up answers and that she tell the worker that she does not

know if she in fact did not know the answer to a question. The child demonstrated her

understanding of the rules and told the social worker that she did not know the answers to some

questions. The judge asked the child what it meant to tell the truth and to tell a lie. Although the

child’s responses were unsophisticated, she expressed an understanding of the difference. The

child asserted that she would “get in trouble” for telling a lie and that she learned in church that

people who tell lies “go[] to hell.” When posed with a hypothetical question about what she

would do if she lost her cell phone, the victim told the judge that she would tell her mother, i.e.,

be honest about the situation, because that would be the best course of action that would help

locate the phone. Under these circumstances, it was not unreasonable for the trial court to find

that the victim understood the difference between the truth and a lie, the benefits of telling the

truth, the ramifications of telling a lie, and the importance of discussing the incident with Mercer

truthfully. Accordingly, the trial court did not abuse its discretion by finding the victim

competent to testify. Mercer’s third assignment of error is overruled. 12

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN SENTENCING APPELLANT ON BOTH THE CONVICTION FOR RAPE AND GROSS SEXUAL IMPOSITION WHEN THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT[.]

{¶28} Mercer argues that the trial court erred by sentencing him on both the charge of

rape and the charge of gross sexual imposition because the charges were allied offenses of

similar import. The State concedes error and agrees that the matter must be remanded for

resentencing. Both Mercer and the State have misread the trial court’s sentencing entry.

{¶29} At the sentencing hearing, the State informed the trial court that the counts of rape

and gross sexual imposition in this case were allied offenses of similar import. Mercer agreed.

When orally imposing sentence at the hearing, the trial court imposed a sentence on both the rape

and gross sexual imposition counts, indicated a desire to impose the sentences consecutively, but

asserted that it was bound by statute to run the sentences concurrently. That sentence was not

ultimately reflected in the court’s sentencing entry, however.

{¶30} It is well settled that “a trial court speaks only through its journal entries.” State

v. Leason, 9th Dist. No. 25566,

. In its sentencing entry, the trial court

reiterated the sentence it orally imposed at the sentencing hearing. However, later in the same

entry, the court asserted that it “performed an analysis in accordance with State v. Johnson, [

,

],” determined that the rape and gross sexual imposition counts

were allied offenses of similar import, and vacated the sentence it previously imposed on gross

sexual imposition. The trial court ordered that the count of gross sexual imposition merged into

the count of rape, and it imposed a life sentence with the possibility of parole after ten years for

rape. Although the trial court’s imposition of sentence was confusing, as evidenced by both 13

parties’ misunderstanding of the ultimate sentence imposed, the trial court merged the counts and

only imposed a sentence for rape. Mercer’s fourth assignment of error is overruled.

III.

{¶31} Mercer’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT 14

MOORE, P. J. CONCURS.

BELFANCE, J. CONCURRING.

{¶32} I concur. With respect to Mr. Mercer’s second assignment of error, I agree

that he has not set forth any precedent indicating that R.C. 2945.481 applies to a judge’s

in camera voir dire of a child. Moreover, Mr. Mercer has not cited to case law that

specifically analyzes a trial court’s voir dire of a child for competency, nor has he made

any argument that such precedent is distinguishable or inapplicable to this case.

APPEARANCES:

THOMAS M. DICAUDO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.