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State v. Gilmer

Court of Appeals of Ohio, Sixth District

July 12, 2013

State of Ohio Appellee
v.
James Gilmer Appellant

Trial Court No. CR0201201308

Julia R. Bates, Lucas County Prosecuting Attorney, and

Timothy F. Braun, Assistant Prosecuting Attorney, for appellee.

Neil S. McElroy, for appellant.

DECISION AND JUDGMENT

OSOWIK, J.

{¶1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant guilty of two counts of rape in violation of R.C. 2907.01(A)(2) and (B).

{¶2} Appellant was initially indicted on the two rape charges underlying this case in January 2011. In March 2011, appellant filed a motion for the trial court to determine whether the complaining witness, a child five years of age, was competent to testify. The trial court conducted a hearing on April 8, 2011, and questioned the child pursuant to Evid.R. 601. The court took the matter under advisement and, on April 18, 2011, ruled that the child was competent to testify. The indictment subsequently was nollied and a bill of information was filed on February 24, 2012. On that same date, appellant entered pleas of guilty in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Appellant's pleas were accepted and his sentencing hearing was held immediately.

{¶3} The trial court addressed appellant, explaining the consequences of entering an Alford plea. After the prosecutor set forth the basis for the charges against appellant, the trial court found that appellant had made a knowing, intelligent and voluntary waiver of his constitutional rights, accepted the Alford plea, and found appellant guilty of the two counts of rape. Appellant was sentenced to ten years on each count, to be served consecutively.

{¶4} Appellant now sets forth the following assignments of error:

Assignment of Error No. 1:

The trial court failed to adequately determine whether the child- victim was competent to testify as required by Evid.R. 601(A), R.C. § 2317.01, and the Ohio Supreme Court's decision in State v. Frazier.

Assignment of Error No. 2:

Trial counsel's failure to object to the trial court's ruling regarding the competency of the child-witness resulted in a deprivation of Mr. Gilmer's right to the effective assistance of counsel as guaranteed by the United States Constitution.

{¶5} In support of his first assignment of error, appellant asserts that there was no verification of the truth or accuracy of the answers provided by the witness in response to the trial court's questions and that, therefore, the trial court failed to adequately determine whether the child victim was competent to testify as required by Ohio law. In support of his second assignment of error, appellant asserts that trial counsel was ineffective ...


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