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State v. Mencer

Court of Appeals of Ohio, Seventh District, Jefferson

May 2, 2018


          Criminal Appeal from Court of Common Pleas of Jefferson County, Ohio Case No. 15 CR 87.

          For Plaintiff-Appellee Attorney Jane M. Hanlin Prosecuting Attorney Attorney Jeffrey Bruzzese Assistant Prosecutor Jefferson County Justice Center

          For Defendant-Appellant Attorney Bernard Battistel Scarpone & Associates

          JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb


          DONOFRIO, J.

         {¶1} Defendant-appellant, John Mencer, appeals from a Jefferson County Common Pleas Court judgment convicting him of rape and sexual battery following a jury trial.

         {¶2} Appellant is the paternal grandfather of the victim in this case. At the time of the events at issue, the victim was five years old.

         {¶3} In August 2014, the victim returned home to California, where he lives with his mother, after spending the summer in Steubenville, Ohio at appellant's house. His mother noticed a change in him, but could not pinpoint a cause. In October that year, the victim, who was then in the first grade, was troubled by a story at school about a child visiting his grandparents. He later broke down and told his mother that appellant had sexually assaulted him over the course of the summer he spent in Ohio. The mother contacted the Steubenville Police Department.

         {¶4} Detective Erik Dervis investigated the mother's report. The victim was interviewed by a detective and a caseworker in California. That interview was recorded and a DVD of the interview was sent to Det. Dervis. Det. Dervis then contacted appellant. Appellant voluntarily went to the police station where the detective interviewed him. At first, appellant denied the allegations against him. But he eventually confessed to having the victim kiss his penis. Det. Dervis subsequently placed appellant under arrest.

         {¶5} On June 10, 2015, a Jefferson County Grand Jury indicted appellant on one count of rape of a child under ten years of age, a first-degree felony in violation of R.C. 2907.02(A)(1)(b) and (B); one count of sexual battery, a third-degree felony in violation of R.C. 2907.03(A)(5); and one count of gross sexual imposition, a third-degree felony in violation of R.C. 2907.05(A)(4) and (C)(2).

         {¶6} The matter proceeded to a jury trial. The jury heard testimony from the victim, the victim's mother, the detective involved, and appellant. The jury found appellant guilty of rape and sexual battery and not guilty of gross sexual imposition.

         {¶7} The trial court subsequently held a sentencing hearing. On the rape count, the trial court sentenced appellant to life in prison with parole eligibility after 15 years and a $20, 000 fine. On the sexual battery count, the court sentenced appellant to four years in prison and a $15, 000 fine. The court ordered appellant to serve his sentences concurrently. It also classified appellant as a Tier III sex offender.

         {¶8} Appellant filed a timely notice of appeal on October 18, 2016. He now raises three assignments of error.

         {¶9} Appellant's first assignment of error states:


         {¶10} Appellant contends the victim admitted that his mother coached him to say that appellant put his penis inside of the victim's mouth. He also points out that the victim acknowledged that his testimony would determine whether or not appellant would go to prison. Based on these admissions by the victim, appellant contends the victim's testimony was insufficient to convict him.

         {¶11} Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113.

         {¶12} The jury convicted appellant of rape in violation of R.C. 2907.02(A)(1)(b), which provides that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." Pursuant to R.C. 2907.01(A), "sexual conduct" ...

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