Court of Appeals of Ohio, Seventh District, Jefferson
Criminal Appeal from Court of Common Pleas of Jefferson
County, Ohio Case No. 15 CR 87.
Plaintiff-Appellee Attorney Jane M. Hanlin Prosecuting
Attorney Attorney Jeffrey Bruzzese Assistant Prosecutor
Jefferson County Justice Center
Defendant-Appellant Attorney Bernard Battistel Scarpone &
JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol
Defendant-appellant, John Mencer, appeals from a Jefferson
County Common Pleas Court judgment convicting him of rape and
sexual battery following a jury trial.
Appellant is the paternal grandfather of the victim in this
case. At the time of the events at issue, the victim was five
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.
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.
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).
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
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.
Appellant filed a timely notice of appeal on October 18,
2016. He now raises three assignments of error.
Appellant's first assignment of error states:
STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION
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.
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.
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" ...