State v. Mercer, 2013 Ohio 1527

Mercer was convicted in Summit County Court of Common Pleas of rape of a child under 13 and gross sexual imposition; sentencing involved merging the offenses per Johnson.
The victim was ten at the incident and eleven at trial; developmental delays prompted a competency inquiry, conducted via voir dire and a CARE Center interview; court found she could perceive, recall, and communicate, and understood truthfulness.
At trial, the State presented fourteen witnesses; closing argument included a controversial slide; Mercer requested a mistrial which the court denied.
The jury convicted Mercer of both counts but found no force or threat of force; the State later argued the offenses were allied for sentencing and the court vacated the gross sexual imposition sentence.
Mercer appealed on four assignments of error; this Court affirmed, addressing issues related to mistrial, competency hearing procedures, victim competency, and sentencing of allied offenses.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mistrial due to closing argument	Mercer contends improper comments and slide require mistrial.	State contends comments and slide did not prejudice substantial rights.	Mistrial not required; remarks not prejudicially improper; slide deemed egregious but harmless given overwhelming evidence.
R.C. 2945.481 applicability to competency hearing	Mercer argues statute required separation with seven-day prior motion.	State argues statute governs child testimony, not competency voir dire.	R.C. 2945.481(C) not applicable to a non-testifying competency voir dire; second assignment overruled.
Victim competency to testify	Mercer challenges trial court’s competency ruling due to developmental disabilities.	Mercer asserts victim could not comprehend truthfulness; trial court abused discretion.	No abuse; the court properly found victim competent based on voir dire and CARE interview.
Sentencing on allied offenses of similar import	Mercer argues sentencing on both rape and gross sexual imposition violates merger.	State agrees there was error and that remand is required.	Remand for resentencing appropriate; the offenses were allied; journal-entry confusion noted, but remand is proper.

State v. Witcher, 9th Dist. No. 26111, 2012-Ohio-4141 (9th Dist. 2012) (mistrial standard: ends of justice and substantial rights)
State v. Franklin, 62 Ohio St.3d 118 (Ohio Supreme Court 1991) (fair trial standard for mistrial inquiries)
State v. Howes, 2010-Ohio-421 (9th Dist. 2010) (trial court’s discretion on mistrial)
State v. Kyle, 2010-Ohio-4456 (9th Dist. 2010) (mistrial and evidentiary considerations)
State v. Glover, 35 Ohio St.3d 18 (Ohio Supreme Court 1988) (abuse of discretion standard & trial court rulings)
State v. Ahmed, 2004-Ohio-4190 (Ohio Supreme Court 2004) (prosecutorial conduct and harmless error review)
State v. Raglin, 83 Ohio St.3d 253 (Ohio Supreme Court 1998) (jury instruction and credibility considerations)
State v. Leason, 2011-Ohio-6591 (9th Dist. 2011) (journal-entry control of sentencing and allied offenses)
State v. Street, 61 Ohio St.3d 247 (Ohio Supreme Court 1991) (child witness competency framework)