COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69958 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ROCCO C. ORTIZ, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 14, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-322464 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Edward M. Walsh Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Martin Keenan 11510 Buckeye Road Cleveland, Ohio 44105 -2- NAHRA, J.: Rocco C. Ortiz, appellant, was convicted of the rape of a fifty-four year old mentally retarded woman. The indictment alleged a violation of R.C. 2907.02 (Rape) and noted four prior felony specifications. The state called eight witnesses to testify: Dr. Richard Yetsco, a physician who examined the victim after the allegation of rape; Frank Heinrich, a licensed social worker and psychological assistant for Northeast Care Center, the provider of services to group homes for mentally retarded adults; Gwendolyn Hussein, a habilitation assistant at Beta House, the sight of the rape; the victim of the rape, a resident of the Beta House; Margaret C. Torok, the director of Beta House; Officer Darlene Dillard, a city of Cleveland police officer; Joseph Serowick, a Cleveland police department forensic scientific examiner; and Essie Borders, a city of Cleveland police detective. On October 2, 1995, the jury returned a verdict of guilty to one count of rape in violation of R.C. 2907.02. The trial court entered a judgment of guilty on the specifications alleged in the indictment and sentenced appellant to fifteen actual years to twenty-five years imprisonment. On July 22, 1996, the trial court journalized nunc pro tunc an entry of nolle prosequi as to the second count of the indictment. I. Appellant assigns three errors for review. The first states: -3- I. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED ROCCO ORTIZ OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XIV OF THE OHIO CONSTITUTION WHEN IT CONDUCTED A HEARING TO DETERMINE A MENTALLY RETARDED WITNESS'S COMPETENCY WHICH WAS INSUFFICIENT AS A MATTER OF LAW. The victim in this case was a mentally retarded adult. To testify, witnesses must be competent. Evid.R. 601 provides in part: Every person is competent to be a witness except: A) Those 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. Those persons classified as mentally retarded are presumed incompetent as witnesses and must have their competency to testify determined by the court. State v. Miller (1988), 44 Ohio App.3d 42, 541 N.E.2d 105; State v. Kinney (1987), 35 Ohio App.3d 84, 519 N.E.2d 1386; see R.C. 1.02 (C) (Defining unsound mind to include all forms of mental retardation.). The test for competency of a witness presumed incompetent is set forth in the syllabus of State v. Frazier (1991): 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. 61 Ohio St.3d 247, 574 N.E.2d 483,484. -4- Appellant argues that the court did not conduct a complete examination of the mentally retarded victim prior to finding she was competent. In determining her competency, the court solicited directly that she understood the difference between telling the truth and lying and that she appreciated the consequences of lying. Additionally the court asked the witness questions as to the substance of her testimony. In answering these questions, she related that she had been raped and explained to the court that she understood what rape was. Appellant complains that the court failed to directly question the witness's ability to perceive, recall, or communicate events, and that its failure to do so is reversible error. A court conducting a voir dire to determine competency is not chained to a ritualistic formula to ask specific questions. It must satisfy itself of the elements enumerated in Frazier; that the witness is able to perceive, remember, and recollect events; understand the meaning of truth; and appreciate the meaning of an oath. Having ascertained that the witness communicated her understanding of the truth, her appreciation of an oath by her recognition of punishment, and her ability to testify as to the rape, the court satisfied itself that the witness could competently perceive, recall, and relate the events to which she was a witness. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: -5- II. THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL ERROR WHEN IT PERMITTED A WITNESS TO TESTIFY ABOUT HEARSAY STATEMENTS ALLEGEDLY MADE BY THE APPELLANT WHICH WERE IRRELEVANT AND HIGHLY PREJUDICIAL. Margaret C. Torok testified as to statements made by appellant two weeks prior to the rape. Torok testified that after she told appellant none of the residents of Beta House had tested positive for HIV or hepatitis: He made some comments that he was very leery of germs. And he went into talking about how he didn't french kiss with women. *** Rocco stated he was talking with the three of us, and he said that when a woman would eat corn chips or potato chips that they could get small cuts, micro-cuts in their mouth and potentially could spread an AIDS virus. *** I mean he said -- then he said that his -- that he had this fear that his sister thought he was overreacting and you know, he was carrying it too far, and then he said that he hadn't been with a woman in a long time. Appellant argues that these statements are irrelevant to the rape trial, and alternatively, if found to be relevant, then their probative value is substantially outweighed by their prejudicial value, and thus inadmissable under Evid.R. 403. Evid.R. 401 states: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. It is within the sound discretion of the trial court to apply its common experience and logic to determine the relevance of evidence. -6- State v. Lyles (1989), 42 Ohio St.3d 98, 99-100, 537 N.E.2d 221, 222 (citations omitted). A reviewing court is to only overturn the rulings of the trial court where there is a clear abuse of discretion and that abuse has materially prejudiced the defendant. Lyles, 42 Ohio St.3d at 99- 100, 537 N.E.2d at 222. Even where inadmissable evidence is erroneously admitted, the reviewing court should not reverse the decision where the error is "harmless beyond a reasonable doubt." Id. An error is harmless beyond a reasonable doubt where the "remaining evidence alone comprises `overwhelming' proof of defendant's guilt." Id. (Quoting Harrington v. California (1969), 39 U.S. 250, 254, 89 S.Ct. 1726, 1728; State v. Willliams (1983), 6 Ohio St.3d 281, 290, 452 N.E.2d 1323, 1333 certiorari denied (1983), 464 U.S. 1020, 104 S.Ct. 554.) Evid.R. 403 states: (A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. The court found that appellant's statements were relevant and that the prejudicial value was not substantially outweighed by its prejudice. Although perhaps only marginally relevant, we cannot say the court abused its discretion in admitting the statements of appellant. Moreover, if admission of the statements was error, it was harmless in view of the remaining evidence of defendant's guilt and "`[i]t cannot be said that without *** [the disputed] evidence the verdict of the jury would have been different.'" Lyles, 42 Ohio -7- St.3d at 100, 537 N.E.2d at 222 (quoting State v. Sage (1987), 31 Ohio St.3d 173, 181-82, 510 N.E.2d 343, 349.) Accordingly, appellant was not materially prejudiced by the introduction of the statements complained of. Appellant's second assignment of error is overruled. III. Appellant's third assignment of error states: III. ROCCO ORTIZ'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Appellant argues that his conviction was based upon insufficient evidence and that the court erred by denying his motion for an acquittal. Crim.R. 29 provides in part that "the court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." In State v. Jenks (1991), the syllabus states: 2. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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 essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, followed.) 61 Ohio St.3d 259-260, 574 N.E.2d 492, 494. -8- Appellant was convicted of rape in violation of R.C.2907.02, which provides in part: (A)(1) No person shall engage in sexual conduct with another ... when any of the following apply: *** (c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. Sexual conduct is defined in R.C. 2907.01(A) as: "Sexual conduct" means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. Margaret Torok testified that the residents of Beta House were mentally retarded and that appellant worked at the house alone on the night that the rape occurred. Dr. Richard Yetsco testified that he examined the victim approximately one day after the rape and his findings were consistent with sexual intercourse. Frank Heinrich, a psychological assistant for Northeast Care Center, testified that the victim was severely mentally retarded, with a mental age no greater than six to six and one-half years old, and that in his opinion she was incapable of consenting to sexual intercourse. The victim testified that appellant pushed her into a chair, pulled up her nightgown, pulled down her clothes, and raped her. The evidence is sufficient to establish each element of the -9- crime of rape of a person whose mental impairment precludes the ability to consent. Appellant's third assignment of error is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, JAMES D., P.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .