State v. Smith (Slip Opinion) , 2022 Ohio 269 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Smith, Slip Opinion No. 2022-Ohio-269.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-269THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Smith, Slip Opinion No. 2022-Ohio-269.]
Criminal law—A conviction for rape based on insertion under R.C.
2907.02(A)(1)(b) must be supported by evidence that the defendant inserted
a body part or object into another—Court of appeals’ judgment reversed
and cause remanded.
(No. 2021-0051—Submitted November 9, 2021—Decided February 2, 2022.)
APPEAL from the Court of Appeals for Highland County,
No. 20CA8, 2020-Ohio-6694.
__________________
FISCHER, J.
{¶ 1} In this case, we are asked to decide whether a conviction for rape
based on insertion must be supported by evidence that the defendant inserted a body
part or object into another. Based on the plain and unambiguous language in Ohio’s
rape statute, R.C. 2907.02(A)(1)(b), and an applicable statutory definition, R.C.
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2907.01(A), we hold that it must. Because there was no such evidence in this case,
we reverse the judgment of the Fourth District Court of Appeals, and we remand
the case to the trial court for modification of the conviction and for resentencing.
I. BACKGROUND
{¶ 2} The facts in this case are not in dispute. Appellant, Miranda Smith,
pleaded no contest to multiple offenses, including a single count of rape of a child
under the age of 13 in violation of R.C. 2907.02(A)(1)(b). When Smith entered her
plea, she admitted that she had directed her two-year-old son to insert a sex toy into
her vagina and that she had filmed the act. What is in dispute is whether those acts
are sufficient to sustain a conviction under R.C. 2907.02(A)(1)(b).
{¶ 3} On direct appeal, Smith argued that, because she did not insert a body
part or object into another, there was insufficient evidence to support her conviction
for rape under R.C. 2907.02(A)(1)(b). 2020-Ohio-6694, 164 N.E.3d 1016, ¶ 5. The
Fourth District rejected that argument and affirmed her conviction. In doing so, the
court of appeals concluded that there is nothing in “the plain language of the statute
that requires the defendant [to] be the one doing the inserting,” id. at ¶ 17, and that
it would be “absurd” to read the statute in a way that did not capture Smith’s
conduct, id. at ¶ 18.
{¶ 4} Following the Fourth District’s decision, we accepted Smith’s appeal
to consider whether a conviction for rape based on insertion must be supported by
evidence that the defendant inserted a body part or object into another. See 161
Ohio St.3d 1450, 2021-Ohio-534, 163 N.E.3d 587.
II. ANALYSIS
{¶ 5} Whether there is legally sufficient evidence to sustain a conviction is
a question of law that this court reviews de novo. State v. Dent, 163 Ohio St.3d
390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15. The key question in a sufficiency-of-
the-evidence case is “whether the evidence presented, when viewed in a light most
favorable to the prosecution, would allow any rational trier of fact to find the
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essential elements of the crime beyond a reasonable doubt.” Id., citing State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,
superseded by constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn.4.
{¶ 6} In Ohio, “all criminal offenses are statutory,” which means that the
elements necessary to constitute a particular crime must be gathered “wholly from
the statute.” State v. Ford, 128 Ohio St. 3d 398, 2011-Ohio-765, 945 N.E.2d 498,
¶ 10. In this case, the relevant statute, R.C. 2907.02(A)(1)(b), 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.” As the term is used
in R.C. 2907.02(A)(1)(b), “sexual conduct” means the unprivileged “insertion,
however slight, of any part of the body or any instrument, apparatus, or other object
into the vaginal or anal opening of another.” R.C. 2907.01(A).
{¶ 7} Smith contends that to be guilty of rape by insertion under R.C.
2907.01(A), a defendant must have inserted a body part or object into another—as
opposed to someone else having inserted a body part or object into the defendant.
In other words, Smith argues that there was insufficient evidence to support her
conviction because there is a legally significant distinction between engaging in
sexual conduct with another and causing another to engage in sexual conduct.
Given the plain and unambiguous statutory text, we agree.
{¶ 8} In interpreting a statute, we first look to the language of the statute.
State v, Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16.
Where, as here, “the meaning of the statute is clear and definite, it must be applied
as written.” Id.{¶ 9} Plainly, to violate R.C. 2907.02(A)(1)(b), a person (the defendant)
must “engage in sexual conduct with another” (emphasis added), and R.C.
2907.01(A), as relevant here, defines “sexual conduct” as the insertion of a body
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part, instrument, or object into “another.” Reading these statutes together, a
conviction for rape based on insertion must be supported by evidence that the
defendant inserted a body part or object into another.
{¶ 10} The state asks us to ignore the word “another” and to conclude that
Ohio law requires only an act of insertion and that it does not matter whether it is
the victim or the defendant who does the inserting. In other words, the state is
essentially asking us to rewrite R.C. 2907.02(A)(1)(b) to make the statute fit the
facts of this case. We cannot do that, though. See Wheeling Steel Corp. v.
Porterfield, 24 Ohio St.2d 24, 27-28, 263 N.E.2d 249 (1970). Instead, we must
apply the law as written. And as written, R.C. 2907.02(A)(1)(b) does not capture
Smith’s conduct.
{¶ 11} Of course, the fact that Smith’s conduct does not fall under the rape
statute does not mean that it is not criminal. R.C. 2907.05(A) defines the crime of
gross sexual imposition (“GSI”), making it unlawful for an offender to cause
another person to “have sexual contact with the offender.” Thus, as Smith conceded
in her merit brief and at oral argument, while there was insufficient evidence to
support her rape conviction, there was sufficient evidence to support a GSI
conviction. Those concessions matter.
{¶ 12} When there is insufficient evidence to sustain a conviction for one
crime, but sufficient evidence to sustain a lesser included offense of that crime,
Ohio law permits a court to modify the verdict accordingly, without ordering a new
trial. Crim.R. 33(A)(4); R.C. 2945.79(D); see also State v. Robinson, 161 Ohio St.
213, 118 N.E.2d 517 (1954), paragraph one of the syllabus.
{¶ 13} Because GSI is a lesser included offense of rape, State v. Johnson,
36 Ohio St.3d 224, 522 N.E.2d 1082 (1988), paragraph one of the syllabus, the trial
court can modify its judgment to reflect that Smith is guilty of GSI.
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III. CONCLUSION
{¶ 14} Accordingly, we hold that a conviction for rape based on insertion
must be supported by evidence that the defendant inserted a body part or object into
another. Because that evidence was absent here, we reverse the judgment of the
Fourth District Court of Appeals. Because, however, there was sufficient evidence
to sustain a conviction for GSI, a lesser included offense of rape, we remand this
matter to the trial court to modify Smith’s conviction and to resentence her
accordingly.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
_________________
Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J.
King, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Max Hersch, Assistant Public
Defender, for appellant.
_________________
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