In re A.B. , 2023 Ohio 1138 ( 2023 )

[Cite as In re A.B., 2023-Ohio-1138.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.B. :
: No. 111744
A Minor Child :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 6, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL21107028
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Dominic Neville, Assistant Prosecuting
Attorney, for appellee.
Rachel A. Kopec, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant A.B. appeals from his adjudication of
delinquency on four counts of rape. For the reasons that follow, we affirm.
Factual and Procedural History
On August 17, 2021, A.B., d.o.b. 9/17/2001, was charged with six
counts of rape in violation of R.C. 2907.02(A)(1)(b). Counts 1 through 4 involved
cunnilingus and fellatio. Counts 5 and 6 involved anal and vaginal penetration. All
counts had furthermore specifications of force. These charges arose from incidents
that allegedly took place in August 2019. When these incidents took place, the
victim, then eight years old, was living in a house with multiple people, including
A.B., then 17 years old.
The matter proceeded to trial on March 15, 2022.
S.F. testified that she currently lived with her grandparents, but she
had previously lived with relatives, including A.B., when she was seven or eight years
old. S.F. testified that she was living in this house with relatives because her parents
had problems with drugs. S.F. testified that while she was living in this house, A.B.
would regularly touch her private parts. She testified that this generally happened
at night, and sometimes happened in his room — a downstairs closet — and
sometimes happened on the stairs. S.F. testified that A.B. would pull their pants
down and “he sucked on my pee-pee or I would suck on his.” S.F. testified that A.B.
told her not to tell anyone that this was happening. Finally, S.F. testified that she
did not tell anyone until months later, when she told her grandmother, D.M.
D.M. testified that in fall 2019, S.F.’s mother had signed over custody
of S.F. and her brother to S.F.’s grandfather, so D.M. and S.F.’s grandfather went to
a house in Cleveland, Ohio, to pick up S.F. and her brother.
D.M. testified that at some point in the next year, S.F. told her that
she had been sexually abused by A.B. D.M. subsequently went to the authorities, at
which point D.M. and S.F.’s brother gave statements to the police.
Cleveland police detective Dustin Vowell (“Vowell”) testified that he
received this case on September 17, 2020. Vowell testified a Division of Children
and Family Services (“DCFS”) social worker interviewed S.F. on September 30,
2020, and he attended that interview. Vowell also observed the DCFS social worker
interview S.F.’s brother. Following the interview, Vowell determined that the
incidents S.F. described took place at a house on Holmden Avenue in Cleveland,
Ohio. Subsequently, Vowell identified A.B. and interviewed him. Finally, Vowell
testified that he interviewed D.M.
Following the aforementioned testimony, A.B.’s counsel made a
motion for acquittal. The court granted the motion with respect to Counts 5 and 6
and denied the motion with respect to Counts 1 through 4.
A.B. then testified in his own defense. A.B. testified that between
2015 and 2021, he lived with relatives on Holmden Avenue because his parents were
drug addicts. A.B. testified that in the summer of 2019, 13 other people were living
in the house with him. A.B. testified that he slept on an air mattress in a closet
adjacent to the living room. A.B. testified that sometimes S.F. would sit on his lap
and watch him play video games with her brother. He denied sexually abusing S.F.
at any time.
A.B.’s counsel renewed his motion for acquittal, and the court denied
the motion. The court adjudicated A.B. delinquent as to Counts 1 through 4. This
adjudication was journalized on March 31, 2022.
On June 1, 2022, the court held a dispositional hearing. The
investigative probation officer addressed the court with respect to A.B.’s sex offender
assessment. The investigative probation officer recommended that the court require
A.B. to participate in sex offender counseling services through Ohio Guidestone.
The assistant prosecuting attorney recommended that the court classify A.B. as a
Tier III sex offender and commit him to the Department of Youth Services (“DYS”)
until he turns 21. Defense counsel and A.B. also addressed the court.
The court committed A.B. to the legal custody of DYS for
institutionalization in a secure facility for a minimum period of 12 months and a
maximum period not to exceed his attainment of the age of 21.
On July 1, 2022, A.B. filed a notice of appeal. A.B. presents two
assignments of error for our review:
I. The trial court erred as a matter of law in finding the appellant
delinquent when there was not sufficient evidence to support the
convictions.
II. The manifest weight of the evidence did not support the convictions.
Legal Analysis
A.B. contends that the evidence presented at trial was not sufficient
to support an adjudication of delinquency. He further argues that the adjudication
was against the manifest weight of the evidence. We disagree.
A juvenile court may adjudicate a juvenile to be a delinquent child
when the evidence demonstrates, beyond a reasonable doubt, that the child
committed an act that would constitute a crime if committed by an adult.
R.C. 2151.35(A); Juv.R. 29(E)(4); In re R.S., 8th Dist. Cuyahoga No. 99562, 2013-
Ohio-5576, ¶ 26; In re Williams, 3d Dist. Marion No. 9-10-64, 2011-Ohio-4338, ¶ 18.
“[D]ue to the ‘inherently criminal aspects’ of delinquency proceedings,” claims
involving the sufficiency of the evidence and the manifest weight of the evidence in
delinquency appeals are subject to the same standards of review applicable to
criminal convictions. In re T.J., 9th Dist. Summit No. 27269, 2014-Ohio-4919, ¶ 19,
quoting In re R.D.U., 9th Dist. Summit No. 24225, 2008-Ohi0-6131, ¶ 6; In re R.S.
at ¶ 26, citing In re Watson, 47 Ohio St.3d 86, 91, 548 N.E.2d 210 (1989); see also
In re S.H., 8th Dist. Cuyahoga No. 100529, 2014-Ohio-2770, ¶ 17, 25.
I. Sufficiency of the Evidence
In his first assignment of error, A.B. argues that there was not
sufficient evidence to support an adjudication of delinquency. A challenge to the
sufficiency of the evidence supporting a conviction requires a determination of
whether the state has met its burden of production at trial. State v. Hunter, 8th Dist.
Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d
380, 390, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to
support a verdict is a question of law. Thompkins at 386. We must determine
“‘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.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235,
818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. We do not assess whether the state’s evidence
is to be believed; we assess whether the evidence admitted at trial, if believed,
supported the adjudication. Thompkins at 390 (Cook, J., concurring).
In other words, we assume the state’s witnesses testified truthfully
and determine whether that testimony, along with any other evidence presented,
satisfies each element of the offense. In re D.R.S., 8th Dist. Cuyahoga No. 103584,
2016-Ohio-3262, ¶ 23. The elements of an offense may be proven by direct evidence,
circumstantial evidence or both. See, e.g., State v. Wells, 8th Dist. Cuyahoga
No. 109787, 2021-Ohio-2585, ¶ 25, citing State v. Durr, 58 Ohio St.3d 86, 568
N.E.2d 674 (1991). “Direct evidence exists when ‘a witness testifies about a matter
within the witness’s personal knowledge such that the trier of fact is not required to
draw an inference from the evidence to the proposition that it is offered to
establish.’” Wells at ¶ 25, quoting State v. Cassano, 8th Dist. Cuyahoga No. 97228,
2012-Ohio-4047, ¶ 13. Circumstantial evidence is “evidence that requires ‘the
drawing of inferences that are reasonably permitted by the evidence.’” Wells at ¶ 25,
quoting Cassano at ¶ 13; see also State v. Hartman, 8th Dist. Cuyahoga No. 90284,
2008-Ohio-3683, ¶ 37 (“[C]ircumstantial evidence is the proof of facts by direct
evidence from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind.”). Circumstantial evidence
and direct evidence have “equal evidentiary value.” Wells at ¶ 26, citing State v.
Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12.
The juvenile court found A.B. delinquent of rape in violation of
R.C. 2907.02(A)(1)(b), which provides in relevant part that “[n]o person shall
engage in sexual conduct with another who is not the spouse of the offender * * *
when * * * the other person is less than thirteen years of age, whether or not the
offender knows the age of the other person.” “Sexual conduct” includes fellatio and
cunnilingus. R.C. 2907.01(A).
A.B. argues that the evidence was insufficient because S.F. testified
that the alleged abuse happened about 30 times, she could not say exactly when the
incidents occurred, and she could not describe what occurred using anatomically
correct terminology. These arguments are unpersuasive.
It is axiomatic that in cases involving sexual misconduct with a young
child, precise times and dates of the conduct or offenses often will not be
determined. In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 88321, 2007-Ohio-
2226, ¶ 23, citing State v. Barnecut, 44 Ohio App.3d 149, 542 N.E.2d 353 (5th
Dist.1988). With respect to the timing of the incidents, S.F. testified that they
occurred when she was living in a house with A.B. when she was in second grade.
This testimony, together with testimony from A.B., D.M., and Vowell about the
timing of the alleged incidents, is sufficient to establish a general time period during
which the abuse occurred. Moreover, while the complaint states that the conduct
occurred on or about August 1, 2019, to August 31, 2019, the date of the offense is
not an essential element of the offense requiring proof beyond a reasonable doubt.
State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985).
With respect to S.F.’s testimony about the conduct itself, A.B. is
correct that S.F., who was eight years old at the time of the abuse and ten years old
at the time of trial, did not explicitly state that A.B. inserted his tongue into her
vagina, or that he inserted his penis into her mouth. However, A.B. cites no
authority stating that such language is required. S.F. testified that A.B. pulled his
pants down so that she could suck on his “pee-pee,” that he would pull her pants
down so that he could suck on her “pee-pee,” and that she felt “it” going in her
mouth. S.F. went on to describe the physical differences between her genitalia and
A.B.’s.
All of this testimony is sufficient to establish that A.B. engaged in
fellatio and cunnilingus with S.F. “‘[T]he act of cunnilingus is completed by the
placing of one’s mouth on the female’s genitals.’” State v. Rucker, 2020-Ohio-2715,
154 N.E.3d 350, ¶ 10 (8th Dist.), quoting State v. Lynch, 98 Ohio St.3d 514, 2003-
Ohio-2284, 787 N.E.2d 1185, ¶ 86. Penetration is not required for cunnilingus. Id.Further, this court has specifically found that there was sufficient evidence to sustain
a rape conviction where a child victim testified using “pee pee” instead of the word
“penis.” In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 88321, 2007-Ohio-2226.
Any rational trier of fact could have found that the essential elements of rape were
satisfied by the evidence presented in this case. Therefore, A.B.’s first assignment of
error is overruled.
II. Manifest Weight
In his second assignment of error, A.B. argues that his adjudication
of delinquency was against the manifest weight of the evidence. Specifically, in
addition to restating the arguments in his first assignment of error, A.B. argues that
because the abuse in this case allegedly took place in a small, crowded house, and
no one else was able to provide any evidence to corroborate S.F.’s allegations, his
adjudication of delinquency was against the manifest weight of the evidence.
A manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion at trial.
State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. In determining whether a delinquency
adjudication is against the manifest weight of the evidence, we review the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the evidence the juvenile
court clearly lost its way and created such a manifest miscarriage of justice that the
adjudication must be reversed. In re R.S., 8th Dist. Cuyahoga No. 99562, 2013-
Ohio-5576, at ¶ 27, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983). In conducting this review, this court remains mindful that the
credibility of witnesses and the weight of the evidence are matters primarily for the
trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. Reversal on manifest-weight grounds is reserved for
the “‘exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin, supra.
We are unpersuaded by A.B.’s arguments. Although S.F. was the only
person who testified specifically about the sexual abuse, A.B. points to nothing that
would support a conclusion that the evidence in this case weighs heavily against his
adjudication of delinquency. The juvenile court was in the best position to
determine the credibility of both S.F. and A.B. Moreover, our review of the record
shows that S.F. began her testimony by describing the difference between truth and
lies and was able to provide a consistent version of events. This is not a case in which
the juvenile court clearly lost its way and created a manifest miscarriage of justice.
For these reasons, A.B.’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR