State v. Smith , 2020 Ohio 6694 ( 2020 )

[Cite as State v. Smith, 2020-Ohio-6694.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 20CA8
:
vs. :
: DECISION AND
MIRANDA C. SMITH, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, Patrick T. Clark, Assistant State Public
Defender, and Max Hersch, Assistant State Public Defender, Columbus, Ohio, for
Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} This is an appeal from a Highland County Common Pleas Court
judgment convicting Appellant, Miranda Smith, of one count of rape of a child
under the age of thirteen and one count of burglary after Smith pleaded no contest
to both charges. On appeal, Smith only challenges her rape conviction and raises a
single assignment of error contending that the trial court violated her right to due
process when it found her guilty of rape in the absence of sufficient evidence.
Highland App. No. 20CA8 2
However, because we find no merit to her sole assignment of error, it is overruled
and the judgment of the trial court is affirmed.
FACTS
{¶2} On December 3, 2019, Miranda Smith was indicted on two counts of
rape, both first-degree felonies in violation of R.C. 2907.02(A)(1)(b), two counts
of pandering obscenity involving a minor, both second-degree felonies in violation
of R.C. 2907.321(A)(1), one count of burglary, a second-degree felony in violation
of R.C. 2911.12(A)(2) and one count of theft, a first-degree misdemeanor in
violation of R.C. 2913.02(A)(1). Smith entered into plea negotiations with the
State and ultimately pleaded no contest to one count of rape, amended to specify
the involvement of a child under the age of thirteen, rather than under the age of
ten as contained in the original indictment, as well as one count of burglary.
{¶3} Smith only challenges her rape conviction on appeal. A review of the
record indicates that the basis of the rape conviction at issue involved an incident
that occurred sometime between June 1, 2019, and September 1, 2019, in which
Smith directed her then two-year old son to insert an object described as a sex toy
into her vagina. Smith claimed she did so at the request of her ex-boyfriend
Wesley Moore. Smith videoed this incident and sent it to Moore at his request.
{¶4}After the trial court denied her motion to dismiss the rape charge, as
well as her motion to suppress evidence, she pleaded no contest to one count of
Highland App. No. 20CA8 3
rape as well as the burglary count, in exchange for the dismissal of all other
charges. On March 19, 2020, the trial court sentenced Smith to ten years to life in
prison on the rape charge, to be served consecutively to a two-year prison term on
the burglary charge. It is from this judgment that Smith now brings her timely
appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
{¶5} In her sole assignment of error, Smith contends that the trial court
violated her right to due process when it found her guilty of rape in the absence of
sufficient evidence. As set forth above, Smith pleaded no contest to the charge, but
contends that the facts that formed the basis of her plea did not sufficiently allege
the subsection of rape under which she was charged. The State responds by
arguing that the conduct at issue constituted sexual conduct and that “it is
unfathomable that it was not the purpose and intent of the legislature to proscribe
acts such as those committed herein through the use of the O.R.C. §2907.02.” We
begin by considering the appropriate standard of review when conducting an
analysis of the sufficiency of the evidence.
{¶6} “A claim of insufficient evidence invokes a due process concern and
raises the question of whether the evidence is legally sufficient to support the
verdict as a matter of law.” State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 12
(4th Dist.), citing State v. Dunn, 4th Dist. Jackson No. 15CA1, 2017-Ohio-518,
Highland App. No. 20CA8 4
¶ 13, citing State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756,
¶ 22; State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When
reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the
adequacy of the evidence; that is, whether the evidence, if believed, reasonably
could support a finding of guilt beyond a reasonable doubt.” Blanton at ¶ 12,
citing Thompkins at syllabus. “The standard of review is whether, after viewing
the probative evidence and inferences reasonably drawn therefrom in the light most
favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt.” Blanton at ¶ 12;
citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991), superseded
by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668 (1997). “Furthermore, a reviewing court is not to assess
‘whether the state's evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.’ ” Blanton at ¶ 12,
quoting Thompkins, supra, at 390.
{¶7} This test raises a question of law and does not allow us to weigh the
evidence. State v. Martin, 20 Ohio App.3d 172, 174, 485 N.E.2d 717 (1983).
Rather, the test “gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
Highland App. No. 20CA8 5
inferences from basic facts to ultimate facts.” Jackson at 319. We reserve the
issues of the weight given to the evidence and the credibility of witnesses for the
trier of fact. State v. Thomas, 70 Ohio St.2d 79, 79–80, 434 N.E.2d 1356 (1982);
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus
(1986).
{¶8} Smith was convicted of rape of a child under the age of thirteen, in
violation of R.C. 2907.02(A)(1)(b). R.C. 2907.02 defines the offense of rape and
provides, in pertinent part, as follows:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender but
is living separate and apart from the offender, when any of the
following applies:
***
(b) The other person is less than thirteen years of age, whether or not
the offender knows the age of the other person. (Emphasis added).
R.C. 2907.01 defines “sexual conduct” as follows:
vaginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of
the body or any instrument, apparatus, or other object into the vaginal
or anal opening of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
{¶9} At issue here is Smith’s plea of no contest to the amended charge of
rape of a child under the age of thirteen. The child at issue was her two-year old
son. During her plea hearing, she admitted to the conduct described in the bill of
Highland App. No. 20CA8 6
particulars, as well as an additional description of the conduct that was read into
the record. Although a notice of service of the bill of particulars was filed with the
clerk indicating the bill of particulars had been provided to the defense, it was not
made part of the record. Further, although the record indicates the trial court had a
copy of the bill of particulars at the plea hearing, there is no copy in the appellate
record. However, Smith filed a motion to dismiss and the memorandum in support
of the motion stated as follows with respect to the information contained in the bill
of particulars:
The Bill of Particulars that was provided to defense counsel on
December 18, 2019 alleges that on October 17, 2019 during an
interview with the Defendant, that Wesley Moore, a co-defendant,
wanted videos of the Defendant engaging in sexual acts and to please
Mr. Moore, the Defendant had Z.W. (approximately age 2) masturbate
her with a sex toy while she filmed the act.
Additionally, in a brief oral argument regarding Smith’s motion to dismiss that was
held on the record just prior to the hearing on the motion to suppress, defense
counsel referenced that the bill of particulars stated that a video was made where
Smith was “in a prone position with the minor child subject to this case, using a
sex toy on the defendant.” Defense counsel further stated “[t]he video depicts the
defendant in a position, with her legs open, with a minor child subject to this case,
using a sex toy on her.”
Highland App. No. 20CA8 7
{¶10} Further, during the plea hearing, the State read the following into the
record in order to supplement the factual allegations in the indictment and bill of
particulars:
When Detective Antinore started reviewing the SD cards, the charge
that is the subject of Count Five, was found. What it is, is five videos
– and they’re very short – I’m not sure why it’s broke up as five videos,
other than when she sent them it may have been too long as one solid
video to send, so it was broke up into five videos. But, the video is, as
was described yesterday in the Motion to Dismiss, of her child
performing a sexual act on her with a female toy. She videoed it, and
in the video you can see the tattoo on her leg very clearly.
{¶11} In support of Smith’s motion to dismiss, defense counsel argued that
“sexual conduct” would include a scenario “where a defendant would insert
something into an individual; not where someone else is inserting it into the
defendant * * *.” Counsel further argued that there is no case law specifically on
point on this particular issue because this conduct “doesn’t fit the statute.” Smith
essentially makes the same argument on appeal.
{¶12} More specifically, Smith contends that “[t]he rape statute, R.C.
2907.02(A)(1) does not criminalize [her] conduct – having another person insert an
object into her.” She argues that the plain language of the rape statute requires
“sexual conduct, which does not include causing another to insert an object.” She
further argues that the plain meaning of the language employed in the rape statute
“is confirmed by reading the rape statute in pari materia with the gross sexual
Highland App. No. 20CA8 8
imposition statute, R.C. 2907.05.” For comparison purposes, R.C. 2907.05
provides as follows:
(A) No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other
persons to have sexual contact when any of the following applies:
***
(4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that person.
(Emphasis added).
Further, R.C. 2907.01 defines “sexual contact,” as opposed to “sexual conduct,” as
follows:
“Sexual contact” means any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region,
or, if the person is a female, a breast, for the purpose of sexually
arousing or gratifying either person.
{¶13} “The interpretation of a statute is a matter of law that an appellate
court reviews de novo.” State v. Simpson, 2018-Ohio-1348, 109 N.E.3d 595, ¶ 9,
citing State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9.
“A court must first look at the language of the statute.” Simpson at ¶ 9, citing
Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). Thus,
“[i]f the language is clear and unambiguous, courts must apply the language as
written.” Simpson at ¶ 9, citing Straley at ¶ 9. However, “where there is
ambiguity in a criminal statute, doubts are resolved in favor of the defendant. ”
Highland App. No. 20CA8 9
United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971);
Simpson at ¶ 9. Further, we are mindful that the “ ‘primary role in statutory
construction is to give effect to the legislature's intention.’ ” Simpson at ¶ 9,
quoting Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77(1991), citing Carter v. Youngstown Div. of Water, 146 Ohio St. 203, 65 N.E.2d
63, paragraph one of the syllabus (1946).
{¶14} Like the parties, this Court has been unable to locate another case in
Ohio involving this particular type of conduct. Thus, there are no cases directly on
point or controlling on this specific type of conduct and issue, which involves the
question of whether the insertion of an object by a child at the direction of an adult,
into the vagina of the adult, constitutes rape. As stated, in this particular case the
adult was the mother of the child, a two-year-old male, and the object involved is
described in the record as a sex toy. Further, not only did Smith direct her son to
perform this act, she videoed it and sent it to her ex-boyfriend. Smith has admitted
to the facts surrounding this incident and simply argues that these facts do not meet
the statutory definition of rape.
{¶15} More specifically, Smith argues that “[u]nlike the rape statute, the
gross sexual imposition statute specifically proscribes causing another to engage in
sexual contact.” Smith argues that when comparing R.C. 2907.02(A) with R.C.
2907.05(A), “the absence of ‘cause another’ language in the rape statute – and its
Highland App. No. 20CA8 10
presence in the gross sexual imposition statute – demonstrates that the General
Assembly intended to proscribe [the conduct at issue herein] as gross sexual
imposition. Finally, Smith contends that “to the extent the plain language of the
rape statute and the structure of Chapter 2907 leave ambiguities, lenity resolves
this issue” in her favor.
{¶16} The State responds by arguing that the conduct at issue here involved
penetration, which goes beyond the prohibition of “sexual contact” set forth in the
gross sexual imposition statute. As set forth above, the State further contends that
it is “unfathomable” that the legislature did not intend for this type of conduct to be
covered by the rape statute. The State concedes there is no case law directly on
point but does cite to one case that involved a child inserting his penis into the anus
of an adult, at the direction of the adult, which affirmed a conviction for rape.
State v. Allen, 1st Dist. Hamilton No. C-840479, 1985 WL 6781. The State also
directs our attention to State v. Sloane, 7th Dist. Mahoning No. 06MA144, 2009-
Ohio-1175, which affirmed a conviction for complicity to rape where Sloane
forced a male child to have sex with a female child between the ages of four and
five. The State contends that Smith’s argument that a “defendant must be the one
inserting something into another” is not consistent with the language of the rape
statute because it, in effect, requires words be added to the statute to require that a
Highland App. No. 20CA8 11
defendant “actually engage in the act of insertion.” In light of the foregoing and
for the following reasons, we agree with the State.
{¶17} In Ohio, the definition of “sexual conduct” includes “the insertion,
however slight, of any * * * instrument, apparatus, or other object into the vaginal
or anal opening of another.” We cannot conclude that the plain language of the
statute requires that the defendant be the one doing the inserting. Instead, we
conclude the plain language simply requires that in order for sexual conduct to
occur, one individual must insert an object into the vaginal or anal opening of
another individual, as opposed to one’s own vaginal or anal opening. It appears
that the plain language simply requires that two individuals be engaged in this type
of conduct for sexual conduct to occur. Further, as noted by the State, this conduct
goes beyond the plain language of the gross sexual imposition statute, which does
not include the element of penetration. We further conclude that although Allen
and Sloane both involve different types of sexual conduct, read together they are
instructive to this particular set of facts, which admittedly is unique and thankfully,
rare. Finally, we join in the State’s position that the legislature surely intended that
this type of conduct fall within the parameters of the definition of sexual conduct
and, thus, be classified as rape.
{¶18} Any other result would be absurd, and “ ‘[i]t is presumed that the
legislature does not intend absurd results.’ ” State v. Clemons, 2013-Ohio-3415,
Highland App. No. 20CA8 12
996 N.E.2d 507, ¶ 14, quoting O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-
Ohio-2574, 889 N.E.2d 505, ¶ 56, citing State ex rel. Haines v. Rhodes, 168 Ohio
St. 165, 5 O.O.2d 467, 151 N.E.2d 716, paragraph two of the syllabus (1958);
Widen v. Pike Cty., 187 Ohio App.3d 510, 2010-Ohio-2169, 932 N.E.2d 929, ¶ 23.
Based upon the foregoing reasoning and the absurd result that we would reach if
we apply the definitions contained in R.C. 2907.01 to not include the conduct at
issue herein to be included in the definition of “sexual conduct” for the purposes of
rape, we overrule Smith’s sole assignment of error.
{¶19} Accordingly, having found Smith’s conviction was supported by
sufficient evidence and having overruled her sole assignment of error, the
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Highland App. No. 20CA8 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Highland County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J., concur in Judgment and Opinion.
For the Court,
__________________________
Jason P. Smith
Presiding Judge
Highland App. No. 20CA8 14
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.