State v. Nieves

[Cite as State v. Nieves, 2013-Ohio-4093.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010255
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SAMUEL J. NIEVES COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 10CR081259
DECISION AND JOURNAL ENTRY
Dated: September 23, 2013
CARR, Judge.
{¶1} The State appeals from the decision of the Lorain County Court of Common
Pleas. This Court reverses.
I.
{¶2} Samuel Nieves was indicted on one count of rape in violation of R.C.
2907.02(A)(2), and one count of gross sexual imposition in violation of R.C. 2907.05(A)(1). He
pleaded not guilty, and the matter was tried to the bench. After the State rested, Nieves moved
for judgment of acquittal pursuant to Crim.R. 29 as to both charges. The trial judge initially
indicated that he would deny the motion as to both charges upon finding that, when construing
the evidence in favor of the State, the State had made a prima facie case. However, after defense
counsel stated that the victim testified, “No” in response to his question on cross-examination,
“Was defendant’s penis ever inside you,” the trial judge granted the Crim.R. 29 motion as to
rape. He left open the question of whether Nieves committed attempted rape. In response, the
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assistant prosecutor reiterated the victim’s testimony on direct examination in which she asserted
that Nieves put his penis between the lips of her vagina. The State noted that the case law in this
district, as well as in other districts in the state, holds that penetration beyond the labia is
sufficient to support a charge a rape. The trial court refused to acknowledge the authority of that
case law and ultimately found Nieves not guilty of rape, but guilty of gross sexual imposition.
{¶3} Although the trial court found Nieves guilty of gross sexual imposition in June
2012, it continued him on bond and did not sentence him until November 30, 2012. The court
sentenced Nieves to 17 months in prison and classified him as a Tier II sexual offender. On
January 25, 2013, Nieves moved for judicial release, asserting that he had entered prison on
December 18, 2012, and was eligible for such release. Although the State opposed Nieves’
motion, the trial court granted judicial release on March 4, 2013.
{¶4} The State sought and was granted leave to appeal from the trial court’s decision to
refuse to apply the established law of this district when ruling on Nieves’ Crim.R. 29 motion.
The State raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT APPLIED THE INCORRECT STANDARD OF
PENETRATION IN A RAPE CASE IN DIRECT CONTRADICTION OF
STATE V. MELENDEZ, 9TH DIST. LORAIN NO. 08CA009477, 2009-OHIO-
4425.
{¶5} The State argues that the trial court erred as a matter of law in granting Nieves’
motion for judgment of acquittal as to the charge of rape based on its refusal to apply the law as
enunciated by this Court regarding the definition of penetration. This Court agrees.
{¶6} As an initial matter, this Court recognizes that the State is not ordinarily afforded
the right to appeal from a directed verdict of acquittal pursuant to Crim.R. 29. Specifically, R.C.
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2945.67(A) allows the State to appeal “by leave of the court to which the appeal is taken any
other decision, except the final verdict, of the trial court in a criminal case * * *.” As we
previously recognized:
The Ohio Supreme Court has held that a directed verdict is a final verdict for
purposes of R.C. 2945.67. State v. Keeton, 18 Ohio St.3d 379 (1985), paragraph
two of the syllabus. In a bench trial, jeopardy attaches when the judge begins to
receive evidence. State v. Meade, 80 Ohio St.3d 419, 424 (1997), citing Crist v.
Bretz, 437 U.S. 28, 35 (1978), and United States v. Martin Linen Supply Co., 430
U.S. 564, 569 (1977). “[T]he principles of double jeopardy preclude retrial of [a
defendant].” State v. Davis, 5th Dist. Delaware No. 03 CA-A-07038, 2004-Ohio-
2804, ¶ 8. Even so, the issue is not moot if “‘the underlying legal question is
capable of repetition yet evading review.’” Id. at ¶ 9, quoting Storer v. Brown,
415 U.S. 724, 737 (1974), fn.8. The Ohio Supreme Court has held that “[a] court
of appeals has discretionary authority pursuant to R.C. 2945.67(A) to review
substantive law rulings made in a criminal case which result in a judgment of
acquittal so long as the judgment itself is not appealed.” State v. Bistricky, 51
Ohio St.3d 157 (1990), syllabus.
State v. Bickel, 178 Ohio App.3d 535, 2008-Ohio-5747, ¶ 5 (9th Dist.).
{¶7} In this case, the State is not appealing from the judgment of acquittal itself.
Specifically, the State asserts that it is “fully cognizant that [] Nieves’ acquittal as to the Rape
charged in the indictment, as well as the principle of Double Jeopardy, precludes this Court from
reversing and remanding the matter for further hearing.” Instead, the State has moved to appeal
on the grounds that “the trial court failed to apply the appropriate case law to the facts of this
matter when it granted [] Nieves’ Criminal Rule 29 motion for acquittal.”
{¶8} This Court has recognized that “substantive law” is defined as “‘[t]he part of the
law that creates, defines, and regulates the rights, duties, and powers of parties.’” Bickel at ¶ 5,
quoting Black’s Law Dictionary (8th Ed.2004) 1470. In this case, the trial court granted Nieves’
Crim.R. 29 motion as to the rape charge after finding that vaginal rape can only legally occur if
there has been penetration beyond the “introitus.” Although the trial court did not define the
term, “introitus” is defined as “the orifice of a body cavity; especially: the vaginal opening.”
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http://www.merriam-webster.com/medical/introitus (accessed Aug. 9, 2013). By granting
Nieves’ Crim.R. 29 motion on the basis that the State proved only that Nieves inserted his penis
inside the victim’s labia but not beyond the introitus, the trial court “created a material element
to the charge, imposing a duty on the [S]tate to prove the issue.” See Bickel at ¶ 5. Accordingly,
this Court concludes that the State has raised a substantive issue for review.
{¶9} The trial court granted Nieves’ motion for acquittal after refusing to recognize
established case law. This Court, after extensive research, joined with our many sister districts in
holding that “insertion, however slight, of a part of the body or other object within the vulva of
labia is sufficient to prove vaginal penetration for purposes of proving sexual conduct as defined
in R.C. 2907.01(A) and rape in violation of R.C. 2907.02.” State v. Melendez, 9th Dist. Lorain
No. 08CA009477, 2009-Ohio-4425, ¶ 14. We reiterated that holding in In re T.L., 186 Ohio
App.3d 42, 2010-Ohio-402, ¶ 21 (9th Dist.), vacated in part on other grounds, 127 Ohio St.3d 9,
2010-Ohio-4936. In both cases, the relevant holding was rendered by a unanimous panel.
Nevertheless, the trial judge in the instant case eschewed established precedent, refusing to
recognize that penile penetration within the labia or vulva is sufficient penetration for purposes
of rape. The judge stated:
That is for oral sex. In fact, there needn’t be any penetration. However, the
statute, notwithstanding what Judge – some judge might think, says that rape is the
penetration of the vaginal cavity. The vaginal cavity begins at the introitus, which
is well beyond the labia. So to that extent, I don’t care what anybody says, I’m
right. In fact, the more I talk, the righter I get.
(Emphasis added.) Accordingly, in the face of such an expressed disregard for the precedent of
this higher court, such action is not only capable of repetition, but is highly likely to be repeated
by this particular trial judge. Moreover, without review, other trial courts within this district may
disregard our established precedent and grant directed verdicts in rape cases on the basis that the
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State only proved penetration within the labia or vulva. Accordingly, this Court concludes that
the State’s appeal is properly before us.
{¶10} Crim.R. 29(A) mandates that a trial court “shall order the entry of a judgment of
acquittal of one or more offenses charged * * *, if the evidence is insufficient to sustain a
conviction of such offense or offenses.” As we recognized in Bickel:
Thus, the purpose of a Crim.R. 29 motion for acquittal is to test the legal
sufficiency of the evidence. A trial court may not grant an acquittal by authority
of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach
different conclusions as to whether each material element of a crime has been
proved beyond a reasonable doubt. In making this determination, all evidence
must be construed in a light most favorable to the prosecution.
(Internal citations and quotations omitted.) ¶ 8.
{¶11} At trial, the victim testified that Nieves, whom she knew, lured her and a friend
into his apartment under false pretenses. She testified that, after sending her friend off to buy
food, Nieves pushed her down onto a couch; pulled off her pants, underwear, and shoes; and
took off his own shorts. The victim testified that Nieves tried to put his penis in her vagina.
When asked whether he was able to do that, the victim responded, “Not all the way.” The
assistant prosecutor sought clarification and asked the victim, “Where did it go?” The victim
responded, “Between the lips of my vagina.” The victim further clarified that she believed that
Nieves was not able to fully insert his penis into her vagina because she was fighting him. On
cross-examination, the victim agreed that Nieves touched his “private parts” with hers, touching
his penis against her vagina, and that “it never went inside.” From context, however, it is
reasonable to believe, when construing the evidence in a light most favorable to the State, that
the victim meant that Nieves’ penis did not enter into her vaginal cavity, rather than that it did
not enter the area within her labia.
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{¶12} In construing the evidence in a light most favorable to the State, the trial court
was compelled to consider whether the State presented sufficient evidence of sexual conduct for
purposes of rape pursuant to the standard enunciated in Melendez i.e., whether the State
presented evidence that Nieves inserted his penis within the victim’s vulva or labia. That the
trial judge personally disagrees with this Court’s holding in Melendez “cannot be used as a basis
to find that the evidence presented by the [S]tate on the material elements of the charge was
insufficient.” See Bickel at ¶ 10. Accordingly, this Court reverses the trial court’s decision on
this issue. However, this decision has no effect on Nieves’ acquittal because double jeopardy
precludes retrial. See id., citing Davis, supra, at ¶ 8. The State’s assignment of error is
sustained.
III.
{¶13} The State’s sole assignment of error is sustained.
Judgment reversed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
CONCURS.
BELFANCE, P. J.
CONCURS N JUDGMENT ONLY.
APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.
PAUL GRIFFIN, Attorney at Law, for Appellee.