State v. White

I concur in the judgment of the majority, except that I respectfully dissent from its disposition of one part of the second assignment of error.

Defendant argues that there was insufficient evidence to convict him of four of the counts of rape when the victim testified that he committed "three or four" vaginal digital penetrations. As noted by the majority, a panel of this court, in an opinion authored by former Supreme Court Justice Holmes, recently vacated six counts of rape based on similarly indefinite testimony. State v. Langston (Feb. I12, 1998), Cuyahoga App. No. 71578, unreported, at 9-12, 1998 WL 57152.

This result is also consistent with State v. Vines (Sept. 14, 1989), Cuyahoga App. No. 55693, unreported, 1989 WL 107157, in which the defendant was convicted of three counts of rape based on testimony about one act of cunnilingus and two penetrations. Neither State v. Harris (June 3, 1982), Cuyahoga App. No. 44154, unreported, 1982 WL 11297, norState v. Richardson (May 6, 1982), Cuyahoga App. No. 44081, unreported, 1982 WL 5353, supports the argument to the contrary. The grand theft conviction in Harris was supported by testimony either that defendant stole a refrigerator valued at more than $150 or that he stole additional items. The identification in Richardson was supported by testimony that the victim recognized defendant but was mistaken as to his name. The case at bar involves none of these considerations.

Despite the obvious ugliness of these crimes, it is not clear how a jury could find that a fourth offense was committed beyond a reasonable doubt, when the victim herself had doubt about whether the particular offense was committed more than three times. Accordingly, I concur in the judgment of the majority, except for its disposition of this claim. I would follow Langston and Vines and vacate the conviction on this particular fourth count of rape.