In re S.H. , 2014 Ohio 2770 ( 2014 )

[Cite as In re S.H., 2014-Ohio-2770.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100529
IN RE: S.H.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 12112220
BEFORE: Boyle, A.J., Blackmon, J., and Stewart, J.
RELEASED AND JOURNALIZED: June 26, 2014
ATTORNEY FOR APPELLANT
Timothy R. Sterkel
1414 South Green Road
Suite 310
South Euclid, Ohio 44121
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Stephanie N. Hall
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} Appellant, S.H., appeals from the judgment of the Cuyahoga County Court
of Common Pleas, Juvenile Division, finding him to be delinquent on one count of rape,
in violation of R.C. 2907.02(A)(2). He raises the following two assignments of error:
I. The juvenile court erred in denying appellant’s Juvenile Rule 29
motion for acquittal.
II. The juvenile court’s adjudication of appellant delinquent child
was against the manifest weight of the evidence.
{¶2} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶3} In July 2012, a complaint was filed against S.H., age 17, alleging that, on
March 16, 2012, he “engage[d] in sexual conduct, to wit: vaginal penetration, with J.G.
[age 17] by purposely compelling her to submit by force or threat of force.” The
complaint further carried another count of rape for oral penetration, one count of
kidnapping, and two counts of gross sexual imposition. S.H. denied the charges, and the
matter proceeded to a bench trial where the following evidence was presented.
{¶4} S.H. and J.G. first met at the end of February 2012 when J.G. was getting
off a bus near S.H.’s neighborhood. J.G. gave S.H. her phone number but referred to
herself only by her middle name. Approximately a few weeks later, the two ran into each
other again after J.G. got off the bus from school and while she was walking down East
126th Street toward her aunt’s house. As to the events that transpired after their
encounter, S.H. and J.G. provided different accounts of the events.
J.G.’s Testimony
{¶5} According to J.G., they stopped in front of an abandoned red and yellow
house, at which time S.H. “grabbed” her butt. J.G. testified that S.H. “guided” her to the
back of the house, leading her into the abandoned garage. Once inside the garage, S.H.
kissed J.G., which she allowed. The kissing escalated to S.H. “feeling” her breasts with
his “hands up [her] shirt.” J.G. responded, “I don’t know you. I’m not this type of girl.
I don’t want to do this here.” According to J.G., S.H. replied by saying, “chill,” and then
began to place his hands in her pants, asking if he could perform oral sex. J.G. told him
“no,” but S.H. proceeded to pull her pants down and “began to perform oral sex” while
she was standing up against the garage wall. After a minute, S.H. stopped and J.G.
pulled her pants up. Although J.G. did not remember “exactly” what happened next, she
described S.H.’s subsequent actions as follows:
Like he was trying to get me to the ground, so he could have sex
with me. * * * Pushed me. * * * I just remember laying on the ground and
I was trying to keep my legs closed because he was trying to separate them.
And put my pants down. * * * I was saying stop. I was trying to push him.
* * * He was like kind of straddling me.
{¶6} J.G. further testified that S.H. ultimately put his penis in her vagina, “tried
to have sex with me and then he took his penis out and put a condom on and then put it
back in.” During this time, J.G. was crying, and S.H. did not say anything. J.G. testified
that the incident lasted five to ten minutes and then S.H. pulled his pants back on, wiped
her off, and then left.
{¶7} J.G. immediately walked to her aunt’s house but left for her best friend’s
house when she discovered that her aunt was not home. J.G. told her friend what
happened, who encouraged her to call her mother. J.G.’s mother contacted the police
and ultimately took J.G. to the hospital to be examined.
S.H.’s Testimony
{¶8} S.H. testified that he was walking up Corlett Avenue when he saw J.G. get
off the bus. According to S.H., he and J.G. walked together to the park behind Charles
Dickens school on East 129th and Corlett, where they continued to talk and then started
kissing. S.H. testified that J.G. let him suck her breasts and “finger her vagina” after he
asked her to do so. She indicated that “she don’t care.” S.H. denied ever forcing
himself on J.G. or even requesting or having sex with J.G.
{¶9} On cross-examination, S.H. acknowledged that he denied any knowledge of
the reported incident upon being interviewed by the police. He further admitted telling
Det. Lessman about his sex life, indicating that he previously had sex in garages with girls
but just not the garage at issue or with J.G.
State’s Other Evidence
{¶10} Aside from J.G., the state presented two other witnesses at trial: Lisa
Arnold, a sexual assault nurse examiner, and Cleveland police detective, Karl Lessman.
{¶11} Arnold testified that she examined J.G. and discovered three lacerations
around her hymen and some shearing on J.G.’s labia minora. According to Arnold,
J.G.’s injuries were consistent with the history that J.G. provided as to the sexual assault.
Arnold explained that the injuries are common with a “mounting injury” and “indicative
of force and trauma.”
{¶12} Det. Lessman testified that he interviewed S.H. and that S.H. denied any
involvement in the incident, claiming no recollection of being anywhere near the house at
issue on the day of the incident. Det. Lessman further testified that S.H. denied any
knowledge of the victim. On cross-examination, Det. Lessman indicated that he never
showed S.H. a picture of the victim and that the victim had never told S.H. her real name.
The state played a video recording of Det. Lessman’s interview of S.H. During the
interview that was conducted on April 25, 2012, approximately six weeks after the
incident, Det. Lessman gave a summary of the victim’s accusations, to which S.H.
indicated that none of it sounded familiar.
{¶13} The state further presented a joint stipulation indicating that S.H.’s DNA
was found on the left breast of J.G. but no DNA was found on J.G.’s underwear, vaginal,
or anal samples.
Adjudication and Sentence
{¶14} The trial judge found S.H. delinquent of a single count of rape pertaining to
vaginal penetration but acquitted him of the remaining charges. The trial judge
subsequently held a dispositional hearing, found S.H. to be a juvenile sexual offender,
classified him as a Tier I offender, and placed him on six months of community control
sanctions.
{¶15} S.H. appeals his delinquency adjudication.
Sufficiency of the Evidence
{¶16} In his first assignment of error, S.H. argues that the state failed to present
sufficient evidence to support the rape conviction and that the trial court should have
granted his Juv.R. 29 motion for acquittal. We disagree.
{¶17} When an appellate court reviews a record upon a sufficiency challenge,
“‘the relevant inquiry is 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.
{¶18} S.H. was adjudicated delinquent of committing rape, a violation of R.C.
2907.02(A)(2), which provides that “[n]o person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force or
threat of force.”
{¶19} S.H. argues that the state failed to prove these elements beyond a reasonable
doubt because the victim was unable to recall the events. According to S.H., the victim
repeatedly testified that “she did not know what happened.” S.H. further contends that
“there were no physical injuries noted by the SANE nurse that would be consistent with
the use of force,” thereby negating the accusation of forcible rape. S.H.’s argument,
however, misconstrues the evidence presented at trial.
{¶20} Although J.G. initially stated that she did not remember exactly what
happened, the record reveals that J.G. eventually recalled and testified in detail as to
S.H.’s actions in the garage. To the extent that J.G. had some difficulty recalling the
exact events at first during the state’s direct examination, this is a factor that goes to her
credibility. This factor alone, however, does not negate the entirety of J.G.’s testimony,
including her testimony that S.H. placed his penis inside of her after pushing her to the
ground and forcibly separating her legs.
{¶21} We further note that, although Arnold testified on re-cross examination that
the injuries could possibly happen during consensual sexual conduct, she indicated that it
is highly unlikely. Indeed, Arnold testified that J.G.’s injuries, namely, the three vaginal
lacerations and some shearing on the labia, were consistent with the victim’s account of
what happened. Her testimony therefore does not contradict the account given by J.G.
{¶22} Construing this evidence in a light most favorably to the state, we find that
the state presented sufficient evidence to support a delinquency finding of rape, and
therefore the trial court properly denied S.H.’s Juv.R. 29 motion.
{¶23} The first assignment of error is overruled.
Manifest Weight of the Evidence
{¶24} In his second assignment of error, S.H. argues that his conviction is against
the manifest weight of the evidence. We disagree.
{¶25} In reviewing a claim challenging the manifest weight of the evidence, the
question to be answered is “whether there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt.”
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. This review
entails the following:
we must examine the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether
the jury “‘clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.’”
Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶26} S.H. argues that the trial court lost its way in convicting him. The
gravamen of his argument is that his testimony was more credible than the victim’s
testimony, especially given that the victim initially could not recall exactly what
happened. He further argues that Arnold’s testimony corroborated his testimony more
than the victim’s testimony. We find these arguments lack merit.
{¶27} Here, the trier of fact obviously found the victim’s testimony more credible
than S.H.’s, which we cannot say constitutes a manifest injustice in this case. Under a
well-settled precedent, we adhere to the principle that the credibility of witnesses and the
weight to be given to their testimony are matters for the trier of fact to resolve. See State
v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). Although an appellate court
must act as a “thirteenth juror” when considering whether the manifest weight of the
evidence requires reversal, it must give great deference to the factfinder’s determination
of the witnesses’ credibility. State v. Chandler, 10th Dist. Franklin No. 05AP-415,
2006-Ohio-2070, ¶ 9. Further, the trier of fact is free to believe or disbelieve all or any
of a witness’s testimony. State v. Montgomery, 8th Dist. Cuyahoga No. 95700,
2011-Ohio-3259, ¶ 10.
{¶28} Notably, S.H.’s own credibility was severely undermined by his failure to
account for his actions with the victim when interviewed by Det. Lessman. Although
S.H. did not know the victim by her first name, S.H. still denied any involvement with
any female, indicating that none of the allegations of the victim sounded familiar. S.H.’s
story apparently changed after learning that the state had recovered his DNA on the
victim. We cannot say that the trial judge lost its way by believing the victim over S.H.
{¶29} Additionally, we do not agree with S.H. that Arnold’s testimony
corroborated his version of the events more so than the victim’s. To the contrary, Arnold
repeatedly stated that the injuries she noted during the victim’s examination were
consistent with the victim’s reported sexual assault.
{¶30} Based on the record before us, we cannot say that the trial court’s decision is
against the manifest weight of the evidence.
{¶31} The second assignment of error is overruled.
{¶32} 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 be sent to said court to carry this judgment into
execution. The finding of delinquency having been affirmed, any bail or stay of
execution pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
PATRICIA A. BLACKMON, J., and
MELODY J. STEWART, J., CONCUR