In re A.B.

2023 Ohio 1138

Opinion

[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