[Cite as In re D.C., 2015-Ohio-4367.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102165
IN RE: D.C. A Minor Child
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 14101161
BEFORE: Celebrezze, A.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 22, 2015 ATTORNEYS FOR APPELLANT
Timothy Young Ohio Public Defender BY: Charlyn Bohland Assistant Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Jeffrey S. Schnatter Assistant Prosecuting Attorney Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., A.J.:
{¶1} Defendant-appellant, D.C. (“appellant”), brings this appeal challenging the
juvenile court’s finding of delinquency on one count of rape. Specifically, appellant
argues that the juvenile court’s finding of delinquency is against the manifest weight of the
evidence. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} The juvenile court trial of appellant and D.B. involved the sexual assaults of
A.B., a 15-year-old female, and M.A., a 17-year-old female, that occurred on March 3,
2013. At the time of the incident, appellant was 16 years old and D.B. was 17 years old.
{¶3} On the evening in question, appellant, D.B., and three other friends were
socializing at D.V.’s house. D.B. left the house around 5:00 p.m. to meet his girlfriend,
A.B., and her cousin, M.A., at a bus station and bring them back to the house. The events
that transpired at the house were disputed at trial, and there was conflicting testimony as to
whether A.B. and M.A. consented to the sexual acts that took place.
{¶4} A complaint was filed in juvenile court on January 16, 2014, alleging that
appellant and D.B. were delinquent children for committing the following offenses:
Count 1: Kidnapping, R.C. 2905.01(A)(4), of A.B.
Count 2: Kidnapping, R.C. 2905.01(A)(4), of M.A.
Count 3: Rape (oral), R.C. 2907.02(A)(2), of M.A. Count 4: Rape (vaginal), R.C. 2907.02(A)(2), of A.B.
Count 5: Rape (oral), R.C. 2907.02(A)(2), of A.B.
Count 6: Rape (digital), R.C. 2907.02(A)(2), of A.B.
Appellant’s Testimony
{¶5} Appellant’s version of the events is as follows. Within minutes of arriving at
the house, M.A. — at A.B.’s suggestion — showed the males explicit photos of herself
and lifted her shirt to show the piercings on her breasts. Appellant heard M.A. and one of
his other friends, “Cush,” discuss having sex for money. There is conflicting testimony
as to whether money was exchanged after the sexual encounter. After hearing M.A.
initially decline, appellant observed M.A. and Cush go into the bathroom together.
Appellant also observed A.B. and D.B. walk into the back bedroom. A.B. performed oral
sex on appellant in the stairwell to the outside door.
{¶6} Appellant and the other males proceeded to follow A.B. and M.A. to the bus
stop and called the females offensive and derogatory names. Furthermore, appellant
overheard an argument between M.A. and Cush about money, and stated that all of the
males refused to give M.A. any money.
Appellant contends that both females willingly had sex with multiple people at D.V.’s
house.
M.A.’s Testimony
{¶7} M.A.’s version of the events is as follows. A.B. made the suggestion that M.A. show the males her piercings, and the discussion about having sex for money took
place while everyone was sitting in the living room. M.A. showed Cush the piercings on
her breasts and had consensual sex with him in the bathroom. M.A. left the bathroom
after she heard A.B. screaming, and was then forced into the room with A.B., where the
males jeered the females and urged them to remove their clothing. M.A. was forced to
perform oral sex on one of the males, but she could not positively identify or recognize the
males that were present in the room as these events transpired. Furthermore, M.A. only
agreed to have sex with Cush. M.A. believed the females were at the house for 45
minutes to an hour. M.A. thought she was going to get $20, marijuana, or cocaine in
exchange for having sex with one of the males. M.A. was angry that she did not receive
the money or drugs. M.A. observed A.B. bleeding from her vagina and crying after the
incident.
A.B.’s Testimony
{¶8} A.B.’s version of the events is as follows. A.B. did not expect to do anything
at appellant’s house other than to meet his mother. M.A. voluntarily showed the males
explicit photos of herself and then showed the males the piercings on her breasts.
Furthermore, A.B. observed M.A. go into the bathroom with six males, and did not hear
anyone discussing sex for money. A.B. and D.B. were having a conversation in the
bedroom until appellant entered the room. D.C., D.B., and the other males proceeded to
hold A.B. down and have sex with her, and they brought M.A. into the room and assaulted
her as well. {¶9} A.B. screamed for help and attempted to fight the males off for approximately
30 minutes. A woman then knocked on the bedroom door, at which point everyone put
on their clothes and left the house. D.B. was able to identify the other males who were
present in the bedroom when the males implored the females to take off their clothes.
A.B. did not learn about the money until after everyone left the house, and she believed
M.A. was upset because the males had not given her any money for sex. A.B.
experienced bleeding and severe pain in her lower stomach and vagina. A.B. did not
consent to having sex with anyone.
State’s Other Evidence
{¶10} The state also offered the testimony of sexual assault nurse examiner Alison
Rerko, who examined A.B., and Katherine Goellnitz, who examined M.A. The nurses
conducted the examinations the day after the incident at D.V.’s house. Nurse Rerko
noticed evidence of scratching on the outer layers of A.B.’s vagina, and believed that the
scratches were consistent
with digital penetration. Nurse Goellnitz noticed a bruise on M.A.’s
forearm — consistent with her testimony that the males pulled her forearm to force her
into the bedroom — and bruising on her inner thigh. Nurse Goellnitz also observed a tear
— or “scant speck” — in M.A.’s vagina, consistent with digital penetration. Both nurses
collected swabs from the females for DNA testing. Appellant was excluded as a
contributor from the samples taken from M.A. and A.B. D.B. could not be excluded as a
contributor from the samples taken from A.B.’s vaginal swab, shorts, and cheek, and could not be excluded as a contributor from the sample taken from M.A.’s underwear.
Verdict and Sentence
{¶11} At the close of trial, the juvenile court found D.B. to be delinquent of rape
(vaginal) — both of A.B. and M.A. Furthermore, the juvenile court adjudicated appellant
delinquent of rape, as to Count 3, and not delinquent of counts 1, 2, 4, 5, and 6. The
juvenile court committed appellant to the Ohio Department of Youth Services for a
minimum period of one year, maximum to his twenty-first birthday. Appellant filed the
instant appeal, assigning one error for review:
The juvenile court violated D.C.’s right to due process when it adjudicated him delinquent of rape, when the evidence demonstrated that the incident was consensual, in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution; and, Article I, Section 16, Ohio Constitution.
II. Law and Analysis
{¶12} In his sole assignment of error, appellant argues that the juvenile court’s
finding of delinquency must be overturned because it was against the manifest weight of
the evidence.
{¶13} In determining whether a juvenile court’s adjudication of delinquency is
against the manifest weight of the evidence, the applicable standard of review is the same
standard applied in adult criminal convictions. In re N.J.M., 12th Dist. Warren No.
CA2010-03-026, 2010-Ohio-5526, ¶ 34; see In re M.J.C., 12th Dist. Butler No.
CA2014-05-124, 2015-Ohio-820, ¶ 28. A challenge to the manifest weight of the
evidence questions whether the state has met its burden of persuasion. State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When considering a claim that a
conviction is against the manifest weight of the evidence, this court sits as a “thirteenth
juror” and may disagree “with the factfinder’s resolution of conflicting testimony.” State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The
weight-of-the-evidence standard “addresses the evidence’s effect of inducing belief.”
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing
Thompkins at 386-387.
{¶14} This court reviews the entire record, weighs the evidence and all reasonable
inferences, considers the witnesses’ credibility and determines whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983); see also State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶
29. In conducting such a review, this court remains mindful that the credibility of the
witnesses are primarily for the trier of fact to assess. State v. Bradley, 8th Dist. Cuyahoga
No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to make
credibility determinations, as this court cannot view the demeanor of a witness while
testifying. Therefore, the trier of fact is in the best position to determine if the proffered
testimony is credible. State v. Holloway, 8th Dist. Cuyahoga No. 101289,
2015-Ohio-1015, ¶ 42, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26.
{¶15} A conviction is not against the manifest weight of the evidence simply
because conflicting evidence was presented at trial and the jury rejected the defendant’s
version of the facts and believed the testimony presented by the state. State v. Gibson, 8th
Dist. Cuyahoga No. 101826, 2015-Ohio-2390, ¶ 38, quoting State v. Hall, 4th Dist. Ross
No. 13CA3391, 2014-Ohio-2959, ¶ 28. 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 at 175.
{¶16} Appellant contends that the juvenile court’s rape adjudication is against the
manifest weight of the evidence because the evidence was contradictory, inconsistent, and
illogical. Furthermore, appellant argues that the “competent and credible evidence
demonstrated that the oral sex between [appellant] and M.A. was consensual.” We find
that appellant’s adjudication of delinquency was not against the manifest weight of the
evidence.
{¶17} Appellant contends that the rape adjudication is against the manifest weight
of the evidence because of the major inconsistences between the stories of A.B. and M.A.
Specifically, appellant bases his argument on the following inconsistencies in the females’
stories: (1) M.A.’s breast piercings, (2) a discussion about having sex for money, (3) the
events occurring in the bathroom, (4) the events occurring in the bedroom, (5) timing, and
(6) the involvement of D.V.’s mother.
{¶18} First, appellant argues that the females’ stories regarding M.A.’s piercings are inconsistent. A.B. testified that M.A. showed the males her breast piercings
voluntarily. M.A., however, testified that it was A.B. who suggested showing the males
the breast piercings. Appellant’s testimony corroborated M.A.’s version of the events.
{¶19} Second, appellant argues that the females’ stories regarding the discussion of
having sex for money are inconsistent. A.B. testified that she did not hear M.A. discuss
having sex for money at the house, and that she had learned about the discussion after the
females left the house. M.A., however, testified that she discussed having sex for money
with Cush in the living room, where A.B. was present. Appellant’s testimony
corroborated M.A.’s version of the events.
{¶20} Third, appellant argues that the females’ stories regarding the events that
took place in the bathroom are inconsistent. A.B. testified that she observed M.A.
walking into the bathroom with six males. M.A., however, testified that she only went
into the bathroom with Cush.
{¶21} Fourth, appellant argues that the females’ stories regarding the events that
took place in the bedroom are inconsistent. A.B. initially reported being pushed into, and
locked inside, the bedroom by the males. However, at trial, A.B. testified that she willingly
went into the bedroom with her boyfriend, D.B.
{¶22} Fifth, appellant argues that there are timing inconsistencies in the females’
stories. M.A. testified that she believed the females spent 45 minutes to an hour at the
house. Appellant disputes this account, arguing that the fact that the females’ two-hour
bus passes expired before returning to the bus stop, suggests that they spent more than two hours at the house.
{¶23} Sixth, appellant argues that there are inconsistencies in the females’ stories
regarding D.V.’s mother. Appellant testified that D.V.’s mother was in her bedroom —
located just off of the living room — while the events transpired. A.B. testified that after
30 minutes of screaming for help in the bedroom, D.V.’s mother knocked on the door and
inquired as to what was going on inside. Furthermore, A.B. testified that the mother left
after one of the males in the bedroom told her that nothing was going on. M.A. testified
that she left the bathroom after hearing A.B.’s screams. Appellant disputes the females’
stories, arguing that if A.B. had actually been screaming, it is unlikely that the mother
would leave — merely because one of the males said nothing was going
on — without further inquiry. Instead, appellant maintains, it is more likely that the
mother heard suspicious noises — not screaming — coming from the bedroom.
{¶24} These inconsistencies, however, do not cast serious doubt on appellant’s role
in the sexual assault. The important aspects of A.B. and M.A.’s testimony remained
largely consistent over time. At trial, both A.B. and M.A. testified that they were forced
— against their will — to have sex in the bedroom, until being interrupted by D.V.’s
mother. Admittedly, details concerning how A.B. got into the bedroom changed.
However, the crux of A.B.’s account of what transpired inside the bedroom did not. A.B.
stated that once inside the bedroom, D.C., D.B., and the other males proceeded to hold her
down and have sex with her. A.B. did not consent to having sex with any of the males.
Furthermore, M.A. only consented to having sex with one of the males, Cush. M.A. testified that after having consensual sex with Cush in the bathroom, she was pulled into a
room and forced to perform oral sex on one of the males.
{¶25} After considering the accounts of the witnesses, weighing the credibility of
the accounts, and evaluating the evidence, the juvenile court found that the females had
been forced to have sex. Furthermore, the court found that the females’ injuries indicated
that force had been used. A.B. experienced bleeding and severe pain in her lower
stomach and vagina. M.A. confirmed these physical symptoms, testifying that she
observed A.B. bleeding from her vagina and crying. The testimony of the nurses who
treated the females also described actions consistent with the trauma of being raped.
{¶26} Sexual assault nurse examiner Alison Rerko examined A.B. and sexual
assault nurse examiner Katherine Goellnitz examined M.A. Nurse Rerko noticed
evidence of scratching on the outer layers of A.B.’s vagina, and believed that the scratches
were consistent with digital penetration. Furthermore, Nurse Rerko prescribed HIV and
STD medications to A.B. M.A. told Nurse Goellnitz that she only consented to having
sex with Cush. Nurse Goellnitz noticed a bruise on M.A.’s forearm — consistent with
her testimony that the males pulled her forearm to force her into the bedroom — and
bruising on her inner thigh. Nurse Goellnitz also observed a tear — or “scant speck” —
in M.A.’s vagina, consistent with digital penetration. Both nurses collected swabs from
the females for DNA testing. Appellant was excluded as a contributor from the samples
taken from M.A. and A.B. D.B. could not be excluded as a contributor from the samples
taken from A.B.’s vaginal swab, shorts, and cheek, and could not be excluded as a contributor from the sample taken from M.A.’s underwear.
{¶27} Although appellant was excluded as a contributor from the DNA samples
taken from both victims, the juvenile court found him to be delinquent for the rape of
M.A. under the complicity statute, R.C. 2923.03, stating:
Under 2923.03, if you are procuring, if you are aiding and abetting, if you are helping, if you are holding down somebody while someone else is doing something, you become responsible for everyone else’s actions.
There was testimony that the guys were saying, do it, oh yeah, like that. That is a gang rape and everybody becomes responsible for everyone else’s actions.
Based on accomplice liability, the juvenile court found appellant “to be delinquent of
having oral intercourse with [M.A.] by purposely compelling her to submit by force or
threat of force.”
{¶28} The inconsistent testimony referenced by appellant goes to the credibility of
A.B. and M.A., and to the weight of the evidence. The juvenile court was in the best
position to make these credibility determinations, and the finding of delinquency is not
against the manifest weight of the evidence simply because conflicting evidence was
presented and the court rejected appellant’s version of the facts and believed the testimony
presented by A.B. and M.A. See State v. Gibson, 8th Dist. Cuyahoga No. 101826,
2015-Ohio-2390, ¶ 38; State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-Ohio-2959, ¶
28. This court “must give great deference to the factfinder’s determination of the
witnesses’ credibility.” In re R.J., 8th Dist. Cuyahoga No. 98034, 2012-Ohio-4821, ¶ 22;
see State v. Chandler, 10th Dist. Franklin No. 05AP-415, 2006 Ohio 2070, ¶ 9. The juvenile court found that the victims had “credible, consistent stories over time.”
{¶29} Finally, appellant contends that the rape adjudication is against the manifest
weight of the evidence because credible and competent evidence demonstrates that the oral
sex with M.A. was consensual. Specifically, appellant argues that although the oral sex
was consensual, M.A. changed her story — in order to get back at him and the other males
— when they refused to pay her. The juvenile court was in the best position to weigh the
credibility of the witnesses, and the record demonstrates that the court considered the
credibility of the accounts and all the evidence in adjudicating appellant delinquent. The
juvenile court found this theory to be the defense’s strongest argument. However, after
considering the credibility of the accounts and all the evidence—particularly M.A.’s
testimony — the court found that she was raped.
{¶30} We cannot say that the juvenile court “lost its way” simply because it found
A.B. and M.A. to be more credible than appellant. Furthermore, we cannot say that this
was an exceptional case where — despite the juvenile court’s resolution of the conflicts in
the witnesses’ testimony — the evidence weighed heavily against the conviction.
Appellant’s rape adjudication is not against the manifest weight of the evidence.
{¶31} Appellant’s assignment of error is overruled.
III. Conclusion
{¶32} After reviewing the record, weighing the evidence and all reasonable
inferences, and considering the credibility of the witnesses, we cannot find that the
juvenile court clearly lost its way. The juvenile court was in the best position to weigh the credibility of witnesses, and the record demonstrates that the juvenile court thoroughly
considered both the credibility of the accounts and all the evidence in finding appellant
delinquent of rape. The important aspects of A.B. and M.A.’s testimony remained
largely consistent over time, and this testimony was corroborated — both by the females’
injuries and the testimony of the nurses who treated them after the incident. Thus,
appellant’s rape adjudication is not against the manifest weight of the evidence.
{¶33} Judgment affirmed.
It is ordered that appellee recover of 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. The finding of
delinquency having been affirmed, any bail or stay of execution pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
_________________________________________________________ FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and PATRICIA ANN BLACKMON, J., CONCUR