[Cite as In re J.A., 2023-Ohio-4388.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: J.A. : APPEAL NO. C-230076 TRIAL NO. 20-2333-Z
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: December 6, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, Margaret Kane, Assistant Public Defender, and Jessica Moss, Assistant Public Defender, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant J.A. appeals the judgment of the Hamilton
County Juvenile Court adjudicating him of rape in violation of R.C. 2907.02(A)(2), a
felony of the first-degree if committed by an adult. After careful review of the record
and relevant case law, we conclude that even when looking at the evidence in the light
most favorable to the state, there is insufficient evidence to support J.A.’s adjudication.
Accordingly, we reverse the judgment of the trial court and discharge appellant from
further prosecution.
Factual and Procedural Background
{¶2} T.A. (“Mother”), the mother of J.A., worked in childcare for years.
While working at a daycare in 2015, Mother met K.T., the complaining witness, when
he was 18 months old. Mother and K.T.’s family developed a relationship, and K.T.
followed Mother when she changed daycares. In August 2019, Mother left the daycare
where she had been working and K.T. was attending. At that point, K.T.’s mother,
A.P., withdrew him from the daycare and asked Mother to care for him at her home,
which she had occasionally done in the past.
{¶3} On October 11, 2019, Mother picked K.T. up from his home, as she often
did, to take him to her house for the day. Mother had three children of her own that
were also at home that day: J.A., her 11-year-old son; her 18-month-old daughter; and
her seven-month-old daughter. On this particular day, J.A. was at home because his
school was on fall break. Mother arrived home with K.T. around 8:30 a.m. Although
Mother watched K.T. at her home, she still worked a separate job where she
transported patients back and forth from doctor’s appointments. On this day, Mother
had to work her other job, so she called her grandmother, V.K. (“Grandmother”), to
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watch the children while she went to work for a few hours. Mother left to go to work
sometime between 9:00 a.m. and 10:30 a.m.
{¶4} While Grandmother was watching the children, K.T. asked J.A. to play
the game Roblox. According to K.T., J.A. responded that he would have to complete a
“challenge” first in order to play. K.T. described the challenge somewhat differently
during a pretrial interview and on the stand at trial. However, in both statements, K.T.
indicated that the challenge was that K.T. had to perform oral sex on him. K.T. also
indicated in his pretrial interview that while doing this challenge, J.A. stuck his penis
in K.T.’s anus, although he had to be reminded of this at trial. Following the
completion of the challenge, K.T. played Roblox. Mother arrived back home sometime
between 2:00 p.m. and 2:30 p.m. and took K.T. home around 5:00 p.m. K.T. never
disclosed to Mother or Grandmother what took place. When questioned why he didn’t
tell either of them, he testified that he forgot.
{¶5} When K.T. arrived home, he told his mother what had occurred between
him and J.A. Following his disclosure, K.T. was taken to Cincinnati Children’s
Hospital where a rape kit was performed. He was later taken to the Mayerson Center,
where a pretrial forensic interview was conducted.
{¶6} On June 25, 2020, J.A. was charged with rape in violation of R.C.
2907.02. The complaint alleged that J.A. “did engage in sexual conduct, to wit:
insertion of body part or object into vagina or anus by touching his penis on the
victim’s buttock rectal area, and having the victim perform oral sex on the suspect, not
his or her spouse, and being a person under thirteen years of age, ability of him/her to
resist or consent was substantially impaired because of to him/her [sic] by force, threat
of force, or deception * * *.”
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{¶7} On January 20, 2022, the case was set for trial in the Hamilton County
Juvenile Court before a magistrate. The trial proceeded as follows.
A. Competency Hearing
{¶8} Before the trial began, a competency hearing was held. At the time of
the competency hearing, K.T. was seven years old. During this hearing, he was
questioned by both the state and the defense. He was asked questions to establish
whether he understood the difference between the truth and a lie. Following the
questioning of K.T. by both parties, the magistrate found K.T. to be competent to
testify, over the objections of defense counsel. The trial proceeded immediately after.
B. Trial
1. The State’s Case
{¶9} At trial, the state presented five witnesses: (1) A.P.; (2) K.T.; (3)
Detective Brian Brown; (4) Simone Collier; and (5) Tracy Sundermeier.
{¶10} A.P. testified that she met Mother at her son’s daycare and that they
had developed a relationship. She also testified that K.T. disclosed to her what
occurred between him and J.A. at Mother’s house. She testified that after the
disclosure, she called K.T.’s father, and they took K.T. to the hospital.
{¶11} K.T. testified at trial, although he initially stated that he did not want to
testify. He recounted that J.A. told him that he had to complete a “challenge” in order
to play Roblox. He testified that J.A. made him suck “the part where you pee.” When
asked if he could identify J.A. in the courtroom, K.T. had difficulty. Initially when
questioned about what happened between him and J.A., K.T. testified that the only
thing that happened between the two of them was oral sex. He also testified numerous
times that he had his clothes on the entire time. However, the state moved to refresh
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his recollection with the Mayerson Center interview that had previously taken place.
After seeing the Mayerson interview, K.T. testified that J.A. had penetrated him anally
and that his clothes were off during the incident. Although he identified himself in the
Mayerson interview, he also testified that he did not recall the conversation that was
recorded and that he was surprised to learn that he said his clothes were off.
{¶12} Detective Brian Brown testified that he was the one that interviewed
J.A., who at the time was 11 years old. Brown testified that when asked about the
incident, J.A. would close his eyes, which he interpreted as a sign of lying. J.A. denied
the sexual conduct during the entire interview.
{¶13} Simone Collier was a nurse at Cincinnati Children’s Hospital. She
testified that she was the nurse that conducted K.T.’s rape kit. She also testified as to
the procedure for taking the rape kit.
{¶14} Tracy Sundermeier, a forensic biologist at the Hamilton County
Coroner’s Forensic Crime Lab, testified that she is responsible for analyzing items
involved in criminal matters for the presence of bodily fluid and DNA. The parties
stipulated to her expertise. Sundermeier testified that she conducted the DNA test on
K.T.’s underwear, where she found a mixed sample, meaning more than one person’s
DNA was present, one of which was J.A.’s. Sundermeier testified that the DNA
collected was a weak positive and that she found it when she swabbed the front interior
crotch of the underwear K.T. was wearing. She also testified to various ways that DNA
can be transferred, such as storing clothes together, sharing bathrooms, and washing
clothes together.
2. The Defense’s Case
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{¶15} The defense also presented five witnesses: (1) Grandmother; (2)
Mother; (3) Patience Fuller; (4) J.S.; and (5) Sarah Reis.
{¶16} Grandmother testified that she is the great-grandmother of J.A. She
testified that she was watching the children at Mother’s home while Mother went to
work. Regarding the incident between K.T. and J.A., Grandmother’s testimony was
very limited, as she did not observe the incident. She did testify that she had to stop
K.T. from going up the stairs several times that day.
{¶17} Mother testified that K.T. had exhibited concerning inappropriate
behavior at other times while in her care. Particularly, she testified to a recording of
K.T. saying inappropriate things to her 18-month-old daughter. Mother explained
that while taking care of K.T., she helped “potty train” him. She explained that this
included washing his clothes with her and her family’s, and that she would sometimes
give K.T. some of J.A.’s smaller underwear when he had accidents. Mother also
testified that she had given some of J.A.’s smaller clothes to A.P. for K.T. to have since
J.A. had outgrown them.
{¶18} Patience Fuller was one of K.T.’s former daycare teachers. She testified
that she had observed some behavioral problems with K.T. while at daycare.
{¶19} J.S. is the grandfather of J.A. He testified that he had previously
observed K.T. “gyrating” on Mother’s 18-month-old daughter.
{¶20} Sarah Reis was the specialized assessments supervisor at the Hamilton
County Department of Job and Family Services (“JFS”). She managed the referral for
neglect and sexual abuse in this case. She testified that the case was opened in October
2019, and was closed in December 2019, as unsubstantiated as to both the sexual
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abuse and neglect. She testified that JFS did not determine J.A. to be in a caretaker
role with respect to K.T. She also testified that J.A.’s age factored into the outcome.
C. Disposition and Objection
{¶21} On June 6, 2022, the magistrate adjudicated J.A. delinquent of rape,
ordered a presentence probation investigation, and scheduled the case for disposition.
The defense filed a timely objection, raising the following issues: (1) K.T. was
improperly determined to be competent; (2) K.T.’s in-court identification was
improper and unreliable; (3) K.T.’s testimony at trial was inconsistent with the
allegations; (4) Collier was improperly permitted to testify; (5) the lab report with the
DNA results was given improper weight; (6) the defense’s Crim.R. 29 motion for an
acquittal was improperly denied; (7) the evidence presented was insufficient; and (8)
the allegations did not allege force. A hearing on the objections was heard July 28,
2022.
{¶22} On November 9, 2022, the trial court denied the objection. Regarding
the first issue raised by the defense on objection, the trial court found that K.T. was
able to discern between a lie and the truth. As to the second issue, the trial court
acknowledged that K.T. could not initially identify J.A.; however, the court treated his
difficulty as one bearing on credibility not admissibility. As to the third issue, the trial
court found that the magistrate was in the best position to determine credibility. As
to the fourth and fifth issues, the trial court summarily overruled them. The trial court
addressed the sixth, seventh, and eight issues together. The trial court found that J.A.
“was much older” than K.T. and was in a “position of power.” The trial court also stated
that “[w]hile there was no direct evidence of force used in this matter, the Court finds
there was sufficient circumstantial evidence to find the State proved Juvenile
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committed an act, which, if he were an adult, would constitute the offense of rape
pursuant to division (A)(2) of section 2907.02 of the revised code beyond a reasonable
doubt.” Ultimately, the trial court overruled all of J.A.’s objections.
{¶23} On January 4, 2023, the trial court entered its disposition. At this time
J.A. was 14 years old. The trial court placed J.A. on probation, imposed a suspended
sentence to the Department of Youth Services until he is 21 years old, and ordered him
to complete a sex-offense-specific outpatient treatment program.
{¶24} J.A. now brings this timely appeal.
Insufficient Evidence
{¶25} J.A. raises three assignments of error on appeal. First, J.A. argues that
the trial court erred in finding K.T. competent to testify. Second, J.A. argues that there
was insufficient evidence to support his adjudication. Third, J.A. asserts that his
adjudication was against the manifest weight of the evidence. We address J.A.’s
second assignment of error first because it is dispositive of this appeal.
{¶26} In J.A.’s second assignment of error, he argues that there was
insufficient evidence for the trial court to adjudicate him because the state failed to
provide evidence of every element of the offense of rape under R.C. 2907.02. J.A.
breaks his argument into two subarguments. First, he argues that due to his age at the
time of the offense, he was a member of a protected class. Second, he argues that the
state did not present evidence to meet the element of force under R.C. 2907.02(A)(2).
{¶27} To determine whether a conviction is supported by sufficient evidence,
we inquire “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. Jenks, 61 Ohio St.3d 259, 574
8 OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 492 (1991), paragraph two of the syllabus. See State v. Curry, 1st Dist.
Hamilton No. C-190107, 2020-Ohio-1230, ¶ 11.
{¶28} In In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, ¶
28, the Ohio Supreme Court held that R.C. 2907.02(A)(1)(b) is unconstitutional as
applied to a child under the age of 13 who engages in sexual conduct with another child
under the age of 13 in the absence of proof that: (1) the offender substantially impaired
the other person’s judgment or control, R.C. 2907.02(A)(1)(a); (2) the other person’s
ability to resist or consent was substantially impaired because of a mental or physical
condition, R.C. 2907.02(A)(1)(c); or (3) the offender compelled the other person to
submit by force or threat of force, R.C. 2907.02(A)(2).
{¶29} In this case, both J.A. and K.T. are under the age of 13. Thus, R.C.
2907.02(A)(1)(b) cannot be constitutionally applied to J.A. in the absence of one of
the three circumstances identified in In re D.B. Here, the state focused on the third
factor—“the offender compelled the other person to submit by force or threat of
force”—as a basis to pursue charges against J.A.
{¶30} In the general sense, force in the context of rape has typically been
interpreted to mean physical force. To prove the offense of rape under R.C.
2907.02(A)(2), both the criminal code and case law construing it have required the
defendant to exert violence, compulsion, or constraint against the victim through
physical means or to create the belief that physical force will be used if the victim does
not submit. See R.C. 2901.01(A)(1) (defining “force” for purposes of rape as “any
violence, compulsion, or constraint physically exerted by any means upon or against a
person or thing”); State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661 (1992), paragraph
one of the syllabus.
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{¶31} However, where the allegations involve sexual conduct between a child
and an adult, the Ohio Supreme Court has held that psychological coercion can be a
proxy for physical force in certain circumstances, such as when a parent sexually
abuses a child. See State v. Eskridge, 38 Ohio St.3d 56, 58-59, 526 N.E.2d 304 (1988).
In such cases, the relationship between the child and the adult can create inherent
coerciveness and an “unspoken threat of force” due to the position of authority that
the adult holds over the child. Id. Subsequent case law has clarified that, for this
reduced standard of force to apply, the defendant must be an adult in a position of
authority over a child under the age of 13. See, e.g., State v. Dye, 82 Ohio St.3d 323,
329, 695 N.E.2d 763 (1998) (“[A] person in a position of authority over a child under
thirteen may be convicted of rape of that child with force pursuant to R.C.
2907.02(A)(1)(b) and (B) without evidence of express threat of harm or evidence of
significant physical restraint.”). Moreover, to prove the element of force, “the statute
requires that some amount of force must be proven beyond that force inherent in the
crime itself.” Id. at 327.
{¶32} While this court has not addressed the element of force between two
juveniles under the age of 13, the Eighth District in In re L.R.F., 2012-Ohio-4284, 977
N.E.2d 138 (8th Dist.), has provided some guidance. In that case, the complaining
witness, T.H., testified that when she was six years old, her then ten-year-old cousin,
the defendant, witnessed her kiss a boy as part of a dare. Id. at ¶ 3. A few weeks later
while at their grandmother’s house, the two went to the basement together to turn the
television off. Id. at ¶ 4. While in the basement, the defendant told T.H. to “suck his
area.” Id. If she didn’t, he threatened to tell their grandmother about the dare. Id.
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T.H. testified that she complied. Id. T.H. testified that she felt that her cousin was
“blackmailing” her by threatening to tell their grandmother about the dare. Id. at ¶ 5.
{¶33} Considering whether there was sufficient evidence of force in the case,
the Eighth District noted that “the type and amount of force necessary to purposefully
compel a victim to submit ‘by force or threat of force’ depends on the victim’s and
offender’s relationship.” Id. at ¶ 15. Because both the accused and the alleged victim
were under the age of 13 and the accused was therefore not in a position of authority
over the victim, the court declined to apply the relaxed definition of force applicable
to parent-child rape cases. Id. at ¶ 22.
{¶34} Instead, in the absence of proof of actual force, the court of appeals
analyzed whether the state presented sufficient evidence that the defendant “created
the belief that physical force would be used if T.H. did not submit to the sexual
conduct.” Id. at ¶ 27. Ultimately the court concluded the evidence was lacking in this
regard. While T.H. feared “getting in trouble” if she did not perform the requested
sexual act, nothing in her testimony suggested she feared physical violence as the
statute requires. Id. As the court emphasized, “the threat of ostracism does not neatly
qualify as a threat of force because it is not a physical compulsion * * *.” (Internal
citation omitted.) Id.
{¶35} From a factual standpoint, this case is remarkably akin to In re L.R.F.
At the time of the incident, both J.A. and K.T. were under the age of 13. The testimony
presented at trial through K.T. was that he asked to play Roblox, and J.A. responded
that he had to complete a “challenge” first. When asked about what happened
between him and J.A., K.T. testified, “I wanted to play Roblox, and then he said you
have to do something first.” K.T. also testified that, “[l]ike I wanted to play it, but I
11 OHIO FIRST DISTRICT COURT OF APPEALS
had to do it so I did it.” As in In re L.R.F., the testimony reflects that K.T. was asked
to perform a sexual act, and he complied.
{¶36} However, the evidence of coercion was more extensive in In re L.R.F.
than in this case. In In re L.R.F., T.H. testified that she felt as if she was “blackmailed”
because her cousin threatened to tell their grandmother if she did not comply. Here,
there is no evidence that K.T. was “blackmailed” or that there was a threat that he
would be in trouble if he refused J.A.’s requests. The state asks that we interpret K.T.
testifying that he was “snuck” upstairs to perform the act as evidence that J.A. had
leverage over him. However, the only evidence in the record is that K.T. wanted to
play Roblox and engaged in sexual conduct to be able to do so, even though he did not
necessarily want to do it.
{¶37} Similar to In re L.R.F., the state asserts that the victim in this case was
forced through psychological coercion to engage in sexual conduct with J.A. and that
the relaxed standard of force applies. However, like the Eighth District, we decline to
make that holding. There is no evidence in this case that J.A. and K.T.’s relationship
involved inherently coercive dimensions similar to a parent and child or that J.A. was
otherwise in a position of authority over K.T., such that K.T. would feel compelled to
obey J.A. Thus, the relationship between J.A. and K.T. does not supply a proxy for
physical force.
{¶38} The trial court appeared to recognize as much, because it failed to rely
in its judgment entry on the relationship between J.A. and K.T. as a basis for its
adjudication. Rather, the trial court emphasized the age disparity between J.A. and
K.T. to conclude that J.A. was in a position of power. The state also points to a size
disparity between the two as an indication of force. But there is no evidence to suggest
12 OHIO FIRST DISTRICT COURT OF APPEALS
that K.T. was intimidated by J.A.’s age or size. While there is testimony that J.A. was
“a lot older” and “taller than me,” these descriptions alone are not sufficient to prove
that K.T. was forced to engage in any activity. There was no evidence presented
regarding the potential impact that J.A.’s age and size had on K.T. during the incident.
There was no testimony that K.T. felt overpowered or feared J.A. because of his size.
We will not assume that the existence of a size and age disparity between J.A. and K.T.
caused K.T. to fear physical force if he rejected J.A. in the absence of evidence that that
was the case.
{¶39} Therefore, looking at the evidence in the light most favorable to the
state, the state failed to introduce sufficient evidence that J.A. exerted violence,
compulsion, or constraint against K.T. through physical means or created the belief
that physical force would be used if K.T. rejected J.A.’s requests, as required by R.C.
2907.02(A)(2).
{¶40} Appellant’s second assignment of error is sustained. As a result,
appellant’s first and third assignments of error are made moot and we do not address
them. See App.R. 12(A)(1)(c).
{¶41} The judgment of the trial court is accordingly reversed, and J.A. is
discharged.
Judgment reversed and appellant discharged.
ZAYAS, P.J., and BOCK, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.