State v. Monebrake

2022 Ohio 246

• Court: Ohio Court of Appeals
• Decided: January 31, 2022
• Docket: CA2021-04-004 CA2021-04-005 CA2021-04-006
• Status: Published

Opinion

[Cite as State v. Monebrake, 2022-Ohio-246.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, :

Appellee, : CASE NOS. CA2021-04-004 CA2021-04-005 : CA2021-04-006 - vs - : OPINION 1/31/2022 BRADLEY E. MONEBRAKE, :

Appellant. :

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case Nos. 20CR013278, 20CR013275, and 20cr013276

David A. Yost, Ohio Attorney General, and Andrea K. Boyd, Assistant Attorney General, for appellee.

Michele Thomas, Attorney at Law, LLC, and H. Michele Thomas, for appellant.

PIPER, P.J.

{¶1} Appellant, Bradley Monebrake, appeals his convictions in the Preble County

Court of Common Pleas for attempted rape and attempted gross sexual imposition. For the

reasons detailed below, we affirm the trial court's decision.

{¶2} Monebrake and his wife, "Alice," have three children.1 At the time of trial, their

oldest son was ten, their daughter, "Jane," was nine, and their youngest son was six. Jane

1. For privacy and readability, we are using fictionalized first names. Preble CA2021-04-004 CA2021-04-005 CA2021-04-006

was seven years old during the Labor Day camping trip discussed below.

{¶3} The record reveals that Monebrake and Alice would engage in sexual role

play, which often involved the acting out of incest fantasies. Over time, Monebrake moved

on from simply talking about sexual scenarios and began formulating plans to act on his

fantasies. In text messages, Monebrake told Alice that they should engage in sex acts with

"[b]rother and sister or mom and son or daughter and father," "[l]ike real playing." Alice,

referring to their role playing, said that they already did that. Monebrake responded that

he wanted to do it for real, and that he was serious. He begged her to try incest with him.

Monebrake asked Alice to perform oral sex on their boys and told her that he would perform

oral sex on Jane. He also staged a scenario where their oldest son walked in on them

having sex to see if he was interested in joining. Alice explained that Monebrake was

insistent and often succeeded in pushing sexual boundaries by asking over and over again.

{¶4} Monebrake planned a camping trip at Hueston Woods over the 2019 Labor

Day weekend with his family and his mother. On the drive there, Monebrake told Alice that

he "had an idea" for the camping trip. Later he told her that she could go "under the covers"

with the children and, during the course of the weekend, described his ideas for them to

engage in incest. He became insistent and raised his incestuous ideas nearly every time

he was alone with Alice.

{¶5} When they arrived at their campsite, Monebrake's mother had already parked

her camper on their lot and the Monebrake tent was set up. The tent was divided into three

areas separated by zippered doors. There was the main area at the center of the tent and

two side rooms. Monebrake and Alice slept in the main area while their two sons slept in

one side room and Jane slept in the other side room.

{¶6} On the first night, the children went to bed while Monebrake and Alice sat

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around the campfire. After consuming a few beers, Monebrake and Alice retired to the main

area in the tent and began having sex. While doing so, Monebrake again brought up his

incest fantasy. Alice testified:

He said that I could go under the covers with the kids. I could go under the covers on the boys and put their cock and balls in my mouth while they're sleeping. Or I could go over to [Jane's] tent and touch her or lick her while she's sleeping.

Alice explained that "lick her" meant that Monebrake wanted her to lick Jane's vagina. She

explained that Monebrake specifically stated that he wanted her to "lick [Jane's] pussy."

Alice stated that Monebrake's behavior was different than prior role playing. Alice testified

that Monebrake scared her and was intimidating. At some point, Alice testified that

Monebrake stopped having sex with her and walked over to Jane's side of the tent. He then

unzipped the door dividing the rooms. Alice explained that Monebrake did not have any

clothes on and had an erect penis. Monebrake tied the door back as Jane remained asleep.

He then physically moved Alice from their bed into Jane's room and positioned Alice so that

she was looking over the edge of Jane's mattress. Monebrake then began penetrating Alice

from behind and repeatedly told her to touch Jane. When Alice refused, he allowed her to

go back to the bed in the main area. Monebrake then zipped the door shut and continued

having sex with Alice.

{¶7} The next day, Monebrake asked Alice if she was going to "do it" that night and

told her that he wanted her to perform cunnilingus on Jane. Monebrake suggested that

they dress Jane in a nightgown so that it would be easier to access her private areas. He

also said they should tell Jane they forgot to pack clean underwear so that she would go to

bed without underwear. Monebrake also proposed giving Jane medication that would make

her tired; he insisted that he did not want her to be "scarred."

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{¶8} That evening, Jane slept in the camper with Monebrake's mother. Monebrake

and Alice again had sex at night, but Monebrake expressed disappointment that Jane was

in the camper. The next day, Alice pulled Monebrake's mother aside and told her that all

the children needed to sleep in the camper that night. Alice did this because "it was the last

night at the campground and he had been talkin' about it for two days now and I seen [sic]

how serious he was when he opened her tent and I didn't wanna be put in that situation

again."

{¶9} When they returned home from the camping trip, Monebrake noticed that

Alice was behaving differently and asked her if she was going to the police station. He also

accessed Alice's phone history and asked about her use of the "voice recorder" application

on her phone. Alice had, in fact, recorded Monebrake asking her if she was "going to lick it

out," referring to cunnilingus on Jane, but the recording was of poor quality.

{¶10} Shortly thereafter, Monebrake called his mother and told her that he had done

something and was going to jail. Alice notified authorities and obtained a protection order.

Alice stated that she felt this was necessary because Monebrake had gone beyond role

play. Though she had previously consented to role play, Alice was concerned Monebrake

now wanted "real play," not "role play."

{¶11} Following Alice's disclosure to authorities, Monebrake was interviewed by

Captain Shane Hatfield with the Preble County Sheriff's Department. In the interview,

Monebrake admitted to having sex in the tent with Alice at the end of Jane's mattress and

provided details from that incident. Captain Hatfield testified:

CAPTAIN HATFIELD: * * * He admitted to tryin' to get [Alice] * * * the plan was to get [Alice] to perform sex with him in a tent while camping at Hueston Woods and during their intercourse for [Alice] to perform sex acts on the kids. For example, penetrate the middle age girl, who was approximately seven at

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the time, with her finger while he was havin' sex with her.

***

PROSECUTOR: Okay. And when he was making statements and admissions regarding oral, was there any statements or admissions regarding oral sex on the female child?

CAPTAIN HATFIELD: That at one point that he would perform oral sex on the girl.

PROSECUTOR: And did he make statements and admissions to you about his semen and his children?

CAPTAIN HATFIELD: Yes. That if he ejaculated on the wife, he wanted the wife to rub it on the girl.

Monebrake also admitted to making statements and planning to perform sexual acts on the

children. He then discussed steps that he had taken in the past to facilitate incest. For

example, Monebrake admitted that his oldest son had previously walked in on him and Alice

having sex on the living room couch. Captain Hatfield stated that "[Monebrake] indicated

to me that he had talked to [Alice] about it and he wanted to have sex with her and have the

kid walk in and see if it was inviting to the kid."

{¶12} During trial, the state presented testimony from Captain Hatfield, Alice, and a

Special Agent who conducted an extraction of Monebrake's phone. Following the

conclusion of the state's case, Monebrake moved for a Crim. R. 29 acquittal, arguing that

the conduct alleged did not constitute a "substantial step" in the crimes charged. The trial

court denied Monebrake's motion and Monebrake presented his defense. Monebrake

presented testimony from his mother and then testified on his own behalf. Following the

close of evidence, the trial court found Monebrake guilty of attempted rape, attempted gross

sexual imposition, and voyeurism.2 The trial court found Monebrake not guilty of possessing

2. Monebrake did not appeal his conviction for voyeurism.

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criminal tools. The three counts were merged for purposes of sentencing and Monebrake

was sentenced to 10 years to life for attempted rape. Monebrake now appeals, raising two

assignments of error for review.

{¶13} Assignment of Error No. 1:

{¶14} THE TRIAL COURT ERRED BY DENYING APPELLANT'S RULE 29

MOTION FOR ACQUITTAL ON THE CHARGE OF ATTEMPTED RAPE.

{¶15} Assignment of Error No. 2:

{¶16} THE TRIAL COURT ERRED BY DENYING APPELLANT'S RULE 29

MOTION FOR ACQUITTAL ON THE CHARGE OF ATTEMPTED GROSS SEXUAL

IMPOSITION.

{¶17} In his first and second assignments of error, Monebrake alleges the trial court

erred by denying his Crim.R. 29 motion for acquittal on the charges for attempted rape and

attempted gross sexual imposition. We find Monebrake's arguments to be without merit.

{¶18} Pursuant to Crim.R. 29(A), "the court * * * shall order the entry of a judgment

of acquittal of one or more offenses charged in the indictment, * * * if the evidence is

insufficient to sustain a conviction of such offense or offenses." The standard of review for

a denial of a Crim.R. 29 motion is the same standard used for review of a sufficiency of the

evidence challenge. State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-Ohio-

7913, ¶ 21. "In reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction." State v. Boles, 12th Dist. Brown No. CA2012-06-

012, 2013-Ohio-5202, ¶ 34. Therefore, the reviewing court must examine the evidence

produced at trial to determine whether any rational trier of fact could have found the

essentials elements of the crime proven beyond a reasonable doubt, after viewing the

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evidence in a light most favorable to the prosecution. State v. Watson, 12th Dist. Butler No.

CA2016-07-138, 2017-Ohio-1402, ¶ 10.

{¶19} As relevant here, Monebrake was convicted of attempted rape and attempted

gross sexual imposition. Rape is defined under R.C. 2907.02 and provides "[n]o person

shall engage in sexual conduct with another who is not the spouse of the offender * * * when

* * * [t]he other person is less than thirteen years of age[.]" Sexual conduct includes, inter

alia, vaginal intercourse, fellatio, cunnilingus, and digital penetration of the vagina. R.C.

2907.01(A).

{¶20} Gross sexual imposition is defined in R.C. 2907.05, which states:

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.

The Revised Code defines "sexual contact" as "any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or gratifying either

person." R.C. 2907.01(B).

{¶21} An "attempt" is "conduct that, if successful, would constitute or result in the

offense." R.C. 2923.02(A); State v. Clowers, 12th Dist. Clermont No. CA2019-01-009,

2019-Ohio-4629, ¶ 20. The conduct must "constitut[e] a substantial step in a course of

conduct planned to culminate in [the] commission of the crime." (Emphasis added.) State

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v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 95.3 In order for the conduct to rise to the

level of a substantial, it must be "strongly corroborative of the actor's criminal purpose."

State v. McCrone, 12th Dist. Warren No. CA2018-01-007, 2019-Ohio-337, ¶ 36. See, e.g,

State v. Croom, 7th Dist. Mahoning No. 12 MA 54, 2013-Ohio-5682, ¶ 33 (words and actions

may be considered in determining whether a substantial step toward an offense had

occurred).

{¶22} The case law for attempted sex crimes usually concerns attempted rape but

those cases are also instructive in our consideration of the crime of attempted gross sexual

imposition. State v. Peyatt, 7th Dist. Monroe No. 18 MO 0006, 2019-Ohio-3585, ¶ 16. To

sustain a conviction for attempted rape, "[t]here must be evidence indicating purpose to

commit rape instead of some other sex offense, such as gross sexual imposition, R.C.

2907.05, which requires only sexual contact." State v. Davis, 76 Ohio St.3d 107, 114

(1996). Similarly, to sustain a conviction for attempted gross sexual imposition, the

defendant's conduct must demonstrate the purpose to commit gross sexual imposition. Id;

State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, ¶ 23 (holding that the mens rea of

R.C. 2907.05[A][4] is purpose).

{¶23} The supreme court has found that merely removing a victim's clothing is

insufficient evidence of attempted rape. Davis at 114. The state must introduce evidence

that the defendant attempted to commit the sex crime. State v. Lucas, 5th Dist. Tuscarawas

No. 2005AP090063, 2006-Ohio-1675, ¶ 23-25 (sufficient evidence for attempted rape

where the defendant had expressed a desire to have sex with the victim and later attempted

3. In Group, the Ohio Supreme Court held solicitation accompanied by the requisite intent may constitute an attempt. Group was an inmate incapable of actually committing the murder himself due to his incarceration. However, his words and actions in attempting to have a witness murdered constituted a substantial step for the purposes of supporting the elements of attempted aggravated murder. Id. at ¶ 96-103.

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to forcibly remove the victim's pants); State v. Brown, 8th Dist. Cuyahoga No. 98540, 2013-

Ohio-1982, ¶ 21 (sufficient evidence of attempted rape where the defendant was found

standing over the victim with his pants partially removed while intending to remove the

victim's pants). Compare Peyatt, 2019-Ohio-3585 at ¶ 21 (merely exposing oneself and

saying "look" is insufficient evidence for the crime of attempted gross sexual imposition).

{¶24} In State v. Allgood, 9th Dist. Lorain No. 17CA011224, 2019-Ohio-738, a father

found another man, the defendant, in a bathroom with his two-year-old son. Id. at ¶ 2. At

the time, the defendant was holding his genitals in one hand while his other hand rested on

the toddler's neck. Id. The toddler's pull-up diaper had been removed.4 Id. The court

found that the defendant's conduct constituted a substantial step toward engaging in sexual

conduct with the victim and, therefore, was attempted rape. Id. at ¶ 14. In so doing, the

court emphasized that the "substantial step" need not be the last possible event short of

completing the crime. Id. at ¶ 11. Rather, the entirety of the circumstances, including the

age of the victim, should be considered. Id; Peyatt at ¶ 18.

{¶25} Following review, we find there is sufficient evidence that demonstrates that

Monebrake's conduct constituted a substantial step toward engaging in sexual conduct with

Jane. There was also sufficient evidence to demonstrate that Monebrake committed a

substantial step toward engaging in sexual contact, or by causing another to have sexual

contact, with Jane. The record reveals that Monebrake had long-harbored incestuous

fantasies about engaging in sexual behaviors with his children. In the days leading up to

the camping trip, Monebrake made suggestions about incestuous "real play" and expressed

4. The defendant claimed that he was helping toilet train the children. Id. at ¶ 13. However, the child's father testified that the child was capable of using his training toilet independently, the training toilet was undisturbed in the location it was stored, and it was apparent that the toilet had not been used. Id.

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his desire for Alice to perform oral sex on their children and for him to perform oral sex on

Jane. During the drive to the campground, Monebrake told Alice about his plans to involve

the children in sexual activities that would constitute rape or gross sexual imposition if

completed.

{¶26} Monebrake then acted on those thoughts and plans. Alice testified that she

and Monebrake were having sex on the first night of the camping trip. At some point,

Monebrake got up and went over to Jane's side of the tent to unzip the door separating

them. While Jane was still asleep, Monebrake physically removed Alice from their bed and

placed her at the edge of Jane's bed. Monebrake, who was unclothed and had an erect

penis, then began penetrating Alice from behind as he instructed her to touch Jane. When

Alice refused, Monebrake allowed Alice to return to bed. He then zipped the door shut and

finished having sexual intercourse with Alice.

{¶27} Monebrake's behavior throughout that weekend further corroborates his

intention to transition from "role play" to "real play." Alice testified that Monebrake badgered

her about having both sexual contact and sexual conduct with the children. Alice stated

that Monebrake asked her several times if she was going to "do it." Moneybrake told her

that he wanted to see her lick Jane's vagina.

{¶28} On appeal, Monebrake argues there was insufficient evidence that he took a

substantial step toward committing rape or gross sexual imposition against Jane. However,

we find Monebrake's argument is without merit. As noted above, sexual conduct, includes

digital penetration and cunnilingus. Sexual contact includes the touching of a vagina for the

purpose of sexual arousal or gratification. Monebrake went far beyond simply talking or

fantasizing about his ideas for incestuous sexual relations. Monebrake planned his

opportunity and tried to act on his desires. Monebrake's words and actions, in an attempt

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to fulfill his plans, constituted a substantial step in the commission of attempted rape and

attempted gross sexual imposition.

{¶29} Monebrake later admitted his intentions to Captain Hatfield. Monebrake told

Captain Hatfield that he planned to have Alice penetrate Jane's vagina with her finger and

that he would perform oral sex on Jane. In addition, Alice testified that Monebrake

repeatedly told her to touch or lick Jane's vagina. Based on the record here, the trier of fact

could reasonably conclude beyond a reasonable doubt that Monebrake committed the

offenses of attempted rape and attempted gross sexual imposition. Monebrake's two

assignments of error are without merit and hereby overruled.

{¶30} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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