APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CR081259
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant.
PAUL GRIFFIN, Attorney at Law, for Appellee.
FOR THE COURT HENSAL, J. CONCURS.
BELFANCE, P. J. CONCURS N JUDGMENT ONLY.
DECISION AND JOURNAL ENTRY
(1} The State appeals from the decision of the Lorain County Court of Common Pleas. This Court reverses.
(2} Samuel Nieves was indicted on one count of rape in violation of R.C. 2907.02(A)(2), and one count of gross sexual imposition in violation of R.C. 2907.05(A)(1). He pleaded not guilty, and the matter was tried to the bench. After the State rested, Nieves moved for judgment of acquittal pursuant to Crim.R. 29 as to both charges. The trial judge initially indicated that he would deny the motion as to both charges upon finding that, when construing the evidence in favor of the State, the State had made a prima facie case. However, after defense counsel stated that the victim testified, "No" in response to his question on cross-examination, "Was defendant's penis ever inside you, " the trial judge granted the Crim.R. 29 motion as to rape. He left open the question of whether Nieves committed attempted rape. In response, the assistant prosecutor reiterated the victim's testimony on direct examination in which she asserted that Nieves put his penis between the lips of her vagina. The State noted that the case law in this district, as well as in other districts in the state, holds that penetration beyond the labia is sufficient to support a charge a rape. The trial court refused to acknowledge the authority of that case law and ultimately found Nieves not guilty of rape, but guilty of gross sexual imposition.
(¶3} Although the trial court found Nieves guilty of gross sexual imposition in June 2012, it continued him on bond and did not sentence him until November 30, 2012. The court sentenced Nieves to 17 months in prison and classified him as a Tier II sexual offender. On January 25, 2013, Nieves moved for judicial release, asserting that he had entered prison on December 18, 2012, and was eligible for such release. Although the State opposed Nieves' motion, the trial court granted judicial release on March 4, 2013.
(¶4} The State sought and was granted leave to appeal from the trial court's decision to refuse to apply the established law of this district when ruling on Nieves' Crim.R. 29 motion. The State raises one assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT APPLIED THE INCORRECT STANDARD OF PENETRATION IN A RAPE CASE IN DIRECT CONTRADICTION OF STATE V. MELENDEZ, 9TH DIST. ...