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In re D.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

IN RE: D.C. Minor Child

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 16100727

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender John T. Martin Sarah E. Gatti Assistant Public Defenders.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Kristen L. Sobieski Jillian J. Snyder Assistant County Prosecutors.

          Guardian Ad Litem Michael B. Telep.

          BEFORE: Stewart, P.J., Boyle, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, PRESIDING JUDGE.

         {¶1} The juvenile court adjudicated appellant D.C. delinquent for committing acts which, if committed by an adult, would constitute the crimes of rape, kidnapping, and gross sexual imposition. The issues raised in this appeal concern the sufficiency and weight of the evidence, equal protection, the admission of irrelevant evidence, allied offenses, and ineffective assistance of counsel.

         I. Sufficiency of Evidence

         {¶2} The first assignment of error complains that there was insufficient evidence to prove that D.C. compelled the victim to engage in sexual conduct. The victim testified that D.C. grabbed the victim's hand and "drove" it "into my bottom." D.C. maintains that testimony about a hand being driven into a person's "bottom" did not establish penetration sufficient to prove rape.

         {¶3} We apply the same standard of review for questions involving the sufficiency of the evidence in juvenile delinquency adjudications as we do for adult criminal defendants: we view the evidence most favorably to the state to determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. In re Washington, 81 Ohio St.3d 337, 339, 691 N.E.2d 285 (1998); In re J.S., 8th Dist. Cuyahoga No. 102800, 2015-Ohio-4990, ¶ 13.

         {¶4} The state charged D.C. with committing an act that, if committed by an adult, would constitute the offense of rape under R.C. 2907.02(A)(2). That statute states that no person shall engage in sexual conduct with another when the other person is less than thirteen years of age. The phrase "sexual conduct" is defined as, among other things, "the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another." R.C. 2907.01(A). The sexual conduct need not be personally accomplished by the defendant - a defendant can be found guilty of rape even though he did not personally insert an object into a victim "'if he caused the penetration to be committed by an innocent agent.'" State v. Ludwick, 11th Dist. Ashtabula No. 2002-A-0024, 2004-Ohio-1152, ¶ 58, quoting Lafave & Scott, Criminal Law, Section 6.6(a), at 570 (2d Ed.1986).

         {¶5} The victim, who was eight years old at the time the offense occurred (he was 12 years old by the time of trial), gave the following testimony:

Q: Okay. And what did he make you do with your finger?
A: He drove my hand with his own hand.
Q: Where?
A: At my rear. He drove my hand to my rear, ...

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