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State v. Hardman

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585663-B

          ATTORNEY FOR APPELLANT Myriam A. Miranda.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Holly Welsh Assistant County Prosecutor.

          BEFORE: Stewart, J., Kilbane, P.J., and Jones, J.



         {¶1} A jury found defendant-appellant Deafred C. Hardman guilty of compelling prostitution and having unlawful sexual conduct with a minor. On appeal, he complains about the sufficiency and weight of the evidence, that the court denied him his right of compulsory process, and that the court allowed the state to offer evidence that had not been disclosed in discovery. We find no error and affirm.

         I. Sufficiency of the Evidence

         {¶2} We review the evidence supporting a conviction by viewing the facts and inferences derived therefrom in a light most favorable to the state to see if a rational trier of fact could find that they established the essential elements of the offense beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶3} The offense of unlawful sexual conduct with a minor requires the state to prove that the defendant engaged in sexual conduct with another, who is not the spouse of the offender, "when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard." R.C. 2907.04(A). A person is "reckless" when "with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C).

          {¶4} The evidence showed that the victim was 15 years old at the time of the offenses. She had run away from home and met people who were friends with Hardman. She used a fake name and told everyone that she was 20 years old. What followed was a two-week odyssey where the victim consumed drugs and alcohol and engaged in sexual conduct with numerous people, including Hardman. Hardman listed the victim on a website where she offered massage and "escort" services. He created an ad for her services, describing her as "five-three, 150 pounds." Hardman told the victim to take pictures of herself, but rejected them, telling her "they needed to be more sexy." She took additional pictures of herself wearing only a bra and underwear.

         {¶5} The state conceded that the victim told everyone involved that she was 20 years old, but argued that Hardman was reckless for believing that given the victim's youthful appearance and manner. By alleging that Hardman acted recklessly by ignoring visual indications of the victim's real age, the state necessarily asked the jury to draw inferences that we cannot review. For example, we have no way of assessing how old the victim appeared, either physically or mentally, to the jury when she testified at trial. The record contains the pictures the victim took of herself and posted with the ad for her services as an escort, but the pictures are grainy photocopies that do not assist our review one way or the other. To the extent that people could disagree about whether the pictures show the victim as appearing younger than her stated age, that disagreement shows that it would not be irrational for the jury to find that Hardman disregarded a known risk that the victim was less than 16 years old.

          {¶6} Hardman next argues that the state did not present sufficient evidence to prove that he engaged in sexual conduct with the victim. He does not deny that the victim testified that she had "vaginal and oral" sex with Hardman, but argues that the state failed to elicit evidence of penetration.

         {¶7} "Sexual conduct" is an essential element of the offense of unlawful sexual conduct with a minor. Sexual conduct is defined as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex[.]" R.C. 2907.01(A). For purposes of vaginal or anal intercourse, "[p]enetration, however slight, " is sufficient to complete those acts. Id.

         {¶8} Notably, R.C. 2907.01(A) does not state that penetration is required to complete an act of oral sex. State v. Bailey,78 Ohio App.3d 394, 395, 604 N.E.2d 1366 (1st Dist.1992); State v. Ickes, 5th Dist. Tuscarawas No. 1999AP080052, 2000 Ohio App. LEXIS 2670, 5 (June 13, 2000). For this reason, we reject Hardman's argument that the state ...

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