[Cite as In re L.R.F., 2012-Ohio-4284.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97905




                                          IN RE: L.R.F.
                                          A Minor Child




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. DL-11111626


        BEFORE: Celebrezze, P.J., Jones, J., and Cooney, J.

        RELEASED AND JOURNALIZED:                 September 20, 2012
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
By: Sheryl A. Trzaska
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: John D. Toth
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, L.R.F. (hereinafter, “appellant”), appeals the judgment of the

Cuyahoga County Court of Common Pleas, Juvenile Division, adjudicating him

delinquent for having committed the offense of rape. After careful review of the record

and relevant case law, we reverse the judgment of the trial court and vacate the

adjudication of delinquency in this case.

       {¶2} On June 28, 2011, a complaint was filed in the Cuyahoga County Juvenile

Court alleging that on October 9, 2007, appellant committed one count of rape by

engaging in sexual conduct with minor child T.H. by force or threat of force, in violation

of R.C. 2907.02(A)(2), a felony of the first degree if committed by an adult.

       {¶3} Appellant proceeded to trial on September 21, 2011. At trial, the state

produced victim T.H. as its sole witness. T.H. testified that at the time of trial, she was

nine years old and in the fourth grade. She identified appellant as her maternal cousin.

T.H. testified that when she was six years old, then-10-year-old appellant and his

then-14-year-old brother witnessed her kiss another boy as part of a dare. She believed

that she would get in trouble for kissing the boy.

       {¶4} Approximately three weeks later, T.H. and appellant were at their

grandmother’s home in Cleveland, Ohio, when her grandmother asked her to turn off the

television in the basement. T.H. testified that she asked appellant to come with her
downstairs because she “was afraid of the basement sometimes.” Once downstairs,

appellant told T.H. to “suck his area” or else he would tell their grandmother that T.H.

kissed a boy while playing truth or dare. T.H. testified that she complied and that it lasted

“a second, probably like three seconds.”

         {¶5} When questioned specifically about her interaction with appellant, T.H.

testified that “it was like blackmailing.” She explained that the blackmailing was that

appellant “asked [her] to go down on him” or he would tell on her.

         {¶6} T.H. stated that she initially did not tell anyone about the incident. However,

approximately three years later, T.H told her mother about performing oral sex on

appellant after her mother discovered a sexual text message on T.H.’s personal cell

phone.

         {¶7} At the close of the state’s case, appellant unsuccessfully moved for dismissal

under Juv.R. 29, arguing that the state did not present a prima facie case.

         {¶8} Appellant testified on his own behalf. He testified that T.H. has a reputation

for not telling the truth. He testified that he played with T.H. at their grandmother’s

house. He, however, was adamant that he did not assault T.H. at anytime.

         {¶9} At the close of trial, the juvenile court adjudicated appellant delinquent of

rape as charged.       For disposition, the juvenile court committed appellant to the

Department of Youth Services for a minimum period of one year.

         {¶10} Appellant now brings this timely appeal, raising three assignments of error

for review:
       I. Insufficient evidence supported appellant’s adjudication, and the trial
       court erred by denying his motion to dismiss charge.

       II. Appellant’s adjudication was against the manifest weight of the
       evidence.

       III. The juvenile court abused its discretion when it ordered appellant
       committed to the Department of Youth Services.

                                    Law and Analysis

                              I. Sufficiency of the Evidence

       {¶11} In his first assignment of error, appellant argues that his adjudication was

not supported by sufficient evidence and that the trial court erred in denying his motion to

dismiss the charge pursuant to Juv.R. 29.

       {¶12} When reviewing the sufficiency of the evidence in a juvenile context, we

apply the same standard of review applicable to criminal convictions. See In re Watson,

47 Ohio St.3d 86, 91, 548 N.E.2d 210 (1989).           Our function when reviewing the

sufficiency of the evidence is to examine the evidence admitted at trial and determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. The relevant inquiry is 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. Id., citing

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶13} In this case, appellant was found delinquent by reason of having committed

rape, in violation of R.C. 2907.02(A)(2). To find appellant guilty of rape as alleged in
the complaint, the trier of fact was required to find that appellant engaged in sexual

conduct with T.H. by purposely compelling her to submit by force or threat of force.

R.C. 2907.02(A)(2).

       {¶14} In challenging the sufficiency of the evidence supporting his delinquency

adjudication, appellant contends that the state failed to present sufficient evidence that he

purposefully compelled T.H. to submit by force or threat of force.

       {¶15} “Force” is generally defined by statute as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” R.C.

2929.01(A)(1). However, despite the general definition of force, Ohio Supreme Court

case law demonstrates 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.

       {¶16} In 1921, the Ohio Supreme Court, in State v. Labus, interpreted the element

of force in the rape statute when the victim was the offender’s daughter, who was under

the age of 12. 102 Ohio St. 26, 38-39, 130 N.E. 161 (1921). Section 12413 of the

General Code then provided that “[w]hoever has carnal knowledge of his daughter, sister,

or a female person under twelve years of age, forcibly and against her will, shall be

imprisoned in the penitentiary during life * * *.” Id. at 27. The Labus court recognized

that “[t]he force and violence necessary in rape is naturally a relative term, depending

upon the age, size and strength of the parties and their relation to each other * * *.” Id. at

39. The court reasoned that, “[w]ith the filial obligation of obedience to the parent, the
same degree of force and violence would not be required upon a person of such tender

years as would be required were the parties more nearly equal in age, size, and strength.”

Id. In light of the “threats, fright, intimidation and the like, coupled with the unnatural

and atrocious act,” the Labus court ultimately concluded that the state overwhelmingly

proved force and sustained the rape conviction. Id.

       {¶17} In 1988, the court in State v. Eskridge interpreted the element of force in the

rape statute where the victim was the offender’s four-year-old daughter. 38 Ohio St.3d

56, 526 N.E.2d 304 (1988). At that time, R.C. 2907.02(B) provided: “[i]f the offender *

* * purposely compels the victim to submit by force or threat of force, whoever violates

division (A)(3) of this section shall be imprisoned for life.” Id. at 57. Relying on its

earlier decision in Labus, the Eskridge court observed “the coercion inherent in parental

authority when a father sexually abuses his child” and found that “[f]orce need not be

overt and physically brutal, but can be subtle and psychological.” Id. at 58.

       {¶18} According to the court, “[t]he youth and vulnerability of children, coupled

with the power inherent in a parent’s position of authority, creates a unique situation of

dominance and control in which explicit threats and displays of force are not necessary to

effect the abuser’s purpose.” Id. at 59, citing State v. Etheridge, 319 N.C. 34, 47, 352

S.E.2d 673 (1987). The court thereafter stated that the forcible element of rape can be

established “[a]s long as it can be shown that the rape victim’s will was overcome by fear

or duress.” Id., citing State v. Martin, 77 Ohio App. 553, 68 N.E.2d 807 (9th Dist.1946),

and State v. Wolfenberger, 106 Ohio App. 322, 154 N.E.2d 774 (12th Dist.1958). The
court concluded that the state presented sufficient evidence of force given the size and

age disparities of the offender and the victim, the inherent coercion of the offender’s

parental authority, and the victim’s repulsion to the acts themselves. Id. at 58-59.

       {¶19} In 1992, the court in State v. Schaim again interpreted the element of force

for purposes of rape in violation of R.C. 2907.02(A)(2), where the victim was the

offender’s 20-year-old daughter. 65 Ohio St.3d 51, 52, 1992-Ohio-31, 600 N.E.2d 661.

R.C. 2907.02(A)(2) prohibited sexual conduct where the offender “purposely compels the

other person to submit by force or threat of force.” Id. at 54. The evidence presented

demonstrated that the father began sexually abusing his daughter when she was 10 or 11

years old and continued to sexually abuse her into her twenties. Id. at 52. The father

was convicted of two counts of forcible rape for twice having vaginal sex with his

daughter when she was 20 years old.          Id.   The appeals court reversed the rape

convictions finding that the state failed to produce sufficient evidence on the element of

force. Id. at 53.

       {¶20} On appeal to the Ohio Supreme Court, the state, relying on Eskridge, argued

that the father’s pattern of sexually abusing his daughter was sufficient to demonstrate

force. Id. at 54. The Ohio Supreme Court disagreed that Eskridge applied because

Eskridge was “based solely on the recognition of the amount of control that parents have

over their children, particularly young children.” Id. at 55. According to the court, a

woman over the age of majority is not compelled to submit to her father in the same

manner as is a four-year-old girl. She is no longer completely dependent on her parents
and is more nearly their equal in size, strength, and mental resources. Id. Thereafter,

the court concluded that the element of force can be established “if the defendant uses

physical force against that person, or creates the belief that physical force will be used if

the victim does not submit.” Id. Because the state failed to produce such evidence — or

even evidence that the offender used or threatened to use physical force during the

uncharged sexual offenses from which an inference of force or threat of force for the

charged offenses could arise — the court determined that the record contained

insufficient evidence of force to sustain the rape conviction. Id.

       {¶21} In 1988, the court again interpreted the element of force in the rape statute

where the victim was the nine-year-old son of the adult offender’s female friend. State v.

Dye, 82 Ohio St.3d 323, 1998-Ohio-234, 695 N.E.2d 763. The court determined that

Eskridge applied even though the defendant was not the victim’s father because Eskridge

did not strictly depend on the parental relationship between the offender and the victim,

but rather the offender’s position of authority over the victim. Id. at 328. Therefore, the

court in Dye held that “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.”

Id. at 329.    Consequently, the court determined that the state presented sufficient

evidence of force given the age and size disparity between the victim and the offender,

the psychological force, and the offender’s position of authority over the child-victim.

Id. at 328-329.
       {¶22} In the case at hand, the state maintains that the definitions of force

developed by the Ohio Supreme Court in Eskridge and Dye are applicable in this matter.

Thus, the state asks this court to apply a “more relaxed” definition of force that includes

“subtle and psychological” force. However, unlike the factual scenarios discussed in

Eskridge and Dye, we are presented with the unusual case where the victim and the

offender were each under the age of 13 at the time of the incident. Based on these

factual distinctions, we decline to utilize the fact-specific definitions of force applicable

in Eskridge and Dye. As such, we conclude that “subtle and psychological” force found

sufficient in Eskridge and Dye are not present here. This is not a case involving a

parent-child relationship where the filial obligation of obedience to a parent is at issue,

nor is there evidence to suggest that appellant was in a position of authority over T.H.

       {¶23} Accordingly, our analysis focuses on whether, as a general rule of law, the

state proved beyond a reasonable doubt that appellant, through the use of force or threat

of force, caused the will of T.H. to be overcome by fear or duress.

       {¶24} Absent the coercive effect of filial obligation, a defendant purposely

compels another to submit to sexual conduct by force or threat of force if the defendant

(1) uses physical force against that person or (2) creates the belief that physical force will

be used if the victim does not submit. Schaim, 65 Ohio St.3d at 54-55, 1992-Ohio-31,

600 N.E.2d 661. A threat of force can be inferred from the circumstances surrounding

the sexual conduct. Id.
       {¶25} On review of the record, we are unable to conclude that the state presented

sufficient evidence of force or threat of force as required under R.C. 2907.02(A)(2). At

trial, the state only presented the testimony of T.H., who testified that she performed

fellatio on appellant after appellant threatened to tell her grandmother that she had kissed

another boy.

       {¶26} In light of T.H.’s testimony, we find that the state failed to present sufficient

evidence that appellant used physical force or threat of force to compel T.H. to submit to

sexual conduct. This is not a case where the defendant forcefully compelled the victim

to perform the act of fellatio by pushing her head down. See In re N.K., 8th Dist. No.

82332, 2003-Ohio-7059. Similarly, this is not a case where the defendant forcefully held

down the victim as he engaged in sexual conduct. See In re D.L., 3d Dist. No. 3-11-08,

2012-Ohio-1796, ¶ 27. Rather, T.H. described appellant as “asking” her to “go down on

him,” and there is no testimony that indicates that appellant physically forced or

threatened to physically force T.H. to submit in any way. Without more, such evidence

does not warrant a delinquency adjudication for rape.

       {¶27} Furthermore, the state also failed to produce sufficient evidence that

appellant created the belief that physical force would be used if T.H. did not submit to the

sexual conduct. Significantly, there is nothing in T.H.’s testimony to suggest that she

feared appellant would exert physical force if she did not comply with his request. Based

on T.H.’s testimony, it is evident that she submitted to the sexual conduct based on what

she considered to be a form of “blackmail.” While we recognize that the threat of
“getting in trouble” with a parental figure may be significant to a young child, such a

threat does not equate to force or threat of force. As this court has stated, “the threat of

ostracism does not neatly qualify as a threat of force because it is not a physical

compulsion * * *.” See In re N.K. at ¶ 17.1

         {¶28} Based on the foregoing, we find insufficient evidence to establish that

appellant purposely compelled T.H. to submit to the sexual conduct by force or threat of

force.

         {¶29} Appellant’s first assignment of error is sustained. We further find

appellant’s remaining assignments of error to be moot.

         {¶30} Judgment reversed and case remanded to the trial court to vacate the

delinquency adjudication.

         It is ordered that appellant recover from appellee costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate be sent to said court to carry this

judgment into execution.




          The committee note to R.C. 2901.01(A), while not rising to the dignity of law, provides
         1


greater insight into what constitutes “force”:
        “‘Force’ is defined to include all kinds of force which may be exerted physically against a
person or thing, but to exclude coercive acts sometimes loosely called force, such as the compulsion
exerted by blackmail through fear of exposure.”
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
COLLEEN CONWAY COONEY, J., CONCUR
