[Cite as State v. Umphries, 2012-Ohio-4711.]
                                IN THE COURT OF APPEALS OF OHIO
                                   FOURTH APPELLATE DISTRICT
                                         ROSS COUNTY


STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :   Case No. 11CA3301

        vs.                                           :

WILLIAM E. UMPHRIES,                                  :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :

______________________________________________________________

                                               APPEARANCES:

COUNSEL FOR APPELLANT: Aaron M. McHenry, 14 South Paint Street, Suite 1, Chillicothe, Ohio 45601

COUNSEL FOR APPELLEE: Matthew S. Schmidt, Ross County Prosecuting Attorney, and Richard W.
                             Clagg, Ross County Assistant Prosecuting Attorney, 72 North Paint
                             Street, Chillicothe, Ohio 45601

CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 10-1-12
ABELE, P.J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of conviction and

sentence. A jury found William E. Umphries, defendant below and appellant herein, guilty of rape, in

violation of R.C. 2907.02. The trial court sentenced appellant to serve eight years in prison.

        {¶ 2} Appellant assigns the following errors for review:

                FIRST ASSIGNMENT OF ERROR:

                “THE JURY’S VERDICT IS NOT SUPPORTED BY SUFFICIENT

                EVIDENCE.”



                SECOND ASSIGNMENT OF ERROR:

                “THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT OF
ROSS, 11CA3301                                                                                              2

                 THE EVIDENCE.”

        {¶ 3} During the late evening hours of August 15 or early morning hours of August 16, 2010, the

victim awoke to find appellant on top of her. He began to have sexual intercourse with her and she begged

him to stop. He did not. The next day, the victim contacted the Ross County Sheriff’s Department to report

the incident.

        {¶ 4} On August 6, 2010, the Ross County Grand Jury returned an indictment that charged appellant

with rape, in violation of R.C. 2907.02. Appellant entered a not guilty plea.

        {¶ 5} On September 27 and 28, 2011, the trial court held a jury trial. At the trial, the victim

testified that she awoke during the night to discover appellant, her uncle, on top of her. She stated that he put

his hands down her pants and then removed her pants, her underwear, and her tampon. She stated that he

placed his penis inside her and that she “begged him to stop.” After appellant completed the act, the victim

went into the bathroom and did not exit until she knew appellant had left. When she awoke in the morning,

she told her father what happened and he called the sheriff. Later that day, she went to the hospital where a

rape kit was performed.

        {¶ 6} Ross County Sheriff’s Detective Tony Wheaton testified that appellant admitted that he had

sexual intercourse with the victim. Detective Wheaton stated that appellant explained that he had entered

the victim’s residence through a bedroom window. Appellant advised Detective Wheaton “that he knew

that what he had done was wrong and that he felt that [the victim] had now ruined his life.” On

cross-examination, Detective Wheaton stated that appellant claimed that appellant and the victim had an

on-going sexual relationship for about a month or two before the victim’s rape allegation. Detective

Wheaton testified that appellant claimed that the sexual encounter was consensual.

        {¶ 7} After hearing the evidence, the jury found appellant guilty. The trial court sentenced

appellant to serve eight years of mandatory imprisonment. This appeal followed.

        {¶ 8} Appellant’s two assignments of error raise the interrelated, but legally distinct, concepts of
ROSS, 11CA3301                                                                                                  3

the sufficiency and the manifest weight of the evidence. For ease of analysis, we have combined them.

        {¶ 9} In his first assignment of error, appellant argues that the state failed to present sufficient

evidence that he compelled the victim to submit to sexual conduct by force or threat of force. He asserts that

the state failed to present any evidence that appellant “used any violence, compulsion, or other physical

restraint to compel the intercourse. [The victim] never said [appellant] held her down or otherwise prevented

her from getting up.”

        {¶ 10} In his second assignment of error, appellant contends that the jury lost its way when

affording the victim’s testimony more credibility.

        {¶ 11} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the

adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of

guilt beyond a reasonable doubt. See Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (stating

that “sufficiency is a test of adequacy”); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991).

The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn

therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979); Jenks, 61 Ohio St.3d at 273. Furthermore, a reviewing court is not to assess

“whether the state’s evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).

        {¶ 12} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe

the evidence in a light most favorable to the prosecution.   State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d

1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not

overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable minds could not reach the

conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 749 N.E.2d 226 (2001); State v.

Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749 (2001).
ROSS, 11CA3301                                                                                                  4

        {¶ 13} “Although a court of appeals may determine that a judgment of a trial court is sustained by

sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the

evidence.” Thompkins, 78 Ohio St.3d at 387. When an appellate court considers a claim that a conviction

is against the manifest weight of the evidence, the court must dutifully examine the entire record, weigh the

evidence, and consider the credibility of witnesses. The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752

N.E.2d 904 (2001); State v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph

one of the syllabus. Once the reviewing court finishes its examination, the court may reverse the judgment

of conviction only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1983).

        {¶ 14} If the prosecution presented substantial evidence upon which the trier of fact reasonably

could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established,

the judgment of conviction is not against the manifest weight of the evidence. State v. Eley, 56 Ohio St.2d

169, 383 N.E.2d 132 (1978), syllabus. A reviewing court should find a conviction against the manifest

weight of the evidence only in the “‘exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175; State v. Lindsey,

87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

        {¶ 15} In the case at bar, R.C. 2907.02(A)(2) contains the essential elements of the rape offense

contained in appellant’s indictment. It states: “No person shall engage in sexual conduct with another when

the offender purposely compels the other person to submit by force or threat of force.”

        {¶ 16} Appellant asserts that the state failed to present sufficient evidence that appellant compelled

the victim to submit by force or threat of force. “‘Force’ means any violence, compulsion, or constraint
ROSS, 11CA3301                                                                                             5

physically exerted by any means upon or against a person * * *.” R.C. 2901.01(A)(1).

                 “A defendant purposely compels another to submit to sexual conduct by force or
        threat of force 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. A threat of force can be
        inferred from the circumstances surrounding sexual conduct.”

State v. Schaim, 65 Ohio St.3d 51, 55, 600 N.E.2d 661 (1992)

“The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the

parties and their relation to each other.” State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988). “‘* *

* Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be

shown that the rape victim’s will was overcome by fear or duress, the forcible element of rape can be

established.’” Id. at 58-59, quoting State v. Fowler, 27 Ohio App.3d 149, 154, 500 N.E.2d 390 (1985).

        {¶ 17} Courts have held that when a defendant removes the victim’s clothing against the victim’s

will, then the element of force ordinarily will be established. State v. Walker, 8th Dist. No. 96662,

2011-Ohio-6645, ¶20 (holding that “manipulation of a sleeping victim’s clothing in order to facilitate sexual

conduct constitutes force under R.C. 2901.01(A)(1) even though such force requires only minimal

exertion”), citing State v. Clarke, 8th Dist. No. 94207, 2010-Ohio-5010, ¶23, State v. Sullivan, 8th Dist. No.

63818 (Oct. 7, 1993), and State v. Lillard, 8th Dist. No. 69242 (May 23, 1996). Accord State v. H.H., 10th

Dist. No. 10AP-1126, 2011-Ohio-6660, ¶12; State v. Burton, 4th Dist. No. 05CA3, 2007-Ohio-1660, ¶38.

In Sullivan, for example, the victim awoke in the middle of the night to find the defendant between her legs,

licking her vagina. The defendant had pulled down the victim’s underwear and shorts and had pulled her

legs apart. After the defendant was convicted of rape, he appealed and argued that the state failed to present

sufficient evidence of force. The appellate court disagreed and explained:

                 “It is readily apparent that the element of force was established through the
        testimony of the victim in two separate manners. First, the separating of [the victim’s] legs
        and the pulling down of her shorts and [underwear] clearly can only be accomplished by the
        application of physical force. These acts, although not of the same degree as a blow or
        continuous restraint, are without question within the definition of ‘force’. The word ‘any’
        specified in the definition of ‘force’ recognizes that various crimes upon various victims
        require different degrees and manners of force. In the instant case, the victim was a young
ROSS, 11CA3301                                                                                                                    6

           girl who was initially asleep; therefore, the force the defendant needed * * * required only
           minimal physical exertion.”

           {¶ 18} In State v. Lillard, 8th Dist. No. 69242 (May 23, 1996), the victim was asleep when she

awoke to find the defendant looking into her vagina with a flashlight. On appeal, the court disagreed with

the defendant’s argument that the state failed to present sufficient evidence of force. The court explained

that the

           “evidence, when viewed in a light most favorable to the prosecution, would allow a rational
           trier of fact to infer that appellant used physical exertion to position [the victim’s] robe and
           legs to allow the examination. The state, therefore, provided sufficient evidence regarding
           the element of force or threat of force.”

           {¶ 19} Similarly, in the case sub judice we believe that the state presented sufficient evidence that

appellant engaged in sexual conduct with the victim by purposely compelling the victim to submit by force

or threat of force. The victim testified that appellant removed her pants, underwear, and tampon and that

she “begged” him to stop. The victim’s testimony implies that appellant acted with physical exertion when

he removed her pants, underwear, and tampon. The victim did not offer any testimony that she willingly

removed her clothing or the tampon. Obviously, the victim’s clothing did not magically remove itself.

Instead, appellant had to use some degree of physical force to remove the items.

           {¶ 20} Additionally, the victim testified that appellant was bigger than she and stated, “what was I

going to do.” She explained that she was “scared.” The state pointed out to the jury that the victim is a

petite woman and that appellant obviously outweighed her.1 From this testimony, the jury could have

inferred that appellant was physically imposing and thus induced fear in the victim. The victim’s

testimony, “what was I going to do,” coupled with her petite size in relation to appellant’s, shows that she

felt compelled to submit, scared, and that she believed she had no other option. Thus, this testimony


           1
             The state did not present specific evidence regarding the victim’s height and weight compared to appellant’s so as
to enable this court to compare the two, but it did point the comparison out to the jury, which obviously was able to actually
view the victim and appellant and could use its common sense to determine the parties’ relative sizes.
ROSS, 11CA3301                                                                                                                7

sufficiently shows that her will was overcome by fear. Taken together, the facts demonstrate that appellant

physically exerted, by any means, compulsion upon the victim. R.C. 2901.01(A)(1).

         {¶ 21} Contrary to appellant’s argument, the state did not need to show that appellant “held [the

victim] down or otherwise prevented her from getting up.” In fact, R.C. 2907.02(C) states that a victim’s

physical resistance to the defendant’s conduct is not a prerequisite to a rape conviction. Thus, we disagree

with appellant that the state failed to present sufficient evidence of force to sustain his rape conviction.

         {¶ 22} Furthermore, we disagree with appellant that his version of events was more credible than

the victim’s. The jury, as the fact-finder, was entitled to believe the victim’s version of events. As we

explained in State v. Murphy, Ross App. No. 07CA2953, 2008–Ohio–1744, ¶31:

                   “It is the trier of fact’s role to determine what evidence is the most credible and

         convincing. The fact finder is charged with the duty of choosing between two competing

         versions of events, both of which are plausible and have some factual support. Our role is

         simply to insure the decision is based upon reason and fact. We do not second guess a

         decision that has some basis in these two factors, even if we might see matters differently.”

Accord Bugg v. Fancher, Highland App. No. 06CA12, 2007–Ohio–2019, ¶9; In re N.Z., 11th Dist. Nos.

2010-L-023, 2010-L-035, 2010-L-041, 2011-Ohio-6845, ¶¶79-80 (deferring to fact-finder in “classic

he-said/she-said’ rape case”). The jury was under no obligation to discredit the victim’s testimony simply

because she had consumed a significant amount of alcohol and simply because appellant claimed it was

consensual.2 We find nothing in the record that leads us to conclude that the jury clearly lost its way by

believing the victim’s testimony over appellant’s statement to Detective Wheaton. Consequently,

appellant’s conviction is not against the manifest weight of the evidence.


         2
             We observe that although the testimony establishes that the victim was impaired when the sexual conduct
occurred, i.e., she testified that she vomited when she returned home from the bar and then passed out, the state did not charge
appellant under R.C. 2907.02(A)(1)(c).
ROSS, 11CA3301                                                                                                 8

         {¶ 23} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s two

assignments of error and affirm the trial court’s judgment.

                                                                                    JUDGMENT AFFIRMED.

                                            JUDGMENT ENTRY

         It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.
         It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas
Court to carry this judgment into execution.
         If a stay of execution of sentence and release upon bail has been previously granted, it is continued
for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to
file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that
court. The stay as herein continued will terminate at the expiration of the sixty day period.
         The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court
in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court.
Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the
stay will terminate as of the date of such dismissal.
         A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.

        Harsha, J.: Concurs in Judgment & Opinion
        Kline, J.: Concurs in Judgment & Opinion as to Assignment of Error II; Concurs in Judgment Only
as to Assignment of Error I

                                                                    For the Court




                                                                    BY:
                                            Peter B. Abele
                                            Presiding Judge




                                          NOTICE TO COUNSEL

         Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period
for further appeal commences from the date of filing with the clerk.
