[Cite as In re D.W., 2012-Ohio-319.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




IN THE MATTER OF:

        D.W. II


JUDGES:
Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.

Case No. 11 CA 29


OPINION


CHARACTER OF PROCEEDING:                      Civil appeal from the Court of Common
                                              Pleas, Juvenile Division, Case No. DL 2011
                                              00042


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        January 27, 2012


APPEARANCES:

For Appellant                                 For Appellee

ROBERT E. SHEA
LERNER & SHEA
500 South Front Street, Suite 260
Columbus, Ohio 43215
Wise, J.

      {¶ 1} Appellant D.W. II (hereinafter “appellant” or “D.W.”), a minor, appeals from

his transferred delinquency adjudication and subsequent disposition in the Fairfield

County Court of Common Pleas, Juvenile Division. The relevant facts leading to this

appeal are as follows.

      {¶ 2} On November 25, 2010, D.W. was visiting his father's house in Dayton,

Ohio. D.W.'s stepsister, stepbrother, and stepmother also resided at the father's house.

That evening, D.W. and his stepsister, both age thirteen at the time, were watching a

movie in the stepsister's bedroom, which was located next to the bedroom of D.W.'s

father and stepmother. At about 11:00 PM, D.W.'s father and his wife were notified by

D.W.'s stepsister that D.W. had fondled her vagina that night.

      {¶ 3} As a result of the incident, a complaint was filed against D.W. in the

Montgomery County Juvenile Court for delinquency by reason of rape (R.C. 2907.02)

and sexual battery (R.C. 2907.03). The matter proceeded to a bench trial before that

court on January 18, 2011. After the State rested its case, D.W.'s attorney orally moved

the court to dismiss the rape charge on the grounds that the statutory elements of

"force" or "threat of force" in R.C. 2907.02(A)(2) had not been met by the State. The

motion was denied.

      {¶ 4} D.W. was ultimately found to be delinquent by reason of rape as alleged in

the complaint. The sexual battery allegation was thereupon dismissed by the court.

      {¶ 5} For purposes of disposition, the matter was transferred to the Fairfield

County Juvenile Court. See R.C. 2151.271. On April 1, 2011, D.W. was ordered, inter

alia, to be placed on community control, with a one-year DYS commitment, suspended.
      {¶ 6} On July 18, 2011, we granted leave for appellant to file a delayed appeal.

He herein raises the following sole Assignment of Error:

      {¶ 7} “I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE AND

FEDERAL      CONSTITUTIONS        WERE      VIOLATED        BECAUSE      THE     JUDGE'S

DETERMINATION AT THE ADJUDICATORY HEARING THAT THE MINOR WAS GUILTY

OF RAPE UNDER RC. 2907.02(A)(2) WAS NOT SUPPORTED BY THE WEIGHT OR

SUFFICIENCY OF THE EVIDENCE.”

                                            I.

      {¶ 8} In his sole Assignment of Error, Appellant D.W. contends his adjudication

for rape was against the sufficiency and manifest weight of the evidence. We disagree.

                              Sufficiency of the Evidence

      {¶ 9} Our standard of review for sufficiency is as follows: “ * * * [T]he inquiry is,

after viewing the evidence in the light most favorable to the prosecution, whether any

reasonable trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d

492. The state must prove its case against a juvenile beyond a reasonable doubt. In re

Stringer, Tuscarawas App.No. 2002 AP 10 0082, 2003-Ohio-2119, ¶ 8, citing In re

Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.

      {¶ 10} The pertinent portion of the offense of rape under R.C. 2907.02 states as

follows: “(A)(2) 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.”

      {¶ 11} At the adjudicatory hearing in this matter, D.W.'s stepsister (hereinafter

“victim”) testified that after she fell asleep on the night of November 25, 2010, she

awoke feeling D.W.’s hand in her pants and D.W. “squeezing” her vagina, i.e., feeling
that “the skin was open.” Tr. at 11. She testified that the squeezing action hurt. Tr. at 12.

The victim recalled at one point turning on her side, causing D.W. to pull his hand away;

however, D.W. again digitally penetrated her vagina. Tr. at 14. The victim also testified

that D.W. started to go up to her breast area after she had turned over. Id. She

ultimately got out of bed, went into the bathroom, and then went to tell her step-father

and mother what had happened. Id. During the incident, D.W.’s younger stepbrother

was sound asleep in the room, but he did not wake up, despite the victim’s initial

attempts to kick or nudge him. Tr. at 15.

       {¶ 12} The gist of appellant’s sufficiency argument is that the element of

compelling by force or threat of force is not present in this case. We note that on cross-

examination, the victim agreed that D.W. had not made any threats to her at the time in

question. See Tr. at 20. Appellant directs us to State v. Fowler (1985), 27 Ohio App.3d

149, in which the Eighth District Court of Appeals indeed stated: “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 154 (citations omitted).

       {¶ 13} Appellant herein urges that Fowler is distinguishable, in that it involved a

child victim and an adult offender. Nonetheless, in the case sub judice, when asked

upon direct examination why she did not tell D.W. to stop his actions, the victim testified:

“Because he’s much bigger than me and I was scared that if he knew I was awake that

he would try to do something, and I wasn’t sure, and I didn’t want to find out.” Tr. at 13.

The victim added on re-direct: “Because I know that he probably didn’t want to get in

trouble, so he was probably going to try to stop me, and I didn’t know how he was going
to stop me, so I was scared.” Tr. at 22. Furthermore, as noted previously, appellant’s

nonconsensual digital penetration caused pain to the victim. Tr. at 12.

         {¶ 14} Accordingly, upon review of the record and transcript in a light most

favorable to the prosecution, we find that a reasonable finder of fact could find the

elements of rape, including the force/threat of force element, beyond a reasonable

doubt.

                               Manifest Weight of the Evidence

         {¶ 15} Appellant has also challenged his delinquency adjudication on “manifest

weight” grounds. On review for manifest weight, a reviewing court is to examine the

entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses and determine, “whether in resolving conflicts in the evidence, the

[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.” State v. Martin (1983), 20

Ohio App.3d 172, 175, 485 N.E.2d 717. See, also, State v. Thompkins (1997), 78 Ohio

St.3d 380, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” Martin at

175, 485 N.E.2d 717.

         {¶ 16} Appellant first points out that even though the victim testified that she first

went into the bathroom after D. W. touched her so that he wouldn't try to stop her, the

victim later stated that the door that leads to the master bedroom was on the same side

of the room as she had been and not on D.W.'s side of the room. See Tr. at 19.

         {¶ 17} In addition to the victim, the State called Dr. Susan Henry, the physician at

Children's Medical Center in Dayton who treated her following the incident at issue. Dr.
Henry did a general exam as well as a genital exam on the victim, observing that the

victim’s labial area was red, swollen and tender, although there were no hymenal

lacerations. Tr. at 26, 28. She opined that these recent labial injuries were consistent

with sexual assault or trauma. Tr. at 26, 29. Dr. Henry was unable to tell if there was

any penetration to the victim's vagina. See Tr. at 27, 29. On re-direct Dr. Henry testified

that she does not often find injuries on sexual assault victims. Tr. at 30. Appellant

maintains that the prosecutor never had Dr. Henry clearly distinguish between non-

penetrating sexual assault and rape, i.e., actual penetration.

       {¶ 18} The next witness for the State of Ohio was D.W.'s father. He testified that

the victim, his step-daughter, woke him up on the night in question and told him D.W.

had touched her "down there". Tr. at 35. The father testified that D.W. admitted touching

the victim, explaining that he did so “[b]ecause everybody was asleep.” Tr. at 36.

Appellant points out that the father waited until approximately 2:30 AM to call the police,

after first trying repeatedly to call his ex-wife (D.W.'s mother). See Tr. at 36-39.

       {¶ 19} The State also called Dayton Police Officer Kevin Cooper and Detective

William Swisher. Officer Cooper, who first responded to the incident, testified that D.W.

made an admission to touching the victim; D.W. in fact stated that “[w]hat you heard is

exactly true.” See Tr. at 45-48. Detective Swisher testified that D.W. admitted that he

had touched the victim's vagina. Tr. at 52. Officer Swisher testified that D.W. told him it

was "possible” that he had penetrated the victim’s vagina. Tr. at 53. Detective Swisher

also testified under cross-examination that D.W. made no admission as to whether he

used any force on the evening in question. Tr. at 54.
       {¶ 20} Finally, D.W. testified in his own defense. D.W. admitted to touching the

victim's buttocks, breast, and the outside of her vaginal area, but on the stand he denied

penetrating her vagina. Tr. at 64. He maintained that he made no threats and did not

use force during the incident. Tr. at 67. During cross-examination and redirect

examination D.W. acknowledged that he told police it was possible that his fingers had

slipped inside the victim's vagina. Tr. at 69, 70. However, D.W. also said that he was not

sure. Tr. at 70.

       {¶ 21} As we have often reiterated, the trier of fact, as opposed to this Court, is in

a far better position to weigh the credibility of witnesses. State v. DeHass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212. Upon review, we are unpersuaded the finder of fact

effectively lost his way under the circumstances of this case. The court's adjudication of

delinquency by reason of rape was not against the manifest weight of the evidence.

       {¶ 22} Appellant's sole Assignment of Error is overruled.

       {¶ 23} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Fairfield County, Ohio, is hereby affirmed.

By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.

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                                                                   JUDGES
            IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                        :         JUDGMENT ENTRY
                                         :
                                         :
      D.W. II                            :         Case No. 11 CA 29




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Juvenile Division, Fairfield County, Ohio, is

affirmed.

      Costs assessed to appellant.




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                                                            JUDGES
