[Cite as State v. Glaze, 2019-Ohio-53.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-17-1269

        Appellee                                  Trial Court No. CR0201702151

v.

Jesse Glaze                                       DECISION AND JUDGMENT

        Appellant                                 Decided: January 11, 2019

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Christopher Clark, for appellant.

                                            *****

        MAYLE, P.J.

        {¶ 1} Following a jury trial, defendant-appellant, Jesse Glaze, appeals the

October 20, 2017 judgment of the Lucas County Court of Common Pleas, convicting him

of rape and sentencing him to life in prison without parole. For the reasons that follow,

we affirm the trial court judgment.
                                      I. Background

       {¶ 2} On July 1, 2017, Jesse Glaze, also known as “Blue,” stayed the night at the

home of his friend, J.B. J.B. and his girlfriend slept in their bedroom. Glaze slept on the

floor in the “front room,” where J.B.’s nine-year-old daughter, M.B., slept on one couch

and J.B.’s girlfriend’s 17-year-old son, T.Q., slept on another.

       {¶ 3} M.B. awoke around 5:00 a.m. to find Glaze with his hand down her pants

and his fingers in her vagina. She woke her father, and told him that Glaze “touched her”

and “hurted her.” J.B. attacked Glaze with a crutch, demanded that he leave, then tasered

him as he sat to put his shoes on. Glaze ran out, and J.B. called 9-1-1 to request police

assistance.

       {¶ 4} Police quickly found Glaze. He denied engaging in any sexual conduct with

M.B. and consented to providing a DNA sample. Meanwhile, M.B.’s mother took M.B.

to Toledo Hospital where she underwent a sexual assault nurse examination (“SANE”).

       {¶ 5} The SANE nurse observed two sets of linear lacerations or abrasions on the

area inside M.B.’s labia. Her vagina and the crotch area of her underwear were swabbed

for DNA and sent to the Bureau of Criminal Investigations (“BCI”) for testing. That

testing revealed no foreign DNA in M.B.’s vagina. The DNA of a male was found to be

present on the inside of M.B.’s underwear, but there was not a sufficient amount of DNA

to include or exclude Glaze as the contributor.

       {¶ 6} Glaze was charged with one count of rape of a person less than 13 years of

age, a violation of R.C. 2907.02(A)(1)(b) and (B). The matter was tried to a jury on




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October 16 and 17, 2018, and he was found guilty. The trial court classified Glaze a

Tier-III sex offender, and because the victim was less than ten years of age, the court

opted to impose a prison term of life without parole.

       {¶ 7} Glaze appealed and assigns the following errors for our review:

              First Assignment of Error: The Evidence at Appellant’s Trial Was

       Insufficient to Support the Conviction, and Appellant’s Conviction is

       Against the Manifest Weight of the Evidence.

              Second Assignment of Error: The Sentence of Life Without the

       Opportunity of Parole Was Disproportionate to the Underlying Conduct in

       this Case, and Violates Appellant’s Substantive Due Process Rights and

       Constitutes Cruel and Unusual Punishment as Prohibited by the Eighth

       Amendment.

                                  II. Law and Analysis

       {¶ 8} In his first assignment of error, Glaze challenges both the sufficiency and

weight of the evidence. He argues that the trial evidence contradicts M.B.’s assertion that

Glaze digitally penetrated her. In his second assignment of error, Glaze challenges his

sentence as disproportionate to the underlying crime, and he argues that his substantive

due process rights were violated and that the sentence constitutes cruel and unusual

punishment. We examine each of Glaze’s assignments of error in turn.




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                 A. Sufficiency and Manifest Weight of the Evidence

       {¶ 9} R.C. 2907.02(A)(1)(b) provides that “[n]o person shall engage in sexual

conduct with another who is not the spouse of the offender * * * when * * * [t]he other

person is less than thirteen years of age * * *.” “Sexual conduct” is defined under R.C.

2907.01(A) to include “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.” In his

first assignment of error, Glaze argues that the evidence presented by the state was

insufficient to establish beyond a reasonable doubt that Glaze engaged in sexual conduct

with M.B. He also argues that his conviction was against the manifest weight of the

evidence.

       {¶ 10} M.B. testified at trial that Glaze put his fingers in her vagina. Additionally,

the SANE nurse testified that she observed injury to the inside of M.B.’s vagina. While

Glaze acknowledges both M.B. and the SANE nurse’s testimony, he contends that the

evidence contradicts M.B.’s assertion of digital penetration and calls into question her

credibility. He suggests that when M.B. told her father that Glaze “touched her” and

“hurted her,” J.B. jumped to the conclusion that Glaze had inserted his fingers into

M.B.’s vagina. He then reported to the 9-1-1 operator that Glaze had “fingered” M.B.,

and M.B. merely repeated this characterization to the SANE nurse after hearing it from

her father.

       {¶ 11} Glaze also argues that there was no evidence presented to establish what

caused M.B.’s vaginal injuries, and he emphasizes that there was no DNA evidence that




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he digitally penetrated her. He insists that it “defies reason” that he would sexually

assault M.B. while 17-year-old T.Q. slept just ten feet away, and he maintains that his

conduct in voluntarily providing a statement to police and consenting to a DNA sample is

inconsistent with his having committed this crime.

       {¶ 12} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a

challenge to the sufficiency of evidence, “[t]he 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.”

(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668

(1997). In making that determination, the appellate court will not weigh the evidence or

assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378

N.E.2d 1049 (1978).

       M.B. testified at trial that Glaze put his fingers in her vagina:

              Q: When you say you woke up and you saw Blue in your pants,

       what does that mean?

              A: He was in my vagina.

              Q: He was in your vagina. What was he doing or? [sic]

              A: He was touching me.

              Q: He was touching you? What was he touching you with?

              A: With his fingers.




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               ***

               Q: And when he touched you there, was it inside or outside your

       body?

               A: Inside.

But immediately after this, M.B. said that it did not “feel” like Glaze was touching her

“on the inside.” She testified:

               Q: How do you know it was inside?

               A: Because I saw it.

               Q: You saw it. Did it feel like it was on the inside?

               A: No.

The state then sought clarification from M.B. on this point, and M.B. reiterated that Glaze

put his fingers inside her vagina:

               Q: But you know that he touched on the inside of your body?

       [Defense counsel]: Objection.

               A: Yeah.

       The court: Overruled.

               Q: I’m sorry, [M.B.], you said that you know he touched on the

       inside of your body?

               A: Yeah.

       {¶ 13} Because under the facts of this case the state was required to prove the

“insertion” of Glaze’s fingers into M.B.’s “vaginal or anal opening,” Glaze focuses on




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M.B.’s testimony that she could not feel Glaze’s fingers on the inside of her body. But

M.B. nevertheless insisted that Glaze’s fingers were inside her, and additional evidence

was presented that was consistent with M.B.’s testimony.

       {¶ 14} First, J.B. testified that his daughter told him that Glaze touched her and it

hurt. But more importantly, the SANE nurse testified not only that M.B. told her that

Glaze “fingered” her, but also that she observed several lacerations to M.B.’s vaginal

area. Specifically, the SANE nurse said that she saw three linear lacerations on the inside

of M.B.’s labia at the one o’clock to five o’clock positions and two linear lacerations at

the 11 o’clock to nine o’clock positions. The nurse was asked: “So this was inside of her

body?” and she responded: “Correct.” She repeated this on redirect:

              Q: [Y]ou were able to see numerous injuries in this child’s vagina?

              A: That’s correct.

              Q: Inside of her body?

              A: Correct.

       {¶ 15} In considering Glaze’s sufficiency claim, we must determine whether the

state adduced evidence of his guilt as to each element of the crime without taking into

consideration matters of credibility. State v. White, 8th Dist. Cuyahoga No. 101576,

2015-Ohio-2387, ¶ 15. We recognized in State v. Schuster, 6th Dist. Lucas No.

L-05-1365, 2007-Ohio-3463, ¶ 67, that “a number of appellate courts, including this

court, have held that penetration of the labia is sufficient to prove penetration of the

vagina for the purpose of satisfying R.C. 2907.02.”




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       {¶ 16} Here, the state presented (1) M.B.’s own testimony that Glaze touched her

with his fingers on the inside of her body; (2) J.B.’s testimony that M.B. told her dad that

Glaze touched her and it hurt; (3) the SANE nurse’s testimony that M.B. told her that

Glaze “fingered” her; and (4) the SANE nurse’s testimony that she observed lacerations

on the inside of M.B.’s labia. We find that if believed, this evidence was sufficient to

prove that Glaze engaged in sexual conduct with M.B.

       {¶ 17} Glaze points out that (1) the SANE nurse conceded that she could not

accurately time M.B.’s injuries or say how they were caused; (2) the police did not swab

Glaze’s fingers for DNA; (3) there was no male DNA found in M.B.’s vagina; (4) while

male DNA was found in M.B.’s underwear, the BCI forensic scientist conceded that

DNA could have been deposited in any number of ways, including by simply folding the

underwear; and (5) it defies reason that Glaze would sexually assault M.B. with T.Q.

sleeping so close by. These points all go not to the sufficiency of the evidence, but to its

weight.

       {¶ 18} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d

at 387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the

state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of




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the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-

Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest weight grounds is

reserved for “the exceptional case in which the evidence weighs heavily against the

conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

       {¶ 19} It is true that the SANE nurse could not say how or when M.B.’s injuries

occurred, however, she testified that M.B.’s injuries were consistent with the history she

provided. And while the police did not swab Glaze’s fingers, testimony was presented

that it was not their practice to do this.

       {¶ 20} As to the DNA evidence—or lack thereof—the BCI scientist stated that it

is a lot less likely to find male DNA inside the vagina when there has been no exchange

of bodily fluids. He testified that DNA persists longer on clothing than it does in a body

cavity because the environment in a body cavity, such as the vagina, is constantly

changing. He explained: “Any low level foreign DNA would be essentially covered up

by the large amount of DNA that’s being contributed by that individual.” And while

Glaze could not be included or excluded as the contributor of the DNA found in M.B.’s

underwear, he also could not be excluded as having digitally penetrated M.B.

       {¶ 21} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the jury’s credibility

determinations given that it is the jury who has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and




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discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. Here, Glaze cross-examined the state’s

witnesses and skillfully challenged its evidence, but the jury nonetheless believed M.B.

We cannot say that it clearly lost its way in resolving evidentiary conflicts in favor of the

state or that this is the exceptional case weighing heavily against the conviction.

       {¶ 22} Accordingly, we find Glaze’s first assignment of error not well-taken.

                                     B. Glaze’s Sentence

       {¶ 23} In his second assignment of error, Glaze argues that under the facts of this

case, his sentence of life in prison without the possibility of parole is disproportionate to

the conduct involved, violates his substantive due process rights, and constitutes cruel

and unusual punishment. The state counters that Glaze waived this argument by not

raising it in the trial court. It also argues that life without parole for the rape of a child is

not grossly disproportionate to the crime and no categorical restriction prohibits the

imposition of a sentence of life without parole for the rape of a child under ten.

       {¶ 24} R.C. 2907.02(B) provides that “if the victim under division (A)(1)(b) of

this section is less than ten years of age, in lieu of sentencing the offender to a prison

term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the

court may impose upon the offender a term of life without parole.” Because Glaze argues

that this statute is unconstitutional as applied to his particular situation, he “bears the

burden of presenting clear and convincing evidence of a presently existing state of facts




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that make the statutes unconstitutional and void when applied to those facts.” (Citations

omitted.) State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, 887 N.E.2d 1145, ¶ 22.

       {¶ 25} The Supreme Court of Ohio has recognized that “‘[o]utside the death

penalty context, the Eighth Amendment does not require strict proportionality between

crime and sentence but forbids only extreme sentences that are grossly disproportionate

to the crime.’” Id. at ¶ 25, quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct.

2680, 115 L.Ed.2d 836 (1991). In Warren, the Ohio Supreme Court refused to say that a

sentence of life imprisonment without the possibility of parole is grossly disproportionate

to the crime of rape of a child under the age of ten. Id.

       {¶ 26} Other Ohio courts have held similarly. In State v. Driscoll, 2d Dist. Clark

No. 2008 CA 93, 2009-Ohio-6134, ¶ 29, the court held that “[defendant’s] sentence of

life without parole for raping [a] four year old * * * in violation to R.C.

2907.02(A)(1)(b), does not constitute cruel and unusual punishment, because it is not

disproportionate or shocking to the moral sense of the community, in view of the heinous

nature of the crime.” (Internal quotations omitted.) The court in State v. Gladding, 66

Ohio App.3d 502, 513, 585 N.E.2d 838 (11th Dist.1990), similarly concluded that

“considering the heinousness of the crime of raping a nine-year-old child, it cannot be

said that appellant’s sentence was disproportionate or shocking to the moral sense of the

community.”

       Like the defendants in Warren, Driscoll, and Gladding, Glaze was convicted of

raping a child under the age of ten. And like those courts, we find that Glaze has failed to




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meet his burden of establishing by clear and convincing evidence that his sentence of life

in prison without the possibility of parole was disproportionate to the conduct involved,

violates his substantive due process rights, or constitutes cruel and unusual punishment.

       {¶ 27} We find Glaze’s second assignment of error not well-taken.

                                       III. Conclusion

       {¶ 28} Sufficient evidence of sexual conduct was presented by the state to support

Glaze’s conviction of rape of a child under the age of 13. M.B. repeatedly testified that

Glaze’s fingers were inside her vagina, she reported to her father that Glaze touched her

and it hurt, she told the SANE nurse that Glaze “fingered” her, and the SANE nurse

observed two sets of lacerations on the inside of M.B.’s labia.

       {¶ 29} Glaze’s conviction was not against the manifest weight of the evidence

despite the fact that M.B. testified that it did not “feel” like Glaze’s fingers were “on the

inside” of her body, his DNA was not identified in swabs taken during M.B.’s SANE

examination, and the SANE nurse could not say when or how the lacerations to M.B.’s

labia occurred. The jury made credibility determinations in favor of the state, and we do

not find that it lost its way in doing so.

       {¶ 30} Finally, consistent with other Ohio courts, we find that Glaze’s sentence of

life in prison without the possibility of parole was not disproportionate to the conduct

involved, did not violate his substantive due process rights, and did not constitute cruel

and unusual punishment.




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       {¶ 31} We find Glaze’s assignments of error not well-taken, and we affirm the

October 20, 2017 judgment of the Lucas County Court of Common Pleas. Glaze is

ordered to pay the costs of this appeal under App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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