[Cite as State v. McCain, 2019-Ohio-4392.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                             C.A. No.   18CA0108-M

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
GARY L. MCCAIN                                            COURT OF COMMON PLEAS
                                                          COUNTY OF MEDINA, OHIO
        Appellant                                         CASE No.   18CR0653

                                 DECISION AND JOURNAL ENTRY

Dated: October 28, 2019



        TEODOSIO, Judge.

        {¶1}    Gary McCain appeals from the judgment of the Medina County Court of

Common Pleas, committing him to the Warrensville Developmental Center. This Court affirms.

                                                     I.

        {¶2}    Mr. McCain attended a graduation party in the summer of 2018. At least part of

the party was outside, and many of the adult guests congregated around a bonfire while several

children played nearby. A camping tent had been set up between ten and twenty feet from the

bonfire, purportedly for the children to sleep in.

        {¶3}    According to three adult witnesses who were standing around the bonfire, they

heard a child screaming near the tent. They walked over to investigate and observed the victim,

a six-year-old boy, emerge from the side of the tent with Mr. McCain following closely behind.

The victim was crying and holding his crotch. The victim informed the adults that Mr. McCain
                                                   2


had tried to go down his pants and bite his penis.1 Mr. McCain did not say anything, and some

of the adults led him to the front of the house where his mother was located. The police arrived

shortly thereafter.

        {¶4}    A grand jury indicted Mr. McCain on one count of rape in violation of Revised

Code Section 2907.02(A)(1)(b), one count of gross sexual imposition in violation of Section

2907.05(A)(4)(C)(2), and one count of kidnapping in violation of Section 2905.01(A)(4)(C)(1).

After a competency hearing, the trial court determined that Mr. McCain was incompetent to

stand trial, and that there was not a substantial likelihood that he could be restored to competency

within one year. It then held a hearing pursuant to Section 2945.39(A)(2) to determine whether

it could retain jurisdiction over Mr. McCain.

        {¶5}    At the hearing, the three adult witnesses testified as described above, although

their testimony differed slightly. For example, one witness testified that the victim stated that

Mr. McCain tried to go down his pants, and another testified similarly, but added that the victim

stated that Mr. McCain tried to bite his penis. The diagnostic interviewer from Akron Children’s

Hospital also testified, stating that the victim told her that Mr. McCain bit his penis.

Additionally, the forensic scientist who analyzed the DNA samples taken from the victim’s body

(oral, anal, and penile) and his underwear testified that Mr. McCain’s DNA was present on the

victim’s underwear, but not his body. Lastly, a clinical psychologist testified that Mr. McCain

has a moderate intellectual disability, and that he is subject to institutionalization.

        {¶6}    After the hearing, the trial court found that clear and convincing evidence existed

to support the charges for rape and gross sexual imposition, but that clear and convincing



        1
         The victim did not use the word “penis,” but the witnesses understood what the victim
meant through his words and gestures.
                                                 3


evidence did not exist to support the kidnapping charge. It then ordered Mr. McCain to be

committed to the Warrensville Developmental Center. Mr. McCain now appeals, raising one

assignment of error for this Court’s review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE STATE FAILED TO PRESENT CLEAR AND CONVINCING
       EVIDENCE THAT APPELLANT COMMITTED THE OFFENSE OF RAPE.

       {¶7}    In his sole assignment of error, Mr. McCain argues that the State failed to present

clear and convincing evidence in support of the rape charge. This Court disagrees.

       {¶8}    “In certain instances, R.C. 2945.39 authorizes a trial court to retain jurisdiction

over an incompetent defendant and commit him to the care of a treatment facility.” State v.

Weaver, 9th Dist. Medina No. 17CA0092-M, 2018-Ohio-2998, ¶ 9.                  A court may retain

jurisdiction over a defendant if, following a hearing, it determines by clear and convincing

evidence that: (1) the defendant committed the charged offense; and (2) the defendant is either “a

mentally ill person subject to court order or a person with an intellectual disability subject to

institutionalization by court order.” R.C. 2945.39(A)(2)(a) and (b). “Clear and convincing

evidence is that measure or degree of proof which will produce in the mind of the trier of facts a

firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford, 161

Ohio St. 469, 477 (1954). “Where the proof required must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient evidence

before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74 (1990).

       {¶9}    Section 2907.02(A)(1)(b), under which Mr. McCain was charged, 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, whether or not the offender
                                                4


knows the age of the other person.” This statute criminalizes what is commonly known as

“statutory rape” and “holds offenders strictly liable for engaging in sexual conduct with children

under the age of 13.” In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, ¶ 13. Relevantly,

“[s]exual conduct” includes fellatio. R.C. 2907.01(A).

       {¶10} Mr. McCain argues that there was no evidence of sexual conduct, that he did not

have the required mens rea to commit rape, and that there was no evidence that he used, or

threatened to use, force.     We reject the latter two arguments outright because Section

2907.02(A)(1)(b) criminalizes statutory rape, which requires neither proof of a mens rea nor

force.2 In re D.S., 152 Ohio St.3d 109, 2017-Ohio-8289, ¶ 40 (stating that “there is no mens rea

element for the state to prove under R.C. 2907.02(A)(1)(b)”); In re D.B. at ¶ 13 (stating that

“force is not an element of the offense”).

       {¶11} Regarding his argument that there was no evidence of sexual conduct, Mr.

McCain relies on the fact that the three witnesses who attended the graduation party testified that

the victim indicated that Mr. McCain “tried” to go down his pants – which, he argues, is

evidence of an attempt, not a completed act – and that they otherwise provided inconsistent

testimony. Mr. McCain also points to the fact that, while his DNA was found on the victim’s

underwear, it was not found on the victim’s body.


       2
          We note that the indictment charges Mr. McCain with rape under Section
2907.02(A)(1)(b). The following language appears beneath that charge: “FURTHERMORE, the
offender purposely compelled the victim to submit by force or threat of force.” This language
appears to reference the sentencing enhancement scheme set forth in Section 2971.03(A)(2),
which requires a trial court to sentence a defendant to a term of life imprisonment without parole
when the defendant is convicted of rape under Section 2907.02(A)(1)(b), and when the defendant
“purposely compelled the victim to submit by force of threat of force.” This Court’s focus on
appeal, however, is on the charged offense: statutory rape under Section 2907.02(A)(1)(b), not
the sentencing enhancement scheme under Section 2971.03(A)(2).
                                               5


       {¶12} Mr. McCain’s argument ignores the testimony of the diagnostic interviewer from

Akron Children’s Hospital who testified that the victim told her that Mr. McCain bit his penis.

Additionally, to the extent that he challenges the credibility of the witnesses, a challenge to

credibility sounds in weight, not sufficiency, and Mr. McCain has not developed an argument in

that regard. State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 27; App.R.

16(A)(7). Even if he had, “the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. “As the trier of fact is in the best position to assess matters of

credibility, this Court is loath to disturb those determinations on appeal.” Wiseman v. Wiseman,

9th Dist. Medina No. 13CA0009-M, 2014-Ohio-2002, ¶ 28.

       {¶13} Further, while the absence of DNA evidence on the victim’s body is probative, it

is not dispositive. State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 22. In

these cases, “[t]he trial court has ‘broad discretion’ as to what to review in making [its]

determinations * * *.” Weaver, 2018-Ohio-2998, at ¶ 28, quoting State v. Decker, 10th Dist.

Franklin No. 16AP-684, 2017-Ohio-4266, ¶ 30. “By statute, it may consider ‘all relevant

evidence, including, but not limited to, any relevant psychiatric, psychological, or medical

testimony or reports, the acts constituting the offense charged, and any history of the defendant

that is relevant to the defendant’s ability to conform to the law.’” Weaver at ¶ 28, quoting R.C.

2945.39(B). Having reviewed all of the evidence presented, we conclude that the trial court had

sufficient evidence before it to satisfy the clear-and-convincing burden of proof. Schiebel, 55

Ohio St.3d 71, at 74. Accordingly, Mr. McCain’s assignment of error is overruled.
                                                 6


                                                III.

       {¶14} Mr. McCain’s assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




HENSAL, J.
CALLAHAN, J.
CONCUR.
                                          7


APPEARANCES:

THOMAS REIN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
