[Cite as In re T.K., 2011-Ohio-5024.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                               :
                                                   C.A. CASE NO. 24613
                                               :
IN RE:       T.K.                                   T.C. CASE NOS. 2010-9566-01
                                               :                   2010-9566-02
                                                                   2010-9566-03
                                               :

                                               :    (Criminal Appeal From
                                                    Juvenile Court)
                                        . . . . . . . . .

                                         O P I N I O N

                Rendered on the 30th day of September, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Prosecuting Attorney, Johnna M. Shia, Atty.
Reg. No. 0067685, Assistant Prosecuting Attorney, Montgomery
County Prosecutor’s Office, Montgomery County Courts Building,
P.O. Box 972, 301 West Third Street, Dayton, OH 45422
     Attorneys for Plaintiff-Appellee

Mark T. Ross, Atty. Reg. No. 0070446, 137 N. Main Street, Suite
516, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        Defendant, T.K., a minor child, appeals from an order of the

juvenile court adjudicating him a delinquent child.

        On the evening of July 5 and the morning of July 6, 2010,

T.K., who was twelve years old at the time, was visiting at his
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father’s home.    T.K.’s half-brother, who was five years old, also

lived at his father’s home.     At some point during the morning of

July 6th, the mother of T.K.’s half-brother walked into T.K.’s room

and saw T.K. sitting in a chair with his half-brother on top of

him.    According to the mother, both children were naked and T.K.

was rocking his half-brother in a “humping” motion.       The police

were called.

       On August 13, 2010, Detective Todd Comer of the Miami Township

Police Department interviewed T.K.      During the interview, T.K.

admitted that three times in the past year he had touched his

half-brother’s penis with his hand and one time he had put his

mouth on his half-brother’s penis.

       On November 2, 2010, T.K. was charged by complaint in juvenile

court with two counts of gross sexual imposition in violation of

R.C. 2907.05(A)(2), a third degree felony if committed by an adult,

and one count of rape in violation of R.C. 2907.02(A)(1)(b), a

first degree felony if committed as an adult.    T.K. filed a motion

to suppress statements he made during his interview with Detective

Comer.    The juvenile court denied T.K.’s motion.

       On February 18, 2011, an adjudication hearing was held and

the juvenile court found T.K. responsible for committing one count

of gross sexual imposition and one count of rape, as charged in

the complaint.    The juvenile court dismissed the second count of
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gross sexual imposition.    On March 30, 2011, the juvenile court

ordered T.K. committed to the legal custody of the Department of

Youth Services for institutionalization in a secured facility for

a minimum period of twelve months on the count of rape and a minimum

period of six months on the count of gross sexual imposition.

The juvenile court suspended that commitment and placed T.K. on

probation.    T.K. filed a timely notice of appeal.

FIRST ASSIGNMENT OF ERROR

     “THE TRIAL COURT ERRED IN FINDING APPELLANT RESPONSIBLE FOR

GROSS SEXUAL IMPOSITION IN VIOLATION OF R.C. 2907.05(A)(2).”

     R.C. 2907.05(A) provides, in part:

     “No person shall have sexual contact with another, not the

spouse of the offender; cause another, not the spouse of the

offender, to have sexual contact with the offender; or cause two

or more other persons to have sexual contact when any of the

following applies:

     “(1) The offender purposely compels the other person, or one

of the other persons, to submit by force or threat of force.

     “(2) For the purpose of preventing resistance, the offender

substantially impairs the judgment or control of the other person

or of one of the other persons by administering any drug,

intoxicant,    or   controlled   substance   to   the   other   person

surreptitiously or by force, threat of force, or deception.”
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      T.K. was found responsible for committing gross sexual

imposition in violation of R.C. 2907.05(A)(2).            T.K. argues that

the juvenile court erred in finding that he committed that violation

because there was no evidence of him “administering any drug,

intoxicant, or controlled substance” to his half-brother.                  We

agree.

      The plain language of R.C. 2907.05(A)(2) provides that in

order     to   be   found   responsible     for   committing   gross   sexual

imposition under that section, the evidence must demonstrate that

the accused purposely prevented resistance on the part of the victim

by substantially impairing the judgment or control of the victim

through the administration of a drug, intoxicant, or controlled

substance.      Further, the drug, intoxicant, or controlled substance

must be administered in two alternative ways:             surreptitiously,

or   by    force,    threat   of   force,    or   deception.     The   words

“surreptitiously” and “by force, threat of force, or deception”

describe the alternative means by which the defendant administers

the drug, intoxicant, or controlled substance, not the means by

which the defendant substantially impairs the judgment or control

of the victim.       Consequently, the absence of a drug, intoxicant,

or controlled substance necessarily precludes a finding of gross

sexual imposition in violation of R.C. 2907.05(A)(2).

      The juvenile court interpreted R.C. 2907.05(A)(2) to allow
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the State to prove gross sexual imposition in one of two alternative

ways:   (1) by proving that the defendant substantially impaired

the judgment of his victim by surreptitiously administering any

drug, intoxicant, or controlled substance to the victim; or (2)

by proving that the defendant substantially impaired the judgment

of his victim by using force, threat of force, or deception.    The

adjudication of T.K.’s delinquency was based on the second

alternative.

     The juvenile court’s interpretation of R.C. 2907.05(A)(2)

reads out of that section the requirement that the defendant

administer a drug, intoxicant, or controlled substance to the

victim.   The effect of this broad interpretation of (A)(2) would

mean that conduct prohibited by R.C. 2907.05(A)(1) would also be

prohibited by R.C. 2907.05(A)(2), essentially rendering the (A)(1)

prohibition superfluous.    Had the legislature intended such a

result, it would have drafted the statute differently.

     Our reading of the statute is consistent with how courts have

interpreted identical language in R.C. 2907.02(A)(1)(a).       That

section, which defines and prohibits the offense of rape, provides:

     “(A)(1) No person shall engage in sexual conduct with another

who is not the spouse of the offender or who is the spouse of the

offender but is living separate and apart from the offender, when

any of the following applies:
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     “(a) For the purpose of preventing resistance, the offender

substantially impairs the other person’s judgment or control by

administering any drug, intoxicant, or controlled substance to

the other person surreptitiously or by force, threat of force,

or deception.”

     As the Eighth District has explained:     “Thus, in order to

establish rape pursuant to this division, the offender must

administer a drug or intoxicant to the victim surreptitiously,

by force, threat of force or deception which substantially impairs

the victim’s judgment or control.”     State v. Vlahopoulos (Aug.

30, 2001), Cuyahoga App. No. 78206, citing State v. Morris (March

9, 2001), Montgomery App. No. 18321.

     It is undisputed that there is no evidence in the record that

T.K. substantially impaired the judgment of his half-brother by

administering any drug, intoxicant, or controlled substance,

whether surreptitiously or by force, threat of force, or deception.

 Consequently, the juvenile court erred in finding T.K. responsible

for gross sexual imposition in violation of R.C. 2907.05(A)(2).

     The first assignment of error is sustained.

SECOND ASSIGNMENT OF ERROR

     “THE TRIAL COURT ERRED IN FINDING APPELLANT RESPONSIBLE FOR

RAPE IN VIOLATION OF R.C. 2907.02(A)(1)(b).”

     R.C. 2907.02(A)(1)(b) provides:
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     “(A)(1) No person shall engage in sexual conduct with another

who is not the spouse of the offender or who is the spouse of the

offender but is living separate and apart from the offender, when

any of the following applies:

     “* * *

     “(b) The other person is less than thirteen years of age,

whether or not the offender knows the age of the other person.”

     R.C. 2907.01(A) provides that:

     “‘Sexual conduct’ means vaginal intercourse between a male

and female; anal intercourse, fellatio, and cunnilingus between

persons regardless of sex; and, without privilege to do so, 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. Penetration, however slight, is sufficient

to complete vaginal or anal intercourse.”

     Detective Comer testified that in his interview of T.K. on

August 13, 2010, T.K. “indicated that . . . within the past year

that he had put his mouth on [his half-brother’s] penis one time.”

 (Tr. 31.)       T.K. does not argue that such conduct fails to prove

fellatio,    a    form   of   sexual   conduct   in   violation   of   R.C.

2907.02(A)(1)(b).        Rather, T.K. argues that the State’s evidence

fails to prove that the rape offense occurred “on or about July

6, 2010,” the date alleged in the complaint.
                                                                  8

       The State relies on State v. Sellards (1985), 17 Ohio St.3d

169, and other cases that have approved the use of a range between

two dates in charging a sexual offense against young children.

We believe the principle those cases stand for is not implicated

because the complaint instead alleged a specific date, “on or about

July 6, 2010.”

       We agree that the evidence is sketchy.     However, we also

believe that, on both the sufficiency of the evidence and manifest

weight of the evidence standards, State v. Tompkins, 79 Ohio St.3d

380, 1997-Ohio-52, no error is demonstrated.

       Defendant’s admission demonstrates that the rape occurred

during the year prior to August 13, 2010, and July 10, 2010 is

within that period.    The victim’s testimony demonstrates that the

offense occurred at the victim’s house, on the last time the victim

had seen T.K., and that it occurred in the victim’s room.     (Tr.

11.)    The victim also testified that it was “warm” on the day the

offense occurred.     (Id., at 8).   July is a warm-weather month.

The victim’s mother, T.K.’s step-mother, testified that she

discovered the victim and T.K. together in the victim’s room, naked

and in a sexual embrace, on the morning of July 6, 2010.     (Id.,

at 19, 21.)    From the totality of the evidence, the trial court

inferred that the rape offense occurred as charged on or about

July 6, 2010.    (Id. at 48.)
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       As the trier of fact, the court was entitled to make reasonable

inferences from the evidence presented.        T.K. argues that the

inference the court made was not reasonable because there is no

direct evidence that July 6, 2010 was the last date the victim

saw T.K.    He also points out that the victim testified that both

boys slept in the same bedroom the night before, while the victim’s

mother testified that the victim slept in his parents’ bedroom,

and that she discovered the victim with T.K. when she went to T.K’s

bedroom.

       The lack of direct evidence of the date on which the rape

offense occurred is not fatal.     Direct and circumstantial evidence

have like probative values.      State v. Jenks (1991), 61 Ohio St.3d

259.    The particular probative value of circumstantial evidence

depends on the reasonableness of the inference involved.          The

evidence reasonably supports an inference that the rape occurred

on the same date the victim’s mother found the child and T.K.

together.    At least, as the trier of fact, the juvenile court could

so find.

       The variance between the victim’s testimony and his mother’s

concerning where the victim slept the night before does not portray

an abuse of discretion on the part of the juvenile court.         The

court heard both witnesses.       The decision whether and to what

extent to credit the testimony of either is within the discretion
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of the trial court.    State v. Lawson (Aug. 22, 1997), Montgomery

App. NO. 16288.   The court could reconcile any conflict in their

testimonies, so long as the conflict does not render the court’s

finding unreasonable.    The court could conclude that the victim

was mistaken about where he slept the night before, yet find that,

as the victim testified, the act of fellatio occurred in T.K.’s

room when the two were there together.   Combined with the testimony

of the victim’s mother, that permits a finding that the rape

occurred “on or about July 6, 2010,” as charged.

     The second assignment of error is overruled.

     Having sustained the first assignment of error, we will

reverse and vacate the juvenile court’s adjudication and order

of commitment relating to the gross sexual imposition offense.

The final order from which the appeal is taken will otherwise be

affirmed.



FAIN, J. and FROELICH, J. concur.



Copies mailed to:

Johnna M. Shia, Esq.
Mark T. Ross, Esq.
Hon. Anthony Capizzi
