In re D.L.

[Cite as In re D.L., 2012-Ohio-1796.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY

IN THE MATTER OF:
CASE NO. 3-11-08
D.L.,
OPINION
ALLEGED DELINQUENT CHILD.

Appeal from Crawford County Common Pleas Court
Juvenile Division
Trial Court No. A 2102520

Judgment Affirmed

Date of Decision: April 23, 2012

APPEARANCES:

Randall E. Fry for Appellant

Stanley Flegm and Michael J. Wiener for Appellee
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SHAW, P.J.

{¶1} Defendant-Appellant, D.L., appeals the judgment of the Court of

Common Pleas of Crawford County, Juvenile Division, adjudicating him a

delinquent child on one count of rape.

{¶2} On December 10, 2010, the Crestline Police Department filed a

complaint alleging that D.L. was a delinquent child on one count of rape in

violation of R.C. 2907.02(A)(2), a felony of the first degree if committed by an

adult, and in violation of R.C. 2152.02(F). D.L. subsequently entered a denial to

the complaint.

{¶3} The case proceeded to a bench trial on February 4, 2011. At trial, the

parties stipulated to the fact that sexual intercourse occurred between D.L. and

K.J. The only remaining issue for the trial court to determine was whether the

sexual intercourse was committed by D.L. purposefully compelling K.J. to submit

by the use or threat of force.

{¶4} The State presented the testimony of K.J. The defense presented the

testimony of Officer Travis Salyer, Officer Justin Butler, and D.L. K.J. testified

that she is in eighth grade and is fourteen-years-old. K.J. explained that she knows

D.L. because they attend the same high school. She testified that she had contact

with D.L. during the afternoon on August 8, 2010 by sending instant messages to

each other on Facebook. She testified that they were sending messages to each

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other for about fifteen minutes during which D.L. asked her to sneak out of her

house and meet him at Kelly Park. During this conversation on Facebook, K.J.

agreed to meet D.L. at Kelly Park later that night.

{¶5} K.J. testified that she met D.L. at Kelly Park that night. She explained

that she left her house after midnight without the knowledge or permission of her

parents. When she arrived at the park, she saw D.L., and they walked over to the

hill and sat down. She testified that they were talking when a car drove by. K.J.

explained that she and D.L. decided to move to a different location over the bridge

near the riverbank because they did not want to get caught for being out past

curfew.

{¶6} K.J. testified that she and D.L. sat down near the riverbank and were

talking a while longer when she told D.L. that she wanted to leave. K.J. recalled

that D.L. asked her to stay just a little bit longer, so she stayed for another five

minutes. K.J. testified that she again told D.L. she wanted to leave and attempted

to get up from the grass by getting up on her knees. D.L. then gave K.J. a hug and

again asked her to stay longer. K.J. agreed to stay for a couple more minutes and

then again attempted to leave. K.J. recalled that at this point she was only on one

knee and D.L. had pulled her arm down, causing K.J. to lose her balance. K.J.

testified that D.L. then began kissing her and she could not get up from the ground

because D.L. was much bigger than her and her attempts to push him off of her

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were futile.1 K.J. testified that D.L. then covered her mouth, held her down by

applying pressure, and told her to be quiet.

{¶7} K.J. described in detail that D.L. started to undress her, first taking off

her shirt by pulling her tank top down and taking her arms out. She recalled that

D.L. then let go of her mouth and she tried to get up, but D.L. put her hands above

her head, pushed her back on the ground and told her to be quiet. D.L. then

continued to take off K.J.’s shirt. After he removed her shirt, D.L. started to

remove K.J.’s shorts and underwear. K.J. testified that once he pulled down her

shorts and underwear, D.L. then undressed himself.

{¶8} K.J. recalled that at this point D.L. “backed off of [her]” but kept

covering her mouth with his hand. (Trial Tr., p. 14). She also explained that D.L.

had backed off of her to take off her shorts and underwear. However, K.J.

maintained that she could not sit up due to the pressure D.L. was applying while

he covered her mouth. After he undressed himself, K.J. recalled that D.L. then

“started to rape [her].” (Trial Tr., p. 15). K.J. testified that she did not give D.L.

consent to have sexual intercourse with her. K.J. recalled that after D.L. raped her,

she got dressed and started to walk away. K.J. testified that D.L. repeatedly told

her to “not say anything” and that what happened was between the two of them.

(Trial Tr., p. 15).

1
According to the testimony at trial, K.J. weighs 140 pounds and D.L. is six feet tall and weighs 265
pounds.

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{¶9} Shortly thereafter, the teenagers were approached by a police officer

in the parking lot of the park. K.J. testified that D.L. talked to the officer, who

took D.L. home, and that another officer was called to the park to take K.J. home.

When K.J. arrived home, she woke up her mother. The officer told K.J.’s mother

that K.J. was out past curfew with D.L. K.J. admitted that she told neither the

officer nor her parents about the rape that night because she was in shock that

something like that had actually happened to her and she was scared. K.J. recalled

that her parents then yelled at her for being out past curfew and she went to bed.

K.J. testified that as her punishment for violating curfew, she “had to clean the

house and was grounded from everything.” (Trial Tr., p. 17).

{¶10} On cross-examination, K.J. testified that prior to the incident she and

D.L. were friendly at school and said “hi” to each other in the hallways. K.J.

explained that most of their interaction was on Facebook once every two weeks.

K.J. testified that her last contact with D.L. on August 8, 2010, was on Facebook

at 3:00 p.m. and that she did not have any further communication with him prior to

meeting him at the park.

{¶11} K.J. then gave more detailed testimony about her and D.L.’s

interaction with the police officers after the alleged rape had occurred. She

recalled that Daniel told the police officers that he and K.J. were just “talking.”

K.J. explained she then told the officers the same thing because she was scared.

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K.J. remembered the officers shining a flashlight on her and D.L. She testified

that they talked with the police officers for five to ten minutes. K.J. estimated that

she rode in the back of the police cruiser for two to three minutes before arriving

home. K.J. recalled the police officer talked to her mother and gave her a warning

for violating curfew.

{¶12} K.J. testified that on the morning of August 9, 2010, her parents

made her do house work as punishment for violating curfew. She went to

volleyball practice for two hours during the day, and when she got home she did

more chores. She stated that she finally told her parents about the rape around

5:00 p.m. on August 9, 2010, because her father was asking her questions about

D.L. and his age. Shortly thereafter, she reported the rape to the police. She also

testified that she did not say anything to her friends at volleyball practice because

she did not want them to judge her. The State then rested.

{¶13} Officer Travis Salyer of the Crestline Police Department testified that

he was working on August 9, 2010, from midnight to 8:00 a.m. He testified that

when he arrived at Kelly Park, he saw D.L. and K.J. standing on the sidewalk

together and then attempt to hide from him by going behind a building. D.L. then

approached him and told him that nothing was happening, and that the two met at

the park because they had had a fight earlier on the internet. Officer Salyer then

called out to K.J. and she walked out from behind the building. He testified that

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he informed the teenagers it was 1:00 a.m. and they were both out past curfew.

Shortly thereafter, Officer Butler arrived at the park.

{¶14} Officer Salyer testified that K.J. appeared normal, was not crying,

and had no unusual marks, did not appear to be shaken, scared, or upset, but acted

as if she was trying to hide but got caught. He testified that he talked with her for

about ten to fifteen minutes and then took her home. He stated that on the way

home, K.J. told him that she and D.L. were just talking and that nothing out of the

ordinary happened. Officer Salyer testified that once they arrived at K.J.’s house,

he escorted K.J. to her front door and informed her mother that K.J. was caught

violating curfew. He explained that he only gave K.J. a warning because that was

the first time he had been involved with her. Officer Salyer verified that at that

point there were no accusations of rape and he was just handling the situation as a

curfew violation.

{¶15} Officer Justin Butler of the Crestline Police Department testified that

he was working on August 9, 2010, from midnight until 8:00 a.m. He testified

that he received a phone call from Officer Salyer reporting two suspicious people

in Kelly Park and that when he arrived at Kelly Park, Officer Salyer was talking to

two people. Officer Butler explained that they checked the area because there had

been recent problems with people vandalizing the park. He then spoke with D.L.

and took him home because he was in violation of his curfew. Officer Butler

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testified that he observed K.J. and that nothing seemed out of the ordinary, but

admitted that he mostly interacted with D.L. and did not talk very much to K.J.

Officer Butler also testified that at the time he did not think that anything else

besides a curfew violation had taken place and that he had arrived to the park

simply to ensure that no vandalism was done to the park.

{¶16} D.L. was the next witness to take the stand. D.L. testified that he

knows K.J. through school and Facebook. He testified that during their

conversations on Facebook, they discussed meeting up and going for a walk. He

stated that in those conversations he asked her what sorts of activities they would

be doing, and that she responded that “it wasn’t really a big deal if [they] had

anything sexual going on. She said that she’s done it before, so there wasn’t a

really big deal about it.” (Trial Tr., p. 46). D.L. testified that during the Facebook

conversation that took place on the afternoon of August 8, 2010, he asked K.J. if

she wanted to get together later that night, and that she responded that she would

have to wait for her parents to fall asleep before she could leave the house. D.L.

stated that later that night he received a phone call from a restricted number, which

was K.J., saying that she should meet him at the park. D.L. recalled that K.J. had

just called him that one time. D.L. told her that he would like to meet somewhere

else, but that K.J. said it was too far for her and that they ought to meet halfway,

which was Kelly Park.

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{¶17} D.L. recalled riding his bike to the park around 12:15 or 12:30 a.m.

When he met K.J., they went over on a hill and sat in the grass for about ten to

fifteen minutes. D.L. testified that they were talking and kissing, and he asked her

if “this was going to go any farther if she wanted to move somewhere more

private” and she agreed. (Trial Tr., p. 48). D.L. explained that they then moved

across the bridge and down to the riverbank. D.L. recalled that when they sat

down in the new spot, they were kissing again and then she undressed herself and

“climbed on top of [him].” (Trial Tr., p. 49). He testified that he did not get

undressed, but that he had sex with her. D.L. testified that he never held K.J.

down because she was on top of him. After they were finished, she got dressed

and said she had to go home. D.L. admitted that he told K.J. to keep their sexual

relationship a secret between the two of them. However, D.L. maintained the sex

was consensual.

{¶18} They walked up the hill and saw Officer Salyer. D.L. testified that

he told Officer Salyer that he and K.J. were just talking and that they had a fight

on Facebook earlier that day and just wanted to clear things up. D.L. admitted to

making up the story about the fight because he did not want to get in trouble for

violating curfew. He stated that they were talking to Officer Salyer when Officer

Butler arrived, and that Officer Butler loaded up his bike in the car and took him

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home. D.L. testified that he and K.J. were in the park for approximately forty-five

minutes to an hour prior to their encounter with the police officers.

{¶19} On cross-examination, D.L. testified he is sixteen-years-old and a

junior in high school. D.L. explained that this was the first time he met up with

K.J. D.L. recalled that K.J. called him around 12:04 a.m. on August 9, 2010, and

shortly thereafter he left his house and met her at the park around 12:15 a.m. The

State introduced D.L.’s phone records indicating that he received calls at 12:31

a.m. and 2:10 a.m. from an unavailable number. After cross-examination, the

defense then rested.

{¶20} On rebuttal, K.J. testified that she did not have a cell phone on the

date in question, that her parents do not have a cell phone, and that no one in the

household has a phone.

{¶21} The juvenile court found that the “[a]llegations of complaint [are]

sustained by the degree of proof required by Juv.R. 29(E)(4).”2 (JE, March 4,

2011). The court stated the following from the bench.

Well, it is true, obviously, the testimony of the two individuals
involved are in direct opposite as to what was presented. The
[c]ourt obviously has to look outside of that testimony for
potential cooperation (sic), that which is going to lend credibility
to what has been presented. And the critical element is the
testimony of [K.J.] was that the last urging to meeting (sic) at
2
The dissent erroneously suggests that the trial court may have failed to apply the correct burden of proof
beyond a reasonable doubt to this case. This allegation is inaccurate. In its Findings and Judgment Entry
the trial court specifically stated that “the allegations of the complaint were sustained by the degree of proof
required by Juv.R. 29(E)(4). Juvenile Rule 29(E)(4) directs the court to “[d]etermine the issues by proof
beyond a reasonable doubt in juvenile traffic offense, delinquency, and unruly proceedings * * *.”

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Kelly Park was at the Facebook entry at 3:00 p.m. And the
reverse of that was that there was a telephone call from [K.J.] at
approximately 12:04, when the testimony indicates that she did
not have access to a cell phone to be placing that call, which
would obviously retract the testimony of the youth and to the
credibility of [K.J.]

The testimony was essentially that there was force involved in
the occurrence, and obviously the testimony does indicate that
there is a considerable discrepancy between Mr. [D.L.]’s size
and [K.J.]’s size. But based upon what has been presented, the
[c]ourt does find that [K.J.] was more credible, and the [c]ourt
does find [D.L.] to be delinquent by reason of the rape.

(Tr. Trans., p. 60-61.)

{¶22} The juvenile court held a dispositional hearing on March 4, 2011,

after which it placed D.L. on a period of indeterminate intensive probation,

reserving the matter of sex offender registration until completion of a sex offender

assessment. It is from this finding of delinquency that D.L. appeals, presenting the

following assignments of error for our review.

ASSIGNMENT OF ERROR NO. I

THE DELINQUENT CHILD’S/APPELLANT’S
ADJUDICATION OF BEING A DELINQUENT CHILD BY
REASON OF RAPE WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. II

THE DELINQUENT CHILD’S ADJUDICATION OF BEING A
DELINQUENT CHILD BY COMMITTING RAPE WAS NOT
SUPPORTED BY THE EVIDENCE.

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{¶23} Due to the nature of D.L.’s assignments of error, we elect to address

them out of order.

Second Assignment of Error

{¶24} In his second assignment of error, D.L. argues that the judgment was

not supported by sufficient evidence.

{¶25} When an appellate court reviews a record for sufficiency, the

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. State v. Monroe, 105 Ohio St.3d

384, 2005-Ohio-2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1981),

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89. Sufficiency is a test of adequacy, State v. Thompkins,

78 Ohio St.3d 380, 386, and the question of whether evidence is sufficient to

sustain a verdict is one of law. State v. Robinson, 162 Ohio St. 486 (1955),

superseded by state constitutional amendment on other grounds as stated in Smith.

{¶26} Revised Code Section 2907.02(A)(2) sets forth the offense of rape

as, “[n]o person shall engage in sexual conduct with another when the offender

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

Code Section 2901.01(A)(1) defines force as, “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.”

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{¶27} K.J. testified that the sexual conduct in this case was achieved by

D.L. pulling her down to the ground, holding her down by putting his hand over

her mouth and applying his body weight on her. Based on this testimony and the

stipulation of sexual conduct, we find that, viewed in a light most favorable to the

prosecution, a rational trier of fact could have found that elements of rape were

proven beyond a reasonable doubt.

{¶28} Accordingly, D.L.’s second assignment of error is overruled.

First Assignment of Error

{¶29} In his first assignment of error, D.L. argues that the judgment was

against the manifest weight of the evidence. Specifically, D.L. argues that the

State presented no evidence to corroborate K.J.’s testimony, and further that the

evidence does corroborate D.L.’s testimony.

{¶30} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder 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,

superseded by constitutional amendment on other grounds as stated by Smith, 80

Ohio St.3d 89, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1983). A new

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trial should be granted only in the exceptional case in which the evidence weighs

heavily against conviction. Id.

{¶31} However, the role of the appellate court is to engage in a limited

weighing of the evidence introduced at trial in order to determine whether the state

appropriately carried its burden of persuasion. Thompkins, supra, at 390, (Cook,

J., concurring) (emphasis added). The reviewing court must defer to the factual

findings of the trier of fact as to the weight to be given the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, paragraph one of

the syllabus (1967). The underlying rationale for deferring to the trier of fact is

that the trier of fact is best positioned to view the witnesses, to observe demeanor,

gestures and voice inflections and to use those observations to weigh witness

credibility. See Myers v. Garson, 66 Ohio St.3d 610, 615, (1993); Seasons Coal

Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

{¶32} Furthermore, we note that, “ ‘ninety percent of the total meaning of

testimony is interpreted through non-verbal behavior, such as voice inflections,

hand gestures, and the overall visual demeanor of the witness. The witness’

choice of words accounts for only ten percent of the meaning of their testimony.’ ”

State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶ 51 quoting State v.

Evans, 67 Ohio St.3d 405, 410–11 (1993). Thus, the decision whether, and to

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what extent, to believe the testimony of each witness is within the province of the

factfinder. State v. Key, 2d Dist. No. 22609, 2009–Ohio–422, at ¶ 25.

{¶33} Moreover, a defendant is not entitled to a reversal on manifest-

weight grounds merely because inconsistent evidence was offered at trial. State v.

Campbell, 10th Dist. No. 07AP–1001, 2008–Ohio–4831, at ¶ 23. The trier of fact

is free to believe or disbelieve any or all of the testimony presented. “In the event

that the evidence is susceptible to more than one interpretation, a reviewing court

must construe it consistently with the trial court’s judgment.” Gerijo, Inc. v.

Fairfield, 70 Ohio St.3d 223, 226 (1994). Therefore, this Court must not

substitute its judgment for that of the trier of fact on the issue of witness credibility

unless it is patently clear that the finder of fact lost its way. State v. Parks, 3rd

Dist. No. 15–03–16, 2004–Ohio–4023, at ¶ 13.

{¶34} The trial court adjudicated D.L. as a delinquent child by the

commission of rape. As previously mentioned, R.C. 2907.02(A)(2) defines rape

as “[n]o person shall engage in sexual conduct with another when the offender

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

{¶35} The only issue for the trial court to determine was whether D.L.

purposely compelled K.J. to submit by force or threat of force because at trial the

parties stipulated to the fact that K.J. and D.L. engaged in sexual conduct at Kelly

Park. In rendering its decision, the trial court acknowledged that D.L. and K.J.

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presented two irreconcilable accounts of the events that took place at the park.

The trial court explained that it had to “look outside of [D.L.’s and K.J.’s]

testimony for potential [corroboration], that which is going to lend credibility to

what has been presented.” (Trial Tr., p. 60). The trial court specifically stated that

it found the testimony of K.J. to be more credible. The questionable testimony of

D.L. alleging certain phone calls by K.J. on the evening in question was noted by

the trial court as instrumental in making this credibility determination, especially

in contrast to the phone record evidence disputing D.L.’s allegations and the

testimony of K.J. that she had no access to a phone and made no call. There is

nothing arbitrary, unconscionable or unreasonable in the trial court’s reliance on

such evidence in exercising its prerogative to make the credibility determination it

made in this case.

{¶36} The appellant claims the fact that K.J. did not inform the police

officers at the park of any rape allegation and the fact that the officers did not

seem to notice anything unusual about K.J.’s appearance or demeanor at the park,

supports D.L.’s version of events and conclusively impeaches K.J.’s later claim of

rape, which was not made until several hours later, after volleyball practice and

after confronting her father. However overturning the trial court’s decision on this

basis would be merely substituting our own credibility determination of the

witnesses based upon the words of a transcript for that of the trier of fact who

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observed the witnesses testifying in person at the trial, and worse, could result in

deciding the case based solely upon the preconceived and artificial notions of an

appellate court as to how a juvenile rape victim must behave in the first hours

immediately following a sexual assault.

{¶37} In sum, as previously stated, it is only in the exceptional case in

which the evidence weighs heavily against conviction that we reverse a conviction

and grant a new trial. We do not believe that the evidence presented here

constitutes such an exceptional case. Thus, we conclude that the decision of the

trial court to adjudicate D.L. as a delinquent child for committing the offense of

rape was not against the manifest weight of the evidence. D.L.’s first assignment

of error is overruled.

{¶38} For all these reasons, the judgment of the trial court is affirmed.

Judgment Affirmed

PRESTON, J., concurs.

/jlr

ROGERS, J., Concurring in Part and Dissenting in Part.

{¶39} I must respectfully dissent from the majority’s disposition on the first

assignment of error.

{¶40} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

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of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder 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. Thompkins, 78 Ohio St.3d 380,

387 (1997), superseded by constitutional amendment on other grounds as stated

by State v. Smith, 80 Ohio St.3d 89 (1997), quoting State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist. 1983).

Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial to support one side of
the issue rather than the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to their verdict, if,
on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.” (Emphasis sic.)
Thompkins at 387, citing Black’s Law Dictionary 1594 (6th
Ed.1990).

A new trial should be granted only in the exceptional case in which the evidence

weighs heavily against conviction. Id.

{¶41} R.C. 2907.02(A)(2) defines rape as “[n]o person shall engage in

sexual conduct with another when the offender purposely compels the other

person to submit by force or threat of force.”

{¶42} In the case sub judice, I would find that the delinquency adjudication

was not supported by the manifest weight of the evidence. Given the parties’

stipulation as to the sexual conduct, the only issue for the juvenile court was

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whether D.L. used or threatened force. The trial judge explained that his

delinquency by reason of rape adjudication focused on the conflicting testimony

regarding the timing of the last conversation between K.J. and D.L. He found

K.J.’s story that the final conversation occurred via Facebook around 3:00 p.m. on

August 8, 2010 to be more credible than D.L.’s testimony that he received a phone

call around midnight on August 9, 2010 because K.J. testified that she did not

have access to a phone and therefore could not have made the phone call. Because

of this determination and the size differential between D.L. and K.J., the trial court

concluded that the sexual conduct was achieved with the use or threat of force.

{¶43} The issue of the timing of the last conversation is immaterial.

Regardless of whether the last conversation was via Facebook or a telephone call,

K.J. and D.L. both decided to sneak out of their homes and meet up at the park. I

think the trial court placed an inordinate amount of importance on this issue in

light of the overwhelming amount of evidence that supports D.L.’s defense.

{¶44} The testimony of two officers corroborated D.L.’s testimony that the

sexual conduct was consensual. Both officers testified that nothing seemed out of

the ordinary. Officer Salyer further testified that when he arrived at the scene both

K.J. and D.L. were standing on the sidewalk together and then attempted to hide

from him by going behind a building. He further testified that D.L. approached

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him first while K.J. remained hidden. He also testified that K.J. did not seem

upset, was not crying, and did not have red marks on her.

{¶45} The only evidence presented by the State as to the issue of force was

K.J.’s testimony, which was uncorroborated by any other testimony or physical

evidence. K.J.’s testimony fell far short of establishing beyond a reasonable doubt

that she was forcibly raped. She never explained why she tried to hide from the

police within minutes of allegedly being raped, nor did she explain why she failed

to tell Officer Salyer about the rape when he took her home, but supposedly lied to

him by saying that she and D.L. were just talking. Her testimony that her friends

would judge her if they found out about what she did does not support a finding of

rape. Her testimony that she only told her parents about the rape after they had

punished her for sneaking out of the house and after her father’s questioning as to

what she was doing and who D.L. was does not support a finding of rape; if

anything the timing of this allegation suggests fabrication. Further, if K.J.’s

testimony that D.L., who weighs almost twice as much as she, held her down with

his body weight by putting his hand over her mouth is to be believed, there would

have been marks on her face which would have been visible to the officers when

they talked to her in the park under an overhead light. Finally, the manner in

which she claims to have been undressed by D.L., and that he allegedly undressed

himself is incredible, if not impossible.

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Case No. 3-11-08

{¶46} It would appear that the majority would completely avoid

considering the credibility of the witnesses or the weight of the evidence, rather

than conduct the difficult independent analysis required in reviewing the manifest

weight of the evidence.

{¶47} In light of the foregoing evidence, I would find that the greater

amount of credible evidence does not sustain a finding of delinquency by reason

of rape beyond a reasonable doubt.

{¶48} I am further convinced by the fact that the trial court never expressed

its findings in terms of reasonable doubt, but appears to have simply found K.J.’s

testimony to be more credible, as though the trial court misapplied the lower

standard of a preponderance of the evidence. A finding of delinquency by reason

of rape is much too serious a matter to allow any doubt as to the standard applied

by the trier of fact.

{¶49} Although a new trial should be granted only in the exceptional case

in which the evidence weighs heavily against conviction, this is such a case!

{¶50} Accordingly, I would sustain D.L.’s first assignment of error.

/jlr

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