In re R.L.

[Cite as In re R.L., 2014-Ohio-5065.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: R.L. :

: C.A. CASE NO. 26232

: T.C. NO. 2013-6979

: (Civil appeal from Common
Pleas Court, Juvenile Division)

:

:

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OPINION

Rendered on the 14th day of November , 2014.

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TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

BRADLEY S. BALDWIN, Atty. Reg. No. 0070186, 854 E. Franklin Street, Centerville, Ohio
45459
Attorney for Defendant-Appellant

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FROELICH, P.J.

{¶ 1} R.L. appeals from a judgment of the Montgomery County Court of

Common Pleas, Juvenile Division, which found that he had committed a rape of a person

whose ability to resist or consent was substantially impaired, which, if committed as an adult,

would have been a felony of the first degree. The court adjudicated R.L. to be a delinquent

child and committed him to the Department of Youth Services for a minimum of one year

and up to the age of 21; the court suspended the commitment and placed R.L. on probation,

on the conditions that R.L. comply with all court orders, laws, and probationary rules. R.L.

appeals from the trial court’s judgment.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

{¶ 3} On July 30, 2013, R.L., age 9, was accused of raping his mentally and

physically disabled cousin, D.G., an adult woman, in the apartment of D.G.’s mother, R.L.’s

aunt. On October 7, 2013, a complaint was filed against R.L. He filed a request for a

competency evaluation and a motion to suppress statements he had made to the police. A

hearing was held on the motion to suppress, at which the competency issue was also

addressed. The motion to suppress was overruled.

{¶ 4} With regard to the competency issues, the psychologist stated that she had

conducted an extensive evaluation of R.L. She concluded that R.L. had attention deficit

hyperactivity disorder and symptoms of “attention and concentration difficulties” for which

he “could” benefit from medication, but that he was “capable of focusing and participating

in” conversations and legal proceedings. She further stated that R.L. was able to explain his

account of “what had happened” with her assistance; he benefits from having information
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explained slowly and having an opportunity to ask questions. It is unclear from the record

whether R.L. was on medication at the time of the alleged offense. The parties stipulated to

R.L.’s competence based on the psychologist’s conclusions.

{¶ 5} On March 17, 2014, R.L. was tried to the court. On March 24, 2014, the trial

court found R.L. responsible for the commission of rape, as alleged in the complaint. On the

basis of that disposition, on May 1, 2014, the trial court found R.L. to be a delinquent child.

The trial court committed R.L. to the Department of Youth Services, as described above; his

commitment was suspended and he was placed on probation.

{¶ 6} R.L. appeals from the trial court’s order of disposition, raising four

assignments of error.

{¶ 7} R.L.’s first two assignments of error relate to the denial of his motion to

suppress.

APPELLANT’S MOTION TO SUPPRESS WAS IMPROPERLY

OVERRULED BECAUSE HIS INCRIMINATING STATEMENTS WERE

OBTAINED DURING A CUSTODIAL INTERROGATION WITHOUT

BEING AFFORDED MIRANDA WARNINGS.

APPELLANT’S MOTION TO SUPPRESS WAS IMPROPERLY

OVERRULED BECAUSE HIS STATEMENTS WERE MADE

INVOLUNTARILY.

{¶ 8} R.L. contends that his statements to the police were made without the

benefit of Miranda warnings, although he was in custody, and that his statements were not

voluntarily made. He asserts that the trial court erred in denying his motion to suppress the
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statements.

{¶ 9} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the

credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498

(2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30.

Accordingly, when we review suppression decisions, we must accept the trial court’s findings

of fact if they are supported by competent, credible evidence. Retherford at 592. “Accepting

those facts as true, we must independently determine as a matter of law, without deference to

the trial court’s conclusion, whether they meet the applicable legal standard.” Id.

{¶ 10} At the suppression hearing, Police Officer Kim Delong testified about the

events of July 30, 2013, when she responded to an apartment complex in her jurisdiction.

She initially responded to the area on a different case but, after she arrived, she became

embroiled in a conflict involving the parties to this case. R.L.’s parents were present,

claiming that he had been assaulted by his aunt (“Aunt”), and Aunt claimed that R.L. had

sexually assaulted her daughter, D.G.

{¶ 11} Because many people were nearby, Police Officer Delong asked R.L. if he

would like to speak with her more privately, due to the “sensitive topic.” When R.L.

answered affirmatively, Delong made eye contact with R.L.’s mother, who gestured in a

manner that indicated to Delong that she consented to the conversation. Delong walked a

short distance away with R.L., where they had a conversation that lasted approximately 30

minutes and covered both the alleged assault by Aunt on R.L. and R.L.’s alleged assault on

D.G. According to Delong, she and R.L. were standing approximately 15 to 20 feet away
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from R.L.’s mother during this conversation. They stood in front of Delong’s cruiser, but

R.L. was never handcuffed or placed inside the cruiser.

{¶ 12} Delong testified that the conversation was not “adversarial,” commenting that

“he’s nine” and that she brought the conversation “down to [an] age appropriate” level. She

did, however, “challenge” R.L. on his version of events when his statements were

inconsistent with other facts known to her at that time.

{¶ 13} According to Delong’s testimony at the suppression hearing, the incident

began when R.L.’s aunt learned from R.L. that police were allegedly looking for people with

“weed” in the apartment complex; Aunt, afraid that her 18-year-old son, “Cousin,” might get

in trouble, left the apartment to look for him, and R.L. left with her. However, R.L. returned

to the apartment, where D.G. had been left alone, before Aunt did. The parties dispute what

happened while R.L. was alone in the apartment with D.G.

{¶ 14} Recounting her conversation with R.L., Officer Delong testified that he had

provided a very detailed recollection of the events preceding his own return to the apartment

and after Aunt returned to the apartment, but he told several different stories about what had

happened in the apartment in between, at the time of the alleged assault. In his first account

to Delong, R.L. claimed that he went back into the apartment to spend time with Cousin (the

victim’s brother) and Cousin’s friends. DeLong expressed doubt about this version of

events, because she knew from other witnesses that Cousin and his friends had not been in

the apartment at that time. R.L. then claimed that, when he was in the apartment, he had

watched television on the couch while D.G. stayed in her room, and he had no contact with

her. Next, R.L. stated to Delong that Cousin and his friends had made him (R.L.) take
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D.G.’s diaper off, and then Cousin had done “nasty things” to D.G. in her bedroom, which

R.L. observed from the couch. (Delong noted in her testimony that it was not physically

possible to see into D.G.’s bedroom from the couch in the main room of the apartment, as

R.L. claimed he had done.) R.L. also stated that Cousin had taken D.G.’s diaper off and had

“put his thing * * * in her butt.” Finally, R.L. stated that he could not remember what had

happened when he returned to the apartment. DeLong testified that R.L. gave a detailed

account of the activities “prior to him being in the apartment alone with [D.G.]; he was very

detailed after [Aunt] walked in and saw what she saw; but the part in the middle where he

was upstairs with [D.G.] by himself, he told me he couldn’t remember.”

{¶ 15} After Delong and R.L. had been talking for about 30 minutes, R.L.’s mother

(“Mother”) approached them. When R.L. and Delong told Mother that R.L. did not

remember some of the events, Mother “barked” at R.L., told him that he did remember, and

encouraged R.L. to be honest with Delong. Delong testified that Mother was not rude or

disrespectful to her and did not seem upset that Delong had talked with R.L.

{¶ 16} On cross-examination, Delong stated that she had not inquired of R.L.

whether he had previously dealt with police officers, that she had not informed him of his

Miranda rights during their conversation, and that he had not been in custody during their

conversation. R.L. was released to Mother when the conversation ended. Delong

acknowledged that, when she had asked to speak with R.L., she had not specifically stated

whether she intended to talk with him about the alleged assault (on him by Aunt), the alleged

rape of D.G., or both.

{¶ 17} “It is well-settled that many constitutional protections enjoyed by adults also
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apply to juveniles. One such constitutional protection is the privilege against

self-incrimination. See In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.

Under the Fifth Amendment to the United States Constitution, no person shall be compelled

to be a witness against himself. In order to ensure that this right is protected, statements

resulting from custodial interrogations are admissible only after a showing that the procedural

safeguards have been followed. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct.

1602, 16 L.Ed.2d 694.” In re Haubeil, 4th Dist. Ross No. 01CA2631, 2002-Ohio-4095, ¶

9.

{¶ 18} Police are not required to give Miranda warnings to every person they

question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d 426,

440, 678 N.E.2d 891 (1997); State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927

N.E.2d 632, ¶ 49 (2d Dist.). Miranda warnings are required only for custodial

interrogations. Biros at 440. Miranda defined custodial interrogation as “questioning

initiated by law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda at 444. “The ultimate

inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of movement’

of the degree associated with a formal arrest.” Oregon v. Mathiason, 429 U.S. 492, 495, 97

S.Ct. 711, 50 L.Ed.2d 714 (1977). The inquiry whether a person is subject to custodial

interrogation focuses upon how a reasonable person in the suspect’s position would have

understood the situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82

L.Ed.2d 317 (1984). The subjective views of the interviewing officer and the suspect are

immaterial to the determination of whether a custodial interrogation was conducted.
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Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); Hatten

at ¶ 50.

{¶ 19} Officer Delong’s interaction with R.L. did not have any indicia of a

custodial interrogation. Although Mother did not participate in the conversation, she

consented to it, she was in the immediate vicinity, and she was permitted to enter the

conversation when she sought to do so. She was visible to R.L. throughout the conversation.

Moreover, the conversation occurred outside, R.L. was not confined or constrained in any

way, and the trial court credited DeLong’s testimony that R.L. had desired to speak with her

“privately.” After the questioning, R.L. was not placed under arrest and was allowed to go

home with his parents. There was no basis to conclude that R.L. had been taken into custody

or otherwise deprived of his freedom during the conversation; therefore, the trial court

reasonably concluded that R.L. had not been in custody when his statements were made.

The statements therefore were not subject to suppression under Miranda.

{¶ 20} R.L. also argues that his statements should have been suppressed because

they were not voluntarily made.

{¶ 21} Separate from the issue of compliance with Miranda in custodial

interrogations is the voluntariness of the pretrial statement. In re N.J.M., 12th Dist. Warren

No. CA2010-03-026, 2010-Ohio-5526, ¶ 18, citing State v. Chase, 55 Ohio St.2d 237, 246,

378 N.E.2d 1064 (1978); State v. Patterson, 2d Dist. Montgomery No. 20977,

2006-Ohio-1422, ¶ 21. “Even where Miranda warnings are not required, ‘a confession may

[still] be involuntary [and excludable] if on the totality of the circumstances, the defendant’s

will was overcome by the circumstances surrounding the giving of the confession.’ ”
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(Bracketed material in original). In re N.J.M. at ¶ 18, citing State v. Fille, 12th Dist.

Clermont No. CA2001-08-066, 2002-Ohio-3879, ¶ 15 and Dickerson v. United States, 530

U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); Patterson at ¶ 21. Because of R.L.’s

youth, the voluntariness of his statements must be examined closely.

{¶ 22} The burden is on the prosecution to prove by a preponderance of the evidence

that a defendant’s confession is voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct.

619, 30 L.Ed.2d 618 (1972); State v. Knight, 2d Dist. Clark No. 04-CA-35, 2008-Ohio-4926,

¶ 107; State v. Phillips, 2d Dist. Montgomery No. 18049, 2000 WL 1133249, * 3 (Aug. 11,

2000). The totality of the circumstances analysis is triggered by evidence of police coercion.

State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988); Phillips at * 3. Coercive

police activity is a necessary predicate to the finding that a suspect involuntarily confessed.

Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

{¶ 23} Although we recognize that R.L. did not “confess” to any crime, the

inconsistency of his account of the events surrounding the alleged rape was used by the State

as evidence of his guilt. Thus, we apply the same standard to our analysis.

{¶ 24} As in other cases involving involuntary statements, a court must look at the

totality of circumstances in deciding whether a juvenile’s pretrial statement was involuntarily

induced. These include “the age, mentality, and prior criminal experience of the accused; the

length, intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.” (Internal quotations and citations

omitted.) State v. Frazier, 115 Ohio St.3d 139, 873 N.E.2d 1263, 2007-Ohio-5048, ¶ 112.

Also, “special caution” should be given to a review of a juvenile’s pretrial statement,
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admission or confession. In re N.J.M. at ¶ 19, citing In re Gault, 387 U.S. 1, 45, 87 S.Ct.

1428, 18 L.Ed.2d 527 (1967). See also State v. Davis, 56 Ohio St.2d 51, 54, 381 N.E.2d 641

(1978) (finding that “scrupulous attention” must be given regarding the issue of voluntariness

in the case of a minor); In re Goins, 137 Ohio App.3d 158, 162, 738 N.E.2d 385 (12th

Dist.1999) (noting that waivers in the juvenile context require “close scrutiny” since their

validity is affected by age, emotional stability and mental capacity).

{¶ 25} Care must be taken to make sure that the juvenile’s statement was not the

product of coercion or suggestion and that it was not elicited due to the juvenile’s ignorance

of his rights or as the result of adolescent fantasy, fright, or despair. In re Marvin M., 383

Ill. App. 3d 693, 705, 890 N.E.2d 984 (2008), citing In re G.O., 191 Ill.2d 37, 54, 727 N.E.2d

1003 (2000). Particularly with regard to juveniles, appropriate additional factors in

considering the totality-of-the-circumstances are whether the juvenile, either before or during

the questioning, had the opportunity to consult with an adult interested in his welfare;

whether the police prevented the juvenile from consulting with a concerned adult; whether

the police frustrated an adult’s attempt to confer with the juvenile, and the presence of police

trickery and deceit. Id., citing People v. Minniti, 373 Ill.App.3d 55, 68, 867 N.E.2d 1237

(2007). But no one factor is per se coercive without reference to its factual context; coercion

can only be defined relative to the characteristics of the individual. People v. Weiss, 102

Misc. 2d 830, 833-34, 424 N.Y.S.2d 844, 847 (N.Y.Sup.Ct. 1980), citing Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972).

{¶ 26} Although R.L.’s motion to suppress lists many factors that may weigh on the

decision whether statements were voluntarily made, such as “coercive police activity,” the
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length and intensity of the interrogation, and the existence of physical deprivation and

inducement, the evidence does not establish that any of these factors was present in this case.

R.L. was questioned for 30 minutes, but there was no indication that his statements had been

coerced or involved physical deprivation. As stated above, his parents were not directly

involved in the conversation with Officer Delong, but they were nearby and were not

purposefully excluded from the conversation. R.L.’s parents were not prevented from

conferring with him, or vice versa, and no “police trickery” or deceit was alleged or shown.

No evidence was developed about R.L.’s experience, if any, with the police.

{¶ 27} If we were to conclude, under the facts of this case, that R.L.’s statements to

the police were involuntary, that conclusion would necessarily be based solely on his age,

because there are no other factors upon which to base such a finding. In other words, we

would essentially hold that, as a matter of law, a juvenile of the age of nine cannot, by virtue

of his or her age, have a voluntary interaction with the police, even with a parent’s consent.

The determination whether such a per se rule is appropriate in Ohio should be left to the

legislature or the Supreme Court.

{¶ 28} Under the facts of this case, the police did not act coercively, employ

deprivation or inducement, play on R.L.’s fears or inexperience, or prevent the involvement

of his parents while he was being questioned. He also was not in custody or otherwise

isolated from his parents, except that R.L. and his mother consented to Officer Delong’s

having the conversation with R.L. a short distance away due to the sensitive nature of the

matters to be discussed. Even assuming that R.L. had no prior experience with law

enforcement or the criminal justice system, and taking into account his youth, we find no
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basis to conclude that the trial court erred in concluding that his statements were voluntarily

made.

{¶ 29} The first and second assignments of error are overruled.

{¶ 30} R.L.’s third and fourth assignments of error state:

APPELLANT’S ADJUDICATION WAS BASED UPON

INSUFFICIENT EVIDENCE PRESENTED AT TRIAL.

APPELLANT’S ADJUDICATION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 31} R.L. asserts that his convictions were supported by insufficient evidence and

were against the manifest weight of the evidence.

{¶ 32} A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a matter

of law. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “An appellate

court’s function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. In contrast, “a weight of the evidence argument

challenges the believability of the evidence and asks which of the competing inferences

suggested by the evidence is more believable or persuasive.” State v. Wilson, 2d Dist.
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Montgomery No. 22581, 2009-Ohio-525, ¶ 12.

{¶ 33} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,

1997). However, we may determine which of several competing inferences suggested by the

evidence should be preferred. Id. The fact that the evidence is subject to different

interpretations does not render the conviction against the manifest weight of the evidence.

Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest

weight of the evidence only in exceptional circumstances. State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 34} R.C. 2907.02(A)(1)(c), the offense alleged in the complaint against R.L.,

proscribes rape, as follows: “No person shall engage in sexual conduct with another who is

not the spouse of the offender * * *, when * * * [t]he other person’s ability to resist or

consent is substantially impaired because of a mental or physical condition or because of

advanced age, and the offender knows or has reasonable cause to believe that the other

person’s ability to resist or consent is substantially impaired because of a mental or physical

condition or because of advanced age.” “Sexual conduct” is defined as “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.”

R.C. 2907.01(A).
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{¶ 35} R.L. contends that the State failed to establish the elements of sexual

conduct, particularly, that any penetration occurred which would constitute “intercourse” or

“insertion.”

{¶ 36} At the adjudicatory hearing, the State presented the testimony of one the

D.G.’s teachers, Aunt, and Officer Delong. The teacher and Aunt testified to D.G.’s

physical and mental condition and disabilities, including cerebral palsy, “MRDD,” and

behavioral problems. The teacher stated that D.G. was “multiply disabled” and nonverbal,

with severe cognitive delays and limited motor skills. D.G. uses “very limited words” and

otherwise communicates through limited sign language and picture cards. D.G.’s education

focused on such goals as “completing a task without aggression, expressing herself without

aggression.” The teacher stated that D.G. functions at the level of a 24- to 26-month-old

child. She can walk and move around, but becomes aggressive when she does not want to

do something, and can be overwhelmed by noises and sights. D.G. does not care for her own

hygiene, wears a diaper, and does not dress herself. Both Aunt and the teacher testified that

D.G. does not like to be touched.

{¶ 37} Aunt testified that she lives in an apartment in a large apartment complex

with her daughter, D.G., age 20, and her son, Cousin, age 18. On July 30, 2013, Aunt’s

nephew, R.L., had been staying with her for four days, because his parents did not have any

food. R.L. had stayed with his aunt on prior occasions. Cousin worked in the apartment

complex office, and he was in and out of the apartment throughout the day. Aunt, R.L. and

D.G. were home all day.

{¶ 38} In the afternoon, R.L. asked if he could play outside, and Aunt began to
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cook a meal for D.G. R.L. returned from playing at a nearby park and reported to Aunt that

police officers were outside and that a group of boys smoking “weed” was about to get

arrested. Apparently fearing that Cousin might get in trouble with the police, Aunt left the

apartment with R.L. to look for Cousin.

{¶ 39} R.L. returned to the apartment after only a few minutes; Aunt gave varying

accounts about how long she was gone from the apartment. In her statements to the police

that day, she stated that she had been gone only a few minutes, but at trial she testified that

she was gone 20-25 minutes. Aunt explained the discrepancy by citing the chaos of the

“crime scene,” her need to get her daughter to the hospital, and her fear that she might get in

trouble for leaving D.G. alone. In any event, when she returned to the apartment, she called

out for R.L. and got no response. She walked down the apartment hallway toward D.G.’s

room and began to hear a “certain sound” that D.G. makes when “something is wrong;” Aunt

described the sound as “bee bee bee.” Aunt testified that, when she entered D.G.’s room,

R.L. “had my daughter in a doggie position. Her diaper is completely off. Her shorts is

down. His clothes is completely off. His underwear is down to his legs. And when I

walked in, he’s pulling out of her.” Aunt explained that the “doggie position” meant that

D.G. was “bent over her bed.” Aunt testified that R.L. had been “pulling out,” although she

could not tell whether R.L.’s penis had been in D.G.’s vagina or anus; his penis was erect,

“fully-on hard, no bigger than my middle finger.” Aunt acknowledged that D.G. had been

bent over toward the bedroom door, so that she (Aunt) could not see the point of penetration,

but Aunt was certain that R.L. had penetrated D.G. and was “pulling out” when she came into

the room.
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{¶ 40} After Aunt walked into the room, R.L. began apologizing, and Aunt “lost

it,” yelling, crying, screaming, and “whooping” R.L. Aunt tried to call her parents, R.L.’s

grandparents, to pick R.L. up, then attempted to call the police, but R.L. knocked the phone

out of her hand repeatedly, stating that he did not want to go home. Cousin also came home

around this time with some friends; when he heard from Aunt what had happened, his friends

had to restrain him from assaulting R.L. The grandparents came to the apartment and took

R.L. to his parents’ home. Aunt never completed a call to the police.

{¶ 41} Aunt denied that Cousin had ever been accused of sexually inappropriate

conduct toward R.L.

{¶ 42} Officer Delong testified that, when R.L. got to his parents’ home, the parents

became upset at his injuries and returned to the apartment complex, with R.L., to confront

Aunt. Delong testified, as she had at the suppression hearing, to Mother’s consent to

Delong’s interview with R.L., R.L.’s detailed accounts of the events before and after his time

in the apartment with D.G., and R.L.’s multiple inconsistent accounts of what had happened

inside the apartment. As described in the suppression hearing testimony, Delong recounted

R.L.’s claims that he had watched television in a different room from D.G. and that Cousin

and his friends had assaulted D.G., with or without making him take her diaper off.

According to Delong, R.L.’s demeanor during their conversation varied from “matter of fact”

to “lackadaisical” to “distracted.” He claimed not to know why Aunt had “whooped” him.

{¶ 43} R.L.’s mother testified for the defense. Mother stated that R.L. was in the

4th grade and age 10 at the time of the hearing (age 9 at the time of the incident), that he had

learning disabilities, including ADHD, and that he had an IEP at school. She further
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testified that R.L. sometimes had difficulty recalling events and that he had not yet reached

puberty at the time of this incident. Mother testified that she called the police on July 30,

2013, when she saw contusions and bruises on R.L.’s face, which he said had been inflicted

by Aunt. Mother also testified that there had been an allegation of “sexual

inappropriateness” between Cousin and R.L. when R.L. was 3 years old, and that she

(Mother) had discussed this incident with Aunt.

{¶ 44} The trial court found R.L. responsible for the commission of rape, as alleged

in the complaint.

{¶ 45} Aunt’s testimony, if believed, provided sufficient evidence to support the

trial court’s adjudication. Based on what she had witnessed, Aunt expressed no doubt that

R.L. had penetrated D.G., and this was a reasonable inference based on his position and the

erectness (according to Aunt) of his penis, which he seemed to be withdrawing from D.G.’s

vagina or anus as Aunt entered the room. The trial court did not abuse its discretion in

crediting this testimony. The discrepancies between Aunt’s original statement to the police

and her trial testimony as to he length of time for which she left the apartment did not compel

the court to reject her testimony in its entirety; some confusion over the details was

understandable in such a situation, and Aunt offered explanations for those discrepancies.

Moreover, there was no credible evidence that Cousin had been the perpetrator of the alleged

rape, notwithstanding Mother’s claim that Cousin had behaved inappropriately with R.L.

many years earlier. The evidence supported the trial court’s judgment, and its disposition

was not against the manifest weight of the evidence.

{¶ 46} The third and fourth assignments of error are overruled.
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{¶ 47} The judgment of the trial court will be affirmed.

..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Tiffany C. Allen
Bradley S. Baldwin
Hon. Anthony Capizzi