In re E.S.

[Cite as In re E.S., 2022-Ohio-2003.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN RE: E.S. : JUDGES:
:
: Hon. Earle E. Wise, Jr., P.J.
: Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
:
: Case No. 21CAF080041
:
:
:
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Juvenile Division,
Case No. 20060942DL

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 13, 2022

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

MELISSA A. SCHIFFEL WILLIAM T. CRAMER
DELAWARE CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200
ELIZABETH MATUNE Westerville, OH 43082
145 North Union St., 3rd Floor
Delaware, OH 43015
Delaware County, Case No. 21CAF080041 2

Delaney, J.

{¶1} Appellant E.S., a juvenile, appeals from the July 12, 2021 Judgment Entry-

Trial of the Delaware County Court of Common Pleas, Juvenile Division. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the record of appellant’s bench trial

before the juvenile court.

Testimony of Jane Doe

{¶3} This case arose on March 2, 2020, when Jane Doe went to appellant’s

home to watch movies; both were age 17 at the time. Two sexual encounters ensued: the

first was consensual, and the second began consensually but became forcible after Doe

asked appellant to stop.

{¶4} Appellant and Doe were acquaintances but not romantically involved. On

this date, they connected over Snapchat and appellant asked Doe if she wanted to come

to his house to watch movies. She agreed.

{¶5} Appellant lives with his grandparents. Doe arrived at the residence and

appellant and his grandparents were present. Doe and appellant went to a room

described as an office containing a futon and a television. The door was closed; the two

turned on the television and laid down on the futon.

{¶6} According to Doe, appellant “started getting touchy” and asked if she

wanted to have sex; she said yes. The two engaged in sexual intercourse. Eventually

they stopped and left the room because appellant’s Grandmother was preparing dinner.

Grandmother asked Doe to stay for dinner and Doe acquiesced.
Delaware County, Case No. 21CAF080041 3

{¶7} After dinner, appellant and Doe returned to the office, started another

movie, and began a second sexual encounter. Doe testified that she initially consented

to sexual intercourse for the second time.

{¶8} Doe testified in detail about the progress of the second encounter. She was

on her back with appellant on top of her; he flipped her onto her stomach and “things

escalated.” Intercourse became painful and she told appellant to “stop” several times.

Doe clarified that she said “stop” loudly and clearly. Appellant did not stop. Doe testified

she turned over partway and put her hand up, on appellant, to signal him to stop, but he

put her arm down, “pinned” her wrist to the futon, and increased the pace of his sexual

activity. Appellant eventually finished by ejaculating on Doe’s thigh.

{¶9} Doe testified she was exhausted as this occurred and “her body gave out.”

She kept telling appellant to stop but he “went harder and harder and harder and faster

until he was done.” T. 29. She estimated she told him to stop more than ten times. The

television was on, but the volume was not loud and had not impeded their conversation

at any other point.

{¶10} Doe testified she was in a “clouded state of mind” and did not fully

understand what happened. She dressed and left, speaking to both of appellant’s

grandparents on her way out. Appellant walked her to her car. She messaged appellant

on Snapchat later that day and said he held her arm down; he responded, “I know.” She

did not talk to appellant again and unfriended him on Snapchat.

{¶11} Doe weighed the incident in her mind and cried most of the night. The next

day, she was still upset and told friends at school what happened. A teacher contacted
Delaware County, Case No. 21CAF080041 4

Doe’s parents, who picked her up from school and took her to a hospital for a SANE

examination.

{¶12} Detectives questioned Doe and collected her belongings, including clothing

from the night before and her cell phone.

Investigation by the Dublin Police Department

{¶13} While in possession of Doe’s cell phone, a text message from appellant was

received by detectives. Detective Williams of the Dublin Police Department obtained

permission from Doe’s mother to correspond on the phone via text as though he was Doe,

and the following text conversation was later extracted from Doe’s phone. The texts from

Doe’s phone are sent by Williams without appellant’s knowledge.

Texts from appellant’s phone Texts from Jane Doe’s phone
Can I talk to you please
Why??
Please
Because I want to talk about it
You clearly aren’t OK with it
You think? Why did you do it?
I told you
Call me please
I told you no
Didn’t hear
Stop
Ok
U kno that’s bs
I trusted you
And you still can
I said I’m sorry
I said I didn’t mean to
I’m telling you all this not because I want
you to come back but because I mean it
You held me down
Your arm
Do you know how much this hurts me
Look I can’t say or do anything to make
you feel better or to change anything but I
like you. I think you’re amazing. I didn’t
Delaware County, Case No. 21CAF080041 5

mean to hurt you and I would literally
never do it again. And you have my
word.
No I don’t.
But I wish I did
You know you heard me say stop
How can I forgive you when
Ur not even truthful
How can I believe you
I am being truthful
[Jane]
I like you
I didn’t mean to hurt you
I don’t want to do it again
I’m sorry
What are you sorry?
Yes I’m sorry
Do u even call that sex now
No
It means nothing but horrible things to me
I don’t ever want to hurt you again [Jane]
Did you know that was going to happen
when u asked to have sex?
No
It was supposed to be just like the first
time
But I fucked up
The first time what?
We had sex
So u admit u fucked up
Yes I did that yesterday
I fucked up
And I’m sorry
You heard me say stop
I didn’t
I swear to you I didn’t
I know ur not deaf
You’re right
But I didn’t hear you

{¶14} During the ensuing investigation, Williams examined Doe’s phone and

found an earlier exchange with appellant in which he asked Doe, “Hey, are you okay?”
Delaware County, Case No. 21CAF080041 6

and she responded, “Yeah. Why?” Appellant replied, “Just wanted to make sure.” Doe’s

cell phone activity indicated that upon returning home from appellant’s residence, Doe

made several searches in the Safari browser for “define rape” and “definition of rape.”

{¶15} After the cell phone text exchange, Williams interviewed appellant at his

home with Grandmother present. Appellant initially denied sexual contact with Doe,

telling Williams, “We thought about it, we talked about it, but we didn’t.” Williams asked

appellant if he was sure, and appellant responded “I’m positive.”

{¶16} Appellant then asked to speak to Williams alone, and after Grandmother

was out of the room, admitted he and Doe had sex twice. He said Doe consented both

times and he did not hear her say “Stop.” He told Williams, “I told her that I can’t stop

doing something you don’t like if I don’t hear you say that,” and “I have no memory of her

telling me to stop.” When asked about their positions during the second sexual encounter,

appellant said, “She put her hand on my hip. I took her hand off my hip because it made

me feel uncomfortable.” Further, “I asked her. She didn’t say anything.” Appellant denied

pinning Doe’s arm down. Appellant commented to Williams that this would be a “he-said,

she-said case.”

SANE interview and school witness

{¶17} Appellee called Dr. Gail Horner, a pediatric nurse practitioner at Children’s

Advocacy Center and the Director of Nursing Practice at Children’s Hospital, who has

completed more than 3000 physical exams. With Doe, Horner conducted a physical

exam and forensic interview; she also tested Doe for sexually-transmitted diseases. Doe

told Horner the second sexual encounter with appellant was painful and that she told him

to stop several times. During the interview, Doe said the painful sexual intercourse
Delaware County, Case No. 21CAF080041 7

occurred while she was laying on her side. Horner testified that the absence of physical

injury is neither surprising nor dispositive of whether Doe was raped.

{¶18} Appellee called A.M., a school counselor at Doe’s school. A.M. was called

to a lab in early March 2020 because Doe was under a desk, crying. When A.M. made

contact, Doe was no longer crying but began crying during their conversation. Doe

explained she was at a friend’s house and they were making out; they started having sex

and she asked her friend to stop, but he did not stop. Doe asked A.M. if that was bad.

A.M. explained the friend should have stopped if she changed her mind about sex.

{¶19} A.M. explained to Doe that she was required to report their conversation.

Consequently, law enforcement began an investigation and Doe’s parents took her for

the SANE exam. A.M. also contacted Child Protective Services.

Defense case

{¶20} Grandmother testified as a defense witness. The incident occurred at her

house. She said she came into the room at least three times while appellant and Doe

were present to do laundry. She said the door was closed but not fully shut. At first,

appellant and Doe were sitting up; another time they were “kind of leaning.” Grandmother

did not hear or observe any signs of sexual activity. Doe left between 7:15 and 7:30 p.m.,

she thanked Grandmother and complimented the dinner, and did not seem upset.

Grandmother was “shocked” sexual activity took place and did not hear or observe any

signs of a disturbance.

{¶21} Appellant testified on his own behalf. He was 17 at the time of the offense

and knew Doe because they dated each other’s friends in the past. In early March 2020,

he communicated with Doe via Snapchat because he saw she was upset. He invited her
Delaware County, Case No. 21CAF080041 8

to his residence to watch a movie. The two sat on a futon, which was pulled flat.

Appellant’s Grandmother came into the room several times before the pair began having

sex.

{¶22} Appellant asked Doe if she wanted to have sex and she said yes. Doe

removed her clothing. Both were on their sides, facing the wall. Appellant testified that

at one point, Doe said “hold on” because she was out of breath and he stopped. The two

smelled dinner cooking and decided to stop to eat dinner.

{¶23} After dinner, they began to watch a second movie, and appellant asked Doe

if she wanted to have sex again. She said yes and again removed her own clothing.

{¶24} Appellant testified that Doe did not claim to be in any pain. During the

second encounter, she placed her hand between his hip and thigh but didn’t say anything.

Appellant admitted he grabbed her hand, but only because the placement of her hand

made him uncomfortable.

{¶25} Appellant further testified that he asked Doe if she wanted to stop, but she

didn’t say anything. Appellant continued with sexual intercourse and ejaculated on Doe’s

thigh. They watched another ten or fifteen minutes of the movie, then Doe got up to leave.

Appellant testified that he asked her if she “liked it” and she said “yeah.” As she left, she

said “We should do this again.” Appellant testified they had no problems hearing each

other and the movie volume was not overly loud.

{¶26} Appellant testified he lied to Williams in front of Grandmother only because

he was concerned about probation for a prior offense.

{¶27} Appellant was charged with one count of delinquency by means of rape

pursuant to R.C. 2152.02 and 2907.02(A)(2), a felony of the first degree. Appellant was
Delaware County, Case No. 21CAF080041 9

adjudicated delinquent by means of rape following a bench trial and the trial court issued

a judgment entry containing findings of fact and conclusions of law on July 12, 2021. On

August 18, 2021, the trial court issued a judgment entry of disposition ordering a term of

community control including suspended commitments to DYS and the Central Ohio Youth

Center, and residential inpatient treatment at the Butler County Juvenile Rehabilitation

Center.

{¶28} Appellant now appeals from the judgment entries of his conviction and

sentence.

{¶29} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶30} “APPELLANT’S ADJUDICATION OF DELINQUENCY BASED ON A

FINDING OF RAPE WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.”

ANALYSIS

{¶31} Appellant argues his rape conviction is against the manifest weight of the

evidence because Doe did not effectively communicate her withdrawal of consent to

sexual intercourse. We disagree.

{¶32} Juvenile delinquency proceedings are civil, not criminal, but due process

protections still apply. In re Kara C., 5th Dist. Fairfield No. 09-CA-27, 2010-Ohio-306, ¶

10, citing In Re: Gault, 37 U.S. 1, 87 S.Ct. 148 (1967); In Re: Anderson, 92 Ohio St.3d 63

748 N.E.2d 67 (2001).

{¶33} Appellant argues his rape conviction is not supported by the weight of the

evidence. An appellate court applies the same manifest weight standard of review in a

juvenile delinquency case that it applies in an adult criminal appeal. Matter of T.S., 5th
Delaware County, Case No. 21CAF080041 10

Dist. Delaware No. 21 CAF 08 0039, 2022-Ohio-975, ¶ 26, citing In re E.A., 9th Dist.

Summit No. 28106, 2016-Ohio-7281, ¶ 11. When reviewing a weight-of-the-evidence

argument, the appellate court reviews the entire record, weighing the evidence and all

reasonable inferences; considers the credibility of witnesses; and determines whether in

resolving conflicts of evidence, the jury 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, 386, 678 N.E.2d 541. The granting of a new trial “should

be exercised only in the exceptional case in which the evidence weighs heavily against

the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶34} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 189, 552

N.E.2d 180 (1990). The trier of fact “has the best opportunity to view the demeanor,

attitude, and credibility of each witness, something that does not translate well on the

written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶35} Appellant was found delinquent by means of rape pursuant to R.C.

2907.02(A)(2), which states, “No person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or threat of

force.” A person acts purposely when it is the person's specific intention to cause a certain

result, or, when the gist of the offense is a prohibition against conduct of a certain nature,

regardless of what the offender intends to accomplish thereby, it is the offender's specific

intention to engage in conduct of that nature. State v. Schmelmer, 5th Dist. Delaware No.

2020 CAA 11 0049, 2022-Ohio-57, ¶ 72, citing R.C. 2901.22(A).
Delaware County, Case No. 21CAF080041 11

{¶36} It is undisputed that the parties engaged in sexual intercourse, some of

which was consensual. Doe testified the intercourse became forced after she repeatedly

asked appellant to stop. In Schmelmer, supra, 2022-Ohio-57, at ¶ 73-75, we reviewed

the definition of “force” in the context of sexual assault:

In addressing the force-or-threat-of-force language under the

rape and statute, the Supreme Court of Ohio clarified that “[a]

defendant purposely compels another to submit to sexual conduct by

force or threat of force if the defendant uses physical force against

that person, or creates the belief that physical force will be used if

the victim does not submit.” State v. Schaim, 65 Ohio St.3d 51, 600

N.E.2d 661 (1992), paragraph one of the syllabus.

“Force” is defined as “any violence, compulsion, or constraint

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

R.C. 2901.01(A)(1). A victim “need not prove physical resistance to

the offender” in order to demonstrate force. R.C. 2907.05(D).

“‘[T]he amount of force [necessary to prove forcible rape

under R.C. 2907.02(A)(2)] must be examined in light of the

circumstances.’” * * * State v. Runyons, 3d Dist. Union No. 14–91–

30, 1992 WL 136196 (June 9, 1992). “The Supreme Court of Ohio

‘case law demonstrates that the type and amount of force necessary

to purposefully compel a victim to submit by “force or threat of force”

depends upon the victim and the offender's relationship.’ ” Id.,

quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-
Delaware County, Case No. 21CAF080041 12

2837, 2012 WL 2371396, ¶ 41, citing State v. Pordash, 9th Dist.

Lorain No. 04CA008480, 2004-Ohio-6081, 2004 WL 2600461, ¶ 12.

The amount of force necessary “depends upon the age, size and

strength of the parties and their relation to each other.” In re Forbess,

3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, 2010 WL 2488064,

¶ 40, quoting State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304

(1988), paragraph one of the syllabus.

{¶37} In the instant case, Doe testified appellant continued and intensified the

sexual conduct despite her protestations to stop. She placed her hand on his hip to signal

him to stop and he moved her arm, pinning her wrist to the futon.

{¶38} The trial court probed whether Doe’s withdrawal of consent affected an

analysis of whether appellant compelled Doe to submit by force or threat of force. As

appellant acknowledges, rape may occur when a victim has first consented to sexual

activity, and then withdraws that consent. In the instant case, the trial court developed

an analysis of withdrawn-consent rape as follows:

* * * *.

First, the withdrawal of consent must be conveyed in such a

manner that a reasonable person would understand that consent had

been withdrawn. Second, the other person must have a brief time to

comprehend the withdrawal of consent and cease the act. Third, the

other participant must then continue the act through force or

compulsion.

* * * *.
Delaware County, Case No. 21CAF080041 13

Judgment Entry Trial, July 12, 2021, ¶ 24, citations omitted.

{¶39} We do not need to adopt any evaluative test in the instant case to determine

whether appellee established that Doe withdrew consent. When the sexual activity was

no longer consensual and became a forcible act, appellant committed rape. See, State

v. Hartman, 2nd Dist. Montgomery No. 26609, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 32,

appeal not allowed, 146 Ohio St.3d 1515, 2016-Ohio-7199, 60 N.E.3d 7 [“We agree that

the elements of Rape can be established when the two participants start the sexual

encounter on a consensual basis, but the consent is revoked by words, actions or conduct

that clearly communicates non-consent, the defendant fails to respect the change in

consent, and purposely proceeds to engage in sexual conduct through force or threat of

force evidenced by violence, physical restraint, or some type of coercive or threatening

conduct that creates a belief or fear that physical force will be used if the victim does not

consent.”]

{¶40} Our analysis is compatible with that of the trial court, which ultimately

dispensed with parsing the withdrawn-consent analysis because the matter turned upon

the credibility of the witnesses. The trial court found the ultimate issue to be whether

Jane Doe’s testimony that she communicated “non-consent” to appellant is more or less

credible than appellant’s testimony that he didn’t hear her. Entry, ¶ 29-30. Ultimately

the trial court concluded Doe’s testimony was more credible, including her testimony that

appellant pinned her down while continuing sexual activity despite her withdrawal of

consent. Entry, ¶ 31.

{¶41} Appellant acknowledges the Ohio rape statute [R.C. 2907.02] covers

withdrawn-consent situations or “post-penetration” rape. Brief, 11. He argues, though,
Delaware County, Case No. 21CAF080041 14

that “the legal issue is whether [appellant] specifically intended to compel sexual conduct

through force,” and “the factual issue is whether [appellant] understood that [Doe] had

withdrawn consent at some point, but forced [Doe] to continue with sexual conduct

anyhow.” Brief, 15. We note Doe testified that after the second encounter began, she

told appellant to stop and said “no” repeatedly; she also attempted to stop him by raising

her hand to his hip. Nevertheless, she testified, he continued sexual activity at a fast

pace and pinned her wrist to the futon. Doe’s testimony, if believed, supports a conviction

for a charge of rape in violation of R.C. 2907.02(A)(2). State v. Singleton, 5th Dist.

Delaware No. 20 CAA 06 0026, 2021-Ohio-3010, ¶ 32, appeal dismissed, 165 Ohio St.3d

1508, 2022-Ohio-140, 179 N.E.3d 1267.

{¶42} Appellant testified he didn’t hear Doe ask him to stop and that he moved

her hand because the placement made him uncomfortable. The trial court repeatedly

noted in the Entry that Doe was more credible than appellant. See, Entry, ¶ 8-9, fn 6.

The trier of fact may believe some, all, or none of the testimony of each witness, and the

verdict will not be reversed simply because the trier of fact chose to believe some

witnesses over others. Matter of T.S., supra, 2022-Ohio-975, at ¶ 39, internal citations

omitted. The trial court found portions of appellant’s trial testimony “surprising” and

“unbelievable.” Id. The trier of fact is free to reject the accused’s self-serving testimony.

Id., citing State v. Johnson, 9th Dist. Lorain No. 13CA010496, 2015-Ohio-1689, ¶ 15.

{¶43} Further, we note the content of appellant’s text messages and his

statements to Williams support an inference of appellant’s knowledge that he forced Doe

to continue sexual activity. See, Matter of C.Q., 5th Dist. Licking No. 2020 CA 00012,

2020-Ohio-5531, ¶ 36.
Delaware County, Case No. 21CAF080041 15

{¶44} Notwithstanding appellant's arguments, based on the specific facts and

circumstances of this case, we conclude the trial court's conclusion that appellant

purposefully compelled Doe to submit to sexual conduct by force or threat of force is

supported by the weight of the evidence. We are mindful, moreover, that “[c]orroboration

of victim testimony in rape cases is not required.” State v. Meeks, 5th Dist. Stark No.

2014CA00017, 2015-Ohio-1527, 34 N.E.3d 382, ¶ 81, appeal not allowed, 143 Ohio St.3d

1543, 2015-Ohio-4633, 40 N.E.3d 1180, citing State v. Cuthbert, 5th Dist. Delaware No.

11CAA070065, 2012-Ohio-4472, 2012 WL 4474720, ¶ 28 and State v. Johnson, 112 Ohio

St.3d 210–217, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 53.

{¶45} Upon review, we decline to second-guess the credibility determinations the

trier of fact made following the bench trial in this matter. See, Schmelmer, supra. This is

not an “‘exceptional case in which the evidence weighs heavily against the conviction.’”

Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175.

{¶46} The trial court neither lost its way nor created a miscarriage of justice in

convicting appellant of rape, and appellee presented evidence of his guilt beyond a

reasonable doubt.
Delaware County, Case No. 21CAF080041 16

CONCLUSION

{¶47} Appellant’s sole assignment of error is overruled and the judgment of the

Delaware County Court of Common Pleas, Juvenile Division is affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Wise, John, J., concur.