In re B.J.

[Cite as In re B.J., 2021-Ohio-3926.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

IN RE B.J. :
: No. 110223
A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: November 4, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-19-115037

Appearances:

Rachel A. Kopec, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Alicia Harrison, Assistant Prosecuting
Attorney, for appellee.

MARY J. BOYLE, A.J.:

Defendant-appellant, B.J., appeals the juvenile court’s adjudications

of delinquency and disposition. He raises five assignments of error for our review:

1. The record does not support the Journal Entry dated December 18,
2020.

2. The court abused its discretion by sustaining an objection based on
propensity of the evidence.
 3. The Trial Court erred as a matter of law in finding the Appellant
delinquent when there was not sufficient evidence to support the
convictions.

4. The manifest weight of the evidence did not support the convictions.

5. Any convictions should merge for the purposes of sentencing as
allied offenses of similar import.1

Finding merit to the fifth assignment of error, we vacate the juvenile

court’s disposition order and remand for resentencing.

I. Procedural History and Factual Background

In December 2019, B.J. was charged in juvenile court with five

counts: Count 1, rape in violation of R.C. 2907.02(A)(2), a first-degree felony, by

engaging in vaginal intercourse with Jane Doe by force or threat of force; Count 2,

rape in violation of R.C. 2907.02(A)(1)(c), a first-degree felony, by engaging in

vaginal intercourse with Jane Doe knowing that her ability to resist or consent was

substantially impaired; Count 3, rape in violation of R.C. 2907.02(A)(2), a first-

degree felony, by engaging in cunnilingus with D.C. by force or threat of force; Count

4, rape in violation of R.C. 2907.02(A)(1)(c), a first-degree felony, by engaging in

cunnilingus with Jane Doe knowing that her ability to resist or consent was

substantially impaired; and Count 5, attempted rape in violation of

“R.C. 2923.02/2907.02(A)(2),” a second-degree felony, by attempting to engage in

vaginal intercourse with Jane Doe by force or threat of force.

1 B.J. raised the first four assignments of error in his appellate brief, and he raised
the fifth assignment of error in response to this court’s sua sponte order for supplemental
briefing, as discussed more fully below.
 A bench trial was held in December 2020. The parties stipulated to

the authenticity of a DNA report and that B.J.’s date of birth was November 12, 2001,

showing that he was 17 years old at the time of the alleged offenses. During opening

statements, the state clarified that the Jane Does in the indictment refer to the same

victim, D.C., and defense counsel stated that “this is a consent case.” The state

presented three witnesses: D.C., Detective John Finucan, and a SANE nurse.

D.C. testified that in August 2019, she reserved two rooms in a hotel

in Beachwood to celebrate her 20th birthday and the birthday of her friend, Duane.

She explained that she reserved a room for herself for three nights and a room for

Duane for two nights. She said that they hosted parties in Duane’s room, and she

slept in her room. She stated that as she was getting ready for the party on the

second night, Duane came into her room and asked if his friend Kyrie could bring

his friend Buddy to the party that night.2 D.C. testified that she did not know Buddy

and had never met him, but it was a celebration, and she “didn’t really care” if Kyrie

brought Buddy. She said she later learned that Buddy’s name was B.J., and she

identified B.J. in the courtroom.

D.C. explained that when she had finished getting ready for the party,

she went to Duane’s room. B.J. was already there, and he was asleep. A group of

D.C.’s and Duane’s friends were also in Duane’s room, and they started drinking

alcohol and socializing. She said that eventually B.J. woke up and joined in the

2 D.C. initially referred to Kyrie as “Khalil” and said she wasn’t sure “Khalil” was
his name. On cross-examination, defense counsel asked if his name was “Kyrie,” and D.C.
said that Kyrie was the correct name, not Khalil.
conversation. She explained that she and B.J. had a “regular conversation” about

her children and interests, “just normal get-to-know-you questions the first time you

meet somebody.” D.C. stated that she was not looking for a relationship, she did not

feel interested in B.J., and she was treating him as a new friend. She described the

conversation as “very innocent, very just get to know you.” She said, “there was

really no real, like, flirting back and forth.” She explained that B.J. told her she was

pretty a few times, but she pretended like she did not hear the compliment because

she did “not like turning people down like that.”

D.C. testified that she drank a lot of alcohol throughout the night, and

around midnight, she realized that she was losing her balance. She knew that she

was drunk and that it was time for her to leave. D.C. told Duane she was leaving,

and B.J. offered to walk her to her room so they could “finish chatting.” D.C. said

she “didn’t mind” but made it clear that she was going to sleep. She stated that when

they got to the door of her room, she went inside her room and told B.J. that she was

going to sleep. She said he “insisted” on finishing their conversation and “pushed”

the door so he could come in. She clarified that he did not push the door

“aggressively.” D.C. testified that she said, “okay, but I’m getting ready to go to

sleep.”

D.C. testified that she let B.J. in her room, changed into her pajamas

in the bathroom, and got into bed. At some point, Duane knocked on her door and

asked if everything was okay, and she responded that everything was fine. She

testified that B.J. stood on the opposite side of the room from her bed and continued
talking. She said she tried to listen to what he was saying, but it sounded like

mumbling to her because she was falling asleep. D.C. explained that as she was

falling in and out of sleep, B.J. kept talking and “getting closer to the bed” until he

was standing right next to her bed. She said that she apologized to him for “falling

asleep in the middle of a conversation,” but that she was tired. She testified that she

did not explicitly tell him to leave because she was “in and out of sleep,” but she

thought it was “common sense” that she wanted him to leave. She said she fell back

to sleep.

D.C. testified that the next time she woke up, B.J. was in bed with her

and was “yanking” her leg. She said that he removed her underwear. She explained

that B.J. “started getting closer” to her, and she tried to push him away with both of

her arms and “kept moving” to try to get him away. She testified that B.J. was not

talking anymore and was “straight action.” She said he pulled her closer and tried

to force her to perform oral sex. D.C. stated that she pulled her head back with as

much force as she could. She said that B.J. then changed positions and penetrated

her vaginally, holding her waist down. D.C. testified that she tried to “scoot” away

from him. She said she told him “no” multiple times and “stop” at least once. She

said that B.J. then “turned” her around and tried to penetrate her vaginally in a

different position. She said he had his thumb on her back holding her down. As she

was describing the encounter, D.C. stopped to apologize to the court. She explained

that she “chuckle[s]” when she is nervous and that she was “really nervous.”
 D.C. explained that at one point she was “hanging off of the bed” and

tried to “grab” hold of the nightstand next to the bed to “try[] to get out of there.”

The state submitted as exhibits photos of the hotel room. D.C. pointed out that the

photo showed that the drawer of the nightstand was slightly opened. She explained

that she had been grabbing at the drawer of the nightstand. She said she was crying

and “kept saying no.” She explained she was scared, “literally balling [her] eyes out,”

and did not know how to get out of the situation. She explained she felt “stuck” and

eventually went “still” to “get it over with.” She said that B.J. eventually got off of

her, and she “passed out.” She clarified that she was still drunk, and she “went

straight back to sleep.”

D.C. stated that when she woke up, B.J. was “still there.” He was

asleep. She said she “felt disgusted” and took a shower. She then got dressed and

went “straight to Duane’s room.” She said Duane did not answer the door, so she

went back and forth between his room and the hotel cafe a few times to try to find

him. She stated that she kept knocking on Duane’s door, and he eventually

answered, half asleep. She testified that she kept repeating that he needed to get

B.J. out of her room. She said Duane was confused, and he took her to the cafe for

her to explain what was going on because she looked “scared.” D.C. testified that

Kyrie was at the cafe, and she told both Kyrie and Duane that B.J. “forced himself

on [her,]” that she “didn’t want it to happen,” and she did not know “what the heck

just happened last night.” She urged them to get B.J. out of her room, but they did

not.
 D.C. testified that Duane wanted more details, so they left the cafe and

went into the hotel hot tub to talk about what happened. Eventually, B.J. came

outside and approached them in the hot tub. D.C. said she told Duane it was time

to check out of the hotel and leave. She said Duane asked her if there was anything

she needed, and she responded she was going to leave the hotel with Duane, Kyrie,

and B.J. because she wanted to learn where Kyrie and B.J. were staying. She

explained that B.J. was a stranger, and she wanted “some type of information” that

she could give to the police or a friend. She testified that the four of them got into

Duane’s car together and drove “in silence” until Duane dropped off Kyrie and B.J.

at Kyrie’s apartment.

D.C. said that Duane eventually dropped her off back at the hotel

because she still had her room reservation for one more night. D.C. testified that

from her hotel room, she called her daughter’s father, whom she described as her

best friend, and he told D.C. that she should call the police. She said she called the

police, and they came to her hotel room. She stated that an ambulance then took

her to the hospital, where a rape kit was performed. D.C. explained that her mom

met her at the hospital, and when D.C. had completed the rape kit and spoken with

a detective, she and her mom went back to the hotel. D.C. explained that sometime

later, police had her complete a photo lineup, and she immediately recognized B.J.’s

photo. The state submitted the photo lineup as an exhibit.
 On cross-examination, D.C. agreed that she had a conversation with

B.J. on the phone sometime “way before” the party. She explained that she had been

on a phone call with Duane, and B.J. was physically present with Duane at the time.

Defense counsel asked D.C. if she remembered telling a detective that

B.J. had been flirting with her during the party. D.C. responded that she recognized

that B.J. was trying to flirt with her but that she was not interested. She also agreed

that at the time of the party, she was still interested in reconnecting with her

daughter’s father. She agreed that she did not try to scream, scratch, slap, or poke

B.J. in the eyes. She also agreed that she told a detective that B.J. overpowered her

but “never held [her] down.”

Next, the state called Detective Finucan, who testified via Zoom.

Detective Finucan, a Beachwood police officer, testified that on September 1, 2019,

around 3:00 p.m., he responded to D.C.’s report of sexual assault at the hotel. He

stated that he collected evidence and took photographs of the hotel room, and then

he interviewed D.C. at the hospital. He testified that D.C. told him that she had been

partying with friends in a hotel room, drinking and smoking marijuana, and one of

the males, B.J., followed her back to her room at the end of the night. Detective

Finucan said that D.C. told him that B.J. wanted to talk more, and she allowed him

to come into her room. D.C. told Detective Finucan that she got into bed, B.J.

eventually came to sit on the bed, and she told B.J. he had to sleep either on the

pullout couch or on the other side of the bed. Detective Finucan testified that D.C.

said she then fell asleep, and when she woke up, B.J. was removing her underwear,
and then he raped her. Detective Finucan said that D.C. knew B.J. only as “Buddy,”

and she provided a physical description of him and his clothing.

Detective Finucan testified that after he interviewed D.C., a SANE

nurse performed a sexual assault kit, and he took the kit back to the police station

and placed it into evidence. Detective Finucan obtained buccal swabs from B.J., and

B.J.’s DNA matched the DNA found in the kit. Detective Finucan then had a photo

lineup administered to D.C., and she identified B.J. from the lineup.

The state’s final witness, a SANE nurse at the Cleveland Clinic,

testified that she examined D.C. on September 1, 2019, and completed D.C.’s rape

kit. She testified that D.C. did not keep eye contact with her. She said D.C. looked

downward and cried several times during their conversation. She explained that

this behavior was common with other patients she has seen who had experienced

recent trauma. The SANE nurse testified she found no physical injuries, and D.C.

reported that she was not in physical pain. The SANE nurse noted that any potential

bruising D.C. may have suffered would not have appeared yet, and a lack of physical

injury “does not mean nothing happened.” She also testified that she found D.C. to

be credible. The state submitted D.C.’s medical report as an exhibit.

The court admitted the DNA report, the medical report, the photo

lineup, and the hotel room photographs into evidence. The defense rested without

presenting witnesses.

After closing arguments, the court found B.J. delinquent of Counts 1,

2, and 5: two counts of rape and one count of attempted rape based on vaginal
intercourse. The court found B.J. not delinquent of Counts 3 and 4: rape based on

cunnilingus. The journal entry of delinquency and unruly states, “Upon due

consideration, the court finds that the allegations of the complaint have been proven

beyond a reasonable doubt. The court therefore finds that the child is delinquent.”

The entry further states that the court adjudicated B.J. delinquent on Counts 1, 2,

and 5.

The court held a disposition hearing the next day. For each count, the

court imposed a minimum term of one year and a maximum term until he turns 21

to the Ohio Department of Youth Services (“ODYS”). The court ordered the terms

for Counts 1 and 5 to run concurrently, and the term for Count 2 to run consecutively

to the term for Count 1. The cumulative disposition was therefore a minimum of

two years in ODYS and a maximum of until he turns 21. The court also ordered that

B.J. complete a psychological evaluation and a sexual offender’s assessment at

ODYS. The court waived costs.

B.J. timely appealed.

After the parties submitted appellate briefs, this court sua sponte

remanded the cases to the juvenile court to issue a nunc pro tunc entry (1) reflecting

a disposition on Counts 3 and 4, and (2) correcting a typo on the sentencing entry

that “purports to impose a commitment on [C]ount three when the transcript

reflects that the court imposed the commitment on [C]ount five.” The court issued

a nunc pro tunc entry correcting the typo and finding B.J. not delinquent on Counts

3 and 4. This court again remanded the case to the juvenile court to issue another
nunc pro tunc entry that included in a single document the fact of conviction and

disposition for each count, the judge’s signature, and the clerk’s file stamp. The

juvenile court issued a nunc pro tunc entry that complied with this order.

After oral argument, we sua sponte ordered the parties to submit

supplemental briefs regarding whether any of B.J.’s adjudications should merge for

sentencing purposes. In his supplemental brief, B.J. asserted as a fifth assignment

of error that all of his adjudications should have merged for sentencing.

II. Nunc Pro Tunc Entry

In his first assignment of error, B.J. argues that the record does not

support the juvenile court’s December 18, 2020 entry. He points out that the entry

states that “the allegations of the complaint have been proven beyond a reasonable

doubt,” but the trial transcript shows that the court found B.J. delinquent only on

Counts 1, 2, and 5, not the entire complaint. He requests that we remand the matter

to the juvenile court for a nunc pro tunc order.

After B.J. filed his appellate brief, this court remanded the case to the

juvenile court for this reason, and the juvenile court issued a nunc pro tunc entry

finding B.J. not delinquent on Counts 3 and 4.

Accordingly, we overrule this assignment of error as moot.

III. Objection Regarding Substance of Phone Call

In his second assignment of error, B.J. argues that the juvenile court

erred when it sustained the state’s objection to a question about the substance of a

prior phone call between D.C. and B.J. He maintains that the question was meant
to challenge D.C.’s truthfulness based on her previous testimony that she had never

interacted with B.J. before the night of the party. He contends that a defendant is

“always allowed to question the truthfulness of a witness.”

“An appellate court reviews a trial court’s decision to admit or exclude

evidence for an abuse of discretion.” Taylor-Stephens v. Rite Aid of Ohio, 8th Dist.

Cuyahoga No. 106324, 2018-Ohio-4714, ¶ 24. An abuse of discretion occurs when

the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Marketing

Assocs. v. Gottlieb, 8th Dist. Cuyahoga No. 92292, 2010-Ohio-59, ¶ 47.

B.J.’s argument is based on the following exchange that occurred at

trial:

DEFENSE COUNSEL: Now, you told us earlier that the second night
when you first encountered [B.J.] that was
the first time you had ever met him, right?

D.C.: Mm-hmm.

DEFENSE COUNSEL: And I think you told us that you never talked
to him before, but there was a phone call,
right? You talked to him on the phone not
too long before the party, right?

D.C.: Way before that.

DEFENSE COUNSEL: Oh. It was way before. Do you remember
when it was?

D.C.: No. It was just a random conversation [when
he was] with Duane and he spoke, but I didn’t
know who he was. I just was like, oh, okay,
da-da-da. He sounded familiar when I saw
him on the —

DEFENSE COUNSEL: Okay. But there was — would you agree with
me that the conversation, the brief
 conversation that you had on the phone,
whatever that was, was sort of sexual in
nature?

PROSECUTOR: Objection.

D.C.: No. Well, not between me and him, no.

DEFENSE COUNSEL: Hold on.

PROSECUTOR: Objection, your Honor.

The prosecutor argued that the line of questioning was “improper

character evidence and protected under rape shield.” Defense counsel argued that

the rape shield law did not apply because he was asking about “a conversation”

rather than any sexual acts and because the rape shield law does not apply to

“anything that might have occurred between an alleged victim and a defendant.”

The prosecutor maintained that the question sought inappropriate “propensity

evidence.” The court sustained the objection.

Evid.R. 404(A) provides that “[e]vidence of a person’s character or a

trait of character is not admissible for the purpose of proving action in conformity

therewith on a particular occasion, subject to” certain exceptions. One exception is

that “[e]vidence of the character of a witness on the issue of credibility is admissible

as provided in Rules 607, 608, and 609.” Pursuant to Evid.R. 607(B), counsel “must

have a reasonable basis for asking any question pertaining to impeachment that

implies the existence of an impeaching fact.”

Here, the question into the substance of the phone call does not

pertain to the existence of an impeaching fact. D.C. testified on direct examination
that she had never “met” B.J. before the party. On cross-examination, D.C.

explained that sometime “way before” the party, she had a phone call with Duane,

and B.J. had happened to be physically present with Duane. These two statements

do not conflict. Even if D.C. had testified on direct examination that she had never

“spoken with” B.J. before the night of the party, defense counsel solicited the

“impeaching fact” when he asked if D.C. had spoken to B.J. on the phone before the

party, and D.C. responded that she had. The substance of their conversation was

unnecessary for impeachment.

Accordingly, we find that the court’s decision to sustain the

prosecutor’s objection was not “unreasonable, arbitrary, or unconscionable,” and

the trial court did not abuse its discretion. Therefore, we overrule B.J.’s second

assignment of error.

IV. Sufficiency and Manifest Weight of the Evidence

In his third assignment of error, B.J. argues that the record does not

contain sufficient evidence to support his adjudications of delinquency. In his

fourth assignment of error, he contends that his adjudications were against the

manifest weight of the evidence. In both assignments of error, he maintains that

D.C. provided inconsistent testimony. He also argues that the trial court’s findings

that he is delinquent for two counts of rape and one count of attempted rape based

on vaginal intercourse conflict with its findings that he is not delinquent for the two

counts of rape based on oral sex. The state maintains that D.C.’s testimony and the
trial court’s findings were consistent. We will address both assignments of error

together for ease of discussion.

When we review sufficiency and manifest-weight challenges in a

juvenile’s appeal from an adjudication of delinquency, we apply the same standard

as in criminal convictions. In re M.P., 8th Dist. Cuyahoga No. 93152, 2010-Ohio-

2216, ¶ 22.

Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient

to sustain a conviction of such offense or offenses.” A sufficiency challenge

essentially argues that the evidence presented was inadequate to support the

judgment as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). “‘The relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” State v.

Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Unlike sufficiency of the evidence, a challenge to the manifest weight

of the evidence attacks the credibility of the evidence presented. Thompkins at 387.

Because it is a broader review, a reviewing court may determine that a judgment of

a trial court is sustained by sufficient evidence, but nevertheless conclude that the

judgment is against the weight of the evidence. Id. “In a bench trial, the trial court

assumes the fact-finding function of the jury.” Cleveland v. Welms, 169 Ohio App.3d

600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 16 (8th Dist.). Therefore, “to warrant
reversal from a bench trial under a manifest weight of the evidence claim,” we

“review the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of witnesses and determine whether in resolving conflicts in evidence,

the trial court clearly lost its way and created such a manifest miscarriage of justice

that the judgment must be reversed and a new trial ordered.” Id., citing Thompkins

at 387. Reversing a conviction as being against the manifest weight of the evidence

and ordering a new trial should be reserved for only the “‘exceptional case in which

the evidence weighs heavily against the conviction.’” Thompkins at 387, quoting

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

B.J. challenges his adjudication for Count 1, rape by force or threat of

force in violation of R.C. 2907.02(A)(2). R.C. 2907.02(A)(2) states: “No person shall

engage in sexual conduct with another when the offender purposefully compels the

other person to submit by force or threat of force.” “Force” means “any violence,

compulsion, or constraint physically exerted by any means upon or against a person

or thing.” R.C. 2901.01(A). “The manipulation of a sleeping victim’s clothing in

order to facilitate sexual conduct constitutes force.” State v. Clark, 8th Dist.

Cuyahoga No. 90148, 2008-Ohio-3358, ¶ 17.

After reviewing the record in the light most favorable to the state, we

find there was sufficient evidence for the court to find B.J. delinquent of rape under

R.C. 2907.02(A)(2). D.C. testified that she woke up to B.J. “yanking” on her leg and

removing her underwear. She said that he penetrated her vaginally while she said

“no” and “stop” and that she “kept moving” and “scoot[ing]” away. D.C. testified
that B.J. then repositioned her to again penetrate her vaginally. She stated that he

held her waist down. D.C.’s testimony is sufficient evidence for a rational trier of

fact to find beyond a reasonable doubt that B.J. engaged in sexual conduct with her

by purposefully compelling her through force.

B.J. also challenges his adjudication for Count 2, rape knowing D.C.’s

ability to resist or consent was substantially impaired in violation of

R.C. 2907.02(A)(1)(c). R.C. 2907.02(A)(1)(c) states: “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.” “[S]leep constitutes a mental or physical condition that substantially

impairs a person from resisting or consenting to sexual conduct.” State v. Palmer-

Tesema, 8th Dist. Cuyahoga No. 107972, 2020-Ohio-907, ¶ 60. “Voluntary

intoxication” is also “a mental or physical condition that could cause substantial

impairment,” and a victim’s testimony can be sufficient to show substantial

impairment. State v. Foster, 2020-Ohio-1379, 153 N.E.3d 728, ¶ 42-45 (8th Dist.).

After reviewing the record in the light most favorable to the state, we

find there was sufficient evidence for the court to find B.J. delinquent of rape under

R.C. 2907.02(A)(1)(c) beyond a reasonable doubt. D.C. testified that she had been

drinking alcohol at a party with B.J., had lost her balance, and was intoxicated when
she allowed B.J. to come into her hotel room. B.J. was with D.C. as she consumed

alcohol and would have reasonably known that she was intoxicated. D.C. also told

B.J. that she needed to go to sleep. She testified that she was falling in and out of

sleep as B.J. was talking to her and walking toward her bed. D.C. testified that after

she fell asleep, she woke up to B.J. “yanking” at her leg. The testimony regarding

her intoxication and falling asleep is sufficient evidence of substantial impairment.

Lastly, B.J. challenges his adjudication for Count 5, attempted rape

by force or threat of force in violation of R.C. 2923.02(A) and 2907.02(A)(2). R.C.

2923.02(A) provides that a person is guilty of an attempt to commit a crime if he

“purposely or knowingly * * * engages in conduct that, if successful, would constitute

or result in the offense.” A criminal attempt has been committed “‘when one

purposely does or omits to do anything which is an act or omission constituting a

substantial step in a course of conduct planned to culminate in his [or her]

commission of the crime.’” State v. Group, 98 Ohio St.3d 248, 2002-Ohio 7247, 781

N.E.2d 980, ¶ 95, quoting State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059

(1976), paragraph one of the syllabus.

After reviewing the record in the light most favorable to the state, we

find there was sufficient evidence for the court to find B.J. delinquent of attempted

rape by force or threat of force beyond a reasonable doubt. D.C. testified that after

B.J. penetrated her the first time, she pushed against him to get away. She said he

then had to reposition her to penetrate her again while holding her down. D.C.’s

testimony is sufficient to support an adjudication for attempted rape through force.
 B.J. argues that the court’s findings that he is delinquent of Counts 1,

2, and 5 were inconsistent with the findings that he is not delinquent of Counts 3

and 4. We disagree. Counts 1, 2, and 5 were charges based on vaginal intercourse,

but Counts 3 and 4 were based on oral sex. There was no testimony in the record

that B.J. had engaged in oral sex with D.C., but there was testimony that he had

engaged in vaginal intercourse.

B.J. also maintains that D.C.’s trial testimony differed from what she

told Detective Finucan and the SANE nurse. B.J. points out that D.C. did not tell

Detective Finucan that B.J. had held her down, and D.C. reported no injuries or pain

to the SANE nurse. He further argues that during her direct examination, D.C. failed

to mention that the morning after the incident, she let B.J. return to her hotel room

and that she had a phone call with B.J. sometime before the party. These arguments

pertain to D.C.’s credibility and the weight of the evidence.

As previously discussed, D.C.’s statement that she had never met B.J.

before the party was consistent with the rest of her testimony. D.C. also said she did

not remember telling a detective that B.J. returned to her room the next morning as

she was getting ready to check out of the hotel. Detective Finucan likewise said he

did not remember whether D.C. told him that. Even if D.C. told the detective that

B.J. returned to her room, we find that her failure to remember this does not ruin

her credibility. Over a year had passed between the event and trial. Additionally, as

the SANE nurse explained, a lack of physical injury is not dispositive in a rape case.
 B.J. also presents possible ulterior motives for D.C.’s rape allegations.

He argues that the record shows that D.C. wanted to get back together with her

daughter’s father, and he maintains that having consensual relations with B.J. would

not “help rekindle” that relationship. He also argues that D.C. was recently hired as

a teacher’s aide in a middle school, and consensual sexual activity with a minor

would risk her career. However, D.C. was hired in a school after the events

underlying this case. And we find that the evidence of the relationship between D.C.

and her daughter’s father do not outweigh all the other evidence supporting the

delinquency adjudications.

Viewing the evidence in the light most favorable to the prosecution,

we find that the state presented sufficient evidence to support B.J.’s adjudications

of delinquency for two counts of rape and one count of attempted rape beyond a

reasonable doubt. Furthermore, after reviewing the entire record and weighing the

evidence and all reasonable inferences, we find that the court did not clearly lose its

way and create such a manifest miscarriage of justice that B.J.’s adjudications must

be reversed and a new trial ordered. This is simply not the exceptional case where

the evidence weighs heavily against the adjudication. Accordingly, we overrule

B.J.’s third and fourth assignments of error.

V. Allied Offenses

In his final assignment of error, B.J. argues that if we affirm his

adjudications, they should all merge for the purpose of sentencing because they are
allied offenses of similar import. He maintains that the trial court erred by imposing

a disposition for each count.

The state concedes that “[a]ll delinquent counts occurred in one

course of conduct on the same night. Thus, all offenses [B.J.] was found delinquent

of merge for sentencing.” Accordingly, we sustain B.J.’s final assignment of error.

We affirm B.J.’s adjudications, but we vacate his disposition. We

remand the matter to the juvenile court for a disposition hearing and for the state to

elect which allied offense to pursue.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR