State v. McCain, 2019 Ohio 4392

At a 2018 graduation party, a six-year-old boy was found crying and holding his crotch after exiting a tent with Gary McCain close behind; adults reported the victim said McCain tried to go down his pants and bite his penis.
A diagnostic interviewer at Akron Children’s Hospital testified the victim told her McCain bit his penis.
Forensic testing showed McCain’s DNA on the child’s underwear but not on the child’s body (oral, anal, penile samples were negative for his DNA).
A grand jury indicted McCain for rape (R.C. 2907.02(A)(1)(b)), gross sexual imposition, and kidnapping.
After a competency hearing, the trial court found McCain incompetent to stand trial and unlikely to be restored within one year, held a R.C. 2945.39(A)(2) hearing, and by clear and convincing evidence retained jurisdiction and committed him to the Warrensville Developmental Center on the rape and GSI charges (kidnapping not sustained).
McCain appealed solely arguing the State failed to present clear and convincing evidence of rape; the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved by clear and convincing evidence that McCain committed rape under R.C. 2907.02(A)(1)(b) (statutory rape of a child under 13)	Victim’s statements to both witnesses and a diagnostic interviewer indicating sexual contact (including a bite) plus McCain’s DNA on the child’s underwear and the witnesses’ observations support a firm belief he committed the offense	Witnesses testified victim said McCain “tried” to go down his pants (suggesting only an attempt); testimony was inconsistent; McCain’s DNA was not found on the victim’s body; argued lack of mens rea and lack of force	Affirmed. Court held evidence (victim’s statements, interviewer testimony, DNA on underwear, witness observations) satisfied the clear-and-convincing standard; mens rea and force are not elements of R.C. 2907.02(A)(1)(b); credibility and weight were for the trial court; absence of body DNA was not dispositive

Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of clear and convincing evidence)
State v. Schiebel, 55 Ohio St.3d 71 (Ohio 1990) (appellate review whether evidence met required degree of proof)
In re D.B., 129 Ohio St.3d 104 (Ohio 2011) (R.C. 2907.02(A)(1)(b) is strict liability; force not required)
In re D.S., 152 Ohio St.3d 109 (Ohio 2017) (no mens rea element for R.C. 2907.02(A)(1)(b))
State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (weight and credibility are for the trier of fact)