IN RE B.J.
No. 110223
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
November 4, 2021
[Cite as In re B.J., 2021-Ohio-3926.]
MARY J. BOYLE, A.J.
A Minor Child. Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. DL-19-115037. JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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.:
{¶ 1} Defendant-appellant, B.J., appeals the juvenile court‘s adjudications of delinquency and disposition. He raises five assignments of error for our review:
- The record does not support the Journal Entry dated December 18, 2020.
- The court abused its discretion by sustaining an objection based on propensity of the evidence.
The Trial Court erred as a matter of law in finding the Appellant delinquent when there was not sufficient evidence to support the convictions. - The manifest weight of the evidence did not support the convictions.
- Any convictions should merge for the purposes of sentencing as allied offenses of similar import.1
{¶ 2} 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
{¶ 3} In December 2019, B.J. was charged in juvenile court with five counts: Count 1, rape in violation of
{¶ 5} 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.
{¶ 6} 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
{¶ 7} 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.”
{¶ 8} 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
{¶ 9} 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.”
{¶ 11} 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.
{¶ 13} 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.
{¶ 15} 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.”
{¶ 16} 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,
{¶ 17} 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.
{¶ 18} 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.
{¶ 19} 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.
{¶ 20} 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
{¶ 21} 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.
{¶ 22} B.J. timely appealed.
{¶ 23} 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
{¶ 24} 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
{¶ 25} 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.
{¶ 26} 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.
{¶ 27} Accordingly, we overrule this assignment of error as moot.
III. Objection Regarding Substance of Phone Call
{¶ 28} 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
{¶ 29} “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.
{¶ 30} 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.
{¶ 31} 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.
{¶ 32}
{¶ 33} 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
{¶ 34} 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
{¶ 35} 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
{¶ 36} 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.
{¶ 37}
{¶ 38} 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
{¶ 39} B.J. challenges his adjudication for Count 1, rape by force or threat of force in violation of
{¶ 40} 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
{¶ 41} 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
{¶ 42} 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
{¶ 43} Lastly, B.J. challenges his adjudication for Count 5, attempted rape by force or threat of force in violation of
{¶ 44} 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.
{¶ 46} 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.
{¶ 47} 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.
{¶ 49} 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
{¶ 50} 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
{¶ 51} 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.
{¶ 52} 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