State v. McCainState v. McCain
Dated: October 28, 2019
TEODOSIO, Judge.
{¶1} Gary McCain appeals from the judgment of the Medina County Court of Common Pleas, committing him to the Warrensville Developmental Center. This Court affirms.
I.
{¶2} Mr. McCain attended a graduation party in the summer of 2018. At least part of the party was outside, and many of the adult guests congregated around a bonfire while several children played nearby. A camping tent had been set up between ten and twenty feet from the bonfire, purportedly for the children to sleep in.
{¶3} According to three adult witnesses who were standing around the bonfire, they heard a child screaming near the tent. They walked over to investigate and observed the victim, a six-year-old boy, emerge from the side of the tent with Mr. McCain following closely behind. The victim was crying and holding his crotch. The victim informed the adults that Mr. McCain
{¶4} A grand jury indicted Mr. McCain on one count of rape in violation of
{¶5} At the hearing, the three adult witnesses testified as described above, although their testimony differed slightly. For example, one witness testified that the victim stated that Mr. McCain tried to go down his pants, and another testified similarly, but added that the victim stated that Mr. McCain tried to bite his penis. The diagnostic interviewer from Akron Children‘s Hospital also testified, stating that the victim told her that Mr. McCain bit his penis. Additionally, the forensic scientist who analyzed the DNA samples taken from the victim‘s body (oral, anal, and penile) and his underwear testified that Mr. McCain‘s DNA was present on the victim‘s underwear, but not his body. Lastly, a clinical psychologist testified that Mr. McCain has a moderate intellectual disability, and that he is subject to institutionalization.
{¶6} After the hearing, the trial court found that clear and convincing evidence existed to support the charges for rape and gross sexual imposition, but that clear and convincing
II.
ASSIGNMENT OF ERROR
THE STATE FAILED TO PRESENT CLEAR AND CONVINCING EVIDENCE THAT APPELLANT COMMITTED THE OFFENSE OF RAPE.
{¶7} In his sole assignment of error, Mr. McCain argues that the State failed to present clear and convincing evidence in support of the rape charge. This Court disagrees.
{¶8} “In certain instances,
{¶9}
{¶10} Mr. McCain argues that there was no evidence of sexual conduct, that he did not have the required mens rea to commit rape, and that there was no evidence that he used, or threatened to use, force. We reject the latter two arguments outright because
{¶11} Regarding his argument that there was no evidence of sexual conduct, Mr. McCain relies on the fact that the three witnesses who attended the graduation party testified that the victim indicated that Mr. McCain “tried” to go down his pants – which, he argues, is evidence of an attempt, not a completed act – and that they otherwise provided inconsistent testimony. Mr. McCain also points to the fact that, while his DNA was found on the victim‘s underwear, it was not found on the victim‘s body.
{¶12} Mr. McCain‘s argument ignores the testimony of the diagnostic interviewer from Akron Children‘s Hospital who testified that the victim told her that Mr. McCain bit his penis. Additionally, to the extent that he challenges the credibility of the witnesses, a challenge to credibility sounds in weight, not sufficiency, and Mr. McCain has not developed an argument in that regard. State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 27; App.R. 16(A)(7). Even if he had, “the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. “As the trier of fact is in the best position to assess matters of credibility, this Court is loath to disturb those determinations on appeal.” Wiseman v. Wiseman, 9th Dist. Medina No. 13CA0009-M, 2014-Ohio-2002, ¶ 28.
{¶13} Further, while the absence of DNA evidence on the victim‘s body is probative, it is not dispositive. State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 22. In these cases, “[t]he trial court has ‘broad discretion’ as to what to review in making [its] determinations * * *.” Weaver, 2018-Ohio-2998, at ¶ 28, quoting State v. Decker, 10th Dist. Franklin No. 16AP-684, 2017-Ohio-4266, ¶ 30. “By statute, it may consider ‘all relevant evidence, including, but not limited to, any relevant psychiatric, psychological, or medical testimony or reports, the acts constituting the offense charged, and any history of the defendant that is relevant to the defendant‘s ability to conform to the law.‘” Weaver at ¶ 28, quoting
III.
{¶14} Mr. McCain‘s assignment of error is overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, J.
CALLAHAN, J.
CONCUR.
THOMAS REIN, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.