STATE OF OHIO, Plaintiff-Appellee, v. RICKEY T. MYNES, Defendant-Appellant.
Case No. 12CA3480
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED: 10/25/13
2013-Ohio-4811
DECISION AND JUDGMENT ENTRY
Richard M. Nash, Jr., Portsmouth, Ohio, for appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke Hutchinson, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Harsha, J.
{¶1} Rickey Mynes appeals his conviction for rape and argues that there was insufficient evidence to support his conviction; he also argues that his conviction is against the manifest weight of the evidence. Specifically, Mynes claims that the state did not prove he purposely compelled the victim to submit by force or threat of force, as required by the statute. However, the 17-year-old victim testified that she did not resist because of Mynes’ size and fear that he would harm her. There was also testimony that the victim is in special education classes and has a “very childlike” demeanor. Therefore, a rational trier of fact could have found that Mynes purposely overcame the victim‘s will by fear or duress due to his relative size, age and maturity level. Accordingly, there was sufficient evidence to convict Mynes of rape. For the same reasons, his conviction is not against the manifest weight of the evidence, so we affirm his conviction.
{¶2} On the night in question, Mynes was staying overnight at his friend B.J.‘s house. When they arrived at the home, B.J.‘s 17-year-old daughter, C.J., was doing her homework at the kitchen table; Mynes began helping with her homework. Shortly thereafter, B.J. and his wife went to bed in an upstairs bedroom. C.J.‘s grandmother also lived in the house and she went to bed in a first floor bedroom. After finishing her homework C.J. went to sleep on a couch in the living room, while Mynes went to sleep on a couch in a second living room on the first floor. The state alleged that during the night Mynes sat down at the end of the sofa and began rubbing C.J.‘s leg. Mynes then pulled down her pants and penetrated her with his finger.
{¶3} The state charged Mynes with one count of sexual battery and one count of rape. The case proceeded to a jury trial and at the close of the state‘s case Mynes made a
II. ASSIGNMENTS OF ERROR
{¶4} Mynes raises three assignments of error for our review:
- THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION FOR ACQUITTAL.
- APPELLANT‘S CONVICTION FOR RAPE WAS AGAINST THE SUFFICIENCY OF EVIDENCE.
- APPELLANT‘S CONVICTION FOR RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. LAW AND ANALYSIS
A. Motion for Acquittal & Sufficiency of the Evidence
{¶6} A trial court must order a judgment of acquittal “if the evidence is insufficient to sustain a conviction of such offense or offenses.”
{¶7} “A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118. “In reviewing such a challenge, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds. “‘[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the
{¶8} Mynes was convicted of rape in violation of
{¶9}
{¶10}
{¶11} “‘Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim‘s will was overcome by fear or duress, the forcible element of rape can be established.‘” State v. Eskridge, 38 Ohio St.3d 56, 58-59, 526 N.E.2d 304 (1988), quoting State v. Fowler, 27 Ohio App.3d 149, 154, 500 N.E.2d 390 (8th Dist.1985). “To determine whether a partial course of conduct enabled a perpetrator to overcome the victim‘s will by fear or duress, ‘the question is not what effect such conduct would have upon an ordinary man but rather the effect upon the particular person toward whom such conduct is directed.‘” Burton at ¶ 37, quoting Tallmadge v. Robinson, 158 Ohio St. 333, 109 N.E.2d 496 (1958), paragraph two of the syllabus. Thus, “[t]he force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their relation to each other.” Eskridge at paragraph one of the syllabus.
{¶12} Here, the state established sufficient evidence to show that Mynes purposely compelled the victim to submit by force or threat of force. B.J. testified that Mynes is 36-years-old and C.J. is 17-years-old. He has known Mynes for 20 years and Mynes has slept at his house “many times” before. B.J. also testified that C.J. attends the Scioto County Joint Vocational School and “is in special education classes * * * because she‘s slow.” He explained that “she‘s not on the grade level of a normal child
{¶13} C.J. testified that she thought of Mynes “as a brother” and “part of the family.” On the night in question, Mynes helped with her homework and then she went to sleep on the couch in the living room. C.J. testified that she lay down on the couch around 12:30 a.m., and at the same time Mynes also went to sleep on a couch in a second living room on the first floor of the home.
{¶14} Around 4:00 a.m., Mynes came into the living room where C.J. was sleeping. He sat down on the end of the couch next to her feet and began rubbing her leg. C.J. testified that she woke up “a little bit but not all the way,” and then Mynes “just grabbed a hold of [her pants] and pulled them down.” He penetrated her with his finger, grabbed both her breasts and penetrated her digitally a second time. C.J. testified that the penetration was painful. When Mynes finished, he pulled up C.J.‘s pants and began rubbing her leg again. He then got up and went outside to smoke a cigarette. When he returned inside, he used the bathroom and went back to sleep on the couch in the other room. C.J. testified that she “rolled over and went back to sleep.”
{¶15} C.J. further testified that she did not want this to happen and did not consent to Mynes’ actions. C.J. explained that she did not say anything during the attack because she “was scared” and “afraid [Mynes] might hurt [her].” She stated she was afraid because Mynes is “bigger” than her and she did not tell her father after the incident because she was worried that her father might hurt Mynes and she “didn‘t want [her] dad to go to jail.”
{¶17} Thus viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that Mynes purposely compelled C.J. to submit by force or threat of force. C.J. testified that she did not resist because of Mynes’ size and her fear that he might hurt her. C.J.‘s father also testified that she is developmentally “slow” and very withdrawn. Both Vestich and Conkel testified that C.J. has a “very childlike” demeanor and Vestich testified that C.J. does not have the maturity level of an average 17-year-old. The evidence also showed that C.J. is in special education classes and has failed both her high school classes and the written portion of the driver‘s exam. From this evidence the jury could infer that her will was overcome by fear due to Mynes’ relative size, age and maturity level. Mynes’ intent to purposely violate C.J. can be inferred by the same facts, as “‘[i]t is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.‘” State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990), quoting State v. Johnson, 56 Ohio St.2d 35, 39, 381 N.E.2d 637 (1978).
{¶19} Nevertheless, there was no majority in Henry and as the dissent recognized, “having been concurred with in judgment only, the lead opinion sets no precedent or binding rule of law beyond the impact upon the parties in this case.” Henry at ¶ 42 (Shaw, J., dissenting). More importantly based on the facts of the case, we find the dissent more persuasive.
{¶20} In addition, the state cites Burton, 4th Dist. Gallia No. 05CA3, 2007-Ohio-1660, for the proposition that the mere manipulation of a sleeping victim‘s clothing to facilitate the assault is sufficient to establish the element of force in
B. Manifest Weight
{¶21} In his third assignment of error, Mynes argues that his conviction is also against the manifest weight of the evidence because again the state did not prove he acted purposely or used force to compel the victim to submit.
{¶22} “Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence.” Thompkins, 78 Ohio St.3d at 387. When considering whether a conviction is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the 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. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 119. Accordingly, the discretionary power to grant a new trial should be exercised only in exceptional cases where the evidence weighs heavily against the conviction. Id.
{¶23} Admittedly, at times C.J. contradicted herself and she seems to have become easily confused during cross-examination. However, credibility determinations are largely the province of the jury. See State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995). Moreover, on redirect, C.J. cleared up many inconsistencies, clarified that she did not want this to happen, and that she did not consent to Mynes’ actions. More importantly, throughout her testimony she stated that she did not say
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & *DeGenaro, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
* M. Mary DeGenaro, from the Seventh Appellate District, sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.