{¶ 3} D.V. had а son and a daughter by a previous marriage, both minors at the times relevant to this case, who came to visit D.V. every other weekend. D.V.'s daughter, the victim in this case, stayed in a bedroom on the same side of the home as Appellant's living quartеrs, adjacent to the common kitchen space, when she stayed for the weekend.
{¶ 4} One evening in August or September, 2003, around the time of the victim's sixteenth birthday and while the victim was visiting D.V. for the weekend, the victim and Appellant were watching telеvision together in the victim's room. The victim was lying on her stomach on the bed and Appellant was sitting in a chair next to the bed. The bedroom door was closed, but D.V. and other family members were moving throughout the remainder of the house, including the common kitchen area. Although the facts are somewhat disputed from this point, it is undisputed that the victim asked Appellant to scratch either her hand (according to Appellant) or an itch on her back (according to the victim). In any case, Appellant complied with her request, but continued to reach underneath her pajamas to scratch her leg and her back. At one point, Appellant pulled down the victim's pajama bottoms and scratched her buttocks underneath her underwear. Appellant testified that he was getting tired of scratching after about 20 or 30 minutes, while he was scratching her leg under her pajamas, and that he intended to "smack her on her butt and tell her that's it, I am done" but that he accidentally "caught her in her vagina with [his] finger." The victim testified that the penetration was painful.
{¶ 5} The victim did not tell her mother about the incident until approximately a year and a half later. The victim's mother notified police. When Appellant learned that he was the subject of a police investigation, he went to the police station to speak with the investigating detective. This interview was recorded on video. During the interview, Appellant admitted that he had slightly penetrated thе victim, although he contended that it was an accident.
{¶ 6} Appellant was later indicted for sexual battery pursuant to R.C.
{¶ 7} R.C.
"No person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person."
{¶ 8} Appellant has not stated the applicable standard of review for this assignment of error, as required by Loc.R. 7(A)(7). Because in loco parentis status is a question of fact,State v. Caton (2000),
{¶ 9} The Ohio Revised Code does not define the term "in loco parentis" as used in R.C.
{¶ 10} In a sufficiency analysis, an appellate court presumes that the State's evidence is true (i.e., both believable and believed), but questions whether the evidence produced satisfies each of the elements of the crime. See State v. Getsy (1998),
{¶ 11} In Noggle, the Court considered the definition of in loco parentis in the context of a schoolteacher who had engaged in sexual conduct with a student. The Court held that the Generаl Assembly intended (A)(5) as an anti-incest provision — albeit slightly expanded to apply to other persons with parental
authority who might take advantage of their authoritative positions — and did not intend it to apply to teachers. Id. at 33. The General Assembly responded to Noggle by enacting R.C.
{¶ 12} In the present case, the victim stayed with her father and her grandparents for an entire weekend every two weeks. The relationship was a close familial one, not a teacher-pupil relationship, and Appellant testified that he and the victim had been close thrоughout her entire life. Even though Appellant testified that he never had to discipline his granddaughter and that he didn't believe in interfering with D.V.'s disciplinary authority by exercising his own discipline, it is not a prerequisite to in loco parentis status that the person аctually make or enforce rules. It is sufficient for the person acting in loco parentis to be an authority figure, with the ability to exercise an inherent parent-like power over a vulnerable child. See State v. Funk, 10th Dist. No. 05AP-230,
{¶ 13} The victim's mother testified that D.V. was most often still at work when she dropped the children off on Friday afternoоns, and that she dropped the children off to their grandparents' care. At the time of the incident, although D.V. was home from work, the victim was alone in a bedroom with appellant, with the door closed, essentially making Appellant the authоrity figure in the room. The victim testified that she hesitated to tell anyone about the incident afterwards because of the effects that it might have on her family members and that even when her grandfather had touched her before in ways that made hеr uncomfortable, she did not complain because she "didn't think a grandfather would do that." It does not matter that the victim was only in her grandfather's care for brief periods of time. See Funk at ¶ 95-96, citing Dye, supra. It is more significant that Appellant was an authority figurе similar to a parent who was alone with the victim, and that Appellant's relationship of trust and authority with the victim facilitated his conduct. See id. at ¶ 99.
{¶ 14} Furthermore, Appellant testified that when he and his wife purchased the house, they did so intending for D.V.'s family to move in with them because D.V. had encountered some financial difficulty. There was also some testimony tending to indicate that D.V. had some difficulty keeping up with his share of the household expenses. A rational finder of fact could have determined that Appellant was essentially providing a home for D.V.'s entire family, including the victim when she came to visit.
{¶ 15} Viewing all this evidence in the light most favorable to the State, a rational trier of fact could find that Appellant was the main sоurce of support for D.V.'s entire family, including the victim on weekends when she stayed at her grandparents' home. We cannot say as a matter of law that the State failed to prove that Appellant was acting in loco parentis. Aсcordingly, the first assignment of error is overruled.
{¶ 16} Appellant next argues that the trial court's finding of guilt was contrary to the manifest weight of the evidence at trial. Manifest weight is a question of fact. State v.Thompkins (1997),
{¶ 17} In a manifest weight analysis, an appellate court essentially undertakes а three-step, sequential inquiry: (1) whether the State's account was believable based upon the evidence; (2) and if so, whether it was more believable than the defendant's version of the evidence; (3) but if not, whether the State's case was sо unbelievable or unpersuasive as to undermine the integrity of the factfinder's finding of guilt and cause one to question whether justice was done. See Getsy,
{¶ 18} An appellate court may not merely substitute its view for that of the factfinder, but must find that the factfinder "clearly lost its way and created such a manifest miscarriage of justice that the conviсtion must be reversed and a new trial ordered." (Emphasis added.) Thompkins,
{¶ 19} Appellant admitted that his finger penetrated the victim, which constitutes sexual conduct no matter how slight the penetration might have been. R.C.
{¶ 20} We cannot find that the trial judge lost his way in finding Appellant guilty of sexual battery. The second assignment of error is overruled.
Judgment affirmed.
The Court finds that 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 Summit, 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 оf the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). 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.
Whitmore, P.J. Moore, J. concur.