Opinion
No. 77900.
Decided December 13, 2001.
Criminal appeal from Common Pleas Court, Case No. CR-376512.
For Plaintiff-appellee: WILLIAM D. MASON, Esq., Cuyahoga County Prosecutor, DEBORAH R. NAIMAN, Esq., Assistant County Prosecutor, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-appellant: JAMES A. DRAPER, Esq., Cuyahoga County Public Defender, DONALD GREEN, Esq., KATHLEEN W. WOOD, Esq., Assistant Public Defenders, 1200 West Third Street N.W., 100 Lakeside Place, Cleveland, Ohio 44113-1569.
JOURNAL ENTRY AND OPINION
Defendant-appellant William Blankenship appeals from his conviction for one count of rape in violation of R.C. 2907.02 and one count of gross sexual imposition in violation of R.C. 2907.05. The appellant was sentenced to a term of incarceration of life without parole for rape, and to a consecutive four-year term of incarceration for gross sexual imposition. The court held a status hearing and found the appellant to be a sexual predator.
In the early morning hours of September 11, 1998, the appellant raped the victim, E.W. At the time of the rape, the victim was only nine years old. The victim lives with her siblings; her mother, Marian Carroll; and Todd Ashbrook, her mother's boyfriend. The appellant, who is the victim's uncle, also lived in the home and performed babysitting services while Mrs. Carroll was at work. An amicable relationship remains between Mrs. Carroll and the victim's father.
E.W. testified that she has a learning disability and a hearing impairment.
Franklin Carroll and the victim's mother Marian Carroll were in the process of a divorce at the time of the rape. Mrs. Carroll was living with her children and her boyfriend, Todd Ashbrook. Mr. Carroll has parented the victim from infancy although he is not her biological or adoptive father. The appellant is the half-brother of Mr. Carroll and thus he holds the family position of an uncle to the victim.
E.W. testified that on the evening in question, the appellant entered her bedroom and told her to go downstairs because her mother wanted her. Once downstairs, he told her to go into the living room, take off her clothing, and lie down on the couch. The victim testified that He was on top of me. (T. 261) and that the appellant was not wearing clothing. E.W. stated that she was lying on her back. The front part of the appellant was on her and the appellant spread open her legs. She testified that He was going up and down on me. (T. 261). Specifically, the victim testified:
Q. Now, when he was on top of you with your legs spread open, could you feel anything anywhere?
A. Yes.
Q. What did you feel?
A. His private area.
Q. Where was it?
A. By mine.
Q. What did his private area feel like?
A. Hard.
(T. 263).
E.W. heard her mother coming down the stairs and testified that She caught him. (T. 264). The appellant ran into the bathroom. Her mother entered the room and spoke with her as E.W. was dressing. As a result of this conversation, E.W. went upstairs to her mother's bedroom. Mrs. Carroll chased the appellant outside and down the street. The police were notified and the victim was taken to the hospital by her mother and her father. E.W. testified that she was sad and crying. She also testified that the appellant was not a good babysitter because he drinks.
On cross-examination, counsel questioned E.W. regarding her visit to the hospital:
Q. Did they ask you if he stuck anything inside your mouth? Did they ask you about that?
A. Yes.
Q. Did you answer them when they asked you that question.
A. Yes.
Q. Okay. Did he stick anything in your mouth?
A. Yes.
Q. What did he stick in your mouth?
A. His private area.
Q. So that went in your mouth. What about in your behind? What do you call it, your butt?
A. My butt.
Q. Did he put anything in your butt?
A. Yes.
Q. What did he put in your butt?
A. His private area.
Q. He put his private area. When you say his private area, are you talking about his penis? Is that what you call it? Or do you call it his wiener? What do you call it?
A. Private area.
Q. You call it a private area. It was hard and he put it in your mouth?
A. Yes.
Q. He put it in your butt?
A. Yes.
Q. He put it anywhere else? He put it in between your private parts or in your what do you call your private part? Your private parts, probably, right?
A. Uh-Huh.
Q. Your answer is yes?
A. Yes.
Q. He put it in there also?
A. Yes.
Q. Did he hurt?
A. Yes.
Q. How about when it was up your butt? Did that hurt?
A. Yes.
Q. When he put it in your mouth, did that also hurt?
A. Yes.
Q. Did he move up and down when he was in your mouth?
A. Yes.
Q. And in your butt?
A. Yes.
Q. And in your private parts?
A. Yes.
Q. So it hurt in all these places, right?
A. Yes.
Q. You told the doctor that?
A. Yes.
Q. And the police?
A. Yes.
(T. 277-280).
Upon further questioning, the victim reiterated that she was certain that Uncle Billy had placed his private parts in her mouth, in her butt and her private parts (T. 289). On re-direct examination, E.W. testified that this was the second time that the appellant had done this to her (T. 293). On further cross, counsel inquired as follows:
Q. The time before, did he do the same thing he did on the time that brings us here? That is the night you went to the hospital. Was it the same thing?
A. Yeah.
Q. Can you see Uncle Billy over here?
A. Yes.
Q. On that prior time he also put his private in your mouth?
A. Yes.
Q. In your butt?
A. Yes.
Q. In your private part?
A. Yes.
Q. He didn't just put it between your legs? He put it up where you go to the bathroom, right?
A. Yes.
Q. I think the report says it was just going between your legs. Now, this is up inside of you?
A. Yes.
Q. It wasn't down between your knees when he was doing it?
A. No.
Q. You felt his hard part up inside of you?
A. Yes.
Q. On a prior occasion and on this occasion, right?
A. Right.
(T. 295-296). Dr. Thomas Lukens was the attending physician in the emergency department at Metro Health Medical Center the night the victim was examined. Dr. Lukens testified that the hospital records indicate that the victim was calm and socially amenable and that she denied any pain. The medical records also indicate the victim has a learning disability and a hearing impairment. The results of her examination showed a mild abrasion, tenderness and bruising at the posterior fourchette. There was also a mild abrasion at the right labia minora (T. 360). The record reveals through state's exhibit 4, on page two of the after-care information for the sexual assault patient form, on the line describing the external genitalia, that the intern wrote: erythema on labia minora (inside lips of vagina). See also testimony of Dr. Lukens (T. 369).
Dr. Lukens was asked to describe the make-up of female genitalia for the jury. The doctor stated:
A. On the outside there is a ring of tissue you call the labia majora, which is the major tissue, which is why it has the name. Inside of that is the labia minora, which is a fleshier ring of skin which is on both sides. Both of those are external to the vaginal opening.
The vaginal opening then is closed by a hymen until it is broken at some point, and incorporated in all this is the posterior area, is the posterior fourchette. It's more of an area rather than an anatomical structure. Then there is the anterior fourchette, which is where the labia minora and labia majora come together.
* * *
Q. The labia minora are the two flaps that actually is the outer covering of skin and dry skin like you have on your hand?
A. That would be the labia majora.
Q. In order to get to the labia minora, do you have to go through the labia majora to get to that particular area?
A. Yes. The minora is more of a mucus type tissue, whereas the majora is dry skin, normal skin.
Q. So that I understand this correctly, then, okay? The posterior fourchette, is that the connecting area between these two, or is that something else?
A. Connecting area, but it is posterior to the vaginal opening.
(T. 361-363).
Dr. Lukens testified that there were no allegations made by the victim of an oral or anal assault. Dr. Lukens testified that in medical terms, penetration is when something is introduced into the vagina, past the hymen (T. 363). In Dr. Lukens opinion, based upon his training, experience, and education, the history of this victim, and on the examination of this victim, is that she was sexually assaulted (T. 365).
The appellant has set forth only two assignments of error. The first assignment of error:
WILLIAM BLANKENSHIP'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR RAPE ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW.
In the appellant's first assignment of error, he asserts that the evidence regarding penetration of the victim was insufficient to support his conviction. The appellant essentially argues that there is no direct evidence of penetration because the medical evidence did not reveal blood or semen, the victim was not upset and did not complain of pain, and the medical evidence regarding the abrasions may be explained away by another trauma.
The Ohio Supreme Court has clarified the distinction between reviewing questions of manifest weight of the evidence and questions of sufficiency of the evidence. In State v. Thompkins (19 97), 78 Ohio St.3d 380, the court found that with respect to sufficiency of the evidence, in essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. at 386. In addition, a conviction based upon legally insufficient evidence is a denial of due process. Thompkins, supra, citing to Tibbs v. Florida (1982), 457 U.S. 31, 45. As Justice Cook succinctly stated in the concurrence of Thompkins, a challenge to the sufficiency of evidence supporting a conviction requires a court to determine whether the state has met its burden of production at trial. Courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Our review is limited to construing the evidence in a light most favorable to the state and determining whether any reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Waddy (1992), 63 Ohio St.3d 424, 430.
In the case sub judice, the appellant was convicted of rape, which has been defined by the legislature in R.C. 2907.02, and states in pertinent part:
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
* * *
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
It is pertinent to this appeal to consider the definition of sexual conduct as set forth in R.C. 2907.01:
As used in sections 2907.01 to 2907.37 of the Revised Code:
(A) Sexual conduct means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
This court must begin its analysis of the cases on point by noting that courts have consistently held that testimony, if believed, is sufficient to prove each element of the offense of rape. State v. Lewis (1990), 70 Ohio App.3d 624. There is no requirement that a rape victim's testimony be corroborated as a condition precedent to conviction. Id. citing to State v. Love (1988), 49 Ohio App.3d 88, 91 and State v. Gingell (1982), 7 Ohio App.3d 364, 365. See also In re: Fisher (June 25, 1998), Franklin App. Nos. 97APF10-1356 97APF11-1552, unreported where the court held that the victim's testimony alone was sufficient to support the conviction for rape. Accord, State v. Banks (1991), 71 Ohio App.3d 214, 220. That medical records reveal no sign of damage to a victim's hymen, in light of unequivocal testimony from the victim, does not make the evidence insufficient as a matter of law. Lewis, supra. Further, we note that the Lewis court explicitly held:
In the definition of sexual conduct, R.C. 2907.01(A) specifically states that penetration, however slight, is sufficient to complete vaginal or anal intercourse. Thus, this court, as well as others, have consistently held that evidence of slight penetration, entering the vulva or labia, is sufficient to support a rape conviction. See, e.g., State v. Nivens, 1996 Ohio App. LEXIS 2245 (May 28, 1996), Franklin App. No. 95 APA09-1236, unreported (1996 Opinions 2053, 2057); State v. Carpenter (1989), 60 Ohio App.3d 104, 105, 573 N.E.2d 1206. Moreover, a victim's testimony concerning penetration need not be corroborated by the medical evidence. See Nivens, 1996 Ohio App. LEXIS 2245 at *6 (Even without corroborating medical evidence, a victim's testimony that the perpetrator placed his penis in her vagina constitutes penetration.); Carpenter, supra (The presence of an intact hymen does not preclude a finding by a jury, upon other competent evidence, that a rape has been committed.). Finally, victim testimony related to penetration is sufficient to support a conviction for rape even where the victim's own testimony is conflicting on the issue. See, e.g., Nivens, 1996 Ohio App. LEXIS 2245 at *6 (victim's inconsistent testimony regarding penetration did not render evidence insufficient; victim's inconsistencies went to her credibility, which was properly to be resolved by the jury); State v. Nagor ski, 1994 Ohio App. LEXIS 6177 (Feb. 24, 1994), Franklin App. No. 93AP-792, unreported (1994 Opinions 548, 555) (despite victim's uncertain testimony regarding penetration, evidence was still sufficient); see, also, State v. Ramirez (1994), 98 Ohio App.3d 388, 394, 648 N.E.2d 845 (inconsistent statements by victim did not make conviction for felonious sexual penetration against the sufficiency of the evidence).
When applying these standards to the matter at hand, it must be concluded that the victim's testimony was more than sufficient to support the decision of the jury. E.W. testified with unequivocal clarity that the appellant vaginally, orally and anally raped her. He placed his private part in her mouth, in her butt, and in her private parts. When asked if he placed his private up where you go to the bathroom and up inside of you she answered in the affirmative (T. 296).
There has been a suggestion that because this evidence was elicited on cross-examination, and because it was not raised by the state in closing argument, that somehow there is a waiver of this evidence. However, notwithstanding the fact that the testimony was elicited on by the appellant's counsel, the jury heard the evidence and was entitled to rely on it. Additionally, the law does not support the proposition that the state's closing argument in any way constitutes evidence. Thus, no matter what the state chose to argue or not argue in closing, the jury is still entitled to consider all evidence before it.
While the victim's testimony here is conclusive, we reiterate this court's holding in State v. Logan (Oct. 3, 1996), Cuyahoga App. No. 69535, unreported: the fact that the medical examination produced no signs of trauma or tearing to the victim's vagina and that the victim's hymen was intact does not preclude a finding by a jury, upon other competent evidence, that a rape had been committed. Notwithstanding, in this particular instance, the victim's testimony is buttressed by the attending physician's medical opinion that she was sexually assaulted.
The appellant's first assignment of error is overruled.
The second assignment of error:
WILLIAM BLANKENSHIP HAS BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHT NOT TO BE PLACED IN DOUBLE JEOPARDY FOR THE SAME OFFENSE BY HIS CONVICTIONS FOR RAPE AND GROSS SEXUAL IMPOSITION ARE (sic), UNDER THE FACTS OF THIS CASE, ALLIED OFFENSES OF SIMILAR IMPORT.
In this assignment of error the appellant asserts that he should not have been convicted for both rape and gross sexual imposition because under the facts of this case they are allied offenses. The state has conceded this as error.
The appellant's conviction for rape is affirmed. Case remanded for resentencing.
I am compelled to briefly respond to the dissent due to its many bizarre contentions. In an opinion redolent of Byzantine murkiness, the minority scrivener posits or implies the following:
1) A thirteen year old victim who testified under oath that she was anally, orally, and vaginally raped; that testimony should be afforded diminished credibility because the victim has a learning disability, and as it appears from the record, that she may be developmentally disabled.
Of course it is within the jury's province to determine the credibility of the witnesses and not the responsibility of a reviewing court.
2) That the trial judge's instruction to the jury that neither penetration of the vagina nor rupture of the hymen are necessary to sustain a conviction for rape was error.
Suffice it to say that the instruction was not erroneous and perchance if it were, there was no objection made by the appellant after said instruction was given. It is therefore waived unless plain error is manifest, which was not the case in the matter sub judice. Further, the minority scrivener's comment that the majority opinion implicitly concedes as much is gratuitous nonsense.
3) That since the victim testified on cross-examination that she had been vaginally raped, which is evidence, and the fact that the prosecutor did not allude to that testimony on final argument, which is not evidence, the jury need not rely on that testimony and therefore the jury's verdict was necessarily inexact.
That deduction is totally without any foundation and should be disregarded.
This cause is affirmed in part and reversed in part.
The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein.
It is ordered that a special mandate be sent to said court 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.
Exceptions.
DIANE KARPINSKI, A.J., CONCURS WITH SEPARATE CONCURRING OPINION ATTACHED; ANNE L. KILBANE, J., DISSENTS WITH DISSENTING OPINION ATTACHED.
I concur with the majority opinion in its judgment and agree, in part, with its analysis. However, I do not completely concur with its analysis of the dissent.
The dissent questions whether the victim-child is capable of belief. I agree that the jury could properly believe her direct testimony, which the lead opinion recounts. She admits that she did not know what the term penetration meant. However, when she is asked about penetration in a question using less Latinate language, she clearly articulates details on which a jury could conclude that penetration occurred.
A major difference between the lead opinion and the dissent is whether the jury instruction on penetration is correct. There is no dispute about the instruction given on vaginal intercourse. Tr. 539-540. The dispute is with the instruction on penetration. That instruction reads as follows:
Penetration of the external female genitalia known as the vulva or the labia is sufficient penetration to constitute vaginal rape. Penetration of the vagina is not necessary, nor is it necessary that the hymen be ruptured.
The statutory language of R.C. 2907.01(A) requires penetration of the vaginal cavity. However, full penetration is not required; it may be so slight as not to affect the hymen.
The dissent finds the instruction erroneous because the instruction denies penetration of the vaginal cavity is necessary. This analysis rests upon the classification of the labia and vulva as separate from the vagina. The lead opinion follows a series of cases that state that penetration of the labia and vulva is sufficient. In none of the cases cited, however, was there injury only to the labia and vulva. Thus the principle enunciated that penetration of the labia and vulva is sufficient seems overly broad so as to be dicta in those cases.
I agree with the dissent, therefore, that the jury instruction does not comply with the language of the statute or a strict reading of the case law. However, I believe that a jury could properly infer penetration of the vagina from injury to the labia or vulva, but this conclusion would depend upon the facts of each case.
In the case at hand, the victim suffered more than labial abrasions. There is medical testimony of injury to the posterior fourchette. Classified as part of the vulva, the posterior fourchette is a partial edge of the entrance to the vaginal cavity. A reasonable person could conclude that a penis pushed with enough force against the fourchette to injure it would have to enter the vaginal cavity at least by a millimeter. From evidence that the posterior fourchette was injured, therefore, a jury may infer penetration of the vaginal cavity. Such objective evidence viewed in conjunction with the direct testimony of the victim in the case at bar was sufficient to overcome the argument of plain error.
I also note that the victim's testimony provided clear evidence of both anal and oral rape. Moreover, the court gave a jury instruction on anal and oral intercourse, although the instruction on penetration did not mention these forms. An instruction on penetration for oral intercourse, however, is not necessary. Therefore, the jury properly could have found the defendant guilty of oral rape. Thus I concur in judgment with the lead opinion and, in part, with its analysis.
On this appeal from a jury verdict after trial before Judge Nancy Margaret Russo, I dissent. Not only does the majority affirm the conviction on a theory conspicuously avoided by the State and never presented to the jury, it adopts a standard of evidentiary sufficiency that flouts any constitutional standard of reasonableness. In adopting this dangerously erroneous theory, the majority has utterly ignored the State's actual theory of guilt, which is based upon a plainly incorrect jury instruction that cannot be sustained under any circumstances.
As thoroughly demonstrated in the majority opinion, E.W., who is learning disabled, testified on direct examination that Blankenship placed his private by hers, but did not testify that he penetrated her vagina. On cross-examination she testified that he penetrated her orally, anally, and vaginally on the date in question, that he had also done so on a prior occasion, and that she informed her mother, the police, and a physician of the oral and anal penetration when she was taken for an examination. The physician, Dr. Thomas Lukens, M.D., testified that no such complaints of oral or anal penetration were made, no other evidence of oral or anal contact was presented, and the State did not charge Blankenship with anything other than vaginal penetration on September 11, 1998.
Although stated as a learning disability, it appears from the record that she may be developmentally disabled.
When E.W. was taken to a hospital immediately after the incident, Dr. Lukens testified he found abrasions on her labia majora, labia minora, and posterior fourchette, but found an intact hymen and no evidence of medical penetration of the vagina. Furthermore, a rape kit failed to reveal evidence of semen or foreign hair. In closing argument, the prosecutor did not rely on E.W.'s testimony, but told the jury instead that the legal and medical definitions of penetration differed, and that penetration beyond the labia majora to the labia minora was sufficient to sustain the rape charge. Neither the judge nor Blankenship objected to these remarks, and the judge instructed the jury as follows:
Penetration of the external female genitalia known as the vulva or the labia is sufficient penetration to constitute vaginal rape. Penetration of the vagina is not necessary, nor is it necessary that the hymen be ruptured.
Blankenship objected to this instruction when offered by the State, but did not object to it after it had been given to the jury, and the jury returned verdicts of guilty for rape and gross sexual imposition. On appeal, Blankenship essentially challenged the jury instruction through the insufficiency claim, arguing that the medical evidence was insufficient to sustain the conviction, and that no other evidence of penetration was presented. He has not challenged the weight of the evidence on appeal, nor does he challenge the jury instruction independently of his sufficiency challenge. The State's argument in defense of sufficiency, however, has at all times been limited to defending the jury instruction and arguing that the medical evidence alone was sufficient to sustain the verdict. It does not challenge Blankenship's assertion that there is no evidence of penetration other than the medical testimony about external abrasions.
I begin by stating explicitly what the majority opinion implicitly, and correctly, concedes: it was error to instruct the jury that penetration of the vagina was unnecessary to sustain the rape conviction here. R.C. 2907.02 requires a showing of sexual conduct to support a rape conviction. That term is defined by R.C. 2907.01(A) as follows:
Sexual conduct means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
The State did not rely on the victim's testimony to show that Blankenship penetrated her, and argues here, as it did at trial, that the medical evidence of abrasions is sufficient to prove the penetration necessary to sustain a rape conviction. The State argues that penetration past the labia majora in order to cause the abrasions found on the labia minora, is sufficient to complete vaginal * * * intercourse. R.C. 2907.01(A).
The cases cited by the State, however, have not sustained convictions based solely on evidence of abrasions to the vulva or labia, but have instead stated only that an intact hymen will not bar a rape conviction. In all of these cases the victims testified to vaginal penetration, and the evidence of labial abrasions or other injury supported that testimony — nowhere has evidence of labial abrasions alone been found sufficient to sustain a rape conviction.
See, e.g., State v. Carpenter (1989), 60 Ohio App.3d 104, 105, 573 N.E.2d 1206, 1207-08.
The question then becomes what the General Assembly intended when it specified in R.C. 2907.01(A) the phrase the insertion, however slight, of any body part * * * into the vaginal * * * cavity of another. The Supreme Court of Ohio, in State v. Wells, recently answered the same question when the issue was whether insertion of a penis between the victim's buttocks but not into the anus itself was rape or attempted anal rape. The court held that the common everyday meaning of a word as defined in a dictionary should be utilized in statutory construction. Because cavity is defined as a natural hollow place within the body, the court determined that the anal cavity was the lower portion of the alimentary canal and not the buttocks which are not `within the body.'
(2001), 91 Ohio St.3d 32, 740 N.E.2d 1097.
Id. at 34, 740 N.E.2d at 1099.
The court also found that legislative intent could be found by an examination of R.C. 2907.01(B) which defined Sexual Contact as:
any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttocks, [or] public region * * * for the purpose of sexually arousing or gratifying either person.
It held that under R.C. 2902.04(A), the statutes must be construed in favor of an accused and it was doubtful that the General Assembly intended to include buttocks within the phrase anal cavity.
If the evidence shows that the defendant made contact only with the victim's buttocks, there is not sufficient evidence to prove the defendant guilty of the crime of anal rape. As a corollary, where the evidence shows that the defendant attempts to penetrate the victim's anus, and, for whatever reason, fails to do so and makes contact only with the buttocks, there is sufficient evidence to prove the defendant guilty of the crime of attempted anal rape.
Id. at 35, 740 N.E.2d at 1100.
Applying the Wells analysis to the case sub judice, Random House Webster's Unabridged Dictionary, Second Edition, 1998, defines vagina as: a passage leading from the uterus to the vulva and the vulva as: the external female genitalia.
In State v. Shoop, a medical expert testified that the labia and posterior fourchette are not considered a part of the vaginal cavity. Dr. Lukens testified that the abrasions of the labia did not fit the medical definition of penetration, but did not elaborate on what that definition was, and he found no evidence of medical penetration of the vagina. Without some other definition to guide us in interpreting the statute, we must assume that vaginal cavity means that natural hollow passage within the body between the uterus and the female external genitalia.
(1993), 87 Ohio App.3d 462, 622 N.E.2d 665.
The Ohio Jury Instructions define vaginal intercourse as penetration of the penis into the vagina. The State's proffered instruction defining penetration as something less than entry into the vagina was incorrect, and the judge erred in giving that instruction to the jury. Although rupture of the hymen is unnecessary, R.C. 2907.02 still requires evidence of penetration into the vaginal cavity. Furthermore, contrary to the prosecutor's argument, there is no evidence that the State of Ohio has adopted a legal definition of vaginal cavity different from that in common usage.
4 Ohio Jury Instructions, Section 507.02(A)(1), at 188, Section 507.02(A)(2) at 192.
The majority, aware that it cannot sustain the rape conviction solely on the medical evidence presented here, has determined that E.W.'s cross-examination testimony is sufficient to sustain the conviction, despite the fact that the State never relied on this testimony at trial and has not defended the verdict on those grounds in this appeal. The issue on appeal has at all times been whether the jury instruction was correct and thus whether the medical evidence alone was sufficient to sustain the rape conviction. Therefore, my first objection to the majority decision is that it affirms the conviction on a theory never presented to the jury, and leaves intact a verdict that very likely was based on an unsound legal theory. While an appellate court ordinarily is free to affirm a judge's decision on grounds other than those employed by the judge, we are not free to affirm a judgment of conviction on a theory not presented to a jury, nor are we free to affirm a jury verdict where it is impossible to tell whether the defendant was convicted on an improper theory.
State v. Peagler (1996), 76 Ohio St.3d 496, 668 N.E.2d 489, paragraph one of the syllabus.
Dunn v. United States (1979), 442 U.S. 100, 106, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743, 750; Chiarella v. United States (1980), 445 U.S. 222, 236-37 n. 21, 100 S.Ct. 1108, 1118-19 n. 21, 63 L.Ed.2d 348, 361-62 n. 21; Cola v. Reardon (C.A.1, 1986), 787 F.2d 681, 696, certiorari denied (1986), 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351.
The jury here was told that it could convict Blankenship of rape on medical evidence that was insufficient to establish penetration, and it most likely convicted on that theory, because it was the only theory of guilt offered. In its opening statement, closing argument, and elsewhere throughout trial and appeal, the State at all times relied solely on the theory that the jury could convict on the medical evidence alone. The State never once even suggested that the jury rely upon E.W.'s cross-examination testimony, much less present such a theory in a focused or otherwise cognizable sense. To affirm the conviction on a theory that the jury likely never considered deprives Blankenship of his fundamental constitutional rights to due process and a jury trial — the jury was never asked to consider E.W.'s reliability, and even the majority should concede it is by no means clear the jury would have convicted Blankenship on this basis.
Cola, 787 F.2d at 693.
My second objection to the majority's resolution goes beyond simple disagreement because I believe the decision threatens the constitutional rights of all criminal defendants. By deciding that E.W.'s cross-examination testimony meets the legal test for sufficiency and thus can be used as evidence of vaginal penetration, the majority has not only misinterpreted, but utterly misused, the distinction between weight and sufficiency of the evidence set forth in State v. Thompkins. The majority's facile conclusion that one need not assess the weight of E.W.'s testimony ignores the obvious fact that the evidence fails in every respect to meet the threshold necessary to allow any rational trier of fact to give it credit. While the majority asserts that it must assess sufficiency to determine whether the evidence, if believed, would sustain a conviction, the analysis fails to recognize that the legal standard of sufficiency presumes a rational trier of fact and determines whether reasonable minds could find the defendant guilty beyond a reasonable doubt. The threshold question, therefore, is not the effect of the evidence if believed but, as an initial matter, whether the evidence is capable of belief. Only when this question is resolved does the inquiry turn to an assessment of the weight of the evidence because the reviewing court must then decide whether the evidence, while sufficient, is substantial.
Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.
State v. Getsy (1998), 84 Ohio St.3d 180, 193, 702 N.E.2d 866, 881-82 (citations omitted).
Id.
In civil matters, which are theoretically and rhetorically considered less important than criminal matters, courts recognize that, despite claims that testimony is subject to a credibility determination, evidence can be stripped of all consideration where it is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit it. In summary judgment cases the United States Court of Appeals for the Seventh Circuit, Chief Judge Posner, has recognized that a witness's testimony is subject to sufficiency analysis in exceptional cases where the surrounding circumstances render it so unreliable that no reasonable fact finder could give it credit. Simply stated, testimony can and should be rejected without a trial if, in the circumstances, no reasonable person would believe it. This threshold determination should carry even more force in criminal cases, where the evidence must be sufficient to satisfy the reasonable doubt burden.
Anderson v. City of Bessemer City (1985), 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518, 529.
In re Chavin (C.A.7, 1998), 150 F.3d 726, 728; Seshadri v. Kasraian (C.A. 7, 1997), 130 F.3d 798, 802.
Id.
The standard has been applied, and reasonably does apply, in criminal cases. United States v. Hach (C.A.7, 1998), 162 F.3d 937, 942 n. 1.
See, e.g., Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 252-54, 106 S.Ct. 2505, 2512-13, 91 L.Ed.2d 202, 214-15 (sufficiency test is viewed in light of applicable burden of proof).
The majority elevates E.W.'s testimony to a level it was not intended, and certainly is not entitled to reach. The State questioned her on direct examination only to establish that some incident occurred — the prosecutor did not seek to have her testify that penetration occurred. On cross-examination, Blankenship's lawyer obviously did not question E.W. with a view toward bolstering the State's case, but instead intended to cast doubt on the reliability of her testimony by showing either that E.W. was suggestible, that her memory was faulty, or both, since she testified to events that were directly contrary to the testimony of other State's witnesses, most notably Dr. Lukens. Under the circumstances, it was apparent that E.W.'s testimony was too confused and inconsistent to be reliable, and that the only evidence of penetration worthy of any consideration was the medical evidence submitted through Dr. Lukens. The State recognized the viability of this defense strategy because it never sought to rely on the details of E.W.'s testimony, but claimed instead that Blankenship could be convicted on the basis of the medical evidence alone. The State never argued to the jury that it should rely on E.W.'s cross-examination testimony, just as it never argued to this court that we should rely on that testimony. Despite the fact that the State has conceded that E.W.'s testimony cannot be relied on to support the element of vaginal penetration, and that it expressly sought conviction on an alternative, erroneous basis, the majority ignores the prosecutorial theory and the obvious unreliability of the evidence in delivering a stunning and frightening affirmance. By holding that there is no duty to make a threshold determination that no rational trier of fact could find penetration on this evidence, the majority has wrought a dire consequence — a prosecutor now can survive a motion to acquit and win a chance to appeal to a jury's passions by presenting patently unreliable evidence, while a defense lawyer must think twice before exposing a witness's unreliability to the jury. In this case, it was clear that E.W. did not intend to mislead anyone, but that she was suggestible and, unfortunately, generally incapable of making the detailed distinctions necessary for proving guilt in this case. By revealing this infirmity to the jury, however, Blankenship is now held to have himself elicited the critical evidence needed to sustain his rape conviction. The majority's decision threatens far-reaching, unfair, and unconstitutional results.
[D]ue process requires guilt to be determined based upon the case as presented to the jury. The majority has convicted Blankenship of rape on a theory of guilt never raised at trial and condemns him to spend his life in prison with no possibility of parole in light of an erroneous jury instruction on vaginal rape. I would reverse the rape conviction as based on insufficient evidence, and uphold the gross sexual imposition conviction. Therefore, I dissent.
Cola v. Reardon, supra, 787 F.2d at 683.