[This opinion has been published in Ohio Official Reports at
75 Ohio St.3d 390.]
IN RE WASHINGTON.
[Cite as In re Washington, 1996-Ohio-186.]
Criminal law—Sex offenses—Rape—R.C. 2907.02—Child under the age of
fourteen is presumed capable of committing rape.
A child under the age of fourteen is presumed capable of committing rape.
(Williams v. State [1846], 14 Ohio 222, and Hiltabiddle v. State [1878],
35
Ohio St. 52, overruled.)
(No. 94-2126—Submitted December 12, 1995—Decided March 6, 1996.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 65755.
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{¶ 1} Appellee, Rhodell Washington, was adjudicated delinquent on two
separate counts of rape, and was placed on intensive probation. On September 4,
1992, the date of the rape, Rhodell Washington was eight years old, as were the
victims, Camille Pearman and Ashley Anderson. The codefendant, William Little,
age twelve, was separately tried.
{¶ 2} On December 15, 1992, the Juvenile Division of the court of common
pleas conducted an inquiry hearing at which appellee reluctantly admitted to an
intake mediator that he had anal intercourse with Camille and Ashley. Despite
appellee’s young age, the Juvenile Division determined to make the complaint an
official filing since appellee showed no remorse for the rapes. The Cleveland
Police Department filed a two-count formal complaint against appellee, Rhodell
Washington, which alleged he raped Camille Pearman and Ashley Anderson,
purposely compelling them to submit to such sexual conduct by force or threat of
force, in violation of R.C. 2907.02(A)(1), rape, an aggravated felony of the first
degree.
SUPREME COURT OF OHIO
{¶ 3} The following evidence was adduced at trial. Camille Pearman
testified that in September 1992, appellee hurt her and Ashley. Camille was given
anatomically correct dolls and asked to show the court how she was hurt. Camille
stated that Dell (the appellee) put his penis into her anus and that this caused her
pain. She stated that Little, but not appellee, had threatened her that day, yet she
was afraid of both boys at the time that the sexual conduct occurred. Camille also
stated that appellee did nothing to help her while Little was threatening the girls.
{¶ 4} Camille’s mother, Victoria Pearman, testified that she learned of the
incident from a neighbor and then questioned her daughter. Camille related to her
mother the same set of facts which Camille testified to at trial.
{¶ 5} Ashley Anderson testified that on September 4, 1992, appellee was
playing with Little. Ashley was also given anatomically correct dolls to aid in her
testimony. She stated that appellee touched her private part without asking her
permission. She stated that it hurt when appellee touched her. Ashley also stated
that she was afraid of appellee on that day. When her mother found out what
happened, she was beaten.
{¶ 6} Ashley’s mother testified that appellee’s father contacted her about
the incident and stated that his son had something to tell her. Appellee told Ashley’s
mother “that he had done it too.” Upon returning home, she questioned her
daughter. Ashley did not want to tell her, so she hit her several times until Ashley
related the incident.
{¶ 7} The state then presented Alan Maragliano, a social worker at
University Hospitals. Maragliano testified that he conversed with both girls,
Ashley and Camille, when they were brought into the hospital. He testified that the
girls were reluctant to describe the sexual conduct, but did state the two boys took
off their shirts and dropped their pants.
{¶ 8} Cleveland Police Officer Pamela Berg from the Sex Crimes and Child
Abuse Unit testified that she interviewed appellee who, after being advised of his
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January Term, 1996
legal rights, admitted in the presence of one of his parents that he inserted his penis
into the rectums of both girls. The state then rested. Defense counsel moved for
acquittal which was denied by the trial court, and the defense rested.
{¶ 9} The trial court thereafter found the allegations of rape proved beyond
a reasonable doubt and adjudged appellee delinquent. Appellee was placed on
intensive probation, he and his parents were ordered into the pre-adolescent sex
offender’s program, and his father was ordered into drug rehabilitation.
{¶ 10} The court of appeals reversed the trial court’s finding that appellee
was delinquent. The court of appeals held (1) that the evidence was insufficient to
support the trial court’s finding, and (2) that a rebuttable presumption existed that
appellee was incapable of committing rape because he was under age fourteen, and
that the state failed to rebut this presumption.
{¶ 11} This matter is now before this court upon an allowance of a
discretionary appeal.
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Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
Eleanore E. Hilow, Assistant Prosecuting Attorney, for appellant.
James A. Draper, Cuyahoga County Public Defender and Mark A. Spadaro,
Assistant Public Defender, for appellee.
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FRANCIS E. SWEENEY, SR., J.
{¶ 12} The issues before this court are whether a rebuttable presumption
exists that a child under the age of fourteen is incapable of committing the crime of
rape and whether sufficient evidence existed to support the trial court’s finding that
appellee was delinquent. For the following reasons, we find that (1) no such
presumption exists in Ohio, and (2) in the present case the evidence was sufficient
to support the trial court’s finding that appellee was delinquent. Accordingly, we
reverse the court of appeals’ judgment.
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SUPREME COURT OF OHIO
{¶ 13} In determining the legal sufficiency of the state’s evidence, “the
relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307,
319,
99 S.Ct. 2781, 2789,
61 L.Ed.2d 560, 573; State v. Waddy (1992),
63 Ohio
St.3d 424, 430,
588 N.E.2d 819, 825. The weight and credibility of the evidence
are best left to the trier of fact. State v. DeHass (1967),
10 Ohio St.2d 230,
39
O.O.2d 366,
227 N.E.2d 212, paragraph one of the syllabus.
{¶ 14} R.C. 2907.02(A) states in relevant part as follows:
“(2) No person shall engage in sexual conduct with another when the
offender purposely compels the other person to submit by force or threat of force.”
{¶ 15} R.C. 2907.01(A) defines “sexual conduct” in relevant part as
follows:
“‘Sexual conduct’ means vaginal intercourse between a male and female,
and anal intercourse, fellatio, and cunnilingus, regardless of sex. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.” (Emphasis
added.)
{¶ 16} In the present case, appellee was indicted as follows:
“[Rhodell Washington did] unlawfully engage in sexual conduct with
another … a person who was not his spouse at the time, the said Rhodell
Washington purposely compelled [the others] … to submit to such sexual conduct
by force or threat of force ….” At trial, Camille Pearman testified that appellee
inserted his penis into her rectum causing her pain. Pamela Berg testified appellee
admitted inserting his penis into the rectums of both girls. Both Ashley and Camille
testified they were afraid of appellee at the time the sexual incidents occurred.
Camille testified that appellee had not threatened her, but he did nothing to help
when Little made the threats to them.
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January Term, 1996
{¶ 17} Upon viewing the foregoing evidence and the reasonable inferences
drawn therefrom in the light most favorable to the state, we conclude that any
rational trier of fact could have found beyond a reasonable doubt that appellee
penetrated, however slightly, the rectums of both girls with his penis which,
pursuant to R.C. 2907.01(A), constituted anal intercourse. Applying the same
sufficiency analysis, we likewise conclude that any rational trier of fact could have
found beyond a reasonable doubt that appellee, acting in concert with Little, used
threats and force to compel Ashley and Camille to submit to anal intercourse.
Accordingly, sufficient evidence exists to support the trial court’s finding that
appellee committed rape.
{¶ 18} In finding that insufficient evidence existed to support the trial
court’s finding of rape, the court of appeals relied on cases from the 1800’s such as
Williams v. State (1846), 14 Ohio 222, and Hiltabiddle v. State (1878),
35 Ohio St.
52, the latter of which held that “[a]n infant under the age of fourteen years is
presumed to be incapable of committing the crime of rape, or an attempt to commit
it; but that the presumption may be rebutted by proof that he has arrived at the age
of puberty and is capable of emission and consummating the crime.” Williams,
supra, at 227. This case law came about because until 1877, the emission of semen
was an essential element of rape. Thus, the rule that a child under age fourteen was
presumed incapable of committing the crime involved this element and could be
rebutted only upon evidence that the rapist could emit semen. However, such a rule
is now unnecessary as the present statute does not require this element. As
succinctly stated by the Second District Court of Appeals in In re Wilson (Dec. 1,
1988), Montgomery App. No. 10909, unreported: “A rule which requires proof of
the capacity to emit a seed when there is proof of penetration by force against the
victim’s will is archaic and has no place in today’s society.” See, also, In re Smith
(1992),
80 Ohio App.3d 502,
609 N.E.2d 1281. As noted by the court in In re
Wilson, the General Assembly in 1974 further expanded the class of persons who
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SUPREME COURT OF OHIO
may be convicted of rape when it established that mere penetration, however slight,
constituted rape. Thus, to adhere to this old English common-law rule would be to
override the clear intent of the General Assembly to broaden the class of persons
who can be convicted of rape. Accordingly, we abolish the common law that held
a child under the age of fourteen is rebuttably presumed incapable of committing
rape.
{¶ 19} While this court did mention this common-law rule in a more recent
case, In re M.D. (1988), 38 Ohio St.3d 149,
527 N.E.2d 286, the issue of the rule’s
viability was not before the court in that case and it was mentioned only in dicta.
Furthermore, the facts in that case are distinguishable from the present forced
sexual conduct, as the children in In re M.D. were merely “playing doctor” when a
twelve-year-old girl directed two five-year olds to perform a sexual act. Thus, In
re M.D. is not binding on this court as to the issue of whether such a presumption
exists.
{¶ 20} Accordingly, we conclude that a child under the age of fourteen is
capable of committing rape (Williams v. State [1846], 14 Ohio 222 and Hiltabiddle
v. State [1878],
35 Ohio St. 52, overruled), and that, in the present case, sufficient
evidence existed to support the trial court’s finding that appellee committed rape.
{¶ 21} The judgment of the court of appeals is reversed.
Judgment reversed.
MOYER, C.J., DOUGLAS, RESNICK and COOK, JJ., concur.
WRIGHT and PFEIFER, JJ., disent.
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