¶1 concurring separately.
¶2 I am in agreement with Judge Bryant’s conclusions, but I prefer to predicate the affirmance of the rape conviction upon the fact that from the criminal scenario which occurred it was reasonable for the jury to infer and to find that Nichole Jones was alive when the defendant-appellant raped her.
¶3 The majority opinion suggests that conviction of defendant for the crime of rape could have been had even if Jones were dead at the time. I have a problem with this. A conviction of rape requires proof beyond a reasonable doubt that the victim is compelled to submit to sexual conduct. To be compelled to do some act connotes actions or activity by a perpetrator firmly against the will of the victim. I have difficulty with the idea of a dead person having capability to will, decide, submit, or intend anything.
¶4 Whether an unconscious person can be the victim of a rape seems to raise a question not directly before us in this appeal and thus I am not treating that subject.
¶5*447 A striking disparity exists in this state between penalties for the crime of rape, viz., R.C. 2907.02(A)(2), and for abuse of a corpse, R.C. 2927.01. Rape is an aggravated felony of the first degree while abuse of a corpse can be either a misdemeanor of the second degree or a felony of the fourth degree. The wrongdoing is a misdemeanor when “reasonable family sensibilities” only are outraged; the crime is a felony when “reasonable community sensibilities” are outraged.
¶6 Given the facts of this incident, it was a mistake not to have provided the jury with a conviction alternative between rape and abuse of a corpse. Probably the indictment should have included counts for both rape and abuse of a corpse. However, I note supererogatorily that the crime of abuse of corpse might be a lesser-included offense of rape in a proper case.
¶7 As hereinabove stated, I find that the jury did have sufficient evidence to find that the victim was alive at the time of the sexual conduct, and that it is my basis for electing to affirm the rape conviction. Insofar as other portions of Judge Bryant’s opinion are concerned, I have no disagreement. I elect to affirm the convictions.