[Cite as State v. Smith,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 20CA8 : vs. : : DECISION AND MIRANDA C. SMITH, : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Timothy Young, Ohio Public Defender, Patrick T. Clark, Assistant State Public Defender, and Max Hersch, Assistant State Public Defender, Columbus, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a Highland County Common Pleas Court

judgment convicting Appellant, Miranda Smith, of one count of rape of a child

under the age of thirteen and one count of burglary after Smith pleaded no contest

to both charges. On appeal, Smith only challenges her rape conviction and raises a

single assignment of error contending that the trial court violated her right to due

process when it found her guilty of rape in the absence of sufficient evidence. Highland App. No. 20CA8 2

However, because we find no merit to her sole assignment of error, it is overruled

and the judgment of the trial court is affirmed.

FACTS

{¶2} On December 3, 2019, Miranda Smith was indicted on two counts of

rape, both first-degree felonies in violation of R.C. 2907.02(A)(1)(b), two counts

of pandering obscenity involving a minor, both second-degree felonies in violation

of R.C. 2907.321(A)(1), one count of burglary, a second-degree felony in violation

of R.C. 2911.12(A)(2) and one count of theft, a first-degree misdemeanor in

violation of R.C. 2913.02(A)(1). Smith entered into plea negotiations with the

State and ultimately pleaded no contest to one count of rape, amended to specify

the involvement of a child under the age of thirteen, rather than under the age of

ten as contained in the original indictment, as well as one count of burglary.

{¶3} Smith only challenges her rape conviction on appeal. A review of the

record indicates that the basis of the rape conviction at issue involved an incident

that occurred sometime between June 1, 2019, and September 1, 2019, in which

Smith directed her then two-year old son to insert an object described as a sex toy

into her vagina. Smith claimed she did so at the request of her ex-boyfriend

Wesley Moore. Smith videoed this incident and sent it to Moore at his request.

{¶4}After the trial court denied her motion to dismiss the rape charge, as

well as her motion to suppress evidence, she pleaded no contest to one count of Highland App. No. 20CA8 3

rape as well as the burglary count, in exchange for the dismissal of all other

charges. On March 19, 2020, the trial court sentenced Smith to ten years to life in

prison on the rape charge, to be served consecutively to a two-year prison term on

the burglary charge. It is from this judgment that Smith now brings her timely

appeal, setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

{¶5} In her sole assignment of error, Smith contends that the trial court

violated her right to due process when it found her guilty of rape in the absence of

sufficient evidence. As set forth above, Smith pleaded no contest to the charge, but

contends that the facts that formed the basis of her plea did not sufficiently allege

the subsection of rape under which she was charged. The State responds by

arguing that the conduct at issue constituted sexual conduct and that “it is

unfathomable that it was not the purpose and intent of the legislature to proscribe

acts such as those committed herein through the use of the O.R.C. §2907.02.” We

begin by considering the appropriate standard of review when conducting an

analysis of the sufficiency of the evidence.

{¶6} “A claim of insufficient evidence invokes a due process concern and

raises the question of whether the evidence is legally sufficient to support the

verdict as a matter of law.” State v. Blanton,

,

(4th Dist.), citing State v. Dunn, 4th Dist. Jackson No. 15CA1,

, Highland App. No. 20CA8 4

¶ 13, citing State v. Wickersham, 4th Dist. Meigs No. 13CA10,

,

¶ 22; State v. Thompkins,

,

(1997). “When

reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the

adequacy of the evidence; that is, whether the evidence, if believed, reasonably

could support a finding of guilt beyond a reasonable doubt.”

,

citing Thompkins at syllabus. “The standard of review is whether, after viewing

the probative evidence and inferences reasonably drawn therefrom in the light most

favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt.”

;

citing Jackson v. Virginia,

,

,

(1979); State v. Jenks,

,

(1991), superseded

by constitutional amendment on other grounds as stated in State v. Smith,

,

(1997). “Furthermore, a reviewing court is not to assess

‘whether the state's evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.’ ”

,

quoting

.

{¶7} This test raises a question of law and does not allow us to weigh the

evidence. State v. Martin,

,

(1983).

Rather, the test “gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable Highland App. No. 20CA8 5

inferences from basic facts to ultimate facts.”

. We reserve the

issues of the weight given to the evidence and the credibility of witnesses for the

trier of fact. State v. Thomas,

, 79–80,

(1982);

State v. DeHass,

,

, paragraph one of the syllabus

(1986).

{¶8} Smith was convicted of rape of a child under the age of thirteen, in

violation of R.C. 2907.02(A)(1)(b). R.C. 2907.02 defines the offense of rape and

provides, in pertinent part, as follows:

(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. (Emphasis added).

R.C. 2907.01 defines “sexual conduct” as follows:

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 opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

{¶9} At issue here is Smith’s plea of no contest to the amended charge of

rape of a child under the age of thirteen. The child at issue was her two-year old

son. During her plea hearing, she admitted to the conduct described in the bill of Highland App. No. 20CA8 6

particulars, as well as an additional description of the conduct that was read into

the record. Although a notice of service of the bill of particulars was filed with the

clerk indicating the bill of particulars had been provided to the defense, it was not

made part of the record. Further, although the record indicates the trial court had a

copy of the bill of particulars at the plea hearing, there is no copy in the appellate

record. However, Smith filed a motion to dismiss and the memorandum in support

of the motion stated as follows with respect to the information contained in the bill

of particulars:

The Bill of Particulars that was provided to defense counsel on December 18, 2019 alleges that on October 17, 2019 during an interview with the Defendant, that Wesley Moore, a co-defendant, wanted videos of the Defendant engaging in sexual acts and to please Mr. Moore, the Defendant had Z.W. (approximately age 2) masturbate her with a sex toy while she filmed the act.

Additionally, in a brief oral argument regarding Smith’s motion to dismiss that was

held on the record just prior to the hearing on the motion to suppress, defense

counsel referenced that the bill of particulars stated that a video was made where

Smith was “in a prone position with the minor child subject to this case, using a

sex toy on the defendant.” Defense counsel further stated “[t]he video depicts the

defendant in a position, with her legs open, with a minor child subject to this case,

using a sex toy on her.” Highland App. No. 20CA8 7

{¶10} Further, during the plea hearing, the State read the following into the

record in order to supplement the factual allegations in the indictment and bill of

particulars:

When Detective Antinore started reviewing the SD cards, the charge that is the subject of Count Five, was found. What it is, is five videos – and they’re very short – I’m not sure why it’s broke up as five videos, other than when she sent them it may have been too long as one solid video to send, so it was broke up into five videos. But, the video is, as was described yesterday in the Motion to Dismiss, of her child performing a sexual act on her with a female toy. She videoed it, and in the video you can see the tattoo on her leg very clearly.

{¶11} In support of Smith’s motion to dismiss, defense counsel argued that

“sexual conduct” would include a scenario “where a defendant would insert

something into an individual; not where someone else is inserting it into the

defendant * * *.” Counsel further argued that there is no case law specifically on

point on this particular issue because this conduct “doesn’t fit the statute.” Smith

essentially makes the same argument on appeal.

{¶12} More specifically, Smith contends that “[t]he rape statute, R.C.

2907.02(A)(1) does not criminalize [her] conduct – having another person insert an

object into her.” She argues that the plain language of the rape statute requires

“sexual conduct, which does not include causing another to insert an object.” She

further argues that the plain meaning of the language employed in the rape statute

“is confirmed by reading the rape statute in pari materia with the gross sexual Highland App. No. 20CA8 8

imposition statute, R.C. 2907.05.” For comparison purposes, R.C. 2907.05

provides as follows:

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

***

(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person. (Emphasis added).

Further, R.C. 2907.01 defines “sexual contact,” as opposed to “sexual conduct,” as

follows:

“Sexual contact” means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

{¶13} “The interpretation of a statute is a matter of law that an appellate

court reviews de novo.” State v. Simpson,

,

,

citing State v. Straley,

,

,

.

“A court must first look at the language of the statute.” Simpson at ¶ 9, citing

Provident Bank v. Wood,

,

(1973). Thus,

“[i]f the language is clear and unambiguous, courts must apply the language as

written.”

, citing

. However, “where there is

ambiguity in a criminal statute, doubts are resolved in favor of the defendant. ” Highland App. No. 20CA8 9

United States v. Bass,

,

,

(1971);

. Further, we are mindful that the “ ‘primary role in statutory

construction is to give effect to the legislature's intention.’ ”

,

quoting Cline v. Ohio Bur. of Motor Vehicles,

,

(1991), citing Carter v. Youngstown Div. of Water,

,

, paragraph one of the syllabus (1946).

{¶14} Like the parties, this Court has been unable to locate another case in

Ohio involving this particular type of conduct. Thus, there are no cases directly on

point or controlling on this specific type of conduct and issue, which involves the

question of whether the insertion of an object by a child at the direction of an adult,

into the vagina of the adult, constitutes rape. As stated, in this particular case the

adult was the mother of the child, a two-year-old male, and the object involved is

described in the record as a sex toy. Further, not only did Smith direct her son to

perform this act, she videoed it and sent it to her ex-boyfriend. Smith has admitted

to the facts surrounding this incident and simply argues that these facts do not meet

the statutory definition of rape.

{¶15} More specifically, Smith argues that “[u]nlike the rape statute, the

gross sexual imposition statute specifically proscribes causing another to engage in

sexual contact.” Smith argues that when comparing R.C. 2907.02(A) with R.C.

2907.05(A), “the absence of ‘cause another’ language in the rape statute – and its Highland App. No. 20CA8 10

presence in the gross sexual imposition statute – demonstrates that the General

Assembly intended to proscribe [the conduct at issue herein] as gross sexual

imposition. Finally, Smith contends that “to the extent the plain language of the

rape statute and the structure of Chapter 2907 leave ambiguities, lenity resolves

this issue” in her favor.

{¶16} The State responds by arguing that the conduct at issue here involved

penetration, which goes beyond the prohibition of “sexual contact” set forth in the

gross sexual imposition statute. As set forth above, the State further contends that

it is “unfathomable” that the legislature did not intend for this type of conduct to be

covered by the rape statute. The State concedes there is no case law directly on

point but does cite to one case that involved a child inserting his penis into the anus

of an adult, at the direction of the adult, which affirmed a conviction for rape.

State v. Allen, 1st Dist. Hamilton No. C-840479,

. The State also

directs our attention to State v. Sloane, 7th Dist. Mahoning No. 06MA144, 2009-

Ohio-1175, which affirmed a conviction for complicity to rape where Sloane

forced a male child to have sex with a female child between the ages of four and

five. The State contends that Smith’s argument that a “defendant must be the one

inserting something into another” is not consistent with the language of the rape

statute because it, in effect, requires words be added to the statute to require that a Highland App. No. 20CA8 11

defendant “actually engage in the act of insertion.” In light of the foregoing and

for the following reasons, we agree with the State.

{¶17} In Ohio, the definition of “sexual conduct” includes “the insertion,

however slight, of any * * * instrument, apparatus, or other object into the vaginal

or anal opening of another.” We cannot conclude that the plain language of the

statute requires that the defendant be the one doing the inserting. Instead, we

conclude the plain language simply requires that in order for sexual conduct to

occur, one individual must insert an object into the vaginal or anal opening of

another individual, as opposed to one’s own vaginal or anal opening. It appears

that the plain language simply requires that two individuals be engaged in this type

of conduct for sexual conduct to occur. Further, as noted by the State, this conduct

goes beyond the plain language of the gross sexual imposition statute, which does

not include the element of penetration. We further conclude that although Allen

and Sloane both involve different types of sexual conduct, read together they are

instructive to this particular set of facts, which admittedly is unique and thankfully,

rare. Finally, we join in the State’s position that the legislature surely intended that

this type of conduct fall within the parameters of the definition of sexual conduct

and, thus, be classified as rape.

{¶18} Any other result would be absurd, and “ ‘[i]t is presumed that the

legislature does not intend absurd results.’ ” State v. Clemons,

, Highland App. No. 20CA8 12

, ¶ 14, quoting O'Toole v. Denihan,

, 2008-

Ohio-2574,

, citing State ex rel. Haines v. Rhodes,

,

,

, paragraph two of the syllabus (1958);

Widen v. Pike Cty.,

,

,

.

Based upon the foregoing reasoning and the absurd result that we would reach if

we apply the definitions contained in R.C. 2907.01 to not include the conduct at

issue herein to be included in the definition of “sexual conduct” for the purposes of

rape, we overrule Smith’s sole assignment of error.

{¶19} Accordingly, having found Smith’s conviction was supported by

sufficient evidence and having overruled her sole assignment of error, the

judgment of the trial court is affirmed.

JUDGMENT AFFIRMED. Highland App. No. 20CA8 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court 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. Hess, J. and Wilkin, J., concur in Judgment and Opinion. For the Court, __________________________ Jason P. Smith Presiding Judge Highland App. No. 20CA8 14

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.