COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 57738 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RICHARD SCHMIDT, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 5, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-231,738 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: James R. Columbro Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Richard Schmidt, Pro Se Marion Correctional Institute No. 210635 P.O. Box 57 Marion, Ohio 43302 -2- NAHRA, P.J.: Richard Schmidt, defendant-appellant, appeals his conviction for rape and gross sexual imposition. Between September 4th and September 6th, 1988, Caneshia Moore, the ten-year-old victim, stayed at the house of her maternal grandmother at 7904 Dudley Avenue. During Caneshia's stay, Schmidt, the boyfriend of Caneshia's maternal grandmother who lived at the Dudley Avenue residence, inserted his finger into Caneshia's vagina, performed cunnilingus on her, and attempted to insert a white vibrator into her vagina. On September 15, 1988, Caneshia was taken to University Hospital after she complained of stomach pains. Physicians there discovered that Caneshia's vaginal area was tender. Cynthia Moore, Caneshia's mother, confronted her daughter and asked her if anyone had touched her in the vaginal area. Caneshia revealed to her mother the sexual abuse to which she had been subject by Schmidt. Shortly thereafter, the Cleveland Police Department and the Department of Health and Human Services were contacted. At trial, a variety of witnesses testified including Mrs. Vera Hughes, a social worker for the Department of Human Services. Ms. Hughes testified that she met and interviewed Caneshia Moore on October 27, 1988. Ms. Hughes stated that Caneshia disclosed to her the types of things Schmidt had done including inserting his finger into her "kitty cat" which Caneshia had identified as her vagina. -3- Caneshia testified about how Schmidt had licked her "kitty- cat", inserted his finger into the same, and attempted to insert a white vibrator into her vagina. The medical record admitted into evidence also contains the same such statements made by Caneshia to University Hospital personnel. Cynthia Moore testified and corroborated her daughter's testimony in terms of what Caneshia told her. Cynthia stated that she gave Caneshia permission to stay with Caneshia's maternal grandmother, DeAnna Moore, over the weekend of September 4, 1988 through September 6, 1988. Schmidt testified that he was physiologically incapable of having an erection and that he did not sexually abuse Caneshia. Schmidt was indicted for rape pursuant to R.C. 2907.02 with counts and for gross sexual imposition pursuant to R.C. 2907.05. On April 18, 1989, trial commenced and a jury found Schmidt guilty on both counts. The trial court sentenced Schmidt to a term of seven to twenty-five years for the rape of a minor as well as to a term of two years for gross sexual imposition to be served concurrently with the rape sentence. This appeal follows. Appellant's sole assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The Supreme Court of Ohio has stated: In reviewing a claim that the jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt. -4- State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, paragraph four of the syllabus, cert. denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922; see also State v. Eley (1978), 56 Ohio St. 2d 160, 383 N.E.2d 132, syllabus. R.C. 2907.02, which constitutes the crime of rape, 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 either of the following apply: * * * (b) The other person is less than thirteen years, whether or not the offender knows the age of such person. R.C. 2907.05, which constitutes the crime of gross sexual imposition, states in pertinent part: (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 such person. Schmidt appears to argue that Caneshia's testimony lacked credibility and that there was no evidence of sexual conduct insofar as the alleged actions could not have been performed for the purpose of achieving sexual arousal for either person. As a -5- result, there was insufficient evidence to convict Schmidt for rape and gross sexual imposition. We disagree. R.C. 2907.01, which defines sexual conduct, states: (A) "Sexual conduct" means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. (B) "Sexual conduct" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttocks, pubic region, or if the person is female, a breast for the purpose of gratifying either person. A review of the record indicates that Schmidt performed cunnilingus on Caneshia, a ten-year-old, and that he inserted his finger into her vagina. In addition, there was testimony that he also attempted to insert a vibrator into her vagina. Such actions clearly fall within the legislative mandate of sexual conduct as defined above. Therefore, the jury's verdict was not against the manifest weight and that there was sufficient evidence to convict Schmidt beyond a reasonable doubt. We also note that the weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. We find no reason to upset the jury's evaluation of the witnesses' credibility. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .