COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60913 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TOMMY WALL : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 18, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-247,290 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ANTHONY J. BONDRA, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DANIEL J. RYAN Attorney at Law 2000 Standard Building Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Tommy Wall appeals his conviction to life imprisonment for the rape of his nine-year-old niece (R.C. 2907.02) with three 1 assignments of error. Upon review of the record, we affirm. In his second assignment of error, defendant challenges the sufficiency of the evidence, arguing the court erred in overrul- ing his Crim. R. 29 motion for dismissal. In his third assign- ment of error, defendant argues the court erred in imposing a life sentence since there was no finding of force. Since these assignments are related, they will be addressed together. On November 26, 1989, Wall was babysitting for his nine- year-old niece at his parents' apartment. He resided upstairs. The defendant and child watched television in a bedroom until 11:00 p.m., at which time the child fell asleep. At approximately midnight, she was awakened to find the pants of her jogging suit and her panties pulled down to her knees and the defendant on top of her with his penis inserted in her rectum. According to the victim, "[h]is penis [was] in [her] 1 See Appendix. - 2 - bottom" and "he was on top of [her], moving back and forth." She stated that this caused her pain. When she awoke, the child told defendant to stop these actions, a request he ignored. It was only after a second plea that Wall got off the child, pulled up his pants, said goodnight and walked upstairs. The victim's testimony included the use of anatomically cor- rect dolls, with which she described what occurred. After defendant left the room, the victim called her mother, Valerie Wall, who arrived at the apartment five minutes later. The child explained what took place. Valerie Wall testified her daughter called, crying, and stated her uncle sexually molested her. Valerie Wall visually examined her daughter's vagina and rectum, but found no physical signs of abuse. The victim was taken to the hospital, where she made a drawing for doctors showing defendant with his penis inserted in her anus. Defendant moved for a dismissal at the close of the state's case-in-chief and again at the close of all the evidence. The jury returned a guilty verdict. A challenge to the sufficiency of the evidence requires this court to view the record in a light most favorable to the prose- cution and determine whether rational minds could have found each material element of an offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 433 U.S. 307. See, also, State v. Jenks (1991), 61 Ohio St. 3d 259, 273. - 3 - Defendant was convicted under R.C. 2907.02, which states in 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 of age, whether or not the offender knows the age of such person. (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. (B) Whoever violates this section is guilty of rape, an aggravated felony of the first degree. If the offender under division (A)(1)(b) of this section purposely compels the victim to submit by force or threat of force, whoever violates division (A)(1)(b) of this section shall be imprisoned for life. As previously noted, the victim testified she was sodomized by defendant. It is undisputed that at the time of the incident, the child was nine years old. In view of the record, we find sufficient evidence was presented to prove the charge of rape under (A)(1)(b). There was also sufficient evidence to sustain defendant's conviction under (A)(2). In determining what constitutes "force" for purposes of this statute, the supreme court has observed: The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their rela- - 4 - tion to each other. With the filial obliga- tion of obedience to a parent, the same de- gree of force and violence may not be re- quired upon a person of tender years, as would be required were the parties more near- ly equal in age, size and strength. (State v. Labus [1921], 102 Ohio St. 26, 38, 39, 130 N.E. 161, 164.) State v. Eskridge (1988), 38 Ohio St. 3d 56, paragraph one of syllabus. In Eskridge, the court found evidence of force sufficient to support a conviction for rape by way of the child's testimony, the child's tender age, and the relationship of parental authori- ty the defendant had over his four-year-old daughter. Id., at 58. This court has also delineated what constitutes force in child rape cases in State v. Fowler (1985), 27 Ohio App. 3d 149, stating: Force need not be overt and physi- cally brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or du- ress, the forcible element of rape can be established. State v. Mart- in (1946), 77 Ohio App. 553 [33 O.O. 364]; State v. Wolfenberger (1958), 106 Ohio App. 322 [7 O.O.2d 73]. In the within case, we are confronted with a child being told to do some-thing by an important figure of authority, and commanded not to tell anyone about it. In such a case, we find nothing unrea- sonable about a finding that the child's will was overcome. Id., at 154. - 5 - In the present case, the defendant's actions and the child's pleas that he stop, coupled with her age and the defendant's avun-cular relationship, sufficiently demonstrate the forcible element of rape was established. We further find the trial court properly sentenced defendant to life imprisonment. The fact that the verdict form did not specifically indicate that force was used is not dispositive since, by finding defendant guilty of rape under R.C. 2907.02(A)- (1)(b), the jury implicitly found the use of force present under (A)(2). Accordingly, the second and third assignments of error are overruled. In his first assignment of error, Wall argues the court erred in failing to give an instruction of the lesser included offense of gross sexual imposition. Gross sexual imposition (R.C. 2907.05) is a lesser included offense of rape (R.C. 2907.02). State v. Johnson (1988), 36 Ohio St. 3d 224, paragraph one of syllabus. An instruction on a less- er included offense, however, should only be given when the evi- dence warrants it. State v. Jenkins (1984), 65 Ohio St. 3d 164, certiorari denied (1985), 472 U.S. 1032; State v. Thompson (1987- ), 33 Ohio St. 3d 1, 12. - 6 - In State v. Johnson (1988), 36 Ohio St. 3d 224, the supreme court held: A criminal defendant is not entitled to a jury instruction on gross sexual imposition as a lesser included offense of rape where the defendant has denied participation in the alleged offense, and the jury, considering such defense, could not reasonably disbelieve the victim's testimony as to "sexual con- duct," R.C. 2907.01(A), and, at the same time, consistently and reasonably believe her testimony on the contrary theory of mere "sexual contact," R.C. 2907.01(B). (State v. Kidder [1987], 32 Ohio St. 3d 279, 513 N.E.2d 311, and State v. Wilkins [1980], 64 Ohio St. 2d 382, 18 O.O.3d 528, 415 N.E.2d 303, ap- proved and followed.) Id., at paragraph two of syllabus. On appeal, Wall argues he merely engaged in sexual contact with the victim, not sexual conduct. He posits the prosecution never proved that defendant actually penetrated the victim's rectum, only that he touched her buttocks with his penis. Ac- cordingly, the evidence only gives rise to a charge for gross sexual imposition. "Sexual conduct" and "sexual contact" are both defined in R.C. 2901.01 as follows: (A) "Sexual conduct" means vaginal inter- course between a male and a female, and anal intercourse, fellatio, and cunnilingus be- tween persons regardless of sex. Penetra- tion, however slight, is sufficient to com- plete vaginal or anal intercourse. (B) "Sexual contact" means any touching of an erogenous zone of another, including with- out limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, - 7 - a breast, for the purpose of sexually arous- ing or gratifying either person. As previously noted, the child's testimony conclusively demonstrated that defendant engaged in anal intercourse with her. Under the Johnson standard, we find that a jury "could not rea- sonably disbelieve the victim's testimony." Johnson, supra. Nor could a jury "consistently and reasonably" believe defendant merely touched the victim's buttocks with his penis. We hold the defendant was not entitled to a jury instruction on the lesser included offense of gross sexual imposition under the facts of this case. The first assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. - 8 - 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 Cuyahoga County Court of Common Pleas 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. DYKE, P.J. BLACKMON, J. CONCUR JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. - 9 - APPENDIX ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY AS TO THE LESSER AND INCLUDED OFFENSE OF GROSS SEXUAL IMPOSITION O.R.C. 2907.05(A)(3) AS REQUESTED BY THE APPELLANT IN ITS CHARGE AND REFUSING TO PERMIT THE JURY TO CONSIDER SUCH A VERDICT IN DECIDING THE ACTION. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN OVERRULING THE MO- TION OF THE DEFENDANT-APPELLANT MADE PURSUANT TO CRIMINAL RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE AND IN REFUSING TO ISSUE A JUDGMENT OF ACQUITTAL FOR THE DEFENDANT. ASSIGNMENT OF ERROR III THE COURT ERRED IN IMPOSING A LIFE SENTENCE BASED ON THE VERDICT OF THE JURY IN THAT THE JURY MADE NO FINDING AS TO FORCE BEING USED AGAINST THE VICTIM BY THE APPELLANT IN COM- MITTING THE CRIME; THIS WOULD MAKE SUCH VIO- LATION AN AGGRAVATED FELONY OF THE FIRST DEGREE WHICH DOES NOT PERMIT THE IMPOSITION OF A LIFE SENTENCE. .