COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72063 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) -VS- ) AND ) JESSE DAVIS ) OPINION ) Defendant-Appellant ) Date of Announcement of Decision: FEBRUARY 12, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-334856 Judgment: Reversed; defendant discharged. Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES ROBERT DeMARCO, ESQ. Cuyahoga County Prosecutor 1750 Standard Building DANIEL M. MARGOLIS, Assistant 1370 Ontario Street Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Jesse Davis appeals from his conviction following a bench trial for felonious sexual penetration of a small child pursuant to R.C. 2907.12(A)(1)(b). Defendant contends the trial court erred in finding the defendant guilty and sentencing him to life imprisonment when the evidence was insufficient to support the conviction; the indictment did not contain a specification of force; there was no evidence of force or penetration; and the court improperly admitted verbatim testimony from a police report. We find merit to the appeal and reverse for the reasons hereinafter stated. The State's evidence portrayed the following facts at trial. On October 24, 1995, at around 12:30 a.m., Erick Coston, father of Jazzmine Coston, (two and a half years old), returned to the home where he and his daughter had been living rent-free for the past year with defendant. Defendant was often responsible for babysitting Jazzmine while Coston was away. Coston intended to borrow defendant's car. Coston went to defendant's bedroom where defendant was seated on the edge of the bed. Jazzmine was lying on the same bed, wearing only a shirt with her bottom half covered by a blanket. This, in itself, was not unusual according to Coston as Jazzmine frequently slept with defendant, as she did with her father. Coston and defendant went downstairs to look for the car keys and Coston alone returned upstairs when the keys were not discovered. Coston noted that defendant was sweating and agitated during this period. -3- Coston returned to defendant's bedroom alone and twice asked his daughter to get out of the bed. When she did not respond, he pulled the covers back to reveal she was not wearing a diaper and was naked from the waist down. Coston claimed it was not typical for his daughter to go without a diaper. Coston yelled downstairs and asked defendant what Jazzmine was doing on his bed without a diaper. Defendant made no response. Coston then examined Jazzmine and discovered blood around her vagina. He confronted defendant with this who responded, I forgot to tell you she was bleeding. Defendant claimed he did not know where the blood came from. Defendant had made no effort to contact Coston prior to his return to the house, nor did he make any effort to contact Coston's neighbor-aunt or EMS. Coston then saw blood on Jazzmine's potty seat and again confronted defendant with this fact. Defendant responded, I know what you're thinking, it wasn't me. Coston left with Jazzmine and consulted with his aunt who lived a couple of houses away and she recommended that Jazzmine be taken to the hospital to see if she had been penetrated. Coston returned to the home and at gunpoint forced defendant to accompany him and his daughter to Rainbow Babies' and Children's Hospital. Defendant was left in the waiting room while the father took the child into the emergency room where she was examined by three physicians. Dr. Wilde, the emergency room pediatrician who examined Jazzmine, testified that Jazzmine suffered an injury to her rectum as it was forced to stretch past its capacity. This was reflected -4- by two fissures in the rectal area. The doctor testified a hard stool could cause an injury of this sort, but ordinarily would only be accompanied by a small amount of bleeding. However, as Jazzmine had lost an extremely large volume of blood, this, in the doctor's opinion, was inconsistent with the passing of a hard stool. It was the doctor's opinion that the injuries were caused by some external trauma and not a hard stool, however, he also stated he had never seen a case where an external object caused rectal fissures like Jazzmine's. The doctor testified that based upon the history taken from the father, his own training and experience, the injuries were consistent with sexual abuse. He also testified, however, that he could not exclude the possibility that the fissures were caused by something other than sexual abuse. Defendant was arrested in the hospital waiting room and taken downtown to police headquarters. Detective Laura Parker of Cleveland Police Sex Crimes/Child Abuse Unit interviewed defendant in her office. During the trial, Detective Parker read into the record her report based on the interview and oral statement of defendant. Prior to the report being read into the record, Detective Parker testified that she did not have a complete present recollection of the interview and that the written report was accurate. According to the report, defendant told Detective Parker that Jazzmine must have injured herself by inserting a pen into her vagina. During the interview defendant did not admit responsibility for what happened to Jazzmine. Defendant testified -5- that he had put Jazzmine on the potty with a pen and paper to keep her occupied. However, defendant denied ever telling the detective that she must have stuck a pen into her vagina. Defendant testified on his own behalf that he was babysitting Jazzmine; that he had previously seen Coston whip the child with a belt for not being toilet-trained; that on the night in question her father left her on the potty; when she kept getting on and off the potty, he gave her a pen and paper to occupy her so she would stay on the potty; when she came into his room again he noticed she was bloody on her vaginal area; he wiped her off with toilet tissue and the bleeding appeared to stop; he put her on the bed under the blanket. He claimed he did not put a diaper on the child because the father told him there was only one left and not to use the diaper. He claimed he did not call the father or EMS because he thought he had the situation under control. The child did not testify and there was no evidence of previous episodes. Following the State's case, a rape count was dismissed by the trial court as speculative. The trial court found defendant guilty of felonious sexual penetration. Defendant was sentenced to life imprisonment. This timely appeal ensued. We find Assignment of Error I dispositive of this appeal. I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL ON COUNT TWO. At the close of the State's case, defendant moved for acquittal pursuant to Crim.R. 29(A) on both counts (rape and felonious sexual penetration). -6- In arguing against the motions, the prosecutor cited no evidence nor offered argument under Count Two (felonious sexual penetration), except to say: the State has offered sufficient evidence regarding Count No. 2 such that defense counsel's motion should be denied. In fact, I would submit to the court, the State of Ohio has proven this Count beyond a reasonable doubt at this point. (Tr. 344) As to Count One (rape), the prosecutor stated as follows: *** relying chiefly upon circumstantial evidence what occurred to the child as well as the perpetrator. I believe that trier of fact could reasonably draw the inference, that in this case, the Defendant in fact engaged in sexual conduct with Jazzmine Coston inserting his penis into her rectum and that was the nature or the cause of the trauma to her ***. (Tr. 344) The court rejected the rape argument as speculative in granting the motion as to Count One, saying: Look, relative to Count One, I understand what you're saying. While that's theoreti- cally possible, the issue is proof beyond a reasonable doubt. I am granting the Motion as to Count One. (Tr. 345) The court overruled the motion as to Count Two without comment and the defendant proceeded to his case-in-chief. The only factual distinction between the rape count and the felonious sexual penetration count is that the thing allegedly inserted in the victim's rectum was a penis in the former and an object or body part in the latter. The offense of felonious sexual penetration is defined as follows in R.C. 2907.12(A)(1): No person *** shall insert any part of the body, or any instrument, apparatus or other object into the vaginal or anal cavity of -7- another who is not the spouse of the offender *** when *** (b) the other person is less than thirteen years of age ***. Without any explanation from the trial court, we must assume that to overrule the motion as to Count Two, the court found sufficient evidence to sustain a conviction that defendant inserted some unidentified object or body part in the victim's rectum but not his penis. Given this state of the record we must consider our role in reviewing a challenge to the sufficiency of the evidence. In State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the Supreme Court noted as follows: With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6th Ed. 1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1983), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Supreme Court described the role of the appellate court in reviewing the sufficiency of the evidence to support a conviction as follows: -8- An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, [supra]. R.C. 2901.05 defines the burden of proof and the standard of reasonable doubt as follows: (A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. * * * (D) Reasonable doubt is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs. By enacting R.C. 2901.05(D) with separate definitions for `reasonable doubt' and `proof beyond reasonable doubt' our legislature has expressed its clear intention that the standard for proving guilt beyond a reasonable doubt be explained in both qualitative and quantitative terms. State v. Van Gundy (1992), 64 Ohio St.3d 230, 233. This Court has given practical application to -9- the Jenks standard, supra, by stating that [r]easonable doubt is created by contemplation of competing constructions of the evidence. State v. Duganitz (1991), 76 Ohio App.3d 363, 368. We shall do the same. We have carefully considered and compared all the evidence in a light favorable to the prosecution and find that the evidence was insufficient to establish the crime of felonious sexual penetration beyond a reasonable doubt. The State has failed to establish beyond a reasonable doubt that the defendant inserted any object or body part into the victim's rectum or vagina. Dr. Wilde, the medical expert called by the prosecution who examined the child at the hospital, found no signs of trauma to the vagina. (Tr. 217). He stated that the only abnormalities he saw in the genital area were two small fissures in the rectum. (Tr. 218, 251). Dr. Wilde stated that the most common cause of rectal fissures in children is a hard stool. He stated that trauma directed at the rectum externally from a sharp object is not going to cause injuries like these. He excluded the possibility that the fissures were caused by stabbing, puncture, slicing or laceration. (Tr. 219-20). Although he ruled out other internal causes of the bleeding, neither he nor the other two emergency room physicians did an internal examination of the vagina or rectum. Dr. Wilde found that the large amount of blood was inconsistent with a stool being passed as the cause of the fissures. He concluded that the child's history and physical condition was consistent with sexual abuse. (Tr. 225). -10- In concluding his direct examination, the prosecutor renewed his inquiry of Dr. Wilde: Prosecutor: Just one final I guess area of questions. When you were testifying that an external object could cause rectal fissures, what type of object in general would be likely to cause rectal fissures such that you found on Jazzmine Coston? Dr. Wilde: I have never seen a case where an external object caused rectal fissures like this. (Tr. 228) On cross-examination, Dr. Wilde testified it was not his function to diagnose sexual abuse; he is only diagnosing potential for sexual abuse; he conceded the rape kit swab was negative for blood or semen in the rectal area; that none of three doctors, including himself, marked the box on the hospital form that the abnormalities found (rectal fissures) were Indicative of Sexual Abuse ; he could not exclude other possible causes; he could not say the large amount of blood came from fissures; an erect male penis, as well as a finger, object or large stool could have caused the fissures; it could have been any of these; the fissures did not cause this kind of bleeding; the fissures were most likely caused by external trauma, but he could not say with certainty. In this jurisdiction,an expert opinion is competent only if it is held to a reasonable degree of scientific certainty. State v. Benner (1988), 40 Ohio St.3d 301, 313. The examination by Dr. Wilde also noted other signs of trauma to the victim, to wit: scars from a whipping with a belt buckle -11- which the victim's father, not the defendant, had inflicted several months earlier. (Tr. 227, 263). There was other evidence that the father repeatedly whipped the child with a belt when she would fail to tell him of her need to go to the bathroom. (Tr. 353). Dr. Wilde said such a whipping could cause internal injuries and scar tissue which could result in bleeding. (Tr. 260). Dr. Wilde stated that by no means did his testimony exclude the possibility of something other than sexual abuse causing the victim's condition; that such physical findings did not always indicate sexual abuse; and he was aware of studies and even attended seminars devoted to the issue that such signs are not always an indicator of sexual abuse. (Tr. 247-68). The state of the medical testimony was contradictory at best and speculative at worst. No internal examination of the child was ever made to determine the cause of the mysterious bleeding. The trial court properly found that there was no rape because the proof was not sufficient beyond a reasonable doubt. We find the same may be said of the felonious sexual penetration count. Cf. State v. Black(1993), 87 Ohio App.3d 724, 729-730 (Doctor's testimony that injuries could be consistent with sex abuse of a child was clearly insufficient to make a prima facie case when doctor also testified that there were other possible causes of vaginal findings). The other circumstantial evidence is not sufficient to support the conviction beyond a reasonable doubt. There was no satisfactory explanation as to why the child was bleeding. Indeed, there was significant circumstantial evidence that the bleeding -12- came from the vagina and not the rectum, i.e., there was no internal examination of the vagina; father and defendant saw blood in the vaginal area; the front of the potty seat was covered with blood; the vaginal swab was positive for blood; the rectal swab was negative; there was no trail of blood from the bed to the potty. It was just as logical to assume from this evidence that the child punctured herself vaginally with the pen while sitting on the potty. The fact that defendant was nervous and sweating; that he acted suspicious to the father in getting the car keys; that he said I know what you're thinking, I didn't do it , is not sufficient to establish that this defendant penetrated this child with some unidentified object beyond a reasonable doubt. We are mindful of the difficulties of proof with which the State must contend in sexual abuse cases involving small children left in the care of adults. We are troubled by the mysterious bleeding for which there is no apparent satisfactory medical explanation on the record. We acknowledge that the father's suspicions placed the fault with defendant. Nevertheless, suspicion cannot take the place of evidence beyond a reasonable doubt. We find no such evidence here. Assignment of Error I is sustained. Because of our disposition of Assignment of Error I, the remaining assignments of error are moot. App.R. 12(A)(1)(c). Judgment reversed; defendant discharged. -13- It is ordered that appellant recover of appellee his 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. MCMONAGLE, J., CONCURS. KENNETH A. ROCCO, J., DISSENTS. (SEE DISSENTING OPINION ATTACHED). _________________________ JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72063 STATE OF OHIO : : Plaintiff-appellee : DISSENTING : vs. : OPINION : JESSE DAVIS : : Defendant-appellant : DATE OF DECISION: ___________________ KENNETH A. ROCCO, J. DISSENTING: Considering the life imprisonment penalty imposed, the majority's concern about the sufficiency of the evidence is understandable. I share that concern and regret that this court does not have direct evidence of appellant's guilt. Perhaps, in this case, an internal examination of the child should have been performed prior to the state's decision to seek the defendant's imprisonment for life. Nevertheless, I respectfully dissent from the majority's reversal of appellant's conviction since I find that the circumstantial evidence is sufficient to permit a rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt. Crim.R. 29(A) states that a motion for acquittal shall be granted if the evidence is insufficient to sustain a conviction of the offense. The supreme court provided guidance for an appellate court ruling on the sufficiency of the evidence in State -2- v. Jenks (1991), 61 Ohio St.3d 259. Jenks modified the previous standard for reviewing the denial of a Rule 29(A) motion put forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, which required an inquiry into whether reasonable minds could reach different conclusions on the evidence presented. Bridgeman, supra at 263. Jenks, while replacing that standard, does not disturb other essential elements of Bridgeman: the evidence must be viewed in the light most favorable to the government, and a Rule 29(A) motion for acquittal must be denied if a reasonable mind might fairly find guilt beyond a reasonable doubt. Bridgeman, supra at 263. Jenksretained Bridgeman's essential deference to the findings of the trier of fact below by holding that [t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks, supra at 259-260 (syllabus). The supreme court in Jenks clarified the reviewing court's role in deferring to the determinations by the trier of fact by stating that: *** the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after view- ing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a rea- sonable doubt. Jenks, supra at 273 (emphasis added). The court in Jenks stressed that [t]he verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion -3- reached by the trier of facts. Id. (Emphasis added.) A deference to the findings of fact below is clearly indicated. The majority states that it has carefully considered and compared all the evidence in a light favorable to the prosecution and finds that the evidence was insufficient to establish the crime of felonious sexual penetration beyond a reasonable doubt. Op. at 10. But, according to Jenks, *** the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is *** whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks, supra at 273. (Emphasis added.) The majority conducts an extensive review of the medical testimony, which it terms contradictory at best and speculative at worst. Op. at 12. However, on key points, Dr. Wilde's expert testimony is clear. Dr. Wilde testified that there could be two causes for the girl's rectal injuries: passing a hard stool or external trauma. T. at 222. Dr. Wilde testified that the girl's injuries were fissures from abnormal rectal stretching. T. at 220. Q. So based on your experience, these in- juries were caused by the rectum being forced to stretch past its capacity. Would that be correct? A. Yes. T. at 220. When asked to state his opinion of the cause of the injuries, Dr. Wilde testified that the fissures were injuries most likely caused by external trauma. T. at 286. It is not clear why the majority feels this is not a satisfactory medical explanation. Op. at 14. The other possible cause of the injuries established by expert testimony was the passing of a hard stool (not the strain of attempting to pass a stool). Testimony established that the girl -4- passed no stool that night. T. at 419-420. Furthermore, Dr. Wilde testified that he had never seen such a large amount of blood (as here) that could be attributable to a hard stool. T. at 225. If the injuries were not caused by passing a hard stool, that leaves external trauma as the cause. Indeed, Dr. Wilde testified that the fissures were injuries most likely caused by external trauma. T. at 286. Dr. Wilde did testify that rectal trauma is relatively unusual. T. at 224. Whether rectal trauma is usually found in sexual abuse cases is irrelevant. Dr. Wilde testified that this girl's condition was consistent with sexual abuse. T. at 225. Q. Did you come to make a diagnosis regarding the injuries to Jazzmine Coston based upon your total experience, your observation of Jazzmine Coston, the amount of blood associated with the injuries, and the patient history that you received? A. I felt that her condition, her history and physical were consistent with sexual abuse. T. at 225. Dr. Wilde also testified that he had never seen a case where a child has purposely stuck something into their bottom and caused damage as a result, which was one alternative theory offered by defendant at one point. T. at 228. There were only two persons in the home that night who could have caused external trauma resulting in the girl's injuries: the defendant and the girl. Doctors are often hesitant to state with certainty that an injury was caused by a specific event when another explanation is -5- within the range of possibility, however distant. However, a court of law can come to conclusions based on circumstantial evidence. Jenks affirms that [c]ircumstantial evidence is no more and no less probative than direct evidence. Jenks, supra at 283. In reviewing a conviction relying entirely on circumstantial evidence to prove an essential element of the offense, Ohio courts had previously relied on the so-called Kulig rule. State v. Kulig (1974), 37 Ohio St.2d 157. The Kulig rule had required an appellate court to re-examine the circumstantial evidence to determine if the defendant's theory of innocence is plausible or reasonable. Jenks, supra at 264. However, the supreme court in Jenks rejected the Kulig analysis, stating that there can be no bright-line distinction regarding the probative force of circum- stantial and direct evidence. Id. at 272. The Jenks court made it clear that [a]n appellate court will no longer conduct a review of the evidence to determine if the state's theory of guilt is irreconcilable with any reasonable theory of innocence. Id. at 283. The majority's extensive review and weighing of the medical testimony is beyond the permissible scope of review under Jenks. Nonetheless, the majority states that [t]here was no satisfactory explanation as to why the child was bleeding. Op. at 13. On the contrary, Dr. Wilde testified that the fissures were injuries most likely caused by external trauma. T. at 286. The girl was in appellant's custody all evening. Appellant apparently suggested at one time that the girl may have injured herself with a pen. T. at -6- 337, 355. However, the medical testimony excluded this possi- bility as the injury was not a laceration or a puncture. T. at 220. The only element of the offense of felonious sexual penetration that was at issue at trial was whether appellant inserted any part of the body, or any instrument, apparatus or other object into the vaginal or anal cavity of the victim. R.C. 2907.12(A)(1). The supreme court in Jenks has held that the relevant inquiry on a review of a Rule 29(A) motion for acquittal does not involve how the appellate court might interpret the evidence. Jenks, supra at 273. Given that one of the two possible causes of the injury established by expert testimony, the passing of a hard stool, was ruled out by testimony at trial, and given that appellant was alone with the girl all evening, and given that medical testimony established that the girl's injuries were most likely caused by external trauma, a reasonable trier of fact could find, and did find, that appellant was guilty inserting a part of the body or an instrument, apparatus or other object into the vaginal or anal cavity of the victim and thus was guilty of committing this offense. As the supreme court has held that a verdict should not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts, id. .