COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
 
                       COUNTY OF CUYAHOGA
 
                           NO. 85561
 
 
IN THE MATTER OF:                 :
                                  :
   C.S., a minor                  :     JOURNAL ENTRY
                                  :
   (Appellant)                    :          AND
                                  :
                                  :        OPINION
 
 
 
Date of Announcement
  of Decision:                    MAY 26, 2005
 
 
Character of Proceeding:          Appeal from Court of
                                  Common Pleas, Juvenile
                                  Division Case No. DL-
                                  04102865
 
Judgment:                         VACATED
 
Date of Journalization:
 
Appearances:
 
For Appellee State                WILLIAM D. MASON
of Ohio:                          Cuyahoga County Prosecutor
                                  PAMELA J. AUSTIN, Assistant
                                  Prosecuting Attorney
                                  1200 Ontario Street
                                  Cleveland, Ohio 44113
 
For Appellant:                    EDWARD R. LaRUE, ESQ.
                                  75 Public Square Building
                                  Suite 800
                                  Cleveland, Ohio 44113
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -2-
 
 
JAMES J. SWEENEY, J.:
 
     Defendant-appellant    C.S.1   ("defendant")    appeals   his
 
adjudication as a delinquent for sexual battery entered by the
 
Cuyahoga County Juvenile Court. For the following reasons, we
 
vacate the decision of the trial court.
 
     On April 21, 2004, a complaint was filed against the defendant
 
by Detective Seitz of the Cleveland Police Department charging
 
defendant  with   one  count   of  rape   in  violation   of   R.C.
 
2907.02(A)(2).
 
     On September 15, 2004, the court conducted an adjudicatory
 
hearing. Following the hearing, the court determined that the
 
State had not met its burden of proving rape, but had proved
 
defendant committed the offense of sexual battery, in violation of
 
R.C. 2907.03(A)(2). The court adjudicated defendant delinquent on
 
this basis. Defendant was sentenced to a term of probation.
 
     Defendant now appeals and raises two assignments of error,
 
which we find to be moot for the reasons that follow.
 
     This Court has recently held that sexual battery as defined by
 
R.C. 2907.03(A)(2) is not a lesser included offense of rape as
 
defined in R.C. 2907.02(A)(2). See State v. Hutchins, Cuyahoga
 
App.  Nos.   81578,  81579,   83421   and  83564,   2005-Ohio-501.
 
Specifically, we held that "when comparing the two offenses under
 
 
     1
     The parties are referred to herein by their initials or their
title in accordance with this Court's established policy.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -3-
 
the Deem test, a person may purposely compel another person by
 
force or threat of force to submit to sexual contact without
 
knowing that the other person's ability to appraise the nature of
 
or control his or her own conduct is substantially impaired." Id.
 
Since sexual battery under R.C. 2907.03(A)(2) is not a lesser
 
included offense of rape, the trial court erred in finding
 
defendant guilty of sexual battery. We, therefore, vacate the
 
judgment of conviction. The remaining assignments of error are
 
moot.
 
     Judgment vacated.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  -4-
 
     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 Court of Common Pleas, Juvenile Court Division 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.
 
FRANK D. CELEBREZZE, JR., P.J., CONCURS.
COLLEEN CONWAY COONEY, J., CONCURS IN
JUDGMENT ONLY.
 
 
 
 
                                         JAMES J. SWEENEY
                                              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. 22. 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. 112, Section 2(A)(1).
 
.