State v. Wilkins

Decision Date30 December 1980
Docket NumberNo. 80-419,80-419
Citation415 N.E.2d 303,18 O.O.3d 528,64 Ohio St.2d 382
Parties, 18 O.O.3d 528 The STATE of Ohio, Appellant and Cross-Appellee, v. WILKINS, Appellee and Cross-Appellant.
CourtOhio Supreme Court

Syllabus by the Court

Sexual battery, as defined in R.C. 2907.03(A)(1), may be a lesser included offense of rape, as defined in R.C. 2907.02(A)(1).

On July 27, 1978, Vincent J. Wilkins was indicted for the crime of rape in violation of R.C. 2907.02. He entered a plea of not guilty and was subsequently tried in the Court of Common Pleas of Cuyahoga County.

At trial, the alleged victim, Brenda B., testified that as she and Wilkins, a long-time friend of her brother, walked home from the Cleveland Aquarium grounds at approximately 4 a. m. on July 5, 1978, Wilkins forced himself upon her, despite her protestations, and engaged in sexual conduct with her. She denied that she had any earlier sexual conduct with anyone.

Horace Smith, who lived adjacent to the park where the alleged rape occurred, testified that he heard a woman desperately screaming, "Don't take my pants off," and a man saying, "Open your legs." He testified that he called the police and, upon the arrival of two officers, that he entered the park with one of the officers, where he saw defendant, with his pants down, jump up from on top of Brenda.

Paul Thornton, the police officer who accompanied Smith, testified that he overheard similar exchanges between the man and woman as he approached the park. He said that when he came upon the couple in the park he saw defendant, with his pants down, on top of Brenda, whom he testified had her pants pulled down as well. Thornton's partner, Lauren Selman, came from the other side of the park and testified that he originally heard a woman screaming for help and that when he arrived on the scene the defendant and Brenda were standing apart and the defendant was pulling his pants up.

Dr. James F. Brandman testified that an examination he performed on Brenda later in the morning of July 5, 1978, revealed no sperm within her but did reveal two internal cuts in her pelvic area. In his opinion the cuts were only several hours old at that time.

Wilkins, the sole defense witness, testified that he had sexual relations with Brenda in the past and that as they walked back from the aquarium, Brenda suggested that they engage in sexual conduct in the park and had even yelled at him when he originally refused. He said that he finally relented, but that when he thought he saw a silhouette he got up, and that as she got up she became angry and began yelling at him. After they started to walk away, according to Wilkins, the police arrived.

The state offered a pair of blue jeans which were admitted in evidence over defendant's objection. The zipper on the pants was broken. Brenda testified that they were the ones she had worn on the day of the incident and that they had been laundered at her home.

In his closing argument defendant's counsel improvised on the evidence. He contended that both Brenda and defendant had lied because they were embarrassed by the events of July 5, 1978. Counsel further stated that they had been engaged in consensual sexual conduct before the intrusion and Brenda had, out of fear and shame, screamed and claimed rape.

On October 6, 1978, the jury found Wilkins guilty of rape in violation of R.C. 2907.02(A)(1). The court did not instruct the jury on the crime of sexual battery as defined in R.C. 2907.03(A)(1).

Defendant moved for a new trial through different counsel, claiming that there were witnesses who would testify that they had heard Brenda say that she had not been raped. He claimed that this testimony would have had a material effect on the jury's deliberations. At a hearing, three new witnesses as well as defendant's trial counsel testified. The witnesses testified that Brenda had told them that she had not been raped. Trial counsel testified that he had an investigator interview the two witnesses whom he had been aware of and that they had not indicated that they would so testify at that time. The court overruled the motion.

On appeal, defendant argued, inter alia, that the trial court had erred (1) in failing to instruct the jury on sexual battery, (2) in admitting the pants, and (3) that he was entitled to a new trial because he had been denied effective assistance of counsel.

The Court of Appeals reversed and remanded, holding that the trial court had erred in failing to instruct on sexual battery. The court also held that the trial court had erred in admitting the pants but that the error was not prejudicial, and that defendant had not been denied effective assistance of counsel.

The state has appealed the judgment concerning the alleged error of the trial court in failing to instruct the jury on sexual battery. The defendant has cross-appealed, arguing that admission of the pants was prejudicial error and that he was denied effective assistance of counsel.

The cause is now before the court upon the allowance of a motion and cross-motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Thomas J. Wagner, Asst. Pros. Atty., for the State.

Anthony F. de la Pena, Cleveland, for Wilkins.

CELEBREZZE, Chief Justice.

R.C. 2945.74 states in part:

"The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense."

An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.

The trial court's instruction to the jury was solely on the offense of rape as defined in R.C. 2907.02(A)(1). R.C. 2907.02 states in part:

"(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:

"(1) The offender purposely compels the other person to submit by force or threat of force."

R.C. 2907.03(A)(1) defines sexual battery as follows:

"(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:

"(1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution."

As to requirement (i) above, sexual battery, a felony of the third degree, is an offense of a lower degree than rape which is a felony of the first degree.

Most recently, in State v. Merriweather (1980), 64 Ohio St.2d 57, 413 N.E.2d 790, we were confronted with the issue of whether robbery as defined in R.C. 2911.02 may be a lesser included offense of aggravated robbery as defined in R.C. 2911.01(A)(1). In assessing the two crimes under requirement (ii) we scrutinized the differences between the offenses in order to determine if aggravated robbery could be committed without robbery also being committed.

Utilizing this same technique, the definition of sexual battery differs from the definition of rape in two respects. A rape occurs only if the perpetrator purposely compels the other to submit by force or threat of force. A sexual battery occurs if the perpetrator knowingly coerces the other to submit by any means which would prevent resistance by a person of ordinary resolution.

Force or the threat of force will always constitute coercion that would prevent resistance by a person of ordinary resolution. This is made clear in the Committee Comment to R.C. 2907.03 which states, in relevant part, that "sexual conduct by coercion * * * is somewhat broader that sexual conduct by force." Although we are not bound by Committee Comments, where, as here, they are consistent with the statutes, we will concur in them. R.C. 2901.22(E) states in relevant part:

"When knowledge suffices to establish an element of an offense, then purpose is also sufficient culpability for such elements."

Because proof of purpose is always sufficient to prove knowledge, and because force or threat of force always constitutes coercion which would prevent resistance by a reasonable person, the offense of rape as defined in R.C. 2907.02(A)(1) cannot be committed without the offense of sexual battery as defined in R.C. 2907.03(A)(1) also being committed.

Finally, as to requirement (iii), we must determine if some element of the greater offense is not required to prove the commission of the lesser offense. Coercion for purposes of sexual battery is broader than the force required to prove rape and necessarily includes all uses of force. Force is not required to prove coercion. In this sense, sexual battery may be a lesser included offense of rape.

A more difficult question is presented by the mental state requirement of the two offenses. The issue is whether a person can knowingly coerce another to engage in sexual conduct by use or threat of force and not purposely do it as well.

R.C. 2901.22(A) states:

"A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature."

This bifurcated definition of "purpose" is intended to encompass both those crimes where the result must be intended, such as causing death, in the crime of murder, and those offenses where the act itself is all that must be intended, such as engaging in sexual conduct in the crime of rape.

R.C. 2901.22(B) states:

...

To continue reading

Request your trial
912 cases
  • Tolliver v. Sheets
    • United States
    • U.S. District Court — Southern District of Ohio
    • January 18, 2008
    ...N.E.2d 866. "A strict chain of custody is not always required in order for physical evidence to be admissible." State v. Wilkins (1980), 64 Ohio St.2d 382, 389, 415 N.E.2d 303. "The practicalities of proof do not require the state to negate all possibilities of substitution or tampering. Th......
  • State v. Jenkins
    • United States
    • Ohio Supreme Court
    • December 17, 1984
    ...defendant." Later cases, however, have shown that the Loudermill rule is not absolute. For example, in State v. Wilkins (1980), 64 Ohio St.2d 382, 415 N.E.2d 303 [18 O.O.3d 528], at 387, we commented that, "[t]he mere fact that an offense can be a lesser included offense of another offense ......
  • State v. Phillips
    • United States
    • Ohio Supreme Court
    • November 22, 1995
    ...of the attorney's decisions at the time they are made, not at the time of our assessment." State v. Wilkins (1980), 64 Ohio St.2d 382, 390, 18 O.O.3d 528, 533, 415 N.E.2d 303, 309. Debatable trial tactics generally do not constitute a deprivation of effective counsel. State v. Clayton (1980......
  • State v. Conway
    • United States
    • Ohio Supreme Court
    • March 8, 2006
    ...in a light most favorable to defendant. State v. Smith (2000), 89 Ohio St.3d 323, 331, 731 N.E.2d 645; State v. Wilkins (1980), 64 Ohio St.2d 382, 388, 18 O.O.3d 528, 415 N.E.2d 303. {¶ 134} Nevertheless, an instruction is not warranted every time any evidence is presented on a lesser inclu......
  • Request a trial to view additional results
2 books & journal articles
  • § 26.02 REAL EVIDENCE
    • United States
    • Carolina Academic Press Understanding Evidence (CAP) Title Chapter 26 Real and Demonstrative Evidence
    • Invalid date
    ...— the exhibit may still be admitted if the changes can be explained, and they do not destroy the evidentiary value of the object.").[5] 415 N.E.2d 303 (Ohio 1980).[6] See State v. Conley, 288 N.E.2d 296, 300 (Ohio App. 1971) ("If an exhibit is directly identified by a witness as the object ......
  • § 26.02 Real Evidence
    • United States
    • Carolina Academic Press Understanding Evidence (2018) Title Chapter 26 Real and Demonstrative Evidence
    • Invalid date
    ...exhibit may still be admitted if the changes can be explained, and they do not destroy the evidentiary value of the object.").[5] 415 N.E.2d 303 (Ohio 1980). [6] See State v. Conley, 288 N.E.2d 296, 300 (Ohio App. 1971) ("If an exhibit is directly identified by a witness as the object which......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT