In re E.S.

Citation2022 Ohio 2003
Decision Date13 June 2022
Docket Number21CAF080041
PartiesIN RE: E.S.
CourtUnited States Court of Appeals (Ohio)

2022-Ohio-2003

IN RE: E.S.

No. 21CAF080041

Court of Appeals of Ohio, Fifth District, Delaware

June 13, 2022


Appeal from the Delaware County Court of Common Pleas, Juvenile Division, Case No. 20060942DL

JUDGMENT: AFFIRMED

For Plaintiff-Appellee: MELISSA A. SCHIFFEL DELAWARE CO. PROSECUTOR ELIZABETH MATUNE

For Defendant-Appellant: WILLIAM T. CRAMER

Hon. Earle E. Wise, Jr., P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

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Delaney, J.

{¶1} Appellant E.S., a juvenile, appeals from the July 12, 2021 Judgment Entry-Trial of the Delaware County Court of Common Pleas, Juvenile Division. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the record of appellant's bench trial before the juvenile court.

Testimony of Jane Doe

{¶3} This case arose on March 2, 2020, when Jane Doe went to appellant's home to watch movies; both were age 17 at the time. Two sexual encounters ensued: the first was consensual, and the second began consensually but became forcible after Doe asked appellant to stop.

{¶4} Appellant and Doe were acquaintances but not romantically involved. On this date, they connected over Snapchat and appellant asked Doe if she wanted to come to his house to watch movies. She agreed.

{¶5} Appellant lives with his grandparents. Doe arrived at the residence and appellant and his grandparents were present. Doe and appellant went to a room described as an office containing a futon and a television. The door was closed; the two turned on the television and laid down on the futon.

{¶6} According to Doe, appellant "started getting touchy" and asked if she wanted to have sex; she said yes. The two engaged in sexual intercourse. Eventually they stopped and left the room because appellant's Grandmother was preparing dinner. Grandmother asked Doe to stay for dinner and Doe acquiesced.

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{¶7} After dinner, appellant and Doe returned to the office, started another movie, and began a second sexual encounter. Doe testified that she initially consented to sexual intercourse for the second time.

{¶8} Doe testified in detail about the progress of the second encounter. She was on her back with appellant on top of her; he flipped her onto her stomach and "things escalated." Intercourse became painful and she told appellant to "stop" several times. Doe clarified that she said "stop" loudly and clearly. Appellant did not stop. Doe testified she turned over partway and put her hand up, on appellant, to signal him to stop, but he put her arm down, "pinned" her wrist to the futon, and increased the pace of his sexual activity. Appellant eventually finished by ejaculating on Doe's thigh.

{¶9} Doe testified she was exhausted as this occurred and "her body gave out." She kept telling appellant to stop but he "went harder and harder and harder and faster until he was done." T. 29. She estimated she told him to stop more than ten times. The television was on, but the volume was not loud and had not impeded their conversation at any other point.

{¶10} Doe testified she was in a "clouded state of mind" and did not fully understand what happened. She dressed and left, speaking to both of appellant's grandparents on her way out. Appellant walked her to her car. She messaged appellant on Snapchat later that day and said he held her arm down; he responded, "I know." She did not talk to appellant again and unfriended him on Snapchat.

{¶11} Doe weighed the incident in her mind and cried most of the night. The next day, she was still upset and told friends at school what happened. A teacher contacted

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Doe's parents, who picked her up from school and took her to a hospital for a SANE examination.

{¶12} Detectives questioned Doe and collected her belongings, including clothing from the night before and her cell phone.

Investigation by the Dublin Police Department

{¶13} While in possession of Doe's cell phone, a text message from appellant was received by detectives. Detective Williams of the Dublin Police Department obtained permission from Doe's mother to correspond on the phone via text as though he was Doe, and the following text conversation was later extracted from Doe's phone. The texts from Doe's phone are sent by Williams without appellant's knowledge.

Texts from appellant's phone

Texts from Jane Doe's phone

Can I talk to you please

Why??

Please

Because I want to talk about it

You clearly aren't OK with it

You think? Why did you do it?

I told you

Call me please

I told you no

Didn't hear

Stop

Ok

U kno that's bs

I trusted you

And you still can

I said I'm sorry

I said I didn't mean to

I'm telling you all this not because I want you to come back but because I mean it

You held me down

Your arm

Do you know how much this hurts me

Look I can't say or do anything to make you feel better or to change anything but I like you. I think you're amazing. I didn't

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mean to hurt you and I would literally never do it again. And you have my word.

No I don't.

But I wish I did

You know you heard me say stop

How can I forgive you when

Ur not even truthful

How can I believe you

I am being truthful

[Jane]

I like you

I didn't mean to hurt you

I don't want to do it again

I'm sorry

What are you sorry?

Yes I'm sorry

Do u even call that sex now

No

It means nothing but horrible things to me

I don't ever want to hurt you again [Jane]

Did you know that was going to happen when u asked to have sex?

No

It was supposed to be just like the first time

But I fucked up

The first time what?

We had sex

So u...

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