State v. Rodriguez, 109320
| Decision Date | 29 July 2021 |
| Docket Number | 109320 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JONATHAN RODRIGUEZ, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-643801-A
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kelly N. Mason, Assistant Prosecuting Attorney for appellee.
Susan J. Moran, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant Jonathan Rodriguez appeals his convictions for rape, attempted rape and two counts of gross sexual imposition as well as the sexually violent predator specifications attached to the rape and attempted rape counts. We affirm.
{¶ 2} Rodriguez's four counts of conviction pertain to one victim, his stepdaughter, S.V. Rodriguez was found not guilty of 24 other counts of rape, gross sexual imposition and kidnapping pertaining to S.V., two other stepdaughters and his biological daughter.
{¶ 3} Rodriguez became involved with the children's mother B.S., in Puerto Rico in 2011 before they moved to a house on Hague Avenue in Cleveland, Ohio in 2012. B.S. has six children, including three with Rodriguez.
{¶ 4} S.V. testified that Rodriguez began sexually abusing her when she was 12 years old in Puerto Rico and that the abuse continued after they moved to Cleveland.
{¶ 5} S.V. testified that Rodriguez entered her bedroom in the middle of the night when she was sleeping. Rodriguez pulled down both her pants and underwear and proceeded to touch and digitally penetrate her vagina with one hand, while touching his penis with his other. Rodriguez did these acts multiple times over the course of several years. Rodriguez told her he was in love with her and threatened that he would harm S.V, her sisters and their mother if S.V. told anybody about what he did to her. S.V. did not disclose this abuse to police until years later.
{¶ 6} Rodriguez asserts the following five assignments of error:
{¶ 7} In his first assignment of error, Rodriguez claims that the state presented insufficient evidence to sustain his convictions for attempted rape and the sexually violent predator specification.
{¶ 8} A challenge to the sufficiency of the evidence supporting a conviction requires a determination as to whether the state met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When reviewing sufficiency of the evidence, an appellate court must determine "'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.'" State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the evidence is to be believed but whether, if believed, the evidence admitted at trial would support a conviction beyond a reasonable doubt. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks at paragraph two of the syllabus.
{¶ 9} Rodriguez was convicted of attempted rape in violation of R.C. 2923.02 and 2907.02(A)(2). R.C. 2907.02(A)(2) provides: "[n]o person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force."
{¶ 10} R.C. 2923.02(A) provides: "[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense."
{¶ 11} Sexual conduct is defined in RC. 2907.01(A) as:
[V]aginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.
{¶ 12} The Ohio Supreme Court has held that a criminal attempt is an act or omission constituting a substantial step toward committing a crime. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), overruled in part on other grounds, State v. Downs, 51 Ohio St.2d 47, 53, 364 N.E.2d 1140 (1977). The act "must be strongly corroborative of the actor's criminal purpose" in order to constitute a substantial step toward the act, but need not be the last proximate act prior to the commission of the offense. Id., at paragraph one of the syllabus. This standard directs attention to overt acts of the defendant that "convincingly demonstrate" the defendant's firm purpose to commit the offense. Id. at 132. (Citations omitted.) "There must be evidence indicating purpose to commit rape instead of some other sex offense, such as gross sexual imposition, R.C. 2907.05, which requires only sexual contact." State v. Davis, 76 Ohio St.3d 107, 114, 666 N.E.2d 1099 (1996).
{¶ 13} S.V described the attempted rape at issue here as follows:
"(Interpreter) I remember that I was waking - I woke up, I was getting ready to get up, and I heard him coming out of my mother's room and I heard the steps, and then he walked into the room. The door - the lock in my room didn't work, so we couldn't lock it. We could just close it. So that's why I didn't lock the door. And then he enter in the room and I had the comforter, I was wrapped in the comforter, and he tried to remove the comforter from me. I was wrapped in the comforter and he tried - he struggled. He wanted to take the comforter away from me, and I hold onto the comforter and I said no. I was crying. I was hysterical. I was asking him to leave the room. He said if you don't let me do it, it's going to be worse for you. And he didn't leave, saying you're going to see what's going to happen. That's when he left the room.
Rodriguez argues that from this testimony it is impossible to conclude that he was attempting to rape S.V. Essentially, he argues that there is no way to conclude that he was attempting sexual conduct as opposed to sexual contact. We disagree.
{¶14} During her direct examination, S.V. testified in detail about other instances over time in which Rodriguez assaulted her:
{¶ 15} From this evidence, viewed in a light most favorable to the prosecution, we conclude that Rodriguez's attempted rape conviction is supported by sufficient evidence. In light of Rodriguez's repeated history of entering S.V.'s room and digitally penetrating her, there was sufficient evidence to infer that it was his intention to do the same during the event described.
{¶ 16} Rodriguez argues that there was insufficient...
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