State v. Schaim
| Decision Date | 28 October 1992 |
| Docket Number | No. 91-1351,91-1351 |
| Citation | 65 Ohio St.3d 51,600 N.E.2d 661 |
| Parties | The STATE of Ohio, Appellee and Cross-Appellant, v. SCHAIM, Appellant and Cross-Appellee. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
1. A defendant purposely compels another to submit to sexual conduct by force or threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be used if the victim does not submit. A threat of force can be inferred from the circumstances surrounding sexual conduct, but a pattern of incest will not substitute for the element of force where the state introduces no evidence that an adult victim believed that the defendant might use physical force against her. (State v. Eskridge [1988], 38 Ohio St.3d 56, 526 N.E.2d 304, distinguished.)
2. The Sixth Amendment requires a trial court to grant an evidentiary hearing when a defendant makes a credible claim that he or she is seriously hearing-impaired. Once a court grants an evidentiary hearing to determine the degree of the defendant's disability, it is within the trial court's discretion to decide whether the defendant requires assistance to understand the proceedings and the best means to accomplish that goal.
Eric Schaim was indicted on two counts of forcible rape involving his adopted daughter, Rhonda Schaim, one count of gross sexual imposition involving his younger daughter, Leisa Schaim, and two counts of sexual imposition involving an employee, Linda Muncie. Schaim was tried in November 1989, and the prosecution introduced the following evidence at trial.
Rhonda Schaim testified that the defendant had subjected her to a pattern of sexual abuse that began when she was a preteen and continued until she was twenty years old. According to Rhonda, her father regularly gave her back rubs, and these back rubs became a prelude to sexual fondling when she was ten or eleven years old. The pattern of abuse escalated to a variety of sexual acts when Rhonda was in her mid-teens, including cunnilingus and simulated intercourse. The defendant demanded sexual acts as a form of punishment when Rhonda misbehaved, or in return for privileges. Rhonda testified that her father had vaginal intercourse with her in June 1988 and September 1988, and the defendant was tried on two counts of forcible rape pursuant to R.C. 2907.02(A)(2) based on these incidents. Rhonda was twenty years old at the time of both incidents, and testified that she did not consent. She also testified as follows:
The defendant was also tried on one count of gross sexual imposition pursuant to former R.C. 2907.05(A)(3), now (A)(4), relating to his conduct with his younger daughter, Leisa. Rhonda testified that she saw the defendant rub Leisa's back, but that she couldn't tell if he was doing more than rubbing her back. Leisa testified that her father regularly gave her backrubs. She also testified that on a single occasion he touched her buttock underneath her underwear during the course of a backrub. When she made a sound to indicate that she didn't like this, he pulled his hand away and did not do it again.
The third set of charges (two counts of sexual imposition pursuant to R.C. 2907.06) were based on two incidents between the defendant and an employee, Linda Muncie. Muncie testified that on August 26, 1987 the defendant put his hand underneath her blouse and attempted to put his hand underneath her bra. She told him to stop and he did, but then he tried it again. The defendant allegedly made a similar attempt the next day.
The jury convicted Schaim of two counts of forcible rape involving Rhonda Schaim and one count of gross sexual imposition involving Leisa Schaim. The defendant was acquitted of the sexual imposition charges involving Linda Muncie.
The defendant appealed to the Hamilton County Court of Appeals. The court of appeals held that the state had not introduced sufficient evidence to support the forcible rape convictions because the state did not prove that the defendant used force or the threat of force as required by R.C. 2907.02(A)(2). 1 The court affirmed the defendant's conviction for gross sexual imposition.
Defendant appeals from that part of the decision that affirmed his conviction for gross sexual imposition, and the state cross-appeals from the court's reversal of the forcible rape convictions.
The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.
H. Fred Hoefle, Cincinnati, for appellant and cross-appellee.
Arthur M. Ney, Jr., Pros. Atty., and Ronald W. Springman, Jr., Asst. Pros. Atty., Cincinnati, for appellee and cross-appellant.
Dinsmore & Shohl, Kenneth S. Resnick and Jennifer A. Adair, Cincinnati, urging reversal in defendant's appeal for amicus curiae, Cincinnati Speech and Hearing Center.
Harry R. Reinhart, Columbus, urging dismissal of the state's cross-appeal on behalf of amicus curiae, Ohio Ass'n of Criminal Defense Lawyers.
The appellant and cross-appellant raise a number of issues for our review. The first part of the opinion discusses the issue raised by the cross-appeal, which concerns the element of force required by R.C. 2907.02(A)(2). We agree with the court of appeals that Rhonda Schaim's testimony does not support a conviction pursuant to R.C. 2907.02(A)(2). The second part of the opinion addresses the defendant's appeal on the remaining charge against him, gross sexual imposition, and reverses that conviction and remands the case for a new trial because the trial court committed prejudicial error in refusing to grant the defendant's motion to sever. The third part of the opinion addresses the rights of a hearing-impaired defendant.
The state urges this court to adopt the position that the defendant's alleged pattern of sexual abuse of his daughter, Rhonda, is sufficient to uphold a conviction for forcible rape even though the victim admits that the defendant did not use physical force or the threat of physical force. The state relies heavily on State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, in support of its position. We agree with the court of appeals that State v. Eskridge does not apply to this case and that the state did not prove the elements of forcible rape.
R.C. 2907.02(A)(2) prohibits sexual conduct where the offender "purposely compels the other person to submit by force or threat of force." R.C. 2901.01 defines "force" as "any violence, compulsion, or constraint physically exerted by any means upon or against a person." In State v. Eskridge, we addressed the case of a father who had vaginal intercourse with his four-year-old daughter. We recognized that coercion is inherent in the parent-child relationship and that under these special circumstances "[f]orce need not be overt and physically brutal, but can be subtle and psychological." State v. Eskridge, 38 Ohio St.3d at 58-59, 526 N.E.2d at 306.
State v. Eskridge is based solely on the recognition of the amount of control that parents have over their children, particularly young children. Every detail of a child's life is controlled by a parent, and a four-year-old child knows that disobedience will be punished, whether by corporal punishment or an alternative form of discipline. Because of the child's dependence on his or her parents, a child of tender years has no real power to resist his or her parent's command, and every command contains an implicit threat of punishment for failure to obey. Under these circumstances, a minimal degree of force will satisfy the elements of forcible rape. Id., paragraph one of the syllabus.
The same rationale does not apply to an adult. No matter how reprehensible the defendant's alleged conduct, a woman over the age of majority is not compelled to submit to her father in the same manner as is a four-year-old girl. She is no longer completely dependent on her parents, and is more nearly their equal in size, strength, and mental resources. Although we are aware of the devastating effects of incest on its victims, and are sympathetic to the victim whose will to resist has been overcome by a prolonged pattern of abuse, we reluctantly conclude that a pattern of incest is not always a substitute for the element of force required by R.C. 2907.02(A)(2). A defendant purposely compels another to submit to sexual conduct by force or threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be used if the victim does not submit. A threat of force can be inferred from the circumstances surrounding sexual conduct, but a pattern of incest will not substitute for the element of force where the state introduces no evidence that an adult victim believed that the defendant might use physical force against her.
In reviewing the sufficiency of the evidence, our task is to determine whether there was evidence presented which, "if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. We conclude that the court of appeals was correct in finding that the state did not offer sufficient evidence on the element of force. Rhonda testified that "he didn't force me" and there was no evidence offered that the defendant threatened her during the incidents in question. The prosecution did not introduce evidence that the defendant had used physical force or threatened Rhonda with physical force in the...
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