State v. Ware
| Citation | 53 Ohio App.2d 210,372 N.E.2d 1367 |
| Parties | , 7 O.O.3d 280 The STATE of Ohio, Appellee, v. WARE, Appellant. |
| Decision Date | 15 June 1977 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
1. Under R.C. 2941.25(B), entry into two bodily orifices are separate rape offenses of the same or similar kind.
2. Rape and kidnapping arising out of the same incident constitute two offenses of dissimilar import, within the meaning of R.C. 2941.25(B).
Stephan M. Gabalac, Pros. Atty. and Carl M. Layman, Akron, for appellee.
James L. Burdon, Akron, for appellant.
Joseph Ware appeals his jury convictions for two counts of rape and one count of kidnapping. We affirm.
The chief prosecuting witness and victim was a thirteen year old girl. She testified that she met her assailant, Joseph Ware, in her girlfriend's home. The introduction was through Corey Frazier, her own boyfriend. The group then accompanied Corey to the marine recruiting office where they left him and returned to the girlfriend's home. She said she was then lured to the defendant's residence by his statement that he had a telephone which she could use to call home for someone to pick her up. Once there, the defendant admitted that he did not have a phone.
The defendant made approaches to her, which she resisted. He then picked her up bodily and carried her to an upstairs bedroom. Under threats of violence she undressed and submitted to acts of vaginal and anal intercourse. The medical examination revealed sperm in her vagina and a scientific testing of her panties indicated the presence of seminal fluid. Afterward, the defendant escorted Tava to her girlfriend's home. She then reported the acts to her father who seized the defendant after a short chase.
Ware testified that he spent the day drinking beer with the victim and Corey. The majority of the time was allegedly spent shooting pool in Rienzi's bar. He denied having intercourse with the victim.
The defendant contends that the sexual conduct all occurred at one time and place. He argues that there was no lapse or abandonment of purpose. He says there was but one animus and one continuous act of rape regardless of the number of penetrations or pauses to change positions. He also urges the court to apply R.C. 2941.25(A) and find him guilty of only one count if the court determines he could properly be indicted for two separate counts of rape.
The victim testified to a separate act of vaginal intercourse before the anal penetration. We hold that the entry into two bodily orifices constituted two separate acts of rape.
The phrase "two or more allied offenses of similar import" as set forth in R.C. 2941.25(A) is not applicable here. That section covers those situations where a singular criminal act constitutes more than one crime. The situation here falls under R.C. 2941.25(B), "* * * two * * * offenses of the same or similar kind committed separately * * * ." The commission of the anal rape after the vaginal rape satisfies the requirement that separate offenses be committed at different times.
R.C. 2905.01 provides, in part:
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