[Cite as In re T.K., 2011-Ohio-5024.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

 : 

C.A. CASE NO. 24613 

 : 

IN RE: T.K. T.C. CASE NOS. 2010-9566-01 

 : 2010-9566-02 

2010-9566-03 

 : 

 : (Criminal Appeal From 

Juvenile Court) 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 30th day of September, 2011. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Prosecuting Attorney, Johnna M. Shia, Atty. 

Reg. No. 0067685, Assistant Prosecuting Attorney, Montgomery 

County Prosecutor’s Office, Montgomery County Courts Building, 

P.O. Box 972, 301 West Third Street, Dayton, OH 45422 

Attorneys for Plaintiff-Appellee 

Mark T. Ross, Atty. Reg. No. 0070446, 137 N. Main Street, Suite 

516, Dayton, OH 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

Defendant, T.K., a minor child, appeals from an order of the 

juvenile court adjudicating him a delinquent child. 

On the evening of July 5 and the morning of July 6, 2010, 

T.K., who was twelve years old at the time, was visiting at his 
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father’s home. T.K.’s half-brother, who was five years old, also 

lived at his father’s home. At some point during the morning of 

July 6th, the mother of T.K.’s half-brother walked into T.K.’s room 

and saw T.K. sitting in a chair with his half-brother on top of 

him. According to the mother, both children were naked and T.K. 

was rocking his half-brother in a “humping” motion. The police 

were called. 

On August 13, 2010, Detective Todd Comer of the Miami Township 

Police Department interviewed T.K. During the interview, T.K. 

admitted that three times in the past year he had touched his 

half-brother’s penis with his hand and one time he had put his 

mouth on his half-brother’s penis. 

On November 2, 2010, T.K. was charged by complaint in juvenile 

court with two counts of gross sexual imposition in violation of 

R.C. 2907.05(A)(2), a third degree felony if committed by an adult, 

and one count of rape in violation of R.C. 2907.02(A)(1)(b), a 

first degree felony if committed as an adult. T.K. filed a motion 

to suppress statements he made during his interview with Detective 

Comer. The juvenile court denied T.K.’s motion. 

On February 18, 2011, an adjudication hearing was held and 

the juvenile court found T.K. responsible for committing one count 

of gross sexual imposition and one count of rape, as charged in 

the complaint. The juvenile court dismissed the second count of 
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gross sexual imposition. On March 30, 2011, the juvenile court 

ordered T.K. committed to the legal custody of the Department of 

Youth Services for institutionalization in a secured facility for 

a minimum period of twelve months on the count of rape and a minimum 

period of six months on the count of gross sexual imposition. 

The juvenile court suspended that commitment and placed T.K. on 

probation. T.K. filed a timely notice of appeal. 

FIRST ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN FINDING APPELLANT RESPONSIBLE FOR 

GROSS SEXUAL IMPOSITION IN VIOLATION OF R.C. 2907.05(A)(2).” 

R.C. 2907.05(A) provides, in part: 

“No person shall have sexual contact with another, not the 

spouse of the offender; cause another, not the spouse of the 

offender, to have sexual contact with the offender; or cause two 

or more other persons to have sexual contact when any of the 

following applies: 

“(1) The offender purposely compels the other person, or one 

of the other persons, to submit by force or threat of force. 

“(2) For the purpose of preventing resistance, the offender 

substantially impairs the judgment or control of the other person 

or of one of the other persons by administering any drug, 

intoxicant, or controlled substance to the other person 

surreptitiously or by force, threat of force, or deception.” 
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T.K. was found responsible for committing gross sexual 

imposition in violation of R.C. 2907.05(A)(2). T.K. argues that 

the juvenile court erred in finding that he committed that violation 

because there was no evidence of him “administering any drug, 

intoxicant, or controlled substance” to his half-brother. We 

agree. 

The plain language of R.C. 2907.05(A)(2) provides that in 

order to be found responsible for committing gross sexual 

imposition under that section, the evidence must demonstrate that 

the accused purposely prevented resistance on the part of the victim 

by substantially impairing the judgment or control of the victim 

through the administration of a drug, intoxicant, or controlled 

substance. Further, the drug, intoxicant, or controlled substance 

must be administered in two alternative ways: surreptitiously, 

or by force, threat of force, or deception. The words 

“surreptitiously” and “by force, threat of force, or deception” 

describe the alternative means by which the defendant administers 

the drug, intoxicant, or controlled substance, not the means by 

which the defendant substantially impairs the judgment or control 

of the victim. Consequently, the absence of a drug, intoxicant, 

or controlled substance necessarily precludes a finding of gross 

sexual imposition in violation of R.C. 2907.05(A)(2). 

The juvenile court interpreted R.C. 2907.05(A)(2) to allow 
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the State to prove gross sexual imposition in one of two alternative 

ways: (1) by proving that the defendant substantially impaired 

the judgment of his victim by surreptitiously administering any 

drug, intoxicant, or controlled substance to the victim; or (2) 

by proving that the defendant substantially impaired the judgment 

of his victim by using force, threat of force, or deception. The 

adjudication of T.K.’s delinquency was based on the second 

alternative. 

The juvenile court’s interpretation of R.C. 2907.05(A)(2) 

reads out of that section the requirement that the defendant 

administer a drug, intoxicant, or controlled substance to the 

victim. The effect of this broad interpretation of (A)(2) would 

mean that conduct prohibited by R.C. 2907.05(A)(1) would also be 

prohibited by R.C. 2907.05(A)(2), essentially rendering the (A)(1) 

prohibition superfluous. Had the legislature intended such a 

result, it would have drafted the statute differently. 

Our reading of the statute is consistent with how courts have 

interpreted identical language in R.C. 2907.02(A)(1)(a). That 

section, which defines and prohibits the offense of rape, provides: 

“(A)(1) No person shall engage in sexual conduct with another 

who is not the spouse of the offender or who is the spouse of the 

offender but is living separate and apart from the offender, when 

any of the following applies: 
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“(a) For the purpose of preventing resistance, the offender 

substantially impairs the other person’s judgment or control by 

administering any drug, intoxicant, or controlled substance to 

the other person surreptitiously or by force, threat of force, 

or deception.” 

As the Eighth District has explained: “Thus, in order to 

establish rape pursuant to this division, the offender must 

administer a drug or intoxicant to the victim surreptitiously, 

by force, threat of force or deception which substantially impairs 

the victim’s judgment or control.” State v. Vlahopoulos (Aug. 

30, 2001), Cuyahoga App. No. 78206, citing State v. Morris (March 

9, 2001), Montgomery App. No. 18321. 

It is undisputed that there is no evidence in the record that 

T.K. substantially impaired the judgment of his half-brother by 

administering any drug, intoxicant, or controlled substance, 

whether surreptitiously or by force, threat of force, or deception. 

 Consequently, the juvenile court erred in finding T.K. responsible 

for gross sexual imposition in violation of R.C. 2907.05(A)(2). 

The first assignment of error is sustained. 

SECOND ASSIGNMENT OF ERROR

“THE TRIAL COURT ERRED IN FINDING APPELLANT RESPONSIBLE FOR 

RAPE IN VIOLATION OF R.C. 2907.02(A)(1)(b).” 

R.C. 2907.02(A)(1)(b) provides: 
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“(A)(1) No person shall engage in sexual conduct with another 

who is not the spouse of the offender or who is the spouse of the 

offender but is living separate and apart from the offender, when 

any of the following applies: 

“* * * 

“(b) The other person is less than thirteen years of age, 

whether or not the offender knows the age of the other person.” 

R.C. 2907.01(A) provides that: 

“‘Sexual conduct’ means vaginal 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.” 

Detective Comer testified that in his interview of T.K. on 

August 13, 2010, T.K. “indicated that . . . within the past year 

that he had put his mouth on [his half-brother’s] penis one time.” 

 (Tr. 31.) T.K. does not argue that such conduct fails to prove 

fellatio, a form of sexual conduct in violation of R.C. 

2907.02(A)(1)(b). Rather, T.K. argues that the State’s evidence 

fails to prove that the rape offense occurred “on or about July 

6, 2010,” the date alleged in the complaint. 
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The State relies on State v. Sellards (1985), 17 Ohio St.3d 

169, and other cases that have approved the use of a range between 

two dates in charging a sexual offense against young children. 

We believe the principle those cases stand for is not implicated 

because the complaint instead alleged a specific date, “on or about 

July 6, 2010.” 

We agree that the evidence is sketchy. However, we also 

believe that, on both the sufficiency of the evidence and manifest 

weight of the evidence standards, State v. Tompkins, 79 Ohio St.3d 

380, 1997-Ohio-52, no error is demonstrated. 

Defendant’s admission demonstrates that the rape occurred 

during the year prior to August 13, 2010, and July 10, 2010 is 

within that period. The victim’s testimony demonstrates that the 

offense occurred at the victim’s house, on the last time the victim 

had seen T.K., and that it occurred in the victim’s room. (Tr. 

11.) The victim also testified that it was “warm” on the day the 

offense occurred. (Id., at 8). July is a warm-weather month. 

The victim’s mother, T.K.’s step-mother, testified that she 

discovered the victim and T.K. together in the victim’s room, naked 

and in a sexual embrace, on the morning of July 6, 2010. (Id., 

at 19, 21.) From the totality of the evidence, the trial court 

inferred that the rape offense occurred as charged on or about 

July 6, 2010. (Id. at 48.) 
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As the trier of fact, the court was entitled to make reasonable 

inferences from the evidence presented. T.K. argues that the 

inference the court made was not reasonable because there is no 

direct evidence that July 6, 2010 was the last date the victim 

saw T.K. He also points out that the victim testified that both 

boys slept in the same bedroom the night before, while the victim’s 

mother testified that the victim slept in his parents’ bedroom, 

and that she discovered the victim with T.K. when she went to T.K’s 

bedroom. 

The lack of direct evidence of the date on which the rape 

offense occurred is not fatal. Direct and circumstantial evidence 

have like probative values. State v. Jenks (1991), 61 Ohio St.3d 

259. The particular probative value of circumstantial evidence 

depends on the reasonableness of the inference involved. The 

evidence reasonably supports an inference that the rape occurred 

on the same date the victim’s mother found the child and T.K. 

together. At least, as the trier of fact, the juvenile court could 

so find. 

The variance between the victim’s testimony and his mother’s 

concerning where the victim slept the night before does not portray 

an abuse of discretion on the part of the juvenile court. The 

court heard both witnesses. The decision whether and to what 

extent to credit the testimony of either is within the discretion 
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of the trial court. State v. Lawson (Aug. 22, 1997), Montgomery 

App. NO. 16288. The court could reconcile any conflict in their 

testimonies, so long as the conflict does not render the court’s 

finding unreasonable. The court could conclude that the victim 

was mistaken about where he slept the night before, yet find that, 

as the victim testified, the act of fellatio occurred in T.K.’s 

room when the two were there together. Combined with the testimony 

of the victim’s mother, that permits a finding that the rape 

occurred “on or about July 6, 2010,” as charged. 

The second assignment of error is overruled. 

Having sustained the first assignment of error, we will 

reverse and vacate the juvenile court’s adjudication and order 

of commitment relating to the gross sexual imposition offense. 

The final order from which the appeal is taken will otherwise be 

affirmed. 

FAIN, J. and FROELICH, J. concur. 

Copies mailed to: 

Johnna M. Shia, Esq. 

Mark T. Ross, Esq. 

Hon. Anthony Capizzi