State v. Fishel
2016 Ohio 7656
| Ohio Ct. App. | 2016Background
- In 2014–2015, M.G., then a minor who believed Christopher Fishel was her biological father, corresponded with and began visiting him after a paternity test confirmed parentage.
- On multiple visits M.G. testified that Fishel engaged in sexual intercourse with her on three occasions; she also received a masturbation video from him that said, “Do you want to play with daddy?”
- M.G. initially kept the incidents secret; her grandmother Cindy Lemmeyer learned of the video, then M.G. disclosed the sexual incidents to Lemmeyer in January 2015.
- Lemmeyer reported the conduct to police; investigators seized Fishel’s phone and recovered the video, texts, and nude photos of M.G.
- A Stark County grand jury indicted Fishel on one count of sexual battery (R.C. §2907.03(A)(5)) and one count of disseminating matter harmful to juveniles (R.C. §2907.31).
- After a jury trial Fishel was convicted of both counts, sentenced to consecutive prison terms (5 years + 12 months), and classified as a Tier III sex offender; he appeals arguing insufficiency and manifest-weight of the evidence and that the court erred in denying his Crim.R. 29 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for sexual battery | State: M.G.’s testimony alone, if believed, proves sexual battery by a parent | Fishel: M.G.’s testimony is unreliable; he denied intercourse | The court upheld conviction; one credible witness suffices and credibility is for the jury |
| Sufficiency of evidence for disseminating harmful matter | State: Video of Fishel masturbating sent to minor proves dissemination | Fishel: He sent the video accidentally to M.G.; intended recipient was a friend | The court rejected the mistake defense based on phone evidence and jury credibility findings |
| Manifest-weight challenge | State: Evidence (testimony, video, texts, photos) supports verdicts; no miscarriage of justice | Fishel: Verdicts are against the manifest weight given inconsistencies and omissions | The court found no exceptional case warranting reversal; jury did not lose its way |
| Crim.R. 29 denial | State: Evidence met Jenks standard; reasonable juror could convict | Fishel: Trial court should have granted acquittal at close of State’s case or at close of all evidence | Denial affirmed; evidence sufficient when viewed in light most favorable to prosecution |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sets sufficiency standard: whether evidence, viewed most favorably to prosecution, allows any rational trier of fact to find guilt beyond a reasonable doubt)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (explains manifest-weight review and that reversal is reserved for the exceptional case)
- State v. Jamison, 49 Ohio St.3d 182 (1990) (a single witness’s credible testimony can sustain a conviction)
- State v. Carter, 72 Ohio St.3d 545 (1995) (discusses standard of review for Crim.R. 29 motions)