2022 Ohio 2899
Ohio Ct. App.2022Background
- Defendant Todd McCreary owned a campground where S.A., a 19‑year‑old employee, worked; incident occurred October 5, 2020.
- S.A. testified McCreary accompanied her to her parked car, unzipped her fleece top twice and rubbed his hand against her breast; she blocked a third attempt.
- McCreary sent texts after the incident including, “I should be sorry but I wanted to do that for a long time.”
- S.A. told Mrs. McCreary and later reported to Deputy Saylor; McCreary denied touching her and admitted pulling the zipper down twice.
- McCreary was convicted by a jury of sexual imposition (R.C. 2907.06(A)(1)) and found guilty by the court of disorderly conduct (R.C. 2917.11(A)(5)); he appealed raising four assignments of error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McCreary) | Held |
|---|---|---|---|
| 1. Sufficiency of the evidence / denial of Crim.R. 29 | Evidence (S.A.’s testimony, texts, defendant’s admissions) was sufficient to prove sexual contact knowing or reckless as offensive | Evidence insufficient; court should have granted acquittal | Overruled — evidence, if believed, permitted conviction |
| 2. Prosecutorial misconduct (closing arguments, age/groomer/fondling labels) | Remarks were fair comment on evidence, jurors saw ages, court instructed jury; no prejudice | Prosecutor appealed to passion, improperly emphasized age and used inflammatory labels | Overruled — statements not so prejudicial to deny fair trial |
| 3. Manifest weight and allied‑offenses/duplication with disorderly conduct | Sexual imposition conviction is supported by record; disorderly conduct tried separately on distinct conduct; defendant forfeited allied‑offense claim by not raising it below | Conviction is against manifest weight and duplicates disorderly conduct (should merge) | Overruled — verdict not against manifest weight; allied‑offense claim forfeited and, on merits, separate complaints/acts justify separate convictions |
| 4. Ineffective assistance for failing to request lesser‑included (disorderly conduct) instruction | Even if counsel erred, no prejudice because sexual‑imposition conviction was supported by sufficient evidence; result would not differ | Counsel ineffective for not seeking the lesser instruction, prejudicing the defendant | Denied — no reasonable probability of different outcome; no prejudice shown |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sufficiency standard: view evidence in light most favorable to prosecution)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance standard)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (manifest‑weight standard; reversal only for manifest miscarriage of justice)
- Darden v. Wainwright, 477 U.S. 168 (1986) (prosecutorial argument improper only when it renders trial fundamentally unfair)
- State v. Rogers, 143 Ohio St.3d 385 (2015) (failure to raise allied‑offense merger in trial court forfeits all but plain error)
- State v. Ruff, 143 Ohio St.3d 114 (2015) (test for allied offenses: consider conduct, animus, and import)