State v. AndrewsState v. Andrews
OPINION
{¶ 1} Defendant-appellant, Norman Andrews, appeals his conviction and sentence in the Butler County Court of Common Pleas, on one count of gross sexual imposition. We affirm appellant‘s conviction, and reverse and remand this matter for resentencing.
{¶ 2} After retiring, appellant‘s wife, Carol Andrews, provided childcare for six to seven children in the home she shared with appellant. During a visit to a physician in July 2004, K.R., one of the children, told her mother that appellant had touched her sexually on numerous occasions. Her mother reported the allegаtion to police. A detective spoke with appellant who agreed to be interviewed. Appellant at first denied having any inappropriate contact with K.R., but later stated that on two occasions he may have accidentally touched K.R.‘s vaginal area. He told the detective that in one instance he and K.R. had been wrestling and his hand slipped up hеr shorts and underwear. He stated that on another occasion K.R. had asked him to rub her legs and while he was doing so, he again accidentally slid his hand under her shorts and underwear. Appellant provided a written statement recounting the same events.
{¶ 3} Appellant was charged with two counts of gross sexual imposition and the matter proceeded to a jury trial. K.R., 11 years old at thе time of the trial, testified that appellant‘s wife baby-sat her for approximately six years. She stated that when she was ten years old, appellant had put his fingers under her underwear and “into her private place.” She testified that while doing so, appellant quietly said “yeah,” and “ooh.” She asked appellant to stop but he continued as though he hadn‘t heard her. She tеstified that this occurred once on the back porch when the other children were outside, and at other times in the home‘s master bedroom. K.R.‘s diary, which contained the following entry, was еntered into evidence: “Today at Carol‘s house Uncle Andy [appellant] did this really disgusting thing to me. I won‘t tell because it‘s too gross. I want to tell mom but I just can‘t.” Appellant‘s granddaughter, C.A., 12 years old at the time of trial, testified that appellant had similarly touched her.
{¶ 4} Appellant presented testimony from several children and parents who had never witnessed any inappropriate conduct by appellant. C.A.‘s sister testified that C.A. had not been truthful, and her father, appellant‘s son, testified that he thought that C.A. had been encouraged by his ex-wife to testify falsely. Appellant testified that he never inappropriately touched a child, other than by mistake, and testified that his written statement was meant only as a hypothetical. He stated that he signed the statеment only so that he could return home after being intimidated by the interviewing detective.
{¶ 5} Appellant was found guilty on one count and acquitted of the other. He was sentenced to three yеars in prison, a sentence which exceeded the statutory minimum. He appeals, raising three assignments of error:
{¶ 6} Assignment of Error No. 1:
{¶ 7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTA-PPELLANT WHEN IT OVERRULED HIS MOTION FOR ACQUITTAL.”
{¶ 8} When reviewing the trial court‘s denial of a motion for acquittal under
{¶ 9} Appellant was charged with gross sexual imposition in violation of
{¶ 10} In this assignment of error, appellant argues that any sexual contact that occurred was accidental, and consequently, that the state failed to present evidence of sexual gratification.
{¶ 11} “Sexual contact” is sufficiently demonstrated by showing that a defendant touched an erogenous zone. See State v. Goins, Butler App. No. CA2000-09-190, 2001-Ohio-8647; State v. Young (Aug. 15, 1997), Athens App. No. 96CA1780. “Sexual gratification” is demonstrated by evidence that a defendant committed the act with specific purpose or intention of sexually arousing or gratifying either himself or the victim.
{¶ 12} The state presented evidence, including appellant‘s written statement and the testimony of the victim, that appellant touched the victim‘s genitals. The victim testified thаt appellant said “yeah,” and “ooh” while rubbing her vaginal area, and continued touching her even after she asked him to stop. Viewing this evidence in a light most favorable to the prosеcution, we conclude that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. There was sufficient evidеnce of sexual contact, and sufficient circumstantial evidence to demonstrate that the act was committed with specific purpose or intention of sexually arousing or grаtifying the perpetrator or the victim. The assignment of error is overruled.
{¶ 13} Assignment of Error No. 2:
{¶ 14} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT EXCLUDED ONE OF HIS WITNESSES ON GROUNDS OF INCOMPETENCE.”
{¶ 15} Appellant sought to call seven year old T.J. as a witness. However, the trial court prohibited his testimony upon detеrmining that T.J. was incompetent to testify.
{¶ 16}
{¶ 17} The trial judge, who sees the witness, hears the testimony and passes on competency, is “in a far better position to judge [witness] competency than [a reviewing court], which only reads the testimony from the record[.]” State v. Bradley (1989), 42 Ohio St.3d 136, 141, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258. Consequently, absent an abuse of discretion, competency determinations of a trial judge will not be disturbed on appeal. Id.; State v. Frazier (1991), 61 Ohio St.3d 247, 251. The term “abuse of discretion” connotes more than an error of law or of judgment; rather, it “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶ 18} At a competency hearing, seven-year-old T.J. was asked questions related to his ability to accurately perceive and recall past events. He could recall his age and where he attended school, but was unable to name his hometown or recall past holidays within an accurate timeframe. His answers were often contradictory. T.J. was able to explain what a lie is but when asked to explain what the truth is, he answered, “[i]f you tell the truth, then — I can‘t really tell.” Given T.J.‘s inability to demonstrate that he could accurately recall events, communicate regarding them, and appreciate the necessity of being truthful, we cannot say that the trial court‘s decision to exclude his testimony was an abuse of discretion. We further note that appellant failed to proffer the substance of T.J.‘s testimony, as required by
{¶ 19} Assignment of Error No. 3:
{¶ 20} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT SENTENCED HIM TO A TERM OF IMPRISONMENT IN EXCESS OF THE MINIMUM SENTENCE.”
{¶ 21} In his third assignment of error, appellant maintains that the imposition of a nonminimum sentence based on facts neither found by a jury nor admitted by appellant infringed upon his Sixth Amendment rights as defined by the United Statеs Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531.
{¶ 22} The Ohio Supreme Court recently found portions of Ohio‘s statutory sentencing scheme unconstitutional, and severed those portions from Ohio‘s sentencing code. See State v. Foster, ___ Ohio St.3d ___, 2006-Ohio-856. Among these sections was
{¶ 23} The Foster court instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. Foster at ¶ 104. Accordingly, appellant‘s third assignment of error is sustained. Appellant‘s sentence is reversed and this matter is remanded to the trial court for resentencing according to law and consistent with this opinion.
{¶ 24} Judgment affirmed in part, and reversed and remanded in part.
Powell, P.