State v. BeaverState v. Beaver
HENSAL, Judge.
{¶1} Dwaine Beaver appeals his conviction in the Medina County Court of Common Pleas for gross sexual imposition. For the following reasons, this Court affirms.
I.
{¶2} Mr. Beaver put his hand down the front of his five-year-old granddaughter B.B.s underwear while they were in his basement viewing his worm farm. Although he alleged that he was only checking to see whether she had a wetting accident, the Grand Jury indicted him on one count of gross sexual imposition. A jury found him guilty of the offense, and the trial court sentenced him to four years imprisonment. Mr. Beaver has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
INEFFECTIVE ASSISTANCE OF COUNSEL. DEFENDANT DWAINE BEAVER WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL THROUGH TRIAL COUNSEL S FAILURE TO MEET THE STANDARD OF PROFESSIONAL CONDUCT REQUIRED IN VARIOUS PARTS OF THE
{¶3} Mr. Beaver s first assignment of error is that his trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, Mr. Beaver must establish (1) that his counsel s performance was deficient to the extent that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment and (2) that but for his counsel s deficient performance the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, must indulge a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In addition, to establish prejudice, Mr. Beaver must show that there existed a reasonable probability that, but for his counsel s errors, the outcome of the proceeding would have been different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.
{¶4} Mr. Beaver argues that his trial counsel s performance was deficient because his counsel failed to properly subpoena a witness that could have discredited the testimony of B.B.1 Mr. Beaver notes that one of the issues at trial was whether his touching of B.B. was for the purpose of sexually arousing or gratifying either person.
{¶5} After the trial court quashed the subpoena to the hospital employee, Mr. Beaver did not make a proffer regarding her testimony. There is also no other indication in the record about what her testimony would have been. This Court has held that, if allegations of the ineffectiveness of counsel are premised on evidence outside the record, * * * the proper mechanism for relief is through the post-conviction remedies of
ASSIGNMENT OF ERROR II
PROPER IN CAMERA INSPECTION. THE TRIAL COURT FAILED TO CONDUCT A PROPER IN CAMERA INSPECTION AND ELEMENTS OF FINDING OF COMPETENCY OF A MINOR WITNESS, AGE 5.
{¶7}
ASSIGNMENT OF ERROR III
CRIM. R. 29 MOTION FOR DISMISSAL. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-APPELLANT S MOTION FOR DISMISSAL PURSUANT TO CRIM. R. 29.
{¶8} Mr. Beaver s third assignment of error is that the trial court incorrectly denied his motions for acquittal under
An appellate court s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶9} Mr. Beaver argues that the State failed to prove that the touching was for the purpose of sexual gratification of either him or B.B. He notes that there was no evidence that he engaged in any sort of repetitive movement, rubbing, or attempted stimulation while he was attempting to determine if B.B. was wet. He also notes that both B.B. and her mother testified that B.B. still occasionally had wetting problems at the time of the incident.
{¶10} The jury found Mr. Beaver guilty of one count of gross sexual imposition under
{¶11} A person s purpose or intention may be proven through direct or circumstantial evidence. State v. Persinger, 9th Dist. Lorain No. 13CA010397, 2014-Ohio-4125, ¶ 5. [I]n the absence of direct testimony regarding sexual arousal or gratification, the trier of fact may infer a purpose of sexual arousal or gratification from the type, nature and circumstances of the contact, along with the personality of the defendant. State v. Antoline, 9th Dist. Lorain No. 02CA008100, 2003-Ohio-1130, ¶ 64, quoting State v. Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991). From these facts the trier of facts may infer what the defendant s motivation was in making the physical contact with the victim. Cobb at 185.
{¶12} According to B.B.s mother, at the time of the incident, B.B. occasionally wet herself. When she did, B.B. would immediately notify her mother and then go change herself. B.B.s mother also testified that Mr. Beaver had never been involved in B.B.s potty training and had never changed one of her diapers.
{¶13} According to B.B., while visiting her grandparents with her parents, Mr. Beaver took her downstairs to the basement to see a worm farm. After going downstairs, they went over to a table and Mr. Beavers asked her to stand on it. He then put his hand inside her panties and touched her crotch. He told her that he was checking to see if she was wet and he kept his hand there for a moment[.] Mr. Beaver also told her to just keep this between you and me. According to B.B., Mr. Beaver did not ask her if he could check to see if she was wet before he did so. After he was finished, Mr. Beaver lowered B.B. off the table, they saw the worms, and went back upstairs. B.B.s mother testified that, when B.B. told her about the touching, B.B. said that it lasted for a minute and was not a quick touch.
III.
{¶15} Mr. Beaver s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CONCUR.
APPEARANCES:
THOMAS T. MULLEN, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.