2007 Ohio 4291 | Ohio Ct. App. | 2007
{¶ 2} In a decision entered November 16, 2006, this court concluded that appellant was prejudiced by the admission of hearsay evidence at his jury trial. Accordingly, we reversed and remanded for a new trial, and determined that appellant's other assignments of error were moot. The Ohio Supreme Court reversed our determination that appellant's challenge to the sufficiency of the evidence was moot, and remanded for us to consider that assignment of error.
{¶ 3} In our decision of July 5, 2007, this court held that the evidence as a whole was sufficient to support the jury's verdict. Appellant's reconsideration motion challenges the standard this court applied to assess the sufficiency of the evidence, as well as the evidence this court relied upon in reaching its decision.
{¶ 5} As relevant to the gross sexual imposition charge, at trial, the state presented the testimony of the victim's aunt, T.B.; the victim, L.B.; the victim's mother, B.G.; the victim's father, Lam.B.; Detective Sherilyn Howard; and social worker Lisa Zanella. The defense presented the testimony of pastor Shirley Miller.
{¶ 6} T.B. testified that appellant lived with her and her family when they moved to Warner Road in Cleveland, Ohio, in February 2005. L.B., her niece, visited her house and played with her children. L.B.'s mother, B.G. (who is T.B.'s sister), called T.B. and told her that L.B. "was hurting and she was concerned about that. She said someone in [T.B.'s] house had hurt [L.B.]."
{¶ 7} B.G. testified that she received a telephone call from L.B.'s father, Lam.B. on April 30, 2005. He told her that L.B. had done something to "Ro," and said something to Ro. B.G. testified that she then went to L.B., age five, and asked her if she had anything she wanted to tell B.G. about "Sam," i.e., appellant. B.G. testified that L.B. "really just shut me out," put her head down, and said very little. This was unusual behavior for L.B. L.B. told B.G. that appellant had touched her *5 "private area." B.G. did not seek a medical examination of L.B. Through conversations with Roshawn Sample (Lam.B.'s girlfriend) and others, B.G. learned that appellant had touched her daughter's vagina and chest and kissed her.
{¶ 8} L.B. testified that appellant kissed her "on the lips," but she denied that he used his tongue when he did so and denied that he touched her. She indicated where her "privacy" was for the jury. At first, she denied that anyone had touched her "privacy," but when asked whether "Sam" had touched her somewhere, she said yes, pointed to the place where he touched her, and agreed that was "the same place that you just showed us." She said this touching occurred while appellant was kissing her. Appellant also told L.B. not to tell anyone.
{¶ 9} L.B.'s father, Lam.B., testified that his girlfriend, Roshawn, told him that when L.B. kissed Roshawn, L.B. "tried to stick her tongue in her mouth." Roshawn told Lam.B. that she asked L.B. where she had learned that, and L.B. told her that appellant kissed her like that. Lam.B. then called B.G. and told her "that someone named Sam had kissed [L.B.]."
{¶ 10} Detective Howard testified that she interviewed the appellant, who denied any sexual contact with the victim. There was no evidence of any physical trauma. Social worker Lisa Zanella testified, over objection, that she interviewed L.B., and L.B. told Zanella that "Sam had touched her with his balls in her private area" and "put his balls in her mouth" once. *6
{¶ 12} On appellant's appeal of our decision to the Ohio Supreme Court, the court remanded this case to us to consider whether the evidence was sufficient to support appellant's conviction. In our July 5, 2007 decision, we concluded that all of the evidence presented to the jury, including improperly submitted evidence, was sufficient to support the verdict.
{¶ 13} Appellant claims that this court may consider only properly admitted testimony in assessing the sufficiency of the evidence. In support of this proposition, he cites State v. Lovejoy,
{¶ 14} In a bench trial, it is presumed that the trial court will consider only relevant, material and competent evidence. State v.Bays,
{¶ 15} Likewise, an appellate court assessing the sufficiency of the evidence must consider all of the evidence that was before the jury, even if it was improperly admitted. If the evidence as a whole was insufficient, then the double jeopardy clause precludes retrial. However, the double jeopardy clause does not preclude retrial if thecourt erred by admitting some of the evidence that supported the jury's actions. Lockhart v. Nelson (1988),
{¶ 16} In evaluating the sufficiency of the evidence to support appellant's conviction, therefore, we must consider all of the testimony that was before the trial court, whether or not it was properly admitted. State v. Yarbrough,
{¶ 17} "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 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 (1991),
{¶ 18} Appellant was convicted of gross sexual imposition in violation of R.C.
{¶ 19} Ms. Zanella's testimony that L.B. told her appellant touched L.B.'s genitals with his genitals and placed his genitals in L.B.'s mouth, if believed, provided ample evidence that appellant had sexual contact with L.B., a five-year-old child. Furthermore, L.B. herself testified that appellant touched her (apparently *9 pointing to her vagina) and kissed her; there was also testimony that she told her mother that appellant had touched her "private area." Finally, there was testimony that L.B. told Lam.B.'s girlfriend that appellant had used his tongue in kissing her. This testimony, if believed, also supports a determination that appellant had sexual contact with a five-year-old child.1 Accordingly, we find the evidence presented to the trial court — including improperly admitted hearsay evidence — was sufficient to support appellant's conviction. Nevertheless, for the reasons stated in our previous opinion, we reverse appellant's conviction and remand for a new trial because we cannot say that the admission of Ms. Zanella's hearsay testimony about her interviews with L.B. was harmless beyond a reasonable doubt.
{¶ 20} Appellant has requested that we rehear this case en banc. The cases he has cited as demonstrating a conflict within our district are largely distinguishable. Bench trials were conducted in all but one of these cases. Newburgh Heights v. Cole,
Furthermore, we feel obligated to follow the Ohio Supreme Court's pronouncements in State v. Yarbrough,
Reversed and remanded.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and ANN DYKE, J., CONCUR