STATE OF OHIO v. RANDY BURKE
CASE NOS. 7-19-09, 7-19-10
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
October 5, 2020
2020-Ohio-4781
Appeals from Henry County Common Pleas Court Trial Court Nos. 18CR0152 and 19CR0096
Donald Gallick for Appellant
Gwen Howe-Gebers for Appellee
{1} Defendant-appellant, Randy Burke (“Burke“), appeals the September 5, 2019 judgments of sentence of the Henry County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case arises from the allegations by multiple females that Burke, their former high school cross country and track coach, inappropriately touched them. (Case No. 18CR0152, Doc. No. 76). On November 28, 2018, the Henry County Grand Jury indicted Burke on ten counts, involving four alleged victims, in Case Number 18CR0152: Counts One, Two, Four, Five, Eight, and Ten of gross sexual imposition in violation of
{3} On June 26, 2019, the Henry County Grand Jury indicted Burke on two counts, involving one alleged victim, in Case Number 19CR0096: Count One of gross sexual imposition in violation of
{4} The cases proceeded to a jury trial on August 5-8, 2019. (Case No. 18CR0152, Doc. No. 89); (Case No. 19CR0096, Doc. No. 43). At the close of the State‘s case, Burke made a motion for acquittal under
{6} On September 13, 2019, Burke filed his noticеs of appeal. (Case No. 18CR0152, Doc. No. 114); (Case No. 19CR0096, Doc. No. 46). On September 25, 2019, Case Numbers 18CR0152 and 19CR0096 were consolidated for purpose of briefing and argument. Burke raises two assignments of error for our review, which we address together.
Assignment of Error No. I
The trial court erred in denying the Criminal Rule 29 motion on Count One of 2018 CR 0152, gross sexual imposition, Ohio Revised Code § 2907.05(A)(1), as the element of compulsion was not supported by the sufficiency of the evidence and is also against the manifest weight of [the] evidence.
Assignment of Error No. II
The trial court erred by overruling the Criminal Rule 29 motion as to Count Two in 2019 CR 0096 as the only testimony to meet the burden of production came from the prosecutor‘s questions which inserted facts not testified to on direct examination;
{7} In his first assignment of error, Burke argues that the trial court erred by denying his
{8} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Accordingly, we address each legal concept individually.
{9} “An appellate court‘s functiоn 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
{11} “Circumstantial evidence and direct evidence inherently possess the same probative valuе and therefore should be subjected to the same standard of proof.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “A conviction can be sustained based on circumstantial evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124 (1991). “[I]n some instances, certain facts can only be established by circumstantial evidence” and a conviction based thereon “is no less sound than
{12} Burke was convicted of gross sexual imposition in violation of
“[n]o person shall have sexual contact with another, nоt the spouse of the offender * * * when * * * [t]he offender purposely compels the other person * * * to submit by force or threat of force.”
{13} “‘Force’ means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
{14} “‘Any,’ as used in
{15} The offense of sexual imposition is codified in
{16} The offenses of which Burke was convicted involve, to some extent, three different degrees of culpable mental state—purpose, knowledge, and recklessness. “A person acts purposely when it is the person‘s specific intention to cause a certain result, or, when the gist of the offense is a prohibition agаinst conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender‘s specific intention to engage in conduct of that nature.”
{17} First, we will address Burke‘s argument that his gross-sexual-imposition conviction is not supported by sufficient evidence. Specifically, Burke argues that the State did not offer sufficient evidence to support a finding that he used force during the alleged incident. Because Burke challenges only the sufficiency of the State‘s evidence showing that he employed “force,” we focus solely on whether the Stаte presented sufficient evidence to prove this element.
{18} At trial, R.Z. testified that she ran cross country during her freshman year at Napoleon High School and was coached by Burke during the 2018 season. (Aug. 5-8, 2019 Tr. at 100-102). R.Z. described the uniform shorts that the cross country team wore and noted that the shorts have “built in underwear.” (Id. at 104). R.Z. stated that the cross country team‘s uniform shorts open on the side for comfort when running and that the built in underwear provides modesty while running. (Id.).
{20} C.L. and J.C., who ran cross country for Napolеon High School during the 2018 season, testified that they were talking to R.Z. on cross country picture day when Burke approached R.Z. and pulled on the built-in underwear in R.Z.‘s uniform shorts. (Id. at 172, 174-175, 296-298). C.L. further testified that Burke pulled on the built-in underwear twice. (Id. at 297-298). The first time, he exposed the built-in underwear. (Id.). The second time, he exposed R.Z.‘s “real” underwear. (Id. at 298).
{21} During his testimony, Burke denied pulling on the built-in underwear in R.Z.‘s shorts or touching R.Z.‘s thigh. (Id. at 732, 735). Burke alleged that
{22} Construing the evidence in a light most favorable to the State, we conclude that a rational trier of fact could have found that the State proved the force element of gross sexual imposition beyond a reasonable doubt. R.Z. and C.L. testified that Burke pulled on the built-in underwear in R.Z.‘s uniform shorts with enough force to expose R.Z.‘s actual underwear. R.Z. demonstrated to the jury how and where Burke pulled on her shorts. However, having only a transcribed record of the trial court proceedings and considering that we must construe the evidence in favor of the State, we presume that R.Z.‘s demonstration was sufficient to support a finding that Burke used force to compel her to submit to his touching of her thigh. See State v. Knight, 2d Dist. Greene No. 2003 CA 14, 2004-Ohio-1941, ¶ 29 (“Notably, Wilson demonstrated to the jury how Knight held his hands. Having only a transcribed record of the trial court proceedings and considering that we must construe the evidence in favor of the prosecution, we presume that Wilson‘s demonstration was sufficient to support a reasonable inference that Knight possessed a deadly weapon.“). See also State v. Melton, 2d Dist. Montgomery No. 22591, 2009-Ohio-535, ¶¶ 35-36. Moreover, C.L. testified that she witnessed Burke pull the built-in underwear in R.Z.‘s uniform shorts twice and that the second pull, which exposed R.Z.‘s actual underwear, occurred after Burke demonstrated the
{23} Having determined that Burke‘s gross-sexual-imposition conviction was supported by sufficient evidence, we next address Burke‘s argument that the State did not present sufficient evidence to support his sexual-imposition conviction involving S.N. With respect to this sexual-imposition conviction, Burke argues that the Statе did not offer sufficient evidence to support a finding that the area of S.N.‘s body that he touched during the alleged sexual contact was an erogenous zone. Because Burke only challenges the sufficiency of the State‘s evidence showing that he touched one of S.N.‘s erogenous zones, our analysis will be limited to the State‘s evidence supporting that element.
{24} At trial, S.N. testified that she was a member of the cross country team at Napoleon High School and was coached by Burke for four years. (Aug. 5-8, 2019 Tr. at 207-209). S.N. stated that Burke gave her hugs that made her feel
{25} S.N. identified State‘s Exhibits 5A, 5B, and 5C as a series of photographs depicting an interaction between her and Burke at a cross country meet during the 2016 season. (Id. at 209-212). (See State‘s Exs. 5A, 5B, 5C). S.N. testified that State‘s Exhibit 5A depicts Burke “tapрing” or “patting” her on her hip. (Aug. 5-8, 2019 Tr. at 210-211). (See State‘s Ex. 5A). State‘s Exhibit 5C depicts Burke standing behind S.N. with his arms wrapped around her and his head placed in the crook of S.N.‘s neck. (Aug. 5-8, 2019 Tr. at 211-212). (See State‘s Ex. 5C). S.N. testified that in State‘s Exhibit 5C, one of Burke‘s arms is positioned under her “chest” and the other arm is around her neck. (Aug. 5-8, 2019 Tr. at 212). (See State‘s Ex. 5C). State‘s Exhibit 5B depicts the same embrace as State‘s Exhibit 5C. (Aug. 5-8, 2019 Tr. at 211). (See State‘s Ex. 5-B). S.N. testified that the photographs are accurate depictions of the type of hugs that Burke gave during the 2016 cross country season. (Aug. 5-8, 2019 Tr. at 212). (See State‘s Exs. 5B, 5C).
{26} Burke admitted that his hand was by S.N.‘s breasts in State‘s Exhibits 5B and 5C, but denied that his hand was on S.N.‘s hip and buttocks area in State‘s Exhibit 5A. (Aug. 5-8, 2019 Tr. at 729-730, 738-739). (See State‘s Exs. 5A, 5B, 5C). Rather, Burke stated that the photograph depicts him bringing his hand “down away from [S.N.].” (Aug. 5-8, 2019 Tr. at 739). (See State‘s Ex. 5A).
{28} Moreover, in addition to S.N.‘s testimony that Burke repeatedly touched her on an area of her body that she characterized as her hip, State‘s Exhibit 5A depicts Burke touching S.N. on thе area of her body that she described as her “hip” during her testimony. Thus, the jury was able to view the photograph and determine whether the area of S.N.‘s body that Burke was touching in the
{29} Furthermore, State‘s Exhibits 5B and 5C depict Burke standing behind S.N., with one of his hands positioned undеr her breasts—a fact that Burke himself admitted in his testimony. Accordingly, the trier of fact could have found that this also constituted sexual contact. See State v. Coleman, 3d Dist. Logan No. 8-17-50, 2018-Ohio-1681, ¶ 37 (finding that the Appellant engaged in sexual contact with the female victim when he touched her breasts over her clothes).
{30} Thus, for the foregoing reasons, viewing the evidence in a light most favorable to the State, a rational trier of fact could have found that the State proved that Burke had engaged in sexual contact with S.N. Therefore, as this is the only element of the offense Burke challenges, there is sufficient evidence supporting Burke‘s sexual-imposition conviction.
{31} Having found that sufficient evidence supports Burke‘s gross-sexual-imposition and sexual-imposition convictions, we now turn to Burke‘s assertion that his gross-sexual-imposition and sexual-imposition convictions are against the manifest weight of the evidence. Although Burke summarily argues that the convictions are against the manifest weight of the evidence, he fails to advance any specific arguments that the evidence produced at trial weighs heavily against the
{32} “““[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.““” State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 86, quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7. If an argument exists that can support an assignment of error, it is not this court‘s duty to root it out. State v. Shanklin, 3d Dist. Union No. 14-13-23, 2014-Ohio-5624, ¶ 31, citing State v. Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, ¶ 30 (9th Dist.). Accordingly, we need not address Burke‘s claim that his convictions are against the manifest weight of the evidence.
{33} Even so, after weighing the evidence and evaluating the credibility of the witnesses, with appropriate deference to the trier of fact‘s credibility determinations, we cannot conclude that the jury clearly lost its way and created such a manifest miscarriage of justice that Burke‘s gross sexual imposition and sexual imposition convictions must be reversed.
{34} Accordingly, Burke‘s first and second assignments of error are overruled.
Judgments Affirmed
SHAW, P.J. and ZIMMERMAN, J., concur.
/jlr