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
APPEARANCES:
Donald Gallick for Appellant
PRESTON, J.
{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
{5} On September 4, 2019, the trial court sentenced Burke to five years of
{6} On September 13, 2019, Burke filed his notices 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; additionally[,] the conviction is against the manifest weight of the evidence.
{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 clеarly 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 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Consequently, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both
{10} On the other hand, in determining whether a conviction is against thе manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing сourt must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{11} “Circumstantial evidence and direct evidencе inherently possess the same probative value 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 one based on direct evidence.” State v. Smith, 12th Dist. Butler No. CA2008-03-064, 2009-Ohio-5517, ¶ 80. “If the statе relies on circumstantial evidence to prove an [essential] element of the offense charged, there is no [requirement that the evidence must be] irreconcilable with any reasonable theory of innocence in order to support a conviction[,]’ so long as the jury is properly instructed as to the burden of proof, i.e., beyond a reasonable doubt.” State v. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270, ¶ 50, quoting Jenks at paragraph one of the syllabus.
{12} Burke was convicted of gross sеxual imposition in violation of
“[n]o person shall have sexual contact
with another, not 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, whеn the gist of the offense is a prohibition against 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 “fоrce,” we focus solely on whether the State 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.).
{19} R.Z. testified that during picture day for the cross country team, she was talking to several friends while waiting in line to have her individual photograph taken when the photographer noted that a male athlete‘s underwear was showing. (Id.). R.Z. testified that Burke then approached her and pulled on the built-in underwear of her uniform shorts, apparently to dеmonstrate to the photographer that the shorts had built-in underwear. (Id.). R.Z. demonstrated to the jury how and where Burke pulled on her shorts. (Id.). R.Z. testified that when Burke pulled on her shorts, it caused the shorts to lower so much that the band of her actual underwear was exposed. (Id. at 104-105). According to R.Z., her uniform shirt was tucked into her pants before the incident occurred. (Id. at 105). R.Z. stated that Burke‘s hand touched her thigh while he was pulling on her shоrts. (Id.).
{20} C.L. and J.C., who ran cross country for Napoleon 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 R.Z.‘s, J.C.‘s and C.L.‘s testimonies regarding the incident with R.Z.‘s shorts were lies. (Id. at 735).
{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
{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 respеct to this sexual-imposition conviction, Burke argues that the State 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 uncomfortable. (Id. at 209-212). S.N. stated that Burke put his hand on her hip and “kind of moved it.” (Id. at 209).
{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 сross 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 “tapping” 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
{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).
{27} Although Burke argues that the State needed to present evidencе that he touched S.N.‘s thigh or buttocks to prove that he had sexual contact with S.N., this court has stated that “[s]ince
{28} Moreover, in addition to S.N.‘s testimony that Burke repeatedly touched her on an area оf her body that she characterized as her hip, State‘s Exhibit 5A depicts Burke touching S.N. on the 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 photograph constituted an erogenous zone, irrespective of the language S.N. used to characterize the relevant area оf her body.
{29} Furthermore, State‘s Exhibits 5B and 5C depict Burke standing behind S.N., with one of his hands positioned under 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 convictions. Rather, Burke‘s brief focuses on 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.
{35} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW, P.J. and ZIMMERMAN, J., concur.
/jlr