STATE OF OHIO v. ZACKARIAH J. COLEMAN
CASE NO. 8-17-50
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
Date of Decision: April 30, 2018
[Cite as State v. Coleman, 2018-Ohio-1681.]
PLAINTIFF-APPELLEE, CASE NO. 8-17-50
v.
ZACKARIAH J. COLEMAN, O P I N I O N
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR16-10-0296
Judgment Affirmed
Date of Decision: April 30, 2018
APPEARANCES:
Linda Gabriele for Appellant
Alice Robinson-Bond for Appellee
{¶1} Defendant-appellant, Zackariah J. Coleman (“Coleman”), appeals the November 20, 2017 judgment entry of sentence of the Logan County Court of Common Pleas. We affirm.
{¶2} This case stems from allegations that Coleman sexually abused S.E.— the daughter of his girlfriend with whom Coleman shared a home—between 2014 and 2015, while S.E. was less than thirteen years of age. On November 8, 2016, the Logan County Grand Jury indicted Coleman on three counts of gross sexual imposition in violation of
{¶3} The case proceeded to a jury trial on September 26 and 27, 2017. (Sept. 26, 2017 Tr., Vol. I, at 1); (Sept. 27, 2017, Vol. II, at 156). On September 27, 2017, the jury found Coleman guilty of one count of gross sexual imposition. (Sept. 27, 2017 Tr., Vol. II, at 226-227); (Doc. No. 106). The jury could not reach a unanimous verdict as to the other two counts of the indictment. (Sept. 27, 2017 Tr., Vol. II, at 226-227); (Doc. No. 110). The trial court filed its judgment entry of conviction on October 2, 2017 finding Coleman guilty of one count of gross sexual imposition and dismissing the other two counts of the indictment. (Doc. No. 110).
{¶5} Coleman filed a notice of appeal on November 28, 2017. (Doc. No. 118). He raises two assignments of error for our review, which we discuss together.
Assignment of Error No. I
The Verdict of the Trial Court was Not Supported by Sufficient Evidence as the State of Ohio Failed to Prove Each and Every Element of the Crime of Gross Sexual Imposition Beyond a Reasonable Doubt.
Assignment of Error No. II
The Verdict of the Trial Court was Against the Manifest Weight of the Evidence as the State of Ohio Failed to Prоve Each and Every Element of the Crime of Gross Sexual Imposition Beyond a Reasonable Doubt.
{¶6} In his assignments of error, Coleman argues that his gross-sexual-imposition conviction is based on insufficient evidence and is against the manifest weight of the evidence.
{¶8} “An appellate court’s function when reviewing the sufficiency of the evidence to supрort 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 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[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 are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.”), citing Thompkins at 386.
{¶10}
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not thе spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
{¶11} At trial, S.E. testified that she was born in April of 2004 and that she was 13 years old at the time of trial. (Sept. 26, 2017 Tr., Vol. I, at 43-44). She
{¶12} On cross-examination, S.E. testified that she shared a bedroom with her sister and that her sister was in the room when Coleman touched her. (Id. at 59). Accоrding to S.E., Coleman would wake S.E. first and that her sister was asleep when Coleman touched her. (Id. at 59-60, 62). She testified that Coleman touched her “[m]ore than once” but could not recall any details of the other times that
{¶13} On re-direct examination, S.E. testified that she was afraid of Coleman because “[h]e used to beat [them].” (Id. at 63). She testified that “a few” times she was “fast enough” to lock the bedroom door to prevent Coleman from entering in the morning. (Id.).
{¶14} On re-cross examination, S.E. testified that she immediately told her mother when Coleman beat her. (Id. at 64). Although she previously stated that Coleman only touched her when they lived in an apartment, she testified that it happened when they lived in the apartment and a house. (Id. at 65). She stated that she would only try to lock the door when they lived in the house. (Id. at 64-65). She testified that, although she could have, she did not lock the door when she went to bed because she “was told to go to bed.” (Id. at 66).
{¶15} The State called Julie Kurtz (“Kurtz”) who testified that she is a school counselor at Bellefontaine Middle School. (Id. at 26-27). Prior to working as a school counselor, Kurtz worked for children’s services for 14 years where she received training and experience investigating child-sexual-abuse allegations. (Id. at 28).
{¶16} According to Kurtz, S.E., who was a seventh-grade student at the time, was sent to her office on August 31, 2016 because she “was crying and was upset”
{¶17} On cross-examination, Kurtz testified that she knew that S.E. was diagnosed with bipolar disorder. (Id. at 35). She testified that S.E. had “crying spree[s] in school,” which can be a symptom of bipolar disorder. (Id.). Further, “at some point before she was in middle school [she was] put * * * on a * * * plan for depression, and crying is also a symptom of depression.” (Id. at 35, 38). She testified that “there is no cookie-cutter” description of a child that hаs been sexually abused. (Id. at 37).
{¶18} On re-direct examination, she confirmed that she did not observe “anything inconsistent” with that of a child who has been sexually abused. (Id. at 38).
{¶19} On re-cross examination, Kurtz testified that “chang[ing] her story” or providing “different information here or there” are examples of inconsistent
{¶20} Trista Harris (“Harris”), S.E.’s mother, testified that she was romantically involved with Coleman and that Coleman moved in with her and her children after they had been in a relationship for one year. (Id. at 67-69). She testified that she ended her relationship with Coleman after “he became verbally and physically abusive” in November of 2013 or 2014. (Id. at 71). After she and Coleman ended their relationship, she moved with her children from the apartment to the house. (Id.). A few months later, she and Coleman rekindled their relationship. (Id. at 72). They finally ended their relationship in April 2015 when Coleman “was physically abusive toward” Harris. (Id.).
{¶21} Harris, who workеd third shift, left work early one night and discovered Coleman sleeping in S.E.’s bed with S.E. (Id. at 74, 77). When Harris confronted Coleman, Coleman, who “had been drinking,” told Harris “that he must have went into the wrong room.” (Id. at 76). Harris asked S.E. about the incident the next morning, and S.E. indicated that there was nothing that she needed to tell her mother. (Id. at 77). A few days later, Harris contacted law enforcement after “[a]n altercation occurred”; however, Harris did not tell law enforcement about discovering Coleman slеeping in S.E.’s bed with S.E. (Id. at 77-78).
{¶23} On cross-examination, Harris testified that she did not report any of the physical abuse to law enforcement because she was “scared” of Coleman. (Id.). She testified that S.E. was first put on medication for her bipolar disorder when S.E. “was in first grade” because “[s]he was having problems in school focusing on her work, having emotional breakdowns.” (Id. at 81). S.E. continued to experience those “problems” through the fifth grade. (Id.). Harris clarified that S.E. experienced those problems prior to meeting Coleman. (Id.).
{¶24} Detective Blake Kenner (“Detective Kenner”) of the Bellefontaine Police Department testified that he investigated S.E.’s allegations. (Id. at 99-100). As part of his investigation, he interviewed Coleman. (Id. at 103-105). Regarding Coleman’s interview, Detective Kennеr testified
In my 25 years of law enforcement, I’ve spoken with people whom were eventually found guilty of crimes and I’ve talked with people who had not committed a crime. I laid some things out to [Coleman] and made some comparisons for [Coleman], and I found it strange that I didn’t get a real reaction from him, an emphatic reaction from him, an emphatic denial from him when I was saying improper,
(Id. at 106). He also testified that Coleman denied S.E.’s allegations. (Id. at 107).
{¶25} S.E. was interviewed by a forensic interviewer. (Id. at 102). Detective Kenner identified State’s Exhibit E as the video recording of S.E.’s interview, which was later played for the jury. (Id. at 105, 118-119); (State’s Ex. E).
{¶26} Kerri Wilkinson (“Wilkinsоn”), a licensed social worker at Nationwide Children’s Hospital in Columbus, Ohio, testified that she is a forensic interviewer—“a trained professional * * * taught to recognize child development [and] how to interview children when there’s allegations of physical abuse or sexual abuse.” (Sept. 27, 2017 Tr., Vol. II, at 160-162). She testified that, based on her training and experience, “[d]elayed disclosure” of sexual-abuse allegations is “a common occurrence.” (Id. at 167).
{¶27} Wilkinson testified that she interviewed S.E. on September 6, 2016. (Id. at 163-164). (See also State’s Ex. E). Wilkinson testified that, during the interview, S.E. “was having some emotional responses to what had happened to her” when S.E. described “the alleged abuse.” (Sept. 27, 2017 Tr., Vol. II, at 170). She
{¶28} On cross-examination, Wilkinson testified that it is not her job to “determine whether this child is telling [her] the truth or not.” (Id. at 174-175). Prior to talking with Wilkinson, S.E. talked with Kurtz and children’s services; however, Wilkinson did not know whether S.E.’s “story” was consistent. (Id. at 175).
{¶29} On re-cross examination, Wilkinson agreed that if S.E. was “asked leading questions” during a previous interview, S.E.’s interview with Wilkinson “could have been tainted.” (Id. at 178).
{¶30} The State presented the testimony of Elizabeth Ramsey (“Ramsey”), a mental-health therapist at Consolidated Care in Bellefontaine, Ohio. (Sept. 26, 2017 Tr., Vol. I, at 109). Ramsey testified that she provided mental-health care for S.E. and first encountered S.E. on October 25, 2016 “for an assessment following contact through a crisis intervention, which occurred on October 19, 2016.” (Id. at 111). On October 19, 2016, S.E. was taken to the emergency room “because she disclosed that she had been self-harming in the form of cutting.” (Id.). According to Ramsey, S.E. reported to Harris “that the reason for that behavior” was because Coleman “had been sexually abusing her.” (Id. at 111-112). Ramsey testified that, based on her training and experience, cutting is “consistent with a child sexual assault.” (Id.
{¶31} At the conclusion of the State’s evidence, the State moved to admit its exhibits and rested. (Id. at 179-180). State’s Exhibits A, B, C, and E were admitted without objection, and State’s Exhibit D was admitted over the defense’s objection. (Id.). Next, Coleman made a
{¶32} Coleman testified in his defense. (Id. at 183). He testified that he met Harris in 2012 and that they became romаntically involved a few months after they met. (Id. at 184). He testified that he moved in with Harris and her children one year after they began their relationship, or “right at the beginning of 2014.” (Id. at 184-185). He further testified that he and Harris ended their relationship “at the end of 2014,” and Harris and her children moved out of the apartment to the house at that time. (Id. at 185). Coleman testified that they later rekindled their relationship and he “ended up moving” in the house with Harris and her children. (Id.).
{¶33} Coleman denied having any sexual contаct with S.E. (Id. at 192). He also denied that Harris caught him sleeping in S.E.’s bed in April 2015. (Id. at 188-
{¶34} According to Coleman, S.E. “did not have a great deal of emotional control.” (Id. at 191). As such, Coleman stated that “the only reasonable explanation that [he] can think of [regarding S.E.’s allegations] is that when [Harris] and [Coleman] lived together, [S.E.] was having these emotional issues and [they] were working on [coping with those issues]” and that S.E. “feels abandoned and doesn’t have that environment that she had before” Coleman and Harris ended their relationship. (Id. at 192). Coleman opined that “this is her way of trying to get back at [him]” for moving out of the house. (Id.).
{¶35} Thereafter, the defense rested. (Id. at 195). The State did not present any witnesses on rebuttal, and the matter was submitted to the jury, which found Coleman guilty as to one count of gross sexual imposition. (Id. at 195, 225-227). The jury could not reach a decision as to the other counts. (Id. at 227). Subsequently, the trial court granted Coleman’s
{¶36} We first review the sufficiency of the evidence supporting Coleman’s gross-sexual-imposition conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). Coleman challenges the sufficiency of the
{¶37} There is sufficient evidence that Coleman engaged in sexual contaсt with S.E. S.E. testified that Coleman touched the “upper part” of her body over her clothes. She marked an “X” on a diagram of a female child’s body to indicate where Coleman touched her. (See State’s Ex. A). S.E. agreed that she has heard that part of the human body referred to as “breasts.” (Sept. 26, 2017 Tr., Vol. I, at 50). That act constitutes sexual contact under
{¶39} Thus, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that Coleman engaged in sexual contact with S.E., while S.E. was less than thirteen years of age. See White at ¶ 44, citing Jones at ¶ 53.
{¶40} However, Coleman argues that his gross-sexual-imposition conviction is based on insufficient evidence because the State failed to present evidence
{¶41} Thеrefore, we conclude that there is sufficient evidence that Coleman committed gross sexual imposition under
{¶42} Having concluded that Coleman’s gross-sexual-imposition conviction is based on sufficient evidence, we next address Coleman’s argument that his conviction is against the manifest weight of the evidence. See Velez, 2014-Ohio-1788, at ¶ 76. Coleman argues that his gross-sexual-imposition conviction is against the manifest weight of the evidence because S.E.’s testimony was not credible. In particular, he contends that the evidence that he did not touch S.E. is weightier than the evidence that he touched S.E. because S.E.’s testimony was “vague and
{¶43} Even if the evidence is not viewed in a light most favorable to the prosecution, “through which we examine the sufficiency of the evidence, this is not an exceptiоnal case where the evidence weighs heavily against the convictions.” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33. “As with many sexual-abuse cases, this case presents the ‘classic “he-said/she-said”’ scenario, ‘with no physical evidence to corroborate the [victim’s] allegation[s].’” White, 2017-Ohio-1488, at ¶ 50, quoting In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and 2010-L-041, 2011-Ohio-6845, ¶ 79. “‘Thus, credibility of the witnesses was the primary factor in determining guilt.’” Id., quoting In re N.Z. at ¶ 79.
{¶44} As we noted above, “the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” DeHass, 10 Ohio St.2d 230 at parаgraph one of the syllabus. “‘When examining witness credibility, “the choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.”’” White at ¶ 50, quoting In re N.Z. at ¶ 79, quoting State v. Awan, 22 Ohio St.3d 120, 123 (1986). “‘A fact finder is free to believe all,
{¶45} In this case, S.E. testified to her version of events surrounding the sexual abuse that led to Coleman’s gross-sexual-imposition conviction, and the jury found S.E. credible. See White at ¶ 51. Although S.E. was inconsistent in her testimony describing Coleman’s sexual abuse, the jury also observed Coleman’s testimony, “and we are mindful of the jury’s ‘superior first-hand perspective in judging the demeanor and credibility of witnesses.’” Suffel at ¶ 33, quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 125, citing DeHass at paragraph one of the syllabus. Thus, despite Coleman’s denial that he sexually abused S.E., the jury heard the testimony of three witnesses with experience in sexual-abuse cases involving children—Kurtz, Wilkinson, and Ramsey—in addition to S.E.’s testimony. Kurtz and Wilkinson testified that S.E.’s behavior was
{¶46} For these reasons, Coleman’s argument is unpersuasive. Accordingly, we cannot conclude that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that Coleman’s conviction must be reversed and a new trial ordered.
{¶47} Coleman’s assignments of error are overruled.
{¶48} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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