State v. DewState v. Dew
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 08 MA 62
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
GREGORY DEW, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS:
Criminal Appeal from Common Pleas Court, Case No. 07 CR 1262.
JUDGMENT:
Affirmed in Part, Reversed in Part
and Vacated in Part.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecutor
Attorney Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Richard G. Lillie
Attorney Gretchen A. Holderman
Lillie & Holderman
75 Public Square, Suite 1313
Cleveland, OH 44113
JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 1, 2009
DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court,
the parties’ briefs, and their oral arguments before this court. Appellant, Gregory S. Dew,
appeals the decision of the Mahoning County Court of Common Pleas that convicted him
of four counts of rape, two counts of gross sexual imposition, and one count of corruption
of a minor and sentenced him accordingly. On appeal, Dew argues that the trial court
erred by denying his motion to suppress a phone conversation between him and one of
the victims that was intercepted and secretly recorded by police. Dew also argues the
trial court erred by denying his motion for relief from prejudicial joinder. Further, Dew
contends his convictions for rape and gross sexual imposition were based upon
insufficient evidence, with respect to the “force” element of those crimes. Finally, Dew
argues that his conviction on all counts was against the manifest weight of the evidence.
{¶2} Upon review, Dew‘s third assignment of error is meritorious, in part. More
specifically, Dew‘s gross sexual imposition conviction involving Patient B, and his rape
conviction involving Patient C are not supported by sufficient evidence, because the State
failed to set forth evidence of “force or threat of force.” However, all of Dew‘s other
assignments of error are meritless. Dew‘s remaining convictions are not against the
weight or the sufficiency of the evidence. The trial court properly denied the motion to
suppress, as the applicable law—that of Ohio—allows police to record a phone
conversation between a consenting informant and a non-consenting defendant without a
warrant. The trial court did not abuse its discretion by denying Dew‘s motion for relief
from improper joinder since the evidence of each set of crimes was simple and direct.
Accordingly, the judgment of the trial court is affirmed in part, reversed in part and
vacated in part.
Facts
{¶3} On October 13, 2006, Gymnast A and Gymnast B contacted Boardman
Township Police to report they had been sexually abused by Dew during the 1990‘s,
when Dew served as their gymnastics coach. Gymnast B agreed to set up a phone call
with Dew, which was secretly recorded by Boardman police. Dew also made both oral
and written statements to police on March 15, 2007.
{¶4} On March 22, 2007, the Mahoning County Grand Jury indicted Dew on three
counts of sexual battery, pursuant to R.C. 2907.03(A)(9)(B) with respect to Gymnast A.
This indictment was subsequently dismissed because the version of the sexual battery
statute under which Dew was charged was not in effect when the alleged acts were
committed back in the early 1990‘s. However, prior to the dismissal of that indictment, the
Grand Jury reconvened and issued a superceding indictment on May 10, 2007, charging
Dew with three counts of rape, pursuant to R.C. 2907.02(A)(2)(B), involving Gymnast A;
one count of corruption of a minor, pursuant to former R.C. 2907.04(A), involving
Gymnast A, and, one count of gross sexual imposition, pursuant to R.C. 2907.05(A)(1),
involving Gymnast B.
{¶5} During the course of the police investigation in Case No. 07-CR-378, three
other women came forward with allegations against Dew: Patient A, Patient B, and
Patient C. These allegations stemmed from Dew‘s more recent conduct while he was
treating these women as their chiropractor. As a result of these allegations, in a case
styled 07-CR-1262, the Grand Jury issued a superceding indictment, which, as amended,
charged Dew with three counts of gross sexual imposition, pursuant to R.C.
2907.05(A)(1)(B) involving Patient B; twelve counts of gross sexual imposition, pursuant
to R.C. 2907.05(A)(1)(B), involving Patient A, and, three counts of rape, pursuant to R.C.
2907.02(A)(2)(B), involving Patient C.
{¶6} The two cases were subsequently consolidated and joined for trial. Dew
pled not guilty to the charges in both superceding indictments, and waived his speedy trial
rights. Dew filed several pre-trial motions, among them, a motion to suppress the
recorded conversation between Gymnast B and Dew; a motion to suppress Dew‘s written
and videotaped statements made to Boardman Police; and, a motion for relief from
improper joinder, all of which were overruled, following a hearing.
{¶7} The following evidence was adduced at trial. Gymnast A testified she first
met Dew in 1986 when she was eleven years old and Dew was twenty-six years old,
when Dew began coaching her in gymnastics. Dew coached her for approximately five
years, until 1992 when he moved to Iowa to attend a chiropractic college. Gymnast A
spent a significant amount of time training at the YGC and explained that Dew controlled
many aspects of her life, such as what she ate, drank, when she slept, and how she wore
her hair and clothing. Outside of the gym, Dew would pay attention to her grades in
school and chaperone school dances. Gymnast A said she trusted Dew and looked up to
him. She stated that Dew liked when people called him “Mr. Wonderful,” that everyone
thought he was a “great person.” Gymnast A testified that her parents separated in 1989-
1990 after a twenty-two year marriage and that she looked to Dew as a confidant and
often discussed the divorce with him.
{¶68} Hannah Kirk, a massage therapist who worked for Dew at his Boardman clinic, testified she performed massages on Patient B and that Patient B never seemed anxious, fearful or uncomfortable about her treatments with Dew. She stated she was sometimes present as a chaperone during Patient C‘s internal coccyx adjustments, and that she never noticed anything inappropriate about the procedures. Ms. Kirk testified she was also Dew‘s patient and never felt uncomfortable with him. On cross, Ms. Kirk agreed there would be no reason to stoke the sides of a woman‘s breasts when performing the effleurage massage technique. On redirect, she agreed that effleurage can feel like tickling.
{¶69} Dr. Fred Edge, a licensed chiropractor and medical doctor from Pennsylvania with 32 years of experience testified as an expert witness for the defense. Like Dew, he attended Palmer College of Chiropractic. Dew also worked for Dr. Edge‘s Pennsylvania clinic for ten years, and Dr. Edge said he never received any complaints about Dew. Dr. Edge admitted that twenty years ago his license was suspended, but then stayed, after he was found guilty of several tax violations. On cross, Dr. Edge admitted that in addition to the currency reporting transaction violations and tax evasion charges, he was also convicted of four counts of using a false Social Security Number with the intent to defraud
{¶71} Dr. Edge testified he performed an internal coccyx adjustment procedure before, but agreed it is not a procedure performed frequently. He stated both he and Dew were taught about the internal coccyx adjustment at Palmer College. Dr. Edge stated he is not licensed in Ohio, but it is his understanding that both in Ohio and Pennsylvania a chiropractor may perform any procedure taught in school unless it is specifically prohibited by state law. He opined Dew had followed all protocols when performing the procedure on Patient C. He stated it is his understanding that the internal coccyx adjustment procedure, either through the rectum or through the vagina, is not prohibited in the state of Ohio. The defense then introduced a copy of a current Washington State Statute which permits vaginal coccyx adjustments under certain circumstances.
{¶72} On cross, Dr. Edge agreed it is possible for someone with a history of sexual abuse, like Patient B allegedly had, to have no problems with chiropractic treatment. He testified he would be surprised to learn that as of 2003 vaginal coccyx adjustments are not recommended. However, he conceded that vaginal adjustments are “always the lowest order and [have] always been taught that way.” Further, he agreed that he was Dew‘s boss and that Dew‘s actions as an employee reflects upon him.
{¶73} The defense then rested its case and counsel and the court discussed jury instructions. The defense objected to the court‘s choice of jury instructions for the “force” element of the crimes. After closing arguments and the jury charge, the jury began deliberations. Ultimately, the jury found Dew guilty of three counts of rape and one count of corruption of a minor with respect to Gymnast A ; one count of gross sexual imposition with regard to Gymnast B; one count of gross sexual imposition with respect to Patient B; and, one count of rape with respect to Patient C. The jury acquitted Dew of all twelve counts of gross sexual imposition with respect to Patient A; two counts of gross sexual imposition with respect to Patient B; and, two counts of rape of Patient C.
Motion to Suppress
{¶75} In his first assignment of error, Dew argues:
{¶76} “The indictment and prosecution of the case against appellant were predicated upon evidence gained in violation of the Fourth Amendment to the United States Constitution.”
{¶77} Dew argues that the trial court erred by failing to suppress the taperecorded phone conversation between Gymnast B and Dew. After coming forward with allegations against Dew, Gymnast B set up a phone call with him, which was to be monitored and recorded by Boardman Police. When Dew called Gymnast B on October 26, 2006, Gymnast B was already on the line with Boardman Police, and when she clicked over, a “three-way call” was created, allowing Boardman Police to record the entirely of the conversation, unbeknownst to Dew. Dew argues this recording should have been suppressed because it was obtained without a warrant.
{¶78} “Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact.” State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (1998). “‘At a suppression hearing, the evaluation of evidence and the credibility of witnesses are issues for the trier of fact.’ ” State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). We are bound to accept the trial court‘s factual determinations made during the suppression hearing so long as they are supported by competent credible evidence. State v. Harris, 98 Ohio App.3d 543, 546, 649 N.E.2d 7 (1994). Accepting these factual determinations as true, an appellate court must then “independently determine as a matter of law, without deference to the trial court‘s conclusion, whether the trial court
{¶79} In this case, Dew moved to suppress the tape recording because he believed absent a warrant, the contents of the recording were inadmissible. He urged the court to apply Pennsylvania or California law to decide whether to suppress the recording. Dew argued that both California and Pennsylvania law require a warrant for the secret taping of a conversation, unless both parties to the conversation consent to the taping. Dew contended that either of those two states’ laws should apply because he claimed he was driving through Pennsylvania when he made the call, while Gymnast B was undisputedly in California when she received the call. Dew claimed that the fact that the recording took place in Ohio was not enough to trigger the application of Ohio‘s wiretap statute, which is less strict than Pennsylvania‘s or California‘s in that it permits the secret recording of a phone conversation by police with consent of just one of the parties.
{¶80} After a hearing, where both sides presented legal arguments only, the trial court overruled the motion to suppress the tape recording, finding that the “applicable law requires only the permission of one of the parties to the conversation to allow interception of the conversation by a third party.”
{¶81} On appeal, Dew argues that the secret recording of his phone conversation by police, done without a warrant, contravened his Fourth and Fourteenth Amendment rights and thus, the recording, through the operation of the exclusionary rule, should have been inadmissible at trial. The Fourth Amendment to the United States Constitution, as applicable to the states via the Fourteenth Amendment, protects individuals against unreasonable search and seizure. See, also, Section 14, Article I, Ohio Constitution. However, neither the federal constitution, nor the Ohio constitution requires the suppression of evidence obtained by the warrantless recording of a telephone conversation between a consenting police informant and a non-consenting defendant. State v. Geraldo, 68 Ohio St.2d 120, 22 O.O.3d 366, 429 N.E.2d 141 (1981), at syllabus, following U.S. v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).
“The prosecuting attorney of the county in which an interception is to take place or in which an interception device is to be installed, or an assistant to the prosecuting attorney of that county who is specifically designated by the prosecuting attorney to exercise authority under this section, may authorize an application for an interception warrant to a judge of the court of common pleas of the county in which the interception is to take place or in which the interception device is to be installed.* * *” R.C. 2933.53(A)
{¶83} The statute provides a specific exception to the interception warrant requirement where: “[t]he interception of a wire, oral, or electronic communication by a law enforcement officer if the officer is a party to the communication or if one of the parties to the communication has given prior consent to the interception by the officer.” R.C. 2933.53(F)(2) (emphasis added.)
{¶84} Dew contends that Ohio law is inapplicable to this case because it was undisputed that Gymnast B was in California when she made the call and Dew was allegedly in Pennsylvania when he received the call. We find this argument unpersuasive. The interception of the phone call took place in Ohio, and Dew was tried in an Ohio court.
{¶85} Dew also argues that the warrantless recording of the conversation contravenes the “point and purpose” of the Federal Wiretap Act,
{¶86} In his second assignment of error, Dew argues:
{¶87} “Appellant was severely prejudiced and denied due process of law when the court denied his motion for relief from improper joinder, refused to sever the unrelated charges, and forced Appellant to try the cases together before one jury.”
{¶88} Dew contends that the trial court erred by denying his motion for improper joinder and failing to sever the gymnast-related charges from the patient-related charges. Pursuant to
{¶89} However, if it appears the defendant is prejudiced by joinder, the trial court may order separate trials.
{¶90} A prosecutor can negate a defendant‘s claims of prejudicial joinder in several ways. State v. Coley, 93 Ohio St.3d 253, 259, 754 N.E.2d 1129 (2001). First, the state could show the evidence regarding one of the joined offenses would be admissible in trial of the other offense due to the exceptions to other acts evidence contained in
{¶92} The Ohio Supreme Court rejected a similar argument in State v. Schaim, 65 Ohio St.3d 51 (1992). In Schaim, the defendant was indicted on two counts of forcible rape involving his adopted daughter, one count of gross sexual imposition involving his younger daughter, and two counts of gross sexual imposition involving an employee. Defense counsel moved to sever the counts into three groups for trial however the trial court denied the motion. The Ohio Supreme Court rejected the notion that evidence relating to each crime would have been admissible pursuant to Evid.R. 404(B)(4) had the trials been separated, simply because the defendant displayed a pattern of molesting women.
{¶93} Similarly, in the instant case, Evid.R. 404(B) does not support joinder. As Dew points out, the gymnast-related crimes took place over a decade before the patientrelated crimes. And while they both involve sexual abuse of women over whom Dew held a position of power or authority, this is insufficient to trigger one of the Evid.R. 404(B)(4) exceptions.
{¶94} However, we conclude that joinder was nonetheless proper in this case because evidence of each set of charges was simple and direct. “[W]hen simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as ‘other acts’ under Evid.R. 404(B).” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). In this case, the evidence relating to the crimes against the gymnasts was separate and distinct from the evidence relating to the crimes against the patients. With respect to the set of charges relating to the gymnasts, both victims testified, and other evidence included Dew‘s written and oral statements to police, the recorded phone call between Gymnast B and Dew, and letters from Dew to Gymnast B. With respect to the case involving the patients, the evidence included the testimony of all victims, and that of competing expert witnesses. Although the crimes against the chiropractic patients and the gymnasts were of a similar nature, it is difficult to see how the jury would have had problems segregating the evidence. Further, the Ohio Supreme Court has held that where, as here, a jury acquits on some counts, this can demonstrate the jury‘s ability to segregate the evidence. State v. Schiebel, 55 Ohio St.3d 71, 88, 564 N.E.2d 54 (1990). Moreover, Dew fails to explain how he would have defended either case differently had the two cases not been joined. See Franklin at 123.
{¶96} Thus, the trial court did not abuse its discretion by denying Dew‘s motion to sever trial on the two sets of charges. Accordingly, Dew‘s second assignment of error is meritless.
{¶97} In Dew‘s third assignment of error, he asserts:
{¶98} “Appellant‘s conviction was not supported by sufficient evidence and against the manifest weight of the evidence.”
{¶99} This assignment of error has two sub-parts, each of which will be discussed in turn. In the first part of Dew‘s third assignment of error, he contends his rape and gross sexual imposition convictions are not supported by sufficient evidence because there was no evidence demonstrating force or threat of force. Dew also argues that the trial court‘s jury instructions with regard to force were flawed.
{¶100} “Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Thus, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a question of law. Id. “In reviewing the record for sufficiency, ‘[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.‘” Smith at 113 (citation omitted).
{¶102} The Ohio Supreme Court has addressed the issue of “force” or “threat of force” several times. In State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), the Court held that the amount of force necessary to commit the offense “depends upon the age, size and strength of the parties and their relation to each other.” Id. at paragraph one of the syllabus. Specifically, in cases involving the “filial obligation of obedience to a parent,” a lesser showing of force may be sufficient. Id.
{¶103} Given the inherent coercion in parental authority when a parent abuses his or her child, the requisite force “‘need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the * * * victim‘s will was overcome by fear or duress, the forcible element * * * can be established.‘” Eskridge at 58-59, quoting State v. Fowler, 27 Ohio App.3d 149, 154, 27 OBR 182, 500 N.E.2d 390 (1985).
{¶105} Applying that logic, the Court in Schaim, found there was insufficient evidence of force where the defendant raped his adopted daughter, who was an adult at the time of the alleged rape, even though she alleged the defendant had also abused her while she was a child. The Court held that “[a] threat of force can be inferred from the circumstances surrounding sexual conduct, but a pattern of incest will not substitute for the element of force where the state introduces no evidence that an adult victim believed that the defendant might use physical force against her.” Id. at 55.
{¶106} In State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998), the Supreme Court further held that the lesser showing of force principles established in Eskridge also applied to situations where a parent-child relationship was absent, but the adult defendant stood in a position of authority over the child-victim. In such a case, the Court found that force or threat of force could be met “without evidence of express threat of harm or evidence of significant physical restraint.” Id.
{¶108} Courts have also applied Eskridge to situations involving physiciandefendants and patient-victims. For example, in State v. Pordash, 9th Dist. No. 04CA008480, 2004-Ohio-6081 (2004), the court applied Eskridge to a case where a chiropractor was convicted of raping several patients. Specifically, the court stated:
‘As long as it can be shown that the rape victim‘s will was overcome by fear or duress, the forcible element of rape can be established.’ State v. Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988), citing State v. Martin (1946), 77 Ohio App. 553, 68 N.E.2d 807. In the instant case, each victim described in detail the intense fear they experienced during their encounters with Appellant at his office. While Appellant is correct that the doctor-patient relationship does not create an inference of force, that is not to say that it is entirely irrelevant. The relationship of the parties is a relevant fact when examining whether the element of force has been proven. Eskridge, 38 Ohio St.3d at 58. Appellant was a chiropractor, specializing in treatment of the spine. At the time of each rape, he was, just prior to committing the sexual act, acting in his capacity as each victim‘s treating physician. Further, each victim knew of Appellant‘s extensive background in martial arts. As such, each victim testified that they feared that any resistance would lead to serious bodily harm. Accordingly, we cannot say that the jury lost its way in finding that the victims’ wills had been overcome by fear, establishing the element of force.’ Pordash at ¶12.
{¶110} Thus, in sum, force is “a relative term that depends on the totality of the circumstances in a certain case.” State v. Rupp, 7th Dist. No. 05MA166, 2007-Ohio-1561 (2007) at ¶49. Although the case law holds that a somewhat lesser showing of force is required when the defendant stands in a position of authority over the victim, the focus of the inquiry is whether the victim‘s will was overcome by fear or duress. See, e.g., Eskridge at 58-59.
{¶112} In this case, the jury instructions do not constitute an abuse of discretion. Contrary to Dew‘s assertions, the trial court did not instruct the jury that the relationship between the defendant and victim, standing alone, could create the inference of force. Rather, the court properly stated the law as set forth above, which is that where the defendant holds some position of authority over the victim, the force may be more subtle or psychological in nature. Further, the court properly instructed the jury that to find force, it must find that the victim‘s will was overcome by fear or duress. Thus, we now turn to the sufficiency arguments.
{¶114} In addition, there was sufficient evidence of force with regard to Dew‘s gross sexual imposition conviction involving Gymnast B. Dew held a position of authority over Gymnast B as her coach, and exercised control over aspects of her life. Further, the evidence shows Dew manipulated Gymnast B over a period of many years, and was larger and older than her. Dew himself admitted during his interview with Det. Flara that his gymnasts placed a great deal of trust in him and relied on him to keep them safe, while they performed “death-defying stunts.” Further, Gymnast B described an incident where Dew told her she could not come down a high platform at the gym until she professed her love for him. Gymnast B testified that Dew‘s conduct made her feel awkward and scared. And although she said Dew never physically forced her to do anything, she said that she relented to his demands because he was in a position of authority over her. Thus, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Gymnast B‘s will was overcome by fear or duress.
{¶116} Notably, however, Patient B never stated she believed Dew would cause her contemporaneous harm if she resisted his touching. As we stated in Bajaj, supra, a physician-patient relationship does not in and of itself act as a substitute for the requisite force element to sustain a rape or gross sexual imposition conviction. Similarly, neither does a chiropractor-patient relationship. See Bajaj. The scenario involving Patient B is distinguishable from that involved in the Ninth District’s Pordash case. In Pordash, the court held there was sufficient evidence of force to support a chiropractor‘s rape convictions involving several patients where all of the victims testified that they knew the defendant had an extensive background in martial arts and they feared any resistance would lead to serious bodily harm. Pordash at ¶12. By contrast, Patient B did not testify that she feared resisting Dew would lead to immediate harm.
{¶118} Here there were no objective actions performed by Dew which establish an implicit threat of force was used to overcome the victim’s will by fear or duress. There was no evidence of an attempt to frighten Patient B or to imply that resistance would lead to force. Cf. Rupp at ¶52 (intent to instill fear and thus submission where defendant had just told the victim stories about shooting a store clerk in the head without remorse, helping his cop-killer friend to escape a national manhunt, and getting released on parole); State v. Arias, 9th Dist. No. 04CA008428, 2004-Ohio-4443 (2004) at ¶10 (intent to instill fear where the defendant told the victim that he had previously strangled a woman to death and that he suffocated a fellow inmate in prison).
{¶120} With regard to Dew‘s rape conviction involving Patient C, we must also conclude there was insufficient evidence of force or threat of force. Patient C testified about three incidents where she felt she was improperly treated by Dew. The first time, Patient C presented for the internal coccyx adjustment procedure and lie face-down on the examination table, draped with a gown. She stated that instead of placing his finger in her rectum as usual, Dew very quickly placed his finger inside her vagina, then removed the finger, placed it inside her rectum, and performed the internal coccyx adjustment as usual, all without comment.
{¶122} However, Patient C testified that she consented to both the vaginal and rectal procedures. Notably, Patient C never said she feared Dew, was intimidated by him, or that she believed resistance would lead Dew to cause her harm. Dew’s status as Patient C’s treating chiropractor, standing alone, is insufficient to infer a threat of force. See Bajaj, supra. Notably, the State does not advance much of an argument about force with regard to the rape of Patient C, other than asserting that the “force” stems from the fact that Dew exceeded the scope of proper treatment. However, the State does not cite any case law in support of that assertion. The issue of whether Dew exceeded the scope of proper treatment relates more to the “sexual conduct” element of the crime, and not the “force” element. “Sexual conduct” includes “without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.”
{¶124} This is not to say that Dew’s actions with regard to Patients B and C do not constitute some crime. Dew‘s conduct would likely fall squarely into the offense of sexual imposition, pursuant to
“No person shall have sexual contact with another, not the spouse of the offender; * * * when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the other person, * * * or is reckless in that regard.
{¶125} However, Dew was not charged with the crime of sexual imposition. He was charged with gross sexual imposition, and rape, both of which require proof of force or threat of force. And as explained above, the State has not provided sufficient evidence of force or threat of force to support Dew’s convictions of these crimes. Accordingly, Dew‘s convictions of gross sexual imposition of Patient B, Count 13 of the indictment in Case No. 07-CR-1262, and rape of Patient C, Count 16 of the indictment in Case No. 07-CR-1262, are reversed and vacated.
Manifest Weight
{¶126} In the second part of his third assignment of error, Dew argues that even if this court finds sufficient evidence with respect to the force element of the crimes, his convictions on all counts are nonetheless against the manifest weight of the evidence. In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins, supra at 387.
{¶127} “Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.” Thompkins, supra at 387. In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. However, a conviction will only be reversed as against the manifest weight of the evidence in exceptional circumstances. Id. This is so because the trier of fact is in a better position to determine credibility issues, since he personally viewed the demeanor, voice inflections and gestures of the witnesses. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 39 O.O.2d 366, 227 N.E.2d 212 (1967).
{¶128} Ultimately, “the reviewing court must determine whether the appellant or the appellee provided the more believable evidence, but must not completely substitute its judgment for that of the original trier of fact ‘unless it is patently apparent that the factfinder lost its way.‘” State v. Pallai, 7th Dist. No. 07MA198, 2008-Ohio-6635 (2008), at ¶31, quoting State v. Woulard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2004), at ¶81. In other words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th Dist. No. 99CA149, 2002-Ohio-1152 (2002), at ¶13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (1999).
{¶130} With respect to Gymnast A, Dew was convicted of three counts of rape pursuant to
{¶131} In addition, while Dew maintained that the sexual acts were purely consensual, Gymnast A testified about the control that Dew maintained over many aspects of her life, both in and out of the gym. She also explained the manipulative techniques Dew used to facilitate the acts, and stated she was intimidated by Dew because he was bigger than her and she knew he carried a gun and a knife. Ultimately, Gymnast A‘s version of the events is more believable. Dew‘s convictions of three counts of rape with respect to Gymnast A are not against the manifest weight of the evidence.
{¶132} Correspondingly, Dew‘s conviction of one count of corruption of a minor relating to Gymnast A is not against the manifest weight of the evidence. At sentencing, the trial court merged the corruption of a minor conviction with the rape conviction. When a trial court dispatches with a count through merger, any error in the jury‘s verdict on the merged count is rendered harmless beyond a reasonable doubt. State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990) (superseded by constitutional amendment on other grounds); see, also, State v. Wolff, 7th Dist. No. 07MA166, 2009-Ohio-2897 (2009), at ¶70. Therefore, even if Dew‘s conviction of corruption of a minor were erroneous, any error would be harmless beyond a reasonable doubt.
{¶133} Dew was also convicted of two counts of gross sexual imposition, one with respect to Gymnast B and one with respect to Patient B. Although these crimes occurred during different time periods, the definition of gross sexual imposition and its elements remained the same.