Case Information
*1
[Cite as
State v. Edwards
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010274 Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DAVID EDWARDS COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO Appellant CASE No. 10CR081459 DECISION AND JOURNAL ENTRY Dated: July 15, 2013
WHITMORE, Judge. Appellant, David Edwards, appeals from the judgment of the Lorain County
Court of Common Pleas. This Court affirms.
I Edwards was living with his long-time girlfriend, Ramona Gail Sturtevant.
Sturtevant is the paternal grandmother of J.S., who would frequently spend time at Sturtevant’s house after school and on occasion would spend the night. J.S. and Edwards were friends and had a close, loving relationship. This changed around the time J.S. turnеd ten. At that time, J.S. became aggressive toward Edwards and began to avoid him. In June 2010, J.S. reported to school officials that Edwards had abused her.
While the school officials did not notify her mother, J.S. told her that same day. Her mother immediately contacted the police. J.S. was interviewed by a detective and a social worker from *2 Children’s Services. Based on that interview, Edwards was indicted on one count of gross sexual imposition (“GSI”), in violation of R.C. 2907.05(A)(4), a felony of the third degree.
{¶4} While the case remained pending, J.S. attended regular counseling sessions. In August 2011, J.S. met with an assistant prosecutor to prepare for trial. At this meeting, J.S. disclosed additional acts of abuse by Edwards. Based on this meeting, Edwards was indicted on one count of rape, in violation оf R.C. 2907.02(A)(1)(b), a felony of the first degree, and an additional count of GSI, in violation R.C. 2907.05(A)(4), a felony of the third degree. A jury convicted Edwards of the two counts of GSI, but found him not guilty of
rape. The court sentenced him to four years in prison. Edwards now appeals and raises four assignments of error for our review.
II
Assignment of Error Number One
THE GUILTY VERDICTS ARE AGAINST THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF MR. EDWARDS’S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO STATE CONSTITUTION. In his first assignment of error, Edwards argues that the State failed to produce
sufficient evidence to support his convictions for gross sexual imposition. Specifically, Edwards argues that the State failed to produce any evidence to establish that he had sexual contact with J.S. for the purpose of sexual arousal or gratification. “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient to
support the jury verdict as a matter of law.”
State v. Thompkins
,
{¶8}
“Whether the evidence is legally sufficient to sustain a verdict is a question of
law.”
Thompkins
at 386, citing
State v. Robinson
, 162 Ohio St. 486 (1955). This Court,
therefore, reviews questions of sufficiency de novo.
State v. Salupo
, 177 Ohio App.3d 354,
No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person.
“Sexual contact” is defined as “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the pеrson is a female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). “[I]n the absence of direct testimony regarding sexual arousal or gratification, the
trier of fact may infer a purpose of sexual arousal or gratification from the ‘type, nature and
circumstances of the contact, along with the personality of the defendant.’”
State v. Antoline
, 9th
Dist. Lorain No. 02CA008100,
clothes with his hands and his mouth. She further testified that the touching occurred in 2009-
2010, when she was 10 and 11 years old. Viewing the evidence in a light most favorable to the
*4
State, “[J.S.’s] testimony аlone was sufficient because, if believed, it could have convinced the
average finder of fact beyond a reasonable doubt that [Edwards] had touched one or more
erogenous zones of a child under the age of thirteen for the purpose of sexual arousal or
gratification.”
See State v. Thomas
, 9th Dist. Wayne No. 10CA0003,
Assignment of Error Number Two THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF MR. EDWARDS’S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO STATE CONSTITUTION. In his second assignment of error, Edwards argues that his convictions are against
the manifest weight of the evidence. Specifically, Edwards argues that (1) Sturtevant’s testimony establishes that Edwards never had the opportunity to commit the crimes; (2) J.S.’s testimony was conflicting and inconsistent; and (3) the jury’s inconsistent verdicts demonstrate that it lost its way. A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence.
Thompkins
, 78 Ohio St.3d at 387;
Eastley v.
Volkman
, 132 Ohio St.3d 328,
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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.
State v. Otten
,
relationship with her long-time live-in boyfriend, Edwards. Sturtevant explained that things changed after J.S. turned 10 years old. J.S. became aggressive towards Edwards, had locked him in the shed for hours, and told the family that she wanted Edwards to die. Sturtevant denied ever leaving J.S. alone with Edwards for long periods of time, but did acknowledge that Edwards would occasionally be alone with her. Sturtеvant said that the two could be alone when playing outside together, in another part of the house, or when she made a quick trip to the local grocery store. Sturtevant also testified that Edwards confessed to her that one day while J.S. was teaching him to use the computer he “had put his hand down in her bosom, on her breast, and pulled her bra strap.” According to Sturtevant, Edwards told her that she was in the kitchen making food when this happened. J.S. testified that one day she “had an emotional breakdown during class and [ ]
couldn’t stop crying.” She explained that her teacher pulled her into the hallway to ask what was wrong. Eventually, J.S. told her teacher that Edwards had “sexually molested” her, but did not provide any details. J.S. was taken to the vice princiрal’s office where she repeated what she had told her teacher. J.S. was sent back to class and picked up at the end of the day by her mother, Olivia Rivera.
{¶16} Rivera testified that she picked up J.S. from school just like any other day and had not been informed by the school of J.S’s report of abuse. Rivera stated that she knew immediately that something was bothering J.S. and thought maybe she had gotten into trouble at school. After pressing J.S. for what was bothering her, J.S. told Rivera that Edwards had been abusing her. J.S. did not tell Rivera any details of the abuse. Rivera called the police and J.S.’s father. A couple of days later, J.S. met with Detective Carpentiere and a social worker
from Children’s Services. J.S. told them that Edwards had touched her inapproрriately, but made no allegations of cunnilingus. J.S. testified that she did not tell Detective Carpentiere and the social worker everything because she was “still very scared.” After her interview, J.S. began meeting with a counselor. She met with her counselor once a week for a year. After completing counseling, J.S. met with an assistant prosecutor to prepare for triаl. It was at this meeting that J.S. revealed that Edwards had “put his mouth on [her].” Based on this new allegation, Edwards was indicted on one count of rape and an additional count of GSI. After trial, the jury found Edwards not guilty of rape, but guilty of the two counts
of GSI. Edwards argues that the jury’s verdict is inconsistent because the jury did not believe J.S.’s allegations that formed the basis of the rape charge, but did believe her allegations of GSI. The State presented three witnesses: J.S., her mother, and her grandmother. The defense did not call any witnesses. After a careful review of the record we cannot conclude that Edwards’ acquittal of rape makes his convictions for GSI against the manifest weight of the evidence. “In reaching its verdict, the jury was entitled to believe all, part, or none of the testimony of each witness.” State v. Howse , 9th Dist. Lorain No. 12CA010251, 2012-Ohio- 6106, ¶ 45. *7 Further, we cannot conclude that J.S.’s failure to disclose all incidents of abuse in
her initial interview means that “the
greater amount of credible evidence,
offered in a trial, [ ]
support[s] one side of the issue rather than the other.” (Emphasis sic.)
Thompkins
at 387,
quoting
Black’s
at 1594. J.S. testified that she did not reveal all of the abuse in her initial
interview because she was scared. Further, she explained that her counseling sessions helped her
talk about the abuse. After a review of all of the evidence, we conclude that this is not the
exceptional case where the jury created a manifest miscarriage of justice in finding Edwards
guilty of GSI.
See Otten
,
Assignment of Error Number Three THE TRIAL COURT’S INSTRUCTIONS TO THE JURY WERE INCOMPLETE AND INACCURATE, AND THEREFORE DEPRIVED MR. EDWARDS OF A FAIR TRIAL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE ONE, SECTION 10 OF THE OHIO STATE CONSTITUTION. In his third assignment of error, Edwards argues that the court erred in failing to
define “purposefully” in its instructions to the jury. Edwards concedes that no objection was raised at trial. “[W]here specific intent or culpability is an essential element of the offense, a
trial court’s failure to instruct on that mental element constitutes error.”
State v. Wamsley
, 117
Ohio St.3d 188,
must touch the erogenous zone of another with the purpose of sexually arousing or gratifying
either person.
State v. Dunlap
, 129 Ohio St.3d 461,
find Edwards guilty it must find that he “had sex[ual] contact with J.S., not the spouse of [Edwards,] and J.S. was less than thirteen years of age * * *.” R.C. 2907.05(A)(4). The court properly defined sexual contact as “any touching of an erogenous zone of another * * * for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). The court erred in failing to define the tеrm “purpose.” However, under the facts of this case, we conclude the error does not rise to the level of plain error. “Purpose” is a commonly used word and is readily understood. A defendant’s
purpose may be inferred from “the ‘type, nature and circumstances of the contact, along with the
personality of the defendant.’”
Antoline
,
{¶26}
After reviewing the record, we conclude that the court erred in failing to instruct
the jury on the definition of the required mens rea. Hоwever, this does not rise to the level of
plain error because a specific instruction on the definition of purpose would not have produced a
different result at trial.
See State v. Jay
, 8th Dist. Cuyahoga No. 91827,
Assignment of Error Number Four MR. EDWARDS’S CONVICTIONS FOR GROSS SEXUAL IMPOSITION, BOTH FELONIES OF THE THIRD DEGREE, VIOLATED R.C. 2945.75(A)(2) BECAUSE THE JURY VERDICTS DID NOT INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS. In his fourth assignment of error, Edwards argues that the verdict forms are
insufficient to support his convictions are felonies of the third degree. Specifically, Edwards argues that because the verdict forms “do not include the degree of the offense or the aggravating element that the victim was under the age of thirteen,” he may only be convicted of a felony of the fourth degree, the least degree of the offense. We disagree. R.C. 2945.75(A)(2) provides that:
When the presence of one or mоre additional elements makes an offense one of more serious degree * * * A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged. In State v. Pelfrey ,112 Ohio St.3d 422 ,2007-Ohio-256 , the Ohio Supreme Court
held that strict compliance with R.C. 2945.75(A)(2) was required to support a conviction of tampering with governmental records, in violation of R.C. 2913.42(B)(4), and that the presence of additional circumstances would not excuse the failure to comply with the statute. Pelfrey at ¶ 14. The Court explained:
The express requirement of the statute cannot be fulfilled by demonstrating additional circumstances, such as that the verdict incorporates the languagе of the indictment, or by presenting evidence to show the presence of the aggravating element at trial or the incorporation of the indictment into the verdict form, or by showing that the defendant failed to raise the issue of the inadequacy of the verdict form.
Id . The Court reasoned that “[t]he statutory requirement certainly imposes no unreasonable burden on lawyers or trial judges.” Id . at ¶ 12. Subsequent to Pelfrey , the Ohio Supreme Court certified a conflict between State
v. Kepiro
, 10th Dist. Franklin No. 06AP-1302,
Is the holding in State v. Pelfrey , 112 Ohio St.3d 422, applicable to charging statutes that contain separate sub-parts with distinct offense levels?
State v. Sessler
,
District in
State v. Gregory
, 3d Dist. Hardin No. 6-12-02,
reconcilable because the statutes at issue in the respective cases are distinguishable.
State v.
Melton
, 8th Dist. Cuyahoga No. 97675,
{¶34}
After a careful review of the relevant statutes and case law, we are persuaded by
the rationale of the Tenth District and conclude that
Pelfrey
is inapplicable with respect to
violations of R.C. 2907.05(A)(4).
See State v. Crosky
, 10th Dist. Franklin No. 06AP-065, 2008-
Ohio-145, ¶ 147-148;
State v. Nethers
, 5th Dist. Licking No. 07 CA 78,
No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person.
A violation of R.C. 2907.05(A)(4) is a felony of the third degree. R.C. 2907.05(C)(2). There are no additional elements that will enhance this offense to a higher degree. R.C. 2907.05 does contain other subsections, but each has their own separate elements. Here, as charged in the indictment, the State was required to prove that Edwards had sexual contact with J.S. for the purpose of sexual arousal or gratificаtion and that J.S. was under the age of thirteen at the time of the offense. Failure to prove any of these elements would have resulted in an acquittal, not a conviction of a lesser degree of gross sexual imposition. Because we conclude that Pelfrey does not apply to R.C. 2907.05(A)(4),
Edwards’ verdict forms are sufficient to support his convictions as felonies of the third degree. Edwards’ fourth assignment of error is overruled.
III Edwards’ assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this documеnt shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT HENSAL, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
PAUL GRIFFIN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.