{¶ 2} In the early morning hours of October 31, 2003, Emilie Wolf, then 22 years old, was with her boyfriend and other friends at "First Run," a bar in Oxford, Ohio. Also at the bar that evening was Michael Gesell (hereinafter "appellant"), then 39 years old. Appellant was one of the managers at First Run, but was "off the clock" this evening, drinking with his friends. At the time, neither Emilie nor appellant were acquainted with each other.
{¶ 3} Emilie was dressed in a Halloween costume that night and she had two mixed drinks. As she was leaving the bar's lower floor area by walking up a set of stairs, appellant grabbed Emilie's buttocks. Emilie turned around, stepped down from the stairs and confronted appellant, asking him, "What do you think you're doing?" Appellant reached behind Emilie and grabbed her buttocks again, telling her, "I'll grab your butt if I want to." Emilie slapped appellant across his face with her right hand. When she tried to slap him again, appellant blocked the slap and then grabbed her left hand and bent it backward.
{¶ 4} Appellant began pushing Emily backward. She started punching him, even biting him at one point, to get him off of her. While this was occurring, appellant told Emilie, "You don't know who you're messing with." Appellant wound up on top of Emilie on the ground. He got off her when the bar's "crowd control" personnel came over to them. Emilie went to the manager in charge at First Run, who told Emilie to go the police station and bring the police back. But when Emilie returned with the police, appellant was no longer there.
{¶ 5} Later that morning, at 7:15 a.m., appellant voluntarily came to the Oxford Police Department and spoke with Detective Dennis Barter. Appellant told Detective Barter that he had been partying at First Run the night before and that an incident had occurred that evening, which "he didn't remember having anything to do with[.]"
{¶ 6} After Detective Barker read the incident report, he advised appellant of his Miranda rights. He then informed appellant that he had been accused of "grabbing a young lady's buttocks." Appellant said that he "didn't remember anything like that," but did remember being "struck by the young lady." Appellant also remembered grabbing "her wrist so that she wouldn't strike him again." Appellant admitted to Detective Barter that he had been "drinking heavily" at the party, and that he was "hung over."
{¶ 7} Appellant was charged by way of complaint with assault in violation of R.C.
{¶ 8} A trial was held on the matter on February 27, 2004. At the conclusion of evidence, the magistrate found appellant guilty of both charges. Appellant filed objections to the magistrate's recommendation. On March 28, 2005, the trial court overruled those objections and adopted the magistrate's decision finding appellant guilty as charged.
{¶ 9} On May 12, 2005, the magistrate recommended that appellant receive a suspended jail sentence of 180 days and a fine of $1,000, with $500 of the fine suspended, for his conviction on the assault charge, and that appellant receive a suspended jail sentence of 60 days and a fine of $600, with $400 of the fine suspended, for his conviction on the sexual imposition charge. On July 26, 2005, the trial court adopted the magistrate's sentencing recommendations.
{¶ 10} Appellant now appeals, raising the following assignments of error:
{¶ 11} Assignment of Error No. 1:
{¶ 12} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AND THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE CHARGE OF SEXUAL IMPOSITION."
{¶ 13} Appellant argues that the trial court erred in overruling his Crim.R. 29 motion for acquittal on the sexual imposition charge because the state failed to present sufficient evidence to convict him of that offense. He also argues that his conviction on the sexual imposition charge was contrary to the manifest weight of the evidence. We disagree with these arguments.
{¶ 14} Crim.R. 29(A) states, in pertinent part:
{¶ 15} "The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the * * * complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses."
{¶ 16} Although appellant raises both challenges in one assignment of error, a challenge to the sufficiency of the evidence differs from a challenge to the manifest weight of the evidence. State v. McKnight,
{¶ 17} "In reviewing a claim of insufficient evidence, `[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.'" McKnight,
{¶ 18} In reviewing a claim that a conviction is against the manifest weight of the evidence, an appellate court applies a different test. McKnight,
{¶ 19} Appellant was convicted of sexual imposition in violation of R.C.
{¶ 20} "(A) No person shall have sexual contact with another, not the spouse of the offender * * * when any of the following applies:
{¶ 21} "(1) The offender knows that the sexual contact is offensive to the other person * * * or is reckless in that regard."
{¶ 22} Appellant first contends that there was insufficient evidence to convict him of sexual imposition because the state failed to prove that he had "sexual contact" with Emilie Wolfe. We disagree with this contention.
{¶ 23} "`Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttocks, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." (Emphasis added.) R.C.
{¶ 24} In determining whether sexual contact occurred, "the proper method is to permit the trier of fact to infer from the evidence presented at trial whether the purpose of the defendant was sexual arousal or gratification by his contact with those areas of the body described in R.C.
{¶ 25} "While the purpose of sexual arousal or gratification is an essential element of the offense of gross sexual imposition and sexual imposition, there is no requirement that there be direct testimony regarding sexual arousal or gratification. SeeIn re D.S., Warren App. Nos. CA2004-04-036 and CA2004-04-046,
{¶ 26} In this case, Emilie testified that appellant grabbed her buttocks as she was walking up a set of stairs at First Run. When she confronted him and asked him, "What do you think you're doing?," appellant grabbed her buttocks again, saying, "I'll grab your butt if I want to." The incident took place at a bar. Appellant admitted to a police officer that he had been "drinking heavily" that night. At trial, appellant admitted that he had drank six beers by the time the incident occurred. Considering the "type, nature and circumstances of the contact, along with the personality of the defendant[,]" Cobb,
{¶ 27} Appellant also argues that his conviction for sexual imposition was not supported by sufficient evidence because the only evidence presented that tended to show that he had committed the offense of sexual imposition came from Emilie Wolfe, the victim in this case, and such evidence is insufficient to support a conviction for this offense, pursuant to R.C.
{¶ 28} R.C.
{¶ 29} In this case, one of the bartenders at First Run, Lindsay Babcock, testified that as Emilie Wolfe walked up the stairs, appellant "reached over and put his hand up the stairs where she was." Babcock acknowledged that she did not actually see appellant grab Emilie's buttocks, but she testified that after appellant had "reached up there[,]" Emilie "immediately turned around and ran back down the stairs and slapped him."
{¶ 30} Appellant makes much of the fact that Babcock did not actually see his hand come into physical contact with Emilie's buttocks. But the factual circumstances about which Babcock testified strongly support an inference that that is exactly what happened. Thus, Babcock's testimony provides the "corroborating evidence necessary to satisfy R.C. 2907.06(B)," even though that testimony may not have been "independently sufficient to convict" appellant of sexual imposition, since all that was needed was "[s]light circumstances or evidence" that tended to support Emilie's testimony. Economo,
{¶ 31} Appellant also argues that his testimony at trial, along with the testimony of his witness, Mike Galloway, established that he only touched Emilie on the "small of her back" in order to get her attention, and that he did not grab Emilie's buttocks, as she insisted. We find this argument unpersuasive.
{¶ 32} In reviewing a claim of insufficient evidence, an appellate court is obligated to view the evidence in a light most favorable to the prosecution. McKnight,
{¶ 33} When the evidence presented in this case is examined in a light most favorable to the prosecution, it is apparent that the state presented sufficient evidence through the testimony of Emilie Wolfe and Lindsay Babcock to convict appellant of sexual imposition, pursuant to R.C.
{¶ 34} In reviewing a claim that a conviction is against the manifest weight of the evidence, an appellate court is obligated to consider, among other things, the weight to be given the evidence presented and the credibility of the witnesses. SeeThompkins,
{¶ 35} In this case, the trial court was entitled to believe Emilie Wolfe's and Lindsay Babcock's testimony that appellant grabbed Emilie's buttocks, and disbelieve appellant's and Mike Galloway's testimony that appellant only touched Emilie on the small of her back to get her attention. See State v. Nichols
(1993),
{¶ 36} Both appellant and Galloway acknowledged at trial that they had had a lot to drink on the night in question. Appellant's denial of Emilie's charge was obviously self-serving. And while Galloway testified at trial that appellant only touched Emilie on the small of the back, he acknowledged that he had given a statement to police in which he had stated that appellant touched Emilie on her "Lower back/butt."
{¶ 37} A review of the totality of the evidence presented at trial demonstrates that appellant's conviction on the charge of sexual imposition was not contrary to the manifest weight of the evidence.
{¶ 38} Appellant's first assignment of error is overruled.
{¶ 39} Assignment of Error No. 2:
{¶ 40} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AND THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE CHARGE OF ASSAULT."
{¶ 41} Appellant argues that his conviction for assault in violation of R.C.
{¶ 42} R.C.
{¶ 43} In this case, appellant acknowledges that he grabbed Emilie Wolfe's wrist and that she sustained some type of injury as a result. However, he contends that the state failed to prove that he "knowingly" caused physical harm to Emilie, because the state failed to present evidence showing that he "had an intent" to harm her. He asserts that his only intention in grabbing Emilie's wrist was to prevent her from further slapping him, and that any injuries sustained by Emilie resulted from his acting in legitimate self-defense. We find these contentions unpersuasive.
{¶ 44} Initially, the state only needs to prove that an offender had a "specific intention to cause a certain result" when the state is required to prove that the offender acted "purposely." See R.C.
{¶ 45} Therefore, in order to prove that appellant "knowingly caused" physical harm to Emilie, the state did not need to prove that appellant had the specific intention to cause Emilie physical harm. Instead, the state was only required to prove that appellant was "aware that his conduct w[ould] probably cause Emily physical harm." R.C.
{¶ 46} In this case, the evidence showed that appellant grabbed Emilie's wrist and bent it backwards. He then pushed her backwards and the two of them wound up on the floor, with appellant on top of her. During this confrontation, appellant told Emilie, "You don't know who you're messing with." Under the totality of the circumstances, there was ample evidence presented to allow the trial court to conclude that appellant was aware that his conduct would probably cause physical harm to Emilie, which, in fact, it did.
{¶ 47} We also disagree with appellant's claim of self-defense. "Under Ohio law, self-defense is an affirmative defense for which the defendant bears the burden of proof. In order for a defendant to establish self defense involving the use of nondeadly force, he must prove by a preponderance of the evidence (1) that the defendant was not at fault in creating the situation giving rise to the altercation and (2) that he had reasonable grounds to believe and an honest belief, even though mistaken, that he was in imminent danger of bodily harm and his only means to protect himself from such danger was by the use of force not likely to cause death or great bodily harm. [Footnote and citations omitted.] There is no duty to retreat when nondeadly force is employed. [Citation omitted.]" State v.Fritz,
{¶ 48} In this case, the testimony of Emilie Wolfe and Lindsay Babcock showed that appellant was "at fault in creating the situation giving rise to the altercation." Fritz,
{¶ 49} While appellant testified that Emilie slapped him first, and that he grabbed her wrist only in an effort to protect himself, the trial court, as was its right, chose to believe Emilie's version of events, rather than appellant's. SeeNichols,
{¶ 50} Given the foregoing, we conclude that there was sufficient evidence presented to support appellant's conviction for assault under R.C.
{¶ 51} Appellant's second assignment of error is overruled.
{¶ 52} The trial court's judgment is affirmed.
Walsh, P.J., and Young, J., concur.