STATE OF OHIO v. JAMES A. GIDEON
CASE NO. 1-18-27
CASE NO. 1-18-28
CASE NO. 1-18-29
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
June 1, 2021
[Cite as State v. Gideon, 2021-Ohio-1863.]
Appeals from Lima Municipal Court, Trial Court Nos. 17CRB01386, 17CRB01387, and 17CRB01385
OPINION
Judgments Affirmed
APPEARANCES:
Dennis C. Belli for Appellant
Anthony L. Geiger for Appellee
{¶1} This case is before this court on remand from the Supreme Court of Ohio. State v. Gideon, ___ Ohio St.3d ___, 2020-Ohio-5635, overruled, State v. Gideon, ___ Ohio St.3d ___, 2020-Ohio-6961. Based on the Supreme Court of Ohio‘s instructions, we will consider the assignments of error that were rendered moot by our prior opinion. For the reasons that follow, we affirm.
{¶2} This case was originally before this court on appeal from the May 11, 2018 judgment entries of sentence of the Lima Municipal Court convicting defendant-appellant, James. A. Gideon (“Gideon“), of sexual imposition in case numbers 17CRB01385, 17CRB01386, and 17CRB01387.1 In that appeal, this court vacated Gideon‘s sexual-imposition convictions and remanded the cases for a new trial after we concluded that the trial cоurt should have granted Gideon‘s motions to suppress evidence under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). On review, the Supreme Court of Ohio concluded on December 15, 2020 that Gideon‘s subjective belief
{¶3} On December 31, 2020, the Supreme Court of Ohio recognized that it applied an incorrect standard of review in its previous opinion and granted Gideon‘s motion to reconsider that opinion. Gideon, ___ Ohio St.3d ___, 2020-Ohio-6961, at fn. 1. Applying the correct standard of review, the Supreme Court of Ohio reconsidered its previous opinion but remained steadfast in its conclusion that Gideon‘s subjective belief that his medical license would be penalized for remaining silent was not objectively reasonable. Id. at ¶ 24. The court‘s sufficiency-of-the-evidence conclusion remained unchanged. Id. at ¶ 29. Although not assigned as error, the Supreme Court ordered the other assignments of error that this court deemed to be moot to be considered on remand. Based on the court‘s opinion, we will proceed to address the three assignments of error which had been found moot.
Assignment of Error No. II
The Trial Court‘s Order Consolidating the Separately-Docketed Sexual Impositiоn Charges for the Trial Exposed Defendant-Appellant to a Substantial Likelihood that the Jury Would “Bootstrap” the Allegations of Different Patients in Contravention of Evid.R. 404(B) and R.C. 2907.06(B), and Thereby Violated His Sixth and Fourteenth Amendment Right to a Fundamentally Fair Jury Trial. (Apx. A-19; 04/20/18 Tr. 82-84; 04/21/18 Tr. 20-21)
{¶4} In his second assignment of error, Gideon argues that he was unfairly prejudiced by the trial court‘s order joining the cases for purposes of trial. Specifically, Gideon contends that the trial court abused its discretion by joining the cases for purposes of trial because it permitted the jury to “impermissibly use testimony supporting one charge as corroboration for other charges.” (Appellant‘s Brief at 15).
Standard of Review
{¶5} “Issues of joinder and severance are gеnerally reviewed under an abuse of discretion standard.” State v. Plott, 3d Dist. Seneca No. 13-15-39, 2017-Ohio-38, ¶ 52, citing State v. Shook, 3d Dist. Logan No. 8-14-01, 2014-Ohio-3987, ¶ 22 and State v. Bell, 3d Dist. Seneca No. 13-12-39, 2013-Ohio-1299, ¶ 27. An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
Analysis
{¶6} “In general, the law favors joining multiple offenses in a single trial if the offenses charged ‘are of the same or similar character.‘” State v. Valentine, 5th Dist. Fairfield No. 18 CA 27, 2019-Ohio-2243, ¶ 43, quoting State v. Lott, 51 Ohio St.3d 160, 163 (1990), citing State v. Torres, 66 Ohio St.2d 340 (1981). “Under
{¶7} “Nonetheless, if it appears that a criminal defendant would be prejudiced by such joinder, then the trial court is required to order separate trials.” Valentine at ¶ 44, citing
To prevail on a motion to sever, a defendant has the burden of demonstrating that “(1) his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant‘s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the chargеs for trial.”
Plott at ¶ 55, quoting State v. Schaim, 65 Ohio St.3d 51, 59 (1992). “A defendant‘s claim of prejudice is negated when: (1) evidence of the other crimes would have been admissible as ‘other acts’ evidence under Evid.R. 404(B) or (2) the evidence of each crime joined at trial is simple and direct.” State v. Ahmed, 8th Dist. Cuyahoga No. 84220, 2005-Ohio-2999, ¶ 22, citing Lott at 163, Schaim at 59, and State v. Franklin, 62 Ohio St.3d 118, 122 (1991).
{¶8} “Evid.R. 404(B) provides that ‘[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.‘” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 56, quoting State v. May, 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 69, quoting Evid.R. 404(B). “However, there are exceptions to the general rule: ‘It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.‘” Bagley at ¶ 56, quoting May at ¶ 69, quoting Evid.R. 404(B). See also
{¶9} “Under the second method, the ‘joinder’ test, the state is merely required to show that evidence of each crime joined at trial is simple and direct.” Valentine at ¶ 47, quoting Lott 163. The Supreme Court of Ohio has unequivocally stated “that ‘when 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).‘” Id., quoting Lott at 163. “Evidence is ‘simple and direct’ if (1) the jury is capable of readily separating the proof required for each offense, (2) the evidence is unlikely to confuse jurors, (3) the evidence is straightforward, and (4) there is littlе danger that the jury would ‘improperly consider testimony on one offense as corroborative of the other.‘” (Citations omitted.) Id. at ¶ 48, quoting State v. Wright, 4th Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶ 52.
{¶10} “Courts have held that evidence of multiple offenses is ‘simple and direct’ where, for example, the offenses involved different victims, different incidents or factual scenarios, and different witnesses.” Id. at ¶ 49, citing State v. Dantzler, 10th Dist. Franklin Nos. 14AP-907 and 14AP-908, 2015-Ohio-3641, ¶ 23 (concluding that the defendant was not prejudiced by joinder because “[t]he evidence relating to each incident was simple and direct: the incidents occurred separately, involved different victims, and different eyewitnesses independently identified defendant as the shooter at each incident“) and State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202, ¶ 33 (“Ohio appellate courts routinely find no prejudicial joinder where the evidence is presented in an orderly fashion as to the separate offenses or victims without significant overlap or conflation of proof.“).
{¶11} “If either the ‘other acts’ test or the ‘simple and direct’ test is met, a defendant cannot establish prejudice from the joinder.” Id. at ¶ 50. See also Lott at 163 (“Under the second method, the ‘joinder’ test, the state is not required to meet the stricter ‘other acts’ admissibility test, but is merely required to show that evidence of each crime joined at trial is simple and direct.“)
{¶12} Here, the trial court joined seven cases, which involved similar offenses—Gideon was charged with sexual imposition in violation of
{¶13} We conclude that the trial cоurt did not abuse its discretion by joining the cases for purposes of trial because the evidence is simple and direct. Importantly, there was no complicated methodology to Gideon‘s crimes. See Valentine at ¶ 56. Specifically, Gideon committed the sexual-imposition offenses at the same location in Bluffton, Ohio—Gideon‘s medical office—between the dates of October 2016 and May 2017. Each victim testified as to the sexual contact that occurred and the State presented independent corroborating evidence. Compare id. at ¶ 55 (concluding that joinder was appropriate because the evidence was simple and direct since Valentine “committed these sexual abuse offenses at the same locations” between a similar period of time; “[e]ach victim testified
{¶14} Moreover, the trial court cautioned the jury to consider each count, and the evidence applicable to each count, separately. See State v. Wilson, 5th Dist. No. 16-CAA-08-0035, 2017-Ohio-5724, ¶ 53 (“Courts have held that any prejudice that results from the joinder of offenses is minimized when a trial court cautions a jury before deliberations to consider each count, and the evidence applicable to eаch count separately, and to state its findings as to each count uninfluenced by its verdict on any other counts.“), quoting State v. Freeland, 4th Dist. Ross No. 12CA003352, 2015-Ohio-3410, ¶ 16. “[W]e presume that the jury followed the [trial] court‘s instructions.” Valentine at ¶ 57, citing State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 192. This presumption is bolstered by the jury‘s not-guilty findings in two of the cases that it considered. See Shook at ¶ 28 (concluding that “[t]he result of the trial seems to suggest that the testimony was simple and direct as the jury acquitted Shook on one of the counts“).
{¶15} Because it is dispositive, we need address only the trial court‘s determination that joinder was appropriate under the simple-and-direct test. Accord Valentine at ¶ 55 (“While the state argues that the cases could be tried together under either test, there is no reason for us to look to the more stringent ‘other acts’ test bеcause the evidence here was simple and straightforward.“). See also Shook at ¶ 28. Therefore, because the evidence was simple and direct, we cannot conclude that Gideon was prejudiced by the joinder of the cases for purposes of trial. See Valentine at ¶ 56; Shook at ¶ 29. Thus, the trial court did not abuse its discretion by joining the cases for purposes of trial.
{¶16} Gideon‘s second assignment of error is overruled.
Assignment of Error No. III
The Trial Court‘s Instructions and the Prosecutor‘s Closing Argument Encouraged the Jurors to Consider the Testimony of One Alleged Victim as Corroboration of the Testimony of Another Alleged Victim in Contravention of Evid.R. 404(B) and R.C. 2907.06(B), and Thereby Violated Defendant-Appellant‘s Right to a Fundamentally Fair Jury Trial Under the Sixth and Fourteenth Amendments to the United States Constitution. (04/18/18 Tr. 115-17; 04/21/18 44, 104-05, 114-15)
{¶17} In his third assignment of error, Gideon argues that the trial court and the State improperly encouraged the jury to consider the testimony of one victim as corroborating evidence of the veracity of another victim‘s testimony.
Standard of Review
{¶18} Generally, “‘[a]n appellate court reviews a trial court‘s decision to give the jury a particular set of jury instructions under an abuse of discretion standard.‘” State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 61, quoting State v. Barker, 11th Dist. Portage No. 2010-P-0044, 2012-Ohio-522, ¶ 91, citing State v. Martens, 90 Ohio App.3d 338, 343 (3d Dist.1993). “However, when a jury instruction raises a question of law, we apply a de novo standard of review.” State v. Sheldon, 3d Dist. Hardin No. 6-18-07, 2019-Ohio-4123, ¶ 66. “De novo review is independent, without deference to the lower court‘s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
{¶19} “The test regarding prosecutorial misconduct during closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected the defendant‘s substantial rights.” Harrison ¶ 50, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 231, citing State v. Smith, 14 Ohio St.3d 13, 14 (1984). “‘To establish prejudice, a defendant must show that a reasonable probability exists that, but for the prosecutor‘s improper remarks, the result of the proceeding would have been different. Thus, “[n]ot every intemperate remark by counsel can be a basis for reversal.“‘” State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31, quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012-Ohio-1526, ¶ 20, quoting State v. Landrum, 53 Ohio St.3d 107, 112 (1990).
Analysis
{¶20} First, Gideon argues that the trial court “failed to tell Gideon‘s jury that testimony of one patient could not be considered as substantive proof of a sexual imposition charge lodged by another patient.” (Appellant‘s Brief at 20). Specifically, Gideon contends that he was prejudiced by the trial court‘s jury instructions because the trial court failed to omit the irrelevant portions of Evid.R. 404(B). Here, the trial court instructed the jury as follows:
The charges set forth in each complaint constitute a separate and distinct matter. You must consider each complaint and evidence applicable to each complaint separately, and you must state your findings as to each complaint uninfluenced by your verdict on the other complaint. The Defendant may be found guilty or not guilty of any one or all of the offenses charged.
The State called several alleged victims to testify to different offenses. You are limited in how you may consider the testimony regarding one alleged offense in relation to a separate and distinct or other act. You arе permitted to consider the other acts evidence only for a limited purpose.
The State cannot convict somebody of bad character so his character is not at issue here. And the testimony regarding other offenses isn‘t being admitted to show the Defendant‘s character or he acted in conformity with that character. It is being admitted prove other elements of the offense, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(Apr. 21, 2018 Tr. at 114-115).
{¶21} Contrary to Gideon‘s argument on appeal, the trial court did not provide an erroneous jury instruction. The Supreme Court of Ohio recently cautioned that, “when a сourt issues a limiting instruction with respect to other-acts evidence, the instruction should be tailored to the facts of the case. The boilerplate language contained in the Ohio Jury Instructions addressing other-acts evidence is merely a template.” State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, ¶ 70. Here, the trial court‘s instruction is not only consistent with Ohio‘s Jury Instruction, but is also tailored to the facts of the cases. See Ohio Jury Instructions, CR Section 401.25 (Rev. Aug. 16, 2006). Therefore, we conclude that the trial court‘s jury instruction did not mislead the jury and is a correct statement of law. See State v. Burks, 8th Dist. Cuyahoga No. 105975, 2018-Ohio-2515, ¶ 30-31.
{¶22} Accordingly, we turn to Gideon‘s argument that the State‘s suggestion in its closing argument that the jury
{¶23} ”
{¶24} “Prosecutors are afforded considerable latitude in closing argument.” State v. Encarnacion, 10th Dist. Franklin No. 16AP-817, 2017-Ohio-5530, ¶ 9, citing State v. Ballew, 76 Ohio St.3d 244, 255 (1996). “A prosecutor may comment on ‘what the evidence has shown and what reasonable inferences may be drawn therefrom.‘” Id., quoting Lott, 51 Ohio St.3d at 165, quoting State v. Stephens, 24 Ohio St.2d 76, 82 (1970), and citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 159 (“A prosecutor may state an opinion if based on evidence presented at trial.“). See State v. McGuire, 3d Dist. Allen No. 1-13-47, 2015-Ohio-1887, ¶ 81 (“In closing arguments, prosecutors are entitled to some latitude regarding what the evidence has shown and the inferences that can be drawn.“), citing Ballew at 255.
{¶25} “A prosecutor‘s isolated comments are not to be taken out of context and given their most damaging meaning.” Encarnacion at ¶ 9, citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868 (1974). “Instead, an appellate court must review a closing argument in its entirety to determine whether prejudicial error occurred.” Id., citing Noling at ¶ 94, citing State v. Frazier, 73 Ohio St.3d 323, 342 (1995).
{¶26} Here, Gideon cannot demonstrate that he was prejudiced by the State‘s closing argument. Specifically, Gideon
{¶27} Accordingly, Gideon‘s third assignment of error is overruled.
Assignment of Error No. IV
Defendant-Appellant‘s Conviction for Sexual Impоsition as to Former Patient [M.M.] is Not Supported by Sufficient Evidence to Satisfy the Requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Alternatively, the Jury‘s Guilty Verdict is Against the Manifest Weight of the Evidence. (04/20/18 Tr. 79; 04/21/18 Tr. 20-21).
{¶28} In his fourth assignment of error, Gideon argues that his sexual-imposition conviction in case number 17CRB01385 is based on insufficient evidence and is against the manifest weight of the evidence. Specifically, Gideon alleges that his sexual-imposition conviction in case number 17CRB01385 is based on insufficient evidence because the State did not present any evidence that his “use of therapeutic massage fell outside the scope of acceptable medical cаre.” (Appellant‘s Brief at 22). Gideon argues that his sexual-imposition conviction in case number 17CRB01385 is against the manifest weight of the evidence because the victim—M.M.—was not credible.
Standard of Review
{¶29} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Therefore, we address each legal concept individually.
{¶30} “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 (1981), paragraph two of the syllabus, superseded by state constitutional amendmеnt 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
{¶31} On the other hand, in determining whether a conviction is against the 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 court 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.
Sufficiency of the Evidence Analysis
{¶32} We will begin by addressing Gideon‘s sufficiency-of-the-evidence argument as it relates to his sexual-imposition conviction in case number 17CRB01385. Gideon was convicted of sexual imposition in violation of
{¶33} “To obtain a cоnviction for sexual imposition in violation of
A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is estаblished if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
Id. “A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s conduct is likely to cause a certain result or is likely to be of a certain nature.”
{¶34} “In addition, ‘[t]he definition of sexual contact includes an express culpability requirement of “purpose.“‘” Wrasman at ¶ 10, quoting State v. Curtis, 12th Dist. Butler No. CA2008-01-008, 2009-Ohio-192, ¶ 90, citing
{¶35} On appeal, Gideon challenges only his sexual imposition conviction in case number 17CRB01385. In that case, the State alleged that Gideon was guilty of sexual imposition as to M.M. Accordingly, we need to address only the sufficiency of the evidence supporting Gideon‘s sexual-imposition conviction as it relates to M.M. In that case, the State was required to prove that Gideon had sexual contact with M.M., who was not his spouse, and that Gideon knew that the sexual contact was offensive to M.M. or was, at least, reckless in that regard. See State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 52.
{¶36} However, Gideon dоes not dispute the evidence underlying the elements of the sexual imposition conviction as it relates to M.M.; rather, he disputes whether the State presented sufficient evidence “that the therapeutic massage administered by Gideon fell outside the scope of acceptable medical care.” (Appellant‘s Brief at 23). Thus, we will address only whether the State must present sufficient evidence that a touching falls outside of the scope of acceptable medical care for a person to be guilty of sexual imposition.
{¶37} In support of his argument that the State must prove that a touching falls outside the scope of acceptable medical care for him to be guilty of sexual imposition, Gideon directs us to
{¶38} Gideon‘s argument is misplaced. Requiring the State to prove that a touching falls outside of the scope of acceptable medical care for a person to be guilty of sexual imposition adds an additional element to the offense of sexual imposition not included by the legislature. “‘[I]t is only the legislature, not the judiciary,’ that ‘has the power to engraft or enact additional elements’ of an offense.” State v. Bickel, 5th Dist. Fairfield No. 13-CA-44, 2014-Ohio-1718, ¶ 20, quoting State v. O‘Connor, 12th Dist. Butler No. CA2001-08-195, 2002-Ohio-4122, ¶ 30. See also State v. Sullivan, 2d Dist. Montgomery No. 23948, 2011-Ohio-2976, ¶ 16. Until the legislature acts, that element cannot be judicially engrafted to the offense. See State v. Duncan, 10th Dist. Franklin No. 88AP-161, 1988 WL 112343, *5 (Oct. 18, 1988).
{¶39} Indeed, the statutes at issue in Burpo and Nucklos include licensed-medical-professional exceptions in the statutory construction. See Burpo at 263-264 (noting that
{¶40} Nevertheless, viewing the evidence in a light most favorable to the prosecution, we conclude that Gideon‘s sexual imposition conviction is based on sufficient evidence. That is, the State presented sufficient evidence at trial from which the trier of fact could reasonably infer that Gideon knew that the sexual contact was offensive to M.M. or was, at least, reckless in that regard. Indeed, even though Gideon‘s argumеnt highlights evidence that he touched M.M. for legitimate medical purposes, his argument does not negate the presence of countervailing evidence in the record that, if believed by the trier of fact, established that Gideon touched M.M. for his own sexual gratification. Accord State v. Heiney, 6th Dist. Lucas No. L-16-1042, 2018-Ohio-3408, ¶ 94 (“While Heiney‘s arguments highlight evidence that he touched M.S. and K.O. for legitimate medical purposes, his arguments do not negate the presence of countervailing evidence in the record that, if believed by the jury, established that Heiney touched M.S. and K.O. for his own sexual gratification.“). Specifically, M.M. testified that Gideon rubbed her right buttocks “softly and intimately,” which caused her to jump off of the exam table and put her clothes back on because she “felt violated.” (Apr. 19, 2018 Tr. at 86-87). M.M. further testified that Gideon stated to her (as she pulled away from his touching), “don‘t worry, you don‘t have anything I want.” (Id. at 86). Moreover, M.M. unequivocally testified that Gideon did not indicate that it was medically necessary for him to touch her intimately and that Gideon‘s touching felt “provocative.” (Id. at 87, 92).
{¶41} Based on that evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Gideon knew that the sexual contact was offensive to M.M. or was, at least, reckless in that regard. Consequently, Gideon‘s sexual imposition conviction is based on sufficient evidence.
{¶42} Having concluded that Gideon‘s sexual-imposition cоnviction is based on sufficient evidence, we next address Gideon‘s argument that his sexual-imposition conviction is against the manifest weight of the evidence.
Manifest Weight of the Evidence
{¶43} Gideon contends that his sexual-imposition conviction in case number 17CRB01385 is against the manifest weight of the evidence because M.M. lacked credibility and reliability. In particular, Gideon contends that
[t]he combination of [M.M.‘s] dire mental and physical condition, her dependence on opioids, Gideon‘s refusal to give her the narcotic that she was seeking, and the confrontation with Gideon‘s girlfriend as [M.M.] was leaving the office create a situation highly conducive to the lodging of a false or mistaken accusation of sexual impropriety” and
that those “circumstances, coupled with the equivocal nature of her accusations – she ‘guessed’ she was being touched ‘intimately’ – should give this Court pause.”
(Appellant‘s Brief at 24-25).
{¶44} “Although we review credibility when considering the manifest weight of the evidence, the credibility of witnesses is primarily a determination for the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671, ¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,] and voice inflections, and use these observations in weighing the credibility of the proffered testimony.‘” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984).
{¶45} After reviewing the evidence, we cannot conclude that the trier of fact lost its way and created such a manifest miscarriage of justice in its witness-сredibility determination requiring that we reverse Gideon‘s sexual-imposition conviction as to M.M. and order a new trial. Even though M.M. made an equivocal statement after attempting to describe the way in which Gideon touched her buttocks, in addition to her testimony of the confrontation with Gideon‘s significant other as she was leaving Gideon‘s office, the jury also heard Gideon‘s testimony “and we are mindful of the jury‘s ‘superior first-hand perspective in judging the demeanor and credibility of witnesses.‘” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33, quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶ 125, citing DeHass at paragraph one of the syllabus. See Roy, 2014-Ohio-5186, at ¶ 78. Furthermore, the jury heard the testimony of additional witnesses, offering testimony regarding similar acts by Gideon. See Heiney, 2018-Ohio-3408, at ¶ 94; Roy at ¶ 74. Likewise, the jury heard the testimony of State Medical Board Investigator Chad Yoakam (“Investigator Yoakam“) who interviewed Gideon regarding the allegations in these cases. Investigator Yoakam also identified State‘s Exhibit G (Investigator Yoakam‘s recorded interview of Gideon), which was subsequently played for the jury, and identified State‘s Exhibit I (Gideon‘s written statement), which was admitted into evidence.
{¶46} In other words, even though Gideon alleged that he touched M.M. for medical purposes, the jury was able to compare Gideon‘s testimony against the balance of the State‘s evidence presented at trial and “it is well within the province of the trier-of-fact to determine [Gideon‘s] credibility in making those statements including the prerogative to find [Gideon‘s] denials not to be truthful.” State v. Voll, 3d Dist. Union No. 14-12-04, 2012-Ohio-3900, ¶ 27. See Heiney at ¶ 130.
{¶47} Accordingly, the evidence that we summarized in our sufficiency-оf-the-evidence analysis supporting Gideon‘s sexual-imposition conviction as to M.M. is weightier than the evidence against it. Therefore, we cannot conclude that the jury clearly lost its way and created such a manifest miscarriage of justice that Gideon‘s sexual-imposition conviction as to M.M. must be reversed and a new trial ordered.
{¶48} Gideon‘s fourth assignment of error is overruled.
{¶49} Having found no error prejudicial to the appellant herein in the particulars
Judgments Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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