State v. HenryState v. Henry
{¶1} Defendant-Appellant, Kiel A. Henry, appeals the judgment of the Seneca County Court of Common Pleas convicting him of gross sexual imposition, sentencing him to five years of community control, and classifying him as a sexually oriented offender. On appeal, Henry asserts that his conviction was not supported by sufficient evidence; that the trial court erred when it denied his motions for acquittal and a new trial; and, that his conviction was against the manifest weight of the evidence. Based upon the following, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.
{¶2} In September 2007, the Seneca County Grand Jury indicted Henry for two counts of gross sexual imposition in violation of
{¶3} In January 2008, the case proceeded to trial, at which the following testimony was heard.
{¶4} The victim, K.C., testified that, on August 12, 2006, she was a student at Heidelberg College in Seneca County; that she lived in a campus house
{¶5} K.C. continued that she was awakened during the night when she felt a man lying right behind her; that she was lying on her side, facing the wall; that she felt a hand underneath her shorts in her pubic area; that she initially thought the man was her boyfriend because she was sleepy; that she put her hand on his arm, removed it from her shorts, and said “no“; that her hand remained on his arm for the duration of the incident; that, for a second time, the man put his hand into her shorts and touched her vagina; that she again removed his hand and said “no“; that, for a third time, the man put his hand into her shorts and touched her vagina; that she again removed his hand and said “no“; that, for a fourth time, the man put his hand into her shorts, but this time penetrated her vagina with his finger; that she removed his hand again; that, for a fifth time, the man put his hand into her shorts, and, at that point, she “woke completely up” and realized that the man was not her boyfriend (trial tr., vol. II, p. 187); and, that she braced her feet against the wall and pushed the man off her bed and onto the floor, causing a loud thud.
{¶7} On cross-examination, K.C. testified that she did not lift up her shorts when Henry was touching her; that Henry did not make any verbal threats; that she did not make any efforts to scream or to get out of the bed until the fifth time that Henry touched her; that she was able to get out of the bed “as soon as [she] wanted to” (Id. at 207); that, once she pushed him off the bed and he landed on the floor, he did not move until the women dragged him out of the bedroom; that Henry was bigger, bulkier, and stronger than she was; and, that she told the police officers that he was “very, very wasted.” (Id. at 209).
{¶8} Rachel Goodenow, K.C.‘s housemate at the time of the incident, testified that, on the night of the incident, she attended the society retreat at the CDH house; that, after K.C. went upstairs to bed, seven or eight men from the
{¶9} Goodenow continued that, at some point thereafter, she heard a loud thud and K.C. came running down the stairs screaming; that K.C. was frantic, very distressed, and kept repeating “who the hell are you” and “get the f**k out” (Id. at 246); that she and the other women went up to K.C.‘s bedroom and dragged Henry into the hallway; that he went into the bathroom where they heard him vomiting; and, that K.C. is very petite and Henry is a “larger wrestler.” (Id. at 249).
{¶10} Sergeant Mark E. Marquis, a police officer for the city of Tiffin, testified that he responded to an alleged sexual assault at the CDH house; that he located Henry walking down the street; that he asked Henry what had happened at the CDH house, and Henry advised that he had gone there with some friends after the bars closed, and that someone told him he needed to go to bed, so he went upstairs to go to bed.
{¶12} Detective Brian Bryant of the Tiffin Police Department testified that Henry was a “big wrestler” and at least twice the size of K.C. (Id. at 295); that he interviewed Henry approximately an hour and a half to two hours after the incident; that, at the time of the interview, he did not believe Henry was intoxicated, as he was coherent and talking; that he talked to K.C. about going to a hospital for an examination, but that she refused; and, that, where the allegation involves digital penetration, collection of DNA evidence must be done rather quickly, and, in this case, Henry had already washed his hands at least once.
{¶14} Thereafter, the jury found Henry guilty of the first count of gross sexual imposition and not guilty of the second count of gross sexual imposition.
{¶15} In February 2008, Henry filed a motion for acquittal, or in the alternative, a motion for a new trial, which the trial court denied.
{¶16} In May 2008, the trial court sentenced Henry to community control for a period of five years. Additionally, the trial court classified Henry as a sexually oriented offender.
{¶17} It is from his conviction and sentence that Henry appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
APPELLANT‘S CONVICTION FOR GROSS SEXUAL IMPOSITION WAS NOT SUPPORTED BY SUFFICIENT, CREDIBLE EVIDENCE AND THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT‘S
RULE 29 MOTION FOR ACQUITTAL AND MOTION FOR A NEW TRIAL.
Assignment of Error No. II
APPELLANT‘S CONVICTION FOR GROSS SEXUAL IMPOSITION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶18} In his first assignment of error, Henry argues that his conviction for gross sexual imposition was not supported by sufficient, credible evidence, and, consequently, that the trial court erred when it denied his motions for acquittal and for a new trial. Specifically, Henry contends that the evidence did not establish beyond a reasonable doubt that he engaged in sexual contact with K.C. because there was insufficient evidence to establish that the contact was for the purpose of sexual arousal or gratification. Additionally, Henry contends that there was insufficient evidence that he compelled K.C. to engage in such contact through the use of force or threat of force. We agree that there was insufficient evidence to establish that Henry compelled K.C. to engage in such contact through the use of force or threat of force.
{¶19} Under
{¶20} When an appellate court reviews a record for sufficiency, the 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. State v. Monroe, 105 Ohio St.3d 384, 392, 2005-Ohio-2282, citing State v. Jenks (1981), 61 Ohio St.3d 259, superseded by state constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy, State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson (1955), 162 Ohio St. 486, superseded by state constitutional amendment on other grounds as stated in Smith, supra.
{¶21}
No person shall have sexual contact with another, not the spouse of the offender[,] * * * when any of the following applies: (1) The offender purposely compels the other person * * * to submit by force or threat of force.
A. Sexual Contact
{¶23} The Revised Code defines “sexual contact” as “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.”
{¶24} In determining a defendant‘s intent, this Court has held that “[t]he 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
B. Force or Threat of Force
{¶26} The Revised Code defines “force” as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
{¶27} The Eighth Appellate District found that force or threat of force was absent where a fifteen year-old victim awoke in her bed to find an adult defendant touching her genitals over her clothing because he did not apply any force in relation to her body or clothing; because he did not hold a position of authority over her; because, as the victim became aware of the touching, she immediately got up and left the area; and, because the contact did not occur due to fear or duress. Byrd, supra.
{¶28} Additionally, the Eighth Appellate District found that force or threat of force was absent where an adult defendant asked a thirteen year-old victim to sit on his lap, put his hand up her skirt, touched her buttocks, and attempted to remove her underwear. The evidence showed that the victim did not sit on the defendant‘s lap due to fear or coercion; that the defendant did not say anything to the victim before or after she got up from his lap; and, that, as soon as he began touching her buttocks, she immediately jumped up and went to the phone to call her mother. Based upon this evidence, the court concluded that her will was not overcome and force was not present. State v. Mitchell, 8th Dist. No. 58447, 1991 WL 106037.
{¶30} Other districts have found that force or threat of force was not present in rape or gross sexual imposition convictions where an adult defendant removed a child victim‘s clothing and manipulated her body to facilitate sexual conduct and no parent-child relationship existed, State v. Payton (1997), 119 Ohio App.3d 694, abrogated on other grounds by State v. Delmonico, 11th Dist. No. 2003-A-0022, 2005-Ohio-2902; where a defendant rolled a child victim over to facilitate sexual conduct while the victim pretended to sleep, State v. Edinger, 10th Dist. No. 05AP-31, 2006-Ohio-1527; and, where the psychological force that was present when a victim was younger dissipated when she realized she could stop the sexual conduct because, at this point, her will was no longer overcome by fear or duress, State v. Haschenburger, 7th Dist. No. 05 MA 192, 2007-Ohio-1562.
{¶32} We acknowledge, as the dissent sets forth, that the Eighth Appellate District has long held that, where a victim is sleeping at the outset of the sexual
{¶33} Additionally, although the dissent claims that our majority rule allows a perpetrator to impose any sexual activity upon a sleeping victim without fear of being charged with any sexual offense requiring force or threat of force, we note that such a perpetrator may properly be charged with any number of offenses not requiring force, such as sexual battery in violation of
{¶34} For the preceding reasons, we find that reasonable minds could not conclude that Henry compelled K.C. to submit to sexual conduct by force or threat of force, and that the trial court erred in overruling Henry‘s
{¶35} Accordingly, we sustain Henry‘s first assignment of error.
Assignment of Error No. II
{¶36} In his second assignment of error, Henry argues that his conviction for gross sexual imposition was against the manifest weight of the evidence. Specifically, Henry contends that his conviction was against the manifest weight because there was conflicting testimony as to when K.C. first claimed that he had touched her, and because the weight of the evidence demonstrated that Henry did not compel her to engage in sexual contact by force or threat of force.
{¶37} Our disposition of Henry‘s first assignment of error renders his second assignment of error moot, and we decline to address it.
Judgment Reversed and Cause Remanded
WILLAMOWSKI, J., concurs in Judgment Only.
SHAW, J., Dissents.
{¶39} The defendant in this case, a large college wrestler, climbed into the bed of a petite, sleeping female college student (K.C.) who did not know him. K.C. was lying on her side with her back to the defendant. The bed was next to a wall so that the defendant effectively had K.C. positioned between himself and the wall.
{¶40} Upon blocking K.C. against the wall in this manner, the defendant made five separate attempts to reach over K.C. from behind and digitally penetrate her vagina. Five times K.C. was required to physically remove his hand from between her legs while telling him “no.” Despite her resistance, the defendant successfully penetrated K.C. with his fingers three times out of the five attempts.
{¶41} The fifth time the defendant put his hands between her legs, K.C. suddenly became fully awake and realized it was a stranger and not her boyfriend. However, because of the defendant‘s position on the bed, effectively trapping her
{¶42} The majority has concluded these facts do not constitute sufficient force or threat of force to sustain a conviction for gross sexual imposition under
{¶43} Foremost among the unfortunate conclusions likely to be drawn from our decision today is that a defendant who commits a non-consensual sexual offense may freely use whatever “persistence” is reasonably required to accomplish the act over moderate resistance of the victim without committing any “force or threat of force” under
{¶45} I also take issue with the apparent determination in today‘s decision that the amount of force the victim is required to use to escape from the grasp or restraint of the defendant somehow does not count as resistance to the sexual act itself and/or cannot be used to infer any force or threat of force on the part of the defendant in trying to complete the sexual act. And as noted earlier, I am
{¶46} Because I believe that all of these determinations (and the decision in State v. Euton, supra) improperly disregard the reasonable inferences to be drawn from the facts in the record and/or are contrary to law, I respectfully dissent.
{¶47} Although both the lead opinion and the dissent discuss rulings on similar cases from other districts at some length, none of those rulings are really at issue here. On the contrary, as stated at the outset, the primary issue of concern to me is the determination of the majority that there was not sufficient evidence as to the element of “force or threat of force” before the trial court in this case.
{¶48} Force is defined as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
{¶49} In the present case, Henry began touching the victim when she was asleep. When other courts have addressed this type of conduct, they have noted
{¶50} The Eighth District Court of Appeals has repeatedly found that the insertion of the word “any” into the definition of “force,” recognizes that different degrees and manners of force are used in various crimes with various victims. Where a victim was initially asleep, the force the defendant exerted under
{¶51} Finally, although the majority relies on another case from the Eighth District Court of Appeals, State v. Byrd, 8th Dist. No. 82145, 2003-Ohio-3958, Byrd only confirms the holdings in Lillard, Sullivan, Simpson, Clark, and Graves.1 In Byrd, the court found sufficient force where Byrd manipulated the victims clothing as part of the conduct. The Byrd Court only declined to find force with respect to a different victim, where Byrd only touched the girl over her clothing, a scenario factually distinguishable from the case at bar.
{¶52} In the present case, on August 12, 2008, K.C. had just moved into the CDH house. It was actually her first night sleeping in the new house and, although she was to have a roommate, her roommate had not yet moved in. K.C.
{¶53} K.C. testified that she moved into the CDH house early, prior to the start of the school year and that when she moved in, other CDH residents were having a retreat. When K.C. came home from work on the night of August 12, 2006, she ate dinner and then got ready for bed. K.C. testified that she wore a sports bra and a pair of cotton shorts with an elastic waistband to bed that night. (Tr.p. 180).
{¶54} K.C. went to bed and was awakened by a person in bed behind her. She was laying on her right side facing the wall, and Henry was behind her on the bed. K.C. testified that she was woken up to the feeling of a hand down her shorts.
A. His, I was laying on my side and I like half awoke to feeling a hand down my parents like in my, my like pubic areas.
Q. Was the hand on top of your shorts or underneath your shorts?
A. They were underneath my shorts.
***
Q. And you mentioned that the --- well, first of all, how close was this man to you in bed?
A. He was right behind me.
Q. How big did the man feel?
A. He was bigger than me. Q. What were you thinking when you were awakened and felt the man behind you touching your pubic area?
A. Well, when I first, it was like I half awoke and what my first thought was that it was my boyfriend at the time who I spent a lot of time with. I thought it was him, just kind of thinking, oh, it‘s Mike. He wants to kind of, you know, getting a little frisky or something.
Q. And you said pubic area before. Would you please describe what you mean by your pubic area?
A. Just like the outside of my private parts.
(Tr.p. 181-182).
{¶55} K.C. further testified that when she felt the hand down her shorts, she put her hand on his lower arm and removed his arm from her shorts. However, Henry tried again, putting his hand back down K.C.‘s shorts, but this time “he went further in. He went to like the inside area of my private parts.” (Tr.p. 183). When asked to describe what she meant, K.C. explained that “[l]ike he went, he went inside the lips of my pubic area.” (Tr.p. 183). K.C. stated that when she removed Henry‘s hand from her shorts, she said “no.” (Tr.p. 184).
{¶56} Henry again put his hand back down K.C.‘s shorts “back down in like the vaginal area inside the lips.” (Tr.p. 185). K.C. again removed Henry‘s hand from her shorts and said “no.” (Id.). Henry again put his hand down K.C.‘s shorts and K.C. testified that he “fully put his finger – he penetrated me.” (Id.). Again, K.C. removed Henry‘s hand from her shorts and said “no.” (Tr.p. 186).
{¶57} After realizing that Henry was not her boyfriend K.C. stated that she “put my feet against the wall and kicked back and pushed the man off the bed behind me.” (Tr.p. 187). After ejecting Henry from her bed K.C. ran downstairs for the living room. (Tr.p. 188). When K.C. returned to the bedroom, Henry was still there.
{¶58} Based on this testimony, I would find Henry‘s conviction was supported by sufficient evidence. First, based on the law as articulated by the Fourth and Eighth District Courts of Appeals, Henry‘s manipulation of K.C.‘s shorts is sufficient to meet the definition of force. As the Ohio Supreme Court stated in Eskridge, force need not be overt or physically brutal.
{¶59} Second, even without relying on the manipulation of the clothing, I would find that there was sufficient evidence introduced to the element of force. Here, the victim was much smaller than Henry, described as very petite, while Henry was a larger wrestler. In addition, despite K.C.‘s repeated attempts to stop Henry from touching her, he continued to try again each time she moved his hand away.
{¶60} Henry put K.C. in a situation where she was literally trapped between the wall and Henry. As a result, K.C. had to plan her feet against a wall and shove Henry to the floor with such force that a large thud was heard. The
{¶61} Finally, we must be mindful that the proper inquiry in this case is not whether we, members of the Court, would have found the element of “force” proven beyond a reasonable doubt; but rather, “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have” concluded that “force” was present. (Emphasis added). State v. Vires, 3rd Dist. No. 2-07-16, 2007-Ohio-6015 at ¶12, citing Jenks, 61 Ohio St.2d 259 at paragraph two of the syllabus. Reviewing the evidence in a light most favorable to the prosecution, a rational trier of fact could readily have concluded that force was proven in this case.
{¶62} I would affirm Henry‘s conviction.
Notes
State v. Euton, 2007-Ohio-6704, at ¶53 Preston, J., concurring in part; dissenting in part. Despite the majority‘s opinion to the contrary, I find that these circumstances are not factually analogous to those in the case at bar. Moreover, I agree with the dissent in Euton, both for the reasons stated in the dissent and also for the reasons articulated in Lillard, Sullivan, Simpson, Clark, and Graves. The manipulation of the blanket covering the victim, in Euton, serves as its own indication of the exertion of force.J.D. testified that a few minutes later, Euton, an intoxicated stranger, entered the dark room, crouched next to the mattress, fell over, reached under the blanket, and fondled J.D.‘s penis on top of his cotton jogging pants. ( Id. at 132-33, 152, 154-55). J.D. froze for a few moments, then turned to his older brother and said, “Kirk, he is touching me * * * what should I do?” ( Id. at 133, 155, 158, 168). After a brief pause, Kirk replied, “just get up.” ( Id. at 158). Frightened and acting on his brother‘s advice, J.D. told Euton he needed to use the restroom, got up from the bed, and left the room. ( Id. at 134, 157). Soon after, Michael, Annie‘s nephew, arrived at the house, and J.D. told him what happened. ( Id. at 134-35).