State v. JayState v. Jay
PLAINTIFF-APPELLEE vs. JEFFREY JAY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
ATTORNEY FOR APPELLANT
75 Public Square
Suite 700
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Brian M. McDonough
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
FRANK D. CELEBREZZE, JR., J.:
{¶ 2} On the afternoon of February 6, 2008, Jeffrey Jay was at home with his two sons Z.W.,1 age three, and J.W., age nine. Appellant had been drinking a disputed amount of beer. Officer Dan David of the Cleveland Police Department, first to the scene, testified that appellant stated he was changing his three-year old son‘s diaper on the floor of the bedroom shared by J.W. and Z.W. when he tickled Z.W.‘s testicles, which resulted in Z.W. getting an erection. Appellant then stroked Z.W.‘s penis a few times while J.W. was in the room. Appellant explained his actions as simply “joking around” and stated that “it was no big deal.” Officer David testified that appellant stated he may have used saliva on the boy‘s penis.
{¶ 3} Later that day, Linda, appellant‘s companion of 23 years and mother of their three children, returned home. Linda testified that upon
{¶ 4} According to J.W.‘s statement, given February 7, 2008, he witnessed these acts and was disturbed by them. Patricia Altiere, the social worker assigned to the case, testified that J.W. was upset about what he saw.
{¶ 5} Appellant was arraigned on four charges including kidnapping, rape, gross sexual imposition, and child endangerment. He pleaded not guilty to all charges, and his case proceeded before a jury. After the close of the state‘s case, appellant brought a
Review and Analysis
{¶ 6} Appellant appeals to this court to reverse his convictions, citing four assignments of error for review.
{¶ 7} “I. The trial court erred when it failed to grant appellant‘s motion for judgment of acquittal as to the offenses of gross sexual imposition and endangering children.”
{¶ 8} “II. The trial court committed plain error when it failed to instruct the jury on the element of purpose relative to the offense of gross sexual imposition, and thus denied appellant due process and a fair trial.”
{¶ 10} “IV. The jury‘s verdicts of guilty were against the manifest weight of the evidence.”
Crim.R. 29 Sufficiency
{¶ 11} In appellant‘s first assignment of error, he argues that the court erred in not granting his
{¶ 12} Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, the Ohio Supreme Court set
Culpable Mental State
{¶ 13} Appellant argues that there was no evidence of sexual contact, a necessary element of gross sexual imposition required by
Emotional Harm
{¶ 15} Appellant also argues there is insufficient evidence to sustain a conviction of child endangerment. The state‘s case is predicated on the
{¶ 16} The child endangerment statute,
{¶ 17} Because there was sufficient evidence to establish that: (1) J.W. witnessed an act of sexual abuse being performed on his three-year old brother perpetrated by appellant; (2) while J.W. was in the care and custody of appellant; (3) that appellant owed J.W. a duty of care and custody; and (4) that this created a substantial risk to the health or safety of J.W., there is sufficient evidence to support appellant‘s conviction for child endangerment. Sexual abuse creates a substantial risk to the health and safety of a child, whether victim or witness.
Manifest Weight
{¶ 18} In his fourth assignment of error, appellant also attacks his convictions arguing that the verdict is against the manifest weight of the evidence.
{¶ 20} The United States Supreme Court recognized the distinctions in considering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The Court held in Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652, that, “unlike a reversal based upon the insufficiency of the evidence, an appellate court‘s disagreement with the jurors’ weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation.” Id. at 43.
{¶ 21} Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: “The court, reviewing the entire
{¶ 22} Viewing the evidence as a whole, there is no indication that the trier of fact “lost its way” in finding appellant guilty of gross sexual imposition and child endangerment. The evidence, including J.W.‘s statement, the statements of appellant, and the testimony of the police officers and the social worker involved in the case all provide a substantial base to support the guilty verdicts for gross sexual imposition and child endangerment.
{¶ 23} J.W.‘s statement made to a social worker and a police officer shortly after the incident indicated that appellant did what the state purports he did. Appellant‘s own admissions to officer David and to other police officers provide a substantial basis for conviction. It is clear from this evidence that a reasonable jury could have found appellant guilty of the crimes of gross sexual imposition and child endangerment. Appellant‘s first and fourth assignments of error are overruled.
“Purpose” Instruction
{¶ 25} Generally, it is the duty of the trial judge in a jury trial to state all matters of law necessary for the information of the jury in giving its verdict.
{¶ 26} Appellant argues that the trial judge failed to instruct the jury as to the exact meaning of “purpose,” and this constitutes plain error. Appellant argues that by not instructing the jury as to the meaning of
{¶ 27} The judge in this case instructed the jury as follows:
{¶ 28} “You have [sic] must find beyond a reasonable doubt that on or about the 6th day of February 2008 in Cuyahoga County, Ohio, Jeffrey Jay had sexual contact with [Z.W.], not his spouse, whose age at the time of said sexual contact was under 13 years, whether or not the defendant knew the age of [Z.W.], to wit: date of birth, October 13, 2004.
{¶ 29} “Sexual contact means any touching of an erogenous zone of another, including, but without limitation to, 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.
{¶ 30} “* * *
{¶ 31} “If you find that the State proved beyond a reasonable doubt all of the essential elements of the offense of gross sexual imposition as charged in count three your verdict must be guilty according to your findings.”
{¶ 32} The state‘s argument that gross sexual imposition of a child under 13 is a strict liability crime, which would negate any instruction as to purpose, is supported by the case law in this jurisdiction.
{¶ 33} As stated previously,
Ineffective Assistance of Counsel
{¶ 34} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407.
{¶ 35} In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164.
{¶ 36} The Supreme Court of Ohio held in State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373, that: “‘When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has
{¶ 37} Because the jury instruction was not lacking, appellant‘s counsel did not violate any of counsel‘s essential duties to appellant in regard to this proposed jury instruction. The court need go no further. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 358 N.E.2d 623. Appellant did not meet the required showing set forth above, so his claim of ineffective assistance of counsel is overruled.
{¶ 38} All of appellant‘s assignments of error are without sufficient merit to overturn his conviction for gross sexual imposition and child endangerment.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART
AND DISSENTS IN PART (WITH SEPARATE OPINION)
MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 39} I concur with the majority‘s decision to affirm appellant‘s conviction for gross sexual imposition, but respectfully disagree with the decision to affirm the conviction for child endangerment.
{¶ 40} It is abundantly clear that appellant was irresponsible and showed poor judgment when caring for his two young sons on the night in question: poor judgment no doubt exacerbated by his alcohol consumption. And the type of sexual contact appellant engaged in is so abhorrent to most persons that it could be inferred that appellant acted for purposes of sexual
{¶ 41} I do not find, however, that the state proved child endangerment of the older son, who was in the bedroom and witnessed appellant‘s actions toward the toddler.
{¶ 42} As charged in the indictment,
{¶ 43} The state offered no evidence to show that the older son suffered any ill-effects from witnessing the acts perpetrated on the toddler. In fact, the boy testified only that he saw appellant put his mouth on the toddler‘s belly and blow, and that the child was laughing from it. The boy said he did not see appellant‘s hand on the toddler‘s penis, and it took appellant no
Notes
“(A) 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; or cause two or more other persons to have sexual contact when any of the following applies:
“* * *
“(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.”
“No person, who is the parent * * * of a child under eighteen years of age * * *, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.”