State v. JenningsState v. Jennings
Hubler and Woolum Law Co. LPA, and Bridget N. Woolum, for appellant.
M. POWELL, J.
{1} Appellant, David Jennings, appeals his conviction and sentence in the Preble County Court of Common Pleas for gross sexual imposition.
{2} In 2021, appellant was a neighbor of H.T. and her parents (individually referred to as “Mother” and “Father“). H.T. was born in February 2009 and has a cognitive
{3} On Friday, Nоvember 12, 2021, appellant took H.T., then 12 years old, to Dairy Queen for a Blizzard; H.T. was in the front passenger seat. During the drive to Dairy Queen, appellant touched H.T.‘s vaginal area over her underwear using a finger on his right hand. He also touched the tip of her chest under her bra with his right hand. Appellant asked H.T. if the touching felt good and whether she hаd started her period. On the ride home, appellant once again touched H.T.‘s vaginal area over her underwear using a finger on his right hand. Both times, H.T. stared out the window, feeling nervous, confused, and scared.
{4} Upon returning home from Dairy Queen, H.T. immediately went to Mother‘s bedroom. H.T. was pacing back and forth and was emotional and frаntic but eventually told Mother that appellant had touched her chest and vaginal area. Mother told Father. The family reported the incident to children‘s services on Sunday, November 14, 2021, and to law enforcement the following day.
{5} On November 18, 2021, H.T. described the incident during a forensic interview conducted at JACY House, a child advocаcy center in Richmond, Indiana. The interview was video-recorded and was observed live by Detective Paul Plaugher in a different room. During a subsequent police interview, appellant admitted taking H.T. to Dairy Queen but denied touching her. In March 2022, another child reported that appellant, the child‘s step-grandfather, had sexually touchеd her once while he was taking her to Taco Bell and another time in his living room.
{6} Appellant was indicted in May 2022 on three counts of gross sexual imposition. Count 1 related to H.T.; Counts 2 and 3 related to the other child. All three
{7} On February 28, 2023, the jury found appellant guilty of gross sexual imposition regarding H.T. and acquitted him of the gross sexual imposition counts related to the other child. The trial court subsequently acquitted appellant of the sexually violent predator specification accompanying Count 1. The court sentenced appellant to a maximum five-year prison term.
{8} Appellant now appeals, raising three assignments of error.
{9} Assignment of Error No. 1:
{10} THE TRIAL COURT ERRED WHEN IT ALLOWED THE ADMISSION OF HEARSAY EVIDENCE.
{11} Appellant argues that the trial court erred in admitting H.T.‘s forensic interview. Appellant asserts that the forensic interview was not conducted for the purpose of medical diagnosis or treatment but to collect evidence of a crime against him, and therefore, H.T.‘s statements during the interview do not fall under the “medical treatment” exception to the hearsay rule under
{12} The admission or exclusion of evidence rests within the trial court‘s discretion and such decisions will not be reversed absent an abuse of discretion. State v. Turner,
{13} The trial court admitted H.T.‘s forensic interview under
{14} In order for the rule to apply, the declarant must be subject to cross-examination and the statement must be offered to rebut an аccusation that the declarant lied or was improperly influenced in her testimony. Turner, 2020-Ohio-1548 at ¶ 48. To be admissible, prior consistent statements must have been made before the alleged influence or motive to fabricate arose. Id.; State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 107.
{15} We find that the trial court did not abuse its discretion in admitting H.T.‘s forensic interview under
{16} Appellant‘s first assignment of error is overruled.
{17} Assignment of Error No. 2:
{18} THE TRIAL COURT ERRED IN ENTERING A VERDICT OF GUILTY BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{19} Appellant argues that his conviction for gross sexual imposition is against the manifest weight of the evidence because (1) in one aspect, H.T.‘s testimony during the jury trial was inconsistent with her testimony during the sexually violent predator specification bench trial, and was influenced by listening to her parents repeat her allegations to law enforcement, (2) H.T.‘s testimony that appellant tried to unhook her bra while driving to Dairy Queen was not plausible, and (3) given H.T.‘s cognitive disability and auditory processing disorder, the trial court erred by failing to determine whether H.T. was competent to testify.1
{21} In determining whether a 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. Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 56.2 This
{22} Appellant was convicted of gross sexual imposition in violation of
{23} After a thorough review of the record, wе find that appellant‘s conviction for gross sexual imposition is not against the manifest weight of the evidence. During the jury trial, H.T. described how appellant touched her vaginal area and chest while in appellant‘s car. H.T. testified that appellant touched her vaginal area with a finger on his right hand and “wiggled the spot where [she] pee[s],” that he could not put his whole hand inside her sweatpants because they were tightly tied, that he touched the tip of her chest under her bra with his right hand, and that he unsuccessfully tried to unhook her bra. H.T. further testified that appellant asked her whether the touching felt good and whether she had started her period. H.T. testified that upon returning from Dairy Queen, she immediately told Mother about the incident. Mother then told Father. H.T.‘s trial testimony was consistent with her statements during the forensic interview. On redirect examination, H.T. testified that she talked about what she remembered during the forensic interview, that Mother did not tell her what to say during the interview, and that no one told her what to say at trial.
{24} Mother аnd Father both testified that appellant came over on the day of the incident and offered to take H.T. to Dairy Queen. The parents’ testimony indicates that
{25} Appellant testified he took H.T. to Dairy Queen on November 12, 2021, because she wanted to go there. Appellant denied inappropriately touching H.T. during the drive to and from Dairy Queen. Appellant testified that he spent less time with H.T. in 2019 after H.T. alleged the other child had inappropriately touched her. Appellant explained that this allegation made him nervous and he was “afraid it coulda been me.” Nevertheless, appellant continued to take H.T. to Dairy Queen alone with him in his car. Appellant testified that doing so was a huge mistake.
{26} Although appellant believes H.T.‘s testimony lacked credibility and was at times implausible, it is well established that it is the province of the jury to make determinations of credibility and the weight to be given the evidence. State v. Martino, 12th Dist. Butler No. CA2017-09-139, 2018-Ohio-2882, ¶ 13. The jury found H.T.‘s testimony believable and that of appellant not believable. A conviction is not against the manifest weight of the evidence merely because there is conflicting evidence before the trier of fаct or because the trier of fact believed the testimony of the state‘s witnesses. State v. Blaylock, 12th Dist. Preble No. CA2002-03-005, 2002-Ohio-6005, ¶ 11; Martino at id. Because the jury was in the best position to determine the facts of the case based upon seeing and hearing the witnesses testify, we will not disturb the jury‘s determination regarding which version of events was credible, and which was not. See Warman, 2017-Ohio-244 at ¶ 59.
{28} Assignment of Error No. 3:
{29} THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM SENTENCE.
{30} Appellant argues that the “trial court‘s sentence does not comply with the principles and purposes of sentencing under
{31}
{32} A conviction for third-degree felony gross sexual imposition under
{33}
{34} Before imposing sentence, the trial court stated it had reviewed the presentence investigative report and the sentencing memoranda submitted by appellant and the state. The recоrd shows that the court considered the two felony-sentencing statutes,
{35} Appellant‘s third assignment of error is overruled.
{36} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.