STATE OF OHIO, PLAINTIFF-APPELLEE vs. ADAM LIBBEY-TIPTON, DEFENDANT-APPELLANT
No. 97382
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 21, 2012
[Cite as State v. Libbey-Tipton, 2012-Ohio-2769.]
BEFORE: Keough, J., Blackmon, A.J., and Jones, J.
JUDGMENT: AFFIRMED. Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-549697. RELEASED AND JOURNALIZED: June 21, 2012
Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., Ohio 44118
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Melissa Riley
Anna M. Faraglia
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Adam Libbey-Tipton, apрeals his conviction for gross sexual imposition. For the reasons that follow, we affirm.
{¶2} In April 2011, defendant was charged with one count each of rape, in viоlation of
{¶3} In his first and second assignments of error, the defendant contends that there was insufficient evidence to support his conviction and his conviction was against the manifest weight of the evidence. We consider these assignments of еrror together because they are related.
{¶4} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266, 2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidеnce admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonablе doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
{¶5} A manifest weight challenge, on the other hand, questions whether the prosecution met its burden of persuasion. State v. Ponce, 8th Dist. No. 91329, 2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). The manifest weight of the evidence standard of review requires us to review the entire record, “weigh the evidence and all reаsonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way аnd created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986); see also Thompkins at 387.
{¶6} The use of the word “manifest” means that the trier of fact’s decision must be plainly or obviously contrary to all of the evidence. State v. Griffie, 8th Dist. No. 89009, 2007-Ohio-5325, ¶ 6. This is a difficult burden for an appellant to overcome because the resolution of factual issues resides with the trier of fact. Id., citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or disbeliеve any witness or accept part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶7} Gross sexual imposition, as it relates to this case, means “sexual contact with another, not the spouse of the offender * * * [when] [t]he other person * * * is less than
{¶8} Sexual contact is defined in
{¶9} The Ohio Supreme Court resolved that the culpable mental state for gross sexual imposition is “purposefully.” State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816, ¶ 28 (“[T]he element of sexual contact in an
{¶10} Purpose is defined in
{¶11} Defendant argues on appeаl that the doubtful credibility of the witnesses and their conflicting testimony render his conviction for gross sexual imposition invalid.
{¶12} Moreover, we find that the defendant’s conviction for gross sexual imposition was not against the manifest weight of the evidence. The jury heard testimony from both the victim and her sister regarding the defendant’s actions.
{¶13} The victim testified that while visiting her grandparents in Ohio in July 2005, she and her sister were in the defendant’s bedrоom jumping on the bed. The defendant and the victim are cousins. The defendant was playing a video game, but then stopped playing, approached hеr, and “pulled down [her] pants and touched [her] in the wrong spot.” When questioned further, she stated that he put his finger inside her pants, under her panties, and touched her in hеr “private part,” which was determined to be her vagina. She denied that he rubbed her vagina and admitted that she was able to walk away from him. She further testified that shе told him to “stop” and then ran out of the room into the kitchen and her sister followed her. She testified that she did not tell anyone what happened.
{¶15} Around Thanksgiving 2006, the victim and L.L. were talking about their upcoming visit to Ohio to see their paternal grandparents. Their maternal grandmother overheard the girls talking and heard the victim say she did not want to go because of what the defendant did to her. The grandmother questioned the girls about what she overheard and they told her what had happened. She testified that the victim demonstrated to her what the defendant did.
{¶16} The crux of the dеfendant’s arguments on appeal are that the stories of these two children have changed over the years. While some minor details of who was present at the house in 2005 may have changed, and L.L.’s statements to the caseworker in 2008 admittedly contained some lies, one detail that did not change was that the defendant fondled the victim, who was almost four years old at the time. This fact remained constant from when the maternal grandmother overheard the girls talking in Novеmber 2006, to when the victim was interviewed by the police in 2006, to when L.L. was
{¶17} Aсcordingly, the defendant’s assignments of error are overruled; his conviction for gross sexual imposition is supported by sufficient evidence and is not against the manifest weight of the evidence.
{¶18} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reаsonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment intо execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR