Case Information
*1
[Cite as
State v. Moore
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103123
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
AARON MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-587916-A
BEFORE: Blackmon, J., Jones, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 5, 2016
-i-
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Aleksandra Chojnacki
Kristin Karkutt
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Aaron Moore appeals his convictions for gross sexual imposition and sexual battery and assigns the following three errors for our review.
I. The state failed to present sufficient evidence to sustain a conviction against appellant.
II. Appellant’s convictions are against the manifest weight of the evidence. III. The trial court erred when it allowed the State of Ohio to amend the dates in the indictment in the middle of the trial which violated appellant’s rights under Article I, Section 10 of the Ohio Constitution and Fourteenth Amendment to the United States Constitution.
{¶2} Having reviewed the record and pertinent law, we affirm Moore’s convictions. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Moore in a multicount indictment that included the following counts: three counts of gross sexual imposition, three counts of rape, three counts of sexual battery, and three counts of kidnapping. During the trial, the state dismissed two counts of gross sexual imposition, one count of rape, and one count of sexual battery. The victim H.L. testified that when he was in seventh and eighth grades
Moore, who was his mother’s boyfriend and eventually Moore’s stepfather, sexually abused him. The victim was in the seventh and eighth grades in the fall of 2009 until the spring of 2011. He stated that he would have movie nights with Moore, which involved him sleeping with Moore in his mother’s and Moore’s bed with Moore, while his mother and sister slept on the couch in the living room. While watching the movies, Moore *4 would put his hands inside the victim’s shorts and touch the victim’s penis. Over time, the touching evolved into Moore removing the victim’s shorts and engaging in anal intercourse with him. According to the victim, afterwards, Moore would apologize. The victim did not tell his mother because his mother was legally blind, and the family relied on Moore’s income.
{¶5} The first person that the victim disclosed the abuse to was his best friend who lived across the street. The friend urged the victim to tell an adult. In response, the victim told his friend’s mother about the abuse. He begged her not to tell his mother, but she confronted the victim’s mother with the information. The victim’s mother confronted Moore. According to the victim’s mother, Moore “had no reaction” when she confronted him about the abuse allegations. The victim’s mother did not alert authorities because the victim did not want her to.
{¶6} Several months after the disclosure, Moore moved from the home. In 2012, Moore eventually moved back in with the victim’s mother, but the abuse did not continue. The victim’s mother and Moore got married soon after Moore moved backed in.
{¶7} In 2013, the victim disclosed the abuse to the pastor at his church because he was trying to come to terms with what happened and to forgive Moore. The pastor claimed he did not tell authorities because he thought the matter had been resolved. In May 2014, the victim told his girlfriend and her mother about the abuse. The girlfriend’s mother told the school principal, and after speaking with the victim, the principal alerted authorities.
{¶9} The jury found Moore guilty of one count of gross sexual imposition and one count of sexual battery. The jury found Moore not guilty of the remaining counts. The trial court sentenced Moore to 18 months in prison for the gross sexual imposition and five years in prison for the sexual battery. The counts were ordered to be served consecutively. Additionally, the trial court classified Moore as a Tier III sex offender.
Insufficient Evidence
In his first assigned error, Moore argues that the evidence was insufficient to support his convictions. Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.
29(A) and sufficiency of evidence review require the same analysis.
State v. Taylor
, 8th
Dist. Cuyahoga No. 100315,
requires the court to determine whether the prosecution has met its burden of production
at trial.
State v. Givan
, 8th Dist. Cuyahoga No. 94609,
imposition or sexual battery. R.C. 2907.05(A)(1) defines the elements of gross sexual imposition as:
(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:
(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. Pursuant to R.C. 2907.01(B), “‘Sexual contact’ means any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock, [or] pubic region * * *.” In the instant case, the victim testified the abuse began with Moore putting his hand in the victim’s shorts and touching his penis. This was sufficient evidence to support “sexual contact” under the gross sexual imposition statue. There was also sufficient evidence of force. The Ohio Supreme Court has
addressed the issue of “force or threat of force” several times. In
State v. Eskridge
, 38
Ohio St.3d 56,
which provides:
(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
(1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution. “Sexual conduct” pursuant to R.C. 2907.01(A) includes “anal intercourse.”
In the instant case the victim testified that the touching evolved into anal intercourse. Thus, there was sufficient evidence of “sexual conduct.” Also, because Moore was a father figure to the victim, upon whom the victim’s family relied upon for financial support, the act was coercive on Moore’s part. *8 Moore also alleges the convictions were based on insufficient evidence due
to the fact the victim could not remember the precise dates on which the acts occurred.
However, as we held in
State v. Yaacov
, 8th Dist. Cuyahoga No. 86674,
Manifest Weight of the Evidence
In his second assigned error, Moore contends that his convictions were
against the manifest weight of the evidence.
In
State v. Wilson
,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins
(1997), 78 Ohio St.3d 380, 678 N.E.2d 541. In
Thompkins
, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively.
Id
. at 386, 678 N.E.2d 541. The court
held that sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but
weight of the evidence addresses the evidence’s effect of inducing belief.
Id
. at 386-387. In other words, a reviewing court asks whose evidence is
more persuasive — the state’s or the defendant’s? We went on to hold that
although there may be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the evidence.
Id
. at 387,
must find that “in resolving conflicts in the evidence, the jury 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. Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence weighs heavily against the conviction.” Id . Moore contends the fact that the victim could not recite the exact dates that
the abuse occurred made his testimony incredible and that his testimony conflicted with that of the other witnesses regarding the years the abuse occurred. As we discussed, the failure of a child who suffered abuse to recall the exact date of the abuse is not unusual. Here, the victim could not recall the specific dates but stated that it happened over a two-year time frame when he was in seventh and eighth grade and that the abuse stopped once Moore moved from the home. Although the victim’s mother, his friend, and his friend’s mother gave different years that they thought the abuse occurred, they all agreed that the victim was either in seventh or eighth grade. Thus, the jury’s resolving the conflicting testimony as to when the abuse occurred did not result in a manifest miscarriage of justice. Moore also argues the victim was not credible because the victim was the
best man when Moore married the victim’s mother and wanted to spend his school winter *10 break with Moore, both of which occurred after the alleged abuse. However, as the victim stated on the stand, his feelings for Moore were conflicted because although he abused the victim, Moore was the only father figure he had in his life. He also stated he did not want Moore to be placed in jail. The jury heard the evidence, and we defer to their determination regarding whether the victim was credible in light of his conflicted feelings towards Moore. Moore also argues that the revenge was the reason that the victim told his
girlfriend, the girlfriend’s mother, and the principal that Moore abused him. Moore had informed the principal regarding inappropriate texting between the victim and his girlfriend and had grounded the victim for staying the night at his girlfriend’s house. However, the victim stated that this was not his motive. This would also not explain the victim’s motive when he told his best friend and the friend’s mother about the abuse shortly after it occurred in seventh grade, which was years prior to the above transgressions. Accordingly, Moore’s second assigned error is overruled.
Amendment of Indictment
In his third assigned error, Moore argues the trial court erred by allowing the state to amend the dates in the indictment during the trial. The original indictment for the gross sexual imposition count stated that the
crime occurred, “on or about November 1, 2010 to February 28, 2011.” The original indictment for the sexual battery count stated that the crime occurred “on or about April 1, 2013 to April 30, 2013.” Both counts were amended at trial to allege that the crimes occurred on or about “January 1, 2009 to November 30, 2012” in order to conform to *11 the evidence presented at trial. The victim testified that the abuse occurred while he was in seventh and eighth grades. Several of the witnesses also stated that the victim revealed the abuse to them while he was in seventh or eighth grades. It was established at trial that the victim was in seventh and eighth grade from 2009 until 2011.
{¶28}
Crim.R. 7(D) allows a trial court to amend an indictment to conform to the
evidence presented at trial. Crim.R. 7(D) provides that a court may permit the
amendment of an indictment at “any time,” including “during” the trial, as long as it does
not change the name or identity of the crime charged. A may occur when, for example,
the amendment includes new elements requiring independent proof, or when the
amendment increases the severity of the offense.
See State v. Fairbanks
, 172 Ohio
App.3d 766,
{¶29}
Where the amendment does not change the name or identity of the offense, a
reviewing court should not disturb a court’s decision to permit the amendment of an
indictment absent an abuse of discretion and a showing of prejudice to the defense.
See
State v. Douglas
, 10th Dist. Franklin No. 09AP-111,
This case was also not a case where the change in the dates prevented the defendant from presenting an alibi defense. We note that Moore relies on this court’s decision in State v. Vitale , 96 Ohio
App.3d 695, 645 N.E.2d 1277 (8th Dist.1994). In
Vitale
, we held that the trial court
*12
erred by allowing the state to change a specific date in the indictment to fit a different
theft that occurred at a different location than the one contained in the indictment. Thus,
in
Vitale
, at trial the state was permitted to include a different potential theft than the one
presented to the grand jury. In the instant case, the indictment included a range of dates,
not a specific date, and the amendment did not change the location of the offenses.
See
State v. Schafer
, 8th Dist. Cuyahoga No. 79758,
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into 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.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR