State v. Reinhardt, 08ca0012-M (3-23-2009)State v. Reinhardt, 08ca0012-M (3-23-2009)
{¶ 1} Defendant-Appellant, Mitchell Reinhardt, appeals his conviction for gross sexual imposition. This Court affirms.
{¶ 2} In November 2005, the Medina County Department of Job and Family Services received a “call of concern” regarding the suspected sexual abuse of Defendant‘s four-year-old niece, K.R. Defendant was indicted on charges of rape, in violation of
ASSIGNMENT OF ERROR II
“The trial court erred and abused its discretion, over the objection of the defendant, by finding a six (6) year old child competent to testify.”
{¶ 4} Children under ten years of age who are incapable of receiving accurate impressions of the subject matter that is the basis of their testimony or of relating their impressions are not competent as witnesses.
{¶ 5} In this case, the trial court conducted a voir dire of K.R. after clearing the courtroom of spectators. K.R., who stated that she was six years old, was able to tell the court that she was in kindergarten, to identify her school by name, and to recognize that it was located in Wadsworth. She also stated that she attended school only in the morning and expressed
{¶ 6} In a sidebar during the voir dire, the trial court judge expressed his initial impression that K.R. seemed “pretty self-confident and even articulate,” but expressed concern “about her ability to recollect things.” On further examination, K.R. stated that she had lived with her grandmother and Defendant a “[l]ong time ago,” but that she remembered doing things with Defendant that were fun. As an example, K.R. said that they played with “magnet toys” and built a house out of blocks. She recognized the difference between building the toy house and building a “real house,” stated that movies are real “sometimes,” and said that the television character Barney is not real. K.R. accurately described the colors worn by those in the courtroom during the voir dire. Having concluded this additional examination, the trial court expressed some concern about K.R.‘s memory with regard to time, but concluded that it did not rise to a level that would disqualify her as a witness.
{¶ 7} The voir dire of K.R. demonstrated that she was able to perceive, remember, and communicate impressions of fact; that she understood the difference between truth and falsity and, particularly, the difference between the real and the imaginary; and that she grasped the importance of speaking truthfully. See McNeill, 83 Ohio St.3d at 442. The trial court did not abuse its discretion in determining that K.R. was competent to testify, and Defendant‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
“The trial court erred in permitting expert testimony upon facts or data not perceived by the witness nor admitted into evidence at the trial in violation of Ohio Evidence Rule 703, over the objection of counsel in some instances and under a plain error analysis in every instance.”
{¶ 8} Defendant‘s third assignment of error challenges the testimony of four witnesses whom he characterizes as experts: Ana Becker, a social worker employed as an intake investigator for the Medina County Department of Job and Family Services; Amy Kerr of the Medina Police Department; and Gregory Pollack and Suzanne LeSure, who provided counseling services to K.R. after the alleged abuse came to light. Defendant argues that each witness testified in violation of
{¶ 9} A witness testifies as an expert when the subject matter of the testimony is related to matters that are beyond the knowledge or experience of laypersons; the witness possesses “specialized knowledge, skill, experience, training or education” that relate to the subject matter; and the witness testifies based on “reliable scientific, technical, or other specialized information.”
{¶ 10} The witnesses identified by Defendant in this assignment of error testified not as experts but as fact witnesses. Ana Becker, a social worker, testified that she received a report of suspected abuse regarding K.R., which she referred to the Medina Police Department. Officer Amy Kerr testified that she investigated the allegations after Ms. Becker‘s referral. Greg Pollack testified that he provided counseling services to K.R. after the allegations surfaced and described her diagnosis and treatment. Dr. Suzanne LeSure testified that she counseled K.R. after her period of treatment with Mr. Pollack, and Dr. LeSure also testified regarding her diagnosis and treatment. Because these witnesses testified regarding facts within their knowledge rather than as experts,
ASSIGNMENT OF ERROR IV
“The trial court erred, over the objection of defendant, in permitting an officer to testify as to statements of the child made during [the] investigative interview.”
{¶ 11} Defendant‘s fourth assignment of error is that the trial court incorrectly permitted Officer Amy Kerr to testify regarding statements made by K.R. during the investigation into the allegations against Defendant. Specifically, Defendant has argued that K.R.‘s statements were testimonial in nature and, by implication, that the admission of Officer Kerr‘s testimony regarding those statements violated Defendant‘s
{¶ 12} The
{¶ 13} We do not need to reach the issue of whether K.R.‘s out-of-court statements during her interview with Ms. Becker and Officer Kerr were testimonial in nature because Defendant‘s fourth assignment of error fails for a more basic reason. As we concluded in connection with Defendant‘s second assignment of error, the trial court did not err in finding K.R. competent to testify. She testified at trial and was subject to cross-examination. Because Defendant had the opportunity to confront K.R. as a witness against him, Confrontation Clause concerns are not implicated by Officer Kerr‘s testimony regarding K.R.‘s out-of-court statements. See Velez, 2007-Ohio-5122, at ¶ 33. Defendant‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
“The conviction was against the manifest weight of the evidence and based upon insufficient evidence.”
{¶ 14} Defendant‘s first assignment of error argues that his conviction for gross sexual imposition was based on insufficient evidence because the State failed to present evidence establishing that the offense was committed in Medina County. He also maintains that his conviction is against the manifest weight of the evidence, arguing that the jury lost its way by concluding that he touched K.R. for purposes of sexual arousal or gratification.
{¶ 15} Venue must be proved in every criminal case beyond a reasonable doubt and may be established by “all the facts and circumstances” in a given case. State v. Headley (1983), 6 Ohio St.3d 475, 477. When a defendant challenges the sufficiency of evidence demonstrating venue, this Court assesses the evidence to determine whether such evidence, if believed, would convince the average mind that venue was proper in the county in which the trial was held. See State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Blough (Apr. 7, 1999), 9th Dist. No. 19143, at *3. In making this determination, we must view the evidence in the light most favorable to the prosecution. State v. Feliciano (1996), 115 Ohio App.3d 646, 653, quoting Jenks at paragraph two of the syllabus. “In essence, sufficiency is a test of adequacy.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386.
{¶ 16} As a general rule, venue lies in any county “in the territory of which the offense or any element of the offense was committed.”
{¶ 17} The State adduced testimony at trial that the criminal act against K.R. occurred in an automobile while Defendant was driving and K.R. was seated in the passenger seat. Witnesses testified that Defendant lived with his mother at a residence in Medina County where
{¶ 18} Viewing this evidence in a light most favorable to the prosecution, one could conclude that the beginning and ending points of the automobile‘s travel, at minimum, occurred in Medina County. This suffices to establish venue under
{¶ 19} Defendant argues that venue was not proven in this case because there was no evidence to establish where his vehicle was located when the offense against K.R. was committed.
{¶ 20} Defendant also argues that his conviction for gross sexual imposition is against the manifest weight of the evidence and was supported by insufficient evidence because the testimony at trial did not establish that he touched K.R. for the purpose of his own sexual gratification. Defendant has argued that, in the context of his relationship with K.R., it was not reasonable for the jury to conclude that a single touch involving either K.R.‘s buttocks or vaginal area was for the purpose of sexual gratification.
{¶ 21} When a defendant asserts that his conviction is against the manifest weight of the evidence, this Court does not view the evidence in the light most favorable to the State, but:
“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. Otten (1986), 33 Ohio App.3d 339, 340.
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. Because sufficient evidence is
{¶ 22}
{¶ 23} The facts and circumstances of this case lead us to conclude that the jury did not lose its way in finding Defendant guilty of gross sexual imposition. K.R., who was four years old at the time of the incident, testified that Defendant touched her “butt” while they were riding in a car driven by Defendant. She stated that she was wearing a diaper at the time, but also testified that she knew the difference between good and bad touches and that Defendant touched her in a bad way. Afterward, according to K.R., Defendant stated that “it tasted good.” K.R. also testified that Defendant sometimes removed her from her grandmother‘s bed and took her to bed with him and that she took showers with Defendant. Gregory Pollock, who provided counseling to K.R., testified that the child disclosed the incident to him, and his recollection of her disclosure was substantially similar to K.R.‘s own testimony. Dr. Suzanne LeSure, who also provided counseling to K.R., testified that she observed patterns of behavior from the child,
{¶ 24} Defendant‘s position at trial was that even assuming an incident of touching occurred, it was nonsexual in nature and happened in the course of his care for K.R. Along those lines, K.R.‘s mother, Mandi Reinhardt, testified that Defendant provided childcare while she worked a variety of jobs and “did everything” for her daughter, including changing her diapers. Ms. Reinhardt denied that Defendant was ever given suppositories to administer to K.R. for persistent constipation, which contradicted the testimony of Defendant‘s and Ms. Reinhardt‘s mother, Sherrell Reinhardt. Sherrell Reinhardt also testified that Defendant bathed with K.R. on occasions in the past, but that she asked him to stop doing so when it became “kind of inappropriate” because of K.R.‘s age. Sherrell denied that Defendant had taken K.R. from her bed during the night and that he had harmed K.R. at any time. She also testified regarding a strong bond between K.R. and Defendant that continued even after the incident of touching was disclosed.
{¶ 25} Having reviewed the testimony presented at trial and the reasonable inferences that can be drawn therefrom, this Court cannot conclude that the jury lost its way in finding that Defendant engaged in sexual contact with K.R. for the purposes of sexual gratification. K.R.‘s disclosures were consistent with her testimony at trial, including the detail of Defendant‘s statement afterward, which this Court considers of particular significance. K.R. demonstrated an understanding of good and bad touching and disclosed a single incident, tending to support the State‘s position that the touching did not occur in the course of routine childcare by Defendant. Defendant‘s conviction for gross sexual imposition is not against the manifest weight of the
ASSIGNMENT OF ERROR V
“The trial court erred when it applied Ohio‘s new Adam Walsh Act, Senate Bill 10, to appellant and ordered appellant to register as a tier two sex offender for twenty-five years with periodic verification every 180 days in violation of the Ohio and Federal Constitutions.”
{¶ 26} Defendant‘s final assignment of error is that his classification as a tier two sex offender pursuant to the Adam Walsh Act violates the prohibitions against ex post facto and retroactive laws provided in the United States and Ohio Constitutions; violates the doctrine of the separation of powers set forth in the Ohio Constitution; and violates his right to be free from double jeopardy.
{¶ 27} This Court has previously considered and rejected several of Defendant‘s constitutional arguments. See State v. Honey, 9th Dist. No. 08CA0018-M, 2008-Ohio-4943 (concluding that the Adam Walsh Act does not violate the prohibitions against ex post facto and retroactive laws). We now conclude that his double jeopardy and separation of powers arguments are also without merit.
{¶ 28} In State v. Williams (2000), 88 Ohio St.3d 513, the Supreme Court of Ohio rejected the argument that an earlier version of
{¶ 29} Nor does the Adam Walsh Act violate the separation of powers doctrine. As the Supreme Court of Ohio has explained:
“The separation-of-powers doctrine implicitly arises from our tripartite democratic form of government and recognizes that the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others. The purpose of the separation-of-powers doctrine is to create a system of checks and balances so that each branch maintains its integrity and independence.” (Internal citations omitted.) State v. Thompson (2001), 92 Ohio St.3d 584, 586.
While “the General Assembly is vested with the power to make laws,” the courts possess exclusive power to exercise judicial functions without being “directed, controlled or impeded therein by other branches of the government.” Id. at 586. The classification of sex offenders, however, is a creature and mandate of the legislature that does not implicate the inherent power of the courts. State v. Bodyke, 6th Dist. Nos. H-07-040, H-07-041, H-07-042, 2008-Ohio-6387, at ¶ 22. For this reason, several courts of appeals have concluded that the Adam Walsh Act does not violate the separation of powers doctrine. See State v. Messer, 4th Dist. No. 08CA3050, 2009-Ohio-312, at ¶ 23-26; In re A.R., 5th Dist. No. 08-CA-17, 2008-Ohio-6581, at ¶ 34; State v. Williams, 12th Dist. No. CA2008-02-029, 2008-Ohio-6195, at ¶ 99-102; State v. Byers, 7th Dist. No. 07CO39, 2008-Ohio-5051, at ¶ 73-74; In re Smith, 3d Dist. No. 01-07-58, 2008-Ohio-3234, at ¶ 39. This Court agrees with the rationale offered by other districts and concludes that the Adam Walsh Act does not violate the separation of powers doctrine. Defendant‘s fifth assignment of error is overruled.
{¶ 30} Defendant‘s assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
WHITMORE, J. MOORE, P. J. CONCUR