STATE OF OHIO, PLAINTIFF-APPELLEE, v. TREG R. YODER, DEFENDANT-APPELLANT.
CASE NO. 14-18-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
August 20, 2018
2018-Ohio-3321
Appeal from Union County Common Pleas Court, Trial Court No. 2016 CR 0234. Judgment Affirmed.
Jonathan T. Tyack for Appellant
Rick Rodger for Appellee
{¶1} Defendant-Appellant, Treg R. Yoder (“Appellant“), brings this appeal from the Union County Common Pleas Court, convicting him of one count of Gross Sexual Imposition and sentencing him to five years of Community Control. On appeal, Appellant asserts that: 1) the trial court‘s verdict was not sustained by sufficient evidence; 2) the trial court‘s verdict was against the manifest weight of the evidence; and 3) the trial court erred by relying on evidence related to a dismissed charge to convict Appellant of Count I. For the reasons that follow, we affirm the judgment of the Union County Common Pleas Court.
Factual Background
{¶2} In early August, 2016, Appellant was employed as a Resident Care Associate (“RCA“) at Brookdale Senior Living (“Brookdale“). (Trial, 10/02/2018 Tr. at 25-26; 72). Brookdale is a skilled nursing facility located in Marysville, Ohio. (Id. at 5-6). While working as an RCA, Appellant was responsible for providing bathing, dressing, medication, and bathroom assistance to residents of Brookdale in accordance with the resident care plan. (Id. at 72).
{¶3} Appellant worked third shift (10:30 p.m. to 6:30 a.m.) on August 7th and 8th of 2016. (Id. at 25-26). Another RCA, Heather Bialecki (“Bialecki“), was assigned to work with Appellant on those dates. (Id. 25). The facts revealed that Appellant and Bialecki were attending to S.W., a resident at Brookdale who
{¶4} Appellant and Bialecki discovered that S.W. had urinated himself, so they started to change his Depends diaper. (Id. at 28). Bialecki went to the cabinet next to S.W.‘s bed to obtain supplies while Appellant commenced changing S.W. (Id. at 23; 28). Bialecki gave Appellant medicated cream for S.W.‘s bottom, then resumed obtaining supplies from the cabinet next to S.W.‘s bed. (Id. at 28). At some point Bialecki turned back toward S.W., and observed Appellant “stroking” or “masturbating” S.W.‘s penis, stating (that) S.W.‘s “penis was the only penis he could play with.” (Id. at 29). Appellant went on to tell Bialecki that when he had done this before, “he asked for more.” (Id.). When Bialecki asked for clarification, Appellant said (that) S.W. “asked for more.” (Id.). Bialecki testified that the “masturbation” of S.W. by the Appellant lasted for three to five minutes. (Id. at 30).
{¶5} Bialecki reported the incident (involving S.W.) to the Brookdale incident hotline number. (Id.). Shortly thereafter, Brookdale management fired Appellant and reported the incident to local law enforcement authorities. (Id. at 32; 78-79).
{¶6} On November 22, 2016, Appellant was indicted by the Union County Grand Jury on two counts of Gross Sexual Imposition1 (“GSI“), in violation of
{¶7} On July 17, 2017, Appellant voluntarily waived his right to a jury trial and elected to be tried by the trial court. (Doc. No. 35). On October 2, 2017, Appellant‘s bench trial commenced. (Trial, 10/02/2017 Tr.). At the conclusion of the State‘s case-in-chief, Appellant moved for a judgment of acquittal on both counts pursuant to
{¶8} Appellant then moved to admit Defense Exhibit A2 into evidence, which was admitted without objection, and rested. (Id. at 124). Appellant then renewed his
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT‘S VERDICT IS [SIC] NOT SUSTAINED BY SUFFICIENT EVIDENCE.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT‘S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED BY RELYING ON EVIDENCE EXCLUSIVELY RELATED TO COUNT II, WHICH IT DISMISSED PURSUANT TO CRIM.P. [SIC] 29(A), TO CONVICT MR. YODER OF COUNT I.
Appellant‘s First Assignment of Error
{¶10} In his first assignment of error, Appellant argues that there was insufficient evidence to convict him of gross sexual imposition. Specifically, Appellant argues that because he had a legitimate and medically proper reason to be touching and manipulating S.W.‘s penis, the evidence was insufficient to prove that Appellant had “sexual contact” with S.W. for the purpose of “sexually gratifying” himself. For the reasons outlined below, we disagree.
Standard of Review
{¶11} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by statute on other grounds in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). “The relevant inquiry is whether, after viewing the evidence in a light
Analysis
{¶12} Appellant argues that the State did not prove the elements of GSI beyond a reasonable doubt. Appellant was convicted on one count of GSI, in violation of
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 * * *: [t]he ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.
(Emphasis added).
“A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816, ¶ 24 quoting
{¶13} In the case before us, Appellant does not dispute that he touched S.W.‘s penis, but rather, argues that the State failed to prove he had the specific purpose of sexually arousing or gratifying himself or S.W. Appellant avers because he had a medically appropriate reason to touch and manipulate S.W.‘s penis (in this instance, applying medicated cream to S.W.‘s excoriated skin), he cannot be convicted of GSI. We disagree.
{¶15} The State also introduced the testimony of other Brookdale care professionals to demonstrate that Appellant‘s manipulation of S.W.‘s penis was not medically appropriate. Amber Adelsberger, (“Adelsberger“), a Brookdale RCA, testified that she had put medicated cream on the tip of S.W.‘s penis as part of her duties as an aide. (Id. at 48). However, Adelsberger maintained that in applying the cream she neither grabbed S.W.‘s entire penis nor “masturbated” him. (Id. at 48). Kyle Schmidlapp (“Schmidlapp“), the (then) Executive Director of Brookdale testified that placing medicated cream on S.W.‘s penis would be a violation of the Brookdale Patient Care Plan. (Id. at 78). Finally, Kari Crosby (“Crosby“), the Director of Nursing at Brookdale, testified that RCAs were not
{¶16} Ultimately, regardless of whether or not RCAs were permitted to apply medicated cream to a patient‘s genitals, the State also introduced the statements of Appellant, made contemporaneously while manipulating S.W.‘s penis, to demonstrate “a purpose to sexually arouse or gratify either person.” Specifically, Bialecki testified that as Appellant was stroking S.W.‘s penis the following exchange occurred:
Bialecki: [Appellant] had made a comment to me and said, hey, Heather, look. It‘s the only penis I can play with. And then he made, like, I still couldn‘t talk because I didn‘t know what to say to him. And then he said, well, when we did this before, he asked for more. And I said, who asked for more? Like, really grumpy. And he said, [S.W.] did.
(Id. at 29).
{¶17} In our review we find that Appellant‘s comments to Bialecki about “playing with” S.W.‘s penis and S.W. “asking for more” demonstrate that Appellant possessed the requisite culpable mental state (i.e. purpose) to sexually gratify or sexually arouse himself or S.W.
{¶18} Appellant tries to characterize his comments as nothing more than an “inappropriate joke.” In support of this characterization, Appellant directs us to Bialecki‘s cross-examination, wherein Bialecki testified that the Appellant had a history of trying to be funny by making “off-color” comments or “off-color”
{¶19} Appellant further directs us to our decision in In re Redmond, arguing that the State failed to prove that he had the requisite purpose of sexual arousal or sexual gratification. In In re Redmond, a juvenile male had lifted the skirt of a female victim on two separate occasions and touched her “reproductive area” and upper thigh or buttocks. Redmond, 3rd Dist. Allen No. 1-06-90, 2007-Ohio-3125, ¶ 9. And, on at least one occasion there was a small audience of students who observed the touching. Id. During his trial, the juvenile testified that he was “playing around” and thought it was a joke to lift the victim‘s skirt the second time. Id. Finding that the evidence demonstrated reasons other than a desire to sexually arouse or gratify the juvenile or victim, this Court reversed the lower court‘s conviction. Id. at ¶ 12.
{¶20} However, we find Appellant‘s situation distinguishable from the defendant‘s situation in Redmond. Most notably, the juvenile (in Redmond) testified that he was “playing around,” and thought that it was a joke to lift the victim‘s skirt. Id. at ¶ 9. Conversely, in the case before us, we have Bialecki‘s testimony, who testified that she did not perceive Appellant‘s actions to be a joke. Moreover, the juvenile in Redmond testified that he was not thinking in a sexual
{¶21} Finally, as we stated in Redmond, many sexual offenses occur in a private or semi-private setting. Id. at ¶ 10. Since this incident occurred in a semi-private setting, we are not persuaded that Appellant‘s actions were a bad joke. Furthermore, there is no evidence in the record supporting Appellant‘s “joking” argument regarding this particular incident. Thus, we find Appellant‘s reliance upon Redmond to be misplaced.
{¶22} Based on the testimony introduced at trial, the State produced sufficient evidence, which if believed, proved that Appellant touched S.W. with the purpose of sexual arousal or sexual gratification. Accordingly, Appellant‘s first assignment of error is overruled.
Appellant‘s Second Assignment of Error
{¶23} In his second assignment of error, Appellant argues that there is no evidence in the record that would lead a reasonable finder of fact to conclude that he had contact with S.W. for the purpose of sexual gratification or sexual arousal.
Standard of Review
{¶24} “[I]n determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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. White, 3rd Dist. Seneca No. 13-16-21, 2017-Ohio-1488, ¶ 11 quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. “A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. Id. citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “When applying the manifest weight standard, ‘only in exceptional cases, where the evidence “weighs heavily against the conviction,” should an appellate court overturn the trial court‘s judgment.‘” Id. quoting State v. Haller, 3rd Dist. Allen No. 1-11-34, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9.
Analysis
- A reviewing court is not required to accept the incredible as true;
- Whether the evidence is uncontradicted;
- Whether a witness was impeached;
- What was not proved;
- Certainty of evidence;
- Reliability of evidence;
- Whether witness’ testimony is self-serving;
- And whether evidence is vague, uncertain, conflicting, or fragmentary.
State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926 (8th Dist.1985). Applying these factors to this case, we find that the decision of the trial court was not against the weight of the evidence.
Uncontradicted Evidence
{¶26} As discussed in the first assignment of error, there is no evidence in the record to contradict Bialecki‘s testimony that on August 7th or 8th of 2016, Appellant “stroked” S.W.‘s penis and made comments of a sexual nature
Witness Impeached
{¶27} Appellant draws into question the testimony of Bialecki, directing us to the statements of the trial court finding Appellant guilty. Specifically, the trial court, in making its finding of guilt, indicated that it did not believe that the incident took place for “three to five minutes,” as testified to by Bialecki. (See generally, Id. at 30; 136). However, the trial court clarified its statements (regarding the length of time Bialecki testified to), stating:
The only thing that I find questionable in her entire testimony was the quote of three to five minutes. Although, certainly, when you see something that sticks in your mind, it can seem like an eternity. But the Court‘s conclusion is it probably wasn‘t three to five minutes.
Self-Serving Testimony
{¶28} Appellant attempts to characterize Bialecki‘s testimony as self-serving, arguing that after Bialecki reported the incident (regarding S.W.), she was promoted to a higher position at Brookdale. However, even though the Appellant asserts that Bialecki received a promotion from reporting Appellant, the record falls short of such suggestion. Specifically, Bialecki testified to the following regarding her promotion at Brookdale:
Q. (Questioning by Attorney Rodger for the State) Okay. Did you receive any benefit for reporting this?
A. (Bialecki) No.
Q. Were you promoted as a result of this?
A. No.
Q. Did you receive any pay raises or anything?
A. No. I got nothing but a headache.
(Id. at 33).
Vague or Uncertain Testimony
{¶30} Bialecki‘s testimony of the events occurring between Appellant and S.W. was not vague or uncertain. While Appellant directs us to testimony of the uncertainty as to whether aides were or were not permitted to apply medicated cream to resident‘s genitals and to the proper procedure for applying cream, such testimony does not make the evidence regarding the events between Appellant and S.W. vague or uncertain. Bialecki‘s testimony was clear that she saw Appellant “stroke” S.W.‘s penis and comment that “this was the only penis (he) could play with.” We find no vagueness or uncertainty regarding the incident as testified to by Bialecki. Thus, this factor does not impact the weight of the evidence.
{¶31} Finally, while not a factor specifically outlined in Mattison, Appellant argues that there is no evidence in the record that would lead a reasonable factfinder to conclude that his contact with S.W. was for the purpose of sexual gratification or arousal. However, as we determined in the first assignment of error, the State introduced testimony, through an eye witness, that the Appellant was “stroking” or “masturbating” S.W.‘s penis. And, while doing so, Appellant
{¶32} Since the comments of the Appellant are evidence of his mental state, and because the factors outlined in Mattison support conviction, we find that Appellant‘s conviction was not against the manifest weight of the evidence and overrule the second assignment of error.
Appellant‘s Third Assignment of Error
{¶33} In his third assignment of error, Appellant argues that the trial court relied on evidence from the acquitted count to support its conviction. For the reasons outlined below, we disagree.
Standard of Review
{¶34} “‘The admission or exclusion of relevant evidence rests in the sound discretion of the trial court.‘” State v. Thompson, 3rd Dist. Henry No. 7-16-10, 2017-Ohio-792, 85 N.E.3d 1108, ¶ 18 quoting State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).
Analysis
{¶35} The trial court, in finding Appellant guilty of GSI, issued the following statement:
Trial Court: Thank you. This is a case where as early as February to March of 2016, the defendant was engaging in
aberrant behavior. And while the Court‘s found that behavior at the time in March not to rise to the level that warrants a conviction for what he is charged in count two, the Court certainly concludes that the behavior on the night in question with that patient was inappropriate in terms of the method for getting her back onto the bed. The testimony of the second witness in the case, Adelsberger, was that he pushed her onto the bed with his pelvic area while not doing anything inappropriately with his hands. Certainly, that‘s not the typical way that you get somebody back on the bed. And then we move to the month of August with [S.W.]. The witness, as I said earlier, said that she and [Appellant] went to – into [S.W.]‘s room. That [Appellant] checked him. That she got a new Depends – Depend – Depends out of the closet on the far side. And that the bed had been pulled away from the wall with [Appellant] on the other side. He then asked her to hand the lotion to him. She grabbed the cream, turned around, and handed it to him, turned back. And I didn‘t get what she was doing when she turned back. But she turned back only to turn around once again. And her testimony was that she saw [Appellant] with the whole penis in his hand masturbating him. That the length of time was three to five minutes. That she froze for a second. At which time he said, this is the only penis I can play with. And when I did this before, he asked for more. The – she testified further that when they were finished, that she went into the bathroom. That she couldn‘t believe what she saw and that she would never forget it. The only thing that I find questionable in her entire testimony was the quote of three to five minutes. Although certainly, when you see something that sticks in your mind, it can seem like an eternity. But the Court‘s conclusion is it probably wasn‘t three to five minutes. But the Court‘s further conclusion from the testimony before the Court here today is that the procedure for applying cream to the penis was clearly not followed. It was the procedure was [sic] to grab – to take a hold and pull the skin down with two fingers, applying the cream to the tip of the penis. It‘s clear from her testimony that she saw the defendant with the whole penis in his hand. And she described that as “masturbating him.” That action together with, this is the only penis I get to play with, leaves one, in my opinion, with the conclusion that there‘s no other reason to do it. That playing equals – getting to play with something in this case equals sexual gratification to [Appellant]. And that [Appellant] engaged in that activity on the evening in question. The conduct was reported almost immediately. And from what I – from what I‘ve heard in the courtroom, the testimony the witness seems to be consistent throughout the hearing in December and the hearing yet once again today. She, once again, when questioned on cross examination, stated – admitted that the questioning from Mr. Tyack that the penis was flaccid, but that [Appellant] had the penis in his hand and was stroking it. Then he questioned her about the procedure that was used. And she told us once again about the procedure. She testified on redirect that she – that it was not a joke and that he said – he made the comments with the penis in his hand. The Court‘s conclusion after evaluating all the evidence and the exhibits that were admitted in this case is that the defendant is guilty beyond a reasonable doubt. And the Court makes that finding. Thank you. * * *.
(Trial, 10/02/2018 Tr. at 135-37).
{¶36} While the trial court may have summarized some of the testimony and evidence it received as to Count II in finding Appellant guilty of Count I, there is no indication that the trial court solely relied on such evidence in determining guilt on Count I. Additionally, under
{¶37} Moreover, we find the trial court adequately summarized the evidence upon which it relied in convicting Appellant of Count I, GSI. As such, we find there is competent and credible evidence in the record to support the trial court‘s guilty verdict. Thus, we find no abuse of discretion, and we overrule Appellant‘s third assignment of error.
Conclusion
{¶38} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we overrule Appellant‘s first, second, and third assignments of error and affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr