In re D.G.

2023 Ohio 3859

• Court: Ohio Court of Appeals
• Decided: October 23, 2023
• Docket: 2023 CA 00019
• Status: Published

Opinion

[Cite as In re D.G., 2023-Ohio-3859.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN RE: D.G. : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Andrew J. King, J. : : : Case No. 2023 CA 00019 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Juvenile Division, Case No. 2022-JCR-00467

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 23, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE D. COLEMAN BOND Prosecuting Attorney 116 Cleveland Ave. N.W. BY: VICKI L. DESANTIS Suite 600 Assistant Prosecutor Canton, OH 44702 110 Central Plaza South, Ste. 510 Canton, OH 44702 [Cite as In re D.G., 2023-Ohio-3859.]

Gwin, P.J.

{¶1} Appellant D.G., a juvenile, appeals the judgment of the Stark County Court

of Common Pleas, Juvenile Division, adjudicating him a delinquent child for committing

the offense gross sexual imposition. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} Appellee filed a complaint against appellant on April 14, 2022, alleging

appellant was a delinquent child due to a violation of R.C. 2907.05(A)(1), gross sexual

imposition.

{¶3} The first day of trial was held on July 21, 2022. At the conclusion of the first

day of trial, counsel for appellant made a Criminal Rule 29 motion for acquittal. The

magistrate denied the motion. Because testimony was not completed, a second day of

trial was held on September 13, 2022.

{¶4} The following facts are adduced from the bench trial before the juvenile

court. At the time of these events, appellant was sixteen years old. J.R., the alleged

victim, was also sixteen years old. The trial consisted of the testimony of appellant, the

victim’s mother, Alissa Edgein from Akron Children’s Hospital, appellant’s father, and

Michelle Mitchell from Stark County Children’s Services.

{¶5} Appellant and J.R. are cousins and, prior to this incident, were friends. On

July 4, 2021, both appellant and J.R. went to a family cookout at an uncle’s house. Both

appellant and the victim testified they were alone together in the living room for a period

of time. J.R. testified that, throughout this interaction, no one else came into the room

and no one else was nearby. Stark County, Case No. 2023 CA 00019 3

{¶6} J.R. testified that she was braiding appellant’s hair, as he sat on the floor in

front of her. At some point, appellant moved onto the couch. At that point, appellant took

J.R.’s phone and looked up something pornographic. J.R. tried to get her phone back,

but appellant kept pulling it away. J.R. testified, “then he started to grope me here on my

breasts and then started to make his way down to my private area.” When he touched

her breasts, appellant was using his hand. J.R. confirmed that appellant touched her

vagina with his hand underneath her clothing.

{¶7} As appellant was touching her, J.R. “was saying, no, stop.” J.R. was not

yelling when she said “no,” but said it loud enough for appellant to hear her. Appellant

asked J.R. “to kiss him and [she] said no.” Appellant then stood up and tried to get J.R.

to touch him as he was taking his pants off. Appellant exposed his penis to J.R. J.R.

testified that appellant then “pushed [her] by the hand,” and made her hand touch his

penis. J.R. stated she “kept saying, no, to stop. I said no, stop, and that we were cousins.”

J.R. testified appellant did not listen to her, and he actually put her hand on his penis.

Appellant finally stopped, but not until after he forcibly took her hand and put it on his

penis. When asked why she did not run away, J.R. stated, “because I was scared. I felt

like I couldn’t move. I was too scared to move.”

{¶8} J.R. made a police report the next day and had a medical evaluation. She

has not seen appellant since the incident. J.R. went to counseling for several months

after the incident.

{¶9} S.R., the victim’s mother, confirmed appellant and the victim were alone

together in the family room. S.R. described the set-up in the home, i.e., if someone is

standing in the kitchen, that person could not look and see into the living room because Stark County, Case No. 2023 CA 00019 4

it is an obstructed view. Someone would have to walk to the door of the living room to

see inside the living room. She testified that J.R. was quiet on the way home. After they

returned home, J.R. told her mother what happened. They made a police report the next

day. J.R. did not want to return to her uncle’s home the next day to celebrate her

grandfather’s birthday. S.R. described J.R. as being much quieter and more reserved

after the incident. Further, J.R. was in counseling for several months after the incident.

{¶10} Alissa Edgein, a nurse practitioner at Akron Children’s Hospital, diagnosed

J.R.’s case as a child sexual abuse case. She referred J.R. to counseling.

{¶11} Michelle Mitchell (“Mitchell”) from Stark County Children’s Services,

reviewed J.R.’s forensic interview. Mitchell testified the initial disclosures made by J.R.

were consistent with the disclosures J.R. made during the forensic interview. Specifically,

during the forensic interview, J.R. stated as follows: she was alone in the room with

appellant, appellant asked to see J.R.’s phone, appellant got up and sat next to her,

appellant showed J.R. a pornographic video on her phone, appellant groped her breasts,

appellant went down J.R.’s pants with his hands, appellant grabbed J.R.’s hand and made

her touch his penis, appellant got up and walked to the corner where he could not be

seen by others, appellant pulled out his penis and asked J.R. to suck it and J.R. refused,

and J.R. told appellant to stop several times.

{¶12} Appellant’s father testified that there were many people in the kitchen the

whole time appellant and J.R. were sitting in the living room. Further, that one can hear

conversations in the kitchen from the living room because it is all open. Appellant’s father

stated it was not possible for appellant and J.R. to have been alone after 10:30 p.m.,

because he and appellant left by then. Stark County, Case No. 2023 CA 00019 5

{¶13} Appellant testified to the interaction between himself and J.R. Appellant

stated he was sitting on the floor and J.R. was sitting on the couch, braiding his hair. J.R.

was on her phone, and appellant was starting to fall asleep. Appellant stated at that point,

J.R. put her hand on his thigh and said “you can touch me,” so appellant put his hand on

her thigh. Appellant testified that J.R. never told him to stop, and never stood up. At that

point, appellant thought he heard someone coming, so he tried to get back up, but instead

sat back down. Appellant was afraid he would get in trouble because “it is not normal to

do stuff like that.” Appellant was afraid J.R. would say something about what happened,

and he would be blamed. Appellant testified the touching of J.R.’s thigh was consensual,

and J.R. never told him to stop. Appellant denied exposing his penis to J.R.

{¶14} After the trial, the magistrate found appellant to be a delinquent juvenile.

Appellant filed objections to the magistrate’s decision on September 22, 2022. The trial

court set the objections for hearing. Appellant supplemented his objections to the

magistrate’s decision on November 8, 2022.

{¶15} On November 9, 2022, the trial court issued a judgment entry. The trial

court overruled the fourth and sixth objections to the magistrate’s decision. However, the

trial court sustained appellant’s first and second objections, finding: the magistrate

committed error in denying appellant the opportunity to play a portion of the victim’s

forensic interview for purposes of impeachment, and the magistrate committed error by

refusing to permit appellant to call the forensic interviewer as a witness at trial.

Accordingly, the trial court remanded the matter to the magistrate. The magistrate

conducted an additional hearing on November 29, 2022. During the November hearing, Stark County, Case No. 2023 CA 00019 6

portions of the forensic video were played and the forensic interviewer was called as a

witness.

{¶16} The magistrate issued an entry on November 29, 2022, finding appellant

delinquent. A disposition hearing was set for February 6, 2023. At the disposition hearing

on February 6, 2023, the trial court ordered appellant to serve 90 days in the Stark County

Jail with 19 days credited and 71 days suspended, and commitment to DYS for a

minimum of six months, with the DYS commitment stayed on the following conditions:

good behavior, abide by local, state, and federal laws, and abide by the terms of his

probation. The trial court also designated appellant as a Tier I sex offender. The trial

court issued a judgment entry memorializing its findings on February 6, 2023.

{¶17} Appellant appeals the February 6, 2023 judgment entry of the Stark County

Court of Common Pleas, Juvenile Division, and assigns the following as error:

{¶18} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST

BE REVERSED.

{¶19} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”

I. & II.

{¶20} Appellant contends his conviction for gross sexual imposition is against the

manifest weight and sufficiency of the evidence.

{¶21} On review for sufficiency, the reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is whether, Stark County, Case No. 2023 CA 00019 7

after viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime prove beyond a reasonable

doubt.” Id, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).

{¶22} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses and determine “whether 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.” State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d

717 (1st Dist. 1983); see also State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541

(1997). The granting of a new trial “should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶23} In his first assignment of error, appellant contends appellee failed to present

sufficient evidence that appellant purposely compelled J.R. to engage in sexual contact

by force or threat of force. In his second assignment of error, appellant contends his

conviction is against the manifest weight of the evidence because there is no force or

threat of force as required by R.C. 2907.05.

{¶24} The trial court found appellant guilty of gross sexual imposition, a violation

of R.C. 2907.05(A)(1), which states:

(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: Stark County, Case No. 2023 CA 00019 8

(1) The offender purposely compels the other person, or one of the other

persons, to submit by force or threat of force * * *.

{¶25} R.C. 2907.01(B) defines “sexual contact” as “any touching of an erogenous

zone of another, including without limitation, the thigh, genitals, buttock, pubic region, or,

if the person is a female, a breast, for the purpose of sexually arousing or gratifying either

person.”

{¶26} Appellant argues appellee failed to prove the element of force necessary

for a conviction of gross sexual imposition.

{¶27} The term “force” is defined by R.C. 2901.01(A)(1) as “any violence,

compulsion, or constraint physically exerted by any means upon or against a person or

thing.” R.C. 2907.05(A)(1) requires the victim’s submission to sexual contact to be

obtained by force or threat of force. State v. Biggs, 5th Dist. Delaware No. 21 CAA 09

0048, 2022-Ohio-2481. In State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988),

the Supreme Court of Ohio found the amount of force required to meet this requirement

varies depending on the age of the victim and the relationship between the victim and the

defendant. Id. However, some amount of force must be proven beyond the force inherent

in the crime itself. State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998).

{¶28} Upon review of the evidence presented at the trial, we find, when viewed in

a light most favorable to the prosecution, a rational trier of fact could have found beyond

a reasonable doubt that appellant committed the crime of GSI by use or threat of force.

The testimony presented at the hearing by the victim alleges appellant forcibly pushed

her hand and made her hand touch his penis. The victim testified that she told appellant

“no,” and did not run or walk away because she was “too scared to move.” Stark County, Case No. 2023 CA 00019 9

{¶29} In addition, appellee presented circumstantial evidence to support the

charges. J.R.’s mother testified to her demeanor before and after the incident. Mitchell

testified the initial disclosures made by J.R. were consistent with the disclosures J.R.

made during the forensic interview. The trial court viewed the forensic interview and J.R.’s

testimony. Circumstantial evidence has the same probative value as direct evidence.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

{¶30} Courts, including this Court, have found sufficient evidence of force where

the state presents evidence that the defendant manipulated or repositioned the victim’s

body during the sexual contact or conduct. In the Matter of K.S., 5th Dist. Fairfield No.

13-CA-21, 2014-Ohio-188 (sufficient evidence of force when defendant pushed the

victim’s head near his penis); In re H.M., 5th Dist. Licking No. 17-CA-81, 2018-Ohio-2201

(sufficient evidence of force when defendant put victim’s hands on his penis); State v.

Steele, 5th Dist. Delaware No. 2011-CA-110, 2012-Ohio-3777 (sufficient evidence of

force when the victim testified that the defendant grabbed her hand and pulled it over to

his penis); State v. Howard, 2nd Dist. Montgomery No. 26360, 2015-Ohio-3917 (sufficient

evidence of force when defendant grabbed victim’s wrists and forced her to rub his penis

with her hands); State v. Jones, 2nd Dist. Montgomery No. 26289, 2015-Ohio-4116

(sufficient evidence of force when the defendant made the victim’s hand touch his penis

using a pushing motion).

{¶31} Appellant cites this Court’s case of State v. Biggs, 5th Dist. Delaware No.

21 CAA 09 0048, 2022-Ohio-2481, and the Ninth District Court of Appeals’ decision in

State v. Roy, 9th Dist. Lorain No. 13CA010404, 2014-Ohio-5186, in support of his Stark County, Case No. 2023 CA 00019 10

argument. He argues this case is factually similar to those cases in which the appellate

courts found there were not sufficient acts of force beyond the sexual contact itself.

{¶32} However, we find both of these cases to be distinguishable from the instant

case. In Biggs, the defendant did not manipulate the victim herself, or any of her limbs.

In this case, J.R. specifically testified that appellant forcibly grabbed her hand and placed

it on his penis. Further, in Roy, the adult victim testified that the defendant, a physician,

“touched her breasts in a way she had never experienced before,” and the victim was

unsure if this was for the purpose of medical diagnosis. In this case, J.R. is not an adult.

Further, there was not a doctor-patient relationship between appellant and J.R. Finally,

there was no testimony in Roy that the defendant manipulated or repositioned the limbs

of the victim.

{¶33} Appellant also contends the testimony of J.R. was contradicted by the

testimony of appellant and appellant’s father. Appellant specifically cites the testimony of

appellant’s father that contradicted the time the victim stated the incident happened (after

10:30 p.m.). Appellant’s father testified he and appellant were gone from the party by

10:30 p.m. Further, appellant cites the testimony from appellant that he and J.R. mutually

touched each other’s thighs.

{¶34} This essentially comes down to a credibility determination between

appellee’s witnesses and appellant’s witnesses. The weight to be given to the evidence

and the credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967). The trial court, as the trier of fact in this case,

was free to accept or reject any and all of the evidence offered by the parties and assess

the witness’s credibility. ‘While the trier of fact may take note of the inconsistencies and Stark County, Case No. 2023 CA 00019 11

resolve or discount them accordingly * * * such inconsistences do not render defendant’s

conviction against the manifest weight or sufficiency of the evidence.” State v. Nivens,

10th Dist. Franklin No. 95AP09-1236, 1996 WL 284714 (May 28, 1996). As to appellant’s

argument that J.R. did nothing to stop the assault, a victim is not required to prove

physical resistance for an offender to be guilty of GSI. R.C. 2907.05(D); State v. Timm,

5th Dist. Delaware No. 21 CAA 11 0060, 2022-Ohio-3010.

{¶35} We find appellee produced sufficient evidence to prove appellant acted with

purpose to compel the victim to engage in sexual contact with appellant by force. Further,

we find this is not an “exceptional case in which the evidence weighs heavily against the

conviction.” State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The trier of

fact was presented with two conflicting versions of events. Because the trier of fact sees

and hears the witnesses and is particularly competent to decide whether, and to what

extent, to credit the testimony of particular witnesses, an appellate court must afford

substantial deference to its determinations of credibility. Barberton v. Jenney, 126 Ohio

St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047. In other words, “[w]hen there exist two fairly

reasonable views of the evidence or two conflicting versions of events, neither of which

is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th

Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, quoting State v. Gore, 131 Ohio App.3d

197, 722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate court will leave the issues of

weight and credibility of the evidence to the fact finder, as long as a rational basis exists

in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-

Ohio-1282. The trial court heard and witnessed testimony from both J.R. and appellant. Stark County, Case No. 2023 CA 00019 12

We find no evidence in the record to support a finding that the trial court lost its way in

finding J.R. credible.

{¶36} Based on the foregoing, we find the finding of delinquency based upon a

violation of R.C. 2907.05(A)(1) is not against the manifest weight or sufficiency of the

evidence. Appellant’s assignments of error are overruled.

{¶37} The February 6, 2023 judgment entry of the Stark County Court of Common

Pleas, Juvenile Division, is affirmed.

By Gwin, P.J.,

Delaney, J., and

King, J., concur [Cite as In re D.G., 2023-Ohio-3859.]