State. Todd

Ohio Court of Appeals

State. Todd

2017 Ohio 4355

CourtOhio Court of Appeals

DecidedJune 19, 2017

Docket6-16-11

StatusPublished

Cited by1 cases

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Bluebook

State. Todd, 2017 Ohio 4355 (Ohio Ct. App. 2017).

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Opinion

[Cite as State. Todd, 2017-Ohio-4355.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-16-11

v.

THOMAS JOSEPH TODD, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. CRI 2016 2083

Judgment Affirmed

Date of Decision: June 19, 2017

APPEARANCES:

Michael J. Short for Appellant

Jason M. Miller for Appellee Case No. 6-16-11

SHAW, J.

{¶1} Defendant-appellant, Thomas Joseph Todd, appeals the November 8,

2016 judgment of the Hardin County Court of Common Pleas journalizing his

conviction by a jury for four counts of Gross Sexual Imposition, in violation of R.C.

2907.05(A)(4), each a felony of the third degree, and one count of Disseminating

Matter Harmful to Juveniles, in violation of R.C. 2907.31(A)(1),(F), a felony of the

fourth degree, and sentencing him to a non-mandatory aggregate prison term of

twelve years. On appeal, Todd assigns as error his claim that the jury’s verdict

convicting him of the offenses is against the manifest weight of the evidence, and

his claim that the broad range of dates used by the prosecutor in the indictment and

bill of particulars prejudiced the preparation of his defense.

Procedural History

{¶2} On June 20, 2016, the Hardin County Grand Jury returned a sixteen

count indictment against Todd alleging that he committed nine counts of Gross

Sexual Imposition involving sexual contact with a person less than thirteen years of

age, in violation of R.C. 2907.05(A)(4), each a felony of the third degree, three

counts of Attempted Rape of a person less than thirteen years old, in violation of

R.C. 2923.02(A) and 2907.02(A)(1)(b), each a felony of the second degree and with

the specification that Todd “was sixteen years of age or older at the time of the

commission of the offense and that, had the offender completed the rape that was

-2- Case No. 6-16-11

attempted, the offender would have been guilty of a violation of Division (A)(1)(b)

of § 2907.02 of the Revised Code.” See R.C. 2941.1418. The indictment also

alleged that Todd committed one count of Contributing to the Unruliness of a Child,

in violation of R.C. 2919.24(A)(2), a misdemeanor of the first degree, two counts

of Disseminating Matter Harmful to Juveniles, in violation of R.C. 2907.31(A)(1),

(F), both felonies of the fourth degree, and one count of Rape of a person less than

thirteen years of age, in violation of R.C. 2907.02(A)(1)(b), a felony of the first

degree. Todd subsequently pled not guilty to the charges in the indictment.

{¶3} On July 11, 2016, the prosecution filed a bill of particulars upon Todd’s

request.

{¶4} On September 29 and 30, 2016, the trial court conducted a two-day jury

trial. The State presented the testimony of six witnesses including the testimony of

twelve-year-old A.D., the alleged victim in the case. After the presentation of the

State’s case-in-chief, Todd moved for acquittal on all counts pursuant to Crim.R. 29

and raised an issue regarding the lack of specificity of the dates for when the charged

offenses allegedly took place in the indictment and bill of particulars. The trial court

granted Todd’s Crim.R. 29 motion on Count One of the indictment, second degree

Attempted Rape, and dismissed the charge. The State also moved to dismiss Count

Three, Gross Sexual Imposition, Count Six, Gross Sexual Imposition, and Count

11, Attempted Rape.

-3- Case No. 6-16-11

{¶5} The remaining twelve counts listed in the indictment proceeded to the

jury for deliberation. The jury found Todd guilty of four counts of Gross Sexual

Imposition and one count of Disseminating Matter Harmful to Juveniles. The jury

returned a verdict of not guilty on the other seven counts. The trial court

subsequently imposed a non-mandatory aggregate prison term of twelve years.

{¶6} Todd filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE CONVICTIONS ARE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. 2

THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE THE INDICTMENT AND BILL OF PARTICULARS WAS [SIC] INSUFFICIENTLY SPECIFIC AS TO DATES OF THE ALLEGED OFFENSES.

First Assignment of Error

{¶7} In his first assignment of error, Todd argues that the jury’s convictions

are against the manifest weight of the evidence. Specifically, Todd claims that the

jury lost its way in finding A.D.’s testimony credible to convict him of four counts

of Gross Sexual Imposition and one count of Disseminating Matter Harmful to

Juveniles.

-4- Case No. 6-16-11

Standard of Review

{¶8} In reviewing whether the trial court’s judgment was against the

manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and

examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387

(1997). In doing so, this Court must review the entire record, weigh the evidence

and all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “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.

{¶9} “Weight of the evidence concerns ‘the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than

the other. It indicates clearly to the jury that the party having the burden of proof

will be entitled to their verdict, if, on weighing the evidence in their minds, they

shall find the greater amount of credible evidence sustains the issue which is to be

established before them. Weight is not a question of mathematics, but depends on

its effect in inducing belief.’ ” (Emphasis omitted.) Id., quoting Black’s Law

Dictionary 1594 (6th Ed.1990).

{¶10} Furthermore, “[t]o reverse a judgment of a trial court on the weight of

the evidence, when the judgment results from a trial by jury, a unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is

-5- Case No. 6-16-11

required.” Thompkins at paragraph 4 of the syllabus, citing Ohio Constitution,

Article IV, Section 3(B)(3).

Relevant Statutes

{¶11} Todd was convicted of four counts of Gross Sexual Imposition, which

is codified in R.C. 2907.05(A)(4), and reads, “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: * * * The other

person, or one of the other persons, is less than thirteen years of age, whether or not

the offender knows the age of that person.”

{¶12} “Sexual Contact” is statutorily defined in R.C. 2907.01(B) as meaning

“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.” Whether touching is done

for the purpose of sexual gratification is a “question of fact to be inferred from the

type, nature, and circumstances surrounding the contact.” In re K.C., 1st Dist.

Hamilton No.

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