State v. Brand

2023 Ohio 557, 209 N.E.3d 762

• Court: Ohio Court of Appeals
• Decided: February 27, 2023
• Docket: CA2021-08-093
• Status: Published

Opinion

[Cite as State v. Brand, 2023-Ohio-557.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-08-093

: OPINION - vs - 2/27/2023 :

MICHAEL P. BRAND, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2020-10-01286

Michael T. Gmoser, Butler County Prosecuting Attorney, and Stephen M. Wagner, Assistant Prosecuting Attorney, for appellee.

Holcomb & Hyde LLC, and Tyler W. Nagel and Richard A. Hyde, for appellant.

BYRNE, J.

{¶1} Michael P. Brand appeals from his conviction for gross sexual imposition in

the Butler County Court of Common Pleas. For the reasons set forth below, we affirm

Michael's conviction.1

1. We use first names for Michael and his wife to avoid confusion. See Wiseman v. Wiseman, 12th Dist. Madison No. CA2022-03-004, 2022-Ohio-3689, ¶ 1, fn. 1. Butler CA2021-08-093

I. Procedural and Factual Background

A. Indictment

{¶2} A Butler County grand jury indicted Michael on two counts of gross sexual

imposition ("GSI"), both in violation of R.C. 2907.05(A)(4). Count One alleged that Michael

had sexual contact with the victim, who was less than thirteen years of age at the time of

the offense. Count Two set forth the same allegations, but concerned a second, separate

incident of alleged sexual conduct that allegedly occurred on the same day as the first

offense. The indictment arose from allegations that Michael had sexual contact with his

daughter, Rose, twice in the same night.2 The indictment alleged that the incidents occurred

on or about February 13, 2009—that is, 11 years earlier—when Rose was 12 years old.

{¶3} Prior to the trial, the state requested leave to amend the indictment to expand

the alleged offense dates to between February 6 and February 13, 2009. The trial court

granted the request. Otherwise, the allegations of the indictments remained the same.

B. Jury Trial

{¶4} The matter proceeded to a jury trial. Prior to voir dire, the court heard the

parties' arguments on Michael's request—raised in a pretrial motion and again orally before

the court—for jury instructions on "mistake of fact" and "accident."3 After reviewing the

parties' written and oral arguments on these requested instructions the court indicated that

it would not instruct the jury on "mistake of fact" or "accident."

{¶5} A jury was empaneled and the trial proceeded. We will summarize the trial

2. "Rose" is a pseudonym adopted in this opinion for purposes of privacy and readability. See In re A.P., 12th Dist. Warren No. CA2022-01-002, 2022-Ohio-3181, ¶ 2, fn.1; see also Ohio Constitution, Article I, Section 10a(A)(1) (requiring that victims in the criminal and juvenile justice systems "be treated with fairness and respect for the victim's safety, dignity, and privacy"). (Emphasis added.) We have also adopted a pseudonym, "Allison," for Rose's sister, in order to provide further protection for Rose's privacy.

3. Michael also filed a pretrial motion requesting a jury instruction on sexual imposition under R.C. 2907.04(A)(4), which he argued was a lesser included offense of GSI. This requested instruction was not discussed until later in the trial, as explained further below.

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testimony below.

1. Testimony of Rose

{¶6} Rose testified that she was born in May 1996. At the time of trial, she had

recently turned 25 years old. Rose testified that Michael was her father, and that Katherine

Brand ("Kathie") was her mother. Rose testified that she had one sibling, Allison, who was

29 years old.

{¶7} Rose testified that Michael and Kathie lived at 1339 Avalon Drive in

Middletown, Ohio. This was also Rose's childhood home. She lived there until June 2019,

when she moved out.

{¶8} Rose testified concerning the layout of the family's home. It is a small, Cape

Cod-style house. She reviewed various state's exhibits depicting the layout of the home,

which included a bird's-eye rendering of the floor plan as well as photographs of the interior

of the home.

{¶9} Rose and Allison shared a bedroom located on the home's first floor. If one

walked into that bedroom as it existed in 2009, one would walk into Rose's twin-sized bed.

Allison slept in a separate bed, next to Rose's bed.

{¶10} Rose and Allison's bedroom adjoined the only functioning bathroom in the

home. If one exited the bathroom and turned immediately to the left, one would be facing

Rose and Allison's bedroom and could enter it by walking a few steps forward. If, instead,

one exited the bathroom, walked several paces forward, and then turned to the left, one

would be facing a stairwell leading up to the home's second floor.

{¶11} The second floor contained a bedroom and a non-functioning ensuite

bathroom. In 2009, the second-floor bedroom was where Michael and Kathie slept. To

move from the second-floor bedroom to the bathroom on the first floor, one would leave the

bedroom, travel down a short hallway, turn a corner, walk down a flight of stairs, turn right,

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walk several feet, and enter the bathroom.

{¶12} Rose testified that on a Thursday evening in February 2009, Michael was out

of town on a business trip. That night, Rose was sleeping in the second-floor bedroom with

Kathie. Michael came home from his business trip in the middle of the night. Rose then

moved downstairs to her and Allison's bedroom. She fell asleep.

{¶13} According to Rose, what happened next occurred in the early morning hours

of Friday, February 13, 2009, in Rose and Allison's bedroom. Rose testified that Michael

came into the bedroom and "laid on top of me." Supporting himself with his left arm, Michael

reached under Rose's chest but could only "get maybe a couple of inches under me"

because Rose was laying on her stomach. "He then proceeded to rub my butt and push

his fingers under my pants, only being able to make it under my pants and above my

underwear." Michael then placed "his fingers above my underwear and push it into my

vagina." Rose further explained that Michael "stuffed" his finger into her vagina, "pushed

his finger in" and "moved it around inside my vagina" with "my underwear between myself

and his finger." When his hand was on her buttocks, he was rubbing it, in "circular motions."

{¶14} Rose testified that she feigned beginning to wake up. Michael "moved and

pulled his hand out and brushed up against me." At that point, she felt what she now, as

an adult, recognized as Michael's erection.

{¶15} Michael got up, left the room, and went into the bathroom. Three to five

minutes later he came back into the bedroom and laid on top of Rose again. He "tried to

rub my butt" and "tried to reach his hand underneath towards my vagina, but I pushed my

hips into the bed so that he couldn't. And I moved around again to act like I was waking up

so that he would leave, and he did." Rose explained that during this second incident,

Michael could not touch her vagina only due to her pushing her hips into the bed. Rose

then heard Michael go upstairs to his bedroom.

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{¶16} Rose testified she tried to wait 30 minutes for Michael to fall asleep, so that

she could then tell her mother what happened. She was unable to wait a full 30 minutes.

Her stomach was "really upset." She went upstairs, woke Kathie, and had Kathie come

downstairs. Kathie asked her what was wrong. Rose told her, "He touched me." Kathie

asked, "Who touched you?" Rose replied, "Dad."

{¶17} Kathie did not ask her where Michael had touched her. Rose said that she

did not offer that information because she was crying. Rose further testified that she never

discussed with Kathie where on her body Michael touched her at any point in time before

trial. Rose said that Kathie hugged her and told her to go to bed and that "I'll be right back."

Kathie then, "stormed up the stairs." Rose heard her knock a suitcase off the stairs on her

way up. Kathie was upstairs for 10 or 15 minutes. Rose could hear talking.

{¶18} Kathie then came back downstairs and brought Rose out of her bedroom so

that she would not wake Allison. Kathie told Rose that Michael would be writing her a letter

and that he was going to go to work early that morning. Rose recalled Kathie telling her

"that I wasn't going to be telling my sister what had happened."

{¶19} Rose stated that she went to school later that morning. Kathie picked her up

from school and took her back home. There, Kathie presented her with a letter that Michael

had written. It was sealed in an envelope. Rose opened it and tried to read it but was not

able to read it because she was crying so much. She recalled the first line said something

to the effect of, "I'm sorry I've betrayed your trust." Kathie took the letter and read the rest

of it to Rose. Rose could not remember most of it but did recall a line saying that "I would

understand when I was older, and that God would forgive him for what he had done."

{¶20} Rose testified that she kept this letter in the top drawer or her dresser for a

"long time." Later, she hid it "on top" of Allison's dresser because Allison never moved

anything on top of her dresser. Then she moved the letter to a place "underneath the table

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runner on our dining room table where we always put mail." She lost track of the letter after

that.

{¶21} After reading Michael's apology letter, Kathie asked Rose whether she

wanted to stay at the house that weekend or go to her grandparents. Rose chose to go to

her grandparents, who lived in Cincinnati. She stayed with her grandparents through

Sunday evening.

{¶22} On Sunday evening, Kathie and Michael retrieved Rose from her

grandparents. Kathie sat in the backseat with her, which ordinarily "never happened." Rose

recalled "shaking so bad that I had to sit on my hands." Michael did not talk to her during

the car ride until the very end. She recalled him reiterating some of the comments he had

made in the apology letter about how he was sorry, that it was a mistake, and that he would

be forgiven.

{¶23} Rose said that after February 13, 2009, she continued sleeping in the room

she shared with Allison for a few weeks. Then she moved to the basement where she "had

a little more control of my surroundings."

{¶24} Rose stated that she recalled discussing the incident only once more after it

occurred. Specifically, she recalled talking to Kathie about it immediately before her

thirteenth birthday after she had requested to have a slumber party.

{¶25} Rose never talked to Allison about what happened until the summer of 2019,

ten years later. The two had gone to see a performance of the musical "Cats" in downtown

Cincinnati. They were having a discussion, and something prompted Allison to ask Rose if

she recalled "a letter." Initially, Rose denied knowing what Allison was talking about, but

then eventually "broke down crying" and revealed what Michael had done.

{¶26} As to why or how she recalled ten years later that the incident had occurred

specifically on February 13, 2009, Rose testified that a week or two after the incident she

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"felt like it was something important that I needed to remember when it happened." She

explained that she also had an attraction to even numbers and the fact that the date was

an odd number "really stood out to me and made it stick in my mind."

2. Report to Police and Recorded Conversation

{¶27} Rose reported the incident to the Middletown Police Department in April 2020.

The police thereafter arranged for Rose to place a recorded "controlled call" to Michael so

she could confront him with her allegations. The state played a recording of the controlled

call at trial.

{¶28} Rose began the conversation by telling Michael that she was in therapy and

that she had some questions she needed answered. She then asked, "Why would you do

that to me?" Though Rose did not provide any context as to what she was referencing,

Michael immediately, and without seeking clarification, stated, "It was not my intention * * *

I will tell you the same thing I told you the night it happened." Rose objected that Michael

did not tell her anything or speak to her the night of the incident, and Michael agreed.

Michael then stated:

I will tell you the same thing I told your mother the night it happened. I remembered going down to go to the bathroom. I remember coming out of the bathroom and going into the bedroom thinking it was our bedroom, your mom and mine. I knew something wasn't right. * * * I climbed in the bed. I knew something wasn't right. I knew something wasn't right. In my memory, like, 10 to 15 seconds 20 seconds later, it's like, I said, no, this isn't this isn't [sic.] right. And got out of bed, thinking that was my bedroom, with Kathie, and went up to bed.

Upon further questioning by Rose, Michael admitted, "I remember crawling in the bed

behind somebody that I thought was Kathie." When Rose asked if Michael remembered

trying to reach in her pants, Michael stated, "I remember doing, I remember groping on top,

between, on top of your clothes, and that was about the time, I, you know, my mind said

this isn't right, something's wrong here, I'm not in the right place."

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3. Objection to Defense E-mail Exhibit

{¶29} During Rose's cross-examination, defense counsel attempted to question her

concerning an e-mail she allegedly sent to Michael on February 16, 2009—that is, three

days after the date on which Rose testified the incident occurred. In the e-mail, Rose asked

Michael to allow her to keep a cat. We will refer to this e-mail as the "Cat E-mail."

{¶30} The state objected on relevancy grounds. Defense counsel stated that the

Cat E-mail was relevant to show that the incident did not occur three days earlier, on

February 13, 2009. The trial court sustained the state's objection, found the Cat E-mail

irrelevant, and excluded it from the trial. Defense counsel proffered the Cat E-mail exhibit

outside the presence of the jury, so the Cat E-mail is part of the record on appeal.

4. Testimony of Allison Brand

{¶31} Allison Brand testified that in the summer of 2019, Rose took her to see the

musical "Cats." While they were on their way home, Allison made a comment about Michael

always trusting Rose. This comment triggered a memory that Allison had from when she

was a teenager. Allison recalled putting clothes away and finding a small white envelope

that had Rose's name on it, written in Michael's handwriting. She remembered opening the

envelope and starting to read the letter. She recalled the first line, which said, "I'm sorry

I've broken your trust." Allison then became "very uncomfortable." She put the envelope

back in the drawer where she found it. She never asked Rose about it until the car ride

home from the musical in 2019.

{¶32} Allison stated that Rose was initially unresponsive concerning the letter. But

Allison continued to press her and eventually Rose "broke down" and told her that she was

molested. Rose said that Michael had come into the bedroom in the middle of the night,

had put his hands down her pants and tried to touch her vagina, and that she kept trying to

stop it by pushing her hips into the bed.

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{¶33} Allison confronted Michael and Kathie with these allegations a few months

later. She told them that she knew what Michael had done and that she knew that Kathie

had also known about it. Michael initially seemed puzzled. But after Allison confronted him

with specifics, such as Rose's age when the incident occurred, he was no longer confused.

Kathie "seemed very upset." Michael looked at Kathie and said, "there was one event that

she [Kathie] knew about." Allison told Michael that it did not matter how many times it

happened and that he had molested his daughter while Allison was sleeping in the same

bedroom and that their mother had known about it.

{¶34} Following Allison's testimony, the state rested its case. The defense then

called Kathie Brand as its first witness.

5. Testimony of Kathie Brand

{¶35} Kathie Brand testified that she believed that the incident occurred on May 21,

2010, when Rose was thirteen years old—not on February 13, 2009, the date testified to by

Rose. According to Kathie, Michael had just returned from a trip to North Carolina. Kathie

believed that only Kathie and Rose were home. Kathie initially stated that Allison was away

at college. However, on further questioning, Kathie stated that Allison was still in high

school but, for some uncertain reason, was not at home even though it was a school night.

{¶36} Kathie recalled waking up when Michael went to the bathroom. Five minutes

later, he came back to bed. Then, 25 minutes later, Rose came up to the bedroom, tapped

her on the shoulder and said she needed to talk to Kathie "now."

{¶37} Kathie and Rose went down to the dining room. Kathie described Rose as

"scared," "shaking," and "really visibly upset." They stood there and Rose said to Kathie,

"you always said if anybody ever touched us inappropriately, to let you know." Kathie

responded, "Who was it? What happened? Rose said, "It was Dad." Kathie testified that

she asked Rose where Michael had touched her and Rose said that "he touched her breast,

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and that was it." Kathie testified that Rose told her that Michael "didn't go below the belt,

he did not go under any of her clothes."

{¶38} Kathie then went upstairs to confront Michael. She yelled and screamed at

him. After hearing Michael's explanation, Kathie went back down and stayed with Rose for

the rest of the night until it was time to go to school. Kathie picked Rose up from school

and took her to Kathie's parents' home for the weekend.

{¶39} On cross-examination, Kathie confirmed that Rose had used the word

"breast" to describe where Michael touched. Kathie confirmed that it was Michael's idea to

write the apology letter because "he wanted to talk to her," but "she didn't want to talk to

him." Kathie remembered that in the letter, Michael said he was sorry, and that he did not

know what came over him.

{¶40} Kathie admitted that she stated she could not remember Rose's age when

she was interviewed by a police detective and was told that Rose was 12 at the time of the

incident. She also admitted that she thought about leaving Michael but did not do so

because she was worried that she could not financially support the children on her own

part-time salary. She further admitted that she told the detective that after what happened

with Rose, she felt like it was her job, as the mom, to be a "buffer" between Rose and her

husband and that this was "to keep everybody safe." Nonetheless, Kathie believed that

what occurred was an "accident." Kathie explained that it was an "accident" because

Michael "thought he was climbing into bed with me." Kathie admitted that she never told

the police detective or Rose that Michael thought he was climbing into the bed with her and

that the first time she ever said this to anyone was during the trial.

6. Testimony of Michael Brand

{¶41} Michael Brand testified that since 1988 he had been employed as a

mechanical engineer. His job required him to perform field support and customer support

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and required considerable travel. He used calendars as planners for his work schedule.

He testified that he went back and looked through his calendars between 2008 and 2012.

He produced and described two exhibits, consisting of his calendars for February 2009 and

May 2010.

{¶42} Michael's February 2009 calendar indicates that on Monday, February 9,

2009, he flew out of the Cincinnati/Northern Kentucky airport for a visit to "Cork Equipment."

He was there most of the week but was back in the local office at 1:30 p.m. on Thursday

February 12, 2009. The next day, February 13, 2009, the calendar indicates "Lafarge Visit."

Michael testified that Lafarge was in Kentucky and that he would have been on site at 7:00

a.m. that day and it would have taken him approximately one hour to drive there from

Middletown.

{¶43} Michael's May 2010 calendar indicated that on Monday May 17, 2010, he

traveled to an out-of-state job site and was there through Wednesday, May 19, 2010. He

traveled home on Thursday May 20, 2010, and arrived in Cincinnati at 2:30 p.m. Michael

stated that he would have gone to the office upon arriving back in Cincinnati and then

eventually would have gone home in the afternoon.

{¶44} Michael testified that the incident with Rose occurred the overnight of May 20-

21, 2010, when Rose was thirteen years old, and not in February 2009, when Rose was 12.

He stated that he knew this because Allison was not home at the time. However, Michael

was unclear on why he believed Allison was not home at the time and unclear on why

Allison's absence would have been significant with regard to determining the date of the

incident.

{¶45} Michael testified that upon arriving home on May 20, 2010, he would have

worked around the house until it was dark and then gone to bed before midnight, around

10:00 p.m. At that time, his bedroom was on the second floor. The second floor ensuite

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bathroom was not operational at the time; it had ceased working in 2003.

{¶46} Michael testified that he remembered needing to go to the bathroom. He "got

up, went down to the bathroom, went to the bathroom, came out of the bathroom, thought

that that was my bedroom where it used to be on the first floor." He continued, stating that

he "just went in, crawled in bed with [someone] I thought was my wife." Michael testified

that he

went to spoon up behind her, put my arm over her. She would typically grab my hand and clutch it to her – you know, to her chest, heart area, so I was reaching for her hand, trying to find her hand so that she'd do that. At some point in that process, realized that I was not in my room. I was in my daughter's room, in bed with my daughter. [I then] let out a relatively surprised "no." [I] got out of bed, went upstairs, crawled back in bed with my wife, and went back to sleep.

Michael acknowledged that Rose was in the bed and stated that he "put [his] arm around

her midsection" and "in the process of searching for [his] wife's hand," he "touched [Rose's]

breast." Michael testified that the touching "was on top of the clothing." He vehemently

denied that the touching was for the purposes of sexual arousal and denied having an

erection. He denied any contact with Rose's vagina or buttocks.

{¶47} After returning to bed in his bedroom, the "next thing" Michael "remember[ed]

was waking up to my wife screaming her lungs out at me." Michael said he told her what

happened but "I couldn't explain why I thought [Rose's room] was my bedroom, and I didn't

expect [Kathie] to believe me." Kathie told him that Rose was "crying and she's shaking."

{¶48} Michael stated that he wanted to apologize to Rose, but that Kathie said that

Rose did not want to talk to him. Michael asked Kathie if he could write a letter and she

said he could, but Rose may not read it. So, he "wrote a letter of apology to [Rose], put it

in an envelope, [and] gave it to [Kathie]." He went to work the next day without seeing either

Kathie or Rose.

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{¶49} Michael testified that Rose avoided him for a "good few weeks" and "she didn't

want to be in close, you know, proximity to me for a period of time after that, but over time

that lessened."

{¶50} On cross-examination, the state questioned Michael extensively concerning

his claim that he accidentally entered Rose's bedroom and about the path from his bedroom

to the first-floor bedroom. Michael stated that he slept on the far side of the king-size bed

in the second-floor bedroom. To go to the first-floor bathroom, he would need to walk

around the bed and then walk down an eight-foot hallway to reach a stairway with about 15

stairs. Michael admitted that upon leaving the bathroom and entering what he allegedly

believed to be his bedroom (that is, Rose and Allison's bedroom), he did not have to walk

up a stairway, walk down a hallway, or walk around a king-size bed. He also admitted that

he would have necessarily climbed into Rose's twin bed, rather than his king-size bed.

{¶51} Michael testified that he and Kathie had previously used Allison and Rose's

bedroom on the first floor as their bedroom for about six years. However, they had not used

that bedroom as their own for almost 15 years at the time of the incident.

7. Jury Instructions, Verdict, and Motion for New Trial

{¶52} The parties discussed jury instructions at the conclusion of the state's case.

Michael again requested jury instructions on "mistake of fact" and "accident," arguing that

he should be able to argue that his alleged "accident" or "mistake" of getting into his

daughter's bed negated a guilty mental state. The state again opposed this request. The

trial court agreed with the state and denied Michael's request for "mistake of fact" or

"accident" jury instructions for the same legal reasons it denied those instructions prior to

the commencement of trial, but also because, even if the legal defects with the instructions

were not present, "the Court finds that it would be factually inappropriate to submit those

instructions to the jury."

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{¶53} Michael also requested jury instructions on sexual imposition under R.C.

2907.06(A)(1) and sexual imposition under R.C. 2907.06(A)(4). Michael argued that these

two offenses were lesser included offenses of GSI. The trial court denied these requested

instructions, finding that, under the circumstances, jury instructions for sexual imposition

under either subsection were not appropriate because those offenses required proof of

different elements not required under the two GSI offenses charged by the state.

{¶54} After deliberating, the jury returned a guilty verdict on Count One, GSI. The

jury returned a not guilty verdict on Count Two, GSI. The trial court sentenced Michael to

a term of community control.

{¶55} Almost two weeks after the verdict, Michael filed a motion seeking a new trial

pursuant to Crim.R. 33(A)(1) and (5). Michael argued he should be given a new trial

because the trial court erroneously excluded Rose's Cat E-mail and denied his requested

jury instructions on mistake of fact, accident, and sexual imposition. The trial court denied

the motion for a new trial.

{¶56} Michael appealed, raising five assignments of error.

II. The GSI Statute

{¶57} Before addressing Michael's assignments of error, we pause to note that the

GSI statute describes five different situations which constitute the crime of GSI. R.C.

2907.05(A)(1)-(5). Michael was convicted under R.C. 2907.05(A)(4), which provides that

"No person shall have sexual contact with another, not the spouse of the offender * * * when

any of the following applies * * * (4) The other person * * * is less than thirteen years of age,

whether or not the offender knows the age of that person."

III. Law and Analysis

A. Excluded Cat E-mail

{¶58} Michael's Assignment of Error No. 1 states:

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{¶59} THE TRIAL COURT ERRED IN EXCLUDING ADMISSIBILE AND

PROBATIVE EXCULPATORY EVIDENCE.

{¶60} Michael contends that the trial court abused its discretion when it excluded

the Cat E-mail exhibit when he sought to introduce it during Rose's cross-examination. The

Cat E-mail was an e-mail allegedly sent by Rose to Michael on February 16, 2009—that is,

three days after the date on which Rose believed the incident with Michael occurred. In the

Cat E-mail, Rose requested that Michael allow the family to keep a pet cat.

{¶61} Michael contends that the Cat E-mail was relevant to his defense because it

undermined Rose's credibility as to when the incident occurred. He argues there existed a

substantial likelihood that the outcome at trial would have been different had he been able

to show the Cat E-mail to the jury. Michael further contends that the trial court's ruling

violated his Confrontation Clause rights under the U.S. Constitution because the ruling

prevented him from questioning Rose concerning the Cat E-mail.

1. Applicable Law and Standard of Review

{¶62} "Evid.R. 402 provides that all relevant evidence is generally admissible."

State v. Singh, 12th Dist. Butler No. CA2021-12-158, 2022-Ohio-3385, ¶ 45. "Relevant

evidence is defined as evidence 'having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.'" State v. Geddes, 12th Dist. Fayette No. CA2021-

01-001, 2021-Ohio-4115, ¶ 13, quoting Evid.R. 401.

{¶63} "As a trial court has broad discretion in the admission or exclusion of

evidence, unless the trial court has clearly abused its discretion and the defendant has been

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materially prejudiced thereby, an appellate court will not disturb the trial court's decision." 4

State v. Lark, 12th Dist. Fayette No. CA2018-03-004, 2018-Ohio-4940, ¶ 35. "An abuse of

discretion is more than an error of law or judgment." State v. Jackson, 12th Dist. Madison

No. CA2019-03-006, 2020-Ohio-2677, ¶ 43. "Rather, it suggests that the trial court's

decision was unreasonable, arbitrary, or unconscionable." State v. Worship, 12th Dist.

Butler No. CA2020-09-005, 2022-Ohio-52, ¶ 12. "An abuse-of-discretion standard of review

is a deferential review." State v. Green, 12th Dist. Clermont No. CA2019-07-061, 2020-

Ohio-1552, ¶ 27. "A reviewing court may not override a trial court's determination that

certain evidence is relevant or irrelevant simply because it disagrees with the trial court."

Geddes at ¶ 14.

{¶64} However, to the extent that Michael argues that the trial court's decision to

exclude the Cat E-mail violated his Confrontation Clause rights, we apply a de novo

standard of review. State v. Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-

4316, ¶ 20 (explaining that "a trial court's ruling as to the admissibility of evidence will not

be reversed absent an abuse of discretion," but that "we review a claim that a criminal

defendant's rights have been violated under the Confrontation Clause de novo").

2. Legal Analysis

{¶65} The Cat E-mail is reproduced below in full:

From: Kathie Brand Sent: Monday, February 16, 2009 9:43 PM To: Mike Brand

4. Michael argues that we should apply a de novo standard of review when analyzing the trial court's decision to exclude the Cat E-mail, rather than an abuse of discretion standard of review. In support, Michael cites State v. Wright, 4th Dist. Lawrence No. 16CA24, 2017-Ohio-9041, ¶ 25. In Wright, the Fourth District explained that "When * * * an appellant alleges that a trial court's evidentiary ruling was based on an erroneous standard or a misconstruction of the law, an appellate court reviews the trial court's evidentiary ruling using a de novo standard of review." Id. (Quotations removed.) The Fourth District applied de novo review because the trial court's admissibility decision was based on its misapplication of the law regarding the timing of objections. Id. at ¶ 27. Here, Michael has not argued that the trial court applied "an erroneous standard or a misconstruction of the law" that affected its admissibility decision, so we apply an abuse-of-discretion standard when reviewing the trial court's decision regarding relevance.

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Subject: the cat

dear dad,

I am just wondering if you would give the cat a chance because you never keep an open mind and if i get rid of this cat it will feel if sam is dieing all over again and I couldnt go throught that pain. Mom and I have cried because we could not imagine giving her too paws and Mom feels bad because she cant do anything to make me feel better. I know that I cant go tomorrow to give the cat to paws because I wouldnt stop crying. I am just asking you to give her chance because we all lover her and I would at least like to give her to someone we know instead of some we dont even known and I dont think that she will do very well in the home she would be going to because she doesnt get along with other cats. Please dont let her go I just whant you to give her a chance I willing to buy every thing she would need and I would vacume every other day and I would just and vacume and alwas clean up my side of the room no matter what. Please just give her a chance.

Love, [Rose]

(Errors in original.)

{¶66} Michael contends that the content, tone, and timing of the Cat E-mail casts

doubt on Rose's credibility with regard to her assertion that the incident occurred on

February 13, 2009. We disagree.

{¶67} First, the content of the Cat E-mail is irrelevant to whether Michael had sexual

contact with Rose several nights earlier. The text of the Cat E-mail does not mention or

relate to the incident, and instead is nothing more than a child's attempt to convince a

resistant parent to allow her to keep a pet cat. The content of the Cat E-mail does not make

it relevant.

{¶68} Second, Michael argues that the tone of the e-mail, and its use of the phrase,

"Love, [Rose]" is inconsistent with Rose's assertion that the incident occurred three days

prior to the day she sent the Cat E-mail. In other words, Michael suggests that Rose would

not have sent him correspondence with the tone used in the Cat E-mail so soon after the

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incident. However, the tone of the Cat E-mail is not probative to the issue of whether

Michael had sexual contact with Rose several days earlier. It is commonly understood that

children do not behave like adults would under the same circumstances, and they do not

communicate or write like adults. A child signing "Love" is nothing more than a standard

sign-off, similar to the traditional "Dear" at the beginning of a letter. Any attempt to glean

clues about Rose's psychological or emotional state at the time Rose sent the Cat E-mail

would be purely speculative. The tone of the Cat E-mail is therefore irrelevant.

{¶69} Third, the timing of the Cat E-mail does not make it relevant, for the same

reasons that we have explained the content and tone of the Cat E-mail do not make the e-

mail relevant.

{¶70} In sum, it was not an abuse of discretion for the trial court to conclude that the

Cat E-mail—a request by a child to keep a pet—does not make it any less or more likely

that Michael committed GSI several days earlier.

{¶71} Even if we might have been inclined to allow the jury to consider the Cat E-

mail and even if the trial court had abused its discretion in denying admission of the Cat E-

mail, Michael is still required to prove that he was "materially prejudiced" by the exclusion

of the e-mail in order for us to disturb the trial court's decision. State v. Jackson, 12th Dist.

Madison No. CA2019-03-006, 2020-Ohio-2677, ¶ 43. "As a legal term, “prejudice” is simply

'[d]amage or detriment to one's legal rights or claims.'" State v. Crotts, 104 Ohio St.3d 432,

2004-Ohio-6550, ¶ 23, quoting Black's Law Dictionary 1218 (8th Ed.1999).

{¶72} Michael proffered the Cat E-mail, but he failed to proffer the cross-

examination of Rose that he would have conducted. Michael could have cross-examined

Rose regarding the Cat E-mail outside the presence of the jury to make a record for our

review to determine if he sustained material prejudice as a result of the trial court's exclusion

of the e-mail. In the absence of such a proffer, we simply review the record to determine if

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Michael was materially prejudiced.

{¶73} We cannot find any support in the record for the conclusion that admission of

the Cat E-mail would have changed the trial outcome. Michael never claimed that Rose

was lying about an incident occurring in her bed involving him. Instead, he promoted his

alternative version of events to suggest that the incident occurred in May 2010, when Rose

was thirteen, and only involved what amounted to an inadvertent brushing of Rose's breast.

The jury weighed Michael's testimony and evidence against Rose's contrary testimony and

evidence, which would necessarily include her stated reasons for being so confident in the

date of the offense. The jury found Rose credible and did not find Michael or Kathie credible.

See State v. Glover, 12th Dist. Brown No. CA2015-01-002, 2015-Ohio-3707, ¶ 37 ("[A]s the

trier of fact, the jury was free to believe or disbelieve all, part, or none of the testimony of

the witnesses presented at trial"). We do not believe that an irrelevant e-mail written by

Rose when she was a child concerning keeping a pet cat would have been the key to the

jury rejecting Rose's credibility as an adult and accepting Michael's version of events.

{¶74} As a result, even if the trial court had abused its discretion in excluding the

Cat E-mail (which we do not find), we find that Michael still has not shown that the trial

court's exclusion of the Cat E-mail caused him material prejudice requiring reversal. State

v. King, 12th Dist. Warren No. CA2018-04-047, 2019-Ohio-833, ¶ 16 ("As a trial court has

broad discretion in the admission or exclusion of evidence, unless the trial court has clearly

abused its discretion and the defendant has been materially prejudiced thereby, an

appellate court will not disturb the trial court's decision") (Emphasis added.). Because the

Cat E-mail had no effect on Michael's legal claims—damaging, detrimental, or otherwise—

its exclusion is neither "materially" prejudicial, nor prejudicial at all.

{¶75} Michael also argues that the trial court's ruling constituted a violation of his

rights under the Confrontation Clause of the United States Constitution. Specifically, he

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argues that because "counsel could not question Rose regarding the email," he was

prevented from "fully and adequately confronting the lone eyewitness the state produced

against him." In support, Michael cites State v. Mills, 9th Dist. Medina No. 02CA0037-M,

2002-Ohio-7323, ¶ 47, quoting Stow v. Berchenko, 9th Dist. Summit No. 17197, 1995 WL

655929, * 1 (Nov. 8, 1995), for the proposition that the Confrontation Clause requires a

reviewing court to determine "'whether the defendant was denied an opportunity for

effective cross-examination.'" Id.

{¶76} But Michael's quotation from Mills must be understood in context. In Mills, the

Ninth District explained:

[T]he Ohio Supreme Court has held that although the "cross- examination of a witness is a matter of right, * * * the 'extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court.'" State v. Green (1993), 66 Ohio St. 3d 141, 147, 609 N.E.2d 1253, quoting Alford v. United States (1931), 282 U.S. 687, 694, 75 L.Ed. 624, 51 S.Ct. 218. See, also, State v. Palmer (Feb. 8, 1995), 9th Dist. No. 2323-M, 1995 Ohio App. LEXIS 514, at *19. Therefore, a trial court is given considerable discretion "to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Lute (Nov. 22, 2000), 9th Dist. No. 99 CA007431, 2000 Ohio App. LEXIS 5443, at *23, quoting Van Arsdall (1986), 475 U.S. at 679. It is within a trial court's discretion to determine whether testimony is relevant, and an appellate court may not interfere with a trial court's decision absent an abuse of discretion. State v. Younker, 2nd Dist. No. 02 CA1581, 2002 Ohio 5376, at ¶ 9.

As the Confrontation Clause guarantees only an opportunity for effective cross-examination, and not cross-examination to whatever extent the defense may wish, an appellate court reviewing restrictions imposed on the scope of cross- examination must determine "whether the defendant was denied an opportunity for effective cross-examination." Stow v. Berchenko (Nov. 8, 1995), 9th Dist. No. 17197, 1995 Ohio App. LEXIS 4987, at *3, citing State v. Lopez (1993), 90 Ohio App. 3d 566, 575, 630 N.E.2d 32, quoting Delaware v. Fensterer (1985, 474 U.S. 15, 19-20, 88 L.Ed. 2d 15, 106 S. Ct. 292.

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Id. at ¶ 46-47. In other words, while Mills acknowledged that the Confrontation Clause

requires a defendant to have the opportunity for effective cross-examination, it also

acknowledged that this principle does not prevent a trial court from applying its sound

discretion in excluding evidence that is not relevant. Id. The Mills court applied this principle

in analyzing a trial court's ruling that a defendant could not question a police sergeant about

a particular prior statement and the time it took to arrest the defendant. Id. at ¶ 48. The

court explained:

Upon review of the record in this case, we cannot say that Mills was denied the opportunity for effective cross-examination of [the police sergeant]. The trial court imposed reasonable limits on the cross-examination of [the police sergeant] to prevent confusion of the issues and interrogation that was repetitive or only marginally relevant.

(Emphasis added.) Id. On this basis the Mills court overruled Mills' Confrontation Clause

assignment of error. Id.

{¶77} Likewise, in this case the trial court excluded the Cat E-mail because it

determined that the e-mail was not relevant. For the reasons explained above, this was not

an abuse of discretion. Michael was therefore not denied his Confrontation Clause rights.

Mills at ¶ 46-48.

{¶78} For the foregoing reasons, we overrule Michael's Assignment of Error No. 1.

B. Jury Instructions

{¶79} Michael's Assignment of Error No. 2 states:

{¶80} THE TRIAL COURT ERRED IN REFUSING TO GIVE APPELLANT'S

REQUESTED JURY INSTRUCTIONS.

{¶81} Michael argues that the trial court abused its discretion when it refused his

request to instruct the jury on "mistake of fact" and "accident." Michael further argues that

the trial court abused its discretion by denying his request to instruct the jurors on two forms

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of sexual imposition, which he argues are lesser-included offenses of GSI.

1. Standard of Review

{¶82} "Jury instructions are matters which are left to the sound discretion of the trial

court." State v. Carreiro, 12th Dist. Butler No. CA2011-12-236, 2013-Ohio-1103, ¶ 13.

Accordingly, "[w]hen reviewing a refusal to give a requested jury instruction, an appellate

court considers whether the trial court's refusal was an abuse of discretion under the facts

and circumstances of the case." State v. Palmer, 12th Dist. Clermont No. CA2021-07-035,

2022-Ohio-2181, ¶ 14.

{¶83} "Ordinarily, requested instructions should be given if they are correct

statements of the law, applicable to the facts in the case, and reasonable minds could reach

the conclusion sought by the specific instruction." Carreiro at ¶ 14. However, "the trial court

is not required to include proposed jury instructions which are repetitive and would simply

confuse the jury." State v. Ossege, 12th Dist. Clermont Nos. CA2013-11-086 and CA2013-

11-087, 2014-Ohio-3186, ¶ 40. Therefore, "'[i]n reviewing a trial court's decision on jury

instructions, an appellate court's role is to ascertain whether the trial court abused its

discretion in refusing to give a proposed instruction, and, if so, whether that refusal was

prejudicial.'" Id., quoting State v. Ray, 12th Dist. Butler No. CA2012-10-213, 2013-Ohio-

3671, ¶ 25.

2. Proposed Jury Instructions on "Mistake of Fact" and "Accident"

{¶84} We first turn to the question of whether the trial court abused its discretion

when it denied Michael's proposed jury instructions on "mistake of fact" and "accident."

{¶85} "Mistake of fact is a defense if it negates a mental state required to establish

an element of a crime." In re A.C.D., 12th Dist. Warren No. CA2014-06-085, 2015-Ohio-

232, ¶ 15. "Mistake of fact is widely recognized as a defense to specific intent crimes when

the defendant has an honest purpose and the honest purpose provides an excuse for an

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act that would otherwise be deemed criminal." Id. "As such, mistake of fact can, in an

appropriate circumstance, negate a knowing mental state." Id.

{¶86} "Accident" is similar to "mistake of fact," but the concepts are not the same.

Accident "'is a factual defense that denies that the accused acted with the degree of

culpability or mens rea required for the offense, when that involves purposeful conduct.'"

State v. Jones, 12th Dist. Butler No. CA2015-02-020, 2015-Ohio-5029, ¶ 17, quoting In re

F.D., 8th Dist. Cuyahoga No. 102135, 2015-Ohio-2405, ¶ 32. "The concept of accident is

tantamount to a denial that the act was intentional." State v. Fears, 86 Ohio St.3d 329, 340,

1999-Ohio-111. In other words, accident constitutes "an argument that supports a

conclusion that the state has failed to prove the intent element of the crime beyond a

reasonable doubt." State v. Atterberry, 119 Ohio App.3d 443, 447 (8th Dist.1997).

{¶87} To summarize, "mistake of fact" negates a specific intent element of a crime

when a defendant acted intentionally but acted based on mistaken information or belief,

while "accident" negates a specific intent element of a crime when a defendant acted

unintentionally.

{¶88} As a reminder, Michael was convicted of GSI under R.C. 2907.05(A)(4). R.C.

2907.05(A)(4) states, "No person shall have sexual contact with another, not the spouse of

the offender * * * when any of the following applies * * * (4) The other person * * * is less

than thirteen years of age, whether or not the offender knows the age of that person."

{¶89} Michael argues that GSI under R.C. 2907.05(A)(4) is not a strict liability

offense because the mens rea of "purpose" applies to the "sexual contact" element of the

offense. He further argues that the trial court erred when it denied his requested "mistake

of fact" and "accident" jury instructions based on its mistaken belief that those jury

instructions related to the age element of GSI under R.C. 2907.05(A)(4). Michael argues

that the instructions rather concerned the "identity of the victim" element. (Emphasis

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added.) Michael argues that the "purpose" element in the definition of "sexual contact" also

applies to the "identity" element of GSI.

{¶90} The Ohio Supreme Court considered whether GSI under R.C. 2907.05(A)(4)

was a strict liability offense in State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111. The

supreme court pointed out that the statute prohibits sexual contact when the victim is "less

than thirteen years of age, whether or not the offender knows the age of that person."

(Emphasis added.) Id. at ¶ 18, quoting R.C. 2907.05(A). On that basis the supreme court

concluded that "[t]here is no question that the victim's age is a strict-liability element of an

R.C. 2907.05(A)(4) violation." Id. at ¶ 18.

{¶91} But while the Ohio Supreme Court held that age was a strict-liability element

of GSI under R.C. 2907.05(A)(4), the supreme court further held that GSI does possess a

mens rea element. Id. at 19. Specifically, the supreme court pointed to R.C. 2907.01(B)'s

definition of "sexual contact" (a phrase used in R.C. 2907.05[A][4]):

"Sexual contact" means 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.

(Emphasis added.) Based on this definition, the supreme court held that GSI requires proof

of touching "for the purpose of sexually arousing or gratifying either person." (Emphasis

sic.) Dunlap at ¶ 25.

{¶92} Michael argues that the "purpose" mens rea contained in the R.C. 2907.01(B)

definition of "sexual contact" as used in R.C. 2907.05(A) also applies to the phrase "not the

spouse of the offender." Michael is incorrect. The R.C. 2907.01(B) definition of "sexual

contact is only a definition of "sexual contact." "Sexual contact" as used in R.C. 2907.05(A)

does not modify the phrase, "not the spouse of the offender." Instead, the phrase "not the

spouse of the offender" modifies the word "another" in the phrase "No person shall have

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sexual contact with another." (Emphasis added.) There is no textual reason for concluding

that the mens rea of "purpose" that applies to "sexual contact" also applies to "not the

spouse of the offender." And while the mens rea of "purpose" applies to "sexual contact,"

the phrase "not the spouse of the offender," as read in the overall context of R.C.

2907.05(A), plainly indicates a purpose to impose strict criminal liability with respect to that

element of the offense (which Michael refers to as the "identity" element). This is the case

because a person either is or is not another's spouse. "'To discern legislative intent, we

read words and phrases in context and construe them in accordance with rules of grammar

and common usage.'" Lovejoy v. Diel, 12th Dist. Butler No. CA2020-06-067, 2021-Ohio-

1124, ¶ 31, quoting Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd.,

137 Ohio St.3d 257, 2013-Ohio-4654, ¶ 15. To hold, as Michael argues we should, that the

identity element of GSI requires the mens rea of "purpose" would mean that strict liability

applies to the age of the offender, except when the offender claims to have incorrectly

believed that the victim was the offender's spouse. This makes no sense in the context of

the full statutory text. There is no lawful basis for jury instructions stating that the mens rea

of "purpose" applies to the identity element ("not the spouse of the offender") in R.C.

2907.05(A).

{¶93} In any event, the text of the proposed "mistake of fact" and "accident" jury

instructions requested by Michael on their own terms apply those concepts to the age

element of R.C. 2907.05(A)(4), not to the identity element. Michael's proposed "mistake of

fact" instruction concludes by stating that if Michael had an "honest belief" that he was

engaged in sexual contact with Kathie, rather than Rose, then "he is not guilty of the crime

of gross sexual imposition, as a purpose to engage in sexual contact with a person less

than thirteen years of age [is] an essential element of that offense." Likewise, Michael's

proposed "accident" jury instruction states that "The defendant denies any purpose to have

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sexual contact with a person less than thirteen years of age." The proposed instruction

goes on to state that if the jury, after considering the evidence, is not convinced beyond a

reasonable doubt that Michael "had a purpose to have sexual contact with a person less

than thirteen years of age, you must return a verdict of not guilty." Both instructions are

about the age element (not the identity element), misstate the law with respect to the age

element, and would have confused the jury.5 The trial court did not abuse its discretion.

{¶94} We also note that even if the trial court had abused its discretion in denying

the requested "mistake of fact" and "accident" jury instructions (which it did not), we find

that Michael was not prejudiced. Ossege, 2014-Ohio-3186, at ¶ 40. The trial court

permitted both Michael and Kathie to testify that Michael mistakenly believed that he was

lying down in their marital bed and that Michael believed the person he touched was Kathie,

not Rose. The trial court also permitted the jury to hear the recording of Rose's controlled

call with Michael, in which Michael made similar statements. Likewise, the trial court

permitted Michael's defense counsel to state in closing argument that Michael mistakenly

believed that he was in bed with and touching Kathie, rather than Rose. The trial court

presumably allowed this testimony and these arguments because they were related to

Michael's argument that he did not touch Rose for the purpose of sexual arousal or

gratification—as permitted by Dunlap. Dunlap, 2011-Ohio-4111, at ¶ 25. Having heard

Michael's testimony regarding his alleged mistake, the jury clearly found the testimony not

credible, because it convicted Michael of GSI. There is no reason to believe the jury would

have reached a different result if it had been instructed on "mistake of fact" and "accident."

3. Proposed Jury Instruction on Sexual Imposition Under R.C. 2907.06(A)(1) and (A)(4)

5. Michael repeatedly characterized the jury instructions as not relating to the age element, but the text of the proposed jury instructions speaks for itself. Michael did not propose alternative jury instructions.

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{¶95} The state charged and the jury convicted Michael of one count of GSI. As

discussed previously, the relevant portion of the GSI statute provides: "No person shall

have sexual contact with another, not the spouse of the offender * * * when * * * (4) [t]he

other person * * * is less than thirteen years of age, whether or not the offender knows the

age of that person." R.C. 2907.05(A)(4).

{¶96} Michael contends that he was entitled to jury instructions on sexual imposition

under R.C. 2907.06(A)(1) and under R.C. 2907.06(A)(4). Michael claims that both of these

sexual imposition offenses are lesser included offenses of GSI, and that reasonable jurors

could have found him not guilty of GSI but guilty of either of the two sexual imposition

offenses.

{¶97} "In considering whether an instruction upon a lesser offense should be given,

a trial court must first determine whether an offense is a lesser included offense of the crime

charged." State v. Hines, 12th Dist. Clermont No. CA2017-06-025, 2018-Ohio-1780, ¶ 25.

"If that inquiry is answered affirmatively, then the court must proceed to determine whether

the evidence in the case supports an instruction on the lesser included offense." Id.

{¶98} "The test for determining if an offense is a lesser included offense of another

crime is met when (1) one offense carries a greater penalty than the other, (2) some element

of the greater offense is not required to prove commission of the lesser offense, and (3) the

greater offense as statutorily defined cannot be committed without the lesser offense as

statutorily defined also being committed." State v. Villafranco, 12th Dist. Clinton No.

CA2021-09-029, 2022-Ohio-2826, ¶ 13. "Thus, the three-prong test includes a 'greater

penalty' prong, an 'element' prong, and a 'concurrent commission' prong." State v. Hale,

12th Dist. Clermont No. CA2018-04-024, 2019-Ohio-1398, ¶ 11.

{¶99} "The test for determining if an offense is a lesser included offense of another

does not involve a consideration of the facts of the offense." Hines at ¶ 27. Instead, the

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test "requires a comparison of the elements of the respective offenses in the abstract to

determine whether one element is the functional equivalent of the other. If so, and if the

other parts of the test are met, one offense is a lesser included offense of the other." State

v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 25.

{¶100} We will separately analyze Michael's arguments regarding the requested

sexual imposition instructions under R.C. 2907.06(A)(1) and 2907.06(A)(4).

a. Sexual Imposition Under R.C. 2907.06(A)(1)

{¶101} The Revised Code defines sexual imposition in violation of R.C. 2907.06(A)(1)

as:

No person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.

This offense requires proof of elements that are not elements of GSI under R.C.

2907.05(A)(4). Namely, the state must prove (1) that the sexual contact is offensive to the

victim, and (2) the offender's knowledge of the offensive nature of the sexual contact, or

recklessness in that regard. R.C. 2907.06(A)(1). Because these elements of sexual

imposition under R.C. 2907.06(A)(1) are not elements of GSI under R.C. 2907.05(A)(4), it

is theoretically possible that an offender could commit GSI under R.C. 2907.05(A)(4)

without also committing sexual imposition in violation of R.C. 2907.06(A)(1). Accordingly,

sexual imposition under R.C. 2907.06(A)(1) is not a lesser included offense of GSI under

R.C. 2907.05(A)(4). Villafranco, 2022-Ohio-2826, at ¶ 13 (lesser included offense test

includes whether "the greater offense as statutorily defined cannot be committed without

the lesser offense as statutorily defined also being committed").

{¶102} We therefore find that the trial court did not abuse its discretion in refusing

Michael's request to instruct the jurors on sexual imposition under R.C. 2907.06(A)(1).

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b. Sexual Imposition Under R.C. 2907.06(A)(4)

{¶103} The Revised Code defines sexual imposition in violation of R.C. 2907.06(A)(4)

as,

No person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person * * * is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person.

{¶104} The distinction between this statute and the GSI statute at issue here is plain.

GSI under R.C. 2907.05(A)(4) requires proof of a victim less than 13 years of age. Sexual

imposition under R.C. 2907.06(A)(4) requires proof of a victim between 13 and 16 years of

age and evidence concerning the age of the offender. Thus, if a factfinder convicts an

offender of GSI under R.C. 2907.05(A)(4), then the factfinder must have found beyond a

reasonable doubt that the victim was under 13 years of age. Such a finding would by

definition preclude the factfinder from finding the offender guilty of sexual imposition under

R.C. 2907.06(A)(4). Accordingly, GSI under R.C. 2907.05(A)(4) can be committed without

also committing sexual imposition under R.C. 2907.06(A)(4). Further, sexual imposition

under R.C. 2907.06(A)(4) requires the state to prove that the offender "is at least eighteen

years of age and four or more years older than such other person." This is not an element

of GSI under R.C. 2907.05(A)(4). As such, sexual imposition under R.C. 2907.06(A)(4) is

not a lesser included offense of GSI under R.C. 2907.05(A)(4). Villafranco, 2022-Ohio-

2826, at ¶ 13 (lesser included offense test includes whether "the greater offense as

statutorily defined cannot be committed without the lesser offense as statutorily defined also

being committed" and whether "some element of the greater offense is not required to prove

commission of the lesser offense").

{¶105} For the foregoing reasons, we overrule Michael's Assignment of Error No. 2.

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C. Due Process Right to a Fair Trial

{¶106} Michael's Assignment of Error No. 3 states:

{¶107} THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM

PRESENTING HIS VERSION OF THE FACTS.

{¶108} Michael contends that the trial court's refusal to allow him to present the jury

with a defense based on "mistake of fact" and "accident" constituted a violation of his

fundamental due process right to a fair trial. Michael cites various rulings by the trial court

limiting his counsel's ability to argue his alleged mistake in believing that Rose was Kathie

when he touched her in bed.

{¶109} As discussed above, GSI is a strict liability offense and Michael's argument

that he believed he was touching his then 44-year-old wife rather than his 12-year-old

daughter is legally irrelevant to the offense as far as it relates to the age and identity of the

victim. For the reasons discussed above with respect to Assignment of Error No. 2, the trial

court did not deprive Michael of a fair trial or deny him due process of law by not instructing

the jurors on "mistake of fact" and "accident," or by precluding counsel from arguing these

points with respect to the identity element of GSI during opening and closing.

{¶110} Despite the inapplicability of a "mistake of fact" or "accident" instruction,

Michael testified during his case-in-chief that he believed he was getting into bed with

Kathie. Michael reiterated that claim in the controlled call played by the state. Kathie also

testified that Michael accidentally believed he was getting into bed with her. Michael's

counsel emphasized this testimony in his closing argument. Thus, Michael cannot claim

that the trial court's rulings prevented him from telling the jury his version of events.

{¶111} We overrule Michael's Assignment of Error No. 3.

D. Motion for New Trial

{¶112} Michael's Assignment of Error No. 4 states:

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{¶113} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A

NEW TRIAL.

{¶114} Michael argues that the trial court erred by denying his request for a new trial

based upon Crim.R. 33(A)(1) and (5). The errors Michael relied on in requesting a new trial

are those alleged errors that he previously assigned in this appeal, i.e., the exclusion of the

Cat E-mail and the trial court's refusal to give his requested jury instructions on "mistake of

fact," "accident," and sexual imposition.

{¶115} "The decision to grant or deny a motion for a new trial pursuant to Crim.R. 33

rests within the sound discretion of the trial court and will not be reversed absent an abuse

of discretion." State v. Brown, 12th Dist. Preble No. CA2022-02-003, 2023-Ohio-258, ¶ 19.

2. Motion for New Trial

{¶116} Crim.R. 33(A) provides that "[a] new trial may be granted on motion of the

defendant for any of the following causes affecting materially his substantial rights:

Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;

***

(5) Error of law occurring at the trial * * *

{¶117} For the reasons articulated above in response to Michael's Assignments of

Error Nos. 1 and 2, the trial court did not abuse its discretion or commit an error of law in

excluding the Cat E-mail or by refusing Michael's requested jury instructions and the court's

orders did not deprive Michael of a fair trial. As such, the court did not err in denying

Michael's request for a new trial under Crim.R. 33.

{¶118} We overrule Michael's Assignment of Error No. 4.

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E. Manifest Weight

{¶119} Michael's Assignment of Error No. 5 states:

{¶120} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶121} Michael argues that the jury lost its way in finding him guilty. He contends

that there were disputed facts and issues of credibility with respect to Rose's age at the

time of the offense and as to whether his physical contact with Rose was for purposes of

sexual arousal or gratification.

{¶122} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

{¶123} In reviewing the evidence, an appellate court must be mindful that the original

trier of fact was in the best position to judge the credibility of witnesses and determine the

weight to give to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-

1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the manifest

weight of the evidence only in the exceptional case in which the evidence weighs heavily

against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-Ohio-

466, ¶ 15.

{¶124} Upon review, we find that this is not the exceptional case where the evidence

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weighed heavily against the conviction. Zitney at ¶ 15. The record contains competent and

credible evidence that Michael touched Rose in an erogenous zone for the purposes of his

sexual arousal when she was 12 years old.

{¶125} Regarding her age, Rose testified concerning her certainty as to the February

13, 2009 date. She explained her recognition, even as a child, that what happened was

important and she should remember the date. Rose further described her interest in

numbers and how that interest helped imprint the date in her memory. Rose further testified

that she recalled discussing the incident with Kathie immediately prior to her thirteenth

birthday party, which would confirm that the incident occurred in 2009 rather than 2010.

Michael's calendar for February 2009 corroborated Rose's testimony. That calendar

confirmed that Michael was out of town earlier that week and returned home on Thursday,

February 12, 2009. His visit to Lafarge early the next morning, Friday, February 13, 2009,

was consistent with the testimony that he would be leaving for work early the morning after

the incident. Allison testified that when she confronted her parents, Michael appeared

confused until she mentioned specifics, such as Rose's age at the time of the offense.

Michael and his wife both testified as to their certainty that the event occurred over a year

later and Michael presented a calendar that purported to corroborate his claim. The jury

heard his testimony, as well as Kathie's testimony. The jury found Rose to be a more

credible than both parents. We generally defer to the factfinder on matters of witness

credibility. State v. Statzer, 12th Dist. Butler No. CA2015-08-148, 2016-Ohio-7434, ¶ 25.

{¶126} Concerning sexual arousal or gratification, Rose described Michael rubbing

her buttocks in a circular motion and attempting to push his fingers through her underwear

into her vagina. Rose testified that she felt what she later realized was Michael's erection.

The jury may have concluded that Michael corroborated Rose's claims that the touching

was for sexual purposes when, during the controlled call, he stated, " * * * I remember

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groping on top, between, on top of your clothes * * *." Specifically, the jury may have viewed

Michael's reference to "groping" (made at a time when he did not know he was being

recorded) as more consistent with Rose's trial testimony than his own trial testimony. The

jury may have likewise concluded that Michael's halting reference to groping "between, on

top of your clothes" was consistent with Rose's description of Michael's reaching under her

pants but with her underwear still between his fingers and her vagina.

{¶127} Michael's alternative version of events was that he briefly brushed Rose's

breast over her clothing before suddenly realizing he was not in his own bedroom with his

wife. The jury likely found this story not credible for numerous reasons. For one thing,

accepting Michael's account would require the jury to believe that he thought he had

returned to his upstairs bedroom, despite not having walked up the stairs or down the

upstairs hallway and around his bedroom to his side of the bed. Alternatively, it would

require the jury to believe that after fifteen years of sleeping upstairs, he suddenly and

inexplicably mistook his old bedroom downstairs as his current bedroom. For another, it

would require the jury to believe that Michael thought he had laid down in his king-size bed

rather than Rose's twin bed, and that he was fondling his adult wife's breast rather than that

of a young girl.6 Again, the jury obviously found Rose to be a more credible witness than

Michael regarding to the issue of sexual contact and we defer to that finding. Statzer at ¶

25. But we note that Kathie's description of Rose's behavior that morning corroborated

Rose's claim concerning sexual contact. Kathie described Rose as "really visibly upset and

shaken." This description is more consistent with the invasive sexual contact described by

Rose, rather than the brief, benign touching claimed by Michael.

6. The state presented photographs of Rose and Kathie roughly contemporaneous with the offense in 2009. The photographs showed a noticeable difference in Rose's and Kathie's build and weight, suggesting it would have been immediately obvious to Michael that he was not in bed with Kathie.

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{¶128} Michael presents various other arguments challenging Rose's reliability. He

argues that her story evolved over time, that she did not tell Kathie any details about what

Michael did the night of the event, and that the first time she reported her allegations was

approximately ten years after the fact. Michael asserts that his versions of events as told

at trial and during the controlled call were consistent.

{¶129} Trial counsel thoroughly cross-examined Rose about these issues and other

credibility matters. These issues were presented to the jury for consideration. The jury was

free to assign whatever weight it determined appropriate in assessing the truthfulness of

Rose's testimony. See State v. Barron, 12th Dist. Warren No. CA2020-12-088, 2022-Ohio-

102, ¶ 100.

{¶130} Finally, Michael argues that the fact that the jury found him not guilty of Count

Two underscores the fact that the jury had questions about Rose's credibility. We disagree.

Rose's testimony was that upon returning from the bathroom Michael tried to touch her

buttocks and tried to touch her vagina but he was unsuccessful only because of her actions

of pushing her hips into the bed.7 The fact that the jury found Michael not guilty of Count

Two indicates not that the jury lost its way with respect to Count One, but that the jury was

paying attention to the evidence presented and determined that the state had not met its

burden beyond a reasonable doubt concerning Count Two.

{¶131} For these reasons, we find that the weight of the evidence supported

Michael's conviction and the jury did not lose its way. We overrule Michael's Assignment

of Error No. 5.

IV. Conclusion

{¶132} The trial court did not abuse its discretion in refusing to admit the Cat E-mail

7. Rose later clarified that Michael did touch her buttocks during this second incident, though without providing additional detail as to the nature of the contact.

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and in refusing to instruct the jurors on "mistake of fact," "accident," and sexual imposition.

For the same reasons, the court did not violate Michael's due process rights and did not err

in declining to grant him a new trial. The weight of the evidence supported Michael's

conviction.

{¶133} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

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