[Cite as State v. Clark, 2014-Ohio-855.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 52
v. : T.C. NO. 12CRB5058
DONOVIN W. CLARK : (Criminal appeal from Municipal Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 7th day of March , 2014.
MARC T. ROSS, Atty. Reg. No. 0070446, City of Springfield Prosecutor’s Office, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
JOHN PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Donovin Clark appeals his conviction and sentence for 2
one count of sexual imposition, in violation of R.C. 2907.06(A)(1), a misdemeanor of the
third degree. Clark filed a timely notice of appeal with this Court on June 17, 2013.
{¶ 2} During the fall of 2012, Clark began taking classes at Career Technology
Center (CTC) located in Clark County, Ohio. The evidence adduced at trial suggested that
shortly after starting classes, Clark began making unwanted and repeated physical contact
with several female students also enrolled at CTC. Specifically, Clark was accused of
touching the girls’ buttocks, breasts, thighs, and stomachs without permission and after
repeatedly being told to stop.
{¶ 3} On November 19, 2012, a group of female students approached Ms. Amy
Schakat, the Director of Student Services and Academics at CTC, in order to discuss Clark’s
continued inappropriate touching. Schakat is one of three “principals” at CTC who oversee
student conduct and handle student disciplinary matters. The group of female students,
T.H., C.M., J.C., K.B., B.E., and E.H., informed her that since the fall term began, Clark had
touched each of them inappropriately at various times. Schakat wrote down the girls’
allegations during the brief meeting. The allegations were reported to the school
superintendent who advised Schakat to bring Clark in for a discussion.
{¶ 4} During the meeting with Schakat on November 26, 2012, Clark denied that
he inappropriately touched J.C. Clark further informed Schakat that he did not remember
any of the incidents involving C.M., K.B., or B.E. Clark admitted that he grabbed T.H.’s
buttocks during a graphic arts class in the middle of September for which he received a
one-day in school suspension. Schakat explained to Clark that the touching and grabbing
was inappropriate and pointed out that he had repeatedly been told to stop by the girls he 3
targeted. Clark responded to Schakat by saying that he does not “hear no or stop” when he
is in a “zone.” After the meeting, Schakat spoke with the school superintendent, and Clark
received a ten-day suspension for his conduct.
{¶ 5} On November 27, 2012, Schakat contacted the Springfield Police
Department regarding the allegations against Clark. Springfield Police Detective Trent
King of the Crimes Against Persons Unit, Juvenile Division, was subsequently assigned to
oversee the case. On November 30, 2012, Det. King separately interviewed each of the
female victims at the CTC. After the interviews, Det. King filed warrants for the arrest of
Clark for six counts of sexual imposition. Det. King arrested Clark on December 7, 2012,
on the outstanding warrants and transported him to Springfield Police headquarters. Det.
King questioned Clark regarding the victims’ allegations. Clark admitted to grabbing
T.H.’s buttocks, stating that he “went too far.” Clark further admitted that he smacked K.B.
on the buttocks on two separate occasions, but he said he was only joking. Clark admitted
to touching B.E. on her thighs, and that E.H. slapped his hand away when he touched her.
During the interview, Clark did not deny that he grabbed C.M.’s buttocks nor that he tried to
bury his face between her breasts. While acknowledging that his conduct was
inappropriate, Clark stated that he “meant nothing by it and was just joking around.” Clark
additionally stated that although he knew that the girls told him repeatedly to stop the
unwanted touching, he explained that he “zones out” and the girls’ pleas to stop simply don’t
“register” with him.
{¶ 6} Clark was subsequently charged in six separate criminal complaints, each
containing one count of sexual imposition corresponding to the six individual female 4
victims. At the conclusion of his jury trial on June 13, 2013, Clark was found guilty of one
count of sexual imposition against the complainant, T.H. Clark was acquitted of the
remaining five counts of sexual imposition. The trial court sentenced Clark to sixty days in
jail with forty-five days suspended. Clark was placed on probation for one year, ordered to
undergo a mental health assessment, and instructed to complete any recommended follow-up
treatment. Clark was also designated a Tier I sex offender. The imposition of Clark’s
sentence was stayed pending the outcome of his appeal.
{¶ 7} It is from this judgment that Clark now appeals.
{¶ 8} Clark’s first assignment of error is as follows:
“THERE WAS INSUFFICIENT EVIDENCE PRESENTED AT TRIAL TO
SUPPORT A CONVICTION FOR SEXUAL IMPOSITION.”
{¶ 9} In his first assignment, Clark contends that the State adduced insufficient
evidence at trial to support his conviction for sexual imposition. Specifically, Clark argues
that the evidence was insufficient to establish: 1) that the touching was for the purpose of
sexual arousal or gratification in order to constitute “sexual contact” under R.C. 2907.01(B);
2) corroboration pursuant to R.C. 2907.06(B); and 3) that he knew his conduct would be
offensive, or was reckless in that regard.
{¶ 10} When a defendant challenges the sufficiency of the evidence, he is arguing
that the State presented inadequate evidence on an element of the offense in order to sustain
the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594
(2d Dist.2000). “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to 5
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, 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 proven beyond a reasonable doubt.” State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 11} Ohio’s sexual imposition statute, R.C. 2907.06(A)(1) provides, in part: “[n]o
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 is reckless in
that regard.” 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.” R.C.
2907.01(B). (Emphasis added.)
{¶ 12} Initially, we note that evidence was adduced from which the jury could have
concluded that Clark had sexual contact with T.H. because there was undisputed evidence
that he grabbed her buttocks with both hands. See R.C. 2907.01(B). Further, there was
evidence that the sexual contact was made for the purpose of sexually arousing or gratifying
Clark. The Ohio Revised Code does not define “sexual arousal” or “sexual gratification.”
State v. Gesell, 12th Dist. Butler No. CA2005-08-367, 2006-Ohio-3621, ¶ 23. However,
“R.C. 2907.01(B) ‘contemplate[s] any touching of the described areas which a reasonable
person would perceive as sexually stimulating or gratifying.’” State v. Astley, 36 Ohio
App.3d 247, 250, 523 N.E.2d 322 (10th Dist.1987). In addition, “[w]hile the purpose of
sexual arousal or gratification is an essential element of the offense of *** sexual 6
imposition, there is no requirement that there be direct testimony regarding sexual arousal or
gratification.” Gesell, at ¶ 25. “ ‘[T]he proper method is to permit the trier of fact to infer
from the evidence presented at trial whether the purpose of the defendant was sexual arousal
or gratification by his contact with those areas of the body described in R.C. 2907.01. In
making its decision, the trier of fact may consider the type, nature, and circumstances of the
contact, along with the personality of the defendant. From these facts, the trier of facts may
infer what the defendant’s motivation was in making the physical contact with the victim. If
the trier of fact determines, that the defendant was motivated by desires of sexual arousal or
gratification, and that the contact occurred, then the trier of fact may conclude that the object
of the defendant’s motivation was achieved.’ ” State v. Mundy, 99 Ohio App.3d 275,
288-289, 650 N.E.2d 502, 510 (2d Dist.1994), quoting State v. Cobb, 81 Ohio App.3d 179,
185, 610 N.E.2d 1009, 1013 (9th Dist.1991).
{¶ 13} In the instant case, sufficient evidence was adduced at trial whereby the jury
could find that Clark’s purpose in grabbing T.H.’s buttocks was for sexual gratification or
arousal. Initially, we note that Clark limited his inappropriate touching to female students.
Significantly, when Clark was accused of inappropriately touching his female classmates, it
was almost always in an erogenous zone as defined in R.C. 2907.01(B). The evidence
established that Clark grabbed T.H. when she had her back turned to him and was
completely unaware of his intentions. Upon realizing what Clark had just done to her, T.H.
yelled out and immediately left the classroom. T.H. testified that there was no history of
touching or horseplay between she and Clark. Additionally, Clark admitted to both Schakat
and Det. King that when he inappropriately touched the females, he “zones out” and the 7
girls’ pleas to stop simply don’t “register” with him. Det. King testified that Clark
acknowledged that when he grabbed T.H.’s buttocks, he “went too far.” The trier of fact was
not required to accept Clark’s explanation to Schakat and Det. King that he was merely
“joking around.” State v. Bragg, 2d Dist. Montgomery No. 19491, 2004-Ohio-659, at ¶ 11.
Thus, we find that a rational trier of fact could conclude that Clark grabbed T.H.’s buttocks
for sexual gratification.
{¶ 14} R.C. 2907.06(B) provides that “[n]o person shall be convicted of a
violation of this section [Sexual Imposition] solely upon the victim’s testimony unsupported
by other evidence.” Clark argues that the corroboration required by R.C. 2907.06(B) is not
present in this case because there is no evidence that he knew that his conduct was either
offensive to T.H., or that he was reckless in this regard.
{¶ 15} The Supreme Court of Ohio has addressed the corroboration requirement
set forth in R.C. 2907.06(B) in State v. Economo, 76 Ohio St.3d 56, 666 N.E.2d 225 (1996).
“Although one can make a reasoned argument that the corroboration required by the statute
ought to touch upon the knowledge-that-ones-conduct-is-offensive element of Sexual
Imposition, that argument was clearly rejected in Economo. The opinion in that case clearly
holds that corroboration, which can be slight, need only touch upon any element of Sexual
Imposition.” State v. Rossi, 2d Dist. Montgomery No. 22803, 2009-Ohio-1963, ¶ 37.
{¶ 16} In Economo, the only evidence corroborating any element of the offense
was that the alleged victim promptly reported the incident to the authorities, appeared to be
upset, and did not want to be alone with the alleged perpetrator of the offense. These
circumstances were deemed to constitute sufficient corroboration. In the instant case, T.H. 8
yelled loudly and stormed out of the classroom immediately after being grabbed on her
buttocks by Clark. T.H.’s teacher, Ms. Cabaluna, testified that she heard a commotion and
observed T.H. walk out of the classroom. Cabaluna further testified that T.H.’s face was
“bright red,” and she appeared very anxious. Cabaluna then followed T.H. into the hallway.
Thereupon, T.H. informed Cabaluna that “[Clark] grabbed my butt.”
{¶ 17} Upon being confronted by Cabaluna about the incident, Clark
acknowledged that his behavior was inappropriate and stated that “I know; I get worked up,
and I don’t think about what I am doing.” Moreover, Clark admitted that he grabbed T.H.’s
buttocks when he was later confronted by Schakat about the incident. Clark also admitted to
Det. King that he grabbed T.H.’s buttocks when he was interviewed at the Springfield Police
Department. Lastly, we note that corroboration is a question of sufficiency to be determined
by the trial court in considering a Crim. R. 29 motion for acquittal. Contrary to Clark’s
assertion, it is not a question of fact to be determined by the jury. State v. Burns, 2d Dist.
Montgomery No. 24174, 2012-Ohio-2536, ¶ 29, citing Economo, 76 Ohio St.3d 56, 60.
{¶ 18} Lastly, the evidence adduced by the State was sufficient to establish that
Clark knew that his conduct was offensive to T.H., or that he acted recklessly when he
touched her inappropriately. A person acts “knowingly” when he is aware that his conduct
will probably cause a certain result or will probably be of a certain nature. See R.C.
2901.22(B). A person acts recklessly “when, with heedless indifference to the consequences,
he perversely disregards a known risk that his conduct is likely to cause a certain result or is
likely to be of a certain nature.” See R.C. 2901.22(C).
{¶ 19} At the time of the incident, Clark and T.H. had only known each other for 9
approximately three weeks. Moreover, there was no history of flirting or touching between
the two of them that would provide Clark with a reasonable basis for believing that grabbing
T.H.’s buttocks would be acceptable to her. After grabbing T.H.’s buttocks and witnessing
her instant, volatile reaction, Clark admitted that he “went too far” and that he does not
“think about what he is doing.” In State v.Messer, 2d Dist. Montgomery No. 23779,
2011-Ohio-129, the defendant, who was convicted of sexual imposition and sexual battery,
told a detective that “he knew what he did was wrong” after engaging in sexual activity with
the victim. Accordingly, we find that the jury could have reasonably concluded that Clark
knew the sexual contact was offensive to T.H., or that he acted recklessly in regards to
whether it was offensive to her. Accordingly, we conclude that the trial court did not err
when it overruled his Crim. R. 29 motions for acquittal made at the close of the State’s case.
{¶ 20} Clark’s first assignment of error is overruled.
{¶ 21} Clark’s second assignment of error is as follows:
“THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE BY THE DEFENSE
THAT THE DETECTIVE MISSTATED WHAT CONSTITUTES SEXUAL IMPOSTION,
PROVIDING THE JURORS WITH CONFLICTING INSTRUCTIONS OF LAW AS TO
THE CRIME FOR WHICH APPELLANT WAS CHARGED.”
{¶ 22} In his second assignment, Clark argues that the trial court erred when it
limited defense counsel from cross-examining Det. King regarding his purported
misstatement of the elements of R.C. 2907.06(A)(1) during his recorded interview of the
appellant. During the interview, Det. King told Clark that the offense of sexual imposition
was the unwanted touching of the erogenous zones of another. When defense counsel 10
attempted to cross-examine Det. King regarding this purported misstatement of law, the trial
court sustained the State’s objection and excluded the testimony. Thus, Clark asserts that the
trial court denied him the opportunity to correct Det. King’s purported mischaracterization,
and as a result, the jury was likely confused, thereby prejudicing him.
{¶ 23} Initially, we note that counsel failed to object to the admission of the
recorded interview conducted by Det. King, wherein he made the alleged misstatement of
law. Absent an objection or a request for a limiting instruction, Clark has waived all but
plain error. An appellate court has the discretion to notice plain error under Crim. R. 52(B)
“with the utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E2d 804 (1978), ¶ 3 of the
syllabus. Plain error does not exist unless, but for the error, the outcome of the proceedings
would have been different. State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).
{¶ 24} The following exchange occurred during the cross-examination of Det.
King:
Defense Counsel: Okay. Now when you interviewed Mr. Clark you
kind of explained to him what he was charged with and what the sexual
imposition was correct?
Det. King: Yes sir.
Q: And were you truthful when you told him that?
A: Yes sir.
Q: Are you familiar with the statute that you were quoting? 11
A: Yes I’m familiar with..
Q: Okay.
A: .the sexual imposition statutes.
Q: And you said that it’s illegal to touch the erogenous zone of
another, is that what you told Mr. Clark?
A: I, among other things, yes sir.
Q: Okay and I assume you’re familiar with the law?
Q: Okay. I have before.
The State: I don’t know what he’s showing him.
Defense Counsel: Oh I’m sorry, the statute. I apologize.
The Court: May I may I look?
Defense Counsel: Could you read for me the statute for sexual
imposition according to the Ohio Revised Code?
The State: I’m going to object. The instruction should come from the
Court I would think.
Defense Counsel: The instructions already came from the witness. I
need to clarify Your Honor.
The Court: Well if I could have counsel approach.
*** SIDEBAR 12
The Court: What’s the purpose of this?
Defense Counsel: The purpose Your Honor is he says it’s just
unwanted touching [of] the erogenous zone. It’s not sexual contact. And I
think that’s a key distinction.
The Court: Uh but it’s the Court’s function to advise the jury
(inaudible) what what (inaudible).
Defense Counsel: Because he’s a very credible witness Your Honor
and they can assume that he knows and that’s the reason why.
The Court: You’re saying that he misquoted the statute.
Defense Counsel: Yes.
The Court: *** why is that relevant?
Defense Counsel: Because Your Honor it’s relevant because if he
didn’t violate the statute then he shouldn’t be charged.
The State: Well we’re a little late for that but (inaudible).
Defense Counsel: Well I attempted to do that in my opening.
The State: Instructions of law come from the Court. They’re finders of
fact whether it meets the of the [sic] law is given to them. They’re the finders
of fact.
The Court: The objection’s sustained.
*** END OF SIDEBAR
Defense Counsel: Isn’t it true that sexual contact is required? Is that
permittable [sic] Your Honor? 13
The Court: Well you asked a question so it’s pending.
Defense Counsel: Okay. And what is your definition of sexual
contact?
The State: Objection.
Defense Counsel: ..as an officer?
The Court: Sustained. The Court will instruct the jury as to the law
that it must apply to the facts as they find them to be when they are
deliberating. (Emphasis added).
{¶ 25} Upon review, we find that Clark’s argument that he was prevented from
cross-examining Det. King regarding his alleged misstatement of law misconstrues the
record. The record establishes that defense counsel was properly prevented from introducing
a copy of R.C. 2907.06 into evidence through Det. King’s reading of the statute to the jury.
Defense counsel was also properly prevented from questioning Det. King regarding his
personal definition of “sexual contact.” This line of questioning was improper, and the trial
court did not err when it sustained the State’s objections.
{¶ 26} Instructions regarding the pertinent law must come from the court. We note
that Clark does not argue on appeal that the trial court’s instructions to the jury regarding the
necessary elements of sexual imposition were incorrect. We further note that it is generally
accepted that the jury is presumed to follow the instructions of law given to it by the court.
State v. Raglin, 83 Ohio St.3d 253, 264, 699 N.E.2d 482, 492 (1998). If defense counsel had
simply wanted to emphasize that Det. King had not advised Clark of all of the elements of 14
sexual imposition, he was free to cross-examine Det. King regarding what he said, or more
specifically, what was omitted during the interview regarding sexual gratification.
However, permitting Det. King to read R.C. 2907.06 to the jury or testify regarding his own
definition of “sexual contact” would have invaded the province of the trial court to instruct
on the law applicable to the case, and would therefore have been error.
{¶ 27} Clark’s second assignment of error is overruled.
{¶ 28} Clark’s third and final assignment of error is as follows:
“APPELLANT’S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL WAS VIOLATED WHEN COUNSEL FAILED TO FILE A MOTION TO
SUPPRESS, WHICH LIKELY WOULD HAVE RESULTED IN SUPPRESSION OF HIS
FORCED INCULPATORY STATEMENTS.”
{¶ 29} In his third and final assignment, Clark argues that his trial counsel was
ineffective for failing to file a motion to suppress the statements he made to Det. King
during the recorded interview. Specifically, Clark argues that because he was improperly
advised of the elements of sexual imposition by Det. King, his inculpatory statements were
induced by misstatements of law and would have been suppressed had his counsel properly
filed a motion to suppress.
{¶ 30} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel's conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel is 15
entitled to a strong presumption that his or her conduct falls within the wide range of
reasonable assistance. Strickland, 466 U.S. at 688. Deficient performance means that
claimed errors were so serious that the defense attorney was not functioning as the “counsel”
that the Sixth Amendment guarantees. State v. Cook , 65 Ohio St.3d 516, 524, 605 N.E.2d
70 (1992).
{¶ 31} “The failure to file a suppression motion is not per se ineffective assistance
of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52, 2000-Ohio-448.
Rather, trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of
counsel only if the failure to file the motion caused Defendant prejudice; that is, when there
is a reasonable probability that, had the motion to suppress been filed, it would have been
granted.” (Citations omitted.) State v. Wilson, 2d Dist. Clark No. 08CA0445,
2009-Ohio-2744, ¶11. See, also, State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859
(2001).
{¶ 32} Clark argues that if Det. King had properly informed him of all of the
elements of the offense of sexual imposition, he would not have admitted to grabbing T.H.’s
buttocks. Thus, Clark asserts that his inculpatory admission to Det. King could not have
then been used to corroborate T.H.’s testimony regarding the incident. However, Clark
ignores the fact that prior to making admissions to Det. King, he had already admitted to
Cabaluna and Schakat that he had grabbed T.H.’s buttocks, an act for which he received a
one-day in-school suspension. Clark also acknowledged to Schakat that he did “not hear no
or stop” when he is in a “zone.” On the date of the incident involving T.H., Clark told
Cabaluna, “I know I get worked up.” Clark never denied touching T.H.’s buttocks, and his 16
defense at trial merely consisted of the assertion that he was “just joking” and “meant
nothing by it.” Accordingly, Clark was not prejudiced by counsel’s failure to file a motion
to suppress the statements he made to Det. King since he had already admitted to the
inappropriate conduct prior to the interview.
{¶ 33} Additionally, we note that defense counsel’s failure to file a motion to
suppress Clark’s statements to Det. King may have been a matter of reasonable trial strategy,
which does not constitute deficient performance. State v. King, 2d Dist. Montgomery No.
18463, 2002-Ohio-2929. Simply put, filing a motion to suppress is not without risks, and
the likelihood of success of such a motion was not a given in this case. State v. Brown, 115
Ohio St.3d 55, 69, 2007-Ohio-4837, 873 N.E.2d 858.
{¶ 34} Moreover, even if defense counsel had filed a motion to suppress Clark’s
inculpatory statements and the trial court had granted the motion, we cannot find that the
result of the trial would have been any different because the State adduced a substantial
amount of evidence establishing Clark’s guilt with respect to the incident involving T.H.
Accordingly, given the substantial amount of additional testimony from Cabaluna and
Schakat which corroborated T.H.’s testimony, aside from Clark’s statements to Det. King,
we cannot say that had defense counsel filed a motion to suppress, there is a reasonable
probability that Clark would have been acquitted.
{¶ 35} Clark’s third and final assignment of error is overruled. Judgment
affirmed.
FAIN, J. and WELBAUM, J., concur. 17
Copies mailed to:
Marc T. Ross Jon Paul Rion Nicole Rutter-Hirth Hon. Thomas E. Trempe