State v. Coleman

2015 Ohio 4491

Opinion

[Cite as State v. Coleman, 2015-Ohio-4491.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102291

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DEDRIC COLEMAN

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-584060-A

BEFORE: Celebrezze, A.J., Jones, J., and Boyle, J.

RELEASED AND JOURNALIZED: October 29, 2015 ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen 3552 Severn Road, #613 Cleveland, Ohio 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Edward R. Fadel Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., A.J.:

{¶1} Defendant-appellant, Dedric Coleman, was charged with one count each of rape, in

violation of R.C. 2907.01(A)(1)(b), gross sexual imposition, in violation of R.C. 2907.05(A)(4),

and kidnapping, in violation of R.C. 2905.01(A)(4). Each count also contained a sexually violent

predator specification pursuant to R.C. 2941.148(A). Following a jury trial in July 2014,

appellant was found not guilty of the rape and kidnapping charges. However, the trial court

declared a mistrial on the gross sexual imposition count after the jury announced it could not reach

a decision.

{¶2} A second jury trial was held in September 2014 on the gross sexual imposition count.

Appellant was found guilty of gross sexual imposition, and the court found him to be a sexually

violent predator based on the facts of this case and a prior conviction for another sex offense. At

the October 28, 2014 sentencing hearing, the trial court classified appellant as a tier II sex offender

and imposed a prison sentence of five years to life.1 This appeal followed.

I. Sufficiency of the Evidence

{¶3} In his first assignment of error, appellant contends that there was insufficient evidence

to support his conviction for gross sexual imposition.

{¶4} A challenge to the sufficiency of the evidence underlying a conviction requires an

appellate court to determine whether the state has met its burden of production at trial. State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). In evaluating a sufficiency

challenge, 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

1At the time of the offense, the victim was seven years old. proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

{¶5} Gross sexual imposition, as it pertains to this case, means “sexual contact with

another, not the spouse of the offender * * * [when] [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).

{¶6} Sexual contact is defined as “any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast,

for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). The

applicable mental state for gross sexual imposition is purposeful. State v. Dunlap, 129 Ohio St.3d

461, 2011-Ohio-4111, 953 N.E.2d 816, ¶ 23.

{¶7} R.C. 2901.22(A) defines “purposely” as the “specific intention to cause a certain

result, or when the gist of the offense is a prohibition against conduct of a certain nature, regardless

of what the offender intends to accomplish thereby, it is the offender’s specific intention to engage

in conduct of that nature.” Purpose may be inferred from an offender’s conduct, and “the trier of

fact ‘may infer what the defendant’s motivation was in making the physical contact with the

victim’ by considering ‘the type, nature and circumstances of the contact, along with the

personality of the defendant.”’ State v. Salinas, 10th Dist. Franklin No. 09AP-1201, 2010-Ohio-

4738, ¶ 30, quoting State v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991).

{¶8} Appellant argues that the lack of DNA evidence, the absence of corroborative

testimony from the victim’s brother, who was sleeping in the bed next to the victim the evening of

the incident, and conflicting testimony from witnesses warrant a reversal of his gross sexual

imposition conviction. In this case, the trial court declared the eight-year-old female victim

unavailable to testify when she refused to enter the courtroom after screaming and crying for almost 45 minutes. However, the court permitted her testimony from the first trial to be read to

the jury. The victim testified in the previous trial that appellant came into the bedroom, pulled

down her jeans and panties, lifted up her nightgown, squeezed her buttocks, said the “f-word,” and

tried to get on top of her from behind. This testimony alone is sufficient to overcome a challenge

to the sufficiency of the evidence. The jury easily could have inferred a specific intent to make

sexual contact from the circumstances surrounding appellant’s touching of the victim’s buttocks.

{¶9} Appellant’s first assignment of error is overruled.

II. Manifest Weight of the Evidence

{¶10} In his second assignment of error, appellant argues that his conviction must be

overturned because it was against the manifest weight of the evidence. A challenge to the

manifest weight of the evidence questions whether the state has met its burden of persuasion.

State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. A reviewing court must

examine the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed. State v. Jackson, 8th Dist.

Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 29. A challenger’s burden is difficult to meet because

the resolution of factual issues lies with the trier of fact. State v. Griffie, 8th Dist. Cuyahoga No.

89009, 2007-Ohio-5325, ¶ 6, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

Moreover, a conviction is not against the manifest weight of the evidence simply because

conflicting evidence was presented at trial and the jury rejected the defendant’s version of the facts

and believed the testimony presented by the state. State v. Gibson, 8th Dist. Cuyahoga No.

101826, 2015-Ohio-2390, ¶ 38, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-Ohio-

2959, ¶ 28. {¶11} Appellant contends that his conviction is against the manifest weight of the evidence

because of the doubtful credibility of the witnesses and the lack of consistency in the victim’s

testimony. We find that appellant’s conviction was not against the manifest weight of the

evidence.

{¶12} The victim’s mother testified that she, her friend, the victim, her son, and appellant

went to Golden Corral for dinner on March 26, 2014. After dinner, the mother stated that the

entire group went back to her apartment on Bosworth Avenue in Cleveland, and that the victim

and her son went to sleep in the bedroom. After the children went to sleep, both the mother and

her friend testified that appellant wanted the friend to leave so he could have alone time with the

mother. The mother testified that her friend left between 1:00 a.m. and 2:00 a.m. Although the

mother indicated that she also wanted appellant to leave, she and appellant lay together on the

couch in the living room for a short time after her friend left. In an attempt to get appellant to

leave, the mother told appellant she was going to get a shower, went into the bathroom, shut the

door, and turned the shower on. A short time later, the mother said her crying daughter, the

victim, ran into the bathroom and stated that appellant touched her, grabbed her buttocks and said

“F*** me.” When the mother heard the victim’s account, she stated that she grabbed and swung

a broomstick at appellant and chased him out of the house. The mother then called 911. After

police arrived, the mother stated that she and the victim were transported to Fairview Hospital.

{¶13} The victim’s testimony from the first trial, which was read into the record for the

jury, stated that she lived with her mother and brother, and that she slept on a bed shared with her

brother. On the day of the incident, the victim stated that she and her brother went to sleep when

they returned from Golden Corral. Sometime later, the victim awoke on her stomach and found

her underwear pulled down and her nightgown lifted. At that point, the victim also testified that appellant was squeezing her buttocks, and moving his finger up the cheeks of her buttocks and

into her anus. Furthermore, the victim explained that appellant muttered the “F-word” and was

trying to get behind her. The victim kicked appellant off of her, pulled on her pants and

underwear, and went to tell her mother. After informing her mother, the victim stated that she

saw her mother hit appellant in the head with a broomstick.

{¶14} A Cleveland police officer who responded to the mother’s apartment after her 911

call testified at trial. After interviewing the mother and the victim at the scene, the officer learned

that the victim awoke to find her pants and underwear pulled down, and appellant grabbing her

buttocks. During the interview, the officer indicated that the victim was crying, upset, and

ashamed. After questioning the mother and the victim, the officer later arrested appellant.

{¶15} A sex abuse intake worker with the Cuyahoga County Division of Children and

Family Services testified that she was referred to this case. She interviewed the victim on April

23, 2014, and stated that the victim disclosed that appellant pulled down her pants, stuck his finger

in her buttocks, and said “F you.” Although the intake worker indicated that there were minor

inconsistencies in the victim’s accounts, she explained that such inconsistencies are common for

young victims because of their developing cognitive abilities.

{¶16} A sexual assault forensic nurse examiner testified that she examined the victim at

Fairview Hospital. The nurse examiner documented that the victim was bubbly and smiling at

the hospital. However, the victim told the nurse examiner that appellant pulled down her pants

and underwear, squeezed her buttocks, stuck his finger down her butt crack, and said “F you.”

Based on the victim’s story, the nurse examiner testified that she paid close attention to the victim’s

buttocks and found no injuries. However, the nurse examiner also acknowledged that the lack of

injuries was not uncommon and collected the victim’s underwear and a DNA sample for testing. A DNA analyst also testified and acknowledged that she found no conclusive genetic material

belonging to appellant.

{¶17} A sex crimes and child abuse detective with the city of Cleveland testified that he

was charged with the investigation of this case. The detective spoke with appellant, who admitted

to sitting and lying down on the victim’s bed when the mother went to take a shower. Appellant

explained to the detective that he pushed the victim over to make more room in the bed, but that

she woke up and ran to her mother in tears. The detective testified that appellant denied ever

removing the victim’s clothes.

{¶18} Appellant bases his argument on the inconsistencies in the victim’s account and the

witnesses’ alleged lack of credibility. Admittedly, minor details concerning what appellant said

to the victim in the bedroom and where the mother was located when the victim told her she had

been touched changed. However, the crux of the victim’s account did not. Specifically, the

victim consistently reiterated that she awoke to find her nightgown lifted, her underwear pulled

down, and appellant squeezing her buttocks and using some variation of the “F-word.” These

facts remained constant from when the victim told her mother and officers right after the incident

in March 2014 to when the victim testified at the first trial in July 2014. Furthermore, appellant

admitted to the detective that he was present in the victim’s bedroom, sat on the bed, and touched

her, although appellant claimed he only touched the victim to make room for himself on the bed.

The jury was in the best position to weigh the credibility of the witnesses, and the record elucidates

that the jury considered the credibility of the accounts and all the evidence in returning a guilty

verdict against appellant.

{¶19} Appellant’s second assignment of error is overruled.

{¶20} Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court

to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules

of Appellate Procedure.

_________________________________________________________ FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., CONCURS; MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY