[Cite as State v. Libbey-Tipton, 2012-Ohio-2769.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97382
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ADAM LIBBEY-TIPTON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-549697
BEFORE: Keough, J., Blackmon, A.J., and Jones, J.
RELEASED AND JOURNALIZED: June 21, 2012 ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen 3552 Severn Road Suite 613 Cleveland Hts., Ohio 44118
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Melissa Riley Anna M. Faraglia Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Adam Libbey-Tipton, appeals his conviction for gross
sexual imposition. For the reasons that follow, we affirm.
{¶2} In April 2011, defendant was charged with one count each of rape, in
violation of R.C. 2907.02(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). Following a jury
trial, the defendant was found not guilty of rape and kidnapping, but guilty of gross
sexual imposition; he was sentenced to one year of community control sanctions with a
suspended five year prison term. This appeal followed.
{¶3} In his first and second assignments of error, the defendant contends that there
was insufficient evidence to support his conviction and his conviction was against the
manifest weight of the evidence. We consider these assignments of error together
because they are related.
{¶4} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. 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 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶5} A manifest weight challenge, on the other hand, questions whether the
prosecution met its burden of persuasion. State v. Ponce, 8th Dist. No. 91329,
2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356
(1982). The manifest weight of the evidence standard of review requires us to review the
entire record, “weigh the evidence and all reasonable inferences, consider the credibility
of witnesses, and determine whether, in resolving 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. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986); see also Thompkins at 387.
{¶6} The use of the word “manifest” means that the trier of fact’s decision must be
plainly or obviously contrary to all of the evidence. State v. Griffie, 8th Dist. No. 89009,
2007-Ohio-5325, ¶ 6. This is a difficult burden for an appellant to overcome because the
resolution of factual issues resides with the trier of fact. Id., citing State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact
has the authority to “believe or disbelieve any witness or accept part of what a witness
says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶7} Gross sexual imposition, as it relates 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).
{¶8} Sexual contact is defined in R.C. 2907.01(B) to mean “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.”
{¶9} The Ohio Supreme Court resolved that the culpable mental state for gross
sexual imposition is “purposefully.” State v. Dunlap, 129 Ohio St.3d 461,
2011-Ohio-4111, 953 N.E.2d 816, ¶ 28 (“[T]he element of sexual contact in an R.C.
2907.05(A)(4) violation requires a mens rea of purpose.”).
{¶10} Purpose is defined in R.C. 2901.22(A) as actions with “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 his
specific intention to engage in conduct of that nature.” One’s purpose may be inferred
from actions, and the “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. 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).
{¶11} Defendant argues on appeal that the doubtful credibility of the witnesses and
their conflicting testimony render his conviction for gross sexual imposition invalid. Specifically, he contends that because L.L. testified that she was untruthful when she
spoke with the caseworker, the evidence is legally insufficient to support his conviction.
However, issues of credibility and believability are left for the trier of fact and are
analyzed under a manifest weight argument, not a sufficiency challenge. The victim
testified that in July 2005 when she was almost four years old the defendant pulled her
pants and panties out and touched her genitalia. This testimony alone is sufficient to
satisfy a sufficiency of the evidence challenge.
{¶12} Moreover, we find that the defendant’s conviction for gross sexual
imposition was not against the manifest weight of the evidence. The jury heard
testimony from both the victim and her sister regarding the defendant’s actions.
{¶13} The victim testified that while visiting her grandparents in Ohio in July
2005, she and her sister were in the defendant’s bedroom jumping on the bed. The
defendant and the victim are cousins. The defendant was playing a video game, but then
stopped playing, approached her, and “pulled down [her] pants and touched [her] in the
wrong spot.” When questioned further, she stated that he put his finger inside her pants,
under her panties, and touched her in her “private part,” which was determined to be her
vagina. She denied that he rubbed her vagina and admitted that she was able to walk
away from him.
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[Cite as State v. Libbey-Tipton, 2012-Ohio-2769.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97382
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ADAM LIBBEY-TIPTON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-549697
BEFORE: Keough, J., Blackmon, A.J., and Jones, J.
RELEASED AND JOURNALIZED: June 21, 2012 ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen 3552 Severn Road Suite 613 Cleveland Hts., Ohio 44118
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Melissa Riley Anna M. Faraglia Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Adam Libbey-Tipton, appeals his conviction for gross
sexual imposition. For the reasons that follow, we affirm.
{¶2} In April 2011, defendant was charged with one count each of rape, in
violation of R.C. 2907.02(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). Following a jury
trial, the defendant was found not guilty of rape and kidnapping, but guilty of gross
sexual imposition; he was sentenced to one year of community control sanctions with a
suspended five year prison term. This appeal followed.
{¶3} In his first and second assignments of error, the defendant contends that there
was insufficient evidence to support his conviction and his conviction was against the
manifest weight of the evidence. We consider these assignments of error together
because they are related.
{¶4} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. 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 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶5} A manifest weight challenge, on the other hand, questions whether the
prosecution met its burden of persuasion. State v. Ponce, 8th Dist. No. 91329,
2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356
(1982). The manifest weight of the evidence standard of review requires us to review the
entire record, “weigh the evidence and all reasonable inferences, consider the credibility
of witnesses, and determine whether, in resolving 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. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986); see also Thompkins at 387.
{¶6} The use of the word “manifest” means that the trier of fact’s decision must be
plainly or obviously contrary to all of the evidence. State v. Griffie, 8th Dist. No. 89009,
2007-Ohio-5325, ¶ 6. This is a difficult burden for an appellant to overcome because the
resolution of factual issues resides with the trier of fact. Id., citing State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact
has the authority to “believe or disbelieve any witness or accept part of what a witness
says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶7} Gross sexual imposition, as it relates 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).
{¶8} Sexual contact is defined in R.C. 2907.01(B) to mean “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.”
{¶9} The Ohio Supreme Court resolved that the culpable mental state for gross
sexual imposition is “purposefully.” State v. Dunlap, 129 Ohio St.3d 461,
2011-Ohio-4111, 953 N.E.2d 816, ¶ 28 (“[T]he element of sexual contact in an R.C.
2907.05(A)(4) violation requires a mens rea of purpose.”).
{¶10} Purpose is defined in R.C. 2901.22(A) as actions with “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 his
specific intention to engage in conduct of that nature.” One’s purpose may be inferred
from actions, and the “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. 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).
{¶11} Defendant argues on appeal that the doubtful credibility of the witnesses and
their conflicting testimony render his conviction for gross sexual imposition invalid. Specifically, he contends that because L.L. testified that she was untruthful when she
spoke with the caseworker, the evidence is legally insufficient to support his conviction.
However, issues of credibility and believability are left for the trier of fact and are
analyzed under a manifest weight argument, not a sufficiency challenge. The victim
testified that in July 2005 when she was almost four years old the defendant pulled her
pants and panties out and touched her genitalia. This testimony alone is sufficient to
satisfy a sufficiency of the evidence challenge.
{¶12} Moreover, we find that the defendant’s conviction for gross sexual
imposition was not against the manifest weight of the evidence. The jury heard
testimony from both the victim and her sister regarding the defendant’s actions.
{¶13} The victim testified that while visiting her grandparents in Ohio in July
2005, she and her sister were in the defendant’s bedroom jumping on the bed. The
defendant and the victim are cousins. The defendant was playing a video game, but then
stopped playing, approached her, and “pulled down [her] pants and touched [her] in the
wrong spot.” When questioned further, she stated that he put his finger inside her pants,
under her panties, and touched her in her “private part,” which was determined to be her
vagina. She denied that he rubbed her vagina and admitted that she was able to walk
away from him. She further testified that she told him to “stop” and then ran out of the
room into the kitchen and her sister followed her. She testified that she did not tell
anyone what happened. {¶14} The victim’s sister, L.L., testified that she was in the room when the
defendant touched her sister. According to L.L., her sister was jumping on the bed when
she saw the defendant with his hand in her sister’s pants. L.L. testified that her sister ran
out of the room, and she followed her. L.L. admitted she did not tell anyone what
happened. During L.L.’s testimony, she admitted that some of the statements she made
to the social worker were not true. When questioned about why she lied to the counselor,
L.L. explained: “I lied to Miss Joy because I did not believe it was that serious when I
was [age] 9, but now that I see it today[,] it’s really serious.”
{¶15} Around Thanksgiving 2006, the victim and L.L. were talking about their
upcoming visit to Ohio to see their paternal grandparents. Their maternal grandmother
overheard the girls talking and heard the victim say she did not want to go because of
what the defendant did to her. The grandmother questioned the girls about what she
overheard and they told her what had happened. She testified that the victim
demonstrated to her what the defendant did.
{¶16} The crux of the defendant’s arguments on appeal are that the stories of these
two children have changed over the years. While some minor details of who was present
at the house in 2005 may have changed, and L.L.’s statements to the caseworker in 2008
admittedly contained some lies, one detail that did not change was that the defendant
fondled the victim, who was almost four years old at the time. This fact remained
constant from when the maternal grandmother overheard the girls talking in November
2006, to when the victim was interviewed by the police in 2006, to when L.L. was interviewed by the crisis counselor in 2008, and to when both girls testified at trial in
2011. The trier of fact is in the best position to weigh the credibility of witnesses, and
the record demonstrates that the jury considered the credibility of the witnesses and all the
evidence in rendering its verdict.
{¶17} Accordingly, the defendant’s assignments of error are overruled; his
conviction for gross sexual imposition is supported by sufficient evidence and is not
against the manifest weight of the evidence.
{¶18} 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.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, A.J., and LARRY A. JONES, SR., J., CONCUR