State v. Ochieng

2024 Ohio 4993

• Court: Ohio Court of Appeals
• Decided: October 16, 2024
• Docket: 2023 CA 00056
• Status: Published

Opinion

[Cite as State v. Ochieng, 2024-Ohio-4993.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs- Case No. 2023 CA 00056 DAVIS OCHIENG

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Municipal Court, Case No. 21-CRB-1257

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 16, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH M. SABO JAMES L. DYE City of Lancaster Law Director's Office P.O. Box 161 136 West Main Street Pickerington, Ohio 43147 P.O. Box 1008 Lancaster, Ohio 43130 Fairfield County, Case No. 2023 CA 00056 2

Hoffman, J. {¶1} Defendant-appellant Davis Ochieng appeals the judgment entered by the

Fairfield County Municipal Court convicting him following bench trial of seven counts of

public indecency (R.C. 2907.09), one count of disorderly conduct (R.C. 2917.11(B)(2)),

and one count of sexual imposition (R. C. 2907.06), and sentencing him to 210 days

incarceration with 131 days suspended, and placing him on community control for three

years. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 4, 2021, the victim and her twelve-year-old son went to Burger

King after her son’s football game. Appellant began following the victim in the parking lot.

Appellant said, “Damn momma,” to the victim. Trial Tr. 13. The victim grabbed her son,

placed him in front of her, and began moving him toward the restaurant door. Appellant

grabbed the victim’s buttock and said, “I think I need Seven-Up because your ass is

popping.” Trial Tr. 13. Appellant then split his hand over the victim’s thigh, and attempted

to grope her crotch. The victim grabbed Appellant’s hand and told him if he touched her

again, she was going to “whoop his ass.” Trial Tr. 14. Appellant told the victim when she

came back to the parking lot, he was going to rape her.

{¶3} The victim went inside the restaurant with her son, and asked the staff to

call the police. Appellant followed, yelling at her, her son, and the restaurant employees.

Appellant was removed from the restaurant, the door was locked, and employees called

the police.

{¶4} After he was removed from the restaurant, Appellant exposed his penis,

shaking it at people in the restaurant. Appellant urinated on the back driver’s side tire of

the victim’s vehicle, and rubbed his penis on the front bumper. Fairfield County, Case No. 2023 CA 00056 3

{¶5} Appellant was charged with seven counts of public indecency, one count of

disorderly conduct, and one count of sexual imposition. Following bench trial in the

Fairfield County Municipal Court, he was convicted of all charges and sentenced to an

aggregate term of incarceration of 210 days, with 131 days suspended. He was given

19 days of jail time credit, for an actual term of 60 days incarceration. He was placed on

community control for three years. It is from the March 2, 2022 judgment of the trial court

Appellant prosecutes his appeal, assigning as error:

THE TRIAL COURT ERRED AND THEREBY DEPRIVED

APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO

CONSTITUTION BY FINDING APPELLANT GUILTY, AS THE VERDICT

FOR THE CHARGE OF SEXUAL IMPOSITION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶6} Appellant argues his conviction of sexual imposition was against the

manifest weight of the evidence because there was not sufficient corroboration of the

victim’s testimony Appellant grabbed her buttock.

{¶7} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and Fairfield County, Case No. 2023 CA 00056 4

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, 1997-Ohio-52, quoting State v. Martin, 20 Ohio

App. 3d 172, 175 (1st Dist. 1983).

{¶8} Appellant was convicted of sexual imposition in violation of R.C. 2907.06,

which provides in pertinent part:

(A) No person shall have sexual contact with another; cause another

to have sexual contact with the offender; or cause two or more other

persons to have sexual contact when any of the following applies:

(1) The offender knows that the sexual contact is offensive to the

other person, or one of the other persons, or is reckless in that regard.

(B) No person shall be convicted of a violation of this section solely

upon the victim's testimony unsupported by other evidence.

{¶9} The victim’s son told police at the scene he did not see Appellant touch his

mother’s buttock, but heard her yell at Appellant. At trial, the victim’s son testified he saw

Appellant touch his mom’s buttock with his hand. Trial Tr. 53, 57, 60-61, 62. An employee

of Burger King testified he saw Appellant grab the victim’s buttock with his hand. Even if

the victim’s son’s testimony he saw Appellant put his hand on his mom’s buttock is not

considered because of its inconsistency with his prior statement, the employee’s

testimony provides eyewitness corroboration of the sexual imposition.

{¶10} Further, “[t]he corroborating evidence necessary to satisfy R.C. 2907.06(B)

need not be independently sufficient to convict the accused, and it need not go to every Fairfield County, Case No. 2023 CA 00056 5

essential element of the crime charged. Slight circumstances or evidence which tends to

support the victim's testimony is satisfactory.” State v. Economo, 76 Ohio St.3d 56, 60,

(1996). The State presented other evidence which tends to support the victim’s

testimony. The victim’s son told police he heard his mother yell at Appellant to get off of

her. A video taken from inside the restaurant showed hostile interaction between

Appellant, the victim, and restaurant employees, after which Appellant was removed from

the store. The victim immediately asked restaurant employees to call the police, and she

reported the touching. The victim’s son and a Burger King employee both heard Appellant

make sexual comments to the victim. All of this evidence tends to corroborate the victim’s

testimony.

{¶11} We find the judgment convicting Appellant of sexual imposition is not

against the manifest weight of the evidence. The assignment of error is overruled. The

judgment of the Fairfield County Municipal Court is affirmed.

By: Hoffman, J. Delaney, P.J. and King, J. concur