State v. Shreve

2017 Ohio 8390

Opinion

[Cite as State v. Shreve, 2017-Ohio-8390.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JACK SHREVE : Case No. 2017CA00014 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2016CR1488

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 30, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DONOVAN HILL Prosecuting Attorney 116 Cleveland Avenue North By: KATHLEEN O. TATARSKY Canton, OH 44702 Assistant Prosecuting Attorney 110 Central Plaza South Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2017CA00014 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Jack Shreve, appeals his December 28, 2016

conviction in the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 16, 2016, the Stark County Grand Jury indicted appellant on

two counts of rape in violation of R.C. 2907.02 and one count of gross sexual imposition

in violation of R.C. 2907.05. Said charges arose from incidents involving the daughter

of his live-in girlfriend. The daughter, K.H., was under ten years old at the time.

{¶ 3} A jury trial commenced on December 12, 2016. The jury found appellant

guilty of one of the rape counts and the gross sexual imposition count, and not guilty of

the other rape count. By judgment entry filed December 28, 2016, the trial court

sentenced appellant to an aggregate term of life imprisonment with parole eligibility after

serving fifteen years.

{¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 5} "THE APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

{¶ 6} In his sole assignment of error, appellant claims his convictions were

against the manifest weight and sufficiency of the evidence. We disagree. Stark County, Case No. 2017CA00014 3

{¶ 7} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest

weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting

of a new trial "should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction." Martin at 175.

{¶ 8} Appellant was convicted of rape in violation of R.C. 2907.02(A)(1)(b)

which states:

(A)(1) No person shall engage in sexual conduct with another who

is not the spouse of the offender or who is the spouse of the offender but

is living separate and apart from the offender, when any of the following

applies: Stark County, Case No. 2017CA00014 4

(b) The other person is less than thirteen years of age, whether or

not the offender knows the age of the other person.

{¶ 9} "Sexual conduct" is defined in R.C. 2907.01(A) as:

[V]aginal intercourse between a male and female; anal intercourse,

fellatio, and cunnilingus between persons regardless of sex; and, without

privilege to do so, the insertion, however slight, of any part of the body or

any instrument, apparatus, or other object into the vaginal or anal opening

of another. Penetration, however slight, is sufficient to complete vaginal or

anal intercourse.

{¶ 10} Appellant was also convicted of gross sexual imposition in violation of

R.C. 2907.05(A)(4) which states:

(A) No person shall have sexual contact with another, not the

spouse of the offender; cause another, not the spouse of the offender, to

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

to have sexual contact when any of the following applies:

(4) The other person, or one of the other persons, is less than

thirteen years of age, whether or not the offender knows the age of that

person. Stark County, Case No. 2017CA00014 5

{¶ 11} "Sexual contact" is defined in R.C. 2907.01(B) as: "[A]ny 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."

{¶ 12} For the rape count appellant was convicted of, the August 16, 2016

indictment alleged appellant, between February 1, and 22, 2016, engaged in sexual

conduct by "the insertion however slight of any part of the body or any instrument,

apparatus or other object into the vaginal or anal opening" of K.H. who was under the

age of ten.

{¶ 13} In his appellate brief, appellant challenges the credibility of the witnesses

and the contradictory testimony presented.

{¶ 14} At the time of trial, K.H. was nine years old. T. at 204. K.H. testified when

she was eight years old, she lived with her mom, her siblings, and appellant, her

mother's boyfriend. T. at 205-206. In February 2016, K.H. had her tonsils removed and

stayed home from school. T. at 206-207. At times she was left alone with appellant. T.

at 207. Appellant lured K.H. to an upstairs bedroom where he told her to watch a "nasty

movie," take off her clothes, put on her mother's clothes and black high heels, and get

on the bed whereupon he tied her to the bed and told her to be quiet. T. at 208-209.

K.H. testified appellant touched her "pee pee" with his finger and put a "dodo" in his

mouth. T. at 211. The dodo looked like a "wiener" and made buzzing sounds. Id. The

color of the dodo was blue, and there was also a white one. T. at 211-212. K.H. stated

appellant never touched her with the dodos. T. at 212. K.H. testified it only happened

two times, but in describing the second incident, stated appellant did not touch her. T. Stark County, Case No. 2017CA00014 6

at 212-213. K.H. admitted to telling people in the past that her biological father had

done something to her, but explained, "[m]y mom told me to lie about it." T. at 216. On

cross-examination, K.H. reiterated that appellant never touched her with the dodos, and

never touched her during the second incident. T. at 219-220.

{¶ 15} Suzanne Cutler conducted a forensic interview with K.H. after K.H.

disclosed the incidents to her school counselor. T. at 223, 237. Based upon the results

of the interview, Stark Count Jobs and Family Services contacted law enforcement. T.

at 227-228.

{¶ 16} Canton Police Detective Terry Monter executed a search warrant of the

home. T. at 243. In the upstairs master bedroom, he found pornographic videos, a blue

dildo, and black high heels. T. at 247-248; State's Exhibits 1-C, 1-D, 1-E, 2, 4, and 5. A

white dildo was discovered in a dresser drawer. T. at 250; State's Exhibits 1-F and 3.

{¶ 17} Canton Police Detective Joseph Mongold investigated the allegations. He

received information that K.H. had disclosed the following (T. at 277-278):

Specifically that on an incident where she was home from school

and she was left home alone with Mr. Shreve, that he did touch her, and

I'll use her words, "her pee pee," with both his finger, by inserting his finger

into her pee pee with his pee pee on her pee pee and on her butt and did

use sexual devices, and she was very specific on those sexual devices

that were used; a white, I believe that she referred to it as a dodo on her,

and she described that as a device that vibrated, and she stated that he

used a blue dodo on himself during the incident. Stark County, Case No. 2017CA00014 7

{¶ 18} Detective Mongold stated appellant consented to an interview and

voluntarily gave a DNA sample. T. at 281, 283. Appellant denied the allegations, but

admitted to watching pornography and "liked to have the individual that he was having

sex with wear high heels during sex." T. at 283, 298.

{¶ 19} Appellant's DNA was found on the non-handle of the blue dildo. T. at 286,

330-331; State's Exhibit 6-C. K.H.'s DNA was found on the handle and non-handle of

the white dildo. T. at 287, 332-333; State's Exhibit 6-C.

{¶ 20} Megan Dahlheimer, a pediatric nurse practitioner at Akron Children's

Hospital, physically examined K.H. T. at 345, 347. She testified K.H. told her appellant

put his pee pee "into her pee pee as well as into her butt." T. at 356. K.H. also told her

about the dildos and the nasty pictures. Id. The physical examination did not reveal

anything abnormal which Ms. Dahlheimer explained was not abnormal because "up to

96 percent, 97 percent of patients seen have a completely normal exam." T. at 359-

360. Ms. Dahlheimer completed a written assessment and diagnosed child sexual

abuse. T. at 361-362, 371; State's Exhibit 7. In making her diagnosis, Ms. Dahlheimer

noted the following (T. at 364-365):

"A forensic interview was completed with the patient while she was

in school. During her interview with Ms. Cutler, she disclosed vaginal-

penile and anal-penile penetration by Jack as well as oral-vaginal

penetration. Additionally, [K.] states she was made to watch pornography. Stark County, Case No. 2017CA00014 8

"During [K.]'s medical examination today, she has disclosed

vaginal-penile, anal-penile, and oral-vaginal penetration as well to this NP.

She states this has happened more than one time. [K.] also speaks about

being made to watch pornography while in Jack's room.

{¶ 21} Carrie Schnirring, a psychology assistant at Northeast Ohio Behavioral

Health, met with K.H. four times and diagnosed her with posttraumatic stress disorder.

T. at 390, 401, 422; State's Exhibit 8. K.H. would at times speak in "baby talk" and then

get angry and blurt out angry statements in discussing what appellant did to her,

indicating the topic was stressful for her. T. at 406. K.H. told Ms. Schnirring that

appellant took her to the bedroom and would make her watch a "nasty show, and then

she explained that he would then copy the things that he saw on the nasty show with

her." T. at 412. Appellant "would have her wear nasty clothes" and then "take those

clothes off of her." Id. Appellant would put his private part "in her butt and also in her

vagina." T. at 413. K.H. also told Ms. Schnirring about the blue and white dildos and

explained that appellant would put one inside her pee pee. Id. "[A]fter he did that, when

she went to the bathroom afterwards and she wiped, there was blood on the toilet

paper." Id. This indicated to Ms. Schnirring that "this was something more than just her

finding someone's sex toys in a bedroom. This was something that she actually

experienced because it caused her to bleed later." T. at 414-415.

{¶ 22} Prior to meeting with K.H. over the incidents involving appellant, Ms.

Schnirring had evaluated K.H. in 2015 over sexual allegations she had made against

her biological father. T. at 425-426. At that time, K.H.'s disclosures to Ms. Schnirring Stark County, Case No. 2017CA00014 9

were very inconsistent compared to the information she had provided during the

forensic interview. T. at 427. The story changed, the names changed, and K.H.

contradicted herself. Id. K.H.'s details were "fantastical in nature," seemed

"implausible," and were "farfetched." T. at 428. The allegations were not able to be

verified and were deemed inconclusive. Id. K.H. later explained her mother had

advised her to lie about her biological father. T. at 420. In comparison, K.H.'s

descriptions of the incidents with appellant were consistent and contained idiosyncratic

details i.e., "very unique aspects of the experience." T. at 405, 414, 421, 426-427.

{¶ 23} In defense, appellant called Meredith Skortschir, a psychiatric nurse

consultant with Child & Adolescent Behavioral Health. T. at 453. Ms. Skortschir saw

K.H. in later 2015 through the beginning of 2016 to help her with her medications for

ADHD and "an adjustment disorder with anxiety and depression." T. at 405, 453, 455.

Ms. Skortschir found K.H. to be both a truthful person and one that would tell lies. T. at

459.

{¶ 24} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552

N.E.2d 180 (1990). The trier of fact "has the best opportunity to view the demeanor,

attitude, and credibility of each witness, something that does not translate well on the

written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 25} The jury heard testimony from nine year old K.H. recounting that appellant

had touched her pee pee with his finger. Although she testified appellant had not

touched her with the dildos, her DNA was found on the white one. K.H. disclosed to

others that appellant had touched her pee pee with the white dildo. While there were Stark County, Case No. 2017CA00014 10

some inconsistencies between her trial testimony and what she had reported to others,

her disclosures to others were fairly consistent. She consistently described the

pornographic movies, the high heels, the two dildos, and appellant touching her pee pee

with his finger and the white dildo.

{¶ 26} Given K.H.'s testimony, corroborated by Ms. Dahlheimer's diagnosis of

child sexual abuse, Ms. Schnirring's diagnosis of posttraumatic stress disorder, and the

forensic evidence of K.H.'s DNA on the white dildo, we find sufficient credible evidence

of appellant engaging in sexual conduct/contact with K.H.

{¶ 27} Upon review, we find sufficient evidence, if believed, to support the

convictions, and do not find any manifest miscarriage of justice.

{¶ 28} The sole assignment of error is denied.

{¶ 29} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Hoffman, J. concur.

EEW/sg 106