[Cite as State v. Stanforth, 2017-Ohio-4040.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-07-052
: OPINION - vs - 5/30/2017 :
HENRY L. STANFORTH, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015 CR 0171
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Henry Stanforth, appeals his conviction and sentence in
the Clermont County Court of Common Pleas for multiple sexual offenses. For the reasons
detailed below, we affirm.
{¶ 2} On March 26, 2015, Stanforth was indicted on one count of importuning in
violation of R.C. 2907.07, a third-degree felony, and two counts of gross sexual imposition in
violation of R.C. 2907.05, both third-degree felonies. The indictment alleged that between Clermont CA2016-07-052
June 1, 2014 and November 23, 2014, Stanforth sexually abused seven-year-old P.E. and
eight-year-old A.E.1
{¶ 3} This matter proceeded to a jury trial. The state presented the testimonies of the
victims' mother ("Mother") and father, social workers, the victims themselves, as well as other
individuals, including a former Stanforth victim who alleged a similar pattern of grooming and
exploitation when she was a child.
{¶ 4} Mother testified that, prior to this incident, she had a strong bond with Stanforth
and his wife for many years. Mother testified that the children also had a relationship with
Stanforth who was a grandfather-figure to A.E. and P.E. The children would go fishing and
four-wheeling with Stanforth in his backyard and Stanforth would occasionally give the0
children money and candy. The children would also stay the night at the Stanforth residence.
{¶ 5} In November of 2014, Mother testified that A.E. began wetting the bed and P.E.
would engage in similar changes in behavior such as sleeping on the couch or turning on the
television in the middle of the night. P.E. also began exhibiting self-esteem issues.
{¶ 6} Mother testified that in January of 2015, as she was making the bed, P.E.
started telling her that someone had been bullying her at school and later asked if they could
"speak privately." P.E. explained to Mother that someone had been "acting funny" in front of
her and later stated that a person had peed in front of her and that the person had touched
her "down there and that he had her touch him down there." Mother then spoke with A.E.,
who also confirmed that Stanforth had shown her his private parts.
{¶ 7} Mother contacted authorities and the children were interviewed by social
workers at the Mayerson Center. During the interview, as corroborated by the testimony of
1. Based on the range of dates contained in the indictment, P.E. may have been either six or seven years old and A.E. may have been seven or eight years old at the time of the abuse. For purposes of continuity, we will refer to P.E. as seven and A.E. as eight. -2- Clermont CA2016-07-052
the social worker, A.E. stated that Stanforth had lifted her shirt to look at her boobs and
pulled down her pants to look at her "thing" and that he had shown her his "thing." An
anatomical drawing confirmed that A.E. described her vagina as her "thing" and Stanforth's
"thing" as his penis. In her separate interview, P.E. stated that Stanforth had touched her
"thing" and had made her touch his "thing." Again, P.E. confirmed the meaning of "thing."
{¶ 8} The Clermont County Sheriff's Office assigned an investigator to the case and
Mother was asked to speak with Stanforth about the allegations while wearing a hidden
recording device. Mother spoke with Stanforth on two occasions in a nonconfrontational
manner, while acting as a concerned parent trying to understand the allegations. Mother did
not disclose that she had spoken with law enforcement. During the conversations, Stanforth
denied any wrongdoing, but offered strange and sometimes conflicting accounts. For
example, Stanforth initially denied any inappropriate conduct, but later admitted that the
children had seen him "peeing" in the woods. Later, Stanforth detailed an account where
A.E. had allegedly gotten injured while riding a four-wheeler and she had pulled her pants
and underwear down to inspect an injury. During all of the recorded conversations, Stanforth
denied the allegations as presented to him, but vacillated in some responses stating that he
would "make sure nothing happens again" and ensuring that he would never be with the
children alone. Several times, Stanforth expressed concern that his wife was "going to shit"
or "kill him" if she learned about the accusations.
{¶ 9} P.E. testified at trial and identified Stanforth as the perpetrator. P.E. explained
that she would hang out with Stanforth and ride four-wheelers at his house. P.E. detailed the
sexual incidents as occurring when she was alone with Stanforth in his exercise room.
During the summer of 2014, P.E. testified that Stanforth had touched her private parts and he
had her touch his private parts. P.E. stated that this had occurred on more than one
occasion and Stanforth had told P.E. not to tell anyone.
-3- Clermont CA2016-07-052
{¶ 10} A.E. also testified at trial and detailed the sexual incident occurring during the
summer of 2014. A.E., like her sister, stated that she would go over to Stanforth's house and
stay the night. Stanforth would go fishing with her and give her money and candy. Finally,
A.E. detailed the encounter with Stanforth and testified that Stanforth had shown her his
private and told her not to tell anyone.
{¶ 11} The final witness for the state was A.L. who was identified as a former
Stanforth victim brought to testify as to past sexual abuse relevant to show plan, scheme, or
absence of mistake. A.L. corroborated the grooming account and identified Stanforth's
scheme for engaging in sexual behavior with minor children. A.L. testified that when she was
12 years old, A.L. had befriended her by taking her out for fun activities like fishing and four-
wheeling. Eventually, Stanforth got A.L. alone and would begin the abuse. A.L. testified that
Stanforth would pull down her pants and touch her vagina and would pull down his pants and
have her touch his penis. A.L. likewise testified that Stanforth would give her money and
would take her to the store to buy candy. As with the victims in the present case, A.L. stated
that Stanforth told her not to tell anyone.
{¶ 12} The jury found Stanforth guilty of all offenses listed in the indictment. The trial
court imposed a three-year prison sentence for importuning and five-year prison sentences
for each count of gross sexual imposition. The trial court ordered all sentences to be served
consecutively for a total stated prison term of 13 years. Stanforth now appeals the decision
of the trial court, raising five assignments of error for review. For ease of discussion,
Stanforth's assignments of error will be addressed out of order.
{¶ 13} Assignment of Error No. 1:
{¶ 14} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING
EVIDENCE OF "OTHER ACTS" AS SUBSTANTIVE EVIDENCE.
{¶ 15} In his first assignment of error, Stanforth argues the trial court erred and -4- Clermont CA2016-07-052
abused its discretion by admitting other acts evidence through the testimony of A.L. regarding
his alleged prior sexual misconduct directed towards her when she was a 13-year-old child.
Stanforth's argument is without merit.
{¶ 16} A trial court has broad discretion in the admission and exclusion of evidence.
State v. Sanchez-Garza, 12th Dist. Butler No. CA2016-02-036, 2017-Ohio-1234, ¶ 33. In
turn, a reviewing court should not disturb evidentiary decisions in the absence of an abuse of
discretion that has created material prejudice. State v. Wainscott, 12th Dist. Clermont No.
CA2015-07-056, 2016-Ohio-1153, ¶ 17. An abuse of discretion is more than an error of law
or judgment, but instead connotes that "the trial court's decision was unreasonable, arbitrary
or unconscionable." State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-
6557, ¶ 8.
{¶ 17} Stanforth contends that A.L.'s testimony constitutes inadmissible other acts
evidence. As previously noted, A.L. testified that in 2000, when she was 12 years old, she
was sexually abused by Stanforth. A.L. explained that Stanforth was a relative of her
mother's ex-husband and would sometimes invite her and other young females over to his
house to fish and ride four-wheelers on his property. Eventually, Stanforth would get her
alone and would touch her vagina and breasts. This conduct occurred in Stanforth's
basement near the exercise equipment and in his truck. Following the instances of sexual
abuse, A.L. testified that Stanforth would give her money for candy and informed her that she
should not tell anyone of the sexual abuse.
{¶ 18} This issue is considered in light of Evid.R. 404(B) and R.C. 2945.59. The Ohio
Supreme Court outlined a three-part test for courts to use when determining the admissibility
of so-called "other acts" evidence. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶
19-20. First, the court should determine if the evidence is relevant to the determination of the
action. Id. at ¶ 20. Second, the court should determine whether the evidence is presented to -5- Clermont CA2016-07-052
prove the character of the accused to show activity in conformity therewith or whether the
evidence is presented for a legitimate purpose, such as those designated in Evid.R. 404(B).
State v. Ward, 12th Dist. Clermont No. CA2013-07-059, 2014-Ohio-990, ¶ 17. Finally, the
court should consider whether the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice. State v. Adams, 9th Dist. Lorain No. 15CA010868, 2017-
Ohio-1178, ¶ 10, quoting Williams at ¶ 20.
{¶ 19} Upon review of the record, we find the trial court did not abuse its discretion by
admitting A.L.'s testimony. First, the other acts evidence in A.L.'s testimony was relevant
because it tended to show Stanforth's motive and plan he exhibited of targeting, mentoring,
grooming, and abusing young females. Such testimony corroborated the testimony of A.E.
and P.E., as well as their mother in describing the relationship and the ultimate instances of
sexual abuse. Mother testified that she had a close relationship with Stanforth and he
accepted the role of a grandfather-figure for the children. The children testified that Stanforth
would fish and ride four-wheelers with them. Ultimately, Stanforth would isolate each child
and engage in sexual misconduct. Thereafter, Stanforth would give the victims money for
candy and would tell them "not to tell anybody."
{¶ 20} Second, the other acts evidence was elicited for a legitimate purpose,
including motive, intent, plan, scheme and absence of mistake. Stanforth's prior instance of
grooming was relevant to his motive, plan, and scheme. Similarly, Stanforth's prior conduct
rebutted his claims and denials captured on recording devices that perhaps the children had
only "caught him peeing" or that he accidentally viewed their vaginas. Furthermore,
immediately following A.L.'s testimony, the trial court gave a limiting instruction that such
evidence was not being offered to prove Stanforth's character. This instruction was also
given to the jury prior to deliberations. Williams, 134 Ohio St.3d at ¶ 23 (courts may presume
the jury followed instructions). -6- Clermont CA2016-07-052
{¶ 21} Third, the probative value of the other acts evidence was not substantially
outweighed by the danger of unfair prejudice. As noted above, the evidence of Stanforth's
prior conduct was relevant to Stanforth's motive and plan. The evidence was also not unduly
prejudicial because the trial court instructed the jury that the other acts evidence could not be
considered to show that Stanforth had acted in conformity with a character trait. The limiting
instruction lessened any potential prejudicial effect of A.L.'s testimony, which was relevant to
the testimony of P.E. and A.E. regarding the sexual abuse, which Stanforth had denied.
{¶ 22} Accordingly, we find the trial court did not abuse its discretion by permiting A.L.
to testify as to "other acts" evidence. Stanforth's first assignment of error is without merit and
hereby overruled.
{¶ 23} Assignment of Error No. 4:
{¶ 24} THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE
THE TESTIMONY PRESENTED WAS INSUFFICIENT FOR A FINDING OF GUILT.
{¶ 25} In his fourth assignment of error, Stanforth argues that his convictions are
based on insufficient evidence and against the manifest weight of the evidence. We
disagree.
{¶ 26} The concepts of sufficiency of the evidence and weight of the evidence are
legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10.
Nonetheless, as this court has observed, a finding that a conviction is supported by the
manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones,
12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. "Because sufficiency is required
to take a case to the jury, a finding that a conviction is supported by the weight of the
evidence must necessarily include a finding of sufficiency." State v. Hart, 12th Dist. Brown
No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶ 27} A manifest weight challenge scrutinizes the proclivity of the greater amount of -7- Clermont CA2016-07-052
credible evidence, offered at a trial, to support one side of the issue over another. State v.
Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether
a conviction is against the manifest weight of the evidence, a reviewing court examines the
entire record, weighs the evidence and all reasonable inferences, considers the credibility of
the witnesses, and determines 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. Morgan, 12th Dist. Butler Nos. CA2013-
08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶ 28} Gross sexual imposition is defined in R.C. 2907.05, 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.
The Revised Code defines "sexual contact" 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).
{¶ 29} Importuning is defined in R.C. 2907.07 and states:
(A) No person shall solicit a person who is less than thirteen years of age to engage in sexual activity with the offender, whether or not the offender knows the age of such person.
"Sexual activity" includes "sexual contact," which is defined above. R.C. 2907.01(C).
{¶ 30} Based on our review, we find Stanforth's convictions are both supported by
sufficient evidence and are not against the manifest weight of the evidence. The state -8- Clermont CA2016-07-052
presented the testimonies of several witnesses who presented background information as to
the grooming process, including that Stanforth had a seemingly strong bond with the victims
by engaging in fun activities like fishing and four-wheeling. The testimony confirmed the fact
that Stanforth had the opportunity to isolate the 7-and-8-year-old victims.
{¶ 31} The specific conduct charged included two counts of GSI for Stanforth's
conduct with 7-year-old P.E. P.E. testified that in the summer of 2015, Stanforth had
touched her vagina. P.E. also testified that Stanforth had shown her and had her touch his
penis.
{¶ 32} The remaining count, importuning, related to Stanforth's conduct with A.E. In
her testimony, A.E. stated that Stanforth had shown her his penis in the summer of 2015.
{¶ 33} We have thoroughly reviewed the evidence in this case and find the state
presented sufficient evidence to sustain Stanforth's convictions and the jury's verdict was not
against the manifest weight of the evidence. Acting as trier of fact, the jury was in the best
position to resolve factual questions and evaluate witness credibility. The testimony and
evidence introduced at trial establishes a common pattern of grooming and abuse that was
perpetrated against two young victims and a guilty finding on all counts was appropriate.
Accordingly, we find Stanforth's fourth assignment of error is without merit and hereby
overruled.
{¶ 34} Assignment of Error No. 2:
{¶ 35} THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT MERGING
THE CONVICTIONS OF COUNTS 2 AND 3.
{¶ 36} Assignment of Error No. 3:
{¶ 37} PRESENTATION OF TWO IDENTICAL COUNTS TO THE JURY VIOLATED
APPELLANT'S DUE PROCESS AND DOUBLE JEOPARDY RIGHTS.
{¶ 38} Stanforth's second and third assignments of error may be addressed together. -9- Clermont CA2016-07-052
Stanforth claims that the state failed to distinguish specific instances of sexual conduct in its
indictment, bill of particulars, and during trial. In particular, Stanforth argues that Counts 2
and 3 as listed in the jury instructions were identical and confused the jury. This lack of
specificity, according to Stanforth, violated his due process rights and subjected him to
double jeopardy. Stanforth maintains that the two GSI convictions should be merged or
otherwise dismissed as in violation of his constitutional rights. We disagree.
{¶ 39} Stanforth cites Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), and State v.
Hemphill, 8th Dist. Cuyahoga No. 85431, 2005-Ohio-3726, in support of his argument that
the state's case lacked the requisite level of specificity to sustain his convictions.
{¶ 40} In Valentine, the defendant was charged with 20 counts of child rape and 20
counts of felonious penetration of a minor. The state alleged that each count occurred over a
10-month period. Id. at 629. The indictment mirrored the Revised Code and contained
identical language for each count of child rape and felonious penetration. Id. The bill of
particulars alleged that each offense occurred in the defendant's home. Id. at 634. The Sixth
Circuit granted habeas relief because the indictment and evidence presented at trial "did not
attempt to lay out the factual bases of forty separate incidents that took place." Id. at 632. In
fact, the only evidence presented with regard to the number of sexual encounters between
Valentine and the victim came from the victim who described a typical abusive encounter and
then estimated the number of times that the behavior occurred. Id. at 632-633. The court
found that "[g]iven the way that Valentine was indicted and tried, it would have been
incredibly difficult for the jury to consider each count on its own." Id. at 633.
{¶ 41} In Hemphill, the defendant was convicted of 22 counts each of rape and gross
sexual imposition with sexually violent predator specifications, 7 counts each of rape without
specifications, and 22 counts of kidnapping with sexual motivation specifications. Id. at ¶ 49.
Relying on Valentine, the Eight District held that the state had failed to adequately - 10 - Clermont CA2016-07-052
differentiate these counts and, with three exceptions, failed to subject each count to
individual proof. Id. at ¶ 88, ¶ 112. The court found that the majority of the charges were
based on a "numerical estimate unconnected to individual, distinguishable events." Id. at ¶
88.
{¶ 42} Based on our review, we find that Stanforth's two GSI convictions for the
actions taken against P.E. are not subject to merger. Counts 2 and 3 involved two separate
acts of GSI against P.E. In her testimony, P.E. stated that Stanforth had touched her vagina
and she had touched Stanforth's penis. The two instances of sexual contact are not allied
offenses because Stanforth performed distinct sex acts upon the child victim and had a
different animus for each act. State v. Vancleve, 12th Dist. Clermont No. CA2014-03-024,
2015-Ohio-230, ¶ 20.
{¶ 43} Furthermore, Stanforth's two GSI convictions did not violate any due process
rights or subject him to "double jeopardy." The bill of particulars in this case specifically
stated that Count 2 related to the instance in which P.E. touched Stanforth's penis and Count
3 related to Stanforth fondling P.E.'s vagina. P.E.'s testimony separately identified each
instance of sexual contact and the state presented the issue as such. This case in unlike the
situations presented in Valentine and Hemphill where the state presented the evidence in an
"all or nothing" fashion and generically described a sexual act with an estimated number of
times the act occurred. Instead, the state presented evidence tied to each count. This
allowed Stanforth the chance to defend against each count separately and allowed the jury to
contemplate each count separately. As a result, we find that Stanforth's two GSI convictions
are supported by law and do not violate Stanforth's constitutional rights. Therefore,
Stanforth's second and third assignment of error are overruled.
{¶ 44} Assignment of Error No. 5:
{¶ 45} TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ADEQUATELY CROSS- - 11 - Clermont CA2016-07-052
EXAMINING THE WITNESSES.
{¶ 46} In his fifth assignment of error, Stanforth alleges that his trial counsel was
ineffective. We find no merit to Stanforth's argument.
{¶ 47} To establish a claim of ineffective assistance of counsel, the appellant must
show that counsel's actions were outside the wide range of professionally competent
assistance and that he was prejudiced as a result of counsel's actions. State v. Patrick, 12th
Dist. Butler No. CA2015-05-090, 2016-Ohio-995, ¶ 13, citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984).
{¶ 48} First, Stanforth argues that his trial counsel may have been unsympathetic to
his defense because this matter involved sexual crimes committed against young female
victims. However, a review of the record shows that Stanforth was zealously represented by
counsel and there is no suggestion, aside from Stanforth's own speculation, that any such
views tainted his counsel's presentation.
{¶ 49} Second, Stanforth argues that his trial counsel was ineffective because he did
not "properly" ask the victims to describe the physical features of his penis. This argument is
also without merit as the record indicates that Stanforth's trial counsel did cross-examine the
victims and asked whether the children could recall any distinctive features of Stanforth's
genitalia. When the young female children stated that they could not remember anything
unusual or any difference in "coloration," Stanforth's trial counsel declined to press further.
The decision to not dwell on such a graphic subject falls within the ambit of trial strategy.
State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 58. A decision to
further press the young victims on such a topic very much could have alienated the jury.
Accordingly, we find Stanforth did not receive ineffective assistance of counsel and his fifth
assignment of error is overruled.
- 12 - Clermont CA2016-07-052
{¶ 50} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
- 13 -