[Cite as State v. Steele, 2012-Ohio-3777.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2011-CA-110 JOSHUA STEELE : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 11CR-I- 08-0463
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 17, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant CAROL O’BRIEN GREGORY TAPOCSI SCOTT WOLF Delaware County Prosecutor Firestone, Brehm, Hanson & Wolf, LLP 140 N. Sandusky Street 15 West Winter Street Delaware, OH 43015 Delaware, OH 43015 [Cite as State v. Steele, 2012-Ohio-3777.]
Gwin, J.
{¶1} Appellant Joshua J. M. Steele [“Steele”] appeals from the October 31,
2011 judgment entry of the Delaware County Court of Common Pleas convicting him
after a jury trial of five counts of Unlawful Sexual Conduct with a Minor, two counts of
Rape, and one count of Gross Sexual Imposition. Appellee is the State of Ohio.
FACTS
{¶2} Beginning in 2006, Rich and Mindy Lyons, along with their three children
Jonathan, Nicole, and victim J.L., lived on a rented farm. In 2009, Steele, Mr. Lyons'
nephew, moved into the Lyons' home so Steele could be closer to his employment at a
nearby golf course. Steele left for work daily at approximately 6:30 a.m. and returned to
the home at approximately 3:00 p.m., at which time the family members would perform
various chores, eat dinner, and watch movies. Due to a recent back surgery, Mr. Lyons
went to sleep by 10:00 p.m. while Mrs. Lyons worked third shift at a local factory from
8:30 p.m. until 6:00 a.m.
{¶3} After Mr. and Mrs. Lyons went to either sleep or work respectively, Steele,
J.L., and her sister Nicole would often watch movies in the basement of the home.
However, Nicole would go to bed at which time Steele would make his cousin J.L. touch
him and have sex with him. This occurred almost every night. According to J.L., Steele
first tried to persuade J.L. to engage in sexual activity by buying her items such as
Monster energy drinks. When J.L. refused Steele’s advances, he began molesting her
by forcing J.L. to masturbate him and later progressed to forced oral and vaginal sex.
J.L. testified that forced sexual encounters occurred in the living room, basement, and
bedroom. Delaware County, Case No. 2011-CA-110 3
{¶4} Mr. and Mrs. Lyons were unaware of Steele’s victimization of J.L. even
though they viewed several suspicious activities that were later determined to be
indicators of Steele’s molestation of J.L. For example, Mrs. Lyons was awakened late
one night by the family dog barking in J.L.'s room. Mrs. Lyons found Steele in the room
supposedly to retrieve "movies." Further, Mr. Lyons viewed Steele alone with J.L. on
one occasion during which Mr. Lyons observed Steele to have "pinned" a crying J.L.
between their house and a line of cars. J.L. also began sleeping with her father or had
the family dog sleep with her as well in an effort to try to stop Steele’s unwanted sexual
advances. Moreover, while Steele lived with the Lyons' family, J.L. was very depressed
and refused to socialize with anyone, which was completely different from her "happy
normal self' and her demeanor as a "happy go lucky kid."
{¶5} J.L. did not disclose Steele’s criminal actions until roughly one year later
because she was "scared" of him after he previously held a knife up to her arm and was
further "worried about getting in trouble" by her parents. J.L. eventually told a friend
about Steele's acts and the friend stated she would tell J.L.'s parents even if J.L.
refused to do so. As a result, J.L. eventually disclosed to her parents on March 7, 2010,
that Steele molested her. Mr. Lyons subsequently called the Delaware County Sheriff’s
Office. Detective Christina Burke was assigned to investigate J.L.'s case. Steele spoke
to Detective Burke and denied all of the allegations. Delaware County, Case No. 2011-CA-110 4
PROCEDURAL HISTORY
{¶6} On March 25, 2011, an indictment (Case No. 11 CRI 03 0176) was filed in
the Delaware County Common Pleas Court charging Steele, with four counts of rape, all
violations of Ohio Revised Code Section 2907.02(A)(2), four counts of Unlawful Sexual
Conduct with a Minor, all violations of Ohio Revised Code Section 2907.04(A), one
count of Gross Sexual Imposition, a violation of Ohio Revised Code Section
2907.05(A)(1), and three counts of Gross Sexual Imposition, all violations of Ohio
Revised Code Section 2907.05(A)(4).
{¶7} The original case was dismissed and Steele was re-indicted on August 26,
2011 (Case No. 11 CRI 08 0463). The new indictment charged Steele with five counts
of rape, all violations of Ohio Revised Code Section 2907.02(A)(2), five counts of
Unlawful Sexual Conduct with a Minor, all violations of Ohio Revised Code Section
2907.04(A), one count of Gross Sexual Imposition, a violation of Ohio Revised Code
Section 2907.05(A)(1), and one count of Gross Sexual Imposition, a violation of Ohio
{¶8} Nine items retrieved from the Lyons’ home were submitted to the Ohio
Bureau of Criminal Identification and Investigation [BCI & I] for DNA testing. The first
five items were pieces of physical evidence obtained from Steele's living quarters in the
basement of J.L.'s home: a couch cover, a washcloth, a sleeping bag, a fitted sheet,
and a flat sheet. The last four items submitted were DNA samples obtained from J.L.,
her sister Nicole, her brother Jonathan, and Steele to be used for comparison. Delaware County, Case No. 2011-CA-110 5
{¶9} According to the report, the sleeping bag was found to contain semen and
was also found to be presumptive for the presence of blood. However, subsequent
testing at BCI & I indicated that a probative DNA sample could not be obtained.
{¶10} During the course of trial preparation, the state learned the four other
physical items taken from Steele's living quarters were also tested by BCI & I and tested
positive for either semen or seminal fluid. At the final pre-trial conference held
September 2, 2011, the state asked for a continuance of the September 6, 2011 trial
date in order for the test results to be completed and supplied to Steel’s attorney in
compliance with Crim.R.16 (K). Steele objected to the continuance. As a result, the trial
court denied the state’s request to continue the trial and ruled the new evidence was not
admissible at trial. (3T. at 270-271; 5T. at 470-471).
{¶11} Trial commenced on September 6, 2011. After the close of evidence on
the first day of trial Steele’s attorney received a copy of the DNA report. According to
the report, the results of the DNA comparison reveal that the
Differential extraction of the couch cover (item 1.1) resulted in a mixture of
at least two individuals and is consistent with contributions from Joshua
Steele. No conclusions can be made regarding [J.L.], Nicole Lyons and
Jonathon Lyons as possible contributors to the mixture.” Furthermore, "the
differential extraction of the washcloth (item 2.1) resulted in a single DNA
profile from an unknown female" and that the "differential extraction of the
fitted sheet (Item 4.1) and the flat sheet (Item 5.1) resulted in a single DNA
profile from the same unknown male.” Furthermore, the results revealed, Delaware County, Case No. 2011-CA-110 6
"[J.L.], Nicole Lyons, Jonathon Lyons and Joshua Steele are not the
source of the DNA from the washcloth, the fitted sheet or the flat sheet.
{¶12} At trial, the State introduced a copy of a laboratory report produced by
Sarah Glass, a forensic biologist with the BCI & I, as State's Exhibit 18. This evidence
was limited to the evidence pertaining to the sleeping bag. In addition, J.L., her parents
Richard and Mindy Lyons, therapist Marjan Cuckler, testified on behalf of the state.
{¶13} At the conclusion of the state's case-in-chief, the trial court granted
Steele's Crim.R. 29 Motion for Acquittal regarding Count Twelve of the Indictment.
Count Twelve concerned a previous occurrence of sexual conduct by Steele against
J.L. at a location in Franklin County, which occurred sometime between 2001 and 2004.
During this incident, J.L., who was age six at the time, stayed at the residence of
Steele’s parents while her parents were out of town. J.L. testified that during that visit,
she was lying on her side on a bed when Steele lay behind her and placed his erect
penis against her buttocks while both were clothed. The trial court noted Count Twelve
was alleged to have occurred between 2001 and 2004 while the other counts occurred
five years later in 2009 at a different location. Accordingly, the trial court granted
Steele’s Crim.R. 29 motion regarding Count Twelve.
{¶14} Steele testified in his own defense. His mother Pamela Steele testified
concerning her knowledge of the facts. Norma Wells, a neighbor, testified as to Steele’s
character. Nicole Lyons, who is J.L.'s sister, testified on Steele’s behalf as to her
personal observations of Steele and J.L. The state then called Richard Lyons as a
rebuttal witness. Delaware County, Case No. 2011-CA-110 7
{¶15} The jury returned with guilty verdicts on Count Two (Unlawful Sexual
Conduct with a Minor, F3), Count Four (Unlawful Sexual Conduct with a Minor, F3),
Count Five (Rape, F1), Count Six (Unlawful Sexual Conduct with a Minor, F3), Count
Eight (Unlawful Sexual Conduct with a Minor, F3), Count Nine (Rape, F1), Count Ten
(Unlawful Sexual Conduct with a Minor, F3), and Count Eleven (Gross Sexual
Imposition(Force), F3). The jury made findings of Not Guilty on Counts One (Rape),
Three (Rape), and Seven (Rape).
ASSIGNMENTS OF ERROR
{¶16} Steele raises four assignments of error,
{¶17} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING THE DEFENDANT-APPELLANT'S CRIMINAL RULE 33 MOTION FOR A
NEW TRIAL BASED UPON THE STATE'S AMENDMENT OF THE COMPLAINT.
{¶18} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A RULE 29 ACQUITTAL.
{¶19} III. “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL BASED
UPON THE DISCOVERY OF NEW EVIDENCE WHICH WOULD HAVE BEEN KNOWN
PRIOR AT OR PRIOR TO TRIAL BUT FOR A BRADY VIOLATION BY THE STATE OF
OHIO.
{¶20} “IV. THE JURY'S GUILTY VERDICTS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED AT THE TRIAL IN THIS MATTER.” Delaware County, Case No. 2011-CA-110 8
I.
{¶21} In his first assignment of error, Steele maintains that the trial court erred in
not granting him a new trial based upon the state’s amendment of the Indictment.
{¶22} In the case sub judice, at the close of the state's presentation of evidence
and immediately prior to resting its case, the state moved to amend the time period
alleged in the indictment pursuant to Criminal Rule 7(D). The amendment expanded the
time period contained in the Indictment from “May 1, 2009 through September 1, 2009,”
to “March 1, 2009 through September 1, 2009.” (5T. at 450).
{¶23} Crim.R.33, provides the procedure for obtaining a new trial, state, in part,
(A) Grounds
A new trial may be granted on motion of the defendant for any of
the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the defendant
was prevented from having a fair trial;
(2) Misconduct of the jury, prosecuting attorney, or the witnesses
for the state;
(3) Accident or surprise which ordinary prudence could not have
guarded against;
(4) That the verdict is not sustained by sufficient evidence or is
contrary to law. If the evidence shows the defendant is not guilty of the
degree of crime for which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify the Delaware County, Case No. 2011-CA-110 9
verdict or finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified;
(5) Error of law occurring at the trial;
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at the
hearing on the motion, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce
affidavits or other evidence to impeach the affidavits of such witnesses.
***
(E) Invalid grounds for new trial
No motion for a new trial shall be granted or verdict set aside, nor
shall any judgment of conviction be reversed in any court because of:
(1) An inaccuracy or imperfection in the indictment, information, or
complaint, provided that the charge is sufficient to fairly and reasonably
inform the defendant of all the essential elements of the charge against
him.
(2) A variance between the allegations and the proof thereof,
unless the defendant is misled or prejudiced thereby; Delaware County, Case No. 2011-CA-110 10
(3) The admission or rejection of any evidence offered against or
for the defendant, unless the defendant was or may have been prejudiced
thereby;
(4) A misdirection of the jury, unless the defendant was or may
have been prejudiced thereby;
(5) Any other cause, unless it affirmatively appears from the record
that the defendant was prejudiced thereby or was prevented from having a
fair trial.
{¶24} The decision whether to grant or deny a motion for mistrial lies within the
sound discretion of the trial court, and its decision will not be reversed on appeal absent
an abuse of discretion that has adversely affected substantial rights of the accused such
that a fair trial is no longer possible. State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623,
1995-Ohio-168; State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900(1988); State v.
Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490(2nd Dist. 1988).
{¶25} Steel’s argument concerns the amendment of the Indictment to include the
months of March and April 2009. Steele argues that the state “amended an element of
the offense which it failed to prove in its case in chief.” [Appellant’s Brief at 6].
{¶26} Specificity as to the time and date of an offense is not required in an
indictment. Under R.C. 2941.03: “an indictment or information is sufficient if it can be
understood therefrom: * * * (E) That the offense was committed at some time prior to the
time of filing of the indictment * * *.” An indictment is not invalid for failing to state the
time of an alleged offense or doing so imperfectly. The state is not required to prove that
an offense occurred on any specific date, but rather may prove that the offense Delaware County, Case No. 2011-CA-110 11
occurred on a date reasonably near that charged in the indictment. State v. Adams, 5th
Dist. No. 02-CA-00043, 2002-Ohio-5953 at ¶ 8.
{¶27} If such is not fatal to an indictment, it follows that impreciseness and
inexactitude of the evidence at trial is not “per se impermissible or necessarily fatal to a
prosecution.” State v. Robinette, 5th Dist. No. CA-652, 1987 WL 7153(Feb 27, 1987).
The question in such cases is whether the inexactitude of temporal information truly
prejudices the accused's ability fairly to defend himself. State v. Sellards, 17 Ohio St.3d
169, 478 N.E.2d 781(1985); State v. Gingell, 7 Ohio App.3d 364, 368, 455 N.E.2d 1066,
1071(1st Dist. 1982); State v. Kinney, 35 Ohio App.3d 84, 519 N.E.2d 1386(1987).
{¶28} As this court has noted: “[t]ime is neither essential nor an element of the
crime of sexual battery.” State v. Robinette, supra. In Robinette, this court stated,
We note that these particular cases often make it more difficult to
ascertain specific dates. The victims are young children who may
reasonably be unable to remember exact times and dates of
psychologically traumatic sexual abuses. This is especially true where the
crimes involve several instances of abuse spread out over an extended
period of time. State v. Humfleet (Sept. 9, 1985), Clermont App. No.
CA84-04-031, unreported, at 15. The problem is compounded where the
accused and the victim are related or reside in the same household,
situations which often facilitate an extended period of abuse. An allowance
for reasonableness and inexactitude must be made for such cases
considering the circumstances. Delaware County, Case No. 2011-CA-110 12
{¶29} In State v. Sellards, the Supreme Court gave two examples of when the
failure to provide specific dates and times could be prejudicial to the accused. The court
first noted that if the age of the victim were an element of the crime with which the
accused had been charged and the victim bordered on the age required to make the
conduct criminal, then the failure to provide a more specific time frame would be
prejudicial. This is true because “specific dates of sexual conduct might well have
become critical to the accused's ability to prepare a defense, since sexual conduct
toward one thirteen years of age or older would not constitute the offense of rape as
defined in the charged section of the criminal code, R.C. 2907.02(A)(3).” Sellards, 17
Ohio St.3d at 172, 478 N.E.2d at 785. The second situation is where “the defendant had
been imprisoned or was indisputably elsewhere during part but not all of the intervals of
time set out in the indictment. Again, under such circumstances, the inability of the state
to produce a greater degree of specificity would unquestionably prejudice the defense.”
Id. The Sellards court noted,
The record in this case does not indicate that the failure to provide
the accused with a specific date was a material detriment to the
preparation of his defense. In this regard, we note that while appellee
claims on appeal that the inexactitude of the indictment and bill of
particulars as to date denied him the ability to present an alibi defense,
appellee never filed a notice of intent to rely on an alibi as is required by
Crim.R. 12.1. (Cf. State v. Dingus [1970], 26 Ohio App.2d 131, 137, 269
N.E.2d 923 [55 O.O.2d 280]; Gingell, supra, at 368, 455 N.E.2d 1066.)
17 Ohio St.3d 169, 478 N.E.2d 781(1985). Delaware County, Case No. 2011-CA-110 13
{¶30} In the case at bar, Steele could have, but did not, request a continuance in
response to the trial court’s decision to amend the indictment. Further, we find that
Steele was fully aware the time during which the crimes were alleged to have occurred
is the time that he lived in the Logan’s home. Steele did not deny that he lived there.
Steele did not file a notice of alibi for any of the period set forth in the original
indictment. J.L. testified at trial and Steele fully cross-examined her concerning the time
during which the crimes had occurred and the fact that the dates included the spring
and summer months. (4T. at 336-339; 354-357).
{¶31} Steele has not demonstrated that the inclusion of March and April 2009 in
the case was material to any defense theory he put forth at trial; rather he makes only a
generalized assertion.
{¶32} The inexactitude of temporal information did not truly prejudice Steele’s
ability fairly to defend himself. In addition, we find that Steele was adequately apprised
of the crimes against him and was not denied a fair trial.
{¶33} Accordingly, the trial court did not abuse its discretion in denying Steele’s
motion for a new trial.
{¶34} Steel’s first assignment of error is overruled in its entirety.
II. & IV.
{¶35} Because Steele’s second and fourth assignments of error each require us
to review the evidence, we shall address the assignments collectively.
{¶36} In his second assignment of error, Steele alleges that the trial court erred
in not granting his Crim. R. 29 motion for acquittal. In determining whether a trial court
erred in overruling an appellant's motion for judgment of acquittal, the reviewing court Delaware County, Case No. 2011-CA-110 14
focuses on the sufficiency of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545,
553, 651 N.E.2d 965, 974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d
492(1991).
{¶37} In his fourth assignment of error, Steele maintains that his convictions are
against the sufficiency of the evidence and against the manifest weight of the evidence,
respectively.
{¶38} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, _U.S._, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶ 68.
{¶39} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue Delaware County, Case No. 2011-CA-110 15
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶40} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.” Delaware County, Case No. 2011-CA-110 16
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶41} In the case at bar, Steele was convicted of Rape, Unlawful Sexual
Conduct with a Minor, and Gross Sexual Imposition.
{¶42} In order to convict Steele of Rape pursuant to R.C. 2907.02(A)(2), the
state had to prove he engaged in sexual conduct with J.L. by force or threat of force.
{¶43} “Corroboration of victim testimony in rape cases is not required. See
State v. Sklenar (1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks
(1991), 71 Ohio App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio
App.3d 624, 638, 591 N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7
OBR 464, 455 N.E.2d 1066.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-
Ohio6404 at ¶ 53, 858 N.E.2d 1144, 1158.
{¶44} In the case at bar, J.L. testified to specific acts occurring in the living room,
basement and bedroom. Steele forced her to touch his erect penis and then to have oral
or vaginal sex.
{¶45} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Steele had sexual conduct with J.L. and further that he committed the crimes of Rape.
We hold, therefore, that the state met its burden of production regarding each element
of the crimes of rape and, accordingly, there was sufficient evidence to support Steele’s
convictions for Rape.
{¶46} In addition to Rape, the jury convicted Steele of Unlawful Sexual Conduct
with a Minor pursuant to R.C. 2907.04, which provides, Delaware County, Case No. 2011-CA-110 17
(A) No person who is eighteen years of age or older shall engage in
sexual conduct with another, who is not the spouse of the offender, when
the offender knows the other person is thirteen years of age or older but
less than sixteen years of age, or the offender is reckless in that regard.
{¶47} “Sexual conduct” is defined to include “vaginal 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 cavity of another.
Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.
2907.01(A).
{¶48} In the case at bar, Counts Two and Eight of the Indictment were alleged to
be vaginal intercourse; Count Ten was alleged to be fellatio. Count Ten was found to be
an allied offense of Count Nine (Rape). Therefore, Steele received no sentenced on the
charge of Unlawful Sexual Conduct with a Minor as found in Count Ten, the state
choosing instead to sentence Steel on the Rape as found in Count Nine.
{¶49} The jury found Steele not guilty of Rape as alleged in Counts Three and
Seven, choosing instead to find Steele Guilty of the Unlawful Sexual Conduct with a
Minor charges in Counts Two and Eight.
{¶50} J.L. testified that Steele forced her to have vaginal intercourse in the living
room, in which he used a blanket to cover-up; the basement during which he used a
sleeping bag to cover-up ; and in J.L.’s bedroom.
{¶51} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that Delaware County, Case No. 2011-CA-110 18
Steele had sexual conduct with J.L. and further that he committed the crime of Unlawful
Sexual Conduct with a Minor, as alleged in Counts Two, Eight and Ten. We hold,
therefore, that the state met its burden of production regarding each element of the
crimes of Unlawful Sexual Conduct with a Minor. Accordingly, there was sufficient
evidence to support Steele’s conviction for Unlawful Sexual Conduct with a Minor, as
alleged in Counts Two, Eight and Ten.
{¶52} Steel was also convicted of Gross Sexual Imposition pursuant to R.C.
2907.05(A)(1), which prohibits “sexual contact” when the offender purposely compels
the other person to submit by force or threat of force. “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. Accordingly, touching the
“erogenous zone” is what is prohibited.
{¶53} J.L. testified that during the living room incident, Steele grabbed her hand
and pulled it over to his penis.
{¶54} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Steele had sexual contact with J.L. and further that he committed the crime of Gross
Sexual Imposition. We hold, therefore, that the state met its burden of production
regarding each element of the crimes of Gross Sexual Imposition. Accordingly, there
was sufficient evidence to support Steele’s conviction for Gross Sexual Imposition.
{¶55} In addition to J.L.’s testimony, we note the state presented circumstantial
evidence to support the charges. J.L.'s mother and father testified as to her demeanor Delaware County, Case No. 2011-CA-110 19
before, during, and after Steele's repeated sexual assaults. Evidence was presented to
show that J.L. strangely began sleeping in her parents' bed while Steele was staying
with the family. J.L.’s father testified that he was only awakened by J.L. one time while
Steele was living at the residence during which J.L. crawled into his bed, began crying,
and refused to tell her father the reasons. Further, forensic scientist Sarah Glass
described how she located semen from a sleeping bag in the basement of the home at
issue.
{¶56} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,
quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.
In other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,
at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.
{¶57} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may Delaware County, Case No. 2011-CA-110 20
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752
(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714
(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may
accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State
v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶58} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the
Supreme Court further cautioned, Delaware County, Case No. 2011-CA-110 21
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
{¶59} Although Steele cross-examined the witnesses and argued that J.L.
lacked credibility and had made false allegations because she was jealous of her
sister’s relationship with Steele, 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).
{¶60} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best
position to evaluate this competent, credible evidence, and we will not substitute our
judgment for that of the trier of fact. The jury neither lost their way nor created a
miscarriage of justice in convicting Steele of the charges. Delaware County, Case No. 2011-CA-110 22
{¶61} Steele’s second and fourth assignments of error are overruled in their
entirety.
III.
{¶62} In his third assignment of error, Steele argues that the failure of the state
to provide him before trial with the results of DNA testing concerning four items taken
from his living quarters at the Lyons’ home was prejudicial error. Steele contends that
the state withheld this evidence from him in violation of Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215(1963).
{¶63} Under Brady, the State violates a defendant’s right to due process if it
withholds evidence that is favorable to the defense and material to the defendant’s guilt
or punishment. See 373 U. S., at 87. The Supreme Court has explained, “evidence is
‘material’ within the meaning of Brady when there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would have been different.”
Cone v. Bell, 556 U. S. 449, 469–470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). A
reasonable probability does not mean that the defendant “would more likely than not
have received a different verdict with the evidence,” only that the likelihood of a different
result is great enough to “undermine [] confidence in the outcome of the trial.” Kyles v.
Whitley, 514 U. S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation
marks omitted).
{¶64} In State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913(1990), the Ohio
Supreme Court rejected a claim that the state's failure to provide exculpatory
information to the defendant prior to trial was a reversible Brady violation for three
reasons. First, the Court noted that in United States v. Agurs (1976), 427 U.S. 97, 103, Delaware County, Case No. 2011-CA-110 23
96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, the United States Supreme Court noted that the
rule of Brady applies to situations involving the discovery, after trial, of information which
was known to the prosecution but unknown to the defense. In Wickline, the alleged
exculpatory records were presented during the trial, and therefore no Brady violation
existed. 50 Ohio St.3d at 116, 552 N.E.2d 913. Accord, State v. Hanna, 95 Ohio St.3d
285, 767 N.E.2d 678, 2002-Ohio-2221, ¶82; State v. Green, 90 Ohio St.3d 352, 372,
738 N.E.2d 1208(2000).
{¶65} Second, the court in Wickline noted that Crim. R. 16(E)(3) provides:
If at any time during the course of the proceedings it is brought to
the attention of the court that a party has failed to comply with this rule or
with an order issued pursuant to this rule, the court may order such party
to permit the discovery or inspection, grant a continuance, or prohibit the
party from introducing in evidence the material not disclosed, or it may
make such other order as it deems just under the circumstances.
{¶66} The court held that the appellant could have pursued less drastic means
than seeking a new trial. Id. The appellant argued that no remedial order could have
ensured his right to a fair trial because the leading witness against him had already
testified. The court concluded that pursuant to Crim. R. 16(E)(3), the trial court was
empowered to order the return of the witness and make her available for continued
cross-examination. Id. at 117, 552 N.E.2d 913.
{¶67} Finally, the Wickline court concluded that the appellant had failed to show
how the outcome of his trial would have been different had the materials been disclosed
prior to trial. Id. In determining whether the prosecution improperly suppressed evidence Delaware County, Case No. 2011-CA-110 24
favorable to an accused, the evidence is material only if there is a reasonable
probability that the result of the proceeding would have been different had the evidence
been disclosed to the defense. Id., citing State v. Johnston, 39 Ohio St.3d 48, 529
N.E.2d 898(1988), paragraph 5 of the syllabus. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
{¶68} As in Wickline, Steele was given access to the complete report during trial,
and, therefore, a Brady violation did not occur. While it is unclear whether counsel
looked at the report during the trial, had counsel done so when it was made available to
him and believed the information therein was material Steele could have asked the trial
court to revisit the prior ruling sustaining Steel’s request that the report not be
admissible. “Brady applies only to material discovered after trial because the defendant,
if he chooses to, can generally ensure that material discovered prior to or during trial will
be entered into evidence and is, thus, not substantially prejudiced.” State v. Aldridge,
120 Ohio App.3d 122, 146, 697 N.E.2d 228(2nd Dist. 1997). Delaware County, Case No. 2011-CA-110 25
{¶69} At trial, Steele did argue that the DNA evidence did not match him. (6T. at
679). He further suggested that the DNA might belong to someone else from whom a
sample had not been obtained for comparison. (Id. at 685). Thus, Steele has not
demonstrated a reasonable probability of a change in the outcome had he been given
the entire report prior to the start of the trial.
{¶70} Steele’s third assignment of error is overruled in its entirety.
{¶71} Accordingly, the judgment of the Delaware County Court of Common
Pleas is affirmed.
By: Gwin, J.,
Delaney, P.J., and
Wise, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. JOHN W. WISE WSG:clw 0731 [Cite as State v. Steele, 2012-Ohio-3777.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JOSHUA STEELE : : : Defendant-Appellant : CASE NO. 2011-CA-110
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Delaware County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________ HON. JOHN W. WISE