State v. Ussery

2020 Ohio 4771

• Court: Ohio Court of Appeals
• Decided: October 2, 2020
• Docket: 2019CA00081
• Status: Published

Opinion

[Cite as State v. Ussery, 2020-Ohio-4771.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2019CA00081 JOHN T. USSERY, JR.

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2018-CR-1919

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 2, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DONOVAN HILL Prosecuting Attorney, 116 Cleveland Avenue, N.W. Stark County, Ohio 808 Courtyard Centre Canton, Ohio 44702 KRISTINE W. BEARD Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2019CA00081 2

Hoffman, P.J. {¶1} Appellant John T. Ussery, Jr. appeals the judgment entered by the Stark

County Common Pleas Court convicting him of sexual battery (R.C. 2907.03(A)(5)) and

gross sexual imposition (R.C. 2907.05(A)4)), and sentencing him to eight years

incarceration. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} When N.B. was between the ages of 5 to 7, her biological father and her

stepmother, L.W., divorced. N.B.’s biological mother was not involved in her life, and she

refers to her stepmother as her “mom.” After the divorce, N.B. divided her time between

her father’s home and her stepmother’s home on the same schedule as her brothers,

despite the fact there was no formal custody arrangement as to N.B.

{¶3} Appellant began dating L. W. when N.B. was ten years old, and moved in

to L.W.’s home. On July 18, 2018, the family went out to dinner at a restaurant, and went

shopping afterwards. Upon returning home, they played a game. N.B. went to bed

around 8:00-9:00 p.m. At around 2:30 a.m., Appellant entered N.B.’s bedroom, shut the

door, and closed the blinds. He slid into bed behind N.B., pulled down her underwear,

and rubbed his penis on N.B.’s butt and front. After ejaculating, Appellant got out of bed,

turned on the hall light, shut the door, and left. When L.W. got up at 3:00 a.m. to use

the bathroom, she noted Appellant was awake. N.B. cried herself to sleep.

{¶4} Before leaving for work the next morning, L.W. checked on N.B. N.B. did

not disclose the incident to her stepmother. After Appellant left for work, N.B. borrowed

a phone from a neighbor, and called 911. She told the 911 dispatcher she had been

raped. Stark County, Case No. 2019CA00081 3

{¶5} Officer Daniel Kunkle and Detective Brian Ayers responded to the call.

They met N.B. on the porch. After speaking with her, police called her father, and asked

him to pick up the children and to take N.B. to Akron Children’s Hospital.

{¶6} Jennifer Gierlach, a caseworker at Akron Children’s Hospital, conducted a

forensic interview with N.B. Based on N.B.’s description of the incident, Gierlach referred

N.B. to the CARE center of the hospital for further evaluation. N.B. was examined by Dr.

Charles Lee. Using a sexual assault kit, he swabbed N.B.’s vaginal and anal area.

{¶7} Det. Ayers met with Appellant and L.W. at the police station. Appellant

denied he had been sexually inappropriate with N.B., but consented to an oral swab of

his cheek for a DNA sample. As the detective left the interview room, he heard Appellant

say, “That damn child.” Tr. (II) 559.

{¶8} The swabs taken by Dr. Lee and other evidence collected by police were

submitted to the Ohio Bureau of Investigation for further analysis. Forensic scientist Stacy

Violi tested the swabs for DNA. She found acid phosphate on the swab taken from N.B.’s

vagina, which indicated the presence of semen. She found DNA of an unknown male, of

insufficient quantity to determine the source. The anal swab and swabs taken from N.B.’s

thighs were negative for acid phosphate activity, but also indicated the presence of the

DNA of a male, in insufficient quantities to determine the source. A sample taken from

the crotch of N.B.’s underwear tested positive for acid phosphate activity, and positive for

a mixture of N.B.’s DNA, Appellant’s DNA, and an unknown DNA.

{¶9} The samples were forward to Hallie Dreyer for Y-STR testing, which

involves splitting the samples which tested positive for acid phosphate into two separate

fractions: a sperm fraction and a non-sperm fraction. The vaginal sample provided a Stark County, Case No. 2019CA00081 4

male DNA profile suitable for DNA comparison. Appellant’s DNA was detected in both

the non-sperm fraction and the sperm fraction. The probability of Appellant’s profile being

found in the sperm fraction is 1 in 699 men in the United States.

{¶10} Appellant was indicted by the Stark County Grand Jury on one count of

sexual battery and one count of gross sexual imposition. The case proceeded to jury trial

in the Stark County Common Pleas Court. Appellant was convicted as charged. The trial

court merged the offenses, and sentenced Appellant to eight years incarceration on the

sexual battery conviction. It is from the May 1, 2019, judgment of the court Appellant

prosecutes this appeal, assigning as error:

THE APPELLANT’S CONVICTIONS WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶11} Appellant argues his convictions were against the manifest weight and

sufficiency of the evidence.

{¶12} 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

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

a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). Stark County, Case No. 2019CA00081 5

{¶13} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶14} Appellant was convicted of sexual battery in violation of R.C. 2907.03(A)(5):

(A) No person shall engage in sexual conduct with another, not the

spouse of the offender, when any of the following apply:

(5) The offender is the other person's natural or adoptive parent, or

a stepparent, or guardian, custodian, or person in loco parentis of the other

person.

{¶15} Appellant was also convicted of gross sexual imposition in violation of R.C.

2907.05(A)(4):

(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. 2019CA00081 6

{¶16} Sexual conduct is defined by R.C. 2907.01(A):

(A) “Sexual conduct” means 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 opening of another. Penetration, however slight, is

sufficient to complete vaginal or anal intercourse.

{¶17} Sexual contact is defined by R.C. 2907.01(B):

(B) “Sexual contact” means 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.

{¶18} N.B. testified at trial Appellant came into her bedroom around 2:30 a.m.,

shut the blinds, closed the door, and climbed into her bed. He pulled down her underwear,

and rubbed his penis on her front and on her butt. The vaginal swab taken from N.B.

revealed Appellant’s DNA in both the sperm and the non-sperm fraction. Further,

Appellant’s DNA was found in the crotch of N.B.’s underwear. This is sufficient evidence,

if believed by the jury, to support Appellant’s convictions for sexual battery and gross

sexual imposition. Stark County, Case No. 2019CA00081 7

{¶19} Appellant argues N.B.’s testimony is not credible, as the details varied when

she talked to different adults about the incident and when she testified at trial. He argues

N.B. did not like Appellant and wanted to live solely with her father because her father’s

rules were more lenient. He argues L.W.’s testimony established Appellant had a bad

cough on the night in question and could not have left the bedroom without her

knowledge, and further she testified N.B. was not an honest child. He argues police failed

to test the sheets in N.B.’s room for DNA, and failed to check the blinds for Appellant’s

fingerprints.

{¶20} N.B.’s statements to police, the caseworker at Akron Children’s, and her

trial testimony did vary on details surrounding the incident. However, as this Court has

previously held:

A fundamental premise of our criminal trial system is that ‘the jury is

the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973)

(emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d

310 (1974). Determining the weight and credibility of witness testimony,

therefore, has long been held to be the ‘part of every case [that] belongs to

the jury, who are presumed to be fitted for it by their natural intelligence and

their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co.

v. Ward, 140 U.S. 76, 88, 11 S .Ct. 720, 724–725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266–

1267. Stark County, Case No. 2019CA00081 8

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 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

(Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v. Nivens (May

28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors 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, at ¶ 21, citing

State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke,

Franklin App. No. 02AP1238, 2003–Ohio–2889, citing State v. Caldwell

(1992), 79 Ohio App.3d 667, 607 N.E.2d 1096.

{¶21} State v. Cobb, 5th Dist. Stark No. 2014 CA 00218, 2015-Ohio-3661, ¶¶ 45-

46.

{¶22} The jury in this case was made aware of contradictions in N.B.’s various

statements to adults involved in the case, yet found her testimony at trial to be credible.

We find the jury did not lost its way in believing the testimony of N.B. concerning the

conduct of Appellant on the night of July 18, 2018.

{¶23} Further, we find the testimony of L.W. does not establish N.B. was not an

honest child, nor does it establish Appellant failed to leave the bedroom on the night in

question. L.W. testified Appellant had a bad cough and she did not notice him leaving

the bedroom, but she also testified he was awake at 3:00 a.m., shortly after the time frame Stark County, Case No. 2019CA00081 9

given by N.B. for the incident. L.W. testified at trial N.B. was honest for the most part;

N.B. had lied about “stupid stuff like any kid,” but has not lied about anything “major.” Tr.

(II) 393. While she admitted she told police N.B. was not an honest child, she reiterated

on cross-examination N.B. lies about “stupid stuff.” Tr. (II) 408. Both N.B. and L.W.

testified N.B. did not like Appellant, but L.W. testified N.B. never talked about living solely

with her father.

{¶24} As for the failure of the police to fingerprint the blinds or test the bedding in

N.B.’s bedroom, finding his fingerprints on the blinds of a room in a house where he

resided would be of limited probative value. Further, as Appellant’s DNA was found in

the crotch of N.B.’s underwear and on a vaginal swab taken from N.B., we find testing

other items in the bedroom would similarly have been of limited probative value. Stark County, Case No. 2019CA00081 10

{¶25} We find the jury did not lose its way in convicting Appellant of sexual battery

and gross sexual imposition. The convictions are not against the manifest weight or

sufficiency of the evidence. The assignment of error is overruled.

{¶26} The judgment of the Stark County Common Pleas Court is affirmed.

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