State v. Vansickle

2014 Ohio 1324

• Court: Ohio Court of Appeals
• Decided: March 31, 2014
• Docket: CA2013-03-005
• Status: Published

Opinion

[Cite as State v. Vansickle, 2014-Ohio-1324.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-03-005

: OPINION - vs - 3/31/2014 :

PAUL VANSICKLE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 12CRI00175

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Elizabeth N. Gaba, 1231 East Broad Street, Columbus, Ohio 43205, for defendant-appellant

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Paul Vansickle, appeals his conviction in the Fayette

County Court of Common Pleas for unlawful sexual conduct with a minor. For the reasons

stated below, we affirm the decision of the trial court.

{¶ 2} On September 12, 2012, Vansickle was indicted on one count of unlawful

sexual conduct with a minor in violation of R.C. 2907.04(A). The charge arose out of

allegations that on May 19, 2012, Vansickle engaged in sexual conduct with G.M., a 15-year- Fayette CA2013-03-005

old girl.

{¶ 3} During the pendency of the case, Vansickle filed a motion to suppress both

statements he made to the police as well as certain body, clothing, and DNA evidence. On

January 11, 2013, the trial court overruled Vansickle's motion to suppress. A two-day jury

trial was held beginning on January 22, 2013 where several witnesses testified regarding the

incident.

{¶ 4} Shannon Hedges, the mother of G.M., testified that her boyfriend, John Baird,

woke her in the early morning hours of May 19, 2012. Baird told Hedges that there were

persons in her home and to go to her daughter's room. Upon entering her daughter's room,

Hedges found G.M., Christopher Arnold, and Vansickle. She explained that "Christopher

Arnold [was] sitting on the right hand side of [G.M.'s] room, with a fully erect penis." Hedges

then saw another man and explained that G.M. was "sitting up out of [Vansickle's] lap wiping

the corners of her mouth. And him, I don't recall exactly how it was, I know he had been in

the process of moving a covering garment over his lap." Hedges yelled at the pair, asked the

men, "do you realize that she's 15 years old," told them to leave her home, and called the

police.

{¶ 5} After the men left, Hedges took G.M. to Fayette County Memorial Hospital for a

sexual assault examination where a nurse collected vaginal, perianal,1 and oral samples and

a sample from G.M.'s underwear for analysis by the police. The next morning, Vansickle

came back to Hedges' home and apologized. He stated that he did not know G.M. was 15

years old. Hedges admitted that G.M. looks older than her age due to her large stature and

because G.M. smokes cigarettes, occasionally drinks alcohol, and does not attend school.

1. During trial, the perianal swab was referred to as the "anal" swab. However, the nurse who completed the sexual assault explained that she only swabbed the perianal area, which is the area between the vaginal opening and the anus. Therefore, we refer to this swab as the "perianal" swab.

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{¶ 6} G.M. testified that in the early morning hours of May 19, 2012, Arnold and

Vansickle came over to her home. Arnold asked G.M. to have sex with him and with

Vansickle. At first, G.M. refused but eventually agreed because she wanted Arnold to like

her. The men came back to her room, took off their pants, and exposed their penises. G.M.

had vaginal intercourse with one man and then switched and had vaginal intercourse with the

other man. After the intercourse, G.M. performed fellatio on Vansickle and Arnold. While

this was occurring, Baird came into the room. Moments after Baird's interruption, G.M.'s

mother came into the room and kicked the men out of the home.

{¶ 7} G.M. stated that on May 19, 2012 she was 15 years old. G.M. knew Arnold and

Vansickle from the previous town they lived in and frequently saw them at the city park. G.M.

often hung out at the park during the day because she was not attending school. She also

stated that she smokes cigarettes and drinks alcohol and explained that she buys cigarettes

from people who are over 18.

{¶ 8} Fayette County Sheriff's Office Sergeant Ryan McFarland testified that he

investigated a complaint that Vansickle had engaged in sexual conduct with G.M. On the

morning of May 19, 2012, McFarland and another officer went to Vansickle's home and

requested Vansickle and Arnold come to the Sheriff's Annex to discuss the incident.

McFarland recorded his conversation with Vansickle and this recording was played at trial.

During the interview, Vansickle at first denies having sex with G.M., stating that he asked her

how old she was and told her she was "way too young" because he is 22 years old. He

stated, "I'm 22 years old and I'm not messing with no 15 year old girl." He explained that

G.M. was "rubbing his leg" and he again told her, "I can't do this, I'm 22 years old." Later in

the interview, he stated that G.M. performed "oral sex" on him but denied ever engaging in

vaginal sex with G.M.

{¶ 9} At the end of the interview, Vansickle consented to allow the police to take the

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clothes he wore the night of the incident as well as take a buccal swab from the inside of his

cheek and test the samples for DNA. The samples were taken and then submitted to the

Ohio Bureau of Criminal Investigation (BCI) for testing.

{¶ 10} McFarland visited Vansickle's home a second time on September 5, 2012.

McFarland had just received the laboratory results analyzing G.M.'s and Vansickle's body

and clothing samples and wished to discuss the case with Vansickle. During this

conversation, Vansickle stated that "he had done nothing except got head from [G.M.] and

didn't know why his DNA would have been found anywhere else."

{¶ 11} Two BCI forensic scientists also testified at trial and explained that they tested

the samples obtained from G.M. and Vansickle. Peter Tassi explained that he tested

samples submitted by Vansickle and G.M. for bodily fluids and identified semen present in

G.M.'s vaginal and perianal swabs and G.M.'s underwear. Another scientist, Hallie Garofalo

explained that she tested Vansickle's and G.M.'s samples for DNA. Garofalo testified that to

a reasonable degree of scientific certainty, she found Vansickle's DNA on G.M.'s vaginal and

perianal swabs and on G.M.'s underwear.

{¶ 12} Lastly, Vansickle testified regarding the incident. He stated that he and Arnold

were at G.M.'s home for about 30 minutes before they went to the bedroom with G.M. In the

bedroom, G.M. told Vansickle that she wanted to have sex with both men and unzipped

Vansickle's pants. Eventually, Baird and G.M.'s mother came into the room and kicked them

out. He stated that he did not realize G.M. was 15. When he arrived at G.M.'s home that

night, he was very drunk and tired and G.M. was smoking cigarettes and drinking alcohol.

During a previous interaction with G.M., Vansickle stated that she asked him for a cigarette

and told him that she was 18 years old. Vansickle testified that he first realized that G.M.

was 15 when her mother screamed at the men and told them to get out of her home.

Vansickle also explained that during his interview with the police the following morning, he

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was still intoxicated and had slept very little.

{¶ 13} During trial, the court refused to allow Vansickle's attorney to present two

witnesses and to re-call G.M. for cross-examination during the defense's case-in-chief.

Additionally, the court refused Vansickle's proposed jury instructions regarding a defense of

mistake of fact as to G.M.'s age. At the conclusion of the trial, the jury found Vansickle guilty

of unlawful sexual conduct with a minor. Vansickle was sentenced to two years of

community control sanctions and classified as a Tier II sex offender.

{¶ 14} Vansickle now appeals, asserting seven assignments of error.

{¶ 15} Assignment of Error No. 1:

{¶ 16} DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT

ERRONEOUSLY REFUSED TO CHARGE THE JURY WITH HIS REQUESTED JURY

INSTRUCTION ON THE DEFENSE THEORY OF MISTAKE OF FACT AND MISTAKE OF

AGE, TO THE PREJUDICE OF DEFENDANT, AND IN VIOLATION OF HIS RIGHTS

UNDER THE 5TH, 6TH, AND 14TH AMENDMENT TO THE U.S. CONSTITUTION, AND

ARTICLE I, SEC. 16 OF THE OHIO CONSTITUTION.

{¶ 17} Assignment of Error No. 2:

{¶ 18} DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT

ERRONEOUSLY FAILED TO INSTRUCT THE JURY ON ALL THE ESSENTIAL ELEMENTS

OF THE CHARGED OFFENSE, TO THE PREJUDICE OF DEFENDANT.

{¶ 19} We will address Vansickle's first and second assignments of error together as

they both concern jury instructions. Vansickle argues that the court erred when it refused to

instruct the jury regarding the defense of mistake of fact as to G.M.'s age. Additionally, he

argues that the court erred when it did not instruct the jury about the difference between

recklessness and negligence.

{¶ 20} A trial court must fully and completely give jury instructions which are relevant

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and necessary for the jury to weigh the evidence and discharge its duty as fact finder. State

v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. Ordinarily, requested

instructions should be given if they are correct statements of the law, applicable to the facts

in the case, and reasonable minds could reach the conclusion sought by the specific

instruction. State v. Lawson, 12th Dist. Butler No. CA99-12-226, 2001 WL 433121, *8 (Apr.

30, 2001), citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585 (1991). Even if a

requested instruction is a correct, pertinent statement of law, the trial court can refuse to give

the requested instruction verbatim as long as the instruction it gives is substantively the same

as the requested instruction. State v. Rawson, 7th Dist. Jefferson No. 05 JE 2, 2006-Ohio-

496, ¶ 4.

{¶ 21} "It is within the sound discretion of a trial court to refuse to admit proposed jury

instructions which are either redundant or immaterial to the case." Bostic v. Connor, 37 Ohio

St.3d 144 (1988), paragraph two of the syllabus. The proper standard of review for an

appellate court is whether the trial court's refusal to give a requested jury instruction

constituted an abuse of discretion, and if so, whether that refusal was prejudicial. State v.

Campbell, 12th Dist. Butler No. CA2009-08-208, 2010-Ohio-1940, ¶ 12. An abuse of

discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable,

and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-

Ohio-160, ¶ 130.

{¶ 22} Vansickle was convicted of engaging in unlawful sexual conduct with a minor in

violation of R.C. 2907.04(A). The statute provides,

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.

{¶ 23} Vansickle argues that the defense of mistake of fact instruction to the jury

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would have refuted that he was reckless in regard to his understanding of G.M.'s age. He

maintains that G.M.'s appearance, her behavior in drinking alcohol and smoking cigarettes,

her failure to attend school, her prior representation to Vansickle that she was over 18, and

Vansickle's friends' beliefs about G.M.'s age establish that Vansickle was mistaken and not

reckless as to G.M.'s age.2

{¶ 24} "Generally, mistake of fact is a defense if it negates a mental state required to

establish an element of a crime." State v. Cooper, 10th Dist. Franklin No. 09AP-511, 2009-

Ohio-6275, ¶ 9, citing State v. Pecora, 87 Ohio App.3d 687, 690 (9th Dist.1993). "Mistake of

fact is widely recognized as a defense to specific intent crimes such as theft since, when the

defendant has an honest purpose, such a purpose provides an excuse for an act that would

otherwise be deemed criminal." Cooper at ¶ 9, citing Farrell v. State, 32 Ohio St. 456 (1877).

In other words, "mistake of fact can, in an appropriate circumstance, negate either

'knowingly' or 'purposely.'" State v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-

2735, ¶ 64, quoting State v. Snowden, 7 Ohio App.3d 358, 363 (10th Dist.1982).

{¶ 25} Vansickle's proposed jury instructions stated,

MISTAKE OF FACT AS TO AGE is a negating defense. A negating defense is one which tends to negate an essential element of the state's case. An example here might be a mistake of fact as to the age of the witness, where the defendant asserts that he mistakenly believed that the witness was 16 years old, the age of consent. Because this defense simply shows that an essential element of the offense is not present, the defendant does not have any burden of persuasion with regards to a negating defense.

{¶ 26} The trial court did not abuse its discretion in refusing to instruct the jury as to

mistake of fact because the offense of unlawful sexual conduct with a minor is not a specific

2. Vansickle's argument that the evidence at trial included his friends' beliefs regarding G.M.'s age is inaccurate. As will be discussed in the third assignment of error, the trial court refused to permit Vansickle's friends to testify as witnesses and this did not amount to error.

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intent crime. To find Vansickle engaged in an act that constituted unlawful sexual conduct

with a minor, the jury was instructed to find that he either "knew" G.M. was under 16 or was

"reckless" in this regard. Therefore, the jury could have found that Vansickle was "reckless"

in determining that G.M. was over 16. "Mistake of fact" can only negate a specific intent

crime. This court has previously explained that "'recklessness' involves an even lower mental

state than 'knowingly'" and "does not involve a specific intent." State v. Bryant, 12th Dist.

Warren No. CA2007-02-0241, 2008-Ohio-3078, ¶ 13, citing State v. Davis, 145 Ohio App.3d

296, 299 (12th Dist.2001). As reckless conduct was sufficient to prove that Vansickle acted

with the necessary mental state, there was nothing about the reckless conduct that mistake

of fact could have negated.

{¶ 27} Additionally, although the trial court did not give the instruction Vansickle

requested, the instruction it gave incorporates the defense of "mistake of fact" into the

definition of recklessly and knowingly. The court instructed the jury regarding the mental

states involved in the offense.

A person acts knowingly, when is aware of the existence of the facts and that his acts cause a certain result or be of a certain nature. Since you cannot look into the mind of another, knowledge is determined from all the facts and circumstances in evidence.

A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or to be of a certain nature. A person is reckless to circumstance when with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

{¶ 28} The jury instructions clearly told the jury to consider the facts and

circumstances in the case to determine whether Vansickle knew or was reckless that G.M.

was under the age of 16. Therefore, this instruction necessarily included facts such as

G.M.'s appearance, her drinking and smoking the night of the offense, and her failure to

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attend school. Although the trial court did not highlight the particular defense or use the

proposed instruction verbatim, the instruction given is substantially the same as the

requested instruction. See Rawson, 7th Dist. Jefferson No. 05JE2, 2006-Ohio-496 at ¶ 15;

State v. Griffin, 6th Dist. Lucas No. L-11-1283, 2013-Ohio-411, ¶ 37. Therefore, the court did

not err in refusing to instruct the jury as to the defense of mistake of fact.

{¶ 29} Vansickle also argues that the trial court erred when it did not instruct the jury

on the difference between negligence and recklessness. Vansickle requested the court

include the definition of negligence and the difference between recklessness and negligence

in the jury instruction. Specifically, Vansickle requested the following instructions,

* * * RECKLESSLY IS NOT THE SAME AS NEGLIGENTLY.

The Model Penal Code concept of a reckless state of mind requires that the actor actually foresee that a harm may occur. It requires an awareness and a conscious disregard of the substantial and unjustifiable risk that the material element exists or will occur from the actor's conduct. *** NEGLIGENCE IS NOT THE SAME AS RECKLESSNESS. NEGLIGENCE OJI-CV 401.01 1 and 2. Negligence is the failure to exercise the degree of care which an ordinary careful and prudent person would exercise under the same or similar circumstances. R.C. 2901.22(D). A person act negligently when, because of a substantial lapse from due care, he fails to perceive of avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist. Due care is that amount of care which a reasonable prudent person is accustomed to use under the same or similar circumstances.

State v. Peck, 172 Ohio App.3d 25, 2007-Ohio-2730—At ¶ 12- 13—"A mere failure to perceive or avoid a risk, because of a lack of due care, does not constitute reckless conduct…Instead, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk…In contrast to the actor who proceeds with knowledge of risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligence. R.C. 2901.22(D). Recklessness requires more than ordinary negligent

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conduct. The difference between the terms "recklessly" and "negligently" is normally one of a kind, rather than of a degree. "Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it." RECKLESS DISREGARD. OJI-CV 431.01 10.

2901.21 Criminal liability, culpability (A)(2). The Defendant must have the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense. If not, then the Defendant cannot be found guilty of this offense.

{¶ 30} The trial court refused to include any of these proposed jury instructions.

Based on the facts and circumstances of this case, we find that Vansickle's proposed jury

instructions were immaterial to the case. In order for the jury to determine whether Vansickle

was guilty of unlawful sexual conduct with a minor, the jury only needed to determine whether

Vansickle knew that G.M. was under 16 or was reckless in this regard. The court instructed

the jury as to the meaning of these two mental states. The jury was not required to

determine whether Vansickle was negligent or the difference between negligence and

recklessness. Therefore, the court did not abuse its discretion in refusing to instruct the jury

regarding negligence and the difference between negligence and recklessness. See State v.

Wood, 2d Dist. Montgomery No. 2006 CA 1, 2007-Ohio-1027, ¶ 21-22; Columbus v. Dials,

10th Dist. Franklin No. 04AP-1099 2005-Ohio-6305, ¶ 60.

{¶ 31} Vansickle's first and second assignments of error are overruled.

{¶ 32} Assignment of Error No. 3:

{¶ 33} DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT

ERRONEOUSLY REFUSED TO ALLOW HIM TO PUT ON WITNESSES, AND

RESTRICTED HIS RIGHTS TO CROSS-EXAMINE WITNESSES AGAINST HIM, TO THE

PREJUDICE OF DEFENDANT, AND THIS REFUSAL REPRESENTED BOTH AN ERROR

OF LAW AND AN ABUSE OF DISCRETION, PREVENTING DEFENDANT FROM PUTTING

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ON EXCULPATORY EVIDENCE AND PRESENTING HIS DEFENSE.

{¶ 34} Vansickle challenges the trial court's refusal to allow him to call Zach Fullen and

Sam Roone and to re-call G.M. as witnesses in his case-in-chief. Vansickle argues that the

court's prohibition in allowing him to call Fullen and Roone constituted an abuse of discretion

and deprived him of due process and a fair trial by hampering his ability to present a

complete defense. He also argues that the court violated his right to confront witnesses

against him when it restricted his cross-examination of G.M.

Zach Fullen and Sam Roone

{¶ 35} The Sixth Amendment to the United States Constitution and Section 10, Article

I, of the Ohio Constitution grants an accused the right to summon to trial witnesses on his or

her behalf. A defendant's right to present witnesses in his own defense is "a fundamental

element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920

(1967). While a defendant's right to present witnesses in his own defense is a fundamental

element of due process, an "accused does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."

Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653 (1988).

{¶ 36} Evid.R. 403(A) provides that "[a]lthough relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury." A trial court has broad discretion in the admission

and exclusion of evidence. State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-

7073, ¶ 9. A reviewing court should not disturb evidentiary decisions in the absence of an

abuse of discretion that has created material prejudice. State v. Smith, 12th Dist. Fayette

No. CA2007-10-035, 2008-Ohio-5931, ¶ 33.

{¶ 37} Vansickle requested the court to allow him to call Zach Fullen and Sam Roone

as witnesses whose testimony would have established that they both believed and others

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believed that G.M. was 18 years old. Specifically, Vansickle proffered that Zach Fullen would

have testified that he knew G.M., had dated her, and she had told him and many other

people that she was 18 years old. Fullen would have stated that he gave G.M. cigarettes and

he observed G.M. drinking and smoking around her mother. Vansickle also proffered that

Sam Roone would testify that G.M. told him she was 18 and he believed this because she

was 5'8". He would testify that he had a romantic relationship with G.M.

{¶ 38} The trial court did not err in refusing to allow Fullen and Roone to testify.

Vansickle was able to present a complete defense despite the exclusion of this testimony

because he testified regarding his belief of G.M.'s age and cross-examined other witnesses

regarding G.M.'s appearance and maturity. Additionally, the testimony of Fullen and Roone

regarding their understanding of G.M.'s age or the community's understanding of her age was

not probative as to the issue before the jury. The issue in this case was whether Vansickle

knew G.M. was under the age of 16 or was reckless in this regard and therefore Fullen and

Roone's beliefs as to G.M.'s age were irrelevant.

{¶ 39} Further, their testimony would be unfairly prejudicial as it would include the fact

that they had dated G.M. This testimony would increase the risk that the jury might focus on

G.M.'s dating and sexual history instead of focusing on whether Vansickle was reckless in his

belief that she was over 16. Therefore, the trial court did not abuse its discretion in refusing

the testimony of Fullen and Roone and Vansickle was not deprived of his right to a complete

defense.

G.M.

{¶ 40} Vansickle also argues that the court violated his right to confront witnesses

against him when it did not allow him to call G.M. as if on cross-examination in the defense's

case-in-chief. The Confrontation Clause of the Sixth Amendment to the United States

Constitution gives the accused the right to be confronted with the witnesses against him.

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State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 83. Among the most vital rights

guaranteed under this clause is the right of criminal defendants to cross-examine witnesses

at trial. State v. Bump, 3d Dist. Logan No. 8-12-04, 2013-Ohio-1006, ¶ 89, citing Cruz v. New

York, 481 U.S. 186, 189, 107 S.Ct. 1714 (1987). However, the Confrontation Clause

guarantees only "'an opportunity for effective cross-examination, not cross-examination that

is effective in whatever way, and to whatever extent, the defense might wish.'" (Emphasis

sic.) State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, ¶ 64 (8th Dist.), quoting

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292 (1985). "Accordingly, the court has

'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or

only marginally relevant.'" Warmus at ¶ 64, quoting Delaware v. Van Arsdall, 475 U.S. 673,

679, 106 S.Ct. 1431 (1986).

{¶ 41} Additionally, under Evid.R. 611(A), the trial court is empowered to control the

presentation of evidence, including the "mode and order of interrogative witnesses * * * so as

to (1) make the interrogation * * * effective for the ascertainment of the truth, * * * and (3)

protect witnesses from harassment or undue embarrassment." The trial court should be

mindful that cross-examination is allowable "on all relevant matters and matters affecting

credibility." Evid.R. 611(B).

{¶ 42} "To establish a Confrontation Clause violation, the defendant must show that he

was 'prohibited from engaging in otherwise appropriate cross-examination' and '[a]

reasonable jury might have received a significantly different impression of [the witness's]

credibility had [the defendant's] counsel been permitted to pursue his proposed line of cross-

examination.'" State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234, ¶ 86,

quoting Van Arsdall at 680. A reviewing court will not reverse the trial court's limitation or

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prohibition on cross-examination unless the trial court abused its discretion in so ruling. State

v. Reed, 10th Dist. Franklin No. 09AP-84, 2009-Ohio-6900, ¶ 7.

{¶ 43} At trial, the state conducted a direct-examination of G.M. and Vansickle's

counsel briefly cross-examined G.M. After the state finished with its presentation of its

evidence, Vansickle's counsel requested to call G.M. as if on cross-examination in its case-

in-chief. The trial court refused to allow Vansickle to call G.M. again. After the court refused

to allow Vansickle to re-call G.M., Vansickle proffered that G.M. would testify that she never

told Vansickle her age and that Vansickle came back to G.M.'s home the morning of the

incident to talk with G.M.'s mother.

{¶ 44} The trial court did not violate Vansickle's right to confront witnesses against him

when it prohibited Vansickle from recalling G.M. Vansickle had the prior opportunity and

availed himself of this opportunity to cross-examine G.M. Vansickle's failure to ask G.M.

certain questions during her cross-examination did not result from a denial of opportunity of

cross-examination and consequently did not violate his right to confront the witnesses against

him. Instead, considering the sensitive nature of the case and the fact the witness had

previously testified the day prior concerning the incident, the trial court was merely exercising

its discretion in preventing the harassment or undue embarrassment of G.M. as well as 3 reducing an interrogation that was repetitive. See Banks at ¶ 52-53; State v. Braxton, 8th

Dist. Cuyahoga No. 80663, 2002-Ohio-5072, ¶ 41-43.

{¶ 45} Vansickle's third assignment of error is overruled.

{¶ 46} Assignment of Error No. 4:

{¶ 47} DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT

3. While the denial to recall G.M. was not a violation of Vansickle's right to confront witnesses against him, the better practice of the trial court would have been to advise Vansickle at the time of G.M.'s testimony that she would not be able to be recalled.

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ERRONEOUSLY DENIED HIS MOTION TO SUPPRESS HIS STATEMENT, TO THE

PREJUDICE OF DEFENDANT AND IN VIOLATION OF HIS RIGHTS UNDER THE 4TH,

6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND ARTICLE I, SEC. 16

OF THE OHIO CONSTITUTION.

{¶ 48} Assignment of Error No. 5:

{¶ 49} DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT

ERRONEOUSLY DENIED HIS MOTION TO SUPPRESS THE FRUITS OF THE

WARRANTLESS SEARCH OF HIS CLOTHING, BODY AND DNA, TO THE PREJUDICE OF

DEFENDANT.

{¶ 50} We will address Vansickle's fourth and fifth assignments of error together

because they both concern the trial court's denial of Vansickle's motion to suppress

evidence. Vansickle challenges the trial court's denial of his motion to suppress on three

bases. First, Vansickle maintains that the statements he made to the police on May 19, 2012

should be suppressed because he was subject to a custodial interrogation and he did not

receive Miranda warnings. Second, Vansickle argues that his September 5, 2012 statements

were illegally derived from the May 19 statements and therefore should also be suppressed.

Third, Vansickle challenges the admission of the clothing, body, and DNA evidence by

arguing that this evidence was fruit of the poisonous tree from his May 19 conversation with

the police. Vansickle also asserts that the clothing, body, and DNA evidence were collected

in violation of the Ohio Attorney General's Collection Policy and Procedures, the Ohio

Administrative Rules, and R.C. 2933.82(C).

{¶ 51} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial

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of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.

May 19, 2012 Statements

{¶ 52} Vansickle challenges the admission of the statements he made to police on

May 19, 2012 because he was subject to a custodial interrogation and did not receive

Miranda warnings. The state concedes that Vansickle was interrogated; at issue is whether

Vansickle was in custody.

{¶ 53} "It is well-established that before law enforcement officials question a suspect in

custody, the suspect must be advised of his Miranda rights and make a knowing and

intelligent waiver of those rights before any statements obtained during the interrogation will

be admissible as evidence." State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-

068, 2012-Ohio-3754, ¶ 8, citing State v. Treesh, 90 Ohio St.3d 460, 470 (2001). However,

"the duty to advise a suspect of constitutional rights pursuant to Miranda * * * arises only

when questioning by law enforcement rises to the level of a custodial interrogation." In re

J.S., 12th Dist. Clermont No. CA2011-09-067, 2012-Ohio-3534, ¶ 11.

{¶ 54} Miranda defines custodial interrogation as any "questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way." State v. Matthews, 12th Dist. Butler No. CA2012-

09-175, 2013-Ohio-3482, ¶ 10, citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602

(1966). "In judging whether an individual has been placed into custody the test is whether,

under the totality of the circumstances, a 'reasonable person would have believed that he

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was not free to leave.'" State v. Gumm, 73 Ohio St.3d 413, 429 (1995), quoting United

States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870 (1980).

{¶ 55} At the suppression hearing, Sergeant Ryan McFarland explained that he and

another officer visited Vansickle's home on the morning of May 19, 2012 to investigate a

complaint that Vansickle engaged in unlawful sexual conduct with a minor. McFarland

arrived around 9:00 a.m., wore plain clothes, and drove an unmarked work vehicle. The

other officer wore a uniform and drove a marked police cruiser. McFarland recorded the

entire incident on a pocket recorder. McFarland waited outside Vansickle's home until

Vansickle arrived at the door and told Vansickle and Arnold that they were "free to come

down" to the Sheriff's Annex to discuss the matter. McFarland also told Vansickle and Arnold

that they could ride in one of the police cruisers to the Annex. McFarland did not threaten

Vansickle, did not tell him he was under arrest, did not handcuff him, and did not give him

any Miranda warnings. On the recording, Vansickle did not hesitate or question whether he

had the option to refuse the request to be interviewed or to travel to the Annex. Vansickle

was transported to the Annex in McFarland's unmarked vehicle while Arnold was transported

in the other police cruiser.

{¶ 56} At the Sheriff's Annex, Arnold was interviewed first while Vansickle was seated

in an open area. After a brief interview with Arnold, McFarland requested that Vansickle

come to the interview room. McFarland described the interview room's dimension as five feet

by seven feet and stated that he shut the door but did not latch it so that the door would

remain unlocked. McFarland informed Vansickle that he had the right to leave at any time

and thereafter Vansickle chose to give a statement. On the recording, McFarland informs

Vansickle that he is "not under arrest." After Vansickle's statement, a deputy transported

Vansickle back to his home.

{¶ 57} Vansickle also testified that on May 19, 2012, around 8:30 in the morning, two

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police officers approached his home. Vansickle was sleeping and awoke to find the officers

in his living room. He stated that the officers told him that he had to go with them to the

Sheriff's Annex to answer some questions regarding their investigation. Vansickle agreed

because he felt like he could not refuse. During the interview, he was told that he was not

under arrest. However, Vansickle did not feel free to leave because he did not have a cell

phone in the interview room and his only transportation back to his home was through one of

the sheriff deputies. Vansickle also stated that he had been drinking the night before and he

had no experience with the police.

{¶ 58} The trial court did not err in determining that Vansickle was never in "custody"

during the May 19, 2012 interview and that Miranda warnings were not required. Vansickle

was told that he was not under arrest, was never handcuffed, voluntarily came to the Sheriff's

Annex, and freely accepted McFarland's offer for transportation. At the Annex, Vansickle

was seated in the large open area and only taken to the smaller interview room during his

questioning. The door to the room remained unlocked and the entire interview lasted only 15

minutes. In fact, Sergeant McFarland's entire contact with Vansickle lasted only 44 minutes.

Under the totality of the circumstances, a reasonable person would have believed that he

was free to leave. Therefore, the trial court did not err in denying Vansickle's motion to

suppress the statements he made to police on May 19, 2012.

September 5, 2012 Statements

{¶ 59} Vansickle next asserts that the statements he made on September 5, 2012

should also be suppressed because they were derived from the May 19 statements, which

were obtained without proper Miranda warnings. In support of his argument that the

statements should be suppressed, Vansickle argues that this case falls under the "question-

first" line of cases where a suspect is in custody, law enforcement questions that suspect,

obtain a confession, provide Miranda warnings, and then seek to confirm the confession with

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Miranda warnings provided. Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004).

{¶ 60} In Seibert, the United States Supreme Court held that law enforcement officers

violate a suspect's Fifth Amendment rights when they interrogate a suspect while in custody,

elicit a confession, inform the suspect of his Miranda rights, and then elicit the same

confession. Seibert at syllabus. The Court reasoned that "[t]he object of question-first is to

render Miranda warnings ineffective by waiting for a particularly opportune time to give them,

after the suspect has already confessed." Id. at 611. Both sets of statements are

inadmissible because "the earlier and later statements are realistically seen as parts of a

single, unwarned sequence of questioning." Id. at 612. See State v. Farris, 109 Ohio St.3d

519, 2006-Ohio-3255, ¶ 49 (physical evidence obtained as the direct result of statements

made in custody without the benefit of Miranda warnings should be excluded).

{¶ 61} At the suppression hearing, Sergeant McFarland testified that he also visited

Vansickle at his home on September 5, 2012. McFarland briefly discussed the laboratory

results analyzing the DNA samples of Vansickle and G.M. with Vansickle at his front door

and then left the premises. McFarland did not arrest Vansickle nor did he provide Vansickle

with any Miranda warnings.

{¶ 62} The trial court did not err in refusing to suppress the statements Vansickle

made on September 5, 2012. Seibert is obviously distinguishable from the case at bar

because, unlike Seibert, in this case Vansickle was never in custody on May 19, 2012 and

therefore the police were never required to inform him of his Miranda rights. Therefore, any

statements Vansickle made on September 5, 2012 also cannot be subject to suppression as

illegally derived from the May 19 statements when there was no violation of Vansickle's

constitutional rights in the initial, voluntary interview. See State v. Wilson, 2d Dist.

Montgomery No. 22665, 2009-Ohio-1279, ¶ 34-36; State v. Estes, 12th Dist. Preble No.

CA2005-02-001, 2005-Ohio-5478, ¶ 8.

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Clothing, Body, and DNA Search

{¶ 63} Lastly, Vansickle challenges the court's denial of his motion to suppress the

DNA evidence that was obtained by the searches of the clothing that he wore on May 19,

2012 and his buccal swab. Specifically, Vansickle maintains that the evidence should be

suppressed because it was the "fruit of the poisonous tree" from his May 19 statements that

were obtained without Miranda warnings. Vansickle also argues that his consent to these

searches was coerced. Lastly, he asserts that the evidence was obtained in violation of the

Ohio Attorney General's Collection Policy and Procedures, the Ohio Administrative Rules,

and R.C. 2933.82(C).

{¶ 64} As discussed previously, Vansickle was not in custody for purposes of Miranda

on May 19, 2012 and law enforcement officials were not required to inform him of his

Miranda rights. Therefore, as there was no Miranda violation, Vansickle's subsequent

consent was not "fruit of the poisonous tree." Additionally, even if there had been a Miranda

violation, "the Miranda warnings have no direct bearing on the issue of consent since consent

is not interrogation nor a statement to police." State v. Harsh, 12th Dist. Madison No.

CA2013-07-025, 2014-Ohio-251, ¶ 21, quoting State v. Rice, 5th Dist. Licking No. 02-CA-

00096, 2003-Ohio-2860, ¶ 15. In other words, "consent to search is valid when voluntarily

given, regardless of whether Miranda warnings have been given[.]" Harsh at ¶ 21, quoting

State v. James, 5th Dist. Richland No. CA-2808, 1991 WL 115988, *2 (June 10, 1991).

{¶ 65} We now turn to whether Vansickle's consent was voluntary. The Fourth

Amendment to the United States Constitution and Section 14, Article I of the Ohio

Constitution protect individuals from unreasonable searches and seizures. State v. Dennis,

12th Dist. Warren No. CA2012-01-004, 2012-Ohio-4877, ¶ 13, citing State v. Moore, 90 Ohio

St.3d 47, 49 (2000). Searches and seizures conducted without a warrant are per se

unreasonable unless they come within one of the few specifically established and well

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delineated exceptions. State v. Durham, 12th Dist. Warren No. 2013-03-023, 2013-Ohio-

4764, ¶ 31. One such exception occurs "when a person waives his Fourth Amendment

protection by consenting to a warrantless search." State v. Oberding, 12th Dist. Warren No.

CA2011-09-101, 2012-Ohio-3047, ¶ 13, citing Schneckloth v. Bustamonte, 412 U.S. 218,

219, 93 S.Ct. 2041 (1973).

{¶ 66} When the state attempts to justify a warrantless search on the basis of consent,

"the state must demonstrate that the consent was freely and voluntarily given and not the

result of coercion, express or implied." State v. Taylor, 77 Ohio App.3d 223, 226 (12th

Dist.1991). The state has the burden to prove by clear and convincing evidence that the

defendant's consent was freely and voluntarily given. State v. Christopher, 12th Dist.

Clermont No. CA2009-08-041, 2010-Ohio-1816, ¶ 43. "Whether an individual voluntarily

consented to a search is a question of fact, not a question of law," that is determined based

on the totality of the circumstances. State v. Sinha, 12th Dist. Butler No. CA2012-11-237,

2013-Ohio-5203, ¶ 16. "Since this inquiry requires an assessment of the credibility of the

evidence, the trier of fact is in the best position to make this determination, and its decision

will not be reversed on appeal unless it is clearly erroneous." Christopher at ¶ 43.

{¶ 67} At the suppression hearing, Sergeant McFarland testified that on May 19, 2012

he interviewed Arnold at the Sheriff's Annex while Vansickle was seated in the "open area" of

the Annex. After the interview, Arnold went into the open area and was advised in front of

Vansickle that if he would not voluntarily give a DNA sample, the police would obtain a

search warrant and get the DNA sample at a hospital. Arnold refused and thereafter

Vansickle was taken into the interview room. During Vansickle's interview, McFarland asked

him for permission to search the clothing he wore the night of the incident and to take a

buccal swab from Vansickle's mouth for DNA testing. McFarland stated that he did not

remember whether he told Vansickle he had the right to refuse to give a buccal swab but

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stated that he did not threaten him with arrest if he failed to consent. Vansickle agreed and

signed a "permission to search form" which indicated that he consented to the search of his

clothing and buccal swab for DNA.

{¶ 68} At the hearing, Vansickle acknowledged that he signed the "permission to

search form" but stated that he did not read the form and believed it only authorized the

officers to search his clothes but not his buccal swab for DNA. Vansickle stated that he

consented to the buccal swab because he was concerned that if he did not, the police would

get a search warrant and forcibly require him to give a sample.

{¶ 69} The trial court's finding that Vansickle consented to search his clothing and

buccal swab for DNA was supported by competent credible evidence. Vansickle was not in

police custody and McFarland testified that he asked Vansickle to allow the police to search

his clothing and buccal swab but did not threaten Vansickle if he failed to consent. Vansickle

was never handcuffed, restrained, threatened, or given an inducement to provide his consent

to the search. Additionally, Vansickle's testimony that he did not understand that the police

would also search his buccal swab for DNA is refuted by the consent form that explicitly

allowed the police to conduct this search. Therefore, we find that the trial court did not err in

determining that Vansickle consented to the clothing and buccal swab search.

{¶ 70} Lastly, Vansickle argues that the evidence should be suppressed because it

was obtained in violation of the Ohio Attorney General's Collection Policy and Procedures,

the Ohio Administrative Rules, and R.C. 2933.82(C). Vansickle does not cite a specific

provision that was violated but instead merely argues in one sentence that "evidence was

adduced at the hearing" that the collection of Vansickle's DNA was did not comply with these

rules. Upon a review of the record, there was no evidence that the collection of Vansickle's

DNA was in violation of the Ohio Attorney General Collection Policy and Procedures, the

Ohio Administrative Rules, and R.C. 2933.82(C). Therefore, the court did not err in refusing

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to suppress Vansickle's clothing, body, and DNA evidence on this basis.

{¶ 71} Consequently, the trial court did not err in denying Vansickle's motion to

suppress the statements he made on May 19, 2012 and September 5, 2012 as well as the

results of the clothing, body, and DNA searches. Vansickle's fourth and fifth assignments of

error are overruled.

{¶ 72} Assignment of Error No. 6:

{¶ 73} DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE JUDGE

IMPROPERLY MISLED THE JURY AS TO AFFIRMATIVE DEFENSES AND ALLOWED

IMPROPER ARGUMENT BY THE STATE, PREJUDICING THE JURY AND INTERVENING

IN DEFENDANT'S PRESENTATION OF HIS CASE.

{¶ 74} Vansickle argues that the trial court violated his constitutional rights when it

prevented his attorney from arguing a mistake of fact defense in closing argument. Vansickle

also asserts that the court erred when it "berated" his attorney during her discussion of the

burden of proof to the jury.

{¶ 75} The constitutional right to the assistance of counsel in a criminal prosecution

has been interpreted so as to guarantee that the defense has an "opportunity to participate

fully and fairly in the adversary fact-finding process." State v. Parrot, 12th Dist. No. Warren

CA97-11-114, 1998 WL 526545, *2 (Aug. 24, 1998), citing Herring v. New York, 422 U.S.

853, 858, 95 S.Ct. 2550, 2553 (1975). Closing arguments provide the defense with an

opportunity to summarize the evidence and serve as a "basic element of the adversary fact-

finding process." Parrot at *2. Accordingly, defense counsel in a criminal prosecution cannot

be denied the opportunity to make a closing argument even if the matter is a bench trial that

appears "open and shut" at the close of the evidence. Id. Although defense counsel must

be afforded an opportunity to make a closing argument and is afforded wide latitude in

making such an argument, a trial judge retains discretion to limit the duration and scope of

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closing arguments. Id., citing Pang v. Minch, 53 Ohio St.3d 186, 194 (1990). Thus, a trial

judge's limitation on closing arguments will not be reversed absent an abuse of discretion.

State v. Totarella, 11th Dist. Lake No. 2002-L-147, 2004-Ohio-1175, ¶ 52.

{¶ 76} Vansickle requested that the trial court instruct the jury as to the defense of

mistake of fact as to G.M.'s age. The trial court denied this instruction. Subsequently, during

Vansickle's closing argument, the following exchange took place:

[Defense]: * * * Let's talk about mistake of fact. Mistake of fact which mistake of age is a mistake of fact.

[State]: Objection

[Sidebar conference]

[Judge]: Ladies and Gentlemen, the term mistake of fact is not an issue that you have to resolve so, counsel no further reference to the term mistake of fact. You'll be given jury instructions. It will have all of the definitions and terms that you need in this particular case.

{¶ 77} Later, defense counsel proffered that she would have argued a mistake of fact

defense as to G.M.'s age during her closing argument. She maintained that this defense

would negate the mental state required for unlawful sexual conduct with a minor.

{¶ 78} The trial court did not err in preventing Vansickle's attorney to argue a mistake

of fact defense to the jury during closing argument and instructing the jury not to consider this

issue. As discussed in the first assignment of error, the court did not err in refusing to

instruct the jury as to the mistake of fact defense because it was redundant to the issues

presented in the case. The jury was clearly instructed to consider the facts and

circumstances as to whether Vansickle knew or was reckless that G.M. was under the age of

16. For the same reasons, the court did not err in sustaining the state's objection in regards

to defense counsel comments regarding the mistake of fact defense. See State v. Skerness,

5th Dist. Coshocton No. 09-CA-28, 2011-Ohio-188, ¶ 74; State v. Mahan, 12th Dist. Butler

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No. CA2002-10-262, 2003-Ohio-5430, ¶ 19.

{¶ 79} Vansickle also argues that during closing argument, the court "berated" his

counsel about the defense's burden of proof and "telegraph[ed] his feeling about the case

and the evidence to the jury." During closing arguments, Vansickle's attorney discussed the

burden of proof in criminal cases. She stated:

[Defense]:* * * But I'll tell you that beyond a reasonable doubt is the absolute highest burden of proof in our legal justice system. It applies only to criminal cases. And it serves an important purpose. It ensures that innocent people aren't convicted wrongfully. It's the exact burden of proof that you or I would want applied to us if we were accused of something. The burden of proof, in this case, beyond a reasonable doubt, is the exact same burden of proof that applies to death penalty cases.

[State]: Objection your Honor.

[Judge]: Sustained. The burden of proof I'll read the instructions to the jury. The burden of proof is the same on all criminal cases, whether it's a traffic ticket or a homicide. So this is argument Ladies and Gentlemen let's continue Ms. Gaba.

Further, Vansickle asserts that the trial court was also biased in favor of the state when it

overruled his objections concerning the mischaracterization of the evidence in the state's

closing argument.

{¶ 80} "It is well settled that a criminal trial before a biased judge is fundamentally

unfair and denies a defendant due process of law." State v. Dean, 127 Ohio St.3d 140,

2010-Ohio-5070, ¶ 48, quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 34.

Judicial bias has been described as "'a hostile feeling or spirit of ill will or undue friendship or

favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory

judgment on the part of the judge, as [opposed to] an open state of mind which will be

governed by the law and the facts.'" Dean at ¶ 48, quoting State ex rel. Pratt v. Weygandt,

164 Ohio St. 463 (1956), paragraph four of the syllabus. The Supreme Court also

recognized that "'judicial remarks during the course of a trial that are critical or disapproving

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of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or

partiality challenge.'" Dean at ¶ 49, quoting Liteky v. United States, 510 U.S. 540, 555, 114

S.Ct. 1147 (1994). Judicial remarks of this nature will support a challenge if they reveal such

a high degree of favoritism or antagonism as to make fair judgment impossible. Dean at ¶

49. Where a reviewing court finds that a trial was infected by judicial bias, the remedy is a

new trial. Id. at ¶ 2.

{¶ 81} Upon a review of the record, we do not find that the trial court was biased

toward the state nor did the court disparage defense counsel. Upon defense counsel's

discussion of the burden of proof and comparison of the burden to capital punishment cases,

the trial court merely clarified that the burden of proof is the same whether it is traffic tickets

or a homicide. The court clearly instructed the jury regarding the burden of proof in the jury

instructions. As stated above, it is within the discretion of the trial court to determine the

appropriate bounds of closing arguments. Additionally, we do not find that the court was

biased when it overruled Vansickle's attorney objections to the state's closing argument. The

court properly found that the state was merely making an argument instead of misstating the

evidence. The court harbored no bias toward defense counsel or Vansickle during the

proceedings. The record reflects that the judge treated all parties and counsel with respect

as manifested in the judge's comments and rulings during the trial. See McKay v. Hardin

Memorial Hosp., 3d Dist. Hardin No. 6-2000-08, 2001 WL 534988, *6 (May 18, 2001).

{¶ 82} Vansickle's sixth assignment of error is overruled.

{¶ 83} Assignment of Error No. 7:

{¶ 84} THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE PREJUDICE

OF APPELLANT BY CONVICTING APPELLANT, BECAUSE THIS CONVICTION WAS

BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE

WAS INSUFFICIENT TO SUPPORT THE CONVICTION.

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{¶ 85} Lastly, Vansickle argues that his unlawful sexual conduct with a minor

conviction was against the manifest weight of the evidence and not supported by sufficient

evidence. "[W]hile a review of the sufficiency of the evidence and a review of the manifest

weight of the evidence are separate and legally distinct concepts, a finding that a conviction

is supported by the weight of the evidence will be dispositive of the issue of sufficiency."

State v. Brauer, 12th Dist. Warren No. CA2012-11-109, 2013-Ohio-3319, ¶ 12. With that in

mind, we first examine whether Vansickle's conviction is supported by the manifest weight of

the evidence.

{¶ 86} A manifest weight challenge 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.

State v. English, 12th Dist. Butler No. CA2013-03-048, 2014-Ohio-441, ¶ 66. In determining

whether a conviction is against the manifest weight of the evidence, the court, reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility of

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. Thompkins, 78 Ohio St.3d 380, 387

(1997). "This discretionary power should be exercised only in the exceptional case where the

evidence weighs heavily against conviction." State v. Hall, 12th Dist. Butler No. CA2012-01-

014, 2013-Ohio-4427, ¶ 28.

{¶ 87} Vansickle was convicted of unlawful sexual conduct with a minor, in violation of

R.C. 2907.04(A). That statute provides,

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.

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

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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. * * *" Fellatio has been defined as a sexual act in which the mouth or lips come into

contact with the penis. State v. Speakman, 12th Dist. Fayette No. CA2010-06-013, 2011-

Ohio-3430, ¶ 12.

{¶ 89} Vansickle's conviction for unlawful sexual conduct with a minor was not against

the manifest weight of the evidence. The evidence established that on May 19, 2012, G.M.

was 15 years old, Vansickle was 22 years old, and G.M. was not the spouse of Vansickle.

Additionally, several witnesses testified that G.M. and Vansickle engaged in sexual conduct.

G.M. testified that she engaged in vaginal intercourse and fellatio with Vansickle. Two

forensic scientists testified that they identified Vansickle's semen on samples taken from

G.M.'s vagina, perianal area, and underwear. G.M.'s mother also stated that upon walking

into G.M.'s bedroom, she saw G.M. performing conduct consistent with fellatio. Lastly, in

both of Vansickle's statements made to police, he admitted that he received fellatio from

{¶ 90} Further, the greater inclination of evidence established that Vansickle knew that

G.M. was under the age of 16 or was reckless in that regard. Vansickle testified that he did

not know that G.M. was under 16 because she smokes cigarettes, he saw her drink alcohol,

and her large stature. While G.M. might have behaved like an adult in some respects,

Vansickle's May 19, 2012 statement to the police indicates that he was aware or at least had

reckless disregard of G.M.'s age at the time of the sexual conduct. During the interview, he

stated that he asked G.M. how old she was and refused to have sex with her because she

was "way too young" and he was 22 years old. He also stated that "I'm 22 years old and I'm

not messing with no 15 year old girl" and he told G.M. that "I can't do this, I'm 22 years old."

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This statement along with the other evidence provided at trial such as the fact that G.M. lived

with her parents and the jury's opportunity to observe G.M. testify and evaluate her

appearance provided more than enough evidence to support Vansickle's conviction.

{¶ 91} In light of the evidence presented, the jury did not clearly lose its way in

concluding that Vansickle was guilty of unlawful sexual conduct with a minor. Vansickle's

conviction was not against the manifest weight of the evidence. Since we have determined

that Vansickle's conviction for unlawful sexual conduct with a minor was not against the

manifest weight of the evidence, we necessarily conclude that there was sufficient evidence

to support the guilty verdict. Accordingly, Vansickle's seventh assignment of error is

overruled.

{¶ 92} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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