Toledo v. Jones

2019 Ohio 237

• Court: Ohio Court of Appeals
• Decided: January 25, 2019
• Docket: L-17-1220, L-18-1096, L-18-1097, L-18-1098
• Status: Published

Opinion

[Cite as Toledo v. Jones, 2019-Ohio-237.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio/City of Toledo Court of Appeals Nos. L-17-1220 L-18-1096 Appellee L-18-1097 L-18-1098 v. Trial Court Nos. CRB-17-02370 Joseph Jones CRB-16-17507 CRB-17-02414 Appellant CRB-17-02415

DECISION AND JUDGMENT

Decided: January 25, 2019

*****

David Toska, Chief Prosecutor, for appellee.

Adam H. Houser, for appellant.

PIETRYKOWSKI, J.

{¶ 1} In this consolidated appeal, appellant, Joseph Jones, appeals from the

August 18, 2017 judgments of the Toledo Municipal Court convicting him of sexual imposition, a violation of R.C. 2907.06(A)(1) and sentencing him to serve 60 days

incarceration, which was suspended. For the reasons which follow, we affirm.

{¶ 2} Appellant appeals from the judgments of conviction and sentencing. He

asserts the following assignments of error:

A. THE TRIAL COURT ERRED IN DENYING THE CRIM.R. 29

MOTION TO DISMISS AS THERE WAS NO CORROBORATION OF

THE VICTIM’S TESTIMONY IN THE TM, MW, AND AM CASES.

B. THE TRIAL COURT ERRED IN DENYING THE CRIM.R. 29

MOTION TO DISMISS AND THE VERDICT OF THE JURY WAS NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND [sic] AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE WHERE THE STATE

FAILED TO PRESENT EVICENCE THAT “FEET” CONSTITUTE AN

“EROGENOUS ZONE.”

{¶ 3} Appellant was charged by separate complaints involving four victims of

committing four counts of sexual imposition offensive contact, R.C. 2907.06(A)(1), a

misdemeanor of the third degree. In addition, he was also charged with one count of

aggravated menacing, R.C. 2903.21, involving victim No. 4 and three counts of

menacing, R.C. 2903.22(A), involving the other three victims.

{¶ 4} All the cases proceeded to a jury trial on August 17, 2017. Appellant was

found guilty of four counts of sexual imposition offensive contact and acquitted of the

2. remaining charges. Appellant’s sentence was stayed pending compliance with certain

conditions involving mental health treatment. On August 22, 2017, at a review hearing,

the trial court found appellant had complied with ordered mental health treatment and

suspended the remaining imposed sentences for all four cases and placed appellant on

active probation for one year and ordered that he have no contact with the victims or

Franklin Park Mall. The trial court further ordered appellant to register as a sex offender.

{¶ 5} At trial the following evidence was presented. A crime analyst for the

Toledo Police Department authenticated copies of appellant’s Instagram, Facebook, and

YouTube pictures, videos, and/or postings she downloaded to CDs. Appellant stipulated

his Instagram handle was “darcangell” and his YouTube account was under “KaliforNia

Kid.” Portions of the CDs were played for the jury and summaries of the files were

admitted into evidence to establish appellant’s foot fetish and a common scheme or plan

of manipulating women.

{¶ 6} Victim No. 1 testified that appellant approached her while she was shopping

in a Target store on December 19, 2016, and engaged her in conversation about her

shoes, which led to her placing her right foot over her left knee so he could see the insole

of her shoe. Appellant immediately grabbed her heal. When she told him to stop, he said

something about not being able to see inside her shoe. She was offended and pulled her

foot away, moved to get away from him, and he moved to another aisle. She

immediately called her fiancé and told an employee, who went back to the area with her

3. to identify appellant and found he was talking to another woman. The employee spoke to

appellant and stayed in the area. Victim No. 1 decided to check out and leave the store.

She called her fiancé again while walking to her car because she was afraid appellant

would approach her again. She did not report the incident until January 14, 2017,

because her family had questioned why she would let this happen and whether it really

happened.

{¶ 7} Victim No. 2 testified she was working at the Aldo Shoe Store at Franklin

Park Mall on July 26, 2016, when appellant approached her and started a conversation

about her sandals. When he asked to see it, she placed her foot on a bench because it

would have taken effort to remove the sandal. Appellant immediately grabbed her foot

between the sole of the shoe and the bottom on her foot and began to rub it. She was

surprised and pretended to lose her balance to get away from him and go into the back

room. While appellant was talking, the victim recognized he was the same man who had

asked to read her palm two years earlier while she was shopping in Ann Arbor. At that

time, she had allowed him to hold her hand and he made some comments about her hand

that she thought were creepy and weird. After the second incident, victim No. 2 was

afraid of running into appellant again. Victim No. 2 did not report the incident until

February 24, 2017, because she was afraid no one would take her seriously.

{¶ 8} Victim No. 3 testified that on December 2, 2016, she was working in the

PacSun store at Franklin Park Mall when appellant bumped into her, causing her to

4. stumble. He made some comment that he must be getting bigger and was taking up too

much space. She returned to her work but could see appellant continuing to look at her.

He conversed with her about her shoes and asked about the brand. She lifted her foot to

read the brand on the bottom. She said it was something she did not know how to

pronounce when appellant dropped to his knee, grabbed her foot, pulled off her shoe, and

began to caress her foot. She put her foot down and grabbed her shoe back and moved to

the counter. She testified she was offended by the incident and was in shock. She talked

to her manager (victim No. 4) about the incident and felt safer standing next to the

manager because she was responsible for calling security. Victim No. 3 had to check

appellant out and he started another conversation about not using credit cards and having

his own business. He asked about a tattoo on her finger and she told him it was the earth

symbol and that she and the manager had gotten them at the same time. Appellant

replied that he was involved with magic and was going to start his own coven and was

bringing a woman from overseas to participate in a ritual. At that point, victim No. 3

became very uncomfortable and scared. She did not file a report until February 24, 2017,

when her friend, victim No. 2, filed as well.

{¶ 9} Victim No. 4 testified she was a store manager for PacSun in 2016. On

December 21, 2016, appellant entered the store while she was at the counter. She greeted

him as she did for all customers. Appellant began to talk to her and shook her hand so

hard she told him so. He responded that he did martial arts and did not know his own

5. strength. He started to talk about her shoes and asked to see the inside of the shoe. She

was wearing shoes without a heel and quickly slipped her foot in and out of the shoe.

She did not consider the conversation to be flirtatious. The conversation was interrupted

by other customers who needed assistance. Appellant proceeded to shop but returned to

the counter ten minutes later and asked her if victim No. 4 could point her toes. She

testified she used to dance and often had people talk to her about her feet and pointing her

toes, so she slipped off her shoe and pointed her toe. Appellant immediately dropped to

one knee and grabbed her foot, started massaging it, and then put her toe in his mouth.

She testified she never consented to him touching her and was so shocked she froze.

After about 30 seconds, appellant stood up and kissed her on the cheek and told her he

would be back. Victim No. 3 received a call from victim No. 4 shortly afterward and

went to the store. Victim No. 3 found victim No. 4 on the floor behind the counter, shaky

and upset. Victim No. 3 noticed victim No. 4 had been crying.

{¶ 10} Approximately 30-40 minutes later, at 8:55 p.m., appellant returned to the

store. The two victims were standing together when victim No. 4 saw him and told

victim No. 3. Victim No. 3 testified she noticed that victim No. 4 was uncomfortable and

started crying. Victim No. 4 further testified that appellant approached the counter and

asked if the store was closing soon but the store was closing later than normal because of

the holiday hours. Because appellant had come back at what he thought was closing

time, victim No. 4 became afraid appellant was going to follow her when the store closed.

6. Appellant asked for a dressing room and another employee opened the dressing room for

him to use and then called security. Security arrived as appellant was leaving the

dressing room.

{¶ 11} Victim No. 4 testified that after this incident, her mother passed out flyers

to other workers to warn them. She was criminally charged for doing so, but the charges

were eventually resolved without a trial. Victim No. 4 denied lying to protect her mother.

{¶ 12} A Toledo police officer working at the mall off-duty testified he was called

to investigate. He found victim No. 4 with some other employees and observed she

looked very uneasy and frightened because she was shaking, stuttering, and had watery

eyes. The officer testified victim No. 4 gave her a description of appellant, told the

officer about the incident, and told him that appellant was a frequent customer. The

officer further testified victim No. 4 appeared truthful and did not act like someone who

consented to the encounter. The officer checked around the mall to locate appellant.

{¶ 13} At 9:00 p.m., the officer received a call that appellant had returned to the

store. The officer immediately went to the store and found appellant at the back of the

store. He appeared nervous because he was trembling. Based on his experience, the

officer believed appellant had either done something wrong or was up to something. He

did not want to give the officer his name. He eventually showed the officer his

identification, but refused to answer any questions. After appellant left the store, the

7. officer talked to victim No. 4 a second time. She was shaking and trembling more this

time because appellant had come back to the store as he said he would.

{¶ 14} In his first assignment of error, appellant argues that the trial court erred in

denying appellant’s Crim.R. 29 motion to dismiss. Appellant argues appellee presented

no evidence to corroborate the testimonies of victims No. 1, 2, and 3.

{¶ 15} We review the trial court ruling on a Crim.R. 29(A) motion under the same

standard used to determine whether the evidence was sufficient to sustain a conviction.

State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39-40.

Therefore, we must determine whether the evidence admitted at trial, “if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.E.2d 560 (1979). See also State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). Therefore, “[t]he verdict will not be disturbed unless the appellate

court finds that reasonable minds could not reach the conclusion reached by the trier-of-

fact.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jenks at

503.

8. {¶ 16} Appellee was required to prove in this case that appellant had “sexual

contact with another, not the spouse of [appellant]” knowing “the sexual contact is

offensive to the other person * * * or is reckless in that regard.” R.C. 2907.06(A)(1).

The statute further provides that “[n]o person shall be convicted of a violation of this

section solely upon the victim’s testimony unsupported by other evidence.” R.C.

2907.06(B). Whether sufficient corroboration evidence has been admitted is a question

of sufficiency for the trial court to determine. State v. Economo, 76 Ohio St.3d 56, 60,

666 N.E.2d 225 (1996); State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211,

¶ 26, citing Economo.

{¶ 17} The corroborating evidence required for this offense need only support the

victim’s testimony connecting the defendant to the crime and does not need to be

independently sufficient to support the conviction nor go to every essential element.

Economo. This burden is met when the testimonies of multiple victims are consistent.

State v. Manolakas, 8th Dist. Cuyahoga No. 86815, 2006-Ohio-4263, ¶ 16 (several

victims testified of a sexually-offensive work environment); State v. Buske, 5th Dist.

Stark No. 2005CA00240, 2006-Ohio-2054, ¶ 30 (modus operandi can be establish by the

similarities in the testimony of the victims).

{¶ 18} Appellant argues appellee only presented corroborating evidence regarding

victim No. 4. Furthermore, appellant argues the corroborating evidence cannot arise out

9. of other crimes, wrongs, or acts, but must relate to each specific instance of criminal

conduct.

{¶ 19} Appellee argues the corroboration evidence was appellant’s online

statements and videos and the testimony of multiple victims, which reflect a common

plan and scheme, which is admissible under Evid.R. 404(B). We agree.

{¶ 20} Each victim testified as to how appellant manipulated the victim into

exposing her foot so he could touch it. The similarities in their testimony and appellant’s

on-line postings regarding how to manipulate women and his foot fetish reflect a

common plan or scheme he followed to commit each crime. Such evidence is admissible

for the purpose of and sufficient to act as corroborating evidence of the victims’

testimonies. Therefore, we find appellant’s first assignment of error not well-taken.

{¶ 21} In his second assignment of error, appellant argues that the trial court erred

in denying his motion to dismiss and his conviction was not supported by sufficient

evidence because feet do not constitute an “erogenous zone” under R.C. 2907.01(B).

Appellant also challenges that his convictions were contrary to the manifest weight of the

evidence.

{¶ 22} R.C. 2907.01(B) defines “sexual contact” as: “any touching of an

erogenous zone of another, * * * for the purpose of sexually arousing or gratifying either

person.” Furthermore, “in the absence of direct testimony regarding sexual arousal or

gratification, the trier of fact may infer a purpose of sexual arousal or gratification from

10. the ‘type, nature and circumstances of the contact, along with the personality of the

defendant.’” State v. Franklin, 9th Dist. Wayne No. 2014 CRC-1 000031, 2016-Ohio-56,

¶ 13, quoting State v. Antoline, 9th Dist. Lorain No. 02CA008100, 2003-Ohio-1130, ¶ 64,

quoting State v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991). See

also State v. Edwards, 8th Dist. Cuyahoga No. 81351, 2003-Ohio-998, ¶ 21-22; State v.

Johnson, 1st Dist. Hamilton No. C-150723, 2016 Ohio App. LEXIS 4192, *3 (Oct. 14,

2016).

{¶ 23} In the case before us, the jury could infer from the testimony of the victims

and appellant’s social media postings that he has a foot fetish and touching of the

victims’ feet was motivated by a desire for sexual arousal or gratification. Therefore,

there was sufficient evidence to present the case to the jury.

{¶ 24} A challenge to the weight of the evidence questions whether or not the

greater amount of credible evidence was admitted to support the findings of fact. Eastley

v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17; Thompkins, 78

Ohio St. 3d at 387, 678 N.E.2d 541. When weighing the evidence, the court of appeals

must consider whether the evidence in a case is conflicting or where reasonable minds

might differ as to the inferences to be drawn from it, consider the weight of the evidence,

and consider the credibility of the witnesses to determine if “the jury clearly lost its way

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

11. and a new trial ordered.” Id. quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

{¶ 25} Upon a review of all of the evidence, we cannot find the jury lost its way in

evaluating the evidence, determining the credibility of the witnesses, and drawing

inferences from the evidence. Therefore, we find that appellant’s convictions are not

contrary to the manifest weight of the evidence.

{¶ 26} Therefore, we find appellant’s second assignment of error not well-taken.

{¶ 27} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgments of the Toledo

Municipal Court are affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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