State v. Cole-Walker , 2021 Ohio 1507 ( 2021 )

[Cite as State v. Cole-Walker, 2021-Ohio-1507.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200038
TRIAL NO. C-19CRB-29671
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DAMONTE COLE-WALKER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 30, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this appeal from a conviction for sexual imposition, the defendant’s
unwelcome attempts to rekindle his relationship with a former girlfriend escalated
into criminal charges. On appeal, the defendant contends that the victim’s testimony
lacked credibility, and, even if true, was insufficiently corroborated under R.C.
2907.06(B). We disagree, overrule his sole assignment of error, and affirm the
judgment of the trial court.
I.
{¶2} Defendant-appellant Damonte Cole-Walker was involved in a romantic
relationship with the victim, Jalin Spencer, for roughly a year before she cut ties in
July of 2019. Post-breakup communications between the two were heated, and when
Ms. Spencer came to retrieve some of her possessions from Mr. Cole-Walker’s
apartment, a physical altercation broke out. Ms. Spencer involved the police and
eventually filed a civil protection order (“CPO”) petition in Butler County (though it
is unclear whether the CPO was ever served on Mr. Cole-Walker). Even after she
filed for the CPO, Ms. Spencer testified that Mr. Cole-Walker followed her to
different cities, at one point taking her keys and car. She never reported these
incidents to the police, believing that the CPO—and an upcoming CPO hearing—
ought to keep Mr. Cole-Walker at bay.
{¶3} In September 2019, while working as a DoorDash delivery driver, Ms.
Spencer received an order from a Buffalo Wild Wings in Colerain Township. She
parked her car across the parking lot from the restaurant, went in, and picked up her
order. When she returned, she found Mr. Cole-Walker sitting on the curb next to her
car. Ms. Spencer demanded to know what he was doing there, and he initially
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OHIO FIRST DISTRICT COURT OF APPEALS
professed to be picking up his own DoorDash order. The topic soon switched,
however, to the looming CPO hearing. Mr. Cole-Walker now sang a different tune,
insisting that he missed Ms. Spencer and loved her, and maintaining that she didn’t
really want to go through with the CPO proceedings. Undeterred, Ms. Spencer
countered by accusing him of violating the CPO and indicating that he should not
even be there. Mr. Cole-Walker professed that he did not care, then groped Ms.
Spencer’s right breast and buttock.
{¶4} Ms. Spencer later testified that she felt “very violated” by his touch,
because he “shouldn’t have even been in [her] presence in the first place.” She told
Mr. Cole-Walker that she would see him in court, and the two stepped into their
respective vehicles and left. After completing her DoorDash order, Ms. Spencer
drove to the local police station to report the incident. She spoke to several officers,
including Officer Adam Wood, who took down her report and testified briefly at trial.
The state charged Mr. Cole-Walker with one count of sexual imposition under R.C.
2907.06, and the case proceeded to trial.
{¶5} The testimony and arguments below hinged on two key issues:
corroboration and credibility. At one point, Ms. Spencer testified that she was on the
phone with a friend during the entire Buffalo Wild Wings encounter with Mr. Cole-
Walker, and the friend urged her to go to the police. But this friend never
materialized in court. Instead, to corroborate Ms. Spencer’s story, the state
presented evidence of her Butler County CPO filing, the DoorDash receipt showing
that she picked up an order from the Colerain Township Buffalo Wild Wings at the
time of the alleged assault, and Officer Wood’s testimony.
{¶6} Mr. Cole-Walker opted not to present any testimony in his defense,
instead relying on cross-examination to paint Ms. Spencer as less-than-credible and
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OHIO FIRST DISTRICT COURT OF APPEALS
to highlight the absence of corroboration required by R.C. 2907.06(B). The trial
court disagreed, pointing out that the corroboration need not address every element
of the crime charged and that the statute sets a relatively low threshold. The trial
court specifically found that “listening to [Ms. Spencer’s] testimony, her testimony
was very credible.” It convicted Mr. Cole-Walker of one count of sexual imposition,
instructed him to register as a Tier 1 sex offender, and imposed a sentence of 180
days in jail. Mr. Cole-Walker now appeals, challenging the sufficiency and weight of
the evidence underlying his conviction in a single assignment of error.
II.
{¶7} First, to determine whether a conviction is supported by sufficient
evidence, we inquire “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 2 of the syllabus. See State v. Curry, 1st Dist.
Hamilton No. C-190107, 2020-Ohio-1230, ¶ 11. Whether the evidence is sufficient to
sustain a verdict poses a question of law, which we review de novo. State v. Jackson,
1st Dist. Hamilton Nos. C-180159 and C-180209, 2020-Ohio-80, ¶ 11. To obtain a
sexual-imposition conviction under R.C. 2907.06(A)(1), the state had to prove that
Mr. Cole-Walker “[h]ad sexual contact with another * * * know[ing] that the sexual
contact [wa]s offensive to the other person * * * or [wa]s reckless in that regard.” See
R.C. 2907.06(A)(1).
{¶8} Mr. Cole-Walker contends that the trial court erred in its finding that
the state presented sufficient corroboration to support a sexual imposition offense.
The requirement at issue stems from R.C. 2907.06(B): “No person shall be convicted
of a violation of this section solely upon the victim’s testimony unsupported by other
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence.” The Ohio Supreme Court interprets this language to impose “a threshold
inquiry” that the state must satisfy in addition to proving the elements of an R.C.
2907.06 offense. State v. Economo, 76 Ohio St.3d 56, 60, 666 N.E.2d 225 (1996).
As the trial court in this case properly recognized, “[t]he corroborating evidence
necessary to satisfy R.C. 2907.06(B) need not be independently sufficient to convict
the accused, and it need not go to every essential element of the crime charged. Slight
circumstances or evidence which tends to support the victim’s testimony is
satisfactory.” Id.; see State v. Stacy, 1st Dist. Hamilton No. C-150730, 2016-Ohio-
7977, ¶ 6.
{¶9} Without an eye-witnesses to the incident in question, and without any
testimony from Ms. Spencer’s friend on the phone, the state resorted to other
measures to corroborate her story. It tendered a copy of the CPO presented in Butler
County, a DoorDash receipt confirming that Ms. Spencer picked up an order from
the Colerain Township Buffalo Wild Wings at the relevant date and time, and the
testimony of Officer Wood, who took down her report later that evening. Ms.
Spencer’s testimony also aligned with evidence offered by the defense, including
contentious text messages between herself and Mr. Cole-Walker (confirming that she
did not wish to see him, and he knew it) and Officer Wood’s report.
{¶10} Ohio case law sets a low bar for R.C. 2907.06(B) corroboration. In
Economo, for example, the Ohio Supreme Court found sufficient corroboration of a
victim’s testimony based on medical records, testimony that the victim appeared
“scared and upset,” and the victim’s self-reporting to her friend. Economo, 76 Ohio
St.3d at 60, 666 N.E.2d 225. In State v. Stacy, this court found a combination of the
victim’s self-reporting, the defendant’s admission that he was with the victim at the
relevant time, and testimony that the victim “appeared as if something had happened
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OHIO FIRST DISTRICT COURT OF APPEALS
to her” sufficient to satisfy the corroboration requirement. Stacy, 1st Dist. Hamilton
No. C-150730, 2016-Ohio-7977, at ¶ 7. “Corroborating evidence does not necessarily
have to be in the form of eyewitness testimony.” State v. Manolakas, 8th Dist.
Cuyahoga No. 86815, 2006-Ohio-4263, ¶ 11. Instead, “[c]orroborating evidence is
that which supplements evidence that has already been given and which tends to
strengthen or confirm it.” Id. “This is an easily met burden.” Id.{¶11} We find that the evidence offered by the state in this case suffices to
satisfy the corroboration “threshold” in R.C. 2907.06(B). See Economo at 60. The
combination of the DoorDash receipt, CPO filing, and Officer Woods’s testimony
conclusively established: 1) Ms. Spencer’s presence at the location where she alleged
Mr. Cole-Walker groped her, at the time she claimed that the incident occurred; 2)
Ms. Spencer’s communication to Mr. Cole-Walker, through the CPO and otherwise,
that their relationship was over and any further sexual contact would be offensive to
her; and 3) Ms. Spencer’s prompt reporting of the incident to police. See id. at 59
(“ ‘[R]easonably prompt reporting of the incident to one’s family, friends or police is
considered corroboration here.’ ”), quoting Fitzgerald v. United States, 443 A.2d
1295, 1302 (D.C.1982). Of course, this evidence was not independently sufficient to
sustain Mr. Cole-Walker’s conviction. See id. at 60. As he insists in his appellate
brief, it does not directly “evince the sexual contact” at the heart of this case. But
corroborating evidence “need not go to every essential element of the crime
charged.” Id. Instead, the state need only present “[s]light circumstances or
evidence which tend[] to support the victim’s testimony”—and it certainly did so
here. Id.
{¶12} Mr. Cole-Walker musters no sufficiency challenge to the remaining
elements of his R.C. 2907.06(A)(1) offense, essentially conceding that Ms. Spencer’s
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OHIO FIRST DISTRICT COURT OF APPEALS
testimony—if believed and corroborated—was sufficient to prove that he groped her
in a knowingly or recklessly offensive manner. See R.C. 2907.06(A)(1). He admits
that “[g]enerally, the act of reporting a claim of sexual imposition to the police may
constitute sufficient collaboration,” but insists that Ms. Spencer’s report was “lacking
in credibility” due to the absence of any testimony that she appeared upset or scared
when she spoke with police.
{¶13} On a sufficiency challenge, we generally defer to the credibility
determinations of the trial court so long as those determinations are reasonable. See
State v. Sipple, 1st Dist. Hamilton No. C-190462, 2021-Ohio-1319, ¶ 6 (a sufficiency
challenge “is a question of law for the court to determine, the court is not to weigh
the evidence.”). “The trier of fact may believe all, part or none of [a] witness’s
testimony. And when evidence is susceptible to more than one construction, a
reviewing court must give it the interpretation that is consistent with the judgment.”
(Internal citation omitted.) In re J.C., 1st Dist. Hamilton No. C-180493, 2019-Ohio-
4027, ¶ 20. Here, the trial court deemed Ms. Spencer a credible witness after
listening to her testimony. The trial court was best-positioned to evaluate her
credibility, and it certainly rejected Mr. Cole-Walker’s implication that she made a
false report. See State v. Carson, 1st Dist. Hamilton No. C-180336, 2019-Ohio-4550,
¶ 16 (“The trier of fact is in the best position to judge the credibility of the witnesses
and the weight to be given to the evidence presented.”).
{¶14} Finally, although we acknowledge that other cases concerning R.C.
2907.06(B) have emphasized the demeanor of the victim as potential corroborative
evidence, we decline Mr. Cole-Walker’s invitation to require such testimony to
satisfy the R.C. 2907.06(B) threshold. See, e.g., Economo, 76 Ohio St.3d at 60, 666
N.E.2d 225 (victim appeared “scared and upset” and “on the verge of crying”); Stacy,
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OHIO FIRST DISTRICT COURT OF APPEALS
1st Dist. Hamilton No. C-150730, 2016-Ohio-7977, at ¶ 7 (victim was “crying and
upset”). Certainly, testimony that the victim appeared upset or uncomfortable when
recounting his or her experience can help corroborate a claim of sexual imposition.
But to say that a victim must appear visibly disturbed to constitute corroboration
implies the (false) conclusion that survivors of sexual assault must always react in a
stereotypical, outwardly discernible manner in order to be believed. We are loathe to
draw this type of distinction, and hold that the absence of testimony about Ms.
Spencer’s demeanor when she reported her experience does not undermine the
evidence of corroboration marshalled by the state here.
{¶15} Because we find that Ms. Spencer’s testimony was adequately
corroborated under R.C. 2907.06(B) and was itself sufficient to support his
conviction under R.C. 2907.06(A)(1), we overrule the sufficiency prong of Mr. Cole-
Walker’s first assignment of error.
III.
{¶16} Next, when reviewing a challenge to the manifest weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 388,
678 N.E.2d 541 (1997). Unlike our review of a sufficiency challenge, review of a
manifest weight challenge requires us to independently “review the entire record,
weigh the evidence, consider the credibility of the witnesses, and determine whether
the trier of fact clearly lost its way and created a manifest miscarriage of justice.”
State v. Powell, 1st Dist. Hamilton No. 190508, 2020-Ohio-4283, ¶ 16, citing
Thompkins at 397. However, we will reverse the trial court’s decision to convict and
grant a new trial only in “ ‘exceptional cases in which the evidence weighs heavily
against the conviction.’ ” Sipple, 1st Dist. Hamilton No. C-190462, 2021-Ohio-1319,
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OHIO FIRST DISTRICT COURT OF APPEALS
¶ 7, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶17} Mr. Cole-Walker argues that his conviction stands against the manifest
weight of the evidence because Ms. Spencer’s testimony was “substantially lacking in
credibility.” He claims that she harbored “a clear motive to fabricate an event that
would result in an arrest,” and “the real reason that [Ms. Spencer] filed a CPO
against [him] was spite.” In particular, he highlights her purported fear that he
might “tase” her as he approached in the dark parking lot, emphasizing that Ms.
Spencer had no reason to believe that he possessed a taser.
{¶18} After independently reviewing the record, we decline to disturb the
trial court’s determination that Ms. Spencer was a credible witness. Her testimony
was detailed and wholly consistent across direct and cross examination. The version
of events she recounted on the stand matched what she told police in her initial
report; she presented meaningful corroborating evidence of her account; and her
stray comment expressing concern about a physical attack by Mr. Cole-Walker was
not so hyperbolic as to undercut the rest of her narrative. Mr. Cole-Walker presented
no alternate narrative of events below. He asks us to disbelieve Ms. Spencer solely
based on her supposed bias against him. But the bias of a witness—even confirmed—
does not require us to wholly disregard her testimony, and the transcripts reveal no
other reason to question the veracity of Ms. Spencer’s story.
{¶19} In conclusion, this is far from the “exceptional case[] in which the
evidence weighs heavily against the conviction.” See Martin, 20 Ohio App.3d at 175,
485 N.E.2d 717. We hold that Mr. Cole-Walker’s conviction was not against the
manifest weight of the evidence, and we overrule his assignment of error in full. The
judgment of the trial court is affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
ZAYAS, P.J., and SUNDERMANN, J., concur.
J. HOWARD SUNDERMANN, retired, from the First Appellate District, sitting by
assignment.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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