State v. Taylor , 2015 Ohio 3316 ( 2015 )

[Cite as State v. Taylor, 2015-Ohio-3316.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2014CA00170
JOHNATHAN B. TAYLOR :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2014CR0468
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 17, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO ANTHONY KOUKOUTAS
STARK COUNTY PROSECUTOR 116 Cleveland Avenue N.W.
BY: KATHLEEN TATARSKY 808 Courtyard Centre
110 Central Plaza South Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2014CA00170 2
Gwin, P.J.
{¶1} Appellant Johnathon B. Taylor [“Taylor"] appeals from his conviction and
sentence after a jury trial in the Stark County Court of Common Pleas for one count of
Gross Sexual Imposition in violation of R.C. 2907.05(A), a felony of the third degree.
Facts and Procedural History
{¶2} CV, age 12, had an older sister. Her sister, Anielka Taylor, lived with
Taylor, age 34, since August 2009 and eventually married him and had a child. Prior to
their marriage, they lived with CV, her mother, DV, and CV's siblings at their home on
4th Street in Massillon, Ohio. After their child was born, they moved to an apartment on
North Street in Massillon, Ohio.
{¶3} CV and Taylor were very close. CV's father did not visit her on a regular
basis. DV was born in Nicaragua and her English was limited. Taylor and CV were -
friends on Facebook and often exchanged text messages. CV often stayed overnight
with Taylor and her sister, Anielka. When her sister was home, CV slept on the couch.
When she was not home and working at Taco Bell, CV would sleep in the bed with
Taylor.
{¶4} On June 1, 2013 around 10:00 pm, CV's mother received a text message
from her daughter. CV had been staying with Taylor and Anielka for a few days. CV
asked her mother to pick her up because Taylor had kicked her out of the house. DV
went to the Taylor apartment to pick CV up and found her sitting on the outside stairs.
CV was scared and upset. DV asked her what had happened and CV did not want to
talk about it. When they got home, CV went into her room and would not speak to her
mother.
Stark County, Case No. 2014CA00170 3
{¶5} The next day, June 2, 2013, DV had to work an 8:00 am to 4:00 pm shift.
When she arrived home from work, CV was still sad and quiet. DV asked her
daughter to explain to her what had happened the day before. CV responded that her
mother was not going to like what had happened and started to cry. DV told her
daughter that if she would not tell her what had happened, they would have to go to
the police. CV said it was really bad what she was going to tell her. DV asked, "They
touched you." CV responded yes and that it happened many times. This was the first
time her mother had ever heard this claim. In fact, CV had never told anyone about
the alleged abuse, which she claimed had been ongoing for years.
{¶6} DV tried to reach her daughter, Anielka, but she did not answer the
phone. DV and her boyfriend took CV in the car to Taylor's home. Taylor came out
holding his daughter. DV explained to CV that if what she said was true, Taylor would
go to jail and he could not see his daughter anymore. DV asked Taylor why he had
touched her daughter, CV. Taylor turned to CV and said, "Tell the truth, because if you
don't tell the truth they're going to take me away. Detained." CV continued to cry and
said in a loud voice, "you don't believe what I'm telling you." CV said she had not said
anything because of Anielka. DV took CV to the Massillon police station.
{¶7} At 3:45 pm that day, Taylor sent DV a text message explaining that he
was angry with CV because she was going to stay with him Saturday but when she got
home from the movie, she wanted to go home. Taylor also explained that he was
angry because they [CV and Taylor] were going to do a photo shoot and play video
games. As for the allegations CV made of Taylor touching her, he explained,
Stark County, Case No. 2014CA00170 4
As for me touching her, I can only guess she is talking about when
we play fight or sometimes we sleep close together and perhaps my
hand was on her while asleep. CV is my sister and I would never try to
hurt her. I guess she was so hurt about me lying about Ethan that she felt
betrayed that I lied about her and she was very hurt. CV I am so sorry for
lying to your mom about Ethan being allowed over here. I am not mad
that you said what you did because I betrayed you. Please forgive me.
{¶8} When CV and her mother arrived at the Massillon Police Department
later that day, the police officers on duty interviewed them. Detective Bobby Grizzard
was assigned to investigate the allegations of sexual abuse by Taylor. Grizzard
listened to the interview of CV by the police officers, viewed the interview given by CV
to C. J. Cross Taylor, a forensic interviewer from the Children's Network, talked with
CV's mother and interviewed CV's sister, Anielka Taylor.
{¶9} Grizzard interviewed Taylor. Taylor denied any contact with CV for
purposes of sexual gratification. He admitted that CV slept with him in his bed when his
wife was not home and that they had a very close relationship. He admitted that he told
CV to leave on June 1, 2013 when it was dark outside. As to the reason CV was
making the allegations, Taylor opined that it was because he would not allow her to
see her boyfriend and labeled her a "vengeful little kid."
{¶10} Grizzard obtained a search warrant for Taylor's apartment on 9th Street
in Massillon and a warrant to obtain pictures of Taylor's penis depicting a mole in the
genital region.
Stark County, Case No. 2014CA00170 5
{¶11} Grizzard learned from CV that Taylor often used Vaseline and lotion
when he had sexual contact with her. Grizzard found bottles of lotion and Vaseline in
Taylor's apartment. Grizzard took the couch cushions from the apartment. A DNA
expert from the Bureau of Criminal Investigations tested them. The left cushion was
positive for semen. DNA testing revealed a mixture of DNA from Taylor and his wife.
There were minor DNA peaks presented but the expert was unable to conclude
whether they came from CV or not, "She's not a major contributor to the DNA on the
cushions, but I can't make a conclusion as to whether she could be that, those extra
peaks that I saw." The soiled sheets from the apartment were not submitted for testing.
{¶12} CV reported to Grizzard that she saw no unique markings on Taylor's
penis. Grizzard testified that the photographs revealed none. However, upon cross-
examination, Grizzard conceded that a mole was present in the thigh or genital region
and was depicted in the photograph. (3T. at 426-428).
{¶13} Taylor was also interviewed by Brittnee Stone, a social worker in Stark
County Job and Family Services on June 28, 2013. Taylor told Stone he kicked CV out
that night and made her sit on the porch because she did not get a ride home after the
movies, and because they were supposed to do a photo shoot that night and play
video games and she did not want to. Taylor reported they had a "super close"
relationship - like brother and sister - and that one time while sleeping in his bed, he
woke up and her hand was on his penis. Another time, he woke up while she was in
his bed watching television and he was nude. CV slept on the couch when his wife
was home and in bed with him when she was not home. Taylor again denied any
sexual contact with CV.
Stark County, Case No. 2014CA00170 6
{¶14} CV was also seen by a nurse practitioner who noticed no signs of
sexual trauma or other abnormalities. The nurse practitioner also testified that the
absence in CV's medical history of any indication of abuse was significant because of the
mandatory reporting requirements of the medical profession when dealing with
indications of sexual abuse or trauma.
{¶15} The police also interviewed another child that CV claimed to have told
about the abuse. This other student denied ever being told about any abuse.
{¶16} C.V. herself testified that her mother set up a reporting policy for
potential abuse scenarios. Her mother specifically and repeatedly told her numerous
times throughout the years what she was to do in the event she was put in a position
that made her uncomfortable. CV admitted despite being told "a hundred times" she
never once said anything to her mother about the abuse.
{¶17} Anielka, who had lived at all times with Taylor, including when they were
sharing the home on Fourth Street, testified that it simply was an impossibility for this
protracted period of abuse to have taken place underneath the noses of all the other
people living in close proximity without anyone noticing. Anielka testified she spent a lot
of time with her younger sister, and would have noticed if something was wrong.
Taylor was not even living in the home during parts of 2009 that CV claimed he was
there and abusing her. Furthermore, when he was living there, his work schedule was
such that would preclude him from being around in the timeframes that CV claimed
he was there. Anielka additionally she testified that Taylor was simply never alone with
CV to the extent that CV was claiming.
Stark County, Case No. 2014CA00170 7
{¶18} Testimony was presented that CV was seeing a young boyfriend at the
time of the accusations in June. On the night in question, CV admitted Taylor did not
want to take her home because he would have to wake his baby. Just the day before,
CV had been on a secret date with her boyfriend again. It was well known throughout
the family that CV was not permitted to have this boyfriend or to go out late with her
friends. CV testified her mother "wouldn't let her" have a boyfriend. Her mother testified
that she was not aware CV was hiding her boyfriend from her, and would have
"punished" and "scolded" her for her behavior. Her mother was further unaware of the
sexually graphic texts CV was sending and the pictures she was posting on Facebook
of her kissing her boyfriend.
{¶19} On April 2, 2014, Taylor was indicted by secret indictment on the
charges of Sexual Battery and Gross Sexual Imposition both felonies of the third
degree.
{¶20} After hearing the evidence and receiving instructions from the trial court,
the jury reported that they were unable to reach a unanimous verdict on either count of
the indictment. After the trial court rendered a “Howard charge1,” the jury returned with
a unanimous verdict of "not guilty" of the charge of sexual battery and "guilty" of the
charge of gross sexual imposition.
{¶21} Taylor was sentenced to the maximum term of 60 months in prison and
labeled a Tier II sex offender.
1
In State v. Howard, 42 Ohio St. 3d 18, 537 N.E.2d 188(1989), the Ohio Supreme Court approved
a supplemental charge to be given to juries that have become deadlocked on the question of conviction
or acquittal.
Stark County, Case No. 2014CA00170 8
Assignment of Error
{¶22} "I. APPELLANT'S CONVICTION'S [sic.] WERE [sic.] AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
Analysis
{¶23} In his first assignment of error, Taylor challenges the sufficiency of the
evidence; he further contends his conviction is against the manifest weight of the
evidence produced by the state at trial.
{¶24} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
{¶25} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
Stark County, Case No. 2014CA00170 9
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶26} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
Stark County, Case No. 2014CA00170 10
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶27} In the case at bar, Taylor contends that the witnesses were not credible
particularly the testimony of CV, the twelve year old victim. Taylor claims that CV's
account of the time the abuse occurred was contradictory, her claims of where the
abuse occurred "varied wildly" and she never complained about the abuse to her
mother, doctors, teachers or others before June 2013. Taylor also points to the state's
lack of corroborating evidence such as evidence of sexual trauma reported during her
physical examination, lack of CV's DNA on sheets, bed or couch cushions, CV's inability
to describe the mole in Taylor's genital area and Taylor's wife, Anielka, failing to
observe any signs of sexual trauma. Additionally, Taylor points to CV's motive for
accusing him of sexual abuse as being her interest in a boyfriend, which was forbidden
by her mother.
1. Time and date of the offense.
{¶28} Taylor argues that the record fails to establish when the offense took
place. However, specificity as to the time and date of an offense is not required in an
indictment. Under R.C. 2941.03, “an indictment or information is sufficient if it can be
understood therefrom: * * * (E) That the offense was committed at some time prior to the
time of filing of the indictment * * *.” An indictment is not invalid for failing to state the
time of an alleged offense or doing so imperfectly. The state is not required to prove that
an offense occurred on any specific date, but rather may prove that the offense
Stark County, Case No. 2014CA00170 11
occurred on a date reasonably near that charged in the indictment. State v. Adams, 5th
Dist. Licking No. 02-CA-00043, 2002-Ohio-5953, ¶ 8.
{¶29} If such is not fatal to an indictment, it follows that impreciseness and
inexactitude of the evidence at trial is not “per se impermissible or necessarily fatal to a
prosecution.” State v. Robinette, 5th Dist. Morrow No. CA-652, 1987 WL 7153(Feb 27,
1987). The question in such cases is whether the inexactitude of temporal information
truly prejudices the accused's ability fairly to defend himself. State v. Sellards, 17 Ohio
St.3d 169, 478 N.E.2d 781(1985); State v. Gingell, 7 Ohio App. 3d 364, 368, 455 N.E.2d
1066, 1071(1st Dist. 1982); State v. Kinney, 35 Ohio App. 3d 84, 519 N.E.2d 1386(1st
Dist. 1987).
{¶30} As this court has noted: “[t]ime is neither essential nor an element of the
crime of sexual battery.” State v. Robinette, supra. In Robinette, this court stated,
We note that these particular cases often make it more difficult to
ascertain specific dates. The victims are young children who may
reasonably be unable to remember exact times and dates of
psychologically traumatic sexual abuses. This is especially true where the
crimes involve several instances of abuse spread out over an extended
period of time. State v. Humfleet (Sept. 9, 1985), Clermont App. No.
CA84-04-031, unreported, at 15. The problem is compounded where the
accused and the victim are related or reside in the same household,
situations which often facilitate an extended period of abuse. An allowance
for reasonableness and inexactitude must be made for such cases
considering the circumstances.
Stark County, Case No. 2014CA00170 12
{¶31} In State v. Sellards, the Supreme Court gave two examples of when the
failure to provide specific dates and times could be prejudicial to the accused. The court
first noted that if the age of the victim were an element of the crime with which the
accused had been charged and the victim bordered on the age required to make the
conduct criminal, then the failure to provide a more specific time frame would be
prejudicial. This is true because “specific dates of sexual conduct might well have
become critical to the accused's ability to prepare a defense, since sexual conduct
toward one thirteen years of age or older would not constitute the offense of rape as
defined in the charged section of the criminal code, R.C. 2907.02(A)(3).” Sellards, 17
Ohio St. 3d at 172, 478 N.E.2d at 785. The second situation is where “the defendant had
been imprisoned or was indisputably elsewhere during part but not all of the intervals of
time set out in the indictment. Again, under such circumstances, the inability of the state
to produce a greater degree of specificity would unquestionably prejudice the defense.”
Id. The Sellards court noted,
The record in this case does not indicate that the failure to provide
the accused with a specific date was a material detriment to the
preparation of his defense. In this regard, we note that while appellee
claims on appeal that the inexactitude of the indictment and bill of
particulars as to date denied him the ability to present an alibi defense,
appellee never filed a notice of intent to rely on an alibi as is required by
Crim.R. 12.1. (Cf. State v. Dingus [1970], 26 Ohio App. 2d 131, 137, 269
N.E.2d 923 [55 O.O.2d 280]; Gingell, supra, at 368, 455 N.E.2d 1066.)
17 Ohio St. 3d 169, 478 N.E.2d 781(1985).
Stark County, Case No. 2014CA00170 13
{¶32} Sufficient evidence was presented through the testimony of CV and the
forensic interview done by C. J. Cross Taylor. CV reported that Taylor touched her
genital area and breasts when Taylor started living with the family in 2009 and
continued until 2013. She described in detail how Taylor touched her breasts, vagina
and pubic area both with her clothes on and with her clothes off. Further, Taylor, who
was 34 years old, admitted in his interview with Brittnee Stone, a social worker in Stark
County Job and Family Services on June 28, 2013 that he slept in the same beds as a
twelve-year-old CV when his wife was not home. He further admitted that one time
while sleeping in his bed, he woke up and her hand was on his penis. Another time,
he woke up while she was in his bed watching television and he was nude. (3T. at
438-439).
2. Location of the sexual activity.
{¶33} Taylor argues that no credible evidence or sufficient evidence
established where the sexual contact took place.
{¶34} Taylor's wife, Anielka, verified that Taylor lived with the family in 2009
and that her sister CV often stayed at their North Avenue apartment for sleepovers.
Taylor himself, while denying any intentional sexual contact, admitted that CV slept
with him in his bed when his wife was not home.
3. Inconsistent verdict.
{¶35} Taylor contends that the jury's inconsistent verdicts in finding him not
guilty of sexual battery but guilty of gross sexual imposition are evidence that the
jury lost its way.
{¶36} It is well-established “inconsistency in a verdict does not arise out of
inconsistent responses to different counts, but only arises out of inconsistent responses
Stark County, Case No. 2014CA00170 14
to the same count.” State v. Lovejoy, 79 Ohio St. 3d 440, 1997-Ohio-371, 683 N.E.2d
1112, paragraph one of the syllabus; State v. Brown, 12 Ohio St. 3d 147, 149, 465
N.E.2d 889(1984). “Each count in an indictment charges a distinct offense and is
independent of all other counts; a jury's decision as to one count is independent of and
unaffected by the jury's finding on another count.” State v. Cope, 12th Dist. Butler No.
CA2009–11–285, 2010–Ohio–6430, ¶69.
{¶37} Accordingly, we reject Taylor's argument alleging inconsistent verdicts as
it is based on different counts.
4. Evidence of crime.
{¶38} R.C. 2907.05 provides in pertinent part:
(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the offender, to
have sexual contact with the offender; or cause two or more other persons
to have sexual contact when any of the following applies:
***
(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of that
person.
{¶39} “Sexual Contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either
person”. R.C. 2907.01. Accordingly, touching the “erogenous zone” is what is
prohibited.
Stark County, Case No. 2014CA00170 15
{¶40} R.C. 2901.22 provides,
(A). A person acts purposely when it is his specific intention to
cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is his specific intention to engage in
conduct of that nature.
{¶41} Evidence was presented through the testimony of CV and the forensic
interview done by C. J. Cross Taylor. CV reported that Taylor touched her genital area
and breasts when Taylor started living with the family in 2009 and continued until 2013.
She described in detail how Taylor touched her breasts, vagina and pubic area both
with her clothes on and with her clothes off.
{¶42} Further, Taylor, who was 34 years old, admitted in his interview with
Brittnee Stone, a social worker in Stark County Job and Family Services on June 28,
2013 that he slept in the same beds as a twelve-year-old CV when his wife was not
home. He further admitted that one time while sleeping in his bed, he woke up and her
hand was on his penis. Another time, he woke up while she was in his bed watching
television and he was nude. (3T. at 438-439).
{¶43} In State v. Mundy, the court observed,
With respect to prosecutions such as this one under R.C.
2907.05(A)(4):
“[T]he proper method is to permit the trier of fact to infer from the
evidence presented at trial whether the purpose of the defendant was
sexual arousal or gratification by his contact with those areas of the body
described in R.C. 2907.01. In making its decision, the trier of fact may
Stark County, Case No. 2014CA00170 16
consider the type, nature and circumstances of the contact, along with the
personality of the defendant. From these facts the trier of facts may infer
what the defendant’s motivation was in making the physical contact with
the victim. If the trier of fact determines, that the defendant was motivated
by desires of sexual arousal or gratification, and that the contact occurred,
then the trier of fact may conclude that the object of the defendant’s
motivation was achieved.” State v. Cobb (1991), 81 Ohio App. 3d 179, 185,
610 N.E.2d 1009, 1013.
Simply put, R.C. 2907.05(A)(4) forbids touching a person under age
thirteen or causing a person under age thirteen to touch the offender on
certain parts of the body, including the genitals, buttocks, or in the case of
a female the breasts, for the specific purpose of sexually arousing or
gratifying either person. Whether that touching was undertaken for the
purpose of sexual arousal or gratification must be inferred from the type,
nature, and circumstances surrounding the contact. In other words, would
an ordinary prudent person or a reasonable person sitting as a juror
perceive from the defendant’s actions, and all of the surrounding facts and
circumstances, that the defendant’s purpose or specific intention was
arousal or gratification of sexual desire.
99 Ohio App. 3d 275, 288-289, 650 N.E.2d 502(2nd Dist. 1994). See also, In re M.D.
and B.D., 5th Dist. Knox No. 2011-CA-9, 2012-Ohio-31, ¶¶ 54-55.
{¶44} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Stark County, Case No. 2014CA00170 17
Taylor committed the crime of gross sexual imposition with a person less than thirteen
years of age. We hold, therefore, that the state met its burden of production regarding
each element of the crimes of gross sexual imposition, and, accordingly, there was
sufficient evidence to support Taylor’s conviction.
5. Credibility and motive.
{¶45} Taylor faults CV's credibility because she never disclosed the sexual
contact before June 2013 and that no one noticed any inappropriate sexual contact
before the June 2013 disclosure. Taylor further questions CV's motive for reporting
the sexual abuse in June 2013 by claiming that she was trying to get him in trouble for
not letting her see her boyfriend.
{¶46} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence, upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.
10, 1982). Accordingly, judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n
determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132
Ohio St. 3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Stark County, Case No. 2014CA00170 18
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
well established that the trial court is in the best position to determine the credibility of
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶9, citing
State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
{¶47} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶48} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S. Ct. 457, 86 L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct.
843, 74 L. Ed. 2d 646 (1983).
{¶49} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
Stark County, Case No. 2014CA00170 19
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,
citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Although the evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, supra.
{¶50} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. The jury neither lost his way
nor created a miscarriage of justice in convicting Taylor of the charges.
{¶51} Based upon the foregoing and the entire record in this matter, we find
Taylor’s conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the jury appears to have fairly and impartially decided the matters
before them. The jury as a trier of fact can reach different conclusions concerning the
credibility of the testimony of the state’s witnesses and Taylor and his witnesses. This
court will not disturb the jury's finding so long as competent evidence was present to
support it. State v. Walker, 55 Ohio St. 2d 208, 378 N.E.2d 1049 (1978). The jury heard
the witnesses, evaluated the evidence, and was convinced of Taylor’s guilt. The jury
Stark County, Case No. 2014CA00170 20
further found Taylor not guilty of the crime alleged in the first count of the indictment,
sexual battery.
{¶52} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime beyond a reasonable doubt.
{¶53} Taylor’s sole assignment of error is overruled.
{¶54} For the foregoing reasons, the judgment of the Court of Common Pleas,
Stark County, Ohio is affirmed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur