State v. Young , 2019 Ohio 912 ( 2019 )

[Cite as State v. Young, 2019-Ohio-912.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-03-047
: OPINION
- vs - 3/18/2019
:
DUSTIN M. YOUNG, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-04-0695
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044,
for appellant
HENDRICKSON, J.
{¶ 1} Appellant, Dustin M. Young, appeals from his convictions in the Butler County
Court of Common Pleas for gross sexual imposition and abduction. Young further appeals
the trial court's denial of his motion for leave to file a motion for new trial.
{¶ 2} On April 26, 2017, Young, a police officer employed by a public university's
police department, was indicted on one count of gross sexual imposition in violation of R.C.
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2907.05(A)(1), a felony of the fourth degree (count one); one count of kidnapping in violation
of R.C. 2905.01(A)(4), a felony of the second degree (count two); and two counts of
abduction in violation of R.C. 2905.02(A)(2), felonies of the third degree (counts three and
four). The charges arose out of three separate incidents occurring during the fall of 2016.
Counts one and two related to an incident in which it was alleged that Young had sexual
contact by means of force or the threat of force with K.K., a female coworker employed as an
emergency dispatcher. Young used his arm to hook K.K. between her legs, pull her down
onto his lap, and while holding K.K. on his lap, rubbed his arm on her vagina and grabbed
one of her breasts with his hand for the purpose of sexual arousal and gratification. Count
three related to a second incident, in which it was alleged that Young abducted K.K. while the
two were at work. Young grabbed K.K. and pushed her back against lockers, thereby placing
K.K. in fear. Finally, with respect to count four, on or about November 14 or 15, 2016, Young
was alleged to have abducted K.K. a second time at work. Young grabbed K.K. in a manner
that caused her to hit her head on a metal book case before pushing her back and pinning
her against some lockers, thereby placing her in fear.
{¶ 3} Young pled not guilty to the charges and, in October 2017, a three-day bench
trial was held. At trial, K.K. testified she and Young began working together more than five
years ago. The two had exchanged their private cellphone numbers so that personal and
job-related text messages could be exchanged. K.K. explained that she and Young had
become friends but, at some point in time, the nature of their relationship changed.
According to K.K., it "got to the point where [Young] wanted more than I did." Young started
sending K.K. "inappropriate" text messages. K.K. did not approach her superiors at work
because she felt she could handle things. However, sometime after May 2016, Young
became more aggressive. On one occasion, Young grabbed K.K.'s buttocks when she
walked by him at work.
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{¶ 4} Regarding counts one and two, K.K. testified that on one evening in the fall of
2016, while in the communications center at work, Young grabbed her and pulled her onto
his lap. According to K.K., she went to pick up papers from a printer and Young "put his right
arm between [her] legs, to where his hand was on the back of [her] butt and his arm was up
between [her] legs." Young pulled her to the chair he was sitting on and then, using his left
hand, grabbed her shoulder to spin her around before pulling her down onto his lap. K.K.
stated that Young's arm between her legs was moving and his forearm rubbed her genitalia
in both a back-and-forth and side-to-side motion. His hand that was over her shoulder was
touching her breast and he was biting at and trying to kiss the back of her neck. Young
asked K.K., "When are you going to let me do this to you outside of work?" K.K. told Young
to "let go" before pushing off of him and going back to her own work station.
{¶ 5} A few weeks later, the incident relating to count three occurred. K.K. testified
she was entering the communications room after going to the restroom when Young, who
was standing near some lockers, grabbed her by her shoulders and upper arms, spun her
around, and pushed her up against the lockers. K.K. testified Young tried to kiss her and
again asked her when she was going to allow him to do these things to her outside of work.
Young used his body weight to keep her against the lockers, and K.K. stated she felt
"trapped," "scared," and "mad."
{¶ 6} K.K. then testified about the incident relating to count four, which occurred while
she was working third shift on November 14, 2016. K.K. testified that as she walked into the
communications center after going to the breakroom, Young grabbed her, causing her head
to hit a metal bookshelf. Young then spun her around, pushed her up against the lockers,
and pinned her there using his body weight and holding onto her arms. Young told K.K., "I
know you like to be manhandled," and he again asked her when she was going to let him do
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this to her outside of work. K.K. testified she was "really scared" during this event, as she
"didn't know if it was ever going to stop or how bad it might get."
{¶ 7} K.K. explained that no one else was present when the incidents described
above occurred and she did not immediately report Young's conduct. Eventually, K.K. told
her superior about the incidents and she provided him with a written statement on November
22, 2016.
{¶ 8} K.K. also gave a statement to two city of Hamilton police detectives on
November 22, 2016. On cross-examination, K.K. acknowledged that during her interview
Detective Jon Richardson and Detective Mark Nichols asked her whether Young had ever
touched her genitalia or breasts, and she responded "no." However, K.K. explained that she
believed the detectives' question was asked to find out if there were other incidents in
addition to those she had already disclosed to the officers. K.K. further acknowledged that
she told the detectives that Young "never touched [her] inappropriately sexually." She also
admitted that notes describing the offenses to the university's "OEEL" office did not indicate
Young touched her breasts or that when Young's forearm was between her legs, he was
moving it to rub against her genitalia. Finally, on cross-examination, K.K. acknowledged that
on October 29, 2016, she went to a college hockey game and stood next to Young for the
duration of the game. Young had purchased a hockey shirt for her to wear but she denied
wearing it to the game.
{¶ 9} K.K. also testified about the text messages she received from Young. Although
Young had sent her a number of text messages on her personal cell phone, K.K. had not
saved the messages. Rather, she had deleted the messages from Young. However, she
provided her cell phone to law enforcement and they were able to recover some of the text
messages she and Young had exchanged from April 2016 through November 2016. In the
texts sent by Young, he frequently called K.K. "baby" and asked how her day was going. On
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October 24, 2016, Young sent K.K. a message stating "Your ass is amazing. I want to feel it
again very soon." Then, on November 5, 2016, the following text messages were
exchanged:1
YOUNG (3:54:13 AM): I know baby. It's no big deal but I'm
going to steal a big hug and a few of your sexy or two for it.
Hehe
K.K. (3:54:58 AM): Your going to take my sexiness!
YOUNG (3:56:02 AM): Lol feel of your sexy ass!! It's hard…. to
text and drive.
K.K. (3:57:10 AM): I know
Young (4:00:59 AM): Are you alright with that?
K.K. (4:01:30 AM): Depends on what that means
YOUNG (4:02:44 AM): I thought about pushing you over my
desk and getting a really good feel
K.K. (4:03:25 AM): Now that's a bit much
YOUNG (4:04:07 AM): That's just a little bit much?
YOUNG (4:06:35 AM): I will try not to cross the line to much.
K.K. (4:07:48 AM): Again, uh huh
{¶ 10} Detective Richardson testified about his investigation of K.K.'s claims.
Richardson noted that Young was much larger in stature than K.K. He approximated that
Young was 6' 2'' tall and weighed around 250 pounds while K.K. was only "5-ish" feet tall and
weighed between 120 and 130 pounds.
{¶ 11} Richardson explained that Young was interviewed on November 28, 2016. The
1. Testimony from trial demonstrated that the time stamps on the text messages recovered from K.K.'s phone
were for "Greenwich Mean Time or GMT or UTC minus zero." To convert the time to eastern standard time,
accounting for daylight savings time, four hours had to be subtracted. This meant that the texts set forth in the
body of the opinion were sent and received between 11:54 p.m. on November 4, 2015 and 12:07 a.m. on
November 5, 2016.
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interview was recorded, and the recording was played at trial. During the interview, Young
admitted he had a "friendship" with K.K. but denied that any sexual contact between the two
of them had occurred. Young acknowledged that both he and K.K. sent inappropriate and
flirtatious texts, including K.K. sending him photographs of herself in her underwear and bra,
but he was unable to produce the text messages or photographs as he had deleted them and
had recently gotten a new phone.
{¶ 12} Richardson was cross-examined about his November 22, 2016 interview of K.K.
Richardson testified that K.K. was specifically asked whether Young had ever touched her
breasts or vagina, and K.K. stated that Young never did anything physically inappropriate
with her.
{¶ 13} Detective Walter Schneider, a digital forensic examiner, testified that he
specializes in the recovery of data and extraction of evidence from computer and cellphone
devices. On December 23, 2016, using a "Cellebrite" program, Schneider was able to
conduct an advanced logical extraction of deleted data from K.K.'s cellphone. Schneider
recovered some deleted text messages sent between Young and K.K. However, as
Schneider explained, not all deleted material on K.K.'s phone could be recovered as "[s]ome
things [were] overwritten" by new data after being deleted. Schneider stated he was not able
to recover any data from Snapchat.
{¶ 14} Following Schneider's testimony, Young moved for acquittal pursuant to Crim.R.
29. His motion was denied. Thereafter, he presented testimony from officers he worked with
in the university's police department. Sergeant Andrew Rosenberger testified that he was
aware that Young purchased a hockey shirt for K.K. and that she had worn it to a game held
on October 29, 2016. After the game, K.K., Young, and Rosenburg had returned to the
university's police station. There, K.K. told Rosenberger that the shirt she had on was bought
by Young. Further, that evening, K.K. came into his office and closed the door. K.K. told
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Rosenberger that she was "just trying to make him jealous" and pointed to an area where
Young had been standing.
{¶ 15} Young also presented testimony from Detective Nichols, who stated that when
K.K. was interviewed on November 22, 2016, she did not provide specific details about her
vagina or breasts being touched when she described the incident where Young pulled her
onto his lap. K.K. did mention that Young reached between her legs and hooked her, which
Nichols "took * * * as a possibility" that he rubbed her vagina, but K.K. herself did not state
that Young rubbed her vagina by moving his arm up and down or back and forth.
{¶ 16} On October 13, 2017, after hearing the foregoing testimony, the trial court
found Young guilty of gross sexual imposition and abduction, as set forth in counts one and
four, and not guilty of kidnapping and abduction, as set forth in counts two and three. The
trial court journalized its verdict on October 18, 2017. The trial court then set the matter for
sentencing.
{¶ 17} On December 13, 2017, prior to Young's sentencing but nearly two months
after the court rendered its verdict, Young filed a motion for leave to file for a new trial based
on an irregularity in the proceedings. Young, now represented by new counsel, indicated that
after trial, on or about December 7 or 8, 2017, his original trial counsel was alerted to the
existence of "new" photographic evidence consisting of a Snapchat photograph of K.K.2 The
photograph contains a banner across it that reads "More room to bend me over here" and
shows K.K. with her top lifted and her bare breasts exposed. Although this photograph is
referred to as "new photographic evidence," Young's original trial counsel acknowledged that
the photograph had been provided to the defense during discovery. However, Young's
2. Young was represented by three attorneys at trial. Following the court's guilty verdict, but before sentencing,
Young retained new counsel to handle his motion for leave to file for a new trial. Young's "new counsel" also
represents him on appeal.
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original trial counsel claimed they were "unaware of it until after judgment" and that Young
had not been informed of the photograph's existence until December 7, 2017.
{¶ 18} In support of his motion for leave to file a motion for new trial, Young submitted
four affidavits, of which three were from his original trial attorneys and one was from his wife.3
In the affidavits from his trial attorneys, Young's attorneys state that the "new photograph had
a date stamp of 7 November 16," that the "new photograph was close in time with a text
message the court relied upon in convicting [Young] for his charged offenses" and the
photograph was "not considered while consulting with [Young] regarding defense theories or
for impeachment purposes." Young's lead trial attorney's affidavit states that upon receiving
the "new photograph," he reached out to the prosecutor, who "indicated the picture was not
new and had been provided in discovery in the phone data dump. * * * Over the weekend, I
reviewed the discovery and found the photograph – which I had not seen before."
{¶ 19} Young's wife's affidavit states that in December 2017, she accessed Young's
Snapchat account and discovered that Young and K.K. were friends on Snapchat. She
further stated that on October 31, 2016 and November 19, 2016, K.K. and Young exchanged
private Snapchat messages with one another. According to Young's wife, based on her
experience with Snapchat, she knew that "Snapchat images disappear after a certain time,
that the time the image will remain visible is represented by a number found at the top of the
image, that a sent image can be saved to the recipient's Snapchat program or screenshotted
by the recipient, and that the sender can include a message with the sent image that is
depicted over the top of the sent image." Attached to Young's wife's affidavit were images of
3. We note that on February 2, 2018, the trial court sealed the copies of the affidavits filed in support of Young's
motion for leave to file a motion for new trial. The sealed affidavits were later referenced by the court at Young's
sentencing hearing, held February 28, 2018. On February 27, 2019, pursuant to App.R. 9(E), the record on
appeal was supplemented to include the affidavits filed under seal. See State v. Young, 12th Dist. Butler No.
CA2018-03-047 (Feb. 27, 2019) (Entry Supplementing Record on Appeal).
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Young's phone that showed K.K. and Young were friends on Snapchat.
{¶ 20} The state filed a memorandum in opposition to Young's motion for leave to file
for a new trial, arguing that the photograph of K.K. was not "newly discovered" evidence as it
was provided to defense counsel during discovery on May 12, 2017. Furthermore, the state
argued that if the photograph had, in fact, been sent by K.K. to Young, then Young should
have known about the photo before trial and instructed defense counsel to look for it. As the
state argued, "despite [Young] being repeatedly asked to describe flirtatious texts during his
interview with Hamilton Police, * * * he never once indicated that he had seen or been sent
topless pictures by the victim – he stated that the victim would only ever show pictures of
herself in underwear and bra." The state contended that Young's argument that his trial
strategy would have been different as a result of this one photograph was "disingenuous."
{¶ 21} On February 27, 2018, the trial court issued a decision denying Young's motion
for leave to file a motion for new trial. The court found that Young failed to demonstrate by
clear and convincing evidence that he was unavoidably prevented from filing his motion for
new trial as his attorneys were given the photograph prior to trial and he failed to establish
that he received ineffective representation by his trial attorneys.
{¶ 22} After denying Young's motion for leave to file for a new trial, the trial court
sentenced Young to five years of community control. The court also classified Young as a
Tier I sex offender.
{¶ 23} Young timely appealed his conviction and the denial of his motion for leave to
file for a new trial, raising five assignments of error. For ease of discussion, we will address
Young's assignments of error out of order.
{¶ 24} Assignment of Error No. 4:
{¶ 25} THE TRIAL COURT ERRED BY OVERRULING THE MOTION FOR LEAVE TO
FILE FOR A NEW TRIAL.
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{¶ 26} In his fourth assignment of error, Young argues the trial court erred when it
denied his motion for leave to file for a new trial. Young contends he was unavoidably
prevented from presenting K.K.'s topless snapchat photograph at trial because Young's trial
counsel did not know about the photograph until after trial and the photograph was labeled
"counsel only," thereby preventing Young from having access to it when it was exchanged
during discovery in May 2017.
{¶ 27} Crim.R. 33 provides that a new trial may be granted on a defendant's motion for
any of six causes materially affecting the defendant's substantial rights, including an
"[i]rregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion
by the court, because of which the defendant was prevented from having a fair trial." Crim.R.
33(A)(1). Crim.R. 33(B) sets forth the timing requirements for motions for a new trial and
provides as follows:
Application for a new trial shall be made by motion which, except
for the cause of newly discovered evidence, shall be filed within
fourteen days after the verdict was rendered, or the decision of
the court where a trial by the jury has been waived, unless it is
made to appear by clear and convincing evidence proof that the
defendant was unavoidably prevented from filing his motion for a
new trial, in which case the motion shall be filed within seven
days from the order of the court finding that the defendant was
unavoidably prevented from filing such motion within the time
provided therein.
Motions for new trial on account of newly discovered evidence
shall be filed within one hundred twenty days after the day upon
which the verdict was rendered, or the decision of the court
where trial by jury has been waived. If it is made to appear by
clear and convincing proof that the defendant was unavoidably
prevented from the discovery of the evidence upon which he
must rely, such motion shall be filed within seven days from an
order of the court finding that he was unavoidably prevented from
discovering the evidence within the one hundred twenty day
period.
(Emphasis added.) Crim.R. 33(B).
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{¶ 28} Crim.R. 33(B), therefore, contemplates a two-step procedure. First, a
defendant files "a motion for leave to file a delayed motion for new trial supported by
evidence demonstrating that the [defendant] was unavoidably prevented from ascertaining
the ground sought to be asserted by way of motion for new trial within the fourteen days after
the rendering of the verdict." State v. Walden, 19 Ohio App. 3d 141, 146 (10th Dist.1984).
Then, if leave is granted upon a finding by the trial court that the defendant was unavoidably
prevented from filing the motion within the 14-day time period, Crim.R. 33(B) provides that
the defendant shall be given seven days to file his motion for new trial. Id.
{¶ 29} In the present case, Young filed his motion for leave to file a motion for new trial
on December 13, 2017, 56 days after the trial court journalized its verdict. As Young's
motion sets forth a claim of irregularity in the proceedings and was filed outside the 14-day
period prescribed by Crim.R. 33(B), he was required to obtain leave of court to file his motion
for new trial. See State v. Farley, 10th Dist. Franklin No. 03AP-555, 2004-Ohio-1781, ¶ 11.
{¶ 30} When seeking leave to file a motion for new trial, the moving party must
establish by "clear and convincing proof that the defendant was unavoidably prevented from
filing his motion for a new trial." See State v. Thornton, 12th Dist. Clermont No. CA2012-09-
063, 2013-Ohio-2394, ¶ 18, citing Crim.R. 33(B). A party is unavoidably prevented from filing
a motion for new trial if "'the party had no knowledge of the existence of the ground
supporting the motion for a new trial and could not have learned of the existence of that
ground within the required time in the exercise of reasonable diligence.'" Id., quoting State v.
Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44, 2012-Ohio-5360, ¶ 11. See also State
v. DeVaughns, 2d Dist. Montgomery No. 27727, 2018-Ohio-1421, ¶ 19.
{¶ 31} "Clear and convincing proof 'requires more than a mere allegation that a
defendant has been unavoidably prevented from discovering the evidence he seeks to
introduce as support for a new trial.'" State v. Williams, 12th Dist. Butler No. CA2003-01-001,
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2003-Ohio-5873, ¶ 17, quoting State v. Mathis, 134 Ohio App. 3d 77, 79 (1st Dist.1999). "To
meet this burden, the measure or degree of proof [a defendant] must demonstrate is that
'which will produce in the mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established.'" State v. Watson, 12th Dist. Butler No. CA2016-08-
159, 2017-Ohio-1403, ¶ 15, quoting Cross v. Ledford, 161 Ohio St. 469, 477 (1954).
{¶ 32} An appellate court reviews a trial court's denial of leave to file a delayed motion
for new trial under an abuse of discretion standard. State v. Barnes, 12th Dist. Clermont No.
CA99-06-057, 1999 Ohio App. LEXIS 6421, *3-4 (Dec. 30, 1999); State v. Clyde, 6th Dist.
Erie No. E-18-016, 2019-Ohio-302, ¶ 14. An abuse of discretion connotes more than an
error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Thornton at ¶ 21, citing State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-
966, ¶ 34. "A decision is unreasonable when it is 'unsupported by a sound reasoning
process.'" State v. Gearhart, 12th Dist. Warren No. CA2017-12-168, 2018-Ohio-4180, ¶ 13,
quoting State v. Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010, ¶ 16.
{¶ 33} In the present case, Young argued an irregularity in the proceeding, specifically
his trial attorneys' ineffective representation in failing to discover and discuss with him the
topless photo of K.K. that was provided by the state during discovery, denied him of a fair
trial. "Ineffective assistance of trial counsel may be raised as a ground for a new trial under
Crim.R. 33(A)(1) 'irregularity in the proceedings.'" Farley, 2004-Ohio-1781 at ¶ 11. See also
State v. Williams, 11th Dist. Trumbull No. 2013-T-0096, 2014-Ohio-4883, ¶ 24. Young
claimed he was unavoidably prevented from learning of his attorneys' ineffective
representation within the 14-day timeframe set forth in Crim.R. 33(B) as his counsel did not
learn of the existence of the Snapchat photograph until more than 14 days after trial. Young
further contends that he could not have discovered the photograph himself, as the
photograph was marked "counsel only" when it was turned over during discovery.
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{¶ 34} In denying Young's motion for leave to file for a new trial, the trial court
concluded Young failed to demonstrate he was unavoidably prevented from filing his motion
for new trial within the time allotted by Crim.R. 33(B). The court stated, in relevant part, that
as counsel for Defendant * * * admits that [they] already had this
image prior to trial, but failed to use it, Defendant cannot be
found to have been unavoidably prevented from filing his motion
for a new trial. Nowhere within Defendant's Motion does he
explain how he could have been unavoidably delayed from
presenting evidence at trial which he already possessed.
The court then went a step further in its analysis and discussed the merits of Young's
ineffective assistance of counsel claim. The court concluded that Young's trial attorneys did
not provide deficient representation and, even if they had, Young could not demonstrate
prejudice. The court stated that if Young had, in fact, been the recipient of K.K.'s topless
Snapchat photograph, he "would have been aware of its existence, been able to discuss this
with counsel, and would have alerted counsel to look for, or ask about, such a picture."
Furthermore, the trial court found that there was not "any relation between the words on the
[banner of the] photograph and the days earlier text exchange." In the court's opinion,
the language of the victim in the text exchange indicated that she
did not want to be pushed over and/or have her "butt grabbed."
As such, for the Defense to point to a single topless Snapchat
photograph, two days later, and with different language across it,
and no proof that it was ever sent to anyone, much less the
Defendant, as a continuation of that November 5th text
conversation, defies reason and logic.
{¶ 35} Having thoroughly reviewed the record, we find that the trial court committed
reversible error in denying Young's motion for leave to file a motion for new trial as the court's
finding that Young "already possessed" the photograph prior to trial is unsupported by a
sound reasoning process. Through his trial attorneys' affidavits, Young provided clear and
convincing proof that he was unavoidably prevented from filing his motion for new trial within
the 14-day time period prescribed by Crim.R. 33(B). Young's trial attorneys admitted they
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had not discovered the Snapchat photograph when it was disclosed during discovery and,
therefore, had not discussed the photograph with Young prior to trial. As the photograph was
turned over as "counsel only" material, Young was prevented from viewing the photograph as
part of discovery. Crim.R.16(C) specifically prohibits "counsel only" material from being
shown to a defendant. Defense counsel is limited to "orally communicat[ing]" counsel only
material to the defendant. Crim.R. 16(C). Here, Young's three trial attorneys all attested that
because they had not discovered the photograph prior to trial, the photograph was not
communicated or discussed when consulting with Young about defense theories or ways to
impeach K.K.'s testimony.
{¶ 36} Young's attorneys learned of the photograph on December 7 or 8, 2017, which
was more than 50 days after Young's guilty verdict was rendered. Young, therefore, could
not have learned of his trial attorneys' ineffective representation – the alleged irregularity in
proceedings – within the 14-day time period set forth in Crim.R. 33(B). As such, Young's
motion for leave to file for a new trial should have been granted and Young provided with
seven days to file his motion for a new trial.
{¶ 37} We further find that the trial court erred in the present case when it denied
Young's motion for leave to file for a new trial as the court conflated two distinct issues.
Rather than limiting its analysis to the issue of whether Young was unavoidably prevented
from discovering his claim of irregularity in the proceedings due to counsels' alleged
ineffective assistance, the trial court improperly analyzed the merits of Young's right to a new
trial. See, e.g., State v. McConnell, 170 Ohio App. 3d 800, 2007-Ohio-1181, ¶ 20 (2d Dist.)
(finding that the "trial court conflate[d] two distinct issues" as the "court's finding goes to the
merits of [defendant's] right to a new trial rather than the threshold issue of whether he was
unavoidably prevented from discovering the evidence on which he relies"); State v. Gaven,
10th Dist. Franklin No. 16AP-645, 2017-Ohio-5524, ¶ 20 (reversing the denial of a motion for
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leave to file for a new trial where the "trial court's analysis improperly 'conflate[d] two distinct
issues' by resolving the motion for leave based on the merits of whether appellant is entitled
to a new trial rather than addressing the threshold issue of whether appellant was
unavoidably prevented from discovering the new evidence").
{¶ 38} The court rejected Young's claim of an irregularity in the proceedings based on
ineffective assistance of counsel without providing Young the opportunity to set forth any
arguments and evidence demonstrating how his trial attorneys' alleged deficient performance
in failing to recognize and use the Snapchat photograph prejudiced his right to a fair trial.
Young's motion for leave is a brief, one-page motion asking for permission to file a motion for
new trial. Because he was seeking leave to file his motion for new trial, Young's motion does
not set forth his ineffective assistance of counsel arguments in any detail. For the trial court
to deny the merits of Young's claim at this stage in the proceedings constitutes reversible
error. See Gaven at ¶ 20. Young should be provided with the opportunity to demonstrate
how knowledge of the photograph's existence and how use of the photograph at trial would
have resulted in a different outcome.4
{¶ 39} Accordingly, we sustain Young's fourth assignment of error, reverse the trial
court's decision denying Young's motion for leave to file a motion for new trial, remand the
matter, and direct the trial court to issue an entry granting Young leave to file his motion for
new trial. In accordance with Crim.R. 33(B), Young's motion for new trial shall be filed within
seven days of the trial court's entry granting leave for the motion. Thereafter, the trial court
4. The state argues that if the Snapchat photograph had been sent by K.K. to Young, then Young would have
known about the picture before trial and been able to instruct defense counsel to look for it or question K.K.
about it at trial. The state contends Young cannot establish that his counsel was deficient where Young did not
inform counsel of the photograph. This argument by the state goes to the merits of Young's motion for new trial;
it is not relevant to a determination of whether leave should be granted to file the motion for new trial.
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shall determine the merits of Young's motion for new trial and may, if it determines it is
necessary, hold a hearing on the motion.
{¶ 40} Assignment of Error No. 5:
{¶ 41} THE TRIAL COURT ERRED BY CONVICTING YOUNG OF GSI.
{¶ 42} In his fifth assignment of error, Young argues that his conviction for gross
sexual imposition is based on insufficient evidence. While our resolution of Young's fourth
assignment of error mandates reversal, we are compelled to address his sufficiency
challenge due to his constitutional protection against double jeopardy. See State v. Lovejoy,
79 Ohio St. 3d 440, 449-450 (1997); State v. Tillman, 12th Dist. Butler No. CA2003-09-243,
2004-Ohio-6240, ¶ 36.
{¶ 43} The Fifth Amendment to the United States Constitution provides that no person
shall "be subject for the same offence to be twice put in jeopardy of life or limb." Similarly,
Article I, Section 10 of the Ohio Constitution provides that "[n]o person shall be twice put in
jeopardy for the same offense." Therefore, the double-jeopardy clauses protect against a
"second prosecution for the same offense after acquittal." Girard v. Giordano, Slip Opinion
No. 2018-Ohio-5024, ¶ 8. This protection applies to "prevent retrial after an appellate court
determines that the evidence presented at trial was insufficient to convict." Id. at ¶ 10. The
double jeopardy clause prevents the state from having a "'second bite at the apple' and a
chance to present evidence it failed to offer at the first trial." Lovejoy at 450.5 As the
possibility exists that a new trial may be granted upon our remand of appellant's fourth
assignment of error, we find we must review the evidence offered at Young's trial to
5. In contrast to a reversal based on insufficient evidence, "when an appellate court's reversal is based on 'trial
error' – for example, an erroneous admission of evidence – the Double Jeopardy Clause does not bar retrial."
Girard v. Giordano, Slip Opinion No. 2018-Ohio-5024, ¶ 11, citing Lockhart v. Nelson, 488 U.S. 33, 40, 109 S. Ct.
285 (1988) and State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, ¶ 18.
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determine whether sufficient evidence was presented to support his conviction for gross
sexual imposition. In doing so, we note that we consider "all the evidence admitted at trial,
whether improperly admitted or not." State v. B.C.M., 12th Dist. Warren Nos. CA2016-07-059
and CA2016-07-062, 2017-Ohio-1497, ¶ 33, citing State v. Brewer, 121 Ohio St. 3d 202,
2009-Ohio-593, ¶ 25-26. See also State v. Martucci, 9th Dist. Summit No. 28888, 2018-Ohio-
3471, ¶ 13.
{¶ 44} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. Grinstead,
194 Ohio App. 3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of
the evidence underlying a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.
CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he 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 (1991), paragraph two of the syllabus.
{¶ 45} Young was convicted of gross sexual imposition in violation of R.C.
2907.05(A)(1), which provides that "[n]o person shall have sexual contact with another, not
the spouse of the offender * * * when * * * [t]he offender purposely compels the other person,
or one of the other persons, to submit by force or threat of force." Sexual contact "means
any touching of an erogenous zone of another, including without limitation the thigh, genitals,
buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually
arousing or gratifying either person." R.C. 2907.01(B).
{¶ 46} Young argues the state failed to prove the sexual arousal or gratification
element of gross sexual imposition. Young claims that the evidence presented by the state
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demonstrates that any contact he may have made with K.K.'s vagina or breast was
"incidental to [his] purpose of forcing her onto his lap for a few seconds." Further, Young
contends the state improperly relied on "salacious texts" sent between Young and K.K. from
November 4, 2016, which was weeks after the lap-pulling incident occurred, to establish the
sexual arousal or gratification element. Young argues that use of these text messages
constituted impermissible "inference stacking" as the trial court "assumed the texts were
accurate to convey a sexual meaning – and inferred again that Young's sexual mindset was
likewise present at the much earlier GSI event."
{¶ 47} "While an essential element of the offense of gross sexual imposition is that the
act is for the 'purpose of sexual arousal or gratification,' there is no requirement that there be
direct testimony regarding sexual arousal or gratification." State v. English, 12th Dist. Butler
No. CA2013-03-048, 2014-Ohio-441, ¶ 69. "Whether the touching was performed for the
purpose of sexual arousal or gratification is a question of fact to be inferred from the type,
nature, and circumstances of the contact." State v. Gesell, 12th Dist. Butler No. CA2005-08-
367, 2006-Ohio-3621, ¶ 25. In making this determination, the trier of fact is "permitted to
infer what the defendant's motivation was in making the physical contact with the victim."
State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 43. "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. Pence, 12th Dist. Warren No. CA2012-
05-045, 2013-Ohio-1388, ¶ 78.
{¶ 48} Contrary to Young's arguments, we find that his conviction for gross sexual
imposition was supported by sufficient evidence as any rational trier of fact could have found
the essential elements of gross sexual imposition proven beyond a reasonable doubt. The
state presented testimony from K.K. that Young, when pulling K.K. into his lap, had his right
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arm between her legs and he was moving his forearm to rub against her genitalia in both a
back-and-forth and side-to-side motion. K.K. further testified that Young's hand was over her
shoulder touching her breast and Young was biting at and trying to kiss the back of her neck.
While doing these things, Young asked K.K., "When are you going to let me do this to you
outside of work?" Given Young's placement of his arm and hand on K.K.'s erogenous zones
and Young's statement at the time of the contact, a rational trier of fact could infer that the
purpose of Young's sexual contact with the victim was for sexual arousal or gratification.
{¶ 49} Furthermore, with respect to the text messages Young exchanged with K.K., we
find that consideration of the text messages did not result in impermissible inference
stacking. Impermissible inferencing stacking occurs when a trier of fact "draw[s] an inference
based entirely upon another inference, unsupported by any additional fact or another
inference from other facts." State v. Braden, 12th Dist. Preble No. CA2013-12-012, 2014-
Ohio-3385, ¶ 12. Here, the trier of fact could look at the text messages presented by the
state to determine the nature of Young's and K.K.'s relationship and to infer Young's touching
was for purposes of sexual arousal or gratification without stacking inferences on top of each
other. In the text messages, Young called K.K. "baby," commented on her sexiness and
physical attributes, and indicated his desire to push her over his desk and "[get] a really good
feel." Using these messages, the trier of fact could infer that at the time Young rubbed K.K.'s
vagina with his forearm and touched her breast with his hand, he was motivated by desires of
sexual arousal or gratification.
{¶ 50} Accordingly, for the reasons stated above, we find that sufficient evidence was
presented to support Young's conviction for gross sexual imposition. Young's fifth
assignment of error is, therefore, overruled.
{¶ 51} Assignment of Error No. 1:
{¶ 52} THE TRIAL COURT ERRED BY EXCLUDING ADMISSIBLE EVIDENCE.
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{¶ 53} Assignment of Error No. 2:
{¶ 54} THE TRIAL COURT ERRED BY ADMITTING INADMISSIBLE EVIDENCE.
{¶ 55} Assignment of Error No. 3:
{¶ 56} THE TRIAL COURT'S CUMULATIVE ERRORS DENIED YOUNG DUE
PROCESS AND A FAIR TRIAL.
{¶ 57} Based on our resolution of Young's fourth assignment of error, we find his first,
second, and third assignments of error are not yet ripe for review and we decline to address
them. See State v. Purk, 9th Dist. Summit No. 28059, 2017-Ohio-7381, ¶ 16-17; State v.
Chaffin, 2d Dist. Montgomery No. 24241, 2012-Ohio-634, ¶ 32.
{¶ 58} Judgment affirmed in part, reversed in part, and the matter remanded for further
proceedings consistent with this opinion.
RINGLAND and M. POWELL, JJ., concur.
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