State v. White , 2017 Ohio 1488 ( 2017 )

[Cite as State v. White, 2017-Ohio-1488.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-16-21
v.
JAMES E. WHITE, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 16-CR-0082
Judgment Affirmed
Date of Decision: April 24, 2017
APPEARANCES:
Jennifer L. Kahler for Appellant
Derek W. DeVine and Rebeka Beresh for Appellee
Case No. 13-16-21
PRESTON, P.J.
{¶1} Defendant-appellant, James E. White (“White”), appeals the August 23,
2016 judgment entry of sentence of the Seneca County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from allegations that White sexually abused (1) his
granddaughter, K.W., in 2007 and 2008, when K.W. was less than 10 years of age,
(2) his daughter, C.C., between 1995 and 1996, when C.C. was 12 or 13 years old,
and (3) two girls that White and his wife, Linda White (“Linda”), babysat, A.M. and
K.M. (See Doc. No. 1); (Aug. 9, 2016 Tr., Vol. I, at 150). It was alleged that White
sexually abused A.M. between 2001 and 2005, while A.M. was less than 10 years
of age, and that White sexually abused K.M. between 2000 and 2002, while K.M.
was less than 13 years of age. (See Doc. Nos. 1, 24, 25).
{¶3} On April 27, 2016, the Seneca County Grand Jury indicted White on:
Counts One, Two, and Three of rape in violation of R.C. 2907.02(A)(1)(b), (B),
first-degree felonies; Counts Four and Five of gross sexual imposition in violation
of R.C. 2907.05(A)(4), (C)(2), third-degree felonies; and Count Six of gross sexual
imposition in violation of R.C. 2907.05(A)(1), (C)(1), a fourth-degree felony. (Doc.
No. 1). Counts One, Two, and Three included the specification that the victim was
“less than ten years of age at the time of the offense.” (Id.). White pled not guilty
to the counts and specifications of the indictment on May 3, 2016. (Doc. No. 7).
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{¶4} On July 27, 2016, the State filed a motion to amend Count Three of the
indictment to reflect that White’s conduct allegedly occurred between 2001 and
2005 instead of between 2001 and 2006, which the trial court granted on July 28,
2016. (Doc. Nos. 24, 25).
{¶5} The case proceeded to a jury trial on August 9 and 10, 2016. (Aug. 9,
2016 Tr., Vol. I, at 1); (Aug. 10, 2016, Vol. II, at 192). On August 10, 2016, the
jury found White guilty of all of the counts and specifications of the amended
indictment. (Aug. 10, 2016 Tr., Vol. II, at 309-311); (Doc. No. 33). The trial court
filed its judgment entry of conviction on August 11, 2016. (Doc. No. 34).
{¶6} The trial court held a sentencing and a sex-offender registration hearing
on August 19, 2016. (Aug. 19, 2016 Tr. at 2, 17, 20). The trial court sentenced
White to: life in prison without the possibility of parole as to Counts One and Two,
respectively; 25 years in prison as to Count Three; 54 months in prison as to Counts
Four and Five, respectively; and 17 months in prison as to Count Six. (Id. at 16-
18); (Doc. No. 36). The trial court ordered:
Counts One and Two are ordered to be served concurrently one with
the other but consecutively to each count. Counts Three and Four are
ordered to be served concurrently one with the other but consecutively
to each count. Count Five is ordered to be served consecutively to
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each count, and Count Six is ordered to be served consecutively to
each count in this case.
(Id. at 17-18); (Id.). The trial court also classified White as a Tier III sex offender.
(Aug. 19, 2016 Tr. at 17, 20). The trial court filed its judgment entries of sentence
and sex-offender classification on August 23, 2016. (Doc. Nos. 36, 39).1
{¶7} White filed a notice of appeal on August 29, 2016. (Doc. No. 41). He
raises 12 assignments of error for our review, which we discuss together.
Assignment of Error No. I
The Trial Court Erred in Finding Appellant Guilty of Rape of
KW Where the State Failed to Introduce Sufficient Evidence to
Support the Conviction.
Assignment of Error No. II
The Trial Court Erred in Finding Appellant Guilty of Rape of
KW Where the State Failed to Introduce Sufficient Evidence to
Support the Conviction.
Assignment of Error No. III
The Trial Court Erred in Finding Appellant Guilty of Rape of AM
Where the State Failed to Introduce Sufficient Evidence to
Support the Conviction.
Assignment of Error No. IV
The Trial Court Erred in Finding Appellant Guilty of Gross
Sexual Imposition of AM Where the State Failed to Introduce
Sufficient Evidence to Support the Conviction.
1
The trial court filed a nunc pro tunc judgment entry of sentence on September 9, 2016.
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Assignment of Error No. V
The Trial Court Erred in Finding Appellant Guilty of Gross
Sexual Imposition of KM Where the State Failed to Introduce
Sufficient Evidence to Support the Conviction.
Assignment of Error No. VI
The Trial Court Erred in Finding Appellant Guilty of Gross
Sexual Imposition of CC Where the State Failed to Introduce
Sufficient Evidence to Support the Conviction.
Assignment of Error No. VII
The Trial Court Erred in Finding Appellant Guilty of Rape of
KW When the Conviction Was Against the Manifest Weight of
the Evidence.
Assignment of Error No. VIII
The Trial Court Erred in Finding Appellant Guilty of Rape of
KW When the Conviction Was Against the Manifest Weight of
the Evidence.
Assignment of Error No. IX
The Trial Court Erred in Finding Appellant Guilty of Rape of AM
When the Conviction Was Against the Manifest Weight of the
Evidence.
Assignment of Error No. X
The Trial Court Erred in Finding Appellant Guilty of Gross
Sexual Imposition of AM When the Conviction Was Against the
Manifest Weight of the Evidence.
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Assignment of Error No. XI
The Trial Court Erred in Finding Appellant Guilty of Gross
Sexual Imposition of KM When the Conviction Was Against the
Manifest Weight of the Evidence.
Assignment of Error No. XII
The Trial Court Erred in Finding Appellant Guilty of Gross
Sexual Imposition of CC When the Conviction Was Against the
Manifest Weight of the Evidence.
{¶8} In his 12 assignments of error, White argues that his convictions are
based on insufficient evidence and are against the manifest weight of the evidence.2
In particular, he argues in his first, second, and third assignments of error that there
is insufficient evidence that he raped K.W and A.M. He specifically argues under
his fourth, fifth, and sixth assignments of error that there is insufficient evidence to
find him guilty of gross sexual imposition. In his seventh, eighth, and ninth
assignments of error, he argues that rape convictions are against the manifest weight
of the evidence. Finally, in his tenth, eleventh, and twelfth assignments of error, he
argues that his gross-sexual-imposition convictions are against the manifest weight
of the evidence.
{¶9} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St. 3d 380, 389
(1997). As such, we address each legal concept individually.
2
White does not challenge the specifications that the victims were less than ten years of age at the time of
the offenses.
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{¶10} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St. 3d 89 (1997). Accordingly,
“[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.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App. 3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶11} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
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of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St. 2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶ 119.
{¶12} White was convicted of three counts of rape in violation of R.C.
2907.02(A)(1)(b), two counts of gross sexual imposition in violation of R.C.
2907.05(A)(4), and one count of gross sexual imposition in violation of R.C.
2907.05(A)(1). The offense of rape is codified under R.C. 2907.02, which provides,
in pertinent part:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the offender but
is living separate and apart from the offender, when any of the
following applies:
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(b) The other person is less than thirteen years of age, whether or not
the offender knows the age of the other person.
R.C. 2907.02(A)(1)(b). “In order to prove rape under R.C. 2907.02(A)(1)(b), the
State must prove the offender engaged in sexual conduct with a person[, not the
offender’s spouse, and that the conduct was with a person] less than thirteen years
of age, whether or not the offender knew the age of the other person.” (Emphasis
added.) State v. Jones, 2d Dist. Montgomery No. 26289, 2015-Ohio-4116, ¶ 42.
“‘Sexual conduct’ means vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening of
another[.]” R.C. 2907.01(A).
{¶13} R.C. 2907.05 sets forth the offense of gross sexual imposition and
provides, in relevant 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:
(1) The offender purposely compels the other person, or one of the
other persons, to submit by force or threat of force.
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***
(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.
R.C. 2907.05(A)(1), (4). “In order to prove the offense of gross sexual imposition
[under R.C. 2907.05(A)(4)], ‘the State must prove that the defendant had sexual
contact with a person, not the defendant’s spouse, and that the contact was with a
person under the age of thirteen, whether the defendant knew the age of the person
or not.’” Jones at ¶ 43, quoting State v. Israel, 2d Dist. Miami No. 09-CA-47, 2010-
Ohio-5044, ¶ 25. To prove the offense of gross sexual imposition under R.C.
2907.05(A)(1), the State must prove that the defendant had sexual contact with a
person, not the defendant’s spouse, and that the defendant purposely compelled the
victim to submit to the sexual contact by force or threat of force. See State v. Wine,
3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 39-40.
{¶14} “The term ‘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.’” Jones at ¶ 43, quoting R.C. 2907.01(B). “‘“[T]here is
no requirement that there be direct testimony regarding sexual arousal or
gratification.”’” Id., quoting State v. Clark, 2d Dist. Clark No. 2013 CA 52, 2014-
Ohio-855, ¶ 12, quoting State v. Gesell, 12th Dist. Butler No. CA2005-08-367,
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2006-Ohio-3621, ¶ 25. “The trier of fact may infer from the evidence presented at
trial whether the purpose of the touching was for the defendant’s sexual arousal or
gratification.” Id., citing Clark at ¶ 12.
{¶15} At trial, the State offered the testimony of six witnesses. As its first
witness, the State called April Winget (“Winget”) who testified that White is her
father and that, prior to 2008, her family saw White “every day.” (Aug. 9, 2016 Tr.
at 121, 123). According to Winget, in 2008, her daughter, K.W., alleged that White
“exposed his penis to her.” (Id. at 124). However, K.W. did not allege that White
raped her when she shared with her mother that White exposed his penis to her. (Id.
at 124-125). After K.W.’s revelation, Winget’s family did not have contact with
White. (Id. at 125). In January 2016, K.W. revealed to Winget additional
allegations regarding White, which caused Winget to contact “social services.” (Id.
at 125-126).
{¶16} As its second witness, the State offered the testimony of K.W., age 14,
who testified that White is her grandfather. (Id. at 133, 135). She testified that she
was born in January 2002. (Id. at 134). K.W. testified that White and Linda would
babysit her and that sometimes she would spend the night at their home. (Id. at 135-
137). K.W. described a typical night that she spent with her grandparents:
I stayed there, put my bags up, stay in the room, sleep, wake up. I’d
go out in the living room. Grandma would send me in when grandpa
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was ready for me to go in the bedroom * * * sometimes [alone], but
after a little while she would send my sister in.
(Id. at 137). She testified that she would get into bed with White and “[h]e would
put his fingers down in my vagina and touch my vagina and sometimes he’d put his
fingers in my butt.” (Id.). She testified that she was sent to her grandfather’s
bedroom “[e]very time [she] was there in the morning.” (Id.). She recalled that she
began being sent to her grandfather’s bedroom when she was “five, six, seven” and
that it stopped when she was seven. (Id. at 138).
{¶17} She testified that she divulged in 2008 that White exposed his penis to
her. (Id. at 139). However, she did not reveal “that more had happened” until she
was 14 years old because she “felt strongly that [she] needed to tell” her mother at
that time since she “was having bad dreams and [her mother] needed to know
because [she] needed help sleeping. (Id. at 139-140). According to K.W., she did
not reveal what her grandfather had done to her prior to that day because she “was
scared.” (Id. at 140). She did not “mention that more had happened” when she
revealed that White exposed his penis to her,
[b]ecause everybody was freaking out and I’m just, like, oh, I don’t
want to freak out anybody else, and I was scared and I was young and
everything was all confusing, and I didn’t want to say anything
because I was scared I could get yelled at.
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(Id. at 143). According to K.W., she disclosed that White exposed his penis to her
because she “accidentally walked in on [her] dad one time in the bathroom and [her]
mom and dad had given [her] a very serious talk that it was bad for a girl to see a
man’s penis, and when he showed it to me that’s how I knew that this was wrong.”
(Id.). She testified that she does not know A.M. or K.M. (Id. at 140).
{¶18} On re-cross examination, K.W. testified that her grandmother sent her
into White’s bedroom to wake him up. (Id. at 144).
{¶19} C.C., age 33, testified as the State’s third witness. (Id. at 144). She
testified that she was born in June 1983. (Id. at 147). C.C. testified that White is
her biological father and that Winget is her sister. (Id. at 146, 153). She testified
that she has a relationship with Winget and K.W., but testified that she does not
know A.M. or K.M. (Id. at 154-555).
C.C. testified that, when she was 12 or 13 years old, White had his
thumb under [her] shirt and just started rubbing [her] skin, and then
he just gradually started making his way up [her] shirt as he’s rubbing
with his thumb. And then he ended up taking his thumb and rubbing
it across [her] left nipple * * * and then started working his way down
into [her] pants. And when he got his -- the tip of his fingers under
[her] underwear line, [she] told him [she] wanted to go to bed.
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(Id. at 150). According to C.C., she had no other incidents with White, she reported
the incident to her best friend, and, approximately a year later, she told her mother.
(Id. at 150, 153).
{¶20} On cross-examination, she testified that she spoke with law
enforcement after she spoke with Winget. (Id. at 159). On re-direct examination,
C.C. testified that Winget did not tell her what to say to law enforcement. (Id. at
160).
{¶21} Next, K.M., age 26, testified on behalf of the State. (Id. at 161). K.M.
was born in January 1990. (Id. at 163). She testified that White and Linda were her
babysitters when she was “seven, eight all the way up to * * * 11, 12.” (Id. at 163-
164). She testified that the Whites stopped babysitting her and A.M. when K.M.
was 13 or 14 years old. (Id. at 171). K.M. testified that she knows Winget and
K.W. (Id.). She further testified that she has not seen Winget or K.W. since the
Whites stopped babysitting her. (Id.).
{¶22} According to K.M., during one of the times that White and Linda were
babysitting her when she was nine or ten, White’s “hands was [sic] down [her] shirt
grabbing [her] left breast.” (Id. at 166). She recalled specific details regarding the
incident, including that: (1) it occurred at 7:00 or 8:00 p.m.; (2) she had been outside
playing and came inside to take a shower; (3) White was brushing her hair after her
shower while she was watching television; (4) White grabbed her left breast during
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a commercial for the television program she was watching; and (5) she was wearing
a nightgown. (Id. at 166-169).
{¶23} Next, Detective Shawn Vallery (“Detective Vallery”) of the Tiffin
Police Department testified that he was contacted by Seneca County Children’s
Services in February 2016 to investigate K.W.’s sexual-abuse allegation against
White. (Id. at 176-177, 180). Detective Vallery interviewed Winget and K.W.
regarding K.W.’s allegations, and Winget “mentioned an episode between James
White and her sister [C.C.].” (Id. at 181-185). Later Winget told Detective Vallery
about “some concerns of two females that James and Linda White baby-sat.” (Aug.
10, 2016 Tr., Vol. II, at 196). Detective Vallery also interviewed C.C., A.M., and
K.M. as part of his investigation. (Aug. 9, 2016 Tr., Vol. I, at 184); (Aug. 10, 2016
Tr., Vol. II, at 198-199, 203).
{¶24} Detective Vallery testified that he has training and experience
investigating sexual-abuse cases—namely, he testified that he has training and
experience interviewing teenage girls regarding sexual abuse. (Aug. 9, 2016 Tr.,
Vol. I, at 178, 183). He relayed that K.W. appeared “uncomfortable” explaining
what occurred with White. (Id. at 183-184). Detective Vallery did not “consider
having [K.W.] examined medically for the collection of evidence” because “[i]t had
been over eight years since the incident happened. There would have been no
evidence to collect at that time.” (Id. at 185).
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{¶25} Detective Vallery identified State’s Exhibit 1 as a redacted recording
of his interview of White, which was subsequently played for the jury. (Aug. 9,
2016 Tr., Vol. I, at 186-189). He identified State’s Exhibit 2 as a recording of his
phone interview of White, which was subsequently played for the jury. (Aug. 10,
2016 Tr., Vol. II, at 204, 207).
{¶26} On cross-examination, Detective Vallery testified that White
maintained his innocence throughout his investigation. (Id. at 211). Detective
Vallery testified that he interviewed A.M. a second time but that A.M.
didn’t change anything from her first interview. She had informed
[him] that there was more that she remembered as she started
remembering things that she had put behind her several years ago.
And she told [him] that Mr. White when they were in the bedroom
that he would pull his penis out and show it to her and sometimes it
would touch her face and he would make statements to her.
(Id. at 212-213). Detective Vallery interviewed A.M. a second time because A.M.’s
boyfriend revealed to Detective Vallery that A.M. “confided in her boyfriend * * *
something about oral sex between [White] and her.” (Id. at 213). However, A.M.
denied to Detective Vallery that White “had her perform oral sex on him”; rather,
A.M. “did confirm that [White] did pull his penis out in front of her prior to the
other sexual abuse.” (Id. at 214).
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{¶27} On re-direct examination, Detective Vallery testified that he did not
have the opportunity to question White regarding A.M. and K.M.’s allegations. (Id.
at 216). He testified that K.W., C.C., A.M., and K.M. never denied that they were
sexually abused by White. (Id. at 217).
{¶28} A.M. testified on behalf of the State that the Whites babysat her from
the time she was a “baby” until she was “[a]round 10 years old.” (Id. at 222, 224-
225). She testified that she was born in October 1994 and that K.M., her sister, is
“close to five years” older than she is. (Id. at 223).
{¶29} A.M. testified that she “was sexually abused and molested by James
White.” (Id. at 226). She testified that the sexual abuse began after the Whites
“moved to Westgate,” which was when she was “about five” years old. (Id. at 225).
She further testified that the Whites stopped babysitting for her when she was
“[a]round ten years old.” (Id.). A.M. testified that she knows Winget, K.W., and
C.C. but does not have a relationship with Winget, K.W., or C.C. (Id. at 235-237).
She further testified that she has not seen Winget, K.W., or C.C. since the Whites
stopped babysitting her. (Id.).
A.M. recalled:
There was [sic] different altercations with him. One of the altercations
was in his living room on his chair. He would always want me to sit
with him, and he would always have like a red checkered blanket and
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put it over us and -- when I would sit on his lap because he would
want me to, and then he would slide his -- because the blanket would
be over us, and he would slide his fingers down my pants and fondle
with my vagina.
(Id. at 226). According to A.M., White’s finger “penetrated” her vagina for “about
five minutes.” (Id. at 228-229). A.M. described another incident:
He asked me to go back in his bedroom, and he told me to sit on his
bed, and he would flop out his penis and put it in my face. And then
he told me to lay down, told me to pull down my pants. And he would
leave the room, and he would get a washcloth and he would come
back and lay down and he would put the washcloth over his penis and
put it in my butt area and my taint area and rub it up and down, and
then he would take the washcloth off and then do it again, and then he
would put the washcloth back on and do it.
(Id. at 230). According to A.M., this “rubbing activity” lasted for approximately 15
minutes. (Id.). A.M. did not tell anyone about these incidents because she “was
scared what was gonna [sic] happen to [her] or to them or to anybody.” (Id. at 231).
She eventually confided in her sister, and then her friends when she was “about 12,
13 years old.” (Id. at 231-232). When asked whether she could “be certain that”
“the abuse [she] described” “occurred the way [she] testified” to since it “happened
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a long time ago,” A.M. responded that she was certain “[b]ecause it traumatized
[her]. [She will] never forget it.” (Id. at 237).
{¶30} On cross-examination, A.M. confirmed that the sexual abuse occurred
from when she was six years old until she was ten years old. (Id. at 237-238). She
testified that she revealed additional details regarding the abuse in her second
interview with Detective Vallery because she “blocked it out” but remembered the
additional details later. (Id. at 242).
{¶31} On re-direct examination, A.M. described an incident in which she
locked herself in a bathroom so that she would not be left alone with White. (Id. at
244-245).
{¶32} Thereafter, the State moved to admit its exhibits and rested. (Id. at
247-248). State’s Exhibit 1 was admitted without objection, and State’s Exhibit 2
was admitted over the defense’s objection. (Id.). Next, White made a Crim.R.
29(A) motion, which the trial court denied. (Id. at 248-252). White did not provide
any evidence and rested. (Id. at 252-253). White did not renew his Crim.R. 29(A)
motion. The case was submitted to the jury, which found White guilty as to the
counts and specifications of the amended indictment. (Id. at 309-311).
{¶33} As an initial matter, we must address White’s failure to renew his
Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the conclusion of
all the evidence.
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In order to preserve the issue of sufficiency on appeal, this court has
held that “[w]hen a defendant moves for acquittal at the close of the
state’s evidence and that motion is denied, the defendant waives any
error which might have occurred in overruling the motion by
proceeding to introduce evidence in his or her defense. In order to
preserve a sufficiency of the evidence challenge on appeal once a
defendant elects to present evidence on his behalf, the defendant must
renew his Crim.R. 29 motion at the close of all the evidence.”
State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 37, quoting State
v. Edwards, 3d Dist. Marion No. 9-03-63, 2004-Ohio-4015, ¶ 6. Based on this
court’s precedent, White’s failure to renew his Crim.R. 29(A) motion at the
conclusion of his case-in-chief or at the conclusion of all evidence waived all but
plain error on appeal. Id. at ¶ 37, citing State v. Flory, 3d Dist. Van Wert No. 15-
04-18, 2005-Ohio-2251, citing Edwards.
{¶34} “However, ‘[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.’” Id. at ¶ 38, citing Perrysburg v. Miller, 153 Ohio App. 3d 665, 2003-
Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No.
17891, 2000 WL 966161, *8 (July 14, 2000). “Regardless of the standard used, ‘a
conviction based on legally insufficient evidence constitutes a denial of due process,
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and constitutes a manifest injustice.’” Id., quoting Thompkins, 78 Ohio St.3d at 386-
387. Accordingly, we will proceed to determine whether the State presented
sufficient evidence to support White’s convictions. See id. See also State v. Velez,
3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d
Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999).
{¶35} First, White argues that there is insufficient evidence to convict him
of raping K.W. or A.M.3 We disagree. The State presented sufficient evidence that
White raped K.W. and A.M.—namely, the State presented sufficient evidence that
White inserted his finger into the vaginal and anal openings of K.W. and the vaginal
opening of A.M., when K.W. and A.M. were less than thirteen years of age.
{¶36} There is sufficient evidence that White engaged in sexual conduct with
K.W. and A.M. K.W. testified that White “put his fingers down in [her] vagina”
and she testified that White “put his fingers in [her] butt.” (Aug. 9, 2016 Tr., Vol.
I, at 137). Similarly, A.M. testified that White “penetrated” her vagina with his
finger. (Aug. 10, 2016 Tr., Vol. II, at 228). These acts constitute “sexual conduct”
under R.C. 2907.01(A). “A rape victim’s testimony that an offender inserted his
finger inside her vagina [or anus] is sufficient evidence of penetration.” State v.
Roberts, 1st Dist. Hamilton No. C-040547, 2005-Ohio-6391, ¶ 64, citing State v.
Lucas, 2d Dist. Montgomery No. 18644, 2001 WL 1103288, *3 (Sept. 21, 2001).
3
White does not challenge the element that he is not married to the victims.
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See State v. Phillips, 6th Dist. Lucas No. L-09-1149, 2010-Ohio-2577, ¶ 58
(concluding that Phillips’s rape conviction under R.C. 2907.02(A)(1)(b) was based
on sufficient evidence because “the jury could have found the element of anal
penetration” based on the victim’s testimony that Phillips digitally penetrated her
“bottom”). See also State v. Arcuri, 11th Dist. Trumbull No. 2015-T-0123, 2016-
Ohio-8254, ¶ 79 (“A single statement indicating that Arcuri digitally penetrated her
vaginal opening is sufficient to demonstrate ‘sexual conduct’ for the purposes of
Rape.”).
{¶37} Nonetheless, White appears to argue that his rape convictions are
based on insufficient evidence because the victims’ testimony is not credible since
their testimony is not corroborated by any evidence. However, “[a] victim’s
testimony concerning vaginal [or anal] penetration need not be corroborated.”
Roberts at ¶ 67, citing State v. Gingell, 7 Ohio App. 3d 364, 365-366 (1st Dist.1982).
Instead, the victims’ testimony, if believed, is sufficient evidence to convict White
of rape under R.C. 2907.02(A)(1)(b). See State v. Westerfield, 10th Dist. Franklin
No. 07AP-1072, 2008-Ohio-4458, ¶ 35.
{¶38} The State also presented sufficient evidence that the sexual conduct
occurred while the victims were less than thirteen years of age. K.W. testified that
this occurred when she was “five, six, [or] seven” years of age. (Aug. 9, 2016 Tr.,
Vol. I, at 138). Moreover, K.W. testified that she was born in 2002 and that she
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stopped seeing White in 2008—a time period during which she was less than
thirteen years of age. A.M. testified that the sexual abuse occurred between the ages
of six and ten. Likewise, A.M. testified that she is nearly five years younger than
K.M. K.M. testified that the Whites stopped babysitting A.M. and K.M. when K.M.
was 13 or 14 years old. As such, A.M. would have been approximately eight or
nine years old when she stopped seeing White.
{¶39} Yet, White argues that there is insufficient evidence supporting his
conviction for the rape of A.M. because she “was unable to state when [the] alleged
offense occurred.” (Appellant’s Brief at 9). White’s argument is meritless. First,
“exact dates are generally not essential elements of offenses.” State v. Triplett, 11th
Dist. Ashtabula No. 2013-A-0018, 2013-Ohio-5190, ¶ 43, citing State v. Sellards,
17 Ohio St. 3d 169, 171 (1985). Second, “Ohio courts have repeatedly held that in
cases involving the sexual molestation of minor children, the state is not required to
provide exact dates because the victims are simply unable to remember such facts,
particularly where the repeated offenses take place over an extended period of time.”
Id. at ¶ 44, citing State v. Lawrinson, 49 Ohio St. 3d 238, 239 (1990), State v.
Barnecut, 44 Ohio App. 3d 149 (5th Dist.1988), State v. Daniel, 97 Ohio App. 3d
548, 556 (10th Dist.1994), and State v. Mundy, 99 Ohio App. 3d 275, 296 (2d
Dist.1994). Likewise, “‘if the evidence supports a finding that the defendant was
alone with the victim during the relevant time frame and the defense is that the
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sexual abuse never occurred, the inability to identify a specific date does not require
reversal of a conviction.’” Arcuri at ¶ 80, quoting State v. Latorres, 11th Dist.
Ashtabula Nos. 2000-A-0060 and 2000-A-0062, 2001 WL 901045, *4 (Aug. 10,
2001), and citing Triplett at ¶ 44. Indeed, A.M. testified that White and Linda
babysat her from the time she was a baby until she was ten years old, and she
testified that the sexual abuse occurred from when she was six years old until she
was ten years old. The evidence supports a finding that White was alone with A.M.
during the timeframe that A.M. alleges that the rape occurred. See Jones, 2015-
Ohio-4116, at ¶ 45 (noting that “Jones would sometimes babysit” the victim).
{¶40} Viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found that White engaged in sexual conduct with
K.W. and A.M., while the K.W. and A.M. were less than thirteen years of age. Id.
at ¶ 48. Therefore, there is sufficient evidence that White committed rape under
R.C. 2907.02(A)(1)(b). As such, White’s first, second, and third assignments of
error are overruled.
{¶41} Next, White argues that there is insufficient evidence to convict him
of gross sexual imposition under R.C. 2907.05(A)(1) and (4). We will first address
White’s sufficiency-of-the-evidence arguments as they relate to his convictions
under R.C. 2907.05(A)(4), followed by his sufficiency-of-the-evidence argument as
it relates to his conviction under R.C. 2907.05(A)(1).
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{¶42} The State presented sufficient evidence that White engaged in sexual
contact with A.M. and K.M., while A.M. and K.M. were less than thirteen years of
age. A.M. testified that White “fondled her vagina” under her clothes and “rubbed”
a washcloth on her bare pubic region. (Aug. 10, 2016 Tr., Vol. II, at 226, 230).
K.M. testified that White “grabb[ed her] left breast” underneath her shirt. (Aug. 9,
2016 Tr., Vol. I, at 166). These acts constitute sexual contact under R.C. 2907.01(B)
because a reasonable trier of fact could infer from A.M.’s and K.M.’s testimony that
the purpose of the touching was for White’s sexual arousal or gratification. See
Jones at ¶ 50.
{¶43} Further, the State presented sufficient evidence that the sexual contact
occurred while A.M. and K.M. were less than thirteen years of age. As we noted
above, A.M. testified that the sexual abuse occurred from when she was six years
old until she was ten years old, and A.M.’s time frame was corroborated by K.M.’s
testimony. K.M. testified that the sexual contact occurred when she “was nine or
ten.” (Aug. 9, 2016 Tr., Vol. I, at 166). However, as to A.M., White makes the
same argument that he made regarding his rape conviction as to A.M.—that is, that
his gross-sexual-imposition conviction under R.C. 2907.05(A)(4) is based on
insufficient evidence because A.M. did not specifically identify when White abused
her. For the same reason we rejected White’s argument as to his rape conviction,
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we reject White’s argument here. See, e.g., Triplett, 2013-Ohio-5190, at ¶ 44; Jones
at ¶ 50; Arcuri, 2016-Oho-8254, at ¶ 80.
{¶44} Viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found that White engaged in sexual contact with
A.M. and K.M., while A.M. and K.M. were less than thirteen years of age. See
Jones at ¶ 53. Therefore, there is sufficient evidence that White committed gross
sexual imposition under R.C. 2907.05(A)(4).
{¶45} Finally, as to White’s conviction under R.C. 2907.05(A)(1), White
makes arguments relative only to whether C.C.’s testimony that White engaged in
sexual contact with her is believable. As such, we will address only that element of
the offense—that is, whether the State presented sufficient evidence that White
engaged in sexual contact with C.C. We conclude that the State presented sufficient
evidence that White engaged in sexual contact with C.C. C.C. testified that White
“rubb[ed]” “his thumb” “across [her] left nipple” under her shirt. (Aug. 9, 2016 Tr.,
Vol. I, at 150). This conduct constitutes sexual contact under R.C. 2907.01(B)
because a reasonable trier of fact could infer from C.C.’s testimony that the purpose
of the touching was for White’s sexual arousal. See Jones at ¶ 50.
{¶46} Even so, White argues that C.C.’s testimony is not credible for a
number of reasons, including (1) the sexual contact “occurred over twenty years
ago,” (2) “C.C. made no report at the time of the incident [and] testified that in 2008,
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she was aware of the allegation that [K.W.] made against [White], but she did not
make any report at that time against [White],” and (3) C.C. “chose to live with
[White] after this allegedly occurred.” (Appellant’s Brief at 12). However, we do
not resolve credibility issues when resolving whether there is sufficient evidence to
support a conviction. See In re Whitlock, 11th Dist. Ashtabula No. 2008-A-0018,
2008-Ohio-4672, ¶ 26, citing DeHass, 10 Oho St.2d 230, at paragraph one of the
syllabus. Instead, “the believability was for the jury to decide.” See State v. Page,
2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 30. C.C.’s testimony, if
believed, is sufficient evidence that White engaged in sexual contact with C.C. See
id. at ¶ 30 (“[The victim’s] testimony, if believed, was sufficient to support Page’s
conviction of * * * gross sexual imposition.”); In re Whitlock at ¶ 26 (rejecting the
defendant’s argument that his gross-sexual-imposition conviction was based on
insufficient evidence because the “victim was not a credible witness”).
{¶47} Accordingly, viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found that White engaged in sexual
contact with C.C. Therefore, there is sufficient evidence that White committed
gross sexual imposition under R.C. 2907.05(A)(1).
{¶48} White’s fourth, fifth, and sixth assignments of error are overruled.
{¶49} Having concluded that White’s convictions are based on sufficient
evidence, we next address White’s arguments that his convictions are against the
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manifest weight of the evidence. See State v. Missler, 3d Dist. Hardin No. 6-14-06,
2015-Ohio-1076, ¶ 38; Velez, 2014-Ohio-1788, at ¶ 76. White makes the same
arguments that he makes in support of his sufficiency-of-the-evidence assignments
of error—namely, that K.W., A.M., K.M., and C.C. are not credible and that there
is no DNA or medical evidence to corroborate K.W.’s allegations. We conclude
that the evidence that we summarized in our sufficiency-of-the-evidence analysis
does not heavily weigh against White’s convictions.
{¶50} As with many sexual-abuse cases, this case presents the “classic ‘he-
said/she-said’” scenario, “with no physical evidence to corroborate the [victims’]
allegation[s].” In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and 2010-
L-041, 2011-Ohio-6845, ¶ 79. “Thus, credibility of the witnesses was the primary
factor in determining guilt.” Id. As we noted above, “the weight to be given the
evidence and the credibility of the witnesses are primarily for the trier of the facts.”
DeHass, 10 Ohio St. 2d 230 at, paragraph one of the syllabus. “When examining
witness credibility, ‘the choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.’” In re N.Z. at ¶ 79, quoting
State v. Awan, 22 Ohio St. 3d 120, 123 (1986). “A fact finder is free to believe all,
some, or none of the testimony of each witness appearing before it.” Id., citing State
v. Thomas, 11th Dist. Lake No. 2004-L-176, 2005-Ohio-6570, ¶ 29. See also
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Missler at ¶ 44, quoting State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-Ohio-
908, ¶ 15, quoting State v. Antill, 176 Ohio St. 61, 67 (1964). “‘“A verdict is not
against the manifest weight of the evidence because the [jury] chose to believe the
State’s witnesses rather than the defendant’s version of the events.”’” Missler at ¶
44, quoting State v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15,
quoting State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.
{¶51} In this case, K.W., A.M., K.M., and C.C. testified to their version of
events surrounding the sexual abuse that led to White’s rape and gross-sexual-
imposition convictions, and the jury found the victims credible. Compare State v.
Curry, 3d Dist. Allen No. 1-15-05, 2016-Ohio-861, ¶ 66 (concluding that Curry’s
rape and robbery convictions were not against the manifest weight of the evidence
because the trier of fact found the victim’s version of events credible). Although
White did not testify, the jury was able to view the video recording of his interview
with Detective Vallery in which White can be heard denying K.W.’s and C.C.’s
allegations and explaining his theories as to why they accused him of the sexual
abuse. (State’s Ex. 1). (See also State’s Ex. 2). Indeed, White accuses his ex-wife,
Winget, Winget’s husband, and the victims as conspiring against him. (State’s Ex.
1). White theorizes that the collusion is a ruse to exact revenge based on feuds he
has with those people, or that the collusion is a ploy to obtain money from him since
he recently received an inheritance from his father-in-law’s estate. (Id.).
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Nevertheless, White’s theories are belied by Detective Vallery’s discovery of
additional victims—namely, A.M. and K.M. A.M. and K.M. testified that, while
they know Winget, K.W., and C.C., they do not have a relationship with them and
have not seen Winget, K.W., or C.C. since the Whites stopped babysitting them—
more than 12 years ago.
{¶52} White also argues that the victims’ allegations are not credible because
they did not report the sexual abuse when it occurred; rather, they reported the abuse
several years later. K.W., A.M., K.M., and C.C. explained why they did not come
forward sooner with details of the sexual abuse. The jury was free to find their
explanations credible. Compare State v. Bones, 2d Dist. Montgomery No. 26017,
2015-Ohio-784, ¶ 33-34, 40 (concluding that Bones’ rape convictions were not
against the manifest weight of the evidence even though the victim did not report
the abuse until several years later).
{¶53} Moreover, White’s pattern of abuse was revealed through Detective
Vallery’s investigation after K.W. spontaneously disclosed the abuse to her mother.
See State v. Stefka, 7th Dist. Monroe No. 10 MO 7, 2012-Ohio-3004, ¶ 77 (rejecting
Stefka’s argument that his rape and gross-sexual-imposition convictions were
against the manifest weight of the evidence because the victim’s testimony was
“unclear, uncertain and unreliable,” since the victim “was the one who
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spontaneously disclosed the abuse to her stepmother”). Likewise, the victims
recalled many specific details about the abuse. See Bones at ¶ 35.
{¶54} Finally, that there is no DNA or medical evidence corroborating
K.W.’s allegations does not weigh against White’s convictions as to K.W. Indeed,
“physical evidence is not required to support a rape conviction against a manifest
weight challenge.” State v. Thomas, 9th Dist. Summit No. 27580, 2015-Ohio-5247,
¶ 31, citing State v. Martinez, 9th Dist. Summit No. 24037, 2008-Ohio-4845, ¶ 13
(rejecting manifest weight challenge to rape conviction even though there was
“‘little to no credible physical evidence’”). Furthermore, Detective Vallery testified
that it was unlikely that any DNA or medical evidence would be discovered
considering the amount of time that passed between when the abuse occurred and
when K.W. told Winget.
{¶55} For these reasons, White’s arguments are unpersuasive. Accordingly,
we cannot conclude that the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that White’s convictions must be reversed and a new
trial ordered.
{¶56} White’s seventh, eighth, ninth, tenth, eleventh, and twelfth
assignments of error are overruled.
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{¶57} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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