In re D.W. ( 2020 )


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  • [Cite as In re D.W., 
    2020-Ohio-6714
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    IN RE: D.W.                             :      APPEAL NOS. C-190311
    C-190482
    :      TRIAL NOS. 17-5383
    17-4966
    :              O P I N I O N.
    Appeals From: Hamilton County Juvenile Court
    Judgments Appealed From Are: Affirmed in C-190311; Appeal Dismissed in C-
    190482
    Date of Judgment Entry on Appeal: December 16, 2020
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
    Assistant Prosecuting Attorney, for Appellee State of Ohio,
    Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
    Assistant Public Defender, for Appellant D.W.
    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    M OCK , Presiding Judge.
    {¶1}    In one assignment of error, appellant D.W. claims that the state
    presented insufficient evidence to allow the trial court to declare him delinquent for
    having committed the offense of sexual imposition in violation of R.C. 2907.06(A) if
    committed by an adult. We disagree.
    Groping of Woman Results in Adjudication
    {¶2}    According to the testimony presented before the magistrate, the
    victim entered a downtown parking garage at 5 p.m. on May 16, 2018. She took the
    escalator to the fourth floor, while talking on her cell phone. Unknown to her, D.W.
    was following behind her. As the victim approached her car, and with no one else
    around, D.W. came up behind her and squeezed her buttocks with two hands. She
    described the contact as “squeez[ing] like very, very - - like very hard. It wasn’t just
    like a little grab, but it was a very hard squeeze on both sides of my ass essentially * *
    *.” She said that D.W. then ran away after she began to chase him. She was able to
    take a picture of D.W. with her phone before he escaped, and video surveillance
    recordings captured D.W. as he approached the victim and his flight afterward, but
    did not record the incident. The victim testified that the incident felt “disgusting.”
    {¶3}    As a result of this and other incidents, D.W. was later arrested. The
    conduct that is the subject of this case was charged in the case numbered 17-5383.
    Another incident was charged in the case numbered 17-4966. Both cases proceeded
    to adjudication. In the case numbered 17-5383, D.W. was found delinquent for
    having committed sexual imposition in violation of R.C. 2907.06(A). In the case
    numbered 17-4996, D.W. was found delinquent for having committed disorderly
    conduct. Both cases were separately appealed; case 17-5383 was appealed in the
    appeal numbered C-190311, and 17-4966 was appealed in the appeal numbered C-
    190482. The cases were then consolidated in this court for resolution. But since
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    D.W. has not raised any issues regarding the adjudication in 17-4996, we dismiss the
    appeal numbered C-190482.
    Sufficient Evidence of Purpose
    {¶4}    In his sole assignment of error, D.W. claims that there was
    insufficient evidence to establish that he committed sexual imposition.          R.C.
    2907.06(A)(1) provides
    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 knows that the sexual contact is
    offensive to the other person, or one of the other
    persons, or is reckless in that regard.
    “ ‘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).
    {¶5}    When reviewing the sufficiency of the evidence to support a criminal
    conviction, “the question is whether after reviewing the evidence in the light most
    favorable to the prosecution, any rational trier of fact could have found all the
    essential elements of the crime beyond a reasonable doubt.” State v. Pettus, 1st Dist.
    Hamilton No. C-170712, 
    2019-Ohio-2023
    , ¶ 52, citing State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991), paragraph two of the syllabus.
    {¶6}    D.W. claims that there was no evidence that he grabbed the victim’s
    buttocks “for the purpose of sexually arousing or gratifying either person.”
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    {¶7}     In State v. Mack, 1st Dist. Hamilton No. C-050968, 
    2006-Ohio-6284
    ,
    ¶ 9, this court stated that
    [t]he Ohio Revised Code does not define sexual arousal or
    gratification. But the statutes contemplate any touching of the
    specified areas that a reasonable person would perceive as sexually
    stimulating or gratifying. Whether a touching is for the purpose of
    sexual gratification or arousal is “a question of fact to be inferred from
    the type, nature, and circumstances surrounding the contact.” While
    touching by itself is not sufficient for a conviction, the act of touching
    may constitute strong evidence of intent.
    (Internal citations omitted.)    This question is not always clear and relies on
    considering the context. As this court noted,
    the 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 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. Hodgkin, 
    2019-Ohio-1686
    , 
    135 N.E.3d 533
    , ¶ 11 (1st Dist.), quoting State v.
    Cobb, 
    81 Ohio App.3d 179
    , 
    610 N.E.2d 1009
     (9th Dist.1991).
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    {¶8}    In a case similar to the case at bar, the Eighth Appellate District
    addressed the argument that the state had failed to prove a sexual motivation when
    “there was no evidence that [the defendant] was physically or audibly aroused and he
    did not speak any words with a sexual connotation” and there were no threats or
    attempts to keep the contact secret. State v. Edwards, 8th Dist. Cuyahoga No.
    81351, 
    2003-Ohio-998
    , ¶ 23. In that case, the court concluded that touching the
    child’s breasts three times in a bedroom, along with the statement “you are mine,”
    was sufficient because there was no evidence the touching was for a legitimate
    purpose or accidental. Id. at ¶ 24.
    {¶9}    In this case, D.W. did not make a statement similar to the statement
    made by the defendant in Edwards. But other factors support the conclusion that
    the contact violated the statute. As the trial court summarized it,
    the defendant came up from behind [the victim] while she was talking
    on her cell-phone as she walked to her car in the parking garage and
    with two hands squeezed both sides of her buttocks hard.              This
    deliberate forceful contact of her erogenous zone caused [the victim] to
    feel disgusting. The defendant initiated this forceful contact with an
    erogenous zone from behind while [the victim] was distracted on her
    phone and vulnerable, outside the presence of potential eyewitnesses,
    and in a parking garage the defendant was not authorized to be in.
    When confronted, the defendant fled, as evidenced from the
    testimony, photograph, and video footage.         Considering the type,
    nature, and circumstances of the contact as described above[,] * * * the
    defendant grabbed [the victim’s] buttocks for sexual gratification.
    {¶10}   Concededly, this is a close case. But, as with any case when courts are
    called upon to address a number of nonspecific factors in order to make a
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    determination, we are called upon to consider where that line is drawn—at what
    point the evidence become sufficient to establish a defendant’s intent. In this case
    and on these facts, we conclude that a trier of fact could properly have found beyond
    a reasonable doubt that the victim was grabbed for the purpose of sexual
    gratification. We overrule D.W.’s sole assignment of error.
    Conclusion
    {¶11}   For the reasons set forth above, we affirm the judgment of the trial
    court in the appeal numbered C-190311, and dismiss the appeal numbered C-190482.
    Judgment accordingly.
    ZAYAS and WINKLER, JJ., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
    6
    

Document Info

Docket Number: C-190311, C-190482

Judges: Mock

Filed Date: 12/16/2020

Precedential Status: Precedential

Modified Date: 12/16/2020