In re D.W. ( 2020 )

[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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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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{¶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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{¶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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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.
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