State v. McCullough ( 2021 )

[Cite as State v. McCullough, 2021-Ohio-2616.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2020 CA 00150
REGINALD JAMES MCCULLOUGH :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2020-
CR-0262
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 29, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE GEORGE URBAN
Prosecuting Attorney 116 Cleveland Avenue N.W.
BY: VICKI L. DESANTIS 808 Courtyard Centre
Assistant Prosecutor Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2020 CA 00150 2
Gwin, P.J.
{¶1} Defendant-appellant Reginald McCullough [McCullough] appeals his
convictions and sentences after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} On February 7, 2020, a direct indictment from the Stark County Grand Jury
was filed which indicted McCullough on one count of Attempted Unlawful Sexual Conduct
with a Minor, R.C. 2923.02/2907.04(A)(B)(3), a felony of the fourth degree; and one count
of Importuning, R.C. 2907.07(D)(2)(F)(3), a felony of the fifth degree.
{¶3} The Internet Crimes against Children Task Force (ICAC) is a multi-
jurisdictional operation consisting of local law enforcement and federal authorities
designed to prevent child abuse/sexual predators on the internet. The ICAC normally
operates by conducting child abuse/sexual predator stings focused on trying to locate and
identify individuals that are willing to have conversations, that are sexual in nature, with
others who they believe are juveniles, and who will take the additional step to where to
meet at a location with an understanding that there is going to be sexual activity with that
juvenile.
{¶4} The ICAC Task Force planned a sting operation that would take place
from January 31st through February 3rd of 2020. The ICAC Task Force arranged to
use a model home in a residential neighborhood as the base of the sting operation,
located in Jackson Township, Stark County, Ohio.
{¶5} There a r e protocols in place for the officers portraying themselves as
juveniles on o n l i n e s o c i a l m e d i a p l a t f o r m s . T h e officers pretending to be under
aged juveniles are called "chatters". The protocols included the requirement that the
Stark County, Case No. 2020 CA 00150 3
"chatters" could not reach out to any subject for the initial conversation, the chatter
must disclose the age they are portraying fairly early in the conversation, a n d the
chatter were not to be the first to bring up a sex act.
{¶6} Detective David McConnell was approached by one of the
individuals that organized the ICAC sting operation and asked to be
participate in the operation. Detective McConnell was asked to become a
"chatter." Detective McConnell testified that he had a fake Facebook profile with a
female persona named “Emily Marie." He further testified that he created the fake
Facebook profile five or six years prior. Detective McConnell used pictures of ICAC agent
Elizabeth Crano for the fake profile. Ms. Crano applied filters to her photograph to make
her appear to be a juvenile. Detective McConnell testified that he thought he changed the
profile picture only once or twice since he created the fake account five to six years ago.
{¶7} Detective McConnell testified McCullough made the initial contact with
Emily Marie on January 16, 2020 at 9:15 a.m. Detective McConnell r e c o r d e d screen
shots of the conversations. [State’s Exhibits 1-A through 1-GG]. During the initial
conversation, McCullough tells Emily that he is thirty-five years old. Emily responds that
she is “14 about to be 15” years old. 2T. at 42. McCullough asked Emily to send him
pictures of her “butt and titties.” 2T. at 42. Emily declines to send pictures. McCullough
then asks Emily, “Can we have sex. I like you.” 2T. at 43. Emily asked McCullough if her
age bothered him, to which McCullough replied, “Naw, I have b4 and her mom didnt
mind.” McCullough further revealed, "I had sex when I was 14.” 2T at 43. McCullough
tells Emily he is interested in oral sex. 2T. at 44 - 45. Emily tells McCullough that she is
inexperienced and asks if that is all McCullough wanted. Id. The pair exchange messages
Stark County, Case No. 2020 CA 00150 4
concerning the size of McCullough’s penis and the size of Emily’s breasts. 2T. at 46-47.
A meeting at a local restaurant later that day failed to materialize.
{ ¶ 8 } On January 23, 2020 Emily responds to McCullough that she is house
sitting. McCullough asks if he can come to see her. Emily messages, "And do what?"
M c C u l l o u g h r e p l i e s , "What do you want to do?" To which Emily messages,
"What did u say u wanted to do the other day?" Mc Cu llough responds, "Get some
head lol". 2T. at 49-50. Before the meeting, Emily asks McCullough to bring her "some
gummy worms and a soda" from a nearby gas station. 2T. at 51. Emily tells him it’s by
Jackson High School and to call when he gets to the gas station. Detective McConnell
testified they have the subject buy something at the gas station so they can get him on
video and to know he is the same subject that was messaging Emily. McCullough was
arrested as he walked up to the residence. 2T. at 28. McCullough was subsequently
interviewed be Detective Ayers. [State’s Exhibit 2].
{ ¶ 9 } Detective Ayers testified at no time did M c C u l l o u g h tell him he did
not believe Emily's age or that he believed that he knew her from his past. In fact,
Detective Ayers testified that McCullough denied that Emily ever said she was
fourteen years old.
{¶10} McCullough testified that he knew about eighty-five percent of the people
who were friends with the fake Facebook profile, and a lot of those people were older
than himself. McCullough further testified the fact that the fake Facebook profile came up
as a suggested friend, that he had a lot of mutual Facebook friends with the fake
Facebook profile, and that a lot of people who were friends with the Facebook profile were
his age or older, he had no reason to believe that the fake Facebook profile was that of a
Stark County, Case No. 2020 CA 00150 5
juvenile. 2T. at 84-87. Regarding the decoy officer, Taylor Trisner, who directed
McCullough to the home where he was supposed to meet with Emily, McCullough
testified "she didn't sound like a child. She sounded like an adult." 2T. at 89.
M c C u l l o u g h testified that the voice sounded like a girl that he knew from Massillon.
Id. McCullough testified that when he arrived at the house, he saw the decoy officer and
she appeared to him to be an adult. 2T. at 89. Specifically, he testified the decoy officer,
“looked like she was about 26 [years old].” 2T. at 90.
{¶11} On September 10, 2020, the Jury returned a verdict finding McCullough
guilty of the indicted charges. Immediately f o l l o w i n g trial, the court sentenced
Mc Cu llo u g h to e i g h t e e n months for Attempted Unlawful Sexual Conduct with a
Minor and twelve months for Importuning to run concurrently with four days of jail time
credit.
Assignments of Error
{¶12} McCullough raises three Assignments of Error,
{¶13} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED.
{¶14} “II. THE APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶15} “III. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S
CRIMINAL RULE 29 MOTION FOR ACQUITTALBECAUSE THE STATE FAILED TO
PRESENT SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.”
Stark County, Case No. 2020 CA 00150 6
I., II. & III.
{¶16} In his First Assignment of Error, McCullough contends that there is
insufficient evidence to support his convictions. In his Second Assignment of Error,
McCullough argues that his convictions were against the manifest weight of the evidence.
In his Third Assignment of Error, Patterson contends that the trial court erred in not
granting his Crim. R. 29 motion for acquittal at the conclusion of the state’s case.
{¶17} In determining whether a trial court erred in overruling an appellant's motion
for judgment of acquittal, the reviewing court focuses on the sufficiency of the evidence.
See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965, 974(1995); State v.
Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991).
Standard of Appellate Review– Sufficiency of the Evidence.
{¶18} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,
621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶19} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
Stark County, Case No. 2020 CA 00150 7
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at
paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess
the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]
would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”
State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at
paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on
sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by
the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
of Patterson’s guilt on each element of the crimes for which he was convicted beyond a
reasonable doubt.
No actual minor involved in the commission of the offenses.
{¶20} McCullough contends that the evidence is insufficient to sustain a conviction
for either of the indicted charges as there was not a juvenile female, sixteen years old or
younger, involved in the offense, the fake profile had nothing on it which would indicate
Stark County, Case No. 2020 CA 00150 8
that it belonged to a minor, and finally, there was simply no way that any rational person
would believe that the fake Facebook profile belonged to a juvenile female sixteen
years old or younger. [Appellant’s Brief at 9-11].
{¶21} McCullough was convicted in Count One of the Indictment with Attempted
Unlawful Sexual Conduct with a Minor in violation of R.C. 2907.04(A) and in Count Two
of the Indictment with Importuning in violation of R.C. 2907.07(D)(2).
Attempted Sexual Conduct with a Minor.
{¶22} R.C. 2907.04(A) states that “[n]o person who is eighteen years of age or
older shall engage in sexual conduct with another, who is not the spouse of the offender,
when the offender knows the other person is thirteen years of age or older but less than
sixteen years of age, or the offender is reckless in that regard.
{¶23} Under R.C. 2923.02, the “attempt” statute,
(A) No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct that, if successful, would constitute or result in the
offense
***
(B) It is no defense to a charge under this section that, in retrospect,
commission of the offense that was the object of the attempt was either
factually or legally impossible under the attendant circumstances, if that
offense could have been committed had the attendant circumstances been
as the actor believed them to be.
Stark County, Case No. 2020 CA 00150 9
(C) No person who is convicted of committing a specific offense, of
complicity in the commission of an offense, or of conspiracy to commit an
offense shall be convicted of an attempt to commit the same offense in
violation of this section.
(D) It is an affirmative defense to a charge under this section that the
actor abandoned the actor’s effort to commit the offense or otherwise
prevented its commission, under circumstances manifesting a complete
and voluntary renunciation of the actor’s criminal purpose.
{¶24} The Ohio Supreme Court has held that a criminal attempt occurs when the
offender commits an act constituting a substantial step towards the commission of an
offense. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059(1976), paragraph one of
the syllabus, overruled in part by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d
1140(1977). See also, State v. Ashbrook, 5th Dist. Stark No. 2004-CA-00109, 2005-
Ohio-740, reversed on other grounds and remanded for re-sentencing pursuant to State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In re: Ohio Criminal Sentencing Statutes
Cases, 109 Ohio St.3d 313, 2006-Ohio-2109. In defining substantial step, the Woods’
Court indicated that the act need not be the last proximate act prior to the commission of
the offense. Woods at 131-32, 357 N.E.2d 1059. However, the act "must be strongly
corroborative of the actor's criminal purpose." Id. at paragraph one of the syllabus. This
test “properly directs attention to overt acts of the defendant which convincingly
demonstrate a firm purpose to commit a crime, while allowing police intervention, based
upon observation of such incriminating conduct, in order to prevent the crime when the
Stark County, Case No. 2020 CA 00150 10
criminal intent becomes apparent.” Woods, supra at 132, 357 N.E.2d at 1063. In other
words, a substantive crime would have been committed had it not been interrupted.
{¶25} R.C. 2923.02(D) provides that: "[i]t is an affirmative defense to a charge
under this section that the actor abandoned his effort to commit the offense or otherwise
prevented its commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose." However, the abandonment must be "complete"
and "voluntary" in order to exculpate a defendant. Where one abandons an attempted
crime because he fears detection or realizes that he cannot complete the crime, the
"abandonment" is neither "complete" nor "voluntary.” Woods, supra, 48 Ohio St.2d at
133.
{¶26} Precisely what conduct will be held to be a substantial step must be
determined by evaluating the facts and circumstances of each particular case. State v.
Group, 98 Ohio St.3d 248, 262, 2002-Ohio-7247 at ¶100, 781 N.E.2d 980, 996 (2002).
Neither factual nor legal impossibility is a defense to an attempt charge if the attempted
offense could have been committed “had the attendant circumstances been as the actor
believed them to be.” R.C. 2923.02(B). The intent with which an act is committed may be
inferred from the act itself and the surrounding circumstances, including acts and
statements of a defendant. State v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656
N.E.2d 623, 634; State v. Wallen, 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 72 (5th. Dist.
1969).
{¶27} An attempted violation of R.C. 2907.04 requires an attempt to engage in
sexual conduct with another person between the ages of 13 and 15.
Stark County, Case No. 2020 CA 00150 11
{¶28} In State v. Schaefer, 155 Ohio App.3d 448, 2003-Ohio-6538, 801 N.E.2d
872, (2nd Dist.), the Second Appellate District held that the defendant’s act of driving to
meet a person who he believed was a 14–year–old girl he had solicited over the internet
for the purpose of engaging in sexual activity was a substantial step in the commission of
the offense of unlawful sexual conduct with a minor, and that the act of driving to the
arranged meeting spot on the date and time planned was strongly corroborative of his
criminal purpose. See also State v. Tarbay, 157 Ohio App.3d 261, 2004-Ohio-2721, 810
N.E.2d 979 (1st Dist.); State v. Bonness, 8th Dist. Cuyahoga No. 96557, 2012-Ohio-474.
After agreeing with the holding in Schaefer, this Court in State v. Bowers, noted,
All of appellant’s actions were geared to setting up a meeting with a
fourteen year old girl for the purpose of engaging in sex conduct. This is no
different than an undercover officer posing as a prostitute and warning
“Johns” once and then arresting them.
5th Dist. Stark No. 2005CA00015, 2005-Ohio-4270, ¶20. Accordingly, belief that a minor
was involved is sufficient to sustain an attempt conviction. The reason for allowing
undercover police officers to pose as minors is based in part upon the desire to keep
underage persons out of harm’s way, as one court has explained,
The attempt provision here is no different than an attempted
solicitation of prostitution, where the criminal conduct is the knowing effort
to solicit an individual for prostitution. That the individual turns out to be a
decoy undercover officer does not vitiate the criminal conduct—indeed,
such sting operations are “common practice.” Rodriguez v. Panayiotou, 314
F.3d 979, 984 (9th Cir. 2002).
Stark County, Case No. 2020 CA 00150 12
So too have undercover officers been forced to resort to extensive
investigation and sting operations to ferret out pedophiles who troll the
Internet for minors. As Meek interprets the statute, detectives and
undercover officers would be unable to police effectively the illegal
inducement of minors for sex. Taking such a restrictive view of the statute
would frustrate its purpose. Indeed, police preventative measures such as
the sting operation conducted here would come at the cost of either rarely
securing a conviction or putting an actual child in harm’s way. In that
scenario, the child molester gains at the tremendous expense of the child,
a result sharply at odds with the statute’s text and purpose. In declining
Meek’s interpretation, we opt for the integrity of the statute as a whole.
United States v. Meek, 366 F.3d 705, 717-718(9th Cir. 2004). Accord, United States v.
Roman, 795 F.3d 511, 516 (6th Cir. 2015)(citing cases).
{¶29} In the case at bar, evidence was presented that McCullough first imitated
contact with the Emily Marie persona on January 16, 2020. 2T. at 38. Emily told
McCullough that she was fourteen about to be fifteen years old. 2T. at 42. Emily asked
McCullough, “My age dont bother u?” 2T. at 43. To which McCullough replied “Naw I have
b4 and her mom didnt mind.” 2T. at 43. Further McCullough stated, “I had sex when I was
14.” 2T. at 43. McCullough flat out asked Emily “Can we have sex?” 2T. at 43. McCullough
requested oral sex. 2T. at 44. McCullough goes on to request several other sexual acts
that he wished to engage in with Emily. 2T. at 44-45; 47; 50. McCullough stopped at the
gas station that Emily requested, bought gummy worms and soda pop as Emily had
requested, and drove to a place where he had arranged to meet with Emily. 2T. at 51-53.
Stark County, Case No. 2020 CA 00150 13
McCullough’s act of driving to meet Emily who he believed was a 14–year–old girl he had
solicited over the internet for the purpose of engaging in sexual activity was a substantial
step in the commission of the offense of unlawful sexual conduct with a minor, and that
the act of driving to the arranged meeting spot on the date and time planned was strongly
corroborative of his criminal purpose.
{¶30} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
McCullough’s conduct went beyond merely soliciting Emily Marie for sexual activity and
constitutes an attempt to commit unlawful sexual conduct with a minor. We hold,
therefore, that the state met its burden of production regarding Attempted Unlawful Sexual
Conduct with a Minor and, accordingly, there was sufficient evidence to support
McCullough’s conviction.
Importuning.
{¶31} R.C. 2907.04 provides, in relevant part,
(D) No person shall solicit another by means of a
telecommunications device, as defined in section 2913.01 of the Revised
Code, to engage in sexual activity with the offender when the offender is
eighteen years of age or older and either of the following applies:
***
(2) The other person is a law enforcement officer posing as a person
who is thirteen years of age or older but less than sixteen years of age, the
offender believes that the other person is thirteen years of age or older but
less than sixteen years of age or is reckless in that regard, and the offender
Stark County, Case No. 2020 CA 00150 14
is four or more years older than the age the law enforcement officer
assumes in posing as the person who is thirteen years of age or older but
less than sixteen years of age.
{¶32} “A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to cause
a certain result or is likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences, he perversely
disregards a known risk that such circumstances are likely to exist.” R.C. 2901.22(C).
{¶33} As expressed by the state, the harm is in the asking. State v. Bolden, 2nd
Dist. Montgomery No. 19943, 2004-Ohio-2315, ¶ 37. In the case at bar, Emily Marie clear
told McCullough that she was fourteen about to be fifteen years old. 2T. at 42. Emily
asked McCullough, “My age dont [sic.] bother u?” 2T. at 43. To which McCullough replied
“Naw I have b4 and her mom didnt mind.” 2T. at 43. Further McCullough stated, “I had
sex when I was 14.” 2T. at 43. McCullough flat out asked Emily “Can we have sex?” 2T.
at 43. McCullough requested oral sex. 2T. at 44. McCullough goes on to request several
other sexual acts that he wished to engage in with Emily. 2T. at 44-45; 47; 50.
{¶34} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
McCullough clearly believed that the person from whom he had solicited sex on the
Internet was a 14–year–old girl. We hold, therefore, that the state met its burden of
production regarding Importuning and, accordingly, there was sufficient evidence to
support McCullough’s conviction.
Stark County, Case No. 2020 CA 00150 15
Standard of Appellate Review – Manifest Weight.
{¶35} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶36} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
Stark County, Case No. 2020 CA 00150 16
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶37} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the convictions must be reversed and a new
trial ordered.
{¶38} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
Stark County, Case No. 2020 CA 00150 17
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶39} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw McCullough subject to cross-examination. The jury heard and saw the chat
statements and evidence concerning McCullough’s statement to the police. There was
ample evidence for the jury to find that McCullough believed he was dealing with a 14-
year-old girl. Emily Marie clearly told him her age. There is no evidence that McCullough
was role-playing. At no time during the chats did McCullough express his disbelief at the
representation that Emily was fourteen years old, or that he knew her from sometime in
the past. In fact, when questioned by the police after his arrest, McCullough expressly
denied that Emily ever told him she was fourteen years old.
{¶40} Thus, a rational basis exists in the record for the jury’s decision.
Stark County, Case No. 2020 CA 00150 18
{¶41} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find McCullough’s convictions are
not against the sufficiency or the manifest weight of the evidence. To the contrary, the
jury appears to have fairly and impartially decided the matters before them. The jury
heard the witnesses, evaluated the evidence, and was convinced of McCullough’s guilt.
The jury neither lost their way nor created a miscarriage of justice in convicting
McCullough of the charges.
{¶42} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which McCullough was convicted.
{¶43} McCullough’s First, Second and Third Assignments of Error are overruled.
{¶44} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur