State v. Harris , 2020 Ohio 1497 ( 2020 )

[Cite as State v. Harris, 2020-Ohio-1497.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108377
v. :
DWAYNE HARRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 16, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-630253-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Aqueelah A. Jordan, Assistant Prosecuting Attorney, for
appellee.
Rick L. Ferrara, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Dwayne Harris (“Harris”) appeals from his
convictions for two counts of gross sexual imposition (“GSI”) and two counts of
kidnapping. Because we find sufficient evidence supports the convictions and the
convictions are not against the manifest weight of the evidence, we affirm.
I. Procedural History
On July 5, 2018, Harris was charged in a 19-count indictment,
including five counts of rape (Counts 1, 3, 5, 12, and 14); nine counts of kidnapping
(Counts 2, 4, 6, 9, 11, 13, 15, 17, and 19); and five counts of GSI (Counts 7, 8, 10, 16,
and 18). With the exception of Count 13, the kidnapping charges included a sexual
motivation specification. And with the exception of Counts 5, 12, 14, 16, and 18,
the remaining charges included a sexually violent predator specification. The
indictment involves three young sisters who were less than 13 years of age at the
time the alleged sexual conduct occurred: K.P. (d.o.b. February 13, 2007), H.P.
(d.o.b. February 2, 2009), and R.P. (d.o.b. September 2, 2010). Harris was dating
the children’s mother, A.P. (“Mother”), at the time the alleged conduct occurred.
On January 23, 2019, the matter proceeded to a bench trial. The
state presented the testimony of K.P., the alleged victim; Mother; Kimberly Foley,
social worker with University Hospitals; Kathleen Hackett, pediatric SANE nurse
at Rainbow Babies and Children’s Hospital; Hristina Lekova, DNA analyst with the
Cuyahoga County Medical Examiner’s Office; and Cleveland Police Detective
Richard Tusing.
At the close of the state’s case, the state voluntarily dismissed
Counts 8, 12, 13, 18, and 19 (charges involving all three children). And following
the defense’s Crim.R. 29 motion, the court dismissed Counts 14 and 15 (charges
involving H.P.). At the conclusion of trial, the court found Harris not guilty in
Counts 1-6, 16, and 17 (charges involving K.P. and H.P.). The court found Harris
guilty in Counts 7, 9, 10, and 11, all of which involved K.P. The state agreed to
merge Count 7 with Count 9 and Count 10 with Count 11, and it elected to proceed
to sentencing on Counts 7 and 10. The court then sentenced Harris to 10 years to
life in prison on Count 10 and 3 years on Count 7, to be served concurrently.
Harris now appeals his conviction in the remaining four counts,
raising two errors for our review: (1) the manifest weight of the evidence did not
support a conviction (concerning all four counts); and (2) insufficient evidence
supported his convictions (concerning Counts 7 and 9).
II. Substantive Facts
K.P. (or “the victim”) was 11 years old at the time of trial. She
testified that Harris moved into her home in October 2016, when she was 9 years
old. She lived with her mother, her aunt, her grandmother, her brothers, and her
sisters. After Harris moved in, K.P.’s aunt and grandmother left and her mother
returned to work outside the home, which made K.P. sad.
K.P. stated that Harris was in charge of the children when her mother
was working. During this time, when K.P. was home with Harris, she sometimes
played video games with Harris in her mother’s bedroom. K.P. testified that one
day in the summer of 2017, while her mother was working, Harris pulled K.P.’s
pants down in the bedroom and “tried to touch” her “between [her] legs, put[ting]
his fingers in my private part.” K.P. then described her private part as the area
below her stomach and above the top of her leg, specifically stating it is the area
she uses when she goes to the bathroom. She explained that Harris put his fingers
on the outside and the inside of her “private part.” When Harris did this, K.P. told
him to “get off of [her].” K.P. stated that when she told him to stop, he did not
always stop. When she was able to move away from him, she ran down the stairs.
K.P. testified that she did not tell her mother what happened right away because
she was afraid Harris might “do something,” because Harris was “muscular” and
“has tattoos.”
K.P. testified that on a “different day” that same summer, Harris
called K.P. into her mother’s bedroom. She listened to him because she was taught
to “respect adults.” K.P. stated that Harris pulled her arm and asked if she wanted
to “play a game,” to which K.P. replied, “no.” She stated that, for approximately
two minutes, he tried to put his “private part in her private part,” but ultimately,
his private part was only on the outside of her private part. She told him to “get
off” of her and she pinched and scratched him, because he was “holding her” and
“forcing down on [her].” K.P. stated that she screamed for help, and her younger
sisters “came on the steps but [were] scared to come up.”
Once again, K.P. testified regarding an incident that occurred during
the summer of 2017, when she was 10 years old, and she and Harris were in her
mother’s bedroom playing a game. This time, according to K.P., Harris “put his
mouth” on her “chest,” which she described as the area below her head and above
her stomach. K.P. testified that Harris pushed her shirt and bra up and began to
“lick” her chest. She stated that it “didn’t feel right” and she told Harris to “stop”
and “get off.” K.P. did not tell her mother.
K.P. also testified regarding an incident in 2018 that occurred while
she was in the basement with Harris. K.P. was cleaning the basement with her
siblings because her younger brother had ripped up some foam and it was all over
the basement. She stated that it was difficult to clean up because it “kept flying
away.” Her siblings decided they were finished and went upstairs, but according to
K.P., Harris told her that she was not finished. After K.P.’s siblings left, Harris
pulled K.P. over to the couch where he was sitting and he put his hands in her
pants and began touching the outside of her “private part.” K.P. told him to “stop,
get off of [her],” and she ran very fast upstairs and hid in the closet. Harris
followed K.P. upstairs and found her in the closet. According to K.P., Harris told
Mother that K.P. ran upstairs to avoid cleaning the basement. K.P. then returned
to the basement with Harris and her mother, where Harris “banged [K.P.’s] head
against the poll and then “start[ed] choking [her].” At this point, K.P. began to cry
and told Mother that Harris had been touching her.
K.P. testified that the next day, while Harris was working, Mother
moved K.P., her siblings, and her grandmother to K.P.’s aunt’s house. The day
after, Mother took K.P. to the hospital for an examination, where K.P. spoke with a
nurse, a social worker, and a police detective. K.P. told them what had happened
with Harris.
Mother testified that she began a relationship with Harris in 2016
and by the end of the year, he began living at her home. In March 2017, she began
working outside the home and the children’s grandmother began watching the
children. In July 2017, the grandmother moved out and Harris began watching the
children while Mother worked. On June 24, 2018, while Mother was sitting on the
couch with her baby, she saw K.P. run upstairs from the basement after all of her
other children had come up, and she saw Harris follow K.P. upstairs. According to
Mother, Harris explained that K.P. had not finished her basement chores.
Thereafter, Harris, Mother, and K.P. returned to the basement, where Mother saw
all the foam on the floor. Mother stated that she “had [her] head turned, [and] was
looking another way” and then saw Harris grab K.P. “by the shirt,” and they were
“tussling.” Mother told Harris to “let her go.” At this point, K.P. was “crying * * *
upset * * * and scared,” which was unusual for K.P. Mother stated that K.P. then
told her what had previously happened and Mother was “shocked” and began to
cry as well. Mother testified that she asked Harris to leave and he refused. Mother
said that she felt threatened, so she waited until Harris left the house the next day
to move her children out of the home. Mother then brought K.P. to the hospital.
While at the hospital, Kimberly Foley, University Hospitals social
worker, was first to meet with K.P. Foley testified that she makes
recommendations based upon what an alleged victim reports to her, and if there
are reports of “skin to skin sexual contact within 72 hours,” she will recommend
the alleged victim receive an examination. Foley testified that based upon what
K.P. told her, Foley referred K.P. to the SANE nurse for an examination. Foley
further testified that after having a conversation with K.P. and meeting with the
medical treatment team, Foley telephoned the Department of Children and Family
Services and the police. Foley included her notes in K.P.’s medical records.
Kathleen Hackett, Pediatric SANE nurse, testified that on June 25,
2018, she examined K.P. Nurse Hackett compiled a report based upon her
examination of K.P., and she testified that during the examination, K.P. had
reported to her that “yesterday” Harris put his hands in her pants and touched her
private parts. K.P. also reported that “last summer” Harris put his mouth on her
chest area. Nurse Hackett asked K.P. to circle on the female diagram the areas she
had been touched, and K.P. circled a picture of the vaginal area and the breast or
chest area. K.P. did not circle any body part on the back side of the diagram or the
mouth.
Nurse Hackett testified that she submitted for analysis the underwear
K.P. was wearing at the time of her examination, but she did not have the
underwear that K.P. was wearing during the alleged incident the previous night.
Nurse Hackett explained that it is possible to collect “touch DNA” on the
underwear K.P. was wearing the following day because “skin cells still slough off”
and “if there’s any DNA [it] could still fall onto those underpants, especially for
kids.”
Hristina Lekova, the DNA analyst with the medical examiner’s office,
analyzed the DNA collected from the inside crotch area of K.P.’s underpants that
were submitted by Nurse Hackett. Lekova observed a mixture of unknown male
DNA profiles from this sample. Lekova testified that, due to the location of the
DNA and the amount of DNA collected, it was likely that the DNA was actual
“touch DNA” and not “transfer DNA,” which is a secondary source.
Detective Tusing interviewed K.P. and her mother. Based upon the
interviews, the detective arrested Harris.
III. Sufficient Evidence
We address Harris’s second assignment of error first. In this
assignment of error, Harris contends that there is insufficient evidence to support
his convictions for gross sexual imposition in Count 7 and, consequently,
kidnapping in Count 9.
When assessing a challenge of sufficiency of the evidence, a
reviewing court examines the evidence admitted at trial and determines 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, 574 N.E.2d
492 (1991), paragraph two of the syllabus. “The 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. A reviewing court is not to assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a
defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380,
390, 678 N.E.2d 541 (1997).
In Count 7, Harris was charged with gross sexual imposition in
violation of R.C. 2907.05(A)(4), which provides that
[n]o 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 * * * [t]he 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.
“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). Count 7 specifically charges Harris with having
sexual contact with the victim by touching her breasts with his mouth.
Harris claims that the state failed to demonstrate “sexual contact.”
In support, he argues that the victim only testified that Harris touched her chest,
not her breasts, and the nurse testified that the victim did not have fully developed
breasts but rather “breast buds starting and some development of breast tissue.”
Harris contends, therefore, that even if the testimony is believed, the contact to
which the victim testified is not the “touching of an erogenous zone.”
For purposes of convicting a defendant of gross sexual imposition in
violation of R.C. 2907.05(A), the female breast is “per se [an] erogenous zone * * *
and the state is relieved of the obligation to prove that [the breast is], in fact, [an]
erogenous zone[].” State v. Kleyman, 8th Dist. Cuyahoga No. 90817,
2008-Ohio-6656, ¶ 26, citing State v. Ackley, 120 Ohio Misc.2d 60,
2002-Ohio-6002, 778 N.E.2d 676, ¶ 9 (C.P.). And a female’s “chest area” or the
area “between a female’s breasts” is within the erogenous zone contemplated by
the statute. State v. Harrel, 5th Dist. Delaware No. 99CAA03013, 2000 Ohio App.
LEXIS 38, 7 (Jan. 3, 2000); see also State v. Patel, 2d Dist. Greene No. 2010-CA-
77, 2011-Ohio-6329, ¶ 64 (rejecting the defendant’s attempt to distinguish between
the victim’s “breast” from her “chest” where the victim testified the defendant
“kissed her ‘chest’” and finding the defendant’s act of kissing the victim’s “chest”
was sufficient to establish the contact necessary for a sexual imposition
conviction).
Moreover, Harris was charged under R.C. 2907.05(A)(4) with the
gross sexual imposition of a person less than 13 years of age. This section of the
statute expressly addresses conduct perpetrated upon prepubescent and pubescent
children and was arguably created to provide enhanced protection to children. It is
entirely possible, and perhaps even likely, that a victim of this age — for which the
statute was designed to protect — will have not yet developed breasts. In fact, the
nurse testified as such, stating that the victim was beginning to develop breast
tissue. It is therefore unreasonable to find that a child’s undeveloped breast, or her
chest, is not an area protected by statute, and we reject Harris’s argument that
because the victim “did not technically have breasts,” he could not have been
convicted of touching an erogenous zone.
In light of the foregoing, we find the state presented evidence of
sexual contact, namely that Harris touched the victim’s erogenous zone, sufficient
to support a conviction for gross sexual imposition in violation of
R.C. 2907.05(A)(4) where the young victim testified that Harris licked her chest.
Harris’s second assignment is overruled.
IV. Manifest Weight of the Evidence
In his first assignment of error, Harris contends that the convictions
are not supported by the manifest weight of the evidence. In support, he argues
that the trial court lost its way because it had “no method to verify the truth of” the
victim’s statements, no physical evidence corroborated the victim’s statements,
and the victim’s testimony was “riddled with inconsistency.”
A manifest weight challenge questions whether the state has met its
burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. This
challenge raises a factual issue:
“The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, 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. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the
conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). The use of the word “manifest” in the standard of review “means that
we can only reverse the trier of fact if its decision is very plainly or obviously
contrary to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577,
2018-Ohio-5031, ¶ 20.
Here, in support of the allegations in Count 7, K.P. testified that
Harris licked her chest in the summer of 2017. In her testimony, she provided
specific details surrounding the incident, including that Harris pushed her shirt
and bra up in order to “lick” her chest, that it “didn’t feel right,” and that she told
Harris to “stop” and “get off.” Regarding Count 10, K.P. testified that in June 2018,
Harris placed his hands in her pants and began touching the outside of her “private
part.” K.P. explained that Harris specifically called K.P. back down to the
basement after her siblings left and they were therefore alone in the basement
when he pulled her over to the couch and began touching her. She also testified
that she told him to stop and she attempted to get away from him by running
upstairs and hiding in the closet.
Although, as Harris argues, there is no eyewitness or any testimony
supporting K.P.’s allegations, it is well settled that a sexual assault conviction may
rest solely on the victim’s testimony, if believed, and there is no requirement that a
victim’s testimony be corroborated. State v. Castellon, 8th Dist. Cuyahoga
No. 106813, 2019-Ohio-628, ¶ 41; State v. Magwood, 8th Dist. Cuyahoga No.
105885, 2018-Ohio-1634, ¶ 32; State v. Patterson, 8th Dist. Cuyahoga No. 100086,
2014-Ohio-1621, ¶ 40. Moreover, K.P.’s testimony concerning Harris’s conduct in
licking her chest and in touching her private parts under her pants was consistent
with what she reported to the SANE nurse.
Harris also contends that there is no physical evidence supporting
K.P.’s testimony. A lack of physical evidence, however, “does not require reversal
since a victim’s testimony, if believed, is sufficient to obtain and sustain a rape
conviction.” State v. Butts, 8th Dist. Cuyahoga No. 55549, 1989 Ohio App. LEXIS
2856, 4 (July 20, 1989); State v. Timmons, 10th Dist. Franklin Nos. 13AP-1038
and 13AP-1039, 2014-Ohio-3520, ¶ 23 (stating that physical or forensic evidence is
not required to prove rape).
Finally, Harris claims that K.P.’s testimony was “riddled with
inconsistency.” In support, he argues the following: while K.P. learned of stranger
danger at school, she did not disclose her allegations until getting into trouble for
not cleaning the basement; K.P. reported to the nurse that Harris had touched her
buttocks but she told the police that he did not; K.P. testified that Harris choked
her in the basement, but Mother’s testimony did not support K.P.’s account of the
incident; and K.P. testified that Harris made her watch porn but that she “actually
* * * didn’t watch it, she looked away from the porn.”
A conviction is not against the manifest weight of the evidence
“solely because the [factfinder] heard inconsistent or contradictory testimony.”
State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 72, citing State v.
Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v.
Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11; see also State
v. Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (“‘While the
jury 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 sufficiency of the evidence.’”), quoting State v. Nivens, 10th
Dist. Franklin No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, 7 (May 28, 1996).
The factfinder “‘may take into consideration a witness’s conflicting testimony in
determining her credibility and the persuasiveness of her account by either
discounting or resolving the discrepancies.’” State v. Taylor, 10th Dist. Franklin
No. 14AP-254, 2015-Ohio-2490, ¶ 34, quoting State v. Rankin, 10th Dist. Franklin
No. 10AP-1118, 2011-Ohio-5131, ¶ 29.
In this case, we do not find the factfinder lost his way in resolving the
alleged “inconsistencies” noted above. Nor do we find these alleged inconsistencies
rendered Harris’s conviction against the manifest weight of the evidence. K.P.
testified that she was afraid of Harris because he was muscular and had tattoos;
she testified that she tried to tell the detective everything she remembered; and the
fact that K.P. looked away from the porn Harris showed K.P. does not create an
inconsistency in her testimony that Harris made her watch porn. Moreover,
although Mother did not testify that she too saw Harris choke K.P., Mother
testified that her head was turned before she saw Harris grab K.P. by the shirt and
they began to “tussle.” Mother also testified that K.P. was crying and upset, which
was unusual for K.P., and Mother told Harris to “let her go.” Mother’s testimony
does not contradict K.P.’s testimony in this regard.
Having reviewed the evidence, we cannot say the factfinder lost his
way in resolving any conflicts in the evidence and created a manifest miscarriage of
justice such that Harris’s conviction in Counts 7, 9, 10, and 11 must be reversed and
a new trial ordered.
Harris’s first assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
____________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR