State v. Ochieng , 2024 Ohio 4993 ( 2024 )

[Cite as State v. Ochieng, 2024-Ohio-4993.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2023 CA 00056
DAVIS OCHIENG
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Municipal
Court, Case No. 21-CRB-1257
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 16, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH M. SABO JAMES L. DYE
City of Lancaster Law Director's Office P.O. Box 161
136 West Main Street Pickerington, Ohio 43147
P.O. Box 1008
Lancaster, Ohio 43130
Fairfield County, Case No. 2023 CA 00056 2
Hoffman, J.
{¶1} Defendant-appellant Davis Ochieng appeals the judgment entered by the
Fairfield County Municipal Court convicting him following bench trial of seven counts of
public indecency (R.C. 2907.09), one count of disorderly conduct (R.C. 2917.11(B)(2)),
and one count of sexual imposition (R. C. 2907.06), and sentencing him to 210 days
incarceration with 131 days suspended, and placing him on community control for three
years. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 4, 2021, the victim and her twelve-year-old son went to Burger
King after her son’s football game. Appellant began following the victim in the parking lot.
Appellant said, “Damn momma,” to the victim. Trial Tr. 13. The victim grabbed her son,
placed him in front of her, and began moving him toward the restaurant door. Appellant
grabbed the victim’s buttock and said, “I think I need Seven-Up because your ass is
popping.” Trial Tr. 13. Appellant then split his hand over the victim’s thigh, and attempted
to grope her crotch. The victim grabbed Appellant’s hand and told him if he touched her
again, she was going to “whoop his ass.” Trial Tr. 14. Appellant told the victim when she
came back to the parking lot, he was going to rape her.
{¶3} The victim went inside the restaurant with her son, and asked the staff to
call the police. Appellant followed, yelling at her, her son, and the restaurant employees.
Appellant was removed from the restaurant, the door was locked, and employees called
the police.
{¶4} After he was removed from the restaurant, Appellant exposed his penis,
shaking it at people in the restaurant. Appellant urinated on the back driver’s side tire of
the victim’s vehicle, and rubbed his penis on the front bumper.
Fairfield County, Case No. 2023 CA 00056 3
{¶5} Appellant was charged with seven counts of public indecency, one count of
disorderly conduct, and one count of sexual imposition. Following bench trial in the
Fairfield County Municipal Court, he was convicted of all charges and sentenced to an
aggregate term of incarceration of 210 days, with 131 days suspended. He was given
19 days of jail time credit, for an actual term of 60 days incarceration. He was placed on
community control for three years. It is from the March 2, 2022 judgment of the trial court
Appellant prosecutes his appeal, assigning as error:
THE TRIAL COURT ERRED AND THEREBY DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO
CONSTITUTION BY FINDING APPELLANT GUILTY, AS THE VERDICT
FOR THE CHARGE OF SEXUAL IMPOSITION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} Appellant argues his conviction of sexual imposition was against the
manifest weight of the evidence because there was not sufficient corroboration of the
victim’s testimony Appellant grabbed her buttock.
{¶7} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
Fairfield County, Case No. 2023 CA 00056 4
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, 1997-Ohio-52, quoting State v. Martin, 20 Ohio
App. 3d 172, 175 (1st Dist. 1983).
{¶8} Appellant was convicted of sexual imposition in violation of R.C. 2907.06,
which provides in pertinent part:
(A) No person shall have sexual contact with another; cause another
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.
(B) No person shall be convicted of a violation of this section solely
upon the victim's testimony unsupported by other evidence.
{¶9} The victim’s son told police at the scene he did not see Appellant touch his
mother’s buttock, but heard her yell at Appellant. At trial, the victim’s son testified he saw
Appellant touch his mom’s buttock with his hand. Trial Tr. 53, 57, 60-61, 62. An employee
of Burger King testified he saw Appellant grab the victim’s buttock with his hand. Even if
the victim’s son’s testimony he saw Appellant put his hand on his mom’s buttock is not
considered because of its inconsistency with his prior statement, the employee’s
testimony provides eyewitness corroboration of the sexual imposition.
{¶10} Further, “[t]he corroborating evidence necessary to satisfy R.C. 2907.06(B)
need not be independently sufficient to convict the accused, and it need not go to every
Fairfield County, Case No. 2023 CA 00056 5
essential element of the crime charged. Slight circumstances or evidence which tends to
support the victim's testimony is satisfactory.” State v. Economo, 76 Ohio St.3d 56, 60,
(1996). The State presented other evidence which tends to support the victim’s
testimony. The victim’s son told police he heard his mother yell at Appellant to get off of
her. A video taken from inside the restaurant showed hostile interaction between
Appellant, the victim, and restaurant employees, after which Appellant was removed from
the store. The victim immediately asked restaurant employees to call the police, and she
reported the touching. The victim’s son and a Burger King employee both heard Appellant
make sexual comments to the victim. All of this evidence tends to corroborate the victim’s
testimony.
{¶11} We find the judgment convicting Appellant of sexual imposition is not
against the manifest weight of the evidence. The assignment of error is overruled. The
judgment of the Fairfield County Municipal Court is affirmed.
By: Hoffman, J.
Delaney, P.J. and
King, J. concur