State v. Wareham , 2013 Ohio 3191 ( 2013 )

[Cite as State v. Wareham, 2013-Ohio-3191.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-12-11
v.
LOVELL C. WAREHAM, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 12-CR-0048
Judgment Affirmed
Date of Decision: July 22, 2013
APPEARANCES:
Shane M. Leuthold for Appellant
Ryan M. Hoovler for Appellee
Case No. 3-12-11
ROGERS, J.
{¶1} Defendant-Appellant, Lovell Wareham, appeals the judgment of the
Court of Common Pleas of Crawford County convicting him of unlawful sexual
conduct with a minor and sentencing him to a 14-month prison term. On appeal,
Wareham asserts that his conviction was against the manifest weight of the
evidence. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} On March 12, 2012, the Crawford County Grand Jury indicted
Wareham with one count of unlawful sexual contact with a minor in violation of
R.C. 2907.04(A), a felony of the fourth degree. The indictment arose from an
alleged sexual relationship between Wareham, who was 20 years old, and C.T., a
13-year old female. The relationship purportedly lasted between January 3, 2012
and February 21, 2012.
{¶3} This matter went to trial on August 2, 2012. At trial, Officer Thomas
Walker of the Bucyrus Police Department was the first to testify. He indicated
that on February 21, 2012, he was dispatched to the residence at 1118 Willard
Street, where there were reports of an altercation. While Officer Walker was en
route to the house, the dispatcher informed him that Wareham had been involved
and was walking southbound away from the residence. As Officer Walker got
closer to the residence, he spotted Wareham walking as the dispatcher had said
and stopped his cruiser. According to Officer Walker, Wareham then voluntarily
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agreed to get into the cruiser because it was raining and he needed a ride. After
getting into the cruiser, Officer Walker drove Wareham back to the residence.
{¶4} Officer Walker testified that he talked to C.T.’s mother, Brandy Shaw,
when he arrived on the scene:
Ms. Shaw told me that, uhm, she had found that Mr. Wareham was
20-years old and her daughter admitted to having sex with Mr.
Wareham. Uhm, she initially stated that the fight – or she was
misled, that he had told her that his name was Caleb and he was 16-
years of age.
And that he had come to the house wanting to make contact with her
and she refused to let allow [sic] him in the house. And at some
point, uhm, [C.T.]’s brother showed up and a physical altercation
ensued between the two of them. Trial Tr., p. 65.
Upon learning this, Officer Walker commenced his investigation by confronting
Wareham with Shaw’s allegations. Officer Walker described this initial
confrontation as follows:
Q: Okay. And did [Wareham] say anything to you at that time?
A: At the time when he was getting out of the car, he said I
shouldn’t – pardon my expression for using profanity – he said, “I
should have not fucked with that girl. I should have left her alone.”
Trial Tr., p. 65-66.
{¶5} After this initial confrontation, Wareham was taken to an interrogation
room, where Officer Walker performed a pat-down search of him. Officer Walker
testified that he found five condoms on Wareham’s person. Once the search was
over, Officer Walker stated that “Mr. Wareham had made the comment that, ‘He
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always practiced safer sex with [C.T.]. He always used a condom.’”1 Trial Tr., p.
66. Subsequently, Officer Walker testified that he Mirandized Wareham, who said
that he did not want to make any further statements without an attorney present.
{¶6} On cross-examination, Officer Walker discussed C.T.’s statements to
Wareham’s family regarding her age:
Q: All right. Now, did it not come out in the investigation that
[C.T.] was telling [Wareham]’s family she was 17?
A: She never said that. During my videotape interview with her
she said that she emphatically told him that she was 13-years old and
that he was fully aware of it. Trial Tr., p. 70.
Officer Walker acknowledged that there was no recording of Wareham’s
statements described above. He also admitted that he did not attempt to find
physical evidence of a sexual relationship between Wareham and C.T.
{¶7} Officer Walker indicated that during his interview of C.T., she
recalled losing her virginity to Wareham on January 3, 2012. But, Officer Walker
also indicated that C.T. could not recall the exact location of this first sexual
encounter. The following exchange occurred regarding this apparent dichotomy:
Q: Does that seem odd to you?
A: No, sir.
Q: Would a woman know exactly the day and time of this but not
know where?
1
On July 17, 2012, Wareham moved to suppress his pre-Miranda statements. The trial court denied the
motion on July 31, 2012 and he has not challenged the validity of this decision on appeal.
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A: To be quite honest with you, I didn’t ask her where she lost her
virginity. * * * She indicated that they had sex * * * between * * *
January 3rd and February 21st. And, uhm, she said it was between
the two houses [C.T.’s house and Wareham’s house] and
miscellaneous other places. Trial Tr., p. 77-78.
{¶8} C.T. then testified. She said that she was 13 years old between
January 3, 2012 and February 21, 2012 and that during that time frame, she had
sex with Wareham. C.T. also indicated that both she and Shaw told Wareham
how old she was. C.T. further testified that all of her sexual encounters with
Wareham occurred in either his room at his house or in her room at her house.
She said that when Wareham introduced her to his family, he said that she was 17
years old, and that when she introduced Wareham to Shaw, they said that he was
16 years old.
{¶9} On cross-examination, C.T. denied that she told police that she could
not recall the location where she and Wareham first had sexual relations. She also
acknowledged that the police could have recovered used condoms had they sought
them. Finally, C.T. admitted that she looks older than she is.
{¶10} Shaw was the next witness to take the stand. She testified that she
“specifically said [to Wareham that] my daughter is 13-years old, don’t have any
ideas.” Trial Tr., p. 103. When Wareham was introduced to her, C.T. said his
name was “Caleb” and both C.T. and Wareham said he was 16 years old. Shaw
testified that in early February she learned Wareham was actually 20 years old,
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which led her to again remind him that C.T. was 13 years old and that they could
not be in a romantic relationship. Shaw further testified that during the altercation
on February 21, 2012, Wareham said to her “[y]ou better be glad it’s me with my
dick inside [C.T.] than [S.W., another boy alleged to have romantic ties to C.T.].”
Trial Tr., p. 107. On cross-examination, Shaw said that while she believed C.T.’s
allegations, she never noticed C.T. and Wareham having sex in the house.
{¶11} After Shaw’s testimony, the State rested. Wareham’s case-in-chief
relied on the testimony of his half-sister, Rikki Eggleston (“Rikki”) and his ex-
stepfather, Fred Eggleston (“Fred”), as well as his own. At the time of the alleged
sexual relations, Wareham lived in Fred’s house with Rikki. Rikki testified as
follows regarding the likelihood that Wareham had sex in the house with C.T.:
Q: Now, [C.T.] is saying that her [sic] and [Wareham] were going
at it at your house. I think you know what I mean.
A: Yes. And no, they was [sic] not because they had to keep the
door open. When [C.T.] was at my house, the door to [Wareham]’s
room was open 24/7. I was – I used to go in there and just bug
[Wareham] just to make him mad. He’s my brother.
Q: Well, in other words, the question, the real question is, are you
aware of any time when they could’ve done this when you and Fred
were not around?
A: No, because [Wareham] did not have a house key. And when
[Wareham] was at the house with [C.T.] or any other woman, the
house – the doors were always open. My dad always told him he
was not having sex in the house. Trial Tr., p. 128.
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{¶12} Fred likewise testified to the open-door policy in his house. Based
on this policy, Fred said that it was “impossib[le]” for Wareham and C.T. to have
sex in his house.” Trial Tr., p. 133. He said that from January 2012 to February
2012, Wareham did not have a house key because “sometimes [Wareham] isn’t
the trusting [sic] person.” Trial Tr., p. 136. On cross-examination, however, Fred
indicated that at some point, he did give Wareham a house key and that that could
have occurred in December 2011, January 2012, or February 2012.
{¶13} During his testimony, Wareham denied having sex with C.T. and he
said that there was never a time where he could because whenever the two were
together, other people were in their houses. Wareham also denied confessing to
Officer Walker and he testified that he had condoms on his person because he had
plans to find a woman at a local bar later that evening.
{¶14} Wareham stated that he believed C.T. was 17 years old. According
to Wareham, he did not learn of C.T.’s actual age until February 21, 2012, when
another friend told him about her age. After learning this, he said that he decided
to end their relationship.
{¶15} On cross-examination, the following exchange occurred regarding
the February 21, 2012 incident:
Q: So the reason you went over [to C.T.’s house] was to tell [C.T.]
that you lied to me, you’re only 13 yet that never got out of your
mouth?
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A: No, it never got out of my mouth. I never got a chance, like I
said. Trial Tr., p. 151.
Wareham also admitted that he has a previous conviction for theft. Further, he
admitted to misleading Shaw about his age because he was worried that she would
not let him see C.T.
{¶16} The jury returned a guilty verdict on August 2, 2012. The trial court
subsequently sentenced Wareham to 14 months in prison on October 17, 2012.
{¶17} Wareham filed this timely appeal, presenting the following
assignment of error for our review.
Assignment of Error
THE JURY’S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶18} In his sole assignment of error, Wareham argues that his conviction
was against the manifest weight of the evidence. After our review of the record,
we disagree.
Manifest Weight of the Evidence Standard
{¶19} When an appellate court analyzes a conviction under the manifest
weight standard, it “sits as the thirteenth juror.” State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), superseded by constitutional amendment on other grounds as
stated in State v. Smith, 80 Ohio St.3d 83 (1997). Accordingly, it must review the
entire record, weigh all of the evidence and its reasonable inferences, consider the
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credibility of the witnesses, and determine whether the fact finder “clearly lost its
way” in resolving evidentiary conflicts and “created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1989). When applying the manifest
weight standard, a reviewing court should only reverse a trial court’s judgment “in
exceptional case[s]” when the evidence “weighs heavily against the conviction.”
Id. at paragraph three of the syllabus.
R.C. 2907.04(A)
{¶20} Wareham was charged with violating R.C. 2907.04(A). This statute
provides as follows:
No 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 that 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. R.C. 2907.04(A).
For the purposes of this statute, sexual conduct is relevantly defined as “vaginal
intercourse between a male and a female.” R.C. 2907.01(A). R.C. 2907.04(A)
only provides for criminal liability when the offender knows that the victim was
between 13 and 16 years of age or is reckless as to the victim’s age. Under R.C.
2901.22(B), a person is deemed to have “knowledge of circumstances when he is
aware that such circumstances probably exist.” As to recklessness, the Revised
Code provides that “[a] person is reckless with respect to circumstances, when,
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with heedless indifference to the consequences, he perversely disregards a known
risk that such circumstances are likely to exist.” R.C. 2901.22(C).
Pertinent Evidence Offered at Trial
{¶21} C.T. testified that she and Wareham had vaginal intercourse between
January 3, 2012 and February 21, 2012. Further, she said that at that time she was
13 years old and Wareham was 20 years old. C.T.’s allegations were corroborated
in both Officer Walker’s and Shaw’s testimonies. Officer Walker testified that
C.T. made the same allegations in her police statement and that Wareham admitted
to using condoms when he had sexual relations with C.T. Meanwhile, Shaw
testified that during the incident on February 21, 2012, Wareham told her, “‘You
better be glad it’s me with my dick inside [C.T.] than [S.W.].’” Trial Tr., p. 107.
{¶22} Additionally, there was significant evidence offered to show that
Wareham knew C.T. was 13 years old at the time that they were engaging in
sexual relations. C.T. herself testified that Wareham knew about her age, while
Shaw testified that she affirmatively told him about C.T.’s age on two occasions.
Further, Wareham admitted that he lied to Shaw about his age and name so that
she would not stop him from dating C.T.
Wareham’s Arguments
{¶23} Wareham’s assignment of error essentially presents four arguments:
(1) Officer Walker’s testimony was incredible; (2) C.T.’s testimony was
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incredible; (3) Officer Walker’s and C.T.’s testimonies contradict his own; and (4)
the State offered no physical evidence that Wareham had sexual intercourse with
C.T. We do not find that any of these arguments support a finding that
Wareham’s conviction was against the manifest weight of the evidence.
{¶24} In regard to Wareham’s arguments about the credibility of Officer
Walker and C.T., we note that when assessing the manifest weight of the evidence,
“[i]t is well established that the * * * credibility of the witnesses [is] primarily a
matter for the trier of fact.” State v. Clark, 101 Ohio App.3d 389, 409 (8th Dist.
1995). Further, the mere existence of inconsistencies in the testimony of different
witnesses does not mandate that an appellate court reverse a conviction on
manifest weight grounds. See State v. Humberto, 196 Ohio App.3d 230, 2011-
Ohio-3080, ¶ 11 (10th Dist.) (“The jury may take note of any inconsistencies and
resolve them accordingly, believing all, part, or none of a witness’s testimony.”);
State v. Westerfield, 10th Dist. No. 07AP-1072, 2008-Ohio-4458, ¶ 38 (rejecting
manifest weight argument even though inconsistencies existed among the
witnesses’ testimonies). Although there are some inconsistencies in the testimony
offered by Officer Walker and C.T., they are not so overwhelming as to preclude
rational jurors from finding that their testimonies included credible information.
{¶25} Additionally, as to Wareham’s argument about the conflict between
his testimony and that of other witnesses, we note that jurors are entitled to believe
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the testimony offered by the State’s witnesses. See State v. Bates, 12th Dist. No.
CA2009-06-174, 2010-Ohio-1723, ¶ 11 (“It is well-established that when
conflicting evidence is presented at trial, a conviction is not against the manifest
weight of the evidence simply because the jury believed the prosecution
testimony.”). As such, the jurors were entitled to believe C.T.’s version of events
over Wareham’s. The jury was also at liberty to consider Fred’s testimony that
Wareham was not a trustworthy person and Wareham’s admission that he was
previously convicted for a theft offense.
{¶26} As to Wareham’s arguments regarding the lack of physical evidence,
we note that there is no requirement for such evidence to prove an unlawful sexual
contact with a minor charge. See State v. Sauto, 9th Dist. No. 26404, 2013-Ohio-
1320, ¶ 45-47 (rejecting manifest weight of the evidence challenge of unlawful
sexual contact with a minor conviction that was partially predicated on lack of
physical evidence); State v. Jones, 12th Dist. No. CA2012-03-049, 2013-Ohio-
150, ¶ 16-22 (same); State v. Carter, 8th Dist. No. 94967, 2011-Ohio-2658, ¶ 19
(same); see also State v. J.E.C., Jr., 10th Dist. No. 12AP-584, 2013-Ohio-1909, ¶
40 (rejecting manifest weight challenge of sex offense conviction because “[t]here
is no requirement that a defendant’s conviction for a sex offense be based on
physical evidence”). Since C.T. testified that she and Wareham had vaginal
intercourse and there is corroborating evidence in the record, “we fail to find the
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lack of physical evidence is a significant factor in weighing the evidence.” State v.
West, 10th Dist. No. 06AP-11, 2006-Ohio-6259, ¶ 18. Consequently, we find that
the failure of the State to offer physical evidence does not render Wareham’s
conviction against the manifest weight of the evidence.
{¶27} In sum, the State offered significant evidence to show each element
required for a conviction under R.C. 2907.04(A). Further, Wareham’s arguments
fail to establish that his conviction was against the manifest weight of the
evidence. As such, we find no error in Wareham’s conviction.
{¶28} Accordingly, we overrule Wareham’s sole assignment of error.
{¶29} Having found no error prejudicial to Wareham in the particulars
assigned and argued, we affirm the trial court’s judgment.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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