State v. Jarvis , 2011 Ohio 4491 ( 2011 )

[Cite as State v. Jarvis, 2011-Ohio-4491.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO
Appellee
v.
TIMOTHY WADE JARVIS
Appellant
C.A. No. 25481
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. CR 09 08 2501
DECISION AND JOURNAL ENTRY
Dated: September 7, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Timothy Jarvis, appeals from his conviction in the Summit
Country Court of Common Pleas. This Court affirms.
I
{¶2} On the evening of August 7, 2009, Kelli Lipovsky left her son with her upstairs
neighbor and invited a friend, Josh Gidley, to her apartment. Lipovsky and Gidley purchased a
bottle of tequila and drank most of the bottle together. The two then walked to a nearby bar and
drank more alcohol. Feeling nauseous, Gidley took Lipovsky’s keys and returned to her
apartment while Lipovsky stayed at the bar. Sometime after midnight, Lipovsky decided that she
2
wanted to return home and looked for someone to walk her there. She saw Jarvis, a
neighborhood acquaintance she had known for a considerable time, and asked him to escort her.
Jarvis assented and the two left the bar shortly thereafter.
{¶3} When Lipovsky and Jarvis reached Lipovsky’s home, they observed Gidley
resting in a chair on the porch. Lipovsky left Gidley on the porch and went to retrieve her son.
Because her son was sleeping and she was too intoxicated to carry him, Lipovsky asked her
neighbor’s brother to carry him downstairs and place him in Lipovsky’s bed. Lipovsky got into
bed with her son and began to fall asleep on her side. She soon startled, however, as she felt
Jarvis next to her, rubbing her side and breathing in her ear. Lipovsky stood up, instructed Jarvis
to leave, followed him out, and locked the door behind him. Gidley, still sitting on the porch,
saw Jarvis come outside. According to Gidley, the door slammed behind Jarvis and he appeared
upset. He then saw Jarvis walk over to Lipovsky’s front window, push it open, and crawl
through it.
{¶4} Lipovsky, still fully clothed, fell asleep in bed with her son after removing Jarvis
from her home. She awoke the next morning on her living room couch, naked below the waist.
Fearing that she had been assaulted, Lipovsky went to the hospital. DNA testing confirmed and
Jarvis later admitted that he had sexual intercourse with Lipovsky. According to Jarvis, the
intercourse was consensual. Lipovsky did not recall the events that occurred after she fell asleep
with her son.
{¶5} On August 26, 2009, Jarvis was indicted on one count of aggravated burglary, in
violation of R.C. 2911.11(A)(1), and one count of sexual battery, in violation of R.C.
2907.03(A)(2)/(3). A jury trial commenced on February 22, 2010. The jury returned a guilty
verdict on Jarvis’ sexual battery count, but determined that he was not guilty of aggravated
3
burglary. The court sentenced Jarvis to five years in prison and classified him as a Tier III sex
offender.
{¶6} Jarvis now appeals from his conviction and raises two assignments of error for
our review.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
FOR A CRIMINAL RULE 29 MOTION TO DISMISS BECAUSE THERE
WAS INSUFFIENT (sic) EVIDENCE PRESENTED BY THE APPELLEE TO
CONVICTION (sic) THE APPELLANT OF SEXUAL BATTERY.”
{¶7} In his first assignment of error, Jarvis argues that his sexual battery conviction is
based on insufficient evidence. Specifically, he argues that the State failed to prove that he knew
Lipovsky was impaired to the extent that she could not consent to sexual intercourse. We
disagree.
{¶8} In order to determine whether the evidence before the trial court was sufficient to
sustain a conviction, this Court must review the evidence in a light most favorable to the
prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 274. Furthermore:
“An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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. at paragraph two of the syllabus; see,
also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386.
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
{¶9} R.C. 2907.03 provides, in relevant part, as follows:
“No person shall engage in sexual conduct with another, not the spouse of the
offender, when *** [t]he offender knows that the other person’s ability to
appraise the nature of or control the other person’s own conduct is substantially
4
impaired[; or] *** [t]he offender knows that the other person submits because the
other person is unaware that the act is being committed.” R.C. 2907.03(A)(2)-(3).
“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has knowledge
of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶10} Jarvis does not dispute that he engaged in sexual intercourse with Lipovsky. His
only argument is that the State failed to offer any evidence, demonstrating that he knew
Lipovsky was substantially impaired or unaware of her behavior.
{¶11} Even if Jarvis did not personally observe Lipovsky consume large amounts of
alcohol, he did walk her home from a bar close to 2 a.m. There also was testimony that
Lipovsky was 5’7” in height, weighed 138 pounds, and drank a significant amount of alcohol in
a relatively short period. According to Lipovsky and Gidley, they split most of a bottle of tequila
before they left the apartment and continued to drink once they arrived at a nearby bar. Lipovsky
testified that she was intoxicated to the extent that she could not carry her son downstairs when
she came home. Both her upstairs neighbor, Karen Nixon, and Nixon’s brother, Kenneth,
testified that Lipovsky appeared intoxicated when she came to Nixon’s apartment for her son.
Kenneth confirmed that he carried Lipovsky’s son downstairs because he “knew she was too
inebriated to do it herself.” Lipovsky also testified that she removed Jarvis from her home and
did not remember anything that happened after she fell asleep with her son. Viewing the
evidence in a light most favorable to the prosecution, the State presented sufficient evidence that
Jarvis knew Lipovsky was substantially impaired and/or unaware of her conduct at the time he
had sexual intercourse with her. See State v. Hill, 9th Dist. No. 09CA009709, 2011-Ohio-1154,
at ¶14-20 (upholding sexual battery conviction where victim fell asleep after drinking, did not
remember having sexual intercourse with the defendant, and the defendant claimed the act was
5
consensual); State v. Mathers, 9th Dist. No. 07CA009242, 2008-Ohio-2902, at ¶13-24
(upholding sexual battery conviction where victim passed out, awoke to find the defendant
digitally penetrating her, and the defendant argued the victim had consented). Jarvis’ first
assignment of error is overruled.
Assignment of Error Number Two
“THE APPELLANT’S CONVICTION OF SEXUALLY (sic) BATTERY IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶12} In his second assignment of error, Jarvis argues that his conviction is against the
manifest weight of the evidence. We disagree.
{¶13} In determining whether a conviction is against the manifest weight of the
evidence an appellate court:
“[M]ust review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340.
A weight of the evidence challenge indicates that a greater amount of credible evidence supports
one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when
reversing a conviction on the basis that the conviction was against the manifest weight of the
evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s
resolution of the conflicting testimony. Id. Therefore, this Court’s “discretionary power to grant
a new trial should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175; see, also, Otten, 33
Ohio App.3d at 340.
{¶14} Jarvis argues that his conviction is against the manifest weight of the evidence
because Lipovsky’s claim that she could remember “multiple occurrences on the evening and
6
issue, but *** [not] a sexual encounter with [him] is unbelievable[.]” The record reflects,
however, that the “multiple occurrences” Lipovsky remembered took place before she fell asleep
for the night. Moreover, there was testimony that Lipovsky removed Jarvis from her apartment
and locked him out. Gidley testified that he saw Jarvis climb through Lipovsky’s window to
gain entry after Lipovsky locked him out. Jarvis has not attempted to explain why he would
need to gain entry through Lipovsky’s window if she, in fact, wanted him in her apartment and
wanted to engage in sexual intercourse with him. The ultimate issue was one of credibility for
the jury to consider, and the jury chose to believe Lipovsky’s version of the events. Hill at ¶20,
quoting State v. Jackson (1993), 86 Ohio App.3d 29, 32. Jarvis’ argument that his conviction is
against the manifest weight of the evidence lacks merit. As such, his second assignment of error
is overruled.
III
{¶15} Jarvis’ assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
7
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR
APPEARANCES:
JANA DELOACH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.