State v. Moore , 2016 Ohio 2836 ( 2016 )

[Cite as State v. Moore, 2016-Ohio-2836.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103123
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
AARON MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587916-A
BEFORE: Blackmon, J., Jones, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 5, 2016
-i-
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue
Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Aleksandra Chojnacki
Kristin Karkutt
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Aaron Moore appeals his convictions for gross sexual imposition
and sexual battery and assigns the following three errors for our review.
I. The state failed to present sufficient evidence to sustain a conviction
against appellant.
II. Appellant’s convictions are against the manifest weight of the evidence.
III. The trial court erred when it allowed the State of Ohio to amend the
dates in the indictment in the middle of the trial which violated appellant’s
rights under Article I, Section 10 of the Ohio Constitution and Fourteenth
Amendment to the United States Constitution.
{¶2} Having reviewed the record and pertinent law, we affirm Moore’s
convictions. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Moore in a multicount
indictment that included the following counts: three counts of gross sexual imposition,
three counts of rape, three counts of sexual battery, and three counts of kidnapping.
During the trial, the state dismissed two counts of gross sexual imposition, one count of
rape, and one count of sexual battery.
{¶4} The victim H.L. testified that when he was in seventh and eighth grades
Moore, who was his mother’s boyfriend and eventually Moore’s stepfather, sexually
abused him. The victim was in the seventh and eighth grades in the fall of 2009 until the
spring of 2011. He stated that he would have movie nights with Moore, which involved
him sleeping with Moore in his mother’s and Moore’s bed with Moore, while his mother
and sister slept on the couch in the living room. While watching the movies, Moore
would put his hands inside the victim’s shorts and touch the victim’s penis. Over time,
the touching evolved into Moore removing the victim’s shorts and engaging in anal
intercourse with him. According to the victim, afterwards, Moore would apologize.
The victim did not tell his mother because his mother was legally blind, and the family
relied on Moore’s income.
{¶5} The first person that the victim disclosed the abuse to was his best friend
who lived across the street. The friend urged the victim to tell an adult. In response, the
victim told his friend’s mother about the abuse. He begged her not to tell his mother, but
she confronted the victim’s mother with the information. The victim’s mother
confronted Moore. According to the victim’s mother, Moore “had no reaction” when she
confronted him about the abuse allegations. The victim’s mother did not alert authorities
because the victim did not want her to.
{¶6} Several months after the disclosure, Moore moved from the home. In
2012, Moore eventually moved back in with the victim’s mother, but the abuse did not
continue. The victim’s mother and Moore got married soon after Moore moved backed
in.
{¶7} In 2013, the victim disclosed the abuse to the pastor at his church because
he was trying to come to terms with what happened and to forgive Moore. The pastor
claimed he did not tell authorities because he thought the matter had been resolved.
{¶8} In May 2014, the victim told his girlfriend and her mother about the abuse.
The girlfriend’s mother told the school principal, and after speaking with the victim, the
principal alerted authorities.
{¶9} The jury found Moore guilty of one count of gross sexual imposition and
one count of sexual battery. The jury found Moore not guilty of the remaining counts.
The trial court sentenced Moore to 18 months in prison for the gross sexual imposition
and five years in prison for the sexual battery. The counts were ordered to be served
consecutively. Additionally, the trial court classified Moore as a Tier III sex offender.
Insufficient Evidence
{¶10} In his first assigned error, Moore argues that the evidence was insufficient to
support his convictions.
{¶11} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.
29(A) and sufficiency of evidence review require the same analysis. State v. Taylor, 8th
Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 21, citing Cleveland v. Pate, 8th Dist.
Cuyahoga No. 99321, 2013-Ohio-5571; State v. Mitchell, 8th Dist. Cuyahoga No. 95095,
2011-Ohio-1241.
{¶12} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the prosecution has met its burden of production
at trial. State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State
v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997). On review for sufficiency,
courts are to assess not whether the prosecution’s evidence is to be believed, but whether,
if believed, the evidence against a defendant would support a conviction. Givan at ¶ 13.
Moore contends there was no physical evidence that the crime occurred and that a
specific date of when the crime occurred was not established.
{¶13} Physical evidence was not necessary to prove Moore’s guilt for gross sexual
imposition or sexual battery. R.C. 2907.05(A)(1) defines the elements of gross sexual
imposition as:
(A) No 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 any of the following applies:
(1) The offender purposely compels the other person, or one of the other
persons, to submit by force or threat of force.
{¶14} Pursuant to R.C. 2907.01(B), “‘Sexual contact’ means any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock, [or]
pubic region * * *.” In the instant case, the victim testified the abuse began with Moore
putting his hand in the victim’s shorts and touching his penis. This was sufficient
evidence to support “sexual contact” under the gross sexual imposition statue.
{¶15} There was also sufficient evidence of force. The Ohio Supreme Court has
addressed the issue of “force or threat of force” several times. In State v. Eskridge, 38
Ohio St. 3d 56, 526 N.E.2d 304 (1988), the court held that the amount of force necessary
to commit the offense “depends upon the age, size, and strength of the parties and their
relation to each other.” Id. at paragraph one of the syllabus. Given the inherent
coercion in parental authority when a parent abuses his or her child, the requisite force
“‘need not be overt and physically brutal, but can be subtle and psychological. As long
as it can be shown that the * * * victim’s will was overcome by fear or duress, the
forcible element * * * can be established.’” Id. at 58-59, quoting State v. Fowler, 27
Ohio App.3d 149,154, 500 N.E.2d 390 (8th Dist.1985).
{¶16} The Supreme Court clarified Eskridge in State v. Schaim, 65 Ohio St. 3d 51,
500 N.E.2d 661 (1992), stating that in Eskridge, it “recognized that coercion is inherent in
the parent-child relationship and that under these special circumstances ‘[f]orce need not
be overt and physically brutal, but can be subtle and psychological.’” In the instant case,
the victim testified that Moore was the only father figure he had in his life and that he did
not tell anyone about the abuse because his family relied upon Moore’s income for their
living expenses. Thus, given the parent-child relationship and the fact the victim’s
family relied upon Moore’s financial assistance, there was evidence of force.
{¶17} Moore was also convicted of sexual battery pursuant to R.C. 2907.03(A)(1),
which provides:
(A) No person shall engage in sexual conduct with another, not the spouse
of the offender, when any of the following apply:
(1) The offender knowingly coerces the other person to submit by any
means that would prevent resistance by a person of ordinary resolution.
{¶18} “Sexual conduct” pursuant to R.C. 2907.01(A) includes “anal intercourse.”
In the instant case the victim testified that the touching evolved into anal intercourse.
Thus, there was sufficient evidence of “sexual conduct.” Also, because Moore was a
father figure to the victim, upon whom the victim’s family relied upon for financial
support, the act was coercive on Moore’s part.
{¶19} Moore also alleges the convictions were based on insufficient evidence due
to the fact the victim could not remember the precise dates on which the acts occurred.
However, as we held in State v. Yaacov, 8th Dist. Cuyahoga No. 86674, 2006-Ohio-5321,
the “specific date and time of the offenses are not elements of the crimes charged.” Id. at
¶ 17. Moreover, “many child victims are unable to remember exact dates and times,
particularly where the crimes involved a repeated course of conduct over an extended
period of time.” Id. Accordingly, Moore’s first assigned error is overruled.
Manifest Weight of the Evidence
{¶20} In his second assigned error, Moore contends that his convictions were
against the manifest weight of the evidence.
{¶21} In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St. 3d 380, 678 N.E.2d 541. In
Thompkins, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court
held that sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but
weight of the evidence addresses the evidence’s effect of inducing belief.
Id. at 386-387. In other words, a reviewing court asks whose evidence is
more persuasive — the state’s or the defendant’s? We went on to hold that
although there may be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the evidence. Id. at 387,
678 N.E.2d 541. “When a court of appeals reverses a judgment of a trial
court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s
resolution of the conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing
Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S. Ct. 2211, 72 L. Ed. 2d 652.
Id. at ¶ 25.
{¶22} An appellate court may not merely substitute its view for that of the jury, but
must find that “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.” Thompkins at 387. Accordingly, reversal on manifest weight
grounds is reserved for “the exceptional case in which the evidence weighs heavily
against the conviction.” Id.
{¶23} Moore contends the fact that the victim could not recite the exact dates that
the abuse occurred made his testimony incredible and that his testimony conflicted with
that of the other witnesses regarding the years the abuse occurred. As we discussed, the
failure of a child who suffered abuse to recall the exact date of the abuse is not unusual.
Here, the victim could not recall the specific dates but stated that it happened over a
two-year time frame when he was in seventh and eighth grade and that the abuse stopped
once Moore moved from the home. Although the victim’s mother, his friend, and his
friend’s mother gave different years that they thought the abuse occurred, they all agreed
that the victim was either in seventh or eighth grade. Thus, the jury’s resolving the
conflicting testimony as to when the abuse occurred did not result in a manifest
miscarriage of justice.
{¶24} Moore also argues the victim was not credible because the victim was the
best man when Moore married the victim’s mother and wanted to spend his school winter
break with Moore, both of which occurred after the alleged abuse. However, as the victim
stated on the stand, his feelings for Moore were conflicted because although he abused
the victim, Moore was the only father figure he had in his life. He also stated he did not
want Moore to be placed in jail. The jury heard the evidence, and we defer to their
determination regarding whether the victim was credible in light of his conflicted feelings
towards Moore.
{¶25} Moore also argues that the revenge was the reason that the victim told his
girlfriend, the girlfriend’s mother, and the principal that Moore abused him. Moore had
informed the principal regarding inappropriate texting between the victim and his
girlfriend and had grounded the victim for staying the night at his girlfriend’s house.
However, the victim stated that this was not his motive. This would also not explain the
victim’s motive when he told his best friend and the friend’s mother about the abuse
shortly after it occurred in seventh grade, which was years prior to the above
transgressions. Accordingly, Moore’s second assigned error is overruled.
Amendment of Indictment
{¶26} In his third assigned error, Moore argues the trial court erred by allowing the
state to amend the dates in the indictment during the trial.
{¶27} The original indictment for the gross sexual imposition count stated that the
crime occurred, “on or about November 1, 2010 to February 28, 2011.” The original
indictment for the sexual battery count stated that the crime occurred “on or about April
1, 2013 to April 30, 2013.” Both counts were amended at trial to allege that the crimes
occurred on or about “January 1, 2009 to November 30, 2012” in order to conform to
the evidence presented at trial. The victim testified that the abuse occurred while he was
in seventh and eighth grades. Several of the witnesses also stated that the victim
revealed the abuse to them while he was in seventh or eighth grades. It was established
at trial that the victim was in seventh and eighth grade from 2009 until 2011.
{¶28} Crim.R. 7(D) allows a trial court to amend an indictment to conform to the
evidence presented at trial. Crim.R. 7(D) provides that a court may permit the
amendment of an indictment at “any time,” including “during” the trial, as long as it does
not change the name or identity of the crime charged. A may occur when, for example,
the amendment includes new elements requiring independent proof, or when the
amendment increases the severity of the offense. See State v. Fairbanks, 172 Ohio
App.3d 766, 2007-Ohio-4117, 876 N.E.2d 1293, ¶ 19-21 (12th Dist.).
{¶29} Where the amendment does not change the name or identity of the offense, a
reviewing court should not disturb a court’s decision to permit the amendment of an
indictment absent an abuse of discretion and a showing of prejudice to the defense. See
State v. Douglas, 10th Dist. Franklin No. 09AP-111, 2009-Ohio-6659, ¶ 33; State v.
Gibson, 5th Dist. Stark No. 2007 CA 00209, 2008-Ohio-3936, ¶ 88; State v. Beach,
148 Ohio App. 3d 181, 2002-Ohio-2759, 772 N.E.2d 677, ¶ 23 (1st Dist.).
{¶30} Here, changing the dates did not change the name or identity of the offenses.
This case was also not a case where the change in the dates prevented the defendant
from presenting an alibi defense.
{¶31} We note that Moore relies on this court’s decision in State v. Vitale, 96 Ohio
App.3d 695, 645 N.E.2d 1277 (8th Dist.1994). In Vitale, we held that the trial court
erred by allowing the state to change a specific date in the indictment to fit a different
theft that occurred at a different location than the one contained in the indictment. Thus,
in Vitale, at trial the state was permitted to include a different potential theft than the one
presented to the grand jury. In the instant case, the indictment included a range of dates,
not a specific date, and the amendment did not change the location of the offenses. See
State v. Schafer, 8th Dist. Cuyahoga No. 79758, 2002-Ohio-6632. (Trial court did not
err by allowing the indictment to be amended by expanding the time frame and
distinguished Vitale by concluding in Vitale a specific date and location was set forth in
the indictment.) Accordingly, Moore’s third assigned error is overruled.
{¶32} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal 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.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR