State v. Bressi , 2016 Ohio 5211 ( 2016 )

[Cite as State v. Bressi, 2016-Ohio-5211.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27575
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JAMES P. BRESSI COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2013 08 2314
DECISION AND JOURNAL ENTRY
Dated: August 3, 2016
WHITMORE, Judge.
{¶1} Defendant-Appellant, James Bressi, appeals from his conviction in the Summit
County Court of Common Pleas. This Court affirms.
I
{¶2} Summit Pain Specialists is a medical organization that specializes in the treatment
of individuals suffering from chronic pain. Before the events giving rise to this appeal, Bressi
owned Summit Pain Specialists and operated it alongside his business partner, Dr. Robert
Geiger. Bressi received his training in osteopathic medicine and frequently treated his patients
using osteopathic manipulative treatment (“OMT”), a technique wherein an individual uses his
hands to stretch and exert pressure on various muscles and joints to achieve optimal alignment
and relieve pain. Starting in 2012, individuals began contacting the Stow Police Department to
report that Bressi had engaged in inappropriate sexual contact with them when they came to him
for treatment. The reports launched an intensive investigation led by Detective Jeff Swanson,
2
who interviewed numerous patients and other individuals who had contact with Bressi. In March
2013, amidst accusations of inappropriate conduct and his breach of an office policy requiring
the presence of chaperones during OMTs, Bressi was terminated from Summit Pain Specialists.
Sixth months later, the Stow Police Department’s investigation culminated in his arrest.
{¶3} A grand jury indicted Bressi on two counts of rape, thirteen counts of gross sexual
imposition, and twelve counts of sexual imposition. The twenty-seven counts pertained to
eleven different victims, ten of whom were Bressi’s patients and one of whom, C.H., was a nurse
on his staff. The incidents underlying the twenty-seven counts were alleged to have occurred at
different times between May 2011 and March 2013.
{¶4} Several weeks before his scheduled trial date, Bressi sought a continuance
because he received a significant amount of additional discovery from the State. Specifically,
Bressi informed the court that he had just received “96 Cds of recorded calls by complainants to
the Stow Police Department.” Although the recordings had existed for “some time,” Bressi
wrote, the State did not divulge them earlier in the discovery process. Bressi requested
additional time to review the recordings and prepare for trial, and the court granted his request.
{¶5} The afternoon before Bressi’s rescheduled trial date, he filed a motion to dismiss
his indictment due to alleged discovery violations on the part of the State. The trial court dealt
with the motion on the morning of trial by questioning both parties, Detective Swanson, and
Timothy Dimoff, Bressi’s private investigator. Because the court ultimately concluded that no
discovery violations had occurred, it denied Bressi’s motion to dismiss. The trial went forward
as scheduled, but, at several points throughout the trial, Bressi renewed his motion to dismiss for
alleged discovery violations. Consistent with its earlier ruling, the court denied Bressi’s motion
each time he renewed it.
3
{¶6} The jury found Bressi guilty of a single count of sexual imposition and not guilty
of the remaining twenty-six counts against him. The court sentenced Bressi to fifty-nine days in
jail, five years of probation, and a fine. Additionally, the court classified him as a tier one sexual
offender. The court agreed to stay Bressi’s sentence for purposes of appeal.
{¶7} Bressi now appeals from his conviction and raises three assignments of error for
our review. For ease of analysis, we rearrange his assignments of error.
II
Assignment of Error Number Three
THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
TO DISMISS AND SUBSEQUENT MOTION TO CONTINUE BECAUSE THE
APPELLEE WILLFULLY AND KNOWINGLY WITHHELD EVIDENCE
WHICH COULD HAVE BEEN DEEMED EXCULPATORY AND WAS
ABSOLUTELY A DISCOVERY VIOLATION PER CRIM.R. 16.
{¶8} In his third assignment of error, Bressi argues that the trial court erred when it
denied his motion to dismiss his indictment due to discovery violations on the part of the State.
He also argues that the court erred when it refused to continue his trial for the purpose of
investigating whether the State withheld exculpatory evidence. We do not agree that the trial
court erred.
{¶9} “A trial court’s resolution of discovery issues in criminal matters is reviewed for
an abuse of discretion.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 14.
An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable
in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). When reviewing for an
abuse of discretion, an appellate court may not merely substitute its judgment for that of the trial
court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
4
{¶10} “Pursuant to Brady[ v. Maryland, 373 U.S. 83 (1963)], the State may not withhold
‘material, exculpatory evidence,’ as doing so offends a criminal defendant’s due process rights.”
State v. Charlton, 9th Dist. Lorain No. 12CA010206, 2014-Ohio-1330, ¶ 32, quoting State v.
Moultry, 9th Dist. Summit No. 25065, 2010-Ohio-3010, ¶ 9. “There are three components of a
true Brady violation: The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” State v. Jalowiec, 9th Dist.
Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 31, quoting Strickler v. Greene, 527 U.S. 263, 281-
282 (1999). “It is [the] [d]efendant’s burden to establish that the evidence is both favorable and
material and that there is reasonable probability that the outcome would have been different if
the evidence had been provided.” State v. Whalen, 9th Dist. Lorain No. 08CA009317, 2008-
Ohio-6739, ¶ 8.
{¶11} Apart from Brady v. Maryland, a defendant may seek relief under Crim.R. 16
when he or she believes the State has violated the discovery rules by willfully failing to disclose
exculpatory, material evidence. See State v. Joseph, 73 Ohio St. 3d 450, 458 (1995). The rule
“allows the trial court to ‘grant a continuance, or prohibit the party from introducing in evidence
the material not disclosed, or it may make such other order as it deems just under the
circumstances.’” State v. Price, 9th Dist. Medina No. 14CA0070-M, 2015-Ohio-5043, ¶ 6,
quoting Crim.R. 16(L)(1). “[A] trial court must inquire into the circumstances producing [an]
alleged violation of Crim.R. 16.” State v. Bellomy, 9th Dist. Wayne No. 97CA0036, 1998 WL
161292, *2 (Apr. 8, 1998). This Court has held that “[t]he rule ‘requires the [S]tate to produce
only items in the prosecutor’s custody * * *.” Sadeghi at ¶ 17, quoting State v. Luskin, 9th Dist.
Lorain No. 90CA004766, 1990 WL 203479, *2 (Dec. 12, 1990).
5
{¶12} The afternoon before his scheduled trial, Bressi filed a motion to dismiss the
charges against him “for repeated and what now only can be assumed to be purposeful violations
of Criminal Rule 16 and Brady v. Maryland * * *.” Bressi wrote that, earlier on in the discovery
process, the State had produced recordings made by the Stow Police Department and had
represented that those recordings were the only ones that existed. Another recording
“mysteriously appeared” later on, however, after Bressi questioned its existence and was told it
did not exist. Further, the State later produced an additional 96 CDs, all of which were
recordings made when individuals had phoned the Stow Police Department about him or his
case. Bressi wrote that he hired a private investigator to assist him in preparing his defense and
his investigator had identified at least eight other individuals who stated that their police
interviews had been recorded, but for whom he had no recordings. The additional, undisclosed
recordings from the eight individuals formed the basis of Bressi’s claim that the State had
violated both Crim.R. 16 and Brady.
{¶13} The morning of trial, the trial judge addressed Bressi’s motion to dismiss on the
record. Defense counsel acknowledged that he had been aware of the possible existence of the
additional recordings for several weeks, but stated that he waited to bring the matter to the trial
court’s attention because he was still researching the issue and his investigator was finalizing his
report. He provided the court with the names of eight individuals, each of whom the defense
believed was recorded by the police department when interviewed. Meanwhile, the prosecutor
represented to the court that the State had provided the defense with all of the recordings in the
State’s possession. The trial court then spoke with both Detective Jeff Swanson, the detective in
charge of the Stow Police Department’s investigation, and Timothy Dimoff, Bressi’s private
investigator.
6
{¶14} Detective Swanson informed the court that it was not his practice to record his
interviews with victims and witnesses, absent unique circumstances. He stated that he had direct
involvement with all eight of the individuals that the defense identified. Specifically, he stated
that he either conducted all of those interviews himself or was present when interviews were
conducted. He represented to the court that those eight individuals were not recorded by any
means when they were interviewed. Detective Swanson stated that he generated reports
following the interviews and that he had produced all of his reports.
{¶15} After speaking with Detective Swanson, the court placed Dimoff under oath.
Dimoff testified that members of his investigative team had received affirmative responses when
they asked each of the eight individuals at issue whether they either felt or knew that they had
been recorded by law enforcement. He admitted that he did not personally interview any of the
eight individuals. He further admitted that the question posed to the individuals allowed for the
possibility that they felt they had been recorded when, in reality, they had not been. Dimoff also
acknowledged the possibility that the individuals had been recorded in conjunction with the civil
suits against Bressi and had not understood the difference between the civil and criminal
proceedings.
{¶16} Following Dimoff’s testimony, the court overruled Bressi’s motion to dismiss.
Bressi then asked the court to continue the trial for the purpose of calling individuals to court,
placing them under oath, asking them whether they were recorded, and determining “whether or
not there is exculpatory evidence.” The trial court likewise denied Bressi’s request, and the
matter proceeded to trial.
{¶17} At trial, Bressi renewed his motion to dismiss multiple times. He did so because,
on cross-examination, four of his accusers testified that they were recorded when the Stow Police
7
Department interviewed them. After the first accuser testified that she had been recorded, the
court spoke to the parties outside the presence of the jury. The prosecutor consulted with
Detective Swanson and informed the judge that Detective Swanson had personally interviewed
the accuser and did not record her interview. The court then overruled Bressi’s renewed motion
and the trial resumed. After the second accuser testified that she had been recorded, the court
stopped the proceedings, removed the jury from the courtroom, and placed Detective Swanson
under oath. Detective Swanson testified that he personally interviewed the accuser and did not
record her. He testified that he could not account for the discrepancy regarding the existence of
the recordings, but that he only recorded one interview out of the ninety-five he conducted. He
verified that he produced that one recorded interview for the defense. The court then overruled
Bressi’s renewed motion to dismiss.
{¶18} After Bressi renewed his motion to dismiss a third and fourth time, the court
expounded upon its decision to deny his motion. The court acknowledged that there was a
discrepancy between some of the accusers, who recalled having been recorded, and Detective
Swanson, who testified that no recordings were made. The court indicated that it had made a
credibility determination based on the testimony it had heard about the purported existence of the
recordings. Because the court concluded that the recordings did not exist, it denied Bressi’s
motion to dismiss. In doing so, the court noted that there also was no evidence that Bressi had
suffered any prejudice as a result of his not having been provided with the recordings that he
claimed existed.
{¶19} Bressi argues that the trial court erred by not dismissing his indictment because he
set forth evidence that the State willfully withheld materials that “could have been deemed
exculpatory.” He points to the testimony of his private investigator as well as the testimony of
8
the accusers who said they were recorded. Because he specifically requested the recordings and
the State failed to preserve them, Bressi argues, the burden should have shifted to the State to
prove that the recordings were not exculpatory and material to his defense. See State v. Glunt,
10th Dist. Franklin No. 09AP-962, 2010-Ohio-3024, ¶ 10. He further argues that the court erred
by not continuing the trial “so that the witnesses who claimed they were recorded could give
testimony regarding said recordings * * *.”
{¶20} Upon review of the record, we cannot conclude that the trial court abused its
discretion when it denied Bressi’s motion to dismiss and refused to continue the matter to
conduct additional inquiries. Initially, we note that only two of the eight individuals who were
the subject of Bressi’s motion to dismiss actually testified at trial. Those individuals were J.G.
and C.H. The other six individuals never testified and were not identified as victims or named in
Bressi’s indictment. As for J.G. and C.H., Bressi only asked J.G. if the police department
recorded her interview. Bressi never asked C.H. on cross-examination if the police recorded her
interview, and the sexual imposition count involving C.H. was the only count upon which Bressi
was convicted. Accordingly, his sole conviction did not stem from any of the accusers or
individuals who claimed that their interviews with the police were recorded. Moreover, he never
demonstrated that the State actually withheld exculpatory evidence from him.
{¶21} Bressi argues that it was not his burden to demonstrate that the recordings were
exculpatory and material to his defense because he specifically requested them and the State
either lost or destroyed them. He argues that, in those circumstances, the burden shifts to the
State. See Glunt at ¶ 10. See also State v. Whalen, 9th Dist. Lorain No. 08CA009317, 2008-
Ohio-6739, ¶ 8-9. Here, however, there was an absence of proof that the State actually lost or
destroyed the recordings. Detective Swanson repeatedly represented to the court and testified
9
under oath that he personally interviewed each of the individuals at issue and did not record
them. The trial court then deemed Detective Swanson’s testimony credible. For a Brady
violation to occur, the State must have actually withheld evidence. See Charlton, 2014-Ohio-
1330, at ¶ 32. Likewise, Crim.R. 16 “requires the [S]tate to produce only items in the
prosecutor’s custody * * *.” Sadeghi, 2016-Ohio-744, at ¶ 17, quoting Luskin, 1990 WL
203479, at *2. The trial court here inquired at length about the existence of the recordings. The
court questioned several prosecutors, Bressi’s private investigator, and Detective Swanson. It
stopped the proceedings more than once to conduct further inquiries and ensured that Detective
Swanson was questioned regarding each of the individuals who claimed that they either felt or
remembered having been recorded. Absent any additional proof that the interviews were, in fact,
recorded, the court determined that the recordings did not exist.
{¶22} This Court is troubled that several of the accusers in this matter testified that they
recalled having been recorded by the Stow Police Department. Their testimony stands in stark
contrast to that of Detective Swanson, who testified that he did not record them. In light of their
contrasting testimony and the absence of any additional proof that the recordings existed,
however, this Court must defer to the trial court’s assessment of the matter. The trial court was
in the best position to hear the testimony on this issue, evaluate its credibility, and resolve the
factual dispute that existed. See State v. McNeil, 9th Dist. Summit No. 27720, 2016-Ohio-4669,
¶ 16. Having reviewed the record, we cannot conclude that the court abused its discretion by
resolving the matter in the foregoing manner and denying Bressi’s motion to dismiss. See
Sadeghi at ¶ 14.
{¶23} To the extent Bressi claims that the court erred by not granting him a continuance,
we likewise cannot conclude that the court abused its discretion in denying his request. See State
10
v. Shinholster, 9th Dist. Summit No. 27687, 2015-Ohio-5098, ¶ 11 (decision to grant or deny
continuance left to trial court’s sound discretion). Bressi acknowledged that he waited until the
afternoon before his rescheduled trial date to bring the issue of the recordings to the court’s
attention. He sought a continuance for the purpose of asking the State’s witnesses whether they
had been recorded, but Detective Swanson affirmatively testified that no such recordings were
made. It is pure speculation that any additional questioning of the witnesses would have caused
Detective Swanson to change his testimony. As such, we must conclude that the trial court did
not abuse its discretion by denying Bressi’s request for a continuance or by refusing to dismiss
the charges against him. Bressi’s third assignment of error is overruled.
Assignment of Error Number One
THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT’S
CRIM.R. 29 MOTION TO DISMISS BECAUSE THERE WAS INSUFFICIENT
EVIDENCE PRESENTED TO THE JURY TO FIND HIM GUILTY OF
SEXUAL IMPOSITION PER THE REQUIREMENTS SET FORTH BY R.C.
2907.06(A)(1) AND R.C. 2907.06(B).
{¶24} In his first assignment of error, Bressi argues that his sexual imposition conviction
is based on insufficient evidence. Specifically, he argues that the court should have granted his
Crim.R. 29 motion because the State failed to set forth any evidence to corroborate the victim’s
testimony. We disagree.
{¶25} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.
24769, 2010-Ohio-634, ¶ 33. Sufficiency concerns the burden of production and tests whether
the prosecution presented adequate evidence for the case to go to the jury. State v. Thompkins,
78 Ohio St. 3d 380, 386 (1997). “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
11
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259
(1991), paragraph two of the syllabus.
{¶26} The sexual imposition statute provides, in relevant part, that “[n]o person shall
have sexual contact with another, not the spouse of the offender[,] * * * when * * * [t]he
offender knows that the sexual contact is offensive to the other person, * * * or is reckless in that
regard.” R.C. 2907.06(A)(1). The statute further provides that a person may not be convicted of
sexual imposition “solely upon the victim’s testimony unsupported by other evidence.” R.C.
2907.06(B). The corroboration requirement is not a “question of proof” for the jury, but “a
threshold inquiry of legal sufficiency to be determined by the trial judge.” State v. Economo, 76
Ohio St. 3d 56, 60 (1996). “The 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 essential
element of the crime charged. Slight circumstances or evidence which tends to support the
victim’s testimony is satisfactory.” Id.
{¶27} C.H. testified that she worked at Summit Pain Specialists for a total of about
fourteen years. In January 2012, she accepted a position at the Stow location with Bressi. C.H.
testified that she was familiar with Bressi because she previously had worked with him at a
different office. She stated that, after she accepted her position at the Stow office, she worked as
a triage nurse and was typically in the office from 7:30 a.m. until 4:30 p.m. One day in March or
April 2012, C.H. stayed late at the office to finish returning phone calls. When she finished, she
went to say goodbye to Bressi and he asked how she was doing. C.H. testified that Bressi was
aware that she was emotionally fragile at the time because he knew her son had died the previous
year and he knew she was scheduled to have a heart catheterization performed. She testified
12
that, when she told Bressi she did not care what happened to her, he asked her to come back to
one of the office visit rooms.
{¶28} C.H. stated that Bressi closed the examination room door behind her and had her
lie face down on the examination table. He then started massaging her back and shoulders. C.H.
indicated that, when she lay down on the table, she placed her arms at her sides with her palms
facing up. As Bressi massaged C.H., she began to feel his penis rubbing in her palm. C.H.
testified that she attempted to stop the connection by placing her hands up over her head, but
Bressi then took her arms, moved them back down to her sides, and continued to rub his penis
against her hand. C.H. then tried again to move her arms, and Bressi once again moved them
back into position, rubbing his penis against her. At that point, C.H. testified that she fisted both
of her hands. Bressi then brought her left arm out to the side, massaged her hand until she
opened it, and placed it back down on her side. He continued rubbing farther down her back
until he reached the top of her pants and “scooted [them] down.”
{¶29} C.H. testified that Bressi began “touching at [her] vaginal area,” so she
immediately told him that his touch was too personal. After she did so, Bressi stopped touching
her near her vagina, but told her that “it wasn’t for him,” but for her because she “needed the
release.” C.H. testified that she had received OMTs from Bressi in the past, but they never
involved him placing his fingers near her vagina or rubbing his penis on her. She testified that
she began crying on the examination table and, while she continued to cry, Bressi had her roll
onto her back. Bressi then performed several adjustments before C.H. told him that she needed
to go. C.H. got down from the table and left the room. She testified that Bressi left the building
with her and spoke to her as they were crossing the parking lot. According to C.H., Bressi told
her that she needed to go home because she and her husband “needed to f*** [their] brains out.”
13
{¶30} C.H. testified that she continued to work at Summit Pain Specialists after her
encounter with Bressi because she could not afford to leave her job and similar nursing positions
were not readily available. She testified that she waited two weeks to tell her husband what had
happened because she was afraid of how he would react. Meanwhile, a few days after the
incident, she told Dr. Geiger what Bressi had done. According to C.H., Dr. Geiger told her that
she “had his backing” if she chose to contact the police, but that it was her decision to make. She
testified that, following her disclosure to Dr. Geiger, a new office policy was put into effect. Per
the policy, no medical massages were to be performed and no OMTs were to be performed
without another employee being present in the room. C.H. testified that she never intended to
report Bressi to the police, but the police later contacted her while investigating Bressi. She then
met with the police and gave a written statement.
{¶31} Tricia Kay testified that, from 2010 to 2012, she worked as a registered nurse at
Summit Pain Specialists. Kay saw Bressi once or twice a week on the days that they performed
procedures on patients requiring sedation and recovery. She testified that, around the start of
2011, she began to notice a change in Bressi. Specifically, she observed that he began to appear
disheveled, wearing wrinkled clothes and failing to keep his hands clean. Kay testified that she
knew C.H. because they worked together during her time at Summit Pain Specialists. She
confirmed that she was present when C.H. spoke to Dr. Geiger “about Dr. Bressi and some
illegal conduct.” She stated that one of the reasons she left Summit Pain Specialists in 2012 was
because she “felt something wasn’t right.”
{¶32} Patti Herink testified that she was currently employed as a registered nurse at
Summit Pain Specialists and had been working there for about four years. Much like Kay,
Herink testified that she observed a change in Bressi’s appearance over the course of her
14
employment. Specifically, she began noticing in 2012 that his hygiene was suffering, that he
was failing to keep his clothing clean, and that he appeared more irritable than usual. She also
testified that, in 2012, a new written office policy was issued in regards to Bressi and his female
patients. Per the policy, no OMTs were to be performed without a chaperone in the room and, if
the patient was a female, the chaperone also had to be a female.
{¶33} The State presented evidence that Bressi was terminated from Summit Pain
Specialists in March 2013. While cross-examining Detective Swanson, defense counsel played a
recording of Detective Swanson’s interview with H.S., a patient with whom the police believed
Bressi was having a consensual sexual relationship. During the recorded interview, Detective
Swanson informed H.S. that Bressi had been terminated from Summit Pain Specialists because
he had violated the office policy against performing OMTs without a chaperone and there were
allegations that he had sexually abused patients. Detective Swanson confirmed on redirect
examination that he had reviewed Bressi’s termination letter in the course of his investigation
and that it outlined the alleged misconduct that led to his termination.
{¶34} Bressi argues that the court erred by allowing his sexual imposition charge to go
to the jury because the State failed to present any evidence to corroborate C.H.’s testimony. See
R.C. 2907.06(B). He argues that neither Dr. Geiger, nor C.H.’s husband testified at trial, so there
was no testimony from either of the people to whom she claimed to have reported the incident.
Without their testimony, Bressi argues, the State could not rely on C.H.’s self-serving testimony
that she told them about the incident. He also argues that C.H. could not support her allegations
with a promptly filed police report because she failed to speak to the police about the incident for
more than a year.
15
{¶35} We do not agree that the trial court erred by denying Bressi’s motion for acquittal.
To satisfy R.C. 2907.06(B)’s corroboration requirement, the State need only have set forth
“[s]light circumstances or evidence which tend[ed] to support [C.H.]’s testimony.” Economo, 76
Ohio St. 3d at 60. C.H. testified that the incident with Bressi occurred in March or April 2012
and that she told Dr. Geiger about the incident a few days after it occurred. She further testified
that, as a result of that conversation, a new office policy was put into effect whereby chaperones
were required to be in the room for any OMTs. Even assuming that the State could not rely on
C.H.’s own testimony about her timely reports of the incident to Dr. Geiger and her husband to
satisfy the corroboration requirement, the State also presented the testimony of Kay and Herink.
Kay confirmed that she was present when C.H. spoke to Dr. Geiger about Bressi and his “illegal
conduct.” Meanwhile, Herink testified that Summit Pain Specialists instituted a new written
office policy in 2012 regarding Bressi and his female patients. She testified that the policy
required chaperones to be in the room for OMTs. Thus, their testimony tended to support
portions of C.H.’s testimony.
{¶36} The State also presented evidence that Bressi was terminated in March 2013
because he had violated the office policy against performing OMTs without a chaperone and
there were allegations that he had sexually abused patients. Even though Bressi was not
ultimately convicted on the remaining counts against him, at the time he made his motion for
acquittal, the court was bound to view all of the evidence in a light most favorable to the State.
See Jenks, 61 Ohio St. 3d 259 at paragraph two of the syllabus. The court could have considered
the fact that Bressi was terminated from his practice amidst allegations of sexual misconduct in
deciding whether the State presented enough evidence to satisfy R.C. 2907.06(B)’s corroboration
requirement with regard to C.H. See Economo at 60 (corroboration requirement “a threshold
16
inquiry of legal sufficiency to be determined by the trial judge, not a question of proof”).
Viewing that evidence in conjunction with C.H.’s testimony, as well as the testimony of Kay and
Herink, the court could have concluded that the State satisfied the corroboration requirement.
Consequently, we do not agree that the court erred when it denied Bressi’s Crim.R. 29 motion on
the sexual imposition count pertaining to C.H. Bressi’s first assignment of error is overruled.
Assignment of Error Number Two
THE JURY LOST ITS WAY IN FINDING THE APPELLANT GUILTY OF
SEXUAL IMPOSITION BECAUSE THE CONVICTION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶37} In his second assignment of error, Bressi argues that his sexual imposition
conviction is against the manifest weight of the evidence. We disagree.
{¶38} In determining whether a conviction is against the manifest weight of the
evidence an appellate court:
must 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, 33 Ohio App. 3d 339, 340 (9th Dist.1986). Weight of the evidence concerns
whether 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 a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id.,
quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). Therefore, the Court’s “discretionary power to
grant a new trial should be exercised only in the exceptional case in which the evidence weighs
17
heavily against the conviction.” State v. Browning, 9th Dist. Summit No. 26687, 2013-Ohio-
2787, ¶ 14, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶39} Bressi argues that the jury lost its way in convicting him because C.H.
contradicted herself when testifying and “not a single witness came to court to testify on [her]
behalf * * *.” Bressi notes that C.H. initially claimed to have spoken with the police about
Bressi’s conduct within a month of it occurring, but later admitted on cross-examination that she
did not speak to the police for over a year. He further notes that C.H. returned to work the day
after the alleged incident and there was never any evidence that she avoided him from then on.
{¶40} C.H. testified on direct examination that she believed she spoke with the police in
April 2012 and that they were the ones to contact her because she never intended to file a report.
On cross-examination, C.H. estimated that it was “probably a month” between when the incident
occurred and when she spoke with the police. Defense counsel then presented her with the
written statement she gave to the police. When C.H. saw that the statement was dated May
2013, she admitted that she did not speak to the police for fourteen or fifteen months and that she
had been mistaken about the timing. As for her continuing to work at Summit Pain Specialists
after the incident, she explained that she could not afford to leave her job. She testified that it
made her uncomfortable to be near Bressi, but that similar nursing jobs were not readily
available.
{¶41} Bressi testified in his own defense and denied that he ever engaged in offensive
sexual contact with C.H. or any of his other patients or employees. He testified that he believed
C.H. “misunderstood” their encounter because she was under a large amount of stress. Bressi
admitted that he touched C.H. near her vagina, but claimed that he did so as part of the OMT he
was performing on her. He further claimed that, in the past, he had touched C.H. in the same
18
manner. As to C.H. stating that she felt him rubbing his penis on her hand, Bressi attributed her
confusion to bottles of Stevia and silver that he routinely carried in his pocket. He testified that
the bottles were “rather phallic-like in their structure” and frequently rubbed against his patients
when he performed OMTs. He also testified that someone may have caused C.H. to believe he
might touch her inappropriately. It was Bressi’s contention at trial that his partner, Dr. Geiger,
was conspiring to oust him from their practice. Bressi testified that he “believe[d] Dr. Geiger
had talked to [C.H.] and [had given] her a heads-up about possibly my manipulation techniques
not being above board.”
{¶42} Having reviewed the record, we cannot conclude that Bressi’s sexual imposition
conviction is against the manifest weight of the evidence. Bressi conceded that he performed an
OMT on C.H. and that he touched her near her vagina. Accordingly, there was no dispute that
the encounter between them occurred. The only question was whether, during that encounter,
Bressi knowingly or recklessly engaged in offensive sexual contact with C.H. While neither Dr.
Geiger, nor C.H.’s husband testified on behalf of the State, the jury was able to hear C.H.’s
testimony and assess her credibility. Additionally, the jury was able to assess Bressi’s credibility
and weigh his version of the events against C.H.’s version of the events. “This Court has
repeatedly held that the trier of fact is in the best position to determine the credibility of
witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit No.
25161, 2010-Ohio-3296, ¶ 15. “This Court will not overturn a conviction as being against the
manifest weight of the evidence simply because the trier of fact chose to believe the State’s
version of events over another version.” State v. Barger, 9th Dist. Medina No. 14CA0074-M,
2016-Ohio-443, ¶ 29. Bressi has not shown that this is the exceptional case where the jury lost
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its way by convicting him. See Otten, 33 Ohio App. 3d at 340. Thus, his second assignment of
error is overruled.
III
{¶43} Bressi’s 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
period for review shall begin to run. App.R. 22(C). 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
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HENSAL, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
MICHAEL T. CALLAHAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.