State v. Burks , 115 N.E.3d 791 ( 2018 )

[Cite as State v. Burks, 2018-Ohio-2515.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105975
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GLEN BURKS, II
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-609476-A
BEFORE: Celebrezze, J., Blackmon, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: June 28, 2018
ATTORNEY FOR APPELLANT
John Spellacy
John J. Spellacy & Associates
323 W. Lakeside Avenue, Suite 300
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Andrew F. Rogalski
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Glen Burks (hereinafter “appellant”) brings this appeal
challenging his convictions for kidnapping, gross sexual imposition, and sexual imposition.
Specifically, appellant argues that the trial court abused its discretion when it permitted the state
to introduce “other acts” evidence under Evid.R. 404(B); that the evidence was insufficient to
support his convictions; that the convictions were against the manifest weight of the evidence;
and that the trial court committed plain error by failing to properly instruct the jury as to the
kidnapping count. After a thorough review of the record and the law, this court affirms.
I. Factual and Procedural History
{¶2} On September 14, 2016, appellant was indicted for three offenses against two
victims. Count 1, gross sexual imposition, a fourth-degree felony in violation of R.C.
2907.05(A)(1); and Count 2, kidnapping, a first-degree felony in violation of R.C.
2905.01(A)(4), with a sexual motivation specification; involved a single victim, (hereinafter
“M.W.”). Count 3, gross sexual imposition, a fourth-degree felony in violation of R.C.
2907.05(A)(5), involved a second victim (hereinafter “C.W.”).
{¶3} Counts 1 and 2 stem from an incident at appellant’s home that occurred on April
29, 2016. M.W. was a technician who primarily installed and repaired internet services at
customers’ homes. On this particular date, M.W. traveled alone to appellant’s house to perform
repair services to appellant’s internet router. As he arrived at appellant’s home, M.W. was
greeted at the front door by appellant. While greeting M.W., appellant said to him: “[m]y wife
would have been here, but I let her run some errands because she didn’t want to be here with a
big black guy or a too smart white guy. You’re the perfect one.” (Tr. 485-486.) Appellant
then escorted M.W. downstairs into the basement of the home to a small office which included a
desk and an internet router that M.W. was assigned to repair.
{¶4} M.W. testified that the office was small, 5 feet by 8 feet, and it contained a small
desk and two chairs. Upon entering the room, M.W. “sat in the further chair to the wall away
from the door * * * and [appellant] sat down right next to me.” (Tr. 488-489.) M.W. further
explained that “[appellant] reached over, * * * and [appellant] just screamed out of nowhere, “I
ain’t trying to kiss you, man.” (Tr. 489.) M.W. detailed that appellant, with his right hand,
leaned over and touched “a little bit of [M.W.’s] private area” and appellant’s “thumb [was] just
over [M.W.’s] belt and [appellant’s] hand on the upper thigh [of M.W.] and [appellant’s] fingers
pointed in the direction of the area of [M.W.’s] private parts or crotch.” (Tr. 492.) M.W.
further testified that:
[Appellant] sat back down. So at this point, I’m in alert mode. I’m scared of
him honestly, so I get to moving over more to the left, but I couldn’t move over
any more. He kept moving closer to me. So again, I see him, I keep inching
over. [Appellant] then reaches his left hand right here in my pants and I legit
froze for about two seconds * * * I jumped up and [appellant] clenched my pants
and [appellant] ripped [the pants] open.
(Tr. 489-490.)
{¶5} M.W. then attempted to leave the office, and appellant, who was a “big guy,” about
6’2” and 270 pounds, stood up and blocked the door. (Tr. 490.) As he was trying to exit the
basement office room, M.W. went on to detail that he had to physically squeeze past appellant, as
appellant stood in the door blocking his exit. M.W. stated that he “had to rub against
[appellant] and [appellant] jammed against [M.W.].” (Tr. 490-491.) M.W. made an attempt to
beat appellant up the stairs to the first floor of the home, but appellant got in front of him, and
appellant went up the stairway first.
{¶6} Appellant then “sprints from the hallway all the way to the front door and makes a
football stance * * * and [appellant] said, ‘please, man, give me five minutes.’” (Tr. 491.)
M.W. further testified that appellant continued to “beg” and that appellant’s begging “sounded
like a little kid asking like a parent for some candy” and continued to beg for approximately “35
to 40 seconds.” (Tr. 491.) Appellant then charged at M.W., and he avoided appellant and ran
out the front door. M.W. then got into his service vehicle, drove off, and stopped approximately
four streets away from appellant’s house and called his manager to report that he had been
“sexually assaulted in the private area.” (Tr. 493.) M.W. then drove to the police station to file
a police report.
{¶7} Count 3 stems from a incident that occurred at appellant’s workplace. Appellant
was working as an emergency medical technician and was employed by the city of Cleveland’s
Emergency Medical Services. During the first week of January 2014, C.W. was completing his
field training duties and responsibilities as a new emergency medical technician and met
appellant on his first day on the job. Upon first meeting appellant, appellant stated to C.W.
“whatever you heard about me, don’t believe it.” (Tr. 588.)
{¶8} On his first day, C.W., his field training officer, and appellant responded to a 911
call of an elderly woman in need of medical attention. During the call, the men utilized a device
known as a “lift chair” because the patient was discovered in a confined area. In removing the
patient, C.W. and his field training officer handled the lift chair and appellant was to assist C.W.
and support him if necessary. C.W. testified that he:
[W]as at the bottom [of the lift chair] * * * [and appellant] was behind me.
[Appellant] was supporting my back, making sure I didn’t bump into anything or
fall. In the process, I did feel [appellant’s] hands start on my back and move to
my buttocks.
(Tr. 592.)
{¶9} After the call, appellant and C.W. spoke about the above incident. C.W. asked
appellant “[w]ere you getting a little comfortable at the call?” Appellant then “laughed about
it” and stated “what do you mean?” C.W. testified that he also laughed and said “I felt your
hand on my a[**].” To which appellant replied “we just want to made cadets feel more
comfortable” and “we like to joke around here.” (Tr. 596.)
{¶10} Additionally, C.W. testified to other incidents that made C.W. feel
“uncomfortable” around appellant. One incident occurred while C.W. and appellant were at the
station together lounging around enjoying downtime on a 24-hour shift. At approximately 1:00
a.m., appellant suggested to C.W. that the two of them watch a movie that involved “two male
best friends” and that “one friend did not know the other friend was gay” and the friend “went
around having oral sex with other men.” Appellant then asked C.W. if he would pull his penis
out and appellant would pull his penis out and “we can rub and tug.” (Tr. 602.) C.W. testified
that he took this as a suggestion that appellant wanted the two men to masturbate together.
{¶11} During the pendency of the instant case, on March 15, 2017, the state filed a
notice of intent to use other acts evidence pursuant to Evid.R. 404(B). The state sought to
introduce at trial testimony from a third victim (hereinafter “J.W.”) who had made sexual assault
claims against appellant eight years ago. The state argued that the testimony was to be offered
in order to provide evidence probative of appellant’s intent, motive, and purpose of sexual
gratification. In response, appellant’s trial counsel filed a motion in limine seeking to exclude
the introduction of the other acts evidence.
{¶12} On May 15, 2017, the first day of trial, the trial court heard arguments from the
parties concerning the state’s motion for other acts evidence and appellant’s motion in limine.
The trial court ultimately made a preliminary ruling allowing the other acts testimony and
denying appellant’s motion in limine.
{¶13} After a jury trial, the jury returned a not guilty verdict as to the gross sexual
imposition offense charged in Count 1. However, the jury returned a guilty verdict on the lesser
included offense of sexual imposition, a third-degree misdemeanor in violation of R.C. 2907.06.
The jury returned a guilty verdict on Count 2, kidnapping, a first-degree felony; a verdict of not
guilty as to the underlying sexual motivation specification; and a guilty verdict on Count 3, gross
sexual imposition, a fourth-degree felony. Appellant was thereafter sentenced to prison for an
aggregate sentence of four years. Appellant filed the instant appeal assigning the following
errors for our review:
I. The trial court abused its discretion and committed error when it admitted
evidence of other crimes, wrongs and acts under Evid.R. 404(B).
II. The trial court committed plain error and prejudiced the defendant by the
manner it instructed the jury on evidence of other crimes, wrongs and acts under
Evid.R. 404(B).
III. The trial court committed plain error by failing to instruct the jury that
kidnapping is a second degree felony if the victim was left in a safe place
unharmed.
IV. The evidence was insufficient to support the convictions in this case.
V. The convictions in this case were against the manifest weight of the evidence.
II. Law and Analysis
A. Evid.R. 404(B) Other Acts Evidence
{¶14} In his first assignment of error, appellant argues the trial court committed
prejudicial error by allowing J.W. to testify about a similar act occurring approximately eight
years earlier, in violation of Evid.R. 404(B).
{¶15} The trial court has broad discretion in the admission and exclusion of evidence,
including evidence of other acts under Evid.R. 404(B). State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Unless the trial court has “clearly abused its discretion
and the defendant has been materially prejudiced thereby, this court should be slow to interfere”
with the exercise of such discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126(1967).
{¶16} Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith.”
Such evidence may, however, be admissible for other purposes, “such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Evid.R. 404(B). Similarly, R.C. 2945.59 permits the admission of other acts evidence tending to
show a defendant’s “motive or intent, the absence of mistake or accident on his part, or the
defendant’s scheme, plan, or system in doing the act in question.”
{¶17} In determining whether to admit other acts evidence, trial courts should conduct
the three-step analysis set forth in State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983
N.E.2d 1278:
The first step is to consider whether the other acts evidence is relevant to making
any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. Evid.R. 401. The next step is to
consider whether evidence of the other crimes, wrongs, or acts is presented to
prove the character of the accused in order to show activity in conformity
therewith or whether the other acts evidence is presented for a legitimate purpose,
such as those stated in Evid.R. 404(B). The third step is to consider whether the
probative value of the other acts evidence is substantially outweighed by the
danger of unfair prejudice.
Id. at ¶ 20.
{¶18} In Williams, the defendant was charged with various crimes, including rape and
gross sexual imposition, stemming from his alleged sexual abuse of a minor. At trial, the state
offered evidence of the defendant’s previous sexual abuse of another minor. The previous
victim shared similar characteristics with the current victim in that both did not have active
relationships with their fathers. The defendant used this lack of paternal relationship so that he
could sexually exploit them. Based on these facts, the Ohio Supreme Court reinstated the trial
court’s order allowing the evidence because it showed “the plan of the accused” and that the
defendant received “some type of sexual gratification,” which the court stated was also relevant
to show that the defendant’s intent was sexual gratification. Id. at ¶ 22, 25, citing R.C. 2907.01
and 2907.05(A)(1). As a result, the evidence was admissible under R.C. 2945.59 and Evid.R.
404(B). Id. at ¶ 25.
{¶19} In the instant case, in the midst of trial and after hearing testimony from both
M.W. and C.W., the trial court revisited the state’s other acts motion and noted that:
the evidence thus far provides more basis for [J.W.’s testimony] and it goes to an
element of the [s]tate’s case and would be a response to some of the
cross-examination, some of the defense that’s been raised in this matter with
respect to whether or not there was some intent in [appellant’s] mind at the time,
specific questions especially to [C.W.’s] what he thought at the time was
innocent, and then the argument is going to be made, and it has been made to this
[c]ourt, that the intent wasn’t at the time the acts occurred at.
(Tr. 638.) The trial court further noted that J.W.’s testimony was probative and not unfairly
prejudicial and permitted J.W. to testify.
{¶20} J.W. testified that in 2008, he was a resident at a court ordered drug treatment
center. On J.W.’s birthday, he was exercising and began to experience stomach pains and
emergency medical services was called. Appellant and another paramedic responded to the
treatment center and transported J.W. to the hospital. While in route to the hospital, appellant
was in the back of the ambulance, alone with J.W., while the other paramedic drove the
ambulance. J.W. testified that appellant stated to him “man, you got big arms” and “its your
birthday you can have it however you want it.” As appellant was administering medical
treatment for stomach pains as well as polyps and rectal bleeding, appellant took off his medical
gloves and began to fondle J.W.’s penis “like [appellant] was trying to ejaculate [J.W.]”
Appellant then apologized to J.W. for his conduct and stated to J.W. that he “felt bad.” (Tr.
652.)
{¶21} With regard to the first and second steps of the Williams test, we find that J.W.’s
testimony was relevant and was presented for a legitimate purpose under Evid.R. 404(B) and
R.C. 2945.59. Similar to the factual scenario in Williams, appellant’s interaction with M.W.,
C.W. and J.W. were alike in opportunity and method. J.W.’s testimony demonstrated
appellant’s motives and his intent, i.e., excusing the touching of C.W. as a prank or joke and
excusing the touching of J.W.’s penis as administering medical treatment. In our view, if
believed by the jury, such testimony could corroborate portions of M.W.’s and C.W.’s testimony,
in particular, appellant’s assertive sexual advances to M.W. and C.W. See Williams, 134 Ohio
St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 22. Furthermore, J.W. corroborated M.W.’s
and C.W.’s testimony about appellant’s intent and motive and attacked defense counsel’s
arguments raised on cross-examination of M.W. and C.W. Thus, in considering the first two
parts of the Williams test, the other acts evidence was relevant to making facts that were of
consequence to the matter more probable than without the evidence and the other acts evidence
was submitted for a proper Evid.R. 404(B) purpose — proving appellant’s motive and intent.
State v. Marquand, 8th Dist. Cuyahoga No. 99869, 2014-Ohio-698, ¶ 57.
{¶22} Finally, we consider whether the probative value of the other acts evidence is
substantially outweighed by the danger of unfair prejudice. In our view, the challenged evidence
is not unduly prejudicial because the trial court instructed the jury that J.W.’s testimony could not
be considered to show that appellant had acted in conformity with a character trait during the
encounters with M.W. and C.W. This instruction lessened the prejudicial effect of J.W.’s
testimony. We note that there is a presumption ‘“that the jury has followed the instructions
given to it by the trial court.”’ State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d
948, ¶ 194, quoting State v. Murphy, 65 Ohio St.3d 554, 584, 605 N.E.2d 884 (1992). Thus,
Evid.R. 404(B) permitted admission of evidence of appellant’s prior act because it helped to
prove appellant’s intent and motive, and absence of mistake. Accordingly, the prejudicial effect
did not substantially outweigh the probative value of that evidence.
{¶23} Based on the foregoing, the trial court did not abuse its discretion by finding that
the other acts evidence was probative and not unduly prejudicial. Accordingly, the trial court
did not abuse its discretion by permitting J.W.’s testimony at trial.
{¶24} Appellant’s first assignment of error is overruled.
B. Limiting Instructions Regarding 404(B) Other Acts Evidence
{¶25} In his second assignment of error, appellant argues that the trial court committed
plain error and prejudiced appellant in the manner in which it instructed the jury regarding
Evid.R. 404(B) other acts evidence. Appellant argues that the limiting instructions given to the
jury prior to J.W.’s testimony and the written and verbal instructions provided to the jury at the
close of trial prejudiced appellant.
{¶26} We note that appellant’s trial counsel did not object to these limiting instructions
prior to the testimony of J.W. Therefore, appellant has forfeited all but plain error. State v.
Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23; Crim.R. 52(B). “A
forfeited error is not reversible error unless it affected the outcome of the proceedings and
reversal is necessary to correct a manifest miscarriage of justice.” State v. Amison, 8th Dist.
Cuyahoga No. 104728, 2017-Ohio-2856, ¶ 4, citing State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Under Crim.R. 52(B), “[p]lain error does not exist unless,
but for the error, the outcome at trial would have been different.” State v. Joseph, 73 Ohio St.3d
450, 455, 653 N.E.2d 285 (1995), citing State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894(1990). We also note that notice of plain error “‘is to be taken with the utmost caution, under
exceptional circumstances, and only to prevent a manifest miscarriage of justice.’” State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91,
97, 372 N.E.2d 804 (1978).
{¶27} In the instant case, appellant specifically argues that the trial court abused its
discretion when it read a limiting instruction regarding Evid.R. 404(B) that included the entirety
of the language of the rule. After hearing testimony from both M.W. and C.W., the trial court
then stated the following limiting instruction to the jury prior to J.W.’s testimony:
I have some instructions for you with respect to the testimony you’re about to
hear. Evidence will be received in this matter now from this witness about the
alleged commission of other acts other that the offense in which this defendant is
charged in this trial. This evidence is being received for a limited purpose. It’s not
being received, and you may not consider it, to prove the character of the
defendant in order to show that he acted in conformity or accordance with that
character. If you find that the evidence of these other acts is true, that the
defendant committed them, you may consider that evidence only for the purpose
of deciding whether it proves an absence of mistake or accident, the defendant’s
motive, opportunity, intent or purpose, preparation or plan to commit the offense
charged in this trial, or knowledge of circumstances surrounding the offense
charged in this trial.
(Tr. 641-642.)
{¶28} Appellant argues that the trial court should have specifically tailored its
instructions prior to receiving J.W.’s testimony and should have omitted irrelevant portions of
the above recitation of Evid.R. 404(B). For example, appellant argues that because “identity”
was not a disputed issue at trial, the trial court should not have read the “identity” portion in the
limiting instructions. Appellant’s argument continues that the trial court should have tailored
the limiting instructions to issues only specifically relevant to the case. Appellant fails to cite to
any case law or statutory authority in support of this argument as required by App.R. 16(A)(7).
See State v. Smith, 2d Dist. Montgomery No. 20828, 2006-Ohio-45, ¶ 40 (where in a sexual
imposition trial, a trial court’s failure to give limiting instructions to the jury as to other acts
testimony was plain error). Nevertheless, after reviewing the trial court transcripts, we find that
the trial court’s reading of the entirety of the language of Evid.R. 404(B) did not rise to the level
of a manifest injustice. Accordingly, we find no plain error with the limiting instructions as
they were stated to the jury.
{¶29} Appellant also argues that he was prejudiced by the jury instructions because the
trial court did not omit the irrelevant portions of Evid.R. 404(B). Again, as above, appellant
cites to no case law or authority on this argument. Appellant simply states that because the jury
instructions included the entirety of the rule, he was prejudiced because the “jury was given free
rein to employ every codified facet of other acts evidence.” Appellant’s brief at 24.
{¶30} In our review of the record, we note that the trial court included a verbatim
recitation of the Ohio Jury Instructions as it pertains to 404(B). The trial court stated that:
Evidence was received about the commission of other acts than the offenses with
which the defendant is charged in this trial. That evidence was received only for
a limited purpose. It was not received and you may not consider it to prove the
character of the defendant in order to show that he acted in conformity or
accordance with that character. If you find that the evidence of other acts is true
and that the defendant committed them, you may consider that evidence only for
the purpose of deciding whether it proves: (a) the absence of mistake or accident;
or (b) the defendant’s motive, opportunity, intent; or (c) purpose, preparation, or
plan to commit the offense charges in this trial; or knowledge of circumstances
surrounding the offense charged in this trial; or (d) the identity of the person who
committed the offense in this trial.
(Tr. 792-793.) Appellant argues that because the entirety of the 404(B) instruction was provided
in the jury instructions, that the jury was confused and the appellant was prejudiced by this
confusion. We find this argument to be unpersuasive. In our review of the record, we note that
the trial court gave limiting instructions prior to J.W.’s testimony that this evidence was not
being offered to prove appellant’s character and provided these same instructions to the jury at
the close of the case during the trial court’s charge to the jury. Under these circumstances, we
must presume the jury followed those instructions. See State v. Garner, 74 Ohio St.3d 49, 59,
656 N.E.2d 623 (1995); Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990).
{¶31} In our review of the record, we find that the trial court did not commit plain error
by providing the entirety of the 404(B) language within the limiting instructions prior to J.W.’s
testimony and within the jury instructions. Appellant’s argument here is without merit and his
second assignment of error is overruled.
C. Safe Place Unharmed Jury Instructions
{¶32} In his third assignment of error, appellant argues that the trial court committed
plain error in failing to instruct the jury that kidnapping, charged in Count 2, is a second-degree
felony, rather than a first degree-felony if the jury found that the victim was left in a safe place
unharmed.
{¶33} In our review of the record, we note that after the parties had rested, the trial judge
invited both parties to request a “safe place unharmed” instruction as to the kidnapping count.
Both the state and appellant’s trial counsel agreed that such an instruction would not be proper
given the testimony. It follows that as appellant’s trial counsel did not object to this omission,
appellant has forfeited all but plain error. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, at ¶ 23; Crim.R. 52(B).
{¶34} In support of his argument, appellant directs our attention to State v. Carroll, 8th
Dist. Cuyahoga No. 93938, 2010-Ohio-6013. In Carroll, this court noted that kidnapping is
ordinarily a felony of the first degree. R.C. 2905.01(C)(1). If, however, the offender leaves the
victim in a safe place unharmed, kidnapping will be a second-degree felony. Carroll at ¶ 13,
citing State v. Banks, 8th Dist. Cuyahoga No. 91992, 2009-Ohio-4229. In Carroll, the
defendant was convicted of robbery and kidnapping for the theft of money from several retail
stores. This court agreed with defendant’s argument on appeal that the evidence showed that the
defendant had left the victim in a safe place unharmed. This court sustained defendant’s
assignment of error and stated that:
[t]he evidence presented unequivocally showed that [defendant] left the victims in
safe places unharmed, and thus his kidnapping convictions could only be
felonies of the second degree. The trial court committed plain error in failing to
instruct the jury in this regard. The absence of a proper jury instruction should
have been cured by sentencing appellant on the kidnapping charge as a
second-degree felony.
Id. at ¶ 16.
{¶35} In the instant case, we find appellant’s arguments unpersuasive and find the
testimony presented at trial to be distinguishable from the facts of Carroll. In Carroll, the
defendant robbed and attempted to rob several retail stores all within the same day. The
defendant insinuated during the robberies that he had a gun in his pocket by keeping one hand in
his pocket while demanding money from the cash register clerks. During one robbery, the
defendant even stated to a cash register clerk that he possessed a gun. However, during all of
the robberies, the defendant fled the store, leaving the victims safe and unharmed.
{¶36} With regards to the crimes involving M.W., testimony presented at trial is in stark
contrast to the testimony presented in Carroll. It was the victim, M.W., that fled the area, not
once but on two occasions. M.W. first fled the basement office area and next fled the house,
leaving out of the front door after appellant charged at him. M.W. further testified that he
drove off in his service vehicle with such haste that he left traffic cones on the street. M.W. then
drove approximately four blocks away before calling his supervisor, presumably to ensure that he
was a safe distance from appellant’s home. These facts contradict the argument that the victim,
M.W., was left in a safe place unharmed.
{¶37} Based on the foregoing analysis, we find appellant’s arguments are without merit.
The testimony at trial is factually distinguishable from Carroll, 8th Dist. Cuyahoga No. 93938,
2010-Ohio-6013, and a jury instruction regarding the “safe place unharmed” subsection of the
kidnapping statute was not applicable to the testimony presented at trial. Accordingly,
appellant’s third assignment of error is overruled.
D. Sufficiency and Manifest Weight of the Evidence
{¶38} In his fourth and fifth assignments of error, appellant argues that the evidence was
insufficient to support his convictions and that his convictions were against the manifest weight
of the evidence. Although the terms “sufficiency” and “weight” of the evidence are
“quantitatively and qualitatively different,” we address these issues collectively because they are
closely related, while applying the distinct standards of review to appellant’s arguments. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶39} The test for sufficiency requires a determination of whether the prosecution met
its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶40} In contrast to sufficiency, “weight of the evidence involves the inclination of the
greater amount of credible evidence.” Thompkins at 387. While “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, * * * weight of the evidence addresses the evidence’s effect of inducing belief.” State v.
Wilson, 113 Ohio St.3d 382, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. The
reviewing court must consider all the evidence in the record, the reasonable inferences, and the
credibility of the witnesses to determine whether, ‘“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, quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
1. M.W., Count 1, Sexual Imposition
{¶41} With regards to Count 1, appellant was convicted of sexual imposition, a
third-degree misdemeanor in violation of R.C. 2907.06(A)(1), the lesser included of gross
sexual imposition, which states:
(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 knows that the sexual contact is offensive to the other person, or
one of the other persons, or is reckless in that regard.
Sexual contact is defined as “any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the
purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).
{¶42} After careful review of the record, we find that appellant’s sexual imposition
conviction with regards to Count 1 was supported by sufficient evidence. M.W. testified that
while he was seated at the desk in the basement office, appellant reached over and placed his
hand on M.W.’s “upper thigh area.” Moreover, M.W.’s testimony demonstrates that he found
the contact to be offensive as he testified that he said to appellant “what are you doing? I don’t
get down like that.” (Tr. 510.) Viewing the evidence in a light most favorable to the
prosecution, we conclude that a rational trier of fact could have found the essential elements of
sexual imposition were proven beyond a reasonable doubt.
{¶43} Moreover, we are unable to conclude that appellant’s sexual imposition
conviction was against the manifest weight of the evidence. The jury, as the trier of fact was in
the best position to weigh the credibility of the witnesses and was free to believe all or part of
M.W.’s testimony regarding appellant’s conduct. Seemingly, because the jury returned a not
guilty verdict on the gross sexual imposition offense charged in the indictment, the jury did not
believe some of his testimony. We note that gross sexual imposition, in violation of R.C.
2907.05(A)(1) carries with it the additional element of “purposely compels the other person to
submit by force or threat of force.” The jury made the determination that when appellant
touched M.W.’s “upper thigh,” such conduct did not amount to “purposely compelling” M.W.
“to submit by force.” However, we cannot say that the jury clearly lost its way when it found the
same conduct to constitute sexual imposition. Accordingly, we cannot say that the jury clearly
lost its way in finding appellant guilty of sexual imposition on Count 1.
2. M.W., Count 2, Kidnapping, with Sexual Motivation Specification
{¶44} With regards to Count 2, appellant was convicted of kidnapping, a first-degree
felony in violation of R.C. 2905.01(A)(4), which states:
(A) No person, by force, threat, or deception, or, in the case of a victim under the
age of thirteen or mentally incompetent, by any means, shall remove another from
the place where the other person is found or restrain the liberty of the other
person, for any of the following purposes:
(4) To engage in sexual activity, as defined in section 2907.01 of the Revised
Code, with the victim against the victim’s will.
{¶45} After careful review of the record, we find that appellant’s kidnapping conviction
was supported by sufficient evidence.
{¶46} In our review of the record, we note that M.W. stated that appellant, who was a
“big guy,” blocked the doorway of a basement office that was small in size, roughly 5 feet by 7
feet. Further, we note that appellant took a “football stance” at the front doorway in an effort to
not allow M.W. to leave appellant’s house. In addition, M.W. testified that appellant stated to
him that appellant said “please, just five minutes.” Appellant then rushed at M.W when he did
not comply with appellant’s request.
{¶47} Viewing this evidence in a light most favorable to the prosecution, we conclude
that a rational trier of fact could have found the essential elements of kidnapping were proven
beyond a reasonable doubt. We note that the Ohio Jury Instructions define “restrain the liberty”
as “to limit or restrain one’s freedom of movement” and the “restraint need not be for any
specific duration of time or in any specific manner.” O.J.I. 505.01(A)(9). See State v.
Studgions, 8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480. See also State v. Sanders, 8th Dist.
Cuyahoga No. 75398, 2000 Ohio App. LEXIS 1651 (Apr. 13, 2000). In considering appellant’s
conduct, standing in the basement doorway and in taking a “football stance” in the front doorway
and charging at M.W., we conclude that a rational trier of fact could have found that such
conduct constituted restraining M.W.’s liberty.
{¶48} Based on the foregoing analysis, we are likewise unable to conclude that
appellant’s kidnapping conviction was against the manifest weight of the evidence. The jury,
as the trier of fact was in the best position to weigh the credibility of the witnesses and was free
to believe all or part of M.W.’s testimony regarding appellant’s conduct. Accordingly, we
cannot say that the jury clearly lost its way in finding appellant guilty of kidnapping.
3. C.W., Count 3, Gross Sexual Imposition
{¶49} With regards to C.W., as to Count 3, appellant was convicted of gross sexual
imposition in violation of R.C. 2907.05(A)(5), which states:
(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:
(5) The ability of the other person to resist or consent or the ability of one of the
other persons to resist or consent is substantially impaired because of a mental or
physical condition or because of advanced age, and the offender knows or has
reasonable cause to believe that the ability to resist or consent of the other person
or of one of the other persons is substantially impaired because of a mental or
physical condition or because of advanced age.
{¶50} After careful review of the record, we find that appellant’s gross sexual
imposition conviction was supported by sufficient evidence. C.W. testified that appellant was
behind him, providing him support, and appellant had his hand on C.W.’s back. Appellant then
touched C.W.’s buttocks. As C.W. testified:
[Appellant] had his hand approximately halfway on my spine when we were
backing out as I was coming backwards out of the bathroom. I felt [appellant’s]
hand getting lower to the point where [appellant’s hand was on my] lower back
and then I felt [appellant] move his hand and grip my buttocks.
(Tr. 593.)
{¶51} In our view, C.W.’s descriptions of appellant’s touching constituted sufficient
evidence from which a jury could find that appellant committed these acts for his own sexual
gratification. We note that C.W.’s description of the touching coupled with the additional
testimony of appellant’s unusual behavior and subsequent assertive sexual advances further
explains appellant committed the act for his own sexual gratification thus demonstrating that the
touch constituted “sexual contact” pursuant to R.C. 2907.01(B).
{¶52} With respect to the element of the victim’s inability to resist because of a current
physical condition, C.W. testified that he was performing a work responsibility, that his back was
to appellant, and that he had his full attention on the task at hand. We note that C.W.’s physical
condition at the time of the touching made it virtually impossible for him to resist because he was
assisting in moving a patient in a lift chair. Thus, C.W.’s ability to resist or consent was
substantially impaired because of his actual physical condition. Appellant undoubtedly knew
that his ability to resist or consent was substantially impaired because of a physical condition
because appellant was directly behind C.W. providing him support and even assisting in the task
at hand.
{¶53} Viewing the evidence in a light most favorable to the prosecution, we conclude
that a rational trier of fact could have found the essential elements of gross sexual imposition
were proven beyond a reasonable doubt.
{¶54} Moreover, we are unable to conclude that appellant’s gross sexual imposition
conviction was against the manifest weight of the evidence. The jury, as the trier of fact was in
the best position to weigh the credibility of the witnesses and was free to believe all or part of
C.W.’s testimony regarding appellant’s conduct. Accordingly, we cannot say that the jury
clearly lost its way and created a manifest miscarriage of justice in finding appellant guilty of
gross sexual imposition.
{¶55} For all the foregoing reasons, appellant’s fourth and fifth assignments of error are
overruled.
III. Conclusion
{¶56} In sum, the trial court did not abuse its discretion by permitting the state to
introduce J.W.’s testimony. The trial court did not commit plain error by providing the entirety
of the language of Evid.R. 404(B) within the limiting instructions prior to J.W.’s testimony and
within the jury instructions. Further, it was proper to not instruct the jury as to the “safe place
unharmed” portion of the kidnapping statute as the testimony did not support such an instruction.
Lastly, the state presented sufficient evidence to support appellant’s sexual imposition,
kidnapping, and gross sexual imposition convictions and those convictions were not against the
manifest weight of the evidence.
{¶57} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR