State v. Bryant , 2020 Ohio 1175 ( 2020 )

[Cite as State v. Bryant, 2020-Ohio-1175.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 19AP0017
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY BRYANT COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2018 CRC-I 000226
DECISION AND JOURNAL ENTRY
Dated: March 30, 2020
HENSAL, Judge.
{¶1} Anthony Bryant appeals his convictions and sentence in the Wayne County Court
of Common Pleas for two counts of gross sexual imposition (“GSI”). For the following reasons,
this Court reverses.
I.
{¶2} Five-year-old R.S. reported to her grandmother that Mr. Bryant had touched her
private areas with his private area. R.S.’s mother took her to the Wayne County Child Advocacy
Center for an interview the next day. Subsequent to that interview, the Grand Jury indicted Mr.
Bryant for four counts of rape with sexually violent predator specifications, two counts of sexual
battery with sexually violent predator specifications, and two counts of GSI with sexually violent
predator specifications. The case proceeded to a trial before the bench. After R.S. did not testify
to any penetration, the trial court dismissed the rape and sexual battery counts. It found Mr. Bryant
guilty of the GSI counts, however, as well as the sexually violent predator specifications. The
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court sentenced Mr. Bryant to five years of imprisonment for each count, which it ordered to run
consecutively. Mr. Bryant has appealed, assigning six errors. This Court has reordered his
assignments of error.
II.
ASSIGNMENT OF ERROR VI
BECAUSE THE EVIDENCE WAS INSUFFICIENT TO CONVICT MR.
BRYANT OF TWO COUNTS OF GROSS SEXUAL IMPOSITION, ONE OF
THE CONVICTIONS SHOULD BE REVERSED.
{¶3} In his sixth assignment of error, Mr. Bryant argues that the evidence was
insufficient to convict him of two counts of GSI. Whether a conviction is supported by sufficient
evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St. 3d 380,
386 (1997). In making this determination, we must view the evidence in the light most favorable
to the prosecution:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.
State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶4} Revised Code Section 2907.05(A)(4) provides that “[n]o person shall have sexual
contact with another * * * when * * * [t]he other person * * * is less than thirteen years of age * *
*.” “‘Sexual contact’ means 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).
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{¶5} During her interview at the child advocacy center, R.S. reported that Mr. Bryant
had touched both her front and back private areas with his private area. At trial, however, she only
testified that Mr. Bryant spit on her “pee pee” and then wiped his private on it. During closing
argument, the State continued to argue that one of the GSI counts related to the touching of R.S.’s
front and one related to the back. After reviewing the evidence, the trial court concluded that there
were two instances of sexual contact, except it determined that they were “with saliva and with the
penis[.]”
{¶6} Mr. Bryant argues that R.S.’s testimony supports only one instance of sexual
contact, which is when he allegedly wiped his penis on the exterior of R.S.’s vagina. The issue,
therefore, is whether spitting on someone’s erogenous zones constitutes a “touching” under
Section 2907.01(B). “‘Touching’ is not defined in Chapter 29 of the Ohio Revised Code.” State
v. Jones, 2d Dist. Clark No. 2012-Ohio-CA-95, 2013-Ohio-3760, ¶ 16. Accordingly, the “ordinary
and natural definition” of the word applies. State v. Brown, 38 Ohio St. 3d 305, 308 (1988); State
v. Jenkins, 2d Dist. Miami No. 2000-CA-59, 2011 WL 848582, *5 (July 27, 2001). The dictionary
definition of “touch” includes “to bring a body part briefly into contact with so as to feel[,]” “to
strike or push lightly: extend the hand or foot or an implement so as to reach, nudge, stir up,
inspect, [or] arouse[,]” “[a] light stroke, tap, or push[,]” or “the act or fact of touching, feeling,
striking lightly, or coming in contact[.]” Webster’s Third New International Dictionary 2415-2416
(1993).
{¶7} None of the definitions of “touching” reviewed by this Court or by the Second
District Court of Appeals in Jones and Jenkins can be construed to include spitting on someone
else. Id.; Jones at ¶ 16; Jenkins at *5. The definitions all appear to include a requirement that part
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of one person’s body, or an implement attached to that person’s body, come into contact with
another person or object.
{¶8} Upon review of the record, we conclude that even if Mr. Bryant caused his saliva
to fall upon R.S.’s pubic region when he spit on her, that act was not a “touching” sufficient to
constitute sexual contact under Section 2907.01(B). The trial court, therefore, incorrectly
determined that Mr. Bryant committed two separate acts of GSI under Section 2907.05(A)(4). Mr.
Bryant’s sixth assignment of error is sustained.
ASSIGNMENT OF ERROR III
BECAUSE MR. BRYANT WAS PUNISHED TWICE FOR THE SAME
OFFENSE, ONE OF THE CONVICTIONS SHOULD BE REVERSED.
{¶9} In his third assignment of error, Mr. Bryant argues that the trial court should not
have punished him separately for each GSI count. In light of this Court’s resolution of Mr.
Bryant’s sixth assignment of error, we conclude that this issue is moot, and it is overruled on that
basis.
ASSIGNMENT OF ERROR IV
BECAUSE COUNTS 7 AND 8 ARE CARBON-COPIES OF EACH OTHER, MR.
BRYANT WAS DENIED DUE PROCESS.
{¶10} In his fourth assignment of error, Mr. Bryant argues that the GSI counts alleged in
the indictment were duplicative. According to Mr. Bryant, because the State did not provide him
with a bill of particulars, he did not receive adequate notice to prepare a defense and so one of the
counts must be dismissed. In light of this Court’s resolution of Mr. Bryant’s sixth assignment of
error, we conclude that this issue is moot, and it is overruled on that basis.
ASSIGNMENT OF ERROR I
BECAUSE THE TRIAL COURT ARBITRARILY AND ERRENEOUSLY
DISQUALIFIED RELEVANT, TRUSTWORTHY, AND ADMISSIBLE
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EVIDENCE OF VICTIM FABRICATION, MR. BRYANT’S CONVICTION
SHOULD BE REVERSED, AND THE CASE REMANDED FOR A NEW
TRIAL.
{¶11} In his first assignment of error, Mr. Bryant argues that the trial court incorrectly
excluded evidence that R.S. fabricated her testimony. “Admissibility determinations * * *
generally fall within the sound discretion of the trial court.” State v. Tyler, 9th Dist. Summit No.
29225, 2019-Ohio-4661, ¶ 23; State v. Sage, 31 Ohio St. 3d 173, 180 (1987). An abuse of discretion
occurs when the court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶12} Mr. Bryant notes that R.S.’s mother testified on cross-examination that R.S. had
told her that the sexual contact never happened and that R.S.’s grandmother had told R.S. to say
that it had happened. He notes that the trial court initially allowed the testimony over the objection
of the State. The next day, however, when the State attempted to present evidence to bolster R.S.’s
testimony, the court told the State that the testimony about R.S.’s grandmother telling R.S. to
fabricate the allegations was not in the case. The trial court recounted that, after the State objected,
it had allowed Mr. Bryant’s counsel to proceed a little while and then started examining the witness
on its own before finally sustaining the objection and not allowing the accusation that R.S. had
made up her testimony or that the grandmother had told her to accuse Mr. Bryant.
{¶13} Mr. Bryant argues, and the State concedes, that the trial court mistakenly
interchanged the ruling it had made the previous day regarding whether R.S. fabricated the
allegations with a ruling it had made regarding whether R.S.’s grandmother knew that Mr. Bryant
was a registered sexual offender. Unlike when the trial court ruled on the sexual-offender-
knowledge issue, the trial court did not ask R.S.’s mother any questions with respect to her
testimony that R.S. had made up the allegations and that R.S.’s grandmother had influenced her to
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make them up. Another indication that the trial court confused the two rulings is the fact that it
had sustained the State’s objection regarding the grandmother’s knowledge of Mr. Bryant’s
offender status but had overruled the State’s objection during R.S.’s mother’s testimony.
{¶14} The State argues that Mr. Bryant forfeited his argument because he did not object
when the trial court changed its ruling on the admissibility of R.S. mother’s testimony. Evidence
Rule 103(A)(1) provides that “[e]rror may not be predicated upon a ruling which admits or
excludes evidence unless * * * a timely objection * * * appears of record * * *.” We do not
believe that rule applies in this instance in which the court mistakenly recalled a ruling it made
earlier in the proceedings. Furthermore, although the court later answered “[r]ight” when the
prosecutor asked whether “the court is ruling that it’s not considering [mother’s] testimony
yesterday talking about [R.S.] saying in her presence that this never happened and [grandmother]
put her up to saying it[,]” the exchange occurred after the court had already announced that it was
in recess for the day. Accordingly, we cannot say that Mr. Bryant was required to object to the
trial court’s statement.
{¶15} R.S.’s mother’s testimony that R.S. had told her that the sexual contact did not
happen and that R.S.’s grandmother told her to say that it occurred was admissible because it was
relevant evidence. Evid.R. 401; Evid.R. 402. Specifically, R.S.’s mother’s testimony tended to
make it less probable that Mr. Bryant had, in fact, improperly touched R.S. Evid.R. 401. Upon
review of the record, we conclude that the trial court’s decision to admit the testimony but later
state that it was not going to consider the testimony and assert that it was “not in the case” because
of its confusion over what it had ruled the previous day was arbitrary and constituted an abuse of
the trial court’s discretion with respect to evidentiary decisions.
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{¶16} The State argues that the trial court’s error was harmless because there were issues
regarding the credibility of R.S.’s mother and because the allegations were supported by R.S.’s
testimony under oath in court and the statements she made previously during her interview at the
child advocacy center. Criminal Rule 52(A) provides that “[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” See also R.C. 2945.83(C).
The State has the burden of proving that an error did not affect the rights of the defendant. State
v. Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052, ¶ 23.
{¶17} The State argues that R.S. was able to draw a picture of what Mr. Bryant did to her
at the child advocacy center without prompting. She was also specifically asked at trial whether
she had ever told anyone that it did not happen and answered “[n]o.” R.S. also denied at trial that
her grandmother had told her to say it happened. On the other hand, R.S.’s mother told Mr. Bryant
a few months after the allegations that they are “ride or die,” meaning that she will love him
forever. The State notes that, following R.S.’s accusation, R.S.’s mother had R.S. spend the night
at her grandmother’s while she spent the night with Mr. Bryant. It notes that R.S.’s mother
collected bond money for Mr. Bryant’s release and offered to move her and R.S. into a shelter so
that Mr. Bryant could have a place to stay if he was released on bond. R.S.’s mother also never
told the law enforcement officers that she had spoken to about the case about R.S.’s alleged
fabrication. The State also argues that, even though the trial court found that R.S. gave “extremely
inconsistent statements,” it still found the elements of GSI proven beyond a reasonable doubt.
{¶18} There was no physical evidence that established that Mr. Bryant had sexual contact
with R.S. R.S.’s testimony was the only direct evidence that the offenses occurred and her
“extremely inconsistent statements” about what happened were, in fact, what convinced the trial
court to acquit Mr. Bryant of the rape and sexual battery offenses. If the trial court had considered
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R.S.’s mother’s testimony that R.S. told her that the incident did not occur, it may have also altered
its conclusion that the State had established Mr. Bryant’s guilt of GSI beyond a reasonable doubt.
Accordingly, upon review of the record, we conclude that Mr. Bryant may have been prejudiced
by the trial court’s error and that the State has failed to demonstrate that the error was harmless
beyond a reasonable doubt. See id. at ¶ 27-28; State v. Harris, 142 Ohio St. 3d 211, 2015-Ohio-
166, ¶ 39 (concluding that admission of evidence was not harmless beyond a reasonable doubt
because there was a reasonable possibility it contributed to the convictions). Mr. Bryant’s first
assignment of error is sustained.
ASSIGNMENT OF ERROR II
BECAUSE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
IN NOT OBJECTING TO THE TRIAL COURT’S DISQUALIFICATION OF
RELEVANT TESTIMONY OF THE VICTIM’S FABRICATION OF THE
CHARGES, MR. BRYANT’S CONVICTION SHOULD BE REVERSED AND
THE CASE REMANDED FOR A NEW TRIAL.
{¶19} In his second assignment of error, Mr. Bryant argues that his trial counsel provided
ineffective assistance when he did not object to the trial court’s statement that R.S.’s mother’s
testimony that R.S. had stated that the sexual contact did not occur and that her grandmother had
told her to say it had occur was “not in the case.” In light of this Court’s resolution of Mr. Bryant’s
first assignment of error, we conclude that this issue is moot, and it is overruled on that basis.
ASSIGNMENT OF ERROR V
BECAUSE THE TRIAL COURT’S JUDGMENT ON COUNTS 7 AND 8 WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THE
CONVICTIONS SHOULD BE REVERSED AND THE CASE RETRIED.
{¶20} In his fifth assignment of error, Mr. Bryant argues that his convictions are against
the manifest weight of the evidence. In light of this Court’s resolution of Mr. Bryant’s first
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assignment of error, we conclude that Mr. Bryant’s argument is moot, and it is overruled on that
basis.
III.
{¶21} Mr. Bryant’s first and sixth assignments of error are sustained. His second, third,
fourth, and fifth assignments of error are moot. The judgment of the Wayne County Court of
Common Pleas is reversed, and this matter is remanded for further proceedings consistent with
this decision.
Judgment reversed,
and cause remanded.
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 Wayne, 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 Appellee.
JENNIFER HENSAL
FOR THE COURT
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TEODOSIO, P. J.
CONCURS.
CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶22} I concur with respect to the majority’s resolution of assignments of error three, four,
and six. I concur in the majority’s judgment that assignments of error two and five are properly
overruled; however, I would address those assignments of error on the merits. With respect to
assignment of error one, addressing the admissibility of R.S.’s mother’s testimony, I respectfully
dissent from the judgment of the majority as I would overrule the assignment of error.
{¶23} In the trial court, Bryant asserted only that the R.S.’s mother’s testimony was
admissible for purposes of impeachment. On appeal, Bryant does not develop any argument
related to impeachment or cite to Evid.R. 613(B). I would decline to develop an argument for
him. Instead, on appeal, Bryant argues that the failure to allow the testimony violated his right to
due process and that the evidence was relevant, citing Evid.R. 401 and 402. In addition, Bryant
asserts that evidence of fabrication of rape charges is also admissible. As Bryant did not make the
arguments he now makes on appeal in the trial court, I would conclude that he forfeited
them. Further, because he has not argued plain error on appeal, I would overrule his assignment
of error on that basis. State v. Briggs, 9th Dist. Wayne Nos. 18AP0008, 18AP0023, 2019-Ohio-
5290, ¶ 31.
APPEARANCES:
EDWARD R. LA RUE, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.