State v. Ward ( 2021 )

[Cite as State v. Ward, 2021-Ohio-4116.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-06-009
: OPINION
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:
CHRISTOPHER WARD, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 19CR12910
David A. Yost, Ohio Attorney General, and Andrea K. Boyd, Assistant Attorney General, for
appellee.
The Hobbs Law Office, and H. Steven Hobbs, for appellant.
PIPER, P.J.
{¶ 1} Appellant, Christopher Ward, appeals his convictions in the Preble County
Court of Common Pleas for multiple counts of sexual battery and gross sexual imposition.
{¶ 2} Ward, a trooper with the Ohio State Highway Patrol, was investigated after
multiple women and a minor made allegations against him of sexual misconduct. The
minor, a 15-year-old girl, told police that during a sleep-over with Ward's daughter, Ward
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touched her pubic area underneath her panties. One woman told police that she was a
passenger in a car that Ward pulled over for speeding. After Ward ordered her out of the
car, Ward patted the woman down multiple times, using an open hand and cupping the area
between the woman's legs and chest area with his hands.
{¶ 3} Ward pulled another woman over for allegedly having a broken brake light on
a trailer she was pulling behind her vehicle. Ward entered the woman's vehicle with his
pants unzipped. When the woman tried to exit her vehicle, Ward pulled her by her hair
closer to him and threatened her. He then slapped her, stepped on her hand, and forced
his penis into her mouth. After the sexual assault occurred, Ward photographed the woman
with a camera.
{¶ 4} Another woman reported that Ward pulled her over several times, issuing a
warning each time rather than a citation. He wrote his telephone number on the last written
warning he gave her, and the woman agreed to call him out of hopes that he would stop
pulling her over. The two went to dinner and then back to Ward's home where the woman
had parked her vehicle. The woman heard Ward answer a telephone call from his daughter
and heard that Ward was screaming at his daughter over the phone. He then disappeared
for a few moments and then returned wearing his trooper's uniform. He then pinned the
woman's arms down and placed his hands down the woman's pants and rubbed her vaginal
area underneath her clothing. She was then able to escape.
{¶ 5} Ward was indicted on several counts related to the sexual misconduct. Ward
pled not guilty, waived his right to a jury trial, and the matter proceeded to a four-day bench
trial. The trial court found Ward guilty of one count of sexual battery and three counts of
gross sexual imposition. The trial court sentenced Ward to an aggregate sentence of three
years in prison and designated him a Tier III sex offender. Ward now appeals his
convictions and sentence, raising the following assignments of error.
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{¶ 6} Assignment of Error No. 1:
{¶ 7} THE STATE VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS IN
FAILING TO COMPLY WITH BRADY V. MARYLAND.
{¶ 8} Ward argues the state improperly withheld favorable evidence from the
defense in violation of the United States Supreme Court's decision in Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963). Specifically, Ward argues that the state suppressed
favorable evidence when it did not produce GPS records that showed the location of Ward's
patrol cruiser during the alleged sexual offenses.
{¶ 9} "The suppression by the prosecution of evidence favorable to an accused
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." State v. Johnston, 39 Ohio
St.3d 48 (1988), paragraph four of the syllabus, citing Brady. Evidence is material pursuant
to Brady "only if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different. A 'reasonable
probability' is a probability sufficient to undermine confidence in the outcome." Johnston at
paragraph five of the syllabus. Brady and its progeny apply only to evidence unknown to
the defendant at the time of the trial. State v. Smith, 12th Dist. Fayette No. CA2015-12-
024, 2016-Ohio-5668, ¶ 19-20
{¶ 10} In order to establish a Brady violation, a defendant must show that (1) the
evidence at issue was favorable to him or her because it was either exculpatory or
impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently;
and (3) prejudice ensued. State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-
Ohio-62, ¶ 91, citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936 (1999).
{¶ 11} The Brady test is stringent and the mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of the trial,
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does not establish "materiality" in the constitutional sense. State v. Fulton, 12th Dist.
Clermont No. CA2002-10-085, 2003-Ohio-5432, ¶ 33, citing United States v. Agurs, 427
U.S. 97, 109-110, 96 S. Ct. 2392 (1976). Also, a Brady violation occurs only where
suppressed exculpatory evidence is discovered after trial so that even if the evidence is
disclosed during the trial, there is no Brady violation. State v. Clarke, 12th Dist. Butler No.
CA2015-11-189, 2016-Ohio-7187, ¶ 40.
{¶ 12} After reviewing the record, we find that the state did not violate Brady for
multiple reasons. The GPS records in question showed the location of Ward's patrol cruiser
at various times. It is undisputed that the documents showing the coordinates were public
record and thus available to Ward at any point prior to trial. In fact, Ward asserted in his
motion for a new trial that he had made a public records request for records of his GPS
coordinates that he now claims were suppressed by the state. See State v. Stepp, 12th
Dist. Butler No. CA2020-05-062, 2020-Ohio-6901, ¶ 22 (no Brady violation where nothing
prevented the appellant from filing a public records request for the information alleged to
have been suppressed); State v. Davis, 5th Dist. Licking No. 2008-CA-16, 2008-Ohio-6841,
¶ 57 (no Brady violation where the records were publicly available and appellant could have
obtained access to them); and Matthews v. Ishee, 486 F.3d 883, 890-91 (6th Cir.2007)
(concluding that documents in question were public information so that the government
could not have "disclosed" information "readily available to the defense").
{¶ 13} Moreover, the record indicates that the state produced 568 pages of GPS
records as part of its supplemental discovery and gave notice of such discovery well in
advance to the bench trial. These records showed approximately three months of GPS
information regarding Ward while he was on duty. Ward was clearly aware that the state
had in its possession GPS information for a specific timeframe and could easily have
requested different or additional records to account for other times. Thus, the records were
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not known only to the state, and Ward was able to procure additional documents had he
wanted such for purposes of trial.
{¶ 14} Nor can Ward demonstrate that the records would have been material within
the meaning of Brady, as there is no indication that Ward would not have been convicted
had he received every record noting his cruiser's location. The record indicates that Ward's
location was only recorded via GPS when he reported an incident. During trial, the court
heard the following testimony from a staff lieutenant with the Ohio State Highway Patrol's
Planning and Research Development Section who works with the Highway Patrol's policy
and accreditation, central records, and statistical analysis.
[Q] How does a dispatcher know when to open an incident?
[A] * * * it's usually when the – the Trooper radios the dispatcher.
[Q] So in order to start an incident, the Trooper must radio
dispatch?
[A] Yes.
[Q] So if a Trooper doesn't radio dispatch[,] an incident may not
be recorded?
[A] It may not be if, if the dispatcher's not getting any information
back. * * *.
[Q] Well, let's say a Trooper doesn't want dispatch to know, if
they don't tell dispatch that they're stopping somebody, and if
they don't run them through LEADS, would dispatch know that
they're stopping somebody?
[A] Not – no.
Thus, if Ward did not report an incident during the times the women were assaulted, his
cruiser's location would not have been recorded and he would not have been able to prove
his physical location in a different area.
{¶ 15} Had Ward believed that his cruiser's location could have proven he was
somewhere else during a time he was accused of committing the sexual misconduct, he
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could have requested a copy of the record via a public records request. However, he did
not do so and there is no indication in the record that the state suppressed any exculpatory
documents. Having found no Brady violation, Ward's first assignment of error is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE DEFENDANT-APPELLANT'S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 18} Ward argues in his second assignment of error that his convictions are against
the manifest weight of the evidence.
{¶ 19} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
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. Miller, 12th Dist. Preble No. CA2019-11-010, 2021-Ohio-162, ¶ 13.
{¶ 20} Questions regarding witness credibility and weight of the evidence "are
primarily matters for the trier of fact to decide since the trier of fact is in the best position to
judge the credibility of the witnesses and the weight to be given the evidence." State v.
Walker, 12th Dist. Butler App. No. CA2006-04-085, 2007-Ohio-911, ¶ 26. As such, an
appellate court will overturn a conviction due to the manifest weight of the evidence only in
extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal. State v. Ostermeyer, 12th Dist. Fayette No. CA2021-01-002, 2021-Ohio-3781,
¶ 35.
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{¶ 21} Ward was convicted of sexual battery in violation of R.C. 2907.03(A)(6), which
provides, "no person shall engage in sexual conduct with another, not the spouse of the
offender, when any of the following apply: The other person is in custody of law or a patient
in a hospital or other institution, and the offender has supervisory or disciplinary authority
over the other person." Ward was also convicted of gross sexual imposition in violation of
R.C. 2907.05(A)(1) and (5), which provide,
No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause two
or more other persons to have sexual contact when any of the
following applies:
(1) The offender purposely compels the other person, or one
of the other persons, to submit by force or threat of force.
(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.
{¶ 22} After reviewing the evidence, we find that Ward's convictions were not against
the manifest weight of the evidence. Regarding the first conviction for gross sexual
imposition, the state presented testimony from the minor who informed police that Ward
had touched her pubic area. The victim testified that when she was 15 years old, she spent
the night at Ward's house with his daughter, with whom she was friends. At approximately
1:00 a.m., Ward came into his daughter's room where the two girls were lying next to each
other in the same bed. The victim testified that she had seen Ward drinking alcohol earlier
in the evening and that she thought he was drunk at the time he spoke to the girls. After
speaking with the girls for approximately an hour, he left the room and the two fell asleep.
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{¶ 23} The victim testified that she later awoke when she felt a hand rubbing the
bottom of her leg. She turned the opposite direction in the bed and fell back to sleep.
However, she awoke again when she felt a hand on her inner thigh. The victim testified
that the hand was rubbing her and moving toward her pubic area, and that the hand was
larger than a woman's hand and rough. She also testified that she felt the hand underneath
her panties touching her pubic hair.
{¶ 24} The victim testified that she nudged Ward's daughter in the back and that
Ward's daughter woke up. Although the victim did not tell Ward's daughter what had just
occurred, Ward's daughter observed her father on the floor next to the bed and told him that
he was not supposed to be in her room. Ward responded that he must have fallen asleep
while he was speaking with the girls. However, the victim testified that she and Ward's
daughter had seen Ward leave the room earlier in the night.
{¶ 25} The next morning, Ward texted his daughter and asked that she tell the victim
that he was "sorry about last night." However, the victim did not tell Ward's daughter what
occurred. Instead, she called her sister and told her about the events. The victim's sister
informed their mother and the victim's mother told the victim to inform Ward's daughter what
occurred on the night in question. After the victim texted Ward's daughter and told her what
occurred on the night in question, Ward's daughter told her older sister, and a detective
later came to the victim's home to ask her about the events.
{¶ 26} The state then presented testimony from Ward's daughter who also testified
that she observed Ward drinking alcohol on the night in question and that he came into her
room and talked to her and the victim. Ward's daughter testified that after he left, he closed
the door. However, she was later awoken and observed her father laying on the floor of
her bedroom. Ward's daughter testified that she told him to get out of her room and that he
left.
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{¶ 27} Regarding another count of gross sexual imposition, the victim testified that
she and her friend were on their way to breakfast when Ward pulled them over for speeding.
The victim, who was the passenger in the vehicle, testified that Ward removed her friend
from the car and placed her in the back of his cruiser. He then asked the victim to exit the
vehicle and consent to a pat down. The victim complied. The victim testified that Ward told
her to stand with her arms down at her side and to spread her legs. He then patted down
the victim's arms and sides, and then patted down her chest area. The victim testified that
Ward paused on her chest area and then continued to pat down her legs, thighs, as well as
her vaginal area with an open palm, and that he repeated his pat down three times.
{¶ 28} When asked to more thoroughly explain the way in which Ward patted her
down in her vaginal area, the victim testified that Ward cupped his hand, "pressed up
against, rubbing inward and his fingers curled a couple of times just pressing up, just feeling
overly in-depth in there each time." The victim testified that after Ward patted her down for
the last time, he placed her in the back of his cruiser with her friend and that she told her
friend that Ward had touched her vagina. Once Ward released the two, they continued to
a nearby restaurant where the victim called police and her father. She then filed a complaint
with the Ohio State Highway patrol.
{¶ 29} The final gross sexual imposition victim testified that Ward pulled her over
multiple times over an extended period of time, each time issuing her a warning. The last
time he pulled her over, he issued a written warning and included his name and telephone
number on the back of the citation. The victim testified that she called Ward in hopes of
stopping his pulling her over. They agreed to a date, and she drove to his house to meet
him.
{¶ 30} The victim testified that the two went to dinner and then returned to Ward's
house. There, the victim overheard Ward on the telephone with his daughter. She testified
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that Ward was yelling and screaming during his telephone conversation and that his face
was "blood red." He then disappeared from the victim's view and came back wearing his
trooper's uniform.
{¶ 31} Ward moved behind the victim's body and put his arms around her. The victim
testified that Ward placed his arms over her arms and then placed his hands down her
pants and began rubbing her vaginal area. The victim was able to "twist" out of Ward's
arms and leave his house.
{¶ 32} Regarding the sexual battery charge, the victim testified she was returning
home after transporting a horse in a trailer when she was pulled over by Ward. Ward told
her to shut off her engine, took her driver's license, and told her that he had pulled her over
because a light on the trailer was broken. Ward then claimed that the road noise was too
loud and went around to the passenger side of the victim's vehicle and entered her truck.
When the victim asked Ward to exit her truck, he told her to "shut up" and that she needed
to listen to him. Ward then unbuckled the victim's seatbelt, grabbed her hair, and pulled her
across the seat. When the victim cried out and told Ward, "no," he again told her to shut
up.
{¶ 33} The victim testified that Ward's pants were unzipped and that he exposed his
penis. Ward told the victim that he knew where she was from and that he had friends in her
location that would "watch over" her. Ward instructed the victim to make him "happy." The
victim tried to move, but Ward held her head, pushed it down, and stepped on her hand
with his boot. When the victim began crying, Ward yanked her head up by her hair and
slapped her in the face. Ward then forced his penis into the victim's mouth. After Ward
released the victim, he smiled at her and warned her that he could "do certain things" to
keep her "quiet." He then produced a camera and took a photograph of the victim.
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{¶ 34} Ward testified in his own defense and claimed that he did not commit any of
the charged sexual crimes. On appeal, he further points to minor contradictions in the
witnesses' testimony regarding their retelling of the sexual misconduct. However, the
inconsistencies, such as at what time of the day the incident occurred, were inconsequential
to the overall question of whether the act took place, and instead, were meant to test the
credibility of the witnesses. The trial court was in the best position to judge the credibility
of the witnesses, and we will not disturb such findings on appeal. Convictions are not
against the manifest weight of the evidence simply because the trier of facts believed the
state's witnesses over the defense. State v. Martino, 12th Dist. Butler No. CA2017-09-139,
2018-Ohio-2882, ¶ 13.
{¶ 35} After reviewing the record and weighing the evidence with all related
reasonable inferences, we find that the trial court did not clearly lose its way or create such
a manifest miscarriage of justice that Ward's convictions must be reversed and a new trial
ordered. As such, his second assignment of error is overruled.
{¶ 36} Judgement affirmed.
HENDRICKSON and BYRNE, JJ., concur.
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