State v. Moore , 2022 Ohio 2349 ( 2022 )

[Cite as State v. Moore, 2022-Ohio-2349.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
WESLEY MOORE : Case No. 21AP0003
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case. No. 20CR26
JUDGMENT: Reversed
DATE OF JUDGMENT: July 5, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK HOWDYSHELL BRIAN W. BENBOW
109 E. Main Street 265 Sunrise Center Drive
McConnelsville, OH 43756 Zanesville, OH 43701
Morgan County, Case No. 21AP0003 2
Wise, Earle, P.J.
{¶ 1} Defendant-appellant Wesley Moore appeals the June 30, 2021 sentencing
judgment entry of the Morgan County Court of Common Pleas sentencing him to 17
months incarceration following a conviction for one count of gross sexual imposition.
Plaintiff-appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} On September 4, 2018, 16-year-old Z.M. and some of her younger siblings
stayed the night at their aunt K.M.'s house. At that time, K.M and appellant lived together.
The two had been in a relationship for 12 years and have a child in common. Appellant
had been around for most of Z.M.'s life and she viewed him as an uncle.
{¶ 3} On the evening of September 4, 2018, after doing some crafts with appellant
and her siblings, Z.M. and her brother C.M. went to the living room and went to sleep.
Z.M. fell asleep on the sofa and C.M. on the floor. Two of her other siblings were already
asleep together in a recliner in the same room. Z.M. slept in a t-shirt, shorts, and snug-
fitting underwear.
{¶ 4} Sometime later, Z.M. woke up to find appellant sitting in the recliner next to
the sofa. She asked appellant what he was doing and he replied he was just watching a
movie. Z.M. rolled over onto her stomach to escape the light of the television and went
back to sleep.
{¶ 5} Z.M. next awoke to the feeling of appellant's hand on the back of her thigh
and moving up towards her buttocks. Appellant then groped Z.M.'s buttocks, put his hand
under her shorts and underwear, and touched her vaginal area. Without saying anything
Morgan County, Case No. 21AP0003 3
to appellant. Z.M. got up, grabbed her phone and went to the bathroom. She noticed the
time was 3:47 a.m.
{¶ 6} Z.M. was frightened and confused because she could not understand why
someone who was supposed to protect her would do such a thing. She stayed in the
bathroom for two hours. When she finally came out appellant said "I'm sorry if I hurt you."
A short time later, the children's stepmother arrived and took them home.
{¶ 7} Z.M. did not tell anyone what happened for two weeks. She then told her
sister, stepmother and her father. When she did tell them, she left out the fact that
appellant touched her bare skin because she feared her father would physically assault
appellant. Her father did not prompt her to tell law enforcement because he felt if he talked
to K.M. and appellant was no longer living with K.M., things did not need to go that far.
When that did not happen, in March 2019 Z.M. discussed the matter with law
enforcement. She told law enforcement the entire story – that appellant touched her bare
skin under her clothing.
{¶ 8} After advising law enforcement of the assault, Z.M. received a Facebook
Messenger video call from appellant. Appellant was lying on the floor with a shotgun and
his daughter standing in a doorway directly behind him. Appellant was crying and kept
repeating he would die before he would go to prison. Z.M. hung up.
{¶ 9} Appellant also contacted Z.M.'s father B.M. through Facebook Messenger.
Appellant sent a message to B.M. on September 19, 2018 apologizing for his behavior.
On January 24, 2019 appellant sent B.M. a message telling B.M. he would not be
attending a family function out of respect for B.M. and his family, and also asking B.M. to
direct any anger towards him and not K.M.
Morgan County, Case No. 21AP0003 4
{¶ 10} Appellant was subsequently charged with one count of gross sexual
imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth degree. Appellant pled
not guilty and the matter proceeded to a one-day jury trial on April 22, 2021.
{¶ 11} The state presented testimony from Z.M. and her father B.M., setting forth
the above outlined facts. The state then rested. Counsel for appellant did not move for
acquittal pursuant to Crim.R. 29 after the state rested nor after the defense rested.
Appellant presented no evidence. Neither the state nor counsel for appellant requested a
jury instruction for the lesser-included offense of sexual imposition. Following
deliberations, the jury found appellant guilty as charged.
{¶ 12} Appellant filed an appeal and the matter is now before this court for review.
Appellee has not filed a response brief. Appellant sets forth three assignments of error as
follow:
I
{¶ 13} "APPELLANT'S CONVICTION FOR GROSS SEXUAL IMPOSITION WAS
AGAINST BOTH THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE IN VIOLATION
OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION
1 & 16 OF THE OHIO CONSTITUTION."
II
{¶ 14} "THE TRIAL COURT DEPRIVED APPELLANT OF A FAIR TRIAL IN
VIOLATION OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE
1, SECTION 1 & 16 OF THE OHIO CONSTITUTION AS FOLLOWS:
1. BY PERMITTING THE STATE TO REFER TO APPELLANT AN "ANIMAL"
DURING CLOSING ARGUMENT;
Morgan County, Case No. 21AP0003 5
2. BY PERMITTING THE INTRODUCTION OF ALLEGED FACEBOOK
SCREEN SHOTS AND VIDEOS AND BY ALLOWING THE SAME TO BE
INTRODUCED TO THE JURY VIA TESTIMONY WITHOUT PROPER
AUTHENTICATION;
3. BY PERMITTING THE ALLEGED VICTIM'S FATHER TO GIVE A VICTIM
IMPACT STATEMENT IN FRONT OF THE JURY IN ORDER TO
IMPROPERLY ATTEMPT TO REHABILITATE THE ALLEGED VICTIM'S
PRIOR INCONSISTENT STATEMENT."
III
{¶ 15} "THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING A
$2,500.00 FINE WITHOUT FIRST CONSIDERING APPELLANT'S ABILITY TO PAY
AFTER IMPOSING A LENGTHY PRISON SENTENCE."
I
{¶ 16} In his first assignment of error, appellant argues his conviction for gross
sexual imposition is against the manifest weight and sufficiency of the evidence. We
agree.
Standard of Review
{¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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."
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
Morgan County, Case No. 21AP0003 6
S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to
examine 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 jury 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. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction." Martin at
175.
The Conviction
{¶ 18} Appellant was convicted of one count of gross sexual imposition pursuant
to R.C. 2907.05(A)(1) That section provides in relevant part:
No person shall have sexual contact with another, not the spouse of
the offender * * * when * * *:
(1) The offender purposely compels the other person * * * to
submit by force or threat of force.
{¶ 19} R.C. 2907.01(B) defines "Sexual contact" 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."
Morgan County, Case No. 21AP0003 7
{¶ 20} The term "force" is defined by R.C. 2901.01(A)(1) as "any violence,
compulsion, or constraint physically exerted by any means upon or against a person or
thing." "[T]he use of the word 'any' in the definition recognizes there are different degrees
of force." State v. Clark, 8th Dist. Cuyahoga No. 90148, 2008-Ohio-3358, ¶ 17. " '[S]ome
amount of force must be proven beyond that force inherent in the crime itself.' " State v.
Zimpfer, 2d Dist. Montgomery No. 26062, 2014-Ohio-4401, ¶ 46, citing State v. Dye, 82
Ohio St.3d 323, 327, 695 N.E.2d 763 (1998).
The Evidence
{¶ 21} Z.M testified that at the time of the sexual assault, she had known appellant
for 12 years and he was like an uncle to her. Transcript of trial (T.) at 108. Appellant and
Z.M.'s paternal aunt K.M. lived together and have a child in common. T. 108-109. Z.M.
and her siblings would often stay the night with appellant and K.M. They did so on the
evening/morning in question, September 4 and 5, 2018. T. 109-111. Z.M. routinely slept
on the sofa during these sleepovers and she slept there that evening. T. 113, 115-116.
She woke once to appellant in the room. She asked what he was doing and he told her
he was just watching a movie. T. 118. Z.M. rolled onto her stomach and went back to
sleep. T. 119. She recalled she was wearing a white t-shirt, gray shorts, and form-fitting
underwear. T. 119-120.
{¶ 22} Z.M. woke a second time shortly before 4:00 a.m because appellant had his
hand on the back of her thigh. She testified:
When I wake, I am woken by [appellant] rubbing the back of my leg.
It had to be his left hand by the way he was sitting when I stood. He
Morgan County, Case No. 21AP0003 8
then went from his hand position like this, and without hesitation,
turning his hand and forcing his thumb under my panties and onto
my vagina. * * * I got up and went to the bathroom after checking my
phone. It had been 3:47 I the morning. When I went to the bathroom
it was dark. When I came back out, it was daylight, and his exact
words to me were, I'm sorry if I hurt you.
{¶ 23} T. 117.
{¶ 24} Z.M. further testified it was what appellant was doing that caused her to get
up and leave the room. T. 140.
Lack of a Crim.R 29 Motion
{¶ 25} It bears mention that counsel for appellant failed to move for acquittal either
at the at the close of state's evidence or after the defense rested. T. 164. While this in no
way curtails our consideration of appellant's sufficiency argument, see State v. Jones, 91
Ohio St.3d 335, 346, 744 N.E.2d 1163 (2001), best practice weighs in favor of making the
motion at the appropriate times.
Appellant's Arguments
{¶ 26} We must first note that in his brief appellant argues Z.M. slept through the
assault. Appellant's brief at 6. The record, however, does not support appellant's
argument. Z.M. woke up because appellant was rubbing the back of her leg. T. 117. She
was therefore awake when she was assaulted. However, the assault occurred very
quickly after Z.M. awoke, in her words "instantly." T. 120.
Morgan County, Case No. 21AP0003 9
{¶ 27} Next, appellant makes two sufficiency arguments. He first argues the record
is devoid of any evidence of sexual arousal or gratification. We disagree. It is well settled
that in the absence of direct testimony regarding sexual arousal or gratification, the trier
of fact may infer that the defendant was motivated by desires for sexual arousal or
gratification from the type, nature, and circumstances of the contact, along with the
personality of the defendant. State v. Cobb, 81 Ohio App.3d at 185, 610 N.E.2d 1009(1991).
{¶ 28} Here, the jury could properly infer that because there was no legitimate
reason for a grown man to put his hand under his 16-year-old niece's shorts and
underwear in order to touch her vagina, that appellant's actions were carried out for
purposes of sexual arousal or gratification. Appellant's later apology to Z.M. further
supports such an inference. We therefore reject appellant's argument.
{¶ 29} Appellant next argues the state failed to prove appellant compelled Z.M. to
submit to sexual contact by force or threat of force. We agree.
Proof of Force for GSI When the Victim is a Minor Child
{¶ 30} As outlined above, R.C. 2907.05 (A)(1) requires the victim's submission to
sexual contact to be obtained by force or threat of force. The force element needed to
prove the offense of gross sexual imposition is the same as it is for rape. State v. Riggs,
10th Dist. Franklin Nos. 04AP-1279, 04AP1280, 2005-Ohio-5244 ¶120. To obtain a
conviction pursuant to the section charged the state was required to prove the will of Z.M.
was overcome by fear or duress. State v. Eskridge, 38 Ohio St.3d 56, 58-59, 526 N.E.2d
304 (1988). In Eskridge, the Supreme Court of Ohio found the amount of force required
to meet that requirement varies depending on the age of the victim and the relationship
Morgan County, Case No. 21AP0003 10
between the victim and the defendant. Id. at ¶ 58. The court held that when the
relationship is one of parent and a minor child "[f]orce need not be overt and physically
brutal, but can be subtle and psychological." Id. In State v. Dye, 82 Ohio St.3d 323, 328-
329, 695 N.E.2d 763 (1988) the court extended this holding to situations where an adult
defendant holds a position of authority over a minor child victim.
{¶ 31} In this matter, appellant held a position of authority over Z.M. She
considered him her uncle and he had been in her life for 12 years. Our task then becomes
to determine if manipulation of Z.M.'s clothing is sufficient to prove force under the facts
of this case.
{¶ 32} Generally, the Eighth District, regardless of the age of the victim, has held
that the manipulation of an initially sleeping victim's clothing in order to facilitate sexual
conduct or contact constitutes force under R.C. 2901.01(A)(1) even though such force
requires only minimal physical exertion. See, e.g., State v. Clark, Cuyahoga App. No.
94207, 2010-Ohio-5010, ¶ 23, citing State v. Sullivan (Oct. 7, 1993), Cuyahoga App. No.
63818 (Sleeping 12-year-old's pants and underwear pulled down to facilitate cunnilingus);
State v. Graves, Cuyahoga App. No. 88845, 2007-Ohio-5430 (26-year-old's pants pulled
down and legs separated to facilitate vaginal intercourse); State v. Lillard (May 23, 1996),
Cuyahoga App. No. 69242, 1996WL273781 (Appellant pulled up the sleeping 16-year-
old victim's robe and spread her legs in order to look into her vagina with a flashlight).
{¶ 33} In State v, Byrd, 8th Dist. Cuyahoga No. 82145, 2003-Ohio-3958, however,
the Eighth District found the state failed to produce sufficient evidence of force where the
defendant touched the 15-year-old victim's genitals over her clothing and the victim
discovered the defendant's actions as she awoke. The court found "[t]here was no
Morgan County, Case No. 21AP0003 11
evidence that the defendant applied any force in relation to her body and/or clothing, and
we therefore conclude, viewing the evidence in a light most favorable to the prosecution,
a rational trier of fact could not have found the essential element of force proven beyond
a reasonable doubt." Id. ¶ 25. In the same case, however, the court found the defendant's
acts of placing the legs of a second 14-year-old victim in his lap and touching her vaginal
area under her clothing as she awoke was sufficient to establish the element of force.
{¶ 34} State v. Green, 5th Dist. No. 01CA-A-12-067, 2002-Ohio-3949 involved the
rape of a 16-year-old victim by Green. Green gave the victim alcohol and she later fell
asleep a chair in the basement of Green's home. The victim awoke to find herself on the
floor with appellant on top of her engaging in vaginal intercourse. Her pants and
underwear had been pulled down around her ankles. Green was convicted of rape and
on appeal argued the state failed to prove force or threat of force. This court found Green's
relocation of the victim's body from the chair to the floor and his act of pulling down her
underwear and pants sufficient to establish force. Id. ¶ 60.
{¶ 35} In State v. Johnson, 2d Dist. No. 2009-CA-38, 2010-Ohio-2920, a 16-year-
old victim awoke positioned on her stomach with Johnson on top of her and holding her
down. He had pulled her shorts and underwear aside, and was engaging in vaginal
intercourse with her. The victim told Johnson to stop, but he did not. She briefly struggled
to get away from Johnson and was eventually able to elbow him off of her. Id. ¶ 4. On
appeal, Johnson argued the state had failed to prove the element of force. The Second
District Court of Appeals disagreed finding Johnson had moved the victim's underwear
and shorts aside, held her down with his hand on her back, failed to stop when the victim
Morgan County, Case No. 21AP0003 12
asked him to, and did not stop until the victim elbowed him off of her and onto the floor,
evidence sufficient to prove force. Id. ¶ 19.
{¶ 36} In State v. H.H. 10th Dist. No.10AP-1126, 2011-Ohio-6660, H.H was staying
in a hotel with his 17-year-old granddaughter P.W. The two agreed she would sleep on
the sofa and H.H. would sleep on the bed. Before bed, P.W. took medication which made
her very sleepy. After falling asleep on the sofa P.W. later awoke to find herself in the
bed, her underwear and pants removed, and H.H. engaging in vaginal intercourse with
her. P.W. tried to pull away but H.H. restrained her and told her to wait. H.H. appealed
his subsequent rape conviction arguing the state failed to prove the element of force. The
Tenth District Court of Appeals disagreed finding H.H.'s act of carrying his sleeping
granddaughter's body to the bed and removing her pants and underwear sufficient to
constitute force.
{¶ 37} While not a case involving a minor, the Third District Court of Appeals in
State v. Wine, 3d Dist. Auglaize No. 1-12-01, 2012-Ohio-2837, discussed the degree of
force required to prove force in cases involving a minor victim. The court rejected the
Eighth District's reduced level of force findings:
We decline to adopt the Eighth District's reduced level of force for
sleeping victims for several reasons. To begin with, the reasoning in
the Eighth District's line of cases stems from Eskridge where the
victim was the offender's four-year-old daughter. The Ohio Supreme
Court has limited the application of Eskridge's reduced levels of force
to situations where the offender is the victim's parent or holds a
Morgan County, Case No. 21AP0003 13
similar position of authority over a child-victim. Schaim, 65 Ohio St.3d
at 55, 600 N.E.2d 661; Dye, 82 Ohio St.3d at 329, 695 N.E.2d 763.
Other districts that have applied a reduced level of force for sleeping
victims have done so only in cases involving child-victims. State v.
Johnson, 2nd Dist. No.2009-CA-38, 2010-Ohio-2920, ¶ 18 (16 year-
old); State v. Burton, 4th Dist. No. 05CA3, 2007-Ohio-1660, ¶ 38 (10-
13 years old); State v. Green, 5th Dist. No. 01CA-A-12-067, 2002-
Ohio-3949, ¶ 61 (16 year-old); State v. H.H., 10th Dist. No. 10AP–
1126, 2011-Ohio-6660, ¶ 12 (17 year-old); State v. Rutan, 10th Dist.
No. 97APA03-389 (Dec. 16, 1997), (14-15 year-olds). The Eighth
District's focus upon "force necessary to facilitate the act" also
ignores the fact that "the statute requires that some amount of force
must be proven beyond that force inherent in the crime itself." Clark,
2008-Ohio-3358, at ¶ 17; Dye, 82 Ohio St.3d at 327, 695 N.E.2d 763.
The statute requires that the victim submit to the sexual contact by
force or threat of force. R.C. 2907.05(A)(1). This requires more than
"force necessary to facilitate the act" but force or threat of force
sufficient to overcome the will of the victim. Eskridge, 38 Ohio St.3d
at 58-59, 526 N.E.2d 304.
Since the Eighth District's interpretation of the element of force in
sleeping-victim cases "fails to recognize the requirement that the
force or threat of force must be sufficient to overcome the will of the
victim," it blurs the distinction between sex offenses requiring force
Morgan County, Case No. 21AP0003 14
and sex offenses not requiring force. State v. Henry, 3d Dist. No. 13-
08-10, 2009-Ohio-3535, ¶ 32. The General Assembly has provided
specific criminal offenses to protect victims, like S.D., "whose ability
to resist * * * is substantially impaired because of a * * * physical
condition" or who submit because they are "unaware that the act is
being committed." See R.C. 2907.02(A)(1)(c); 2907.05(A)(5);
2907.03(A)(3). The Court of Appeals has concluded that sleeping is
a 'physical condition' that substantially impairs a victim's ability to
resist for purposes of rape in violation of R.C. 2907.02(A)(1)(c).
Graves, 2007-Ohio-5430, at ¶ 22, citing State v. Younger, 8th Dist.
No. 86235, 2006-Ohio-296; State v. Wright, 9th Dist. No. 03CA0057-
M, 2004-Ohio-603, ¶ 6; H.H., 2011-Ohio-6660, at ¶ 10. For the same
reason, an offender may also be convicted of committing gross
sexual imposition against a sleeping victim under R.C.
2907.05(A)(5). See id. Similarly, an offender may be convicted of
committing sexual battery or sexual imposition against a sleeping
victim under R.C. 2907.03(A)(2), (3) or R.C. 2907.06(A)(3). Henry,
2009-Ohio-3535, at ¶ 33, citing State v. Lindsay, 3d Dist. No. 8-06-
24, 2007-Ohio-4490; State v. Antoline, 9th Dist. No. 02CA008100,
2003-Ohio-1130; Wright, 2004-Ohio-603; State v. Byrd, 8th Dist. No.
82145, 2003-Ohio-3958, ¶ 23. By diminishing R.C. 2907.05(A)(1)' s
element of force to mere manipulation of a sleeping victim's body or
clothing, the Eighth District usurps the General Assembly's power to
Morgan County, Case No. 21AP0003 15
define and codify criminal offenses and to treat offenders differently
depending upon the nature of their conduct.
{¶ 38} Against that background, even if we were to adopt the Eighth District's
reduced level of force for initially sleeping victims, we find the facts here are
distinguishable from any of the above-mentioned sleeping child-victim cases which
appear to require manipulation of clothing plus something more, such as relocation of the
victim or repositioning of the victim's limbs. While appellant did manipulate Z.M.'s clothing,
as soon as Z.M. became aware of the nature of appellant's conduct, she got up and left
the room. T. 140. Appellant did not tell Z.M. to do or refrain from doing anything, did not
restrain her in any way nor reposition or relocate her body in any way, and did not prevent
Z.M. from leaving the room. He did not hold Z.M. down in order to commit the act of
touching Z.M. While we find appellant's conduct despicable, we nonetheless find the
evidence presented by the state insufficient to prove force or threat of force. Additionally,
while appellant's conduct would meet the elements of gross sexual imposition under R.C.
2907.05(A)(5) or sexual imposition pursuant to R.C. 2907.06(A)(1), the state did not
charge under these code sections nor request to amend the indictment nor request a jury
instruction for the lesser-included offense of sexual imposition.
{¶ 39} Appellant's first assignment of error is sustained.
II, III
{¶ 40} Given our resolution of the first assignment of error, appellant's remaining
assignments of error are moot.
Morgan County, Case No. 21AP0003 16
{¶ 41} The judgment of the Morgan County Court of Common Pleas is reversed
and appellant's conviction is vacated.
By Wise, Earle, P.J.
Wise, John, J. and
Delaney, J. concur.
EEW/rw