State v. Anderson

[Cite as State v. Anderson, 2016-Ohio-7275.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27886
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROBERT C. ANDERSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014-11-3544
DECISION AND JOURNAL ENTRY
Dated: October 12, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Robert C. Anderson appeals from the judgment of the
Summit County Court of Common Pleas. We affirm.
I.
{¶2} In December 2014, Mr. Anderson was indicted on one count of rape and one
count of sexual battery involving an assault on his friend, S.F., which occurred on November 16,
2014. The indictment was later supplemented to add an additional count of rape and a sexually
violent offender specification that accompanied each of the rape charges.
{¶3} The matter proceeded to a jury trial. The jury found Mr. Anderson not guilty of
the two counts of rape, but guilty of sexual battery. Mr. Anderson was sentenced to five years in
prison.
{¶4} Mr. Anderson has appealed, raising three assignments of error for our review,
which will be addressed out of sequence to facilitate our analysis.
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II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL’S
CRIMINAL RULE 29 MOTION.
{¶5} Mr. Anderson argues in his third assignment of error that the trial court erred in
denying his Crim.R. 29 motion because there was insufficient evidence presented by the State to
allow a jury to find Mr. Anderson guilty of sexual battery.
{¶6} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.” State v. Bulls, 9th Dist. Summit No. 27029,
2015-Ohio-276, ¶ 6, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶
33. The issue of 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).
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.
{¶7} Mr. Anderson was found guilty of sexual battery in violation of R.C.
2907.03(A)(3). R.C. 2907.03(A)(3) states that, “[n]o person shall engage in sexual conduct with
another, not the spouse of the offender, when * * * [t]he offender knows that the other person
submits because the other person is unaware that the act is being committed.” “‘Sexual conduct’
means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus
between persons regardless of sex; and, without privilege to do so, the insertion, however slight,
of any part of the body or any instrument, apparatus, or other object into the vaginal or anal
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opening of another. Penetration, however slight, is sufficient to complete vaginal or anal
intercourse.” R.C. 2907.01(A). “A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be of a certain nature.
A person has knowledge of circumstances when he is aware that such circumstances probably
exist.” Former R.C. 2901.22(B).
{¶8} S.F. met Mr. Anderson a few years prior to 2014 and the two became best friends.
S.F. testified that she trusted Mr. Anderson completely. S.F. testified that she dated Mr.
Anderson for a short period of time in September 2014, but it lasted only about a week. S.F.
indicated that the last time the two had consensual sex was in September 2014. During
November 2014, S.F. was dating someone else. In November 2014, S.F. was living with her
boyfriend and Mr. Anderson was staying in the garage of S.F.’s mother’s house. S.F.’s sister,
niece, and brother also lived at S.F.’s mother’s house.
{¶9} On November 16, 2014, S.F. was staying the night at her mother’s house. For a
short time, her boyfriend was also there and the two of them hung out in the basement. S.F.’s
boyfriend left around 5:00 pm for out-of-town work. Sometime later, S.F.’s good friend Robert
Kiefer came over.
{¶10} S.F. developed a headache and thought it may have been because her mother’s
house had mold, cockroaches and mice. Thus, when Mr. Anderson came down and asked if S.F.
and Mr. Kiefer wanted to join him in the garage, she agreed to do so. The three sat in the garage
and talked. Mr. Anderson was smoking marijuana.
{¶11} S.F. denied having any alcohol or drugs that day and said that at that point she had
been sober for two months. She acknowledged that she had a history of prior drug abuse for
which she received treatment in a psychiatric facility in August 2014. She also admitted that she
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suffered from PTSD, depression, anxiety, and ADHD at that time. While S.F. had taken an
aspirin while in her mother’s house, she nonetheless still had a headache. She thus decided to lie
down on the couch. She pulled a blanket over her and fell asleep. Mr. Kiefer had planned to
spend the night at S.F.’s mother’s at S.F.’s request, but after he began falling asleep in a chair,
Mr. Anderson told Mr. Kiefer to leave. Mr. Kiefer kissed S.F. and told her goodbye but she did
not respond as she was asleep. Both S.F. and Mr. Kiefer testified that S.F. was a heavy sleeper.
Mr. Kiefer proceeded to walk home to his house around 10:30 p.m. Mr. Kiefer stated that S.F.
had not had anything to drink that night.
{¶12} When S.F. awoke, she was lying on her stomach with Mr. Anderson on top of her.
The jeans she had been wearing were not within her sight and the leggings she had had on
underneath were down around her ankles. S.F. testified that she felt Mr. Anderson trying to
insert his penis into her rectum and she thought that he had spit on her rectum as well. She
testified that his penis did penetrate her rectum. Additionally, she also felt his fingers in her
vagina, but was not sure if he penetrated her vaginally with his penis. While S.F. did not tell Mr.
Anderson to stop, she did keep moving around in attempt to get him to stop. She indicated that
she did not tell Mr. Anderson to stop because she had been assaulted in the past and did not want
to get hurt any worse than she had already been hurt.
{¶13} Eventually, Mr. Anderson got off of her and S.F. wrapped herself up in the
blanket. After she heard Mr. Anderson go to the door and it stayed silent for a while, S.F.
contacted Mr. Kiefer and told him that she had been raped. Mr. Kiefer met S.F. and took her to
his house and S.F. called 911 from there. Mr. Kiefer testified that S.F. was crying and “was very
hysterical.” Portions of the 911 call were played for the jury. During the 911 call, she told the
operator that Mr. Anderson had pushed a tampon farther inside of her. S.F. testified that she
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never has had consensual sex while wearing a tampon. She also testified that she was very upset
and also angry with Mr. Anderson because she trusted him.
{¶14} S.F. told police that she had been asleep and awoke to find Mr. Anderson on top
of her. She indicated that he had penetrated her both anally and vaginally. The police and
medical personnel that interacted with S.F. testified that it did not appear that S.F. was under the
influence of drugs or alcohol. S.F. was taken to the hospital and underwent a protocol using a
rape kit. And while S.F. did not report any pain to the paramedics, she did report having pelvic
and vaginal pain to the nurse who examined her. She also reported to the nurse that Mr.
Anderson had tried to penetrate her anally with his penis and did penetrate her vaginally with his
penis. S.F. told the nurse she was unsure whether there was vaginal penetration by Mr.
Anderson’s fingers. The nurse noted that the area around S.F.’s anus was very red. The nurse
described S.F.’s demeanor as being intermittently tearful and angry during the examination.
{¶15} Samples taken from the rape kit were sent to the Ohio Bureau of Criminal
Investigation (“BCI”) for analysis. A single sperm cell was identified on the anal/perianal
sample. Erika Jimenez, a forensic scientist from BCI, testified about the DNA results. Both
STR and Y-STR analysis was performed on the samples. STR DNA testing was described as
traditional DNA testing, while Y-STR DNA testing was described as male specific DNA testing.
The Y-STR profile recovered from the vaginal swab, anal swab, and perianal swab was
consistent with Mr. Anderson’s DNA profile. The STR profile recovered from the anal swab
was also consistent with Mr. Anderson’s DNA profile. The STR profile from the perianal swab
was inconclusive as to Mr. Anderson. S.F.’s boyfriend was excluded as a contributor to the
samples taken.
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{¶16} Portions of Mr. Anderson’s statement to the police were also played for the jury.
Mr. Anderson indicated that on the night of November 16, 2014, he left the garage to go for a
walk a few minutes after Mr. Kiefer left and that when he left S.F. was still awake. Mr.
Anderson told S.F. that he would be back in a little while. He also told the detective that he was
stoned that night.
{¶17} Later in the interview, Mr. Anderson told police that after Mr. Kiefer left, and
while S.F. was half asleep but mostly awake, he began touching S.F.’s rectum and vaginal area
and admitting to use his spit for lubrication. He indicated that he did not undress S.F. According
to Mr. Anderson, at one point, S.F. told him to stop and he did. Mr. Anderson denied penetrating
S.F. with his penis or his fingers and never admitted to taking his clothes off. He also asserted
that he had a medical condition that caused him to be unable to penetrate her with his penis at
that time.
{¶18} Given the foregoing, we cannot conclude that the trial court erred in denying Mr.
Anderson’s Crim.R. 29 motion. Mr. Anderson’s argument for this assignment of error is very
broad and merely asserts that the trial court erred without providing specific reasons why the trial
court did so. See App.R. 16(A)(7).
{¶19} Here, there was evidence that S.F. was asleep and that Mr. Anderson knowingly
engaged in sexual conduct with her while she was asleep. See R.C. 2907.03(A)(3); see also State
v. Antoline, 9th Dist. Lorain No. 02CA008100, 2003-Ohio-1130, ¶ 55 (noting that many
prosecutions under R.C. 2907.03(A)(3) involve situations in which “the victim was either asleep
or unconscious, and awakened to discover the offender engaging in sexual conduct with him or
her[]”). Mr. Kiefer testified that S.F. was soundly asleep when he left and there was testimony
that S.F. was a sound sleeper. There was also evidence presented that Mr. Anderson penetrated
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S.F. both anally and vaginally. Further, the DNA profile recovered from the samples that were
sufficient for analysis was consistent with Mr. Anderson’s DNA profile and S.F.’s boyfriend was
excluded as a possible contributor. Thus, the State presented sufficient evidence, if believed, that
would allow a trier of fact to conclude that Mr. Anderson committed sexual battery. See Bulls,
2015-Ohio-276, at ¶ 6, quoting Frashuer, 2010-Ohio-634, at ¶ 33, and Jenks, 61 Ohio St.3d 259,
at paragraph two of the syllabus.
{¶20} Mr. Anderson’s third assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT
FOR HAVING WEAPONS WHILE UNDER DISABILITY AND
OBSTRUCTING OFFICIAL BUSINESS.1
{¶21} Mr. Anderson argues in his first assignment of error that there was insufficient
evidence presented for a jury to find him guilty of sexual battery.
{¶22} The standard for reviewing the sufficiency of the evidence has been stated above.
Mr. Anderson focuses much of his argument on alleged issues with S.F.’s credibility. He argues
that it is unreasonable for a trier of fact to believe that Mr. Anderson could have removed S.F.’s
jeans and leggings without S.F. waking up. He also points to the fact that S.F.’s sister, half-
sister, and mother testified that they did not consider S.F. to be an honest person. However, in
reviewing the sufficiency of the evidence, we do not consider credibility and instead view the
evidence in a light most favorable to the State. See Jenks, 61 Ohio St.3d 259, at paragraph two
of the syllabus.
1
While the assignment of error mentions having weapons under disability and
obstructing official business, it appears that those errors are typographical. The argument itself
appropriately discusses Mr. Anderson’s conviction for sexual battery.
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{¶23} As we noted above, sufficient evidence was presented, if believed, whereby a
reasonable trier of fact could find beyond a reasonable doubt that Mr. Anderson committed the
offense of sexual battery.
{¶24} Mr. Anderson’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE VERDICT OF GUILTY FOR SEXUAL BATTERY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶25} Mr. Anderson argues in his second assignment of error that the verdict of guilty
for sexual battery was against the manifest weight of the evidence.
{¶26} When a defendant asserts that his conviction is against the manifest weight of the
evidence:
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶27} In addition to the testimony discussed above, Mr. Anderson presented the
testimony of S.F.’s mother, half-sister, and sister. Each of them testified that S.F. was not an
honest person; however, they also all acknowledged that they were not inside the garage with
S.F. and Mr. Anderson on the evening of November 16, 2014. Generally, S.F.’s version of
events was consistent throughout the trial. Further, what she told police and medical personnel
happened that night was also generally consistent. S.F. was unwavering in her assertion that Mr.
Anderson engaged in sexual conduct with her while she was asleep; she consistently stated that
she awoke to find Mr. Anderson penetrating her anally and vaginally. A DNA profile consistent
with Mr. Anderson’s profile was recovered from the vaginal, anal, and perianal swabs, whereas,
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S.F.’s boyfriend was excluded as a contributor to the samples. Further, a sperm cell was noted
on the anal/perianal sample, evidence that would tend to contradict the version of events Mr.
Anderson provided during his police interview.
{¶28} Mr. Anderson seems to argue that, because S.F. woke up during the assault and
did not object, Mr. Anderson could not have committed sexual battery. However, a logical
inference from S.F.’s testimony is that Mr. Anderson was engaged in sexual conduct with S.F.
while she was asleep. Accordingly, Mr. Anderson’s argument is without merit. To the extent
Mr. Anderson argues that a jury could not reasonably conclude that S.F. slept through having her
jeans and leggings removed, we note that both S.F. and Mr. Kiefer testified that S.F. was a sound
sleeper. Further, we remain mindful that “[e]valuating evidence and assessing credibility are
primarily for the trier of fact.” (Citations omitted.) Bulls, 2015-Ohio-276, at ¶ 17. Mr.
Anderson also points to S.F.’s prior drug abuse and mental health issues as a basis for
discrediting her testimony. The jury was aware that S.F. had a drug problem and had some
mental health issues and was aware of her treatment in a psychiatric facility for her drug
problem. However, the jury also heard from police and medical personnel that S.F. did not
appear to be under the influence of drugs or alcohol when she was interviewed or examined.
{¶29} Given the totality of the record, we cannot conclude that the jury’s credibility
determinations were unreasonable. After thoroughly reviewing the entire record, we cannot say
that the jury lost its way in finding Mr. Anderson guilty of sexual battery.
{¶30} Mr. Anderson’s second assignment of error is overruled.
III.
{¶31} The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.