State v. Haskell

[Cite as State v. Haskell, 2015-Ohio-3095.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-15-03
v.
BRETT A. HASKELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Upper Sandusky Municipal Court
Trial Court No. CRB 14-380
Judgment Affirmed
Date of Decision: August 3, 2015
APPEARANCES:
Scott B. Johnson for Appellant
Richard A. Grafmiller for Appellee
Case No. 16-15-03
ROGERS, P.J.
{¶1} Defendant-Appellant, Brett Haskell, appeals the judgment of the
Upper Sandusky Municipal Court convicting him of one count of sexual
imposition and sentencing him to 30 days in jail. On appeal, Haskell argues that
the trial court erred by (1) admitting certain hearsay statements; (2) entering a
verdict that was not supported by sufficient evidence; (3) entering a verdict that
was against the manifest weight of the evidence; and (4) entering a verdict that
violated R.C. 2907.06(B). For the reasons that follow, we affirm the trial court’s
judgment.
{¶2} On June 19, 2014, a criminal complaint was filed in the Upper
Sandusky Municipal Court charging Haskell with one count of sexual imposition
in violation of R.C. 2907.06(A), a misdemeanor of the third degree. In response,
Haskell entered a plea of not guilty to the charge.
{¶3} The matter proceeded to a jury trial on December 11, 2014. S.B. was
the first witness to testify on behalf of the State. S.B. testified that she was 14-
years-old on February 23, 2014. She stated that she visited her cousin, Haskell’s
son, the previous night. After a night of bowling, S.B., her cousin, and her
cousin’s friend returned to Haskell’s house. S.B. explained that the three did not
get back to the house until late in the evening. When they arrived, they ate pizza
and talked in her cousin’s room. S.B. testified that she had planned on staying the
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night in her cousin’s room, but because her cousin’s male friend was staying in his
room, she was told to sleep on the couch in the living room.
{¶4} S.B. described the living room as having a couch, coffee table,
television, chair, and a mattress lying on the floor. Photographs of the living room
were shown to S.B., which were later admitted into evidence. S.B. stated that she
did not leave her cousin’s room until approximately 4:30 a.m. When she left the
room, S.B. testified that Haskell and her Aunt Okie were sleeping on the mattress
with their two other children. S.B. could not remember if the television was on or
off at the time she went to sleep. She explained that she was lying on her left side
when she fell asleep.
{¶5} S.B. testified that she was awoken when she felt a hand touching her
pubic region. She then rolled onto her back and felt a hand and fingers pushing on
top of her pubic region. S.B. stated that neither the hand nor the fingers touched
her vagina. She explained that she was wearing underwear and yoga pants.
According to S.B., all the touching occurred on the outside of the clothing.
{¶6} After rolling over, S.B. stated that she opened her eyes and saw it was
Haskell that was touching her. She explained, “That’s when I seen [sic.] [Haskell]
and he jumped back and he moved his hand and asked me if I knew where the
remote was.” Trial Tr. p. 23. She replied “no” and grabbed her stuff and went
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back into her cousin’s room. She testified that Haskell got up and moved over to
the chair and never said another word.
{¶7} After returning to her cousin’s room, she attempted to contact her
parents, but her phone was dead. After charging the phone for approximately six
minutes, S.B. testified that she called her aunt Laura, uncle Kyle, grandmother,
and mother, but was unable to get a hold of anyone. She was finally able to get a
hold of her father, Brett Eddy. She told her dad where she was and that she
wanted to go home. Her dad asked her what was going on, but she stated that she
just wanted to leave. He told S.B. he would try to find her a ride and hung up the
phone. At trial, S.B. described herself as being upset, uncomfortable, scared, and
was crying after the conversation with her dad.
{¶8} Her dad sent her a text message asking what was wrong. S.B. testified
that she told him that Haskell was touching her while she was sleeping. She stated
that her father was able to call her aunt, Shannon Elmer, and that Elmer was on her
way to get S.B. At some point after these text messages, Eddy called S.B. Shortly
after this conversation, Elmer called S.B. and told her to wait outside until she got
there.
{¶9} Her cousin woke up and asked what was wrong. S.B., who was
crying, stated that she just wanted to go home, but did not want to leave out the
front door because she was scared that Haskell was waiting on the other side of the
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bedroom door. Her cousin pulled out a knife and cut the plastic covering his
bedroom window, and S.B. was able to climb out the window.
{¶10} When Elmer arrived, S.B. testified that she was still crying. Elmer
told S.B. to get into the car and asked what was wrong. S.B. told her aunt that
Haskell had touched her in her private area. Soon after, S.B. stated that a sheriff
deputy, her mother, and her grandmother all arrived at the scene.
{¶11} On cross-examination, S.B. testified that she was interviewed by the
sheriff deputy and told him everything that had happened. She admitted though
that she omitted some of the more graphic details as she felt very uncomfortable
talking with a man about the situation. S.B. was also asked to describe the couch.
She described the couch as having three separate cushions, as opposed to a couch
with only one individual cushion.
{¶12} Brett Eddy was the next witness to testify. Eddy stated that he was
working in Cleveland, Ohio on February 23, 2014. Eddy testified that he received
a call from his daughter, S.B., early that morning. Eddy said that S.B. “was crying
and asked why she couldn’t get a hold of mom, and I told her she’s probably
sleeping. I asked her what was going on and she said she wanted to go home * *
*.” Id. at p. 53. At this moment, defense counsel objected contending the
testimony was inadmissible hearsay. The State argued that the statements made
by S.B. to Eddy constituted excited utterances and were admissible. The trial
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court overruled the objection. Eddy testified that S.B. was crying during their
conversation.
{¶13} Later during his testimony, the following discussion took place:
Q: Did you talk to her on the phone [a second time]?
A: After that, yes, I did. After she texted me what happened, she
called me back and I said ‘what do you mean he tried to touch you,
[S.B.]?’
Q: At this point how was she acting?
A: She was bawling. She’s still crying. She said ‘when is [Elmer]
gonna get here?’ She kept asking me ‘I just want to go home’. I told
her ‘go outside and wait’. She said she didn’t want to go out of [her
cousin’s] room; she was afraid. She wanted to wait until [Elmer] to
get [sic] here. Then when she talked to me and I asked her ‘what do
you mean he tried to touch you’ and that’s when she told me ‘I woke
up, he was kneeling beside me, he had his hands on my private part,
dad, and he was trying to push his fingers in through my pants. I
could feel his fingers’. That’s when I told her ‘stay in [your
cousin’s] room, I’ll be home as soon as I can.’
Id. at p. 57-58. Eddy added that S.B. is not normally very emotional. He said the
only other time he remembered her acting like this is when he told S.B. her
grandfather died.
{¶14} Shannon Elmer was the next witness to testify on behalf of the State.
Elmer testified that she was sleeping when she received a phone call from her
niece, S.B. Elmer stated that S.B. seemed very upset, was crying, and asked
Elmer to come get her. At this time, defense counsel renewed his objection to the
hearsay testimony, which was noted by the trial court. After hanging up, Elmer
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stated that she drove out to her sister’s house to pick up S.B. She explained that
the drive took her approximately 20-25 minutes.
{¶15} When Elmer pulled up to the house, S.B. was outside waiting. Elmer
stated that S.B. got into the car and was crying. At this point, the prosecutor
attempted to elicit testimony regarding what S.B. told Elmer, but defense counsel
objected, again citing hearsay. The trial court overruled the objection. Next,
Elmer testified that S.B. told her that Haskell had touched her in her pubic region.
Elmer said that after she briefly confronted Haskell in the doorway, she called the
police.
{¶16} After Elmer’s testimony, a brief recess was taken. After
reconvening, both parties stipulated that S.B. was 14-years old at the time of the
alleged offense and that Haskell was 36-years old.
{¶17} Deputy Michael Hoy of the Wyandot County Sheriff’s Office was
the last witness to testify on behalf of the State. Deputy Hoy testified that he
responded to a call about a young female that was inappropriately touched. When
he arrived at the scene, he briefly spoke to the caller, Elmer. Afterwards, he spoke
with the victim, S.B. He testified that S.B. “was noticeably upset.” Id. at p. 80.
He added, “Her eyes were bloodshot, she was noticeably crying, she had mascara
running down her face. Hands I noticed were kind of trembling somewhat * * *.”
Id.
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{¶18} Deputy Hoy also had an opportunity to interview Haskell at the
scene. Deputy Hoy then typed up a written report, of which the following was
read at trial:
I had asked [Haskell] if he would know why [S.B.] would make a
statement like that and he said that he had no idea. He said that he
was sleeping and he was awakened by the cell phone alarm going off
and he found it underneath the cushion of the couch that [S.B.] was
sleeping under and he retrieved it from underneath her.
Id. at p. 93.
{¶19} At the conclusion of Deputy Hoy’s testimony, the State rested. At
this time, Haskell made a motion for acquittal pursuant to Crim.R. 29. The trial
court denied the motion.
{¶20} Haskell testified on his own behalf. Haskell’s testimony regarding
the night of February 22, 2014, was nearly identical to S.B.’s. Haskell testified
that he fell asleep on a mattress in the living room with his girlfriend and two of
their children in the early morning hours of February 23, 2014. He stated that the
television was still on before he fell asleep.
{¶21} Haskell testified that he was awoken by a cell phone sometime in the
morning. He explained that he was very tired when he woke and that he tried to
find the phone so he could shut the alarm off and go back to sleep. He stated that
he believed the phone was located somewhere near or in the couch where S.B. was
sleeping. Haskell testified that he looked under the couch, but could not find it.
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He then stated that he heard the alarm go off again and could tell that the phone
was located underneath one of the couch cushions. Haskell explained that he uses
an alarm, set for 6:15 a.m., to wake up in the morning for work. He claimed that
he was finally able to locate the cell phone, which was in between two of the
cushions. When he reached for the cell phone, Haskell explained that his hand
would have been near S.B.’s knee area.
{¶22} Haskell continued to describe what happened next. He said,
I had grabbed the remote or the TV - - or the cell phone. I shut it
off, I believe I lit a cigarette, I went to the bathroom, I came back in.
I was gonna lay back down. I wanted to finish my cigarette, I was
gonna turn on the TV to watch the news to check the weather
because my son, he’s a diehard fisherman so I wanted to surprise
him to take him out fishing that day, him and his buddy, and I was
looking for the remote which was supposedly - - when I went to bed
it was by me and my girlfriend because we were laying on the bed
on the floor which is very close proximity * * *.
Id. at p. 111. He testified that someone must have turned the television off after he
fell asleep. Haskell stated, “At the time of me looking for the remote I was by the
bed, right next to my girlfriend looking for the remote. [S.B.] had sat up. I asked
her if she knew where the remote was. She said no. She got up and she went into
the other room.” Id. at p. 112. At the conclusion of Haskell’s testimony, the
defense rested. Haskell did not renew his Crim.R. 29 motion for acquittal.
{¶23} After deliberating, the jury returned a verdict finding Haskell guilty
of sexual imposition, and the court sentenced Haskell to 30 days in jail.
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{¶24} It is from this judgment that Haskell appeals, presenting the
following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN ALLOWING THE JURY TO
HEAR CERTAIN HEARSAY EVIDENCE AT THE TRIAL.
Assignment of Error No. II
THE DEFENDANT’S CONVICTION WAS NEITHER
SUPPORTED BY THE SUFFICIENCY NOR THE MANIFEST
WEIGHT OF THE EVIDENCE.
Assignment of Error No. III
THE DEFENDANT’S CONVICTION WAS AGAINST THE
LAW IN THAT IT WAS BASED SOLELY UPON THE
TESTIMONY OF THE VICTIM UNSUPPORTED BY OTHER
EVIDENCE.
Assignment of Error No. I
{¶25} In his first assignment of error, Haskell argues that the trial court
erred by allowing both hearsay statements into evidence, which did not fall under
any recognized exception. We disagree.
{¶26} We review a trial court’s admission of testimony for an abuse of
discretion. State v. Bump, 3d Dist. Logan No. 8-12-04, 2013-Ohio-1006, ¶ 61. “A
trial court will be found to have abused its discretion when its decision is contrary
to law, unreasonable, not supported by the evidence, or grossly unsound.” State v.
Swihart, 3d Dist. Union No. 14-12-25, 2013-Ohio-4645, ¶ 44, citing State v. Boles,
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2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 16-18. Under Evid.R. 103(A)
and Crim.R. 52(A), we disregard as harmless the admission of improper hearsay
evidence unless a substantial right of the party is affected. State v. Missler, 3d
Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 60, citing State v. Richcreek, 196
Ohio App.3d 505, 2011-Ohio-4686, ¶ 31 (6th Dist.). “Substantial rights are not
affected ‘where the remaining evidence constitutes overwhelming proof of a
defendant’s guilty * * *.’ ” Bump at 65, quoting State v. Jones, 3d Dist. Van Wert
No. 15-11-16, 2012-Ohio-5334, ¶ 34, citing State v. Murphy, 91 Ohio St.3d 516,
555 (2001).
{¶27} Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). Such statements are inadmissible
unless an exception to the hearsay rule applies. Evid.R. 802. One such exception
is an excited utterance, which is defined as “a statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Evid.R. 803(2). Further, to fall into the
exception, the following four elements must all be satisfied:
(1) the event must be startling enough to produce a nervous
excitement in the declarant, (2) the statement must have been made
while the declarant was still under the stress of excitement caused by
the event, (3) the statement must relate to the startling event, and (4)
the declarant must have personally observed the startling event.
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State v. Tebelman, 3d Dist. Putnam No. 12-09-01, 2010-Ohio-481, ¶ 27, citing
State v. Taylor, 66 Ohio St.3d 295, 300-301 (1993). “ ‘The controlling factor is
whether the declaration was made under such circumstances as would reasonably
show that it resulted from impulse rather than reason and reflection.’ ” State v.
Bradley, 3d Dist. Van Wert No. 15-10-03, 2010-Ohio-5422, ¶ 37, quoting State v.
Humphries, 79 Ohio App.3d 589, 598 (12th Dist.1992).
{¶28} At trial, Haskell objected to two different instances of hearsay
testimony regarding statements S.B. made to both Eddy and Elmer. Eddy testified
that at approximately 7:30 a.m. he received a phone call from S.B. Eddy stated
that S.B. was crying and kept telling him that she wanted to go home. Soon after,
S.B. called Eddy again. This time, after S.B. had texted Eddy saying that Haskell
had touched her, Eddy asked S.B., “what do you mean he tried to touch you,
[S.B.]?” Trial Tr. p. 57. Eddy testified that S.B. told him, “ ‘I woke up, he was
kneeling beside me, he had his hands on my private part, dad, and he was trying to
push his fingers in through my pants. I could feel his fingers.’ ” Id.{¶29} Under Taylor, this testimony clearly falls under the excited utterance
exception. First, unwanted sexual contact from an adult to a minor relative is
certainly startling to the point of causing a nervous excitement in the minor.
Second, although the statement was not made contemporaneously or right after the
contact, S.B. made these statements as soon as she was able to contact someone.
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Thus, it is still possible that S.B. made the statement while under the stress of
excitement given that she was still crying uncontrollably while talking with Eddy.
Furthermore, “the amount of elapsed time between the statements made and the
events about which the statements are made is longer for a child victim than an
adult victim for purposes of admissibility under Evid.R. 803(2) because children
are likely to remain in a state of nervous excitement for a longer period of time.”
Bradley at ¶ 38, citing State v. Ashcraft, 12th Dist. Butler No. CA97-11-217, 1998
WL 667657, citing Humphries at 598; see also Taylor at 304. Third, the statement
related to the startling event since S.B.’s statement to her father was in regard to
Haskell touching her. Finally, as the declarant, S.B. witnessed the touching.
Thus, S.B.’s statements to Eddy were excited utterances and were properly
allowed.
{¶30} Elmer testified that she spoke to S.B. twice on February 23, 2014.
The first, which occurred slightly after S.B. talked to her father, was brief and
consisted of S.B. telling Elmer that she wanted to go and asked Elmer to come get
her. Elmer also testified that S.B. sounded very upset on the phone. After about a
20 to 25 minute drive, Elmer arrived and asked S.B. what was wrong. S.B. told
Elmer that “[Haskell] had touched her in her private area.” Trial Tr. p. 67.
{¶31} These statements also pass the Taylor test. The first, third, and
fourth prongs are the same as the statements made to Eddy since they are nearly
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the same exact words – that Haskell touched her in the pubic region. The only
difference between these statements and the statements to Eddy is that these were
made approximately 20-25 minutes after Elmer left to get S.B. As stated supra,
the mere passage of time will not remove the statement from being an excited
utterance. Moreover, it seems that S.B. was still in a stressful state since she was
still crying and visibly upset when Elmer talked with her. Because the statements
made to Elmer constitute excited utterances, the trial court did not err by allowing
the statements into evidence.
{¶32} Accordingly, Haskell’s first assignment of error is overruled.
Assignment of Error No. II
{¶33} In his second assignment of error, Haskell argues that the verdict was
not supported by sufficient evidence. Additionally, Haskell argues that the verdict
was against the manifest weight of the evidence. We disagree.
{¶34} First, we note that Haskell has combined two arguments into one
assignment of error. Although Haskell has argued both sufficiency and manifest
weight as one argument, they are in fact two separate legal theories, each with
their own standard of review. Therefore, we will address the two separately.
Sufficiency of the Evidence
{¶35} When an appellate court reviews the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
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to the prosecution, any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. State v. Monroe,
105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy.
State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, the question of whether the offered evidence is sufficient to sustain a
verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-
Ohio-2079, ¶ 4.
{¶36} Here, Haskell’s counsel made a Crim.R. 29 motion at the close of the
State’s case-in-chief, and the trial court denied his motion for acquittal.
Thereafter, Haskell proceeded to present evidence in his defense. Haskell,
however, did not renew his Crim.R. 29 motion at the close of his case-in-chief or
at the conclusion of all the evidence. Thus, according to this court’s precedent,
Haskell has waived all but plain error. State v. Flory, 3d Dist. Van Wert No. 15-
04-18, 2005-Ohio-2251, citing Edwards.
{¶37} However, “[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.” City of Perrysburg v. Miller, 153 Ohio App.3d 665, 2003–Ohio–4221,
¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No. 17891, 2000
WL 966161 (July 14, 2000). Regardless of the standard used, “a conviction based
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on legally insufficient evidence constitutes a denial of due process.” Thompkins,
78 Ohio St.3d at 386–387. Accordingly, we will proceed to determine whether the
State presented sufficient evidence to support Haskell's conviction.
{¶38} If a person has sexual contact with another, who is not the spouse of
the offender, and the other person is 13-years-old or older but less than 16-years-
old, and the offender is at least 18-years-old and four or more years older than the
other person, then that person is guilty of sexual imposition. R.C. 2907.06(A)(4).
“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). “Mere proof of the act of touching a described
area, however, is insufficient to prove * * * sexual imposition. * * * There must
be some evidence of sexual gratification as the purpose of the touching.” State v.
Edwards, 8th Dist. Cuyahoga No. 81351, 2003-Ohio-998, ¶ 21, citing In re April
Anderson, 116 Ohio App.3d 441, 443 (12th Dist.1996). However, direct
testimony is not required to prove sexual arousal or gratification. Id. at ¶ 22.
Rather, “the existence of prurient motivations may be discerned from ‘the type,
nature, and circumstances of the contact, along with the personality of the
defendant.’ ” State v. Uhler, 80 Ohio App.3d 113, 123 (9th Dist.1992), quoting
State v. Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991). “Accordingly, in the
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absence of direct testimony regarding sexual arousal or gratification, the trier of
fact may infer that a defendant was motivated by a desire for sexual arousal or
gratification from the totality of the circumstances.” Edwards at ¶ 22.
{¶39} At trial, S.B. testified several times that her uncle, Haskell, had
touched her pubic region. Further, it was established that S.B. was not Haskell’s
spouse at the time of the offense. Additionally, both parties stipulated that S.B.
was 14 at the time of the offense and Haskell was 36 at the time of the offense.
Therefore, the State offered evidence of the age requirements of R.C. 2907.06.
Finally, the jury was free to find that the State offered evidence that proved
Haskell was motivated by a desire for sexual arousal or gratification under the
totality of the circumstances.
{¶40} Under normal circumstances, this would be enough to withstand a
Crim.R. 29 motion. However, R.C. 2907.06(B) requires that a person be found
not guilty of sexual imposition if the only evidence is that of the victim’s
testimony unsupported by other evidence. The Supreme Court of Ohio has found
that the “corroborating evidence necessary to satisfy R.C. 2907.06(B) need not be
independently sufficient to convict the accused, and it need not go to every
essential element of the crime charged. Slight circumstances or evidence which
tends to support the victim’s testimony is satisfactory.” State v. Economo, 76
Ohio St.3d 56, 60 (1996). In Economo, the court found that the following
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corroborating evidence was sufficient: (1) medical records showed that the victim
and offender had a physician-patient relationship and that the victim had an
appointment to see the doctor the day of the alleged offense; (2) the victim’s friend
testified that she accompanied the victim the day of the alleged offense and was
asked by the victim to accompany her into the examination room; and (3) the
friend testified that she noticed the victim was on the verge of crying as she left
the examination room. Id.{¶41} In State v. Lieurance, 3d Dist. Auglaize Nos. 2-12-21, 2-12-23,
2013-Ohio-3875, this court affirmed a conviction for sexual imposition. Id. at ¶
43. In Lieurance, the following corroborating evidence was found to be sufficient:
(1) a witness’ testimony that the victim told him of the incidents shortly after each
occurred; (2) that witness’ testimony that he confronted the defendant regarding
the incidents and that the defendant stated it would never happen again; (3)
statements made by the victim and the victim’s mother reporting the allegations;
(4) the defendant’s statements to law enforcement admitting that he and the victim
were in close proximity to one other on the night of the incident; and (5) the
defendant’s statements to law enforcement that he was intoxicated that night and
could not remember if the incident occurred. Id. at ¶ 29.
{¶42} Here, there are three separate pieces of corroborating evidence. First,
S.B., through Elmer, reported the allegations soon after the incident occurred
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similar to the victims in Economo and Lieurance. See Economo at 60 (“The fact
that [a friend] accompanied [the victim] to the doctor’s office * * * permits a
reasonable inference that [the victim] reported the alleged sexual activity to her
within seven days of the first incident * * * and four days of the second * * *.”);
Lieurance at ¶ 29; see also State v. Rossi, 2d Dist. Montgomery No. 22803, 2009-
Ohio-1963, ¶ 38. Additionally, her statements remained consistent to everyone to
whom she reported the abuse.
{¶43} Second, Eddy, Elmer, and Deputy Hoy all testified that S.B.
appeared to be upset when they spoke with her. Eddy testified that he had only
heard his daughter cry that hard once before when he told her that her grandfather
had died. Elmer testified that she was crying over the phone and was visibly upset
when she arrived at the scene. Finally, Deputy Hoy testified that S.B. was visibly
upset, her mascara had run on her face, her eyes were bloodshot, and she was
trembling the whole time during his interview. This type of behavior is similar to
the behavior exhibited by the victims in Economo and Rossi. See Economo, 76
Ohio St.3d at 60; Rossi at ¶ 38.
{¶44} Third, Haskell admitted to being in close proximity to S.B. as well as
admitted that he asked S.B. if she had seen the television remote. At trial, Haskell
testified that he not only slept in the same room as S.B., but also that he went over
to the couch and reached near S.B.’s knee to retrieve a cell phone. See Economo
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at 60 (the victim was in the same room as the defendant when the incident
occurred); Lieurance, 2013-Ohio-3875 at ¶ 29 (defendant admitted that he was in
close proximity to the victim the night of the incident). Also, Haskell’s testimony
that he asked S.B. if she had seen the remote corroborates her testimony that when
Haskell allegedly quickly removed his hand from her pubic region that he asked
her if she had seen the remote.
{¶45} Since the State presented the testimony of S.B. that was corroborated
by other evidence, the State complied with the requirements of R.C. 2907.06(B).
After viewing the evidence in the light most favorable to the State, we find that
any rational trier of fact could have found that the essential elements of sexual
imposition were proven beyond a reasonable doubt.
Manifest Weight of the Evidence
{¶46} When an appellate court analyzes a conviction under the manifest
weight standard, it “sits as the thirteenth juror.” State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), superseded by constitutional amendment on other grounds as
stated in State v. Smith, 80 Ohio St.3d 83 (1997). Accordingly, it must review the
entire record, weigh all of the evidence and its reasonable inferences, consider the
credibility of the witnesses, and determine whether the fact finder “clearly lost its
way” in resolving evidentiary conflicts and “created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
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Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). When applying the manifest
weight standard, a reviewing court should only reverse a trial court’s judgment “in
exceptional case[s]” when the evidence “weighs heavily against the conviction.”
Id. at paragraph three of the syllabus.
{¶47} Having disposed of Haskell’s sufficiency arguments, we similarly
reject his manifest weight arguments. The crux of Haskell’s argument seems to be
that the prosecutor placed an emphasis on a gap of time between Haskell’s
testimony regarding when he searched for the cell phone to the point where he
searched for the television remote. Haskell also argues that because the prosecutor
was confused about what Haskell asked S.B., i.e. “where is the cell phone” versus
“where is the remote,” the jury erred by discrediting Haskell’s testimony.
However, the jury heard from S.B. who testified that Haskell was touching her in
her pubic area and that when she awoke Haskell quickly removed his hand and
asked her if she knew where the remote was. The jury never heard S.B. testify
that Haskell asked her where the cell phone was. That was simply the
prosecutor’s error in saying cell phone instead of remote. Finally, the jury also
heard from three separate people that testified that S.B. told them that Haskell had
touched her inappropriately.
{¶48} Thus, it appears the jurors found the State’s witnesses more credible
than Haskell’s own testimony. See State v. Wareham, 3d Dist. Crawford No. 3-
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Case No. 16-15-03
12-11, 2013-Ohio-3191, ¶ 25 (“[J]urors are entitled to believe the testimony
offered by the State’s witnesses”); State v. Clark, 101 Ohio App.3d 389, 400 (8th
Dist.1995) (“It is well established that the * * * credibility of witnesses [is]
primarily [a] matter[] for the trier of fact.”). After a thorough review of the record,
we cannot say that this is the exceptional case where the trier of fact lost its way
and committed a miscarriage of justice by finding Haskell guilty of sexual
imposition.
{¶49} Accordingly, Haskell’s second assignment of error is overruled.
Assignment of Error No. III
{¶50} In his third assignment of error, Haskell argues that the verdict is
contrary to law since the State failed to provide corroborating evidence of S.B.’s
testimony as required by R.C. 2907.06(B). As we discussed in more detail supra,
we find that the following is sufficient to constitute corroborating evidence: (1) the
allegations were quickly reported to law enforcement; (2) three witnesses testified
that S.B. was crying while on the phone and was visibly upset shortly after the
alleged contact; and (3) Haskell’s admission that he was in close proximity to S.B.
the morning of the alleged incident.
{¶51} Haskell also argues that the jury should have been instructed on this
requirement. However, the corroborating evidence requirement is a test of
sufficiency, which is an issue of law to be determined by the trial judge. See State
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Case No. 16-15-03
v. Curtis, 12th Dist. Butler No. CA2008-01-008, 2009-Ohio-192, ¶ 93, citing
Economo, 76 Ohio St.3d at 60 (finding the trial court did not err by not instructing
the jury regarding the corroborating evidence requirement). Therefore, the jury
was not required to be instructed on this issue.
{¶52} Accordingly, Haskell’s third assignment of error is overruled.
{¶53} Having found no error prejudicial to Haskell in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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