State v. Perpignand

[Cite as State v. Perpignand, 2021-Ohio-4277.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-81
(C.P.C. No. 18CR-1568)
v. :
(REGULAR CALENDAR)
Ralph Perpignand, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 7, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and
Taylor M. Mick, for appellee. Argued: Taylor M. Mick.
On brief: Yavitch & Palmer, Co., L.P.A., and Jeffery A.
Linn II, for appellant. Argued: Jeffery A. Linn II.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, Ralph Perpignand, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
a jury trial in which he was found guilty of sexual battery.
{¶ 2} On March 30, 2018, appellant was indicted on one count of sexual battery, in
violation of R.C. 2907.03(A)(6). The matter came for trial before a jury beginning
November 19, 2019.
{¶ 3} The first witness for the state was J.W., a resident of Knox County. In June
2015, J.W. was charged with burglary in Knox County. In March 2016, a Knox County
Court of Common Pleas judge ordered her to be evaluated for competency and she was
transferred from the county jail to Twin Valley Behavioral Healthcare ("Twin Valley"). J.W.
was diagnosed with "bipolar, anxiety and OCD." (Tr. Vol. II at 200.) The Knox County trial
No. 20AP-81 2
court determined J.W. to be a mentally ill person subject to hospitalization. J.W. remained
at Twin Valley for eight months and was released in June 2017.
{¶ 4} At trial, J.W. related an incident that occurred while she was a resident at
Twin Valley. J.W. identified appellant as a staff member at Twin Valley. On the date of the
events at issue, appellant came into her room with a blood pressure machine in the
morning, shortly after 7:30 a.m. After taking the blood pressure of J.W.'s roommate,
appellant sent the roommate "out of the room." (Tr. Vol. II at 170.) Appellant then came
over to J.W.'s "side of the bed with the blood pressure machine." J.W. thought it was
"weird" that appellant was taking her blood pressure because she normally did not have her
blood pressure checked. (Tr. Vol. II at 171.)
{¶ 5} J.W. testified that appellant then "started to touch my breast and put his
mouth on my breast." (Tr. Vol. II at 172.) Appellant then said to her: "lift your shirt, why
don't you lift your shirt." (Tr. Vol. II at 173.) J.W. testified she "couldn't really react because
I was just kind of in shock." (Tr. Vol. II at 173.) Appellant "had me lift my shirt up and then
he put his mouth on my breast." (Tr. Vol. II at 173.) J.W. testified that appellant then
"began to touch me in my vaginal area." (Tr. Vol. II at 175.) She stated that "he ran his
fingers down it and then it was like he put two fingers inside." (Tr. Vol. II at 175.) Appellant
was wearing gloves at the time. He "just kept saying, '[g]o with it, just go with it.' " (Tr. Vol.
II at 175.) J.W. was telling appellant to stop. Appellant "finally stopped," and then "went
by the door" and said "[l]et me see your butt." (Tr. Vol. II at 179.) Appellant eventually left
the room, and J.W. "sat at the edge of the bed * * * dumbfounded." (Tr. Vol. II at 180.)
{¶ 6} J.W. eventually made her way to the lobby and spoke to a "young lady" who
was "in charge of drum circle." (Tr. Vol. II at 184.) J.W. testified that she spoke to this
individual approximately 30 minutes after the incident occurred. The lady took J.W. to a
room, and J.W. "told her what happened." (Tr. Vol. II at 187.) J.W. was administered a
rape kit at a hospital within 48 hours of the incident.
{¶ 7} On cross-examination, J.W. testified that the burglary allegations against her
in Knox County were a lie and that the alleged burglary victim lied in stating J.W.
threatened to shoot everyone in the house. J.W. acknowledged accusing the alleged
burglary victim's boyfriend of exposing his genitals to her several weeks earlier.
{¶ 8} With respect to the events of April 22, 2017, J.W. testified the incident
occurred shortly after 7:30 a.m. When asked if she reported the incident at 2:15 p.m., J.W.
No. 20AP-81 3
responded: "I don't recall what time exactly I talked to the young lady at drum circle." (Tr.
Vol. II at 216.) J.W. denied that staff offered to take her to a hospital for an examination.
{¶ 9} J.W. denied telling the staff that the incident began with the digital
penetration and ended with touching of her breasts. J.W. responded: "I don't recall at what
point I said how, what, when. I just remember telling them what happened." (Tr. Vol. II at
222-23.)
{¶ 10} Two days after the incident, J.W. was at Grant Medical Center ("Grant") for
a sexual assault nurse examination ("SANE") after she spoke with an individual from
Disability Rights of Ohio. Mary Marcum, a registered nurse, is currently employed as the
SANE coordinator at Grant. Marcum conducted a sexual assault examination of J.W. and
prepared records of the exam.
{¶ 11} J.W. reported to Marcum that a "therapeutic program worker" at Twin Valley
"entered my room where myself and my roommate [A.S.] were sleeping and stood over
[A.S.] until she woke up." (Tr. Vol. II at 274.) The staff member, who J.W. identified as
"Ralph," indicated "he had to do vitals and came over to me and stood over me until I woke
up and he said good morning." (Tr. Vol. II at 274.) After taking the vitals of A.S., "he looked
over at me and said that I have vitals too." (Tr. Vol. II at 274.) J.W. related that A.S. went
into the bathroom and, after A.S. came out of the bathroom, "he said medication time, go
get your medication, which to me seemed funny because medication doesn't start until
8:00, but I just thought he was trying to get a jump start on things. Then [A.S.] said okay
and started to leave the room." (Tr. Vol. II at 274.)
{¶ 12} J.W. then related to Marcum that "he came over and sat on the edge of the
bed facing the door. Then he asked to see down there." (Tr. Vol. II at 275.) Marcum
"clarified what down there was," and the patient clarified "down there is her vagina." (Tr.
Vol. II at 275.) J.W. further reported to Marcum: "Then he kept grabbing it. * * * Patient
clarifies grab her vagina. He kept trying to pull the elastic band down. Then he just pulled
it down so you could see my vaginal area. And I could - - and I could see he was wearing
gloves." (Tr. Vol. II at 275.)
{¶ 13} J.W. further reported:
This is when he lifted up my pubic hair up that I had - - pubic
hair up that I have and moved - - moved his head so he could
actually see. He was touching and he inserted his finger. The
whole time he was - - the whole time I'm telling him no, stop. I
No. 20AP-81 4
kept telling him to stop, that someone was going to come in the
room. He kept pushing me down on my chest and kept saying
it's going to be okay and I said, no, it's not okay. He kept
pushing his finger in and out like a penis and I sat up and he
said take your shirt off and I just kept telling him no, no.
I told him to stop because someone could come in and he kept
saying pull your shirt up. I said no. So then he takes his hands
and lifts my shirt up and put his mouth on my right breast.
Then I pull my shirt -- then I pull my shirt down and he gets up
and he is at -- he is at the door and says, shh, don't tell, just me
and you. And then he said let me see your butt and I said no
and he just stuck his hand down my pants and grabbed my butt
and then he started to leave and said again don't say anything
and left.
(Tr. Vol. II at 275-76.)
{¶ 14} Marcum conducted a physical exam of J.W. and did not find any injuries.
J.W. declined an internal exam. Swab samples were taken during the exam.
{¶ 15} One day after the examination, J.W. spoke with Ohio State Highway Patrol
Trooper Sean Eitel, who is assigned to the patrol's investigative unit. Trooper Eitel testified
that Twin Valley is under the umbrella of the Ohio Department of Health and regulated by
the State of Ohio. Trooper Eitel investigated an alleged assault occurring April 22, 2017 at
Twin Valley, in which appellant was identified as the alleged suspect. Trooper Eitel, who
noted appellant was employed at Twin Valley as a therapeutic worker, testified that
therapeutic workers "have multiple things they do. They'll maybe just comfort a patient
with their needs, whether it be just somebody to talk to or – - and they get into even maybe
taking a blood pressure at times or helping them with medication or something like that."
(Tr. Vol. II at 299.) J.W. was discharged from Twin Valley on June 1, 2017.
{¶ 16} Peter Tassi is employed with the Ohio Bureau of Criminal Investigation
("BCI"). Tassi, a forensic scientist in the DNA section, examined items collected during the
investigation. He identified an exhibit containing "skin stain swabs from the left nipple"
and a "swab box labeled right nipple." (Tr. Vol. III at 339-40.) Tassi also noted that a rape
kit had been submitted as part of the investigation. The skin swab findings identified
"amylase," which "is a component of saliva." (Tr. Vol. III at 341.) On cross-examination,
Tassi stated he forwarded the samples to another individual for further testing.
No. 20AP-81 5
{¶ 17} Katherine Dailey, a forensic scientist in the DNA section of BCI, testified that
DNA can be transferred by bodily fluids "such as saliva, urine, semen, feces, blood" or "by
means of touch." (Tr. Vol. III at 357-58.) Dailey performed an analysis of DNA profiles
from appellant and prepared a report. The items analyzed were "a DNA standard from
[J.W.] and skin swabs from the left and right nipples from the sexual assault kit." (Tr. Vol.
III at 362.)
{¶ 18} Dailey testified that the skin swabs "from the left nipple, the DNA profile
obtained from those was a mixture, meaning that there's more than one individual
contributing to the DNA on that item." (Tr. Vol. III at 364.) Dailey further testified: "Part
of that mixture is consistent with [J.W.] and she is included as an expected contributor
because those samples were collected from her person. And there is also an unknown male
that is sufficient for comparison." (Tr. Vol. III at 364.)
{¶ 19} At trial, Dailey identified one of the exhibits submitted by plaintiff-appellee,
State of Ohio, as a DNA standard taken from appellant. Dailey testified that, with respect
to the skin swabs from the left nipple, J.W. "is included as the expected contributor and
additional unknown male profile was consistent with [appellant] and he is included as the
major profile or the stronger profile in that mixture, so it was in a higher quantity in that
mixture." (Tr. Vol. III at 366-67.) According to Dailey, the "number of individuals that I
would have to test in order to find someone else that would be consistent with that major
profile is a number that is rarer than one in one trillion unrelated individuals." (Tr. Vol. III
at 367.)
{¶ 20} Regarding the skin swabs from the right nipple, Dailey stated the "DNA
profile is also a mixture, meaning that there's more than one person contributing to that
DNA profile" and that "[J.W.] is consistent with the additional data that's present there as
well as the unknown male that is sufficient for comparison." (Tr. Vol. III at 364.) Dailey
further testified: "The major DNA profile on that sample was consistent with [appellant]
and the number of individuals that I would have to test in order to find someone that was
consistent with the major DNA profile on that sample is also rarer than one in one trillion
unrelated individuals." (Tr. Vol. III at 367.)
{¶ 21} At the close of the state's case, appellant made a Crim.R. 29 motion for
judgment of acquittal on two grounds: (1) that J.W. was not credible, and (2) the
prosecution did not provide sufficient evidence that appellant had supervisory or
No. 20AP-81 6
disciplinary authority over J.W. The trial court overruled the motion regarding J.W.'s
credibility and reserved ruling on the second basis at that time.
{¶ 22} The jury returned a verdict finding appellant guilty of sexual battery. At the
sentencing hearing, the trial court denied appellant's Crim.R. 29 motion, stating in part:
"[T]he court does find that when viewing the evidence in the light most favorable to the
State of Ohio that the State did present sufficient evidence that appellant held a position of
supervisory or disciplinary authority over the victim." (Tr. Sentencing Proceedings, Jan. 9,
2020 at 3.) By judgment entry filed on January 13, 2020, the trial court sentenced appellant
to 48 months incarceration.
{¶ 23} On appeal, appellant raises the following two assignments of error for this
court's review:
[I.] THE TRIAL COURT ERRED AND THEREBY DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE PROVISIONS
OF THE OHIO CONSTITUTION BY OVERRULING
APPELLANT'S CRIM.R. 29 MOTION FOR JUDGMENT OF
ACQUITTAL, AS THE STATE FAILED TO OFFER
SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY
ELEMENT OF THE CHARGE BEYOND A REASONABLE
DOUBT.
[II.] THE TRIAL COURT ERRED BY FINDING APPELLANT
GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF
THE OHIO CONSTITUTION BECAUSE THE VERDICT OF
GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 24} Under his first assignment of error, appellant contends the trial court erred
in denying his Crim.R. 29 motion for judgment of acquittal. Specifically, appellant argues
there was insufficient evidence to prove he had supervisory or disciplinary authority over
J.W. in order to sustain a conviction under R.C. 2907.03(A)(6). Appellant asserts there was
no testimony from any person with actual knowledge about appellant's employment duties
and responsibilities to establish the supervisory or disciplinary authority element of the
offense. He further maintains the standard is an objective test, not a subjective one.
{¶ 25} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.
State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12, citing State v. Knipp, 4th
No. 20AP-81 7
Dist. No. 06CA641, 2006-Ohio-4704, ¶ 11. Accordingly, we review the trial court's denial
of appellant's motion for acquittal using the same standard applicable to a sufficiency of the
evidence review. Id. at ¶ 12, citing State v. Darrington, 10th Dist. No. 06AP-160, 2006-
Ohio-5042, ¶ 15.
{¶ 26} In reviewing a sufficiency of the evidence claim " '[t]he 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. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Sufficiency is, in
essence, "a test of adequacy," and "[w]hether the evidence is legally sufficient to sustain a
verdict is a question of law." State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶ 27} In determining the sufficiency of the evidence, an appellate court must give
" 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.' " State v. Gordon, 10th Dist. No. 10AP-1174, 2011-Ohio-4208, ¶ 5, quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979). Thus, when reviewing the sufficiency of the evidence,
the court does not weigh the credibility of the witnesses. State v. Yarbrough, 95 Ohio St.3d
227, 2002-Ohio-2126, ¶ 79. Consequently, a verdict will not be disturbed based on
insufficient evidence unless, after viewing the evidence in a light most favorable to the
prosecution, it is apparent that "reasonable minds could not reach the conclusion reached
by the trier of fact." State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
{¶ 28} Appellant was indicted on one count of sexual battery in violation of R.C.
2907.03, which provides in part:
(A) No person shall engage in sexual conduct with another, not
the spouse of the offender, when any of the following apply:
***
(6) 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.
{¶ 29} R.C. 2907.03(A)(6) is a strict liability offense. State v. Arega, 10th Dist. No.
12AP-263, 2012-Ohio-5774, ¶ 14, citing State v. Fortson, 8th Dist. No. 92337, 2010-Ohio-
2337, ¶ 13. In this respect, the statute "makes criminal even voluntary sexual conduct
No. 20AP-81 8
between consenting adults" if the victim is in the custody of law or institutionalized in a
hospital, and if the offender had supervisory or disciplinary authority over the other when
the sexual conduct occurred. Id.{¶ 30} Ohio appellate courts have noted: " 'The purpose of the statute is to protect
from sexual abuse those who come under the care and custody of the State. The statute is
directed at those situations where the offender, through power conferred by the State, is
able to coerce or force sexual activity by the misuse of that authority.' " State v. Walker,
140 Ohio App.3d 445, 453-54 (1st Dist.2000), quoting State v. Chipps, 3d Dist. No. 14-82-
1 (May 17, 1983).
{¶ 31} While the terms supervisory or disciplinary authority are not statutorily
defined terms, this court has previously defined them pursuant to the rules of grammar and
common usage. See State v. Mathess, 10th Dist. No. 77AP-45 (Nov. 1, 1977). Specifically,
the court in Mathess defined the terms as follows:
The definition of "authority" as contained in Webster's Third
New International Dictionary Unabridged is "power to
require and receive submission: the right to expect obedience:
superiority derived from a status that carries with it the right to
command and give final decisions: dominion, jurisdiction * * *:
delegated power over others: authorization * * *: power to
influence the outward behavior of others: practical personal
influence * * *: persons in command * * *."
"Supervise" is defined, "to coordinate, direct, and inspect
continuously and at first hand the accomplishment of: oversee
with the powers of direction and decision the implementation
of one's own or another's intentions: superintend."
"Discipline" is defined as, "training or experience that corrects,
molds, strengthens, or perfects * * *: punishment: as * * *
punishment by one in authority, esp. with a view to correction
or training * * *: control gained by enforcing obedience or order
* * *."
{¶ 32} In both Mathess and Arega, this court considered challenges by defendants
to convictions under R.C. 2907.03(A)(6). Under the facts in Mathess, the defendant
worked as a power plant laborer at a state hospital, and some of the patients were inmates
who also worked at the institution. The defendant was convicted of three counts of sexual
battery for engaging in sexual conduct with three different patients, and he challenged on
No. 20AP-81 9
appeal the sufficiency of the evidence to allow the jury to find he had supervisory or
disciplinary power over the patients. In reviewing the record, this court noted the
testimony established the defendant "would tell the patient what to do in a specific case,"
and if the patient did not comply the patient's supervisor would be notified. Mathess.
Further, the defendant's supervisor testified it was necessary "to keep very direct control
over the patients," and that the defendant "had to exercise supervisory control over the
patients that worked there." Id. In this respect, the supervisor had observed the defendant
"chase patients out of the power house." Id. Thus, the facts of that case indicated the
defendant was in a position of command and could direct the patients' behavior, and this
court affirmed the defendant's conviction for sexual battery, finding "ample evidence" the
defendant had "both supervisory and disciplinary authority over the patients." Id.{¶ 33} In Arega, this court reviewed several decisions (including Mathess)
addressing R.C. 2907.03(A)(6), and determined the evidence was insufficient to establish
the defendant had supervisory authority over the victim. Under the facts of Arega, the
defendant was employed at a skilled nursing facility as a state tested nursing assistant
("STNA"), and the victim was a patient needing rehabilitation after suffering a broken leg.
The function of a STNA at that facility was to "basically communicate with the patients'
needs; wash them up, do range of motion and things of that nature." Arega at ¶ 24. Other
testimony described the STNAs' role as "basically to provide or assist, enable, to be as
independent as possible in doing their personal care; getting trays, eating, feeding." Arega
at ¶ 25. The testimony also established the patients had the power to make their own
decisions regarding medical and therapy care.
{¶ 34} In reversing the defendant's conviction for sexual battery under R.C.
2907.03(A)(6), the court in Arega determined the evidence did not indicate the defendant
had any authority to command or direct the victim, or to make any decisions on her behalf
or to engage in any undertaking that required an exercise of the defendant's judgment
because he performed perfunctory-type tasks. Id. at ¶ 27. This court also addressed and
distinguished the Mathess decision, noting the "patients' stay at the hospital" in Mathess
was "custodial in nature," and that the defendant "was in a position of command where he
could direct their behavior." Id. at ¶ 19.
{¶ 35} Turning to the sufficiency of the evidence in the instant case, the record
indicates J.W. testified the staff at Twin Valley "did the job they needed to do when things
No. 20AP-81 10
got tough, things got out of hand." (Tr. Vol. II at 163.) She stated the staff had disciplinary
power and authority over the patients, and that she had to do what the staff told her to do.
J.W. identified appellant as a therapeutic nurse at Twin Valley; she testified he "had a
presence about him of authority," and "[p]eople took [appellant] very seriously." (Tr. Vol.
II at 166.) When a fight occurred, "he was one of the staff members that would make sure
that proper disciplinary procedures or – - I don't even want to say disciplinary procedures.
When a fight would break out * * * they made sure that the person was taken down." (Tr.
Vol. II at 166.) J.W. described appellant as "a strong person," and "he was one of the staff
members that would be used to make sure that - - that things ran the way they were
supposed to be run and, if need be, that he was strong enough to take on a situation if things
got out of hand with two patients fighting or things like that." (Tr. Vol. II at 166-67.) She
testified appellant had authority over the patients. Other tasks she saw appellant complete
included calling patients to breakfast, taking their blood pressure, listening to patients,
playing cards with patients, and making them feel comfortable.
{¶ 36} While discussing the specifics of the incident, J.W. stated: "He knew I didn't
have a choice. He knew, you know." (Tr. Vol. II at 175.) J.W. testified she did not scream
for help during the incident because "I knew in my heart if I screamed - - I mean, you're in
- - I'm in a mental ward. I'm watching people getting strapped to freaking beds and their
heart having to be monitored with machines. I didn't know how much power he had." (Tr.
Vol. II at 178.) She stated that "you do what you're told there. You just - - you just do, okay."
(Tr. Vol. II at 179.)
{¶ 37} Trooper Eitel also testified on behalf of the state regarding appellant's duties.
Trooper Eitel explained that appellant worked as a therapeutic worker, and the trooper
provided examples of a therapeutic worker's responsibilities, including comforting and
listening to patients, helping them with medications or even taking blood pressure
readings.
{¶ 38} Construing the evidence most strongly in favor of the prosecution, as we are
required in considering a sufficiency challenge, we conclude, as did the trial court in ruling
on the Crim.R. 29 motion, the state presented evidence sufficient to support an inference
appellant had supervisory or disciplinary authority over J.W. Here, the record indicates
J.W. was a patient at Twin Valley on the authority of the Knox County Court of Common
Pleas; that court ordered her to be evaluated for competency and she was transferred from
No. 20AP-81 11
county jail to Twin Valley. In contrast to the facts in Arega, in which the patients were not
in a locked facility and made their own medical decisions, appellant's presence at Twin
Valley was more akin to the facts in Mathess, i.e., custodial in nature.
{¶ 39} Further, while appellant contends the testimony of J.W. regarding her
subjective beliefs is insufficient to establish the elements of the offense, the testimony
included more than the victim's subjective reaction to appellant's conduct. Specifically,
J.W. also provided testimony as to appellant's status at Twin Valley based on her (objective)
observations of his position/role at the facility, in which she described his duties and
interactions with the patients, including his conduct in breaking up fights and restoring
order (i.e., evidence as to " 'control gained by enforcing obedience or order' "). Mathess,
quoting Webster's Third New International Dictionary Unabridged. J.W. also specifically
stated appellant had authority over the patients, and the state's evidence, taken in its
entirety, was adequate to indicate appellant exercised control over the patients and that
J.W. was required to comply with his commands. Moreover, nothing in the case law
suggests the victim's testimony cannot supply proof of the elements (i.e., supervisory or
disciplinary authority) of the offense. See, e.g., Walker at 445 (finding sufficient evidence,
"based on the victim's own testimony," to support defendant's conviction for sexual battery
under R.C. 2907.03(A)(6)).
{¶ 40} When viewed in a light most favorable to the prosecution, a rational trier of
fact could have found the elements of disciplinary or supervisory authority proven beyond
a reasonable doubt. Accordingly, the trial court did not err in denying appellant's Crim.R.
29 motion for judgment of acquittal.
{¶ 41} Based on the foregoing, appellant's first assignment of error is overruled.
{¶ 42} Under his second assignment of error, appellant contends his conviction is
against the manifest weight of the evidence. In seeking reversal on manifest weight
grounds, appellant primarily challenges the credibility of J.W.
{¶ 43} In contrast to a sufficiency of the evidence argument, a manifest weight of the
evidence challenge "questions whether the state met its burden of persuasion." State v.
Adhikari, 8th Dist. No. 103935, 2017-Ohio-460, ¶ 47, citing State v. Bowden, 8th Dist. No.
92266, 2009-Ohio-3598, ¶ 12. In addressing such a challenge "[a] reviewing court 'weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
No. 20AP-81 12
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.' " Id., quoting Thompkins at 388. Under Ohio law, "[a] conviction should
be reversed as against the manifest weight of the evidence only in the most 'exceptional case
in which the evidence weighs heavily against the conviction.' " Id.{¶ 44} In conducting a manifest weight of the evidence review, we may consider the
credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. However, in conducting such review, "we are guided by the presumption that the jury,
or the trial court in a bench trial, 'is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " Id., quoting Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80 (1984). We therefore "afford great deference to the jury's
determination of witness credibility." State v. Albert, 10th Dist. No. 14AP-30, 2015-Ohio-
249, ¶ 14.
{¶ 45} Appellant argues that J.W. is not credible since she was previously deemed
incompetent and mentally ill and told different versions of the event with varying details,
such as the order of events in which appellant violated her (i.e., whether she was standing,
sitting, etc.). Appellant contends J.W. denied several of her mental health issues and
diagnoses and testified that the victim in her burglary case was lying.
{¶ 46} This court has previously recognized, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, * * * such inconsistencies do not
render defendant's conviction against the manifest weight or sufficiency of the evidence."
State v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). See also State v. Meadows,
10th Dist. No. 80AP-593 (June 23, 1981) ("minor inconsistencies could be grounds for
reversal only if they were of such a magnitude that, in light of them, no reasonable person
would believe the witness' testimony"). Further, "the fact finder is free to believe all, part
or none of the testimony of each witness appearing before it," and "[m]ere disagreement
over the credibility of witnesses is not sufficient reason to reverse a judgment." State v.
Johns, 10th Dist. No. 11AP-203, 2011-Ohio-6823, ¶ 17. Finally, "a conviction is not against
the manifest weight of the evidence because the trier of fact believed the state's version of
the events over the defendant's version." State v. Lipkins, 10th Dist. No. 16AP-616, 2017-
Ohio-4085, ¶ 39, citing State v. Gale, 10th Dist. No. 05AP-708, 2006-Ohio-1523, ¶ 19.
No. 20AP-81 13
{¶ 47} The jury in this case heard evidence that J.W. was diagnosed with mental
illness. Despite minor inconsistencies in her testimony, such as timing, J.W.'s version of
the events was consistent regarding the major points, such as appellant putting his mouth
on her breasts and inserting his gloved fingers into her vagina. Further, the jury heard
expert DNA testimony corroborating J.W.'s testimony that appellant put his mouth on her
breasts. As noted, the state presented the testimony of a forensic scientist who stated, based
on analysis of the DNA profiles obtained from J.W.'s breast, the major DNA profile on the
samples "was consistent with [appellant]," and that the number of individuals "I would
have to test in order to find someone that was consistent with the major DNA profile" on
those samples was "rarer than on one in one trillion unrelated individuals." (Tr. Vol. III at
367.) With respect to evidence regarding appellant's position and duties at the facility, the
jury, as trier of fact, could have properly credited J.W.'s testimony on this issue as going to
the element of supervisory or disciplinary authority.
{¶ 48} Based on this court's review, we conclude the jury could have reasonably
found all the elements of the offense, and that it did not lose its way or create a manifest
miscarriage of justice in finding appellant guilty of sexual battery under R.C.
2907.03(A)(6). Accordingly, appellant's conviction is not against the manifest weight of
the evidence.
{¶ 49} Appellant's second assignment of error is not well-taken and is overruled.
{¶ 50} Based on the foregoing, appellant's two assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
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