State v. Taylor

[Cite as State v. Taylor, 2022-Ohio-3754.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ADAM TAYLOR, : Case No. 21CA000023
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court
of Common Pleas, Case No. 2019
CR 020064
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 20, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE APRIL F. CAMPBELL
Knox County Prosecutor Campbell Law Firm, LLC
117 East High Street, Suite 234 46 1/2 Sandusky Street
Mount Vernon, Ohio 43050 Delaware, Ohio 43015
Knox County, Case No. 21CA000023 2
Baldwin, J.
{¶1} Appellant, Adam Taylor, appeals his conviction by the Knox County Court
of Common Pleas. The State of Ohio is Appellee.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Taylor was indicted on two counts of gross sexual imposition in violation of
R.C. 2907.05(A)(4), both felonies of the third degree. The indictment included a
specification that "The Grand Jury further find(sic) and specify(sic) that Adam P. Taylor is
a sexually violent predator." The trial court found him guilty on both counts and Taylor
now argues that the verdict was not supported by sufficient evidence and was against the
manifest weight of the evidence. He also argues that the trial court improperly amended
the charge sua sponte and that his sentence is void under the original language of the
indictment.
{¶3} The victim in this case, A.T., was twelve years old at the time of the incident.
She testified that Taylor sexually abused her on a regular basis and that she had dreams
about the abuse. The two incidents that led to the charges in this case were "just the
things where I could actually recall facts and say." (Trial Transcript, p. 139, lines 11-21).
She confirmed that these incidents definitely occurred and were not part of a dream.
{¶4} The first incident occurred in November 2017 in the morning while A.T. was
still in bed and pretending to be asleep. She recalled that Taylor put his hand in her pants
and was rubbing her vagina. (Trial Transcript, p. 112, lines 13-18). She also described a
second incident, in December 2017, where she recalled that Taylor was "playing with my
breasts" and "rubbing my vagina." (Trial Transcript, p. 109, lines 1-7).
Knox County, Case No. 21CA000023 3
{¶5} After a bench trial on January 19, 2021, the trial court issued a guilty verdict
on two counts of Gross Sexual Imposition in violation of R.C. 2907.05(A)(4). The verdict
was issued on June 16, 2021; sentencing was scheduled for July 21, 2022, but was
continued to September 16, 2021 at Taylor’s request.
{¶6} Taylor failed to appear for sentencing and a warrant was issued for his
arrest. He was arrested the day the warrant was issued and the trial court imposed an
indefinite sentence of fifty-four months to life on each count, pursuant to R.C.
2971.03(A)(3)(a), with the sentences to be served consecutively. (Sent. Entry, Oct. 26,
2021, at 2). The trial court also found Taylor to be a Tier III sex offender/child victim
offender registrant.
{¶7} Taylor filed a notice of appeal and submitted four assignments of error:
{¶8} “I. THE EVIDENCE AGAINST TAYLOR AS TO COUNT ONE WAS
LEGALLY INSUFFICIENT AS A MATTER OF LAW.”
{¶9} “II. THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING
TAYLOR OF THESE OFFENSES.”
{¶10} “III. THE TRIAL COURT ERRED IN SUA SPONTE AMENDING THE
SPECIFICATIONS, BECAUSE THE AMENDMENTS WERE NEVER PRESENTED TO
THE GRAND JURY AS REQUIRED.”
{¶11} “IV. TAYLOR'S PRISON TERMS WERE CONTRARY TO LAW BECAUSE
HIS INDEFINITE SENTENCES UNDER THE SPECIFICATION STATUTE WERE VOID.”
ANALYSIS
{¶12} In his first and second assignments of error, Taylor contends the conviction
was not supported by sufficient evidence and was against the manifest weight of the
Knox County, Case No. 21CA000023 4
evidence. Because these assignments of error are closely related we will consider them
simultaneously.
{¶13} Sufficiency of the evidence and manifest weight of the evidence are
separate and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380, 386–87,
678 N.E.2d 541 (1997). Essentially, sufficiency is a test of adequacy. Id. A sufficiency of
the evidence standard requires the appellate court to examine the evidence admitted at
trial, in the light most favorable to the prosecution, to determine whether such evidence,
if believed, would convince the average mind of the defendant's guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 259, 574 N.E.2d 492, 494, syllabus, paragraph
2.
{¶14} In contrast to the sufficiency of the evidence analysis, when reviewing a
weight of the evidence argument, the appellate court reviews the entire record, weighing
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts of 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. Thompkins at 387.
{¶15} Taylor was charged with a violation of R.C. 2907.05(A)(4), gross sexual
imposition, which states:
(A) No person shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have sexual
contact with the offender; or cause two or more other persons to have
sexual contact when any of the following applies:
**
Knox County, Case No. 21CA000023 5
(B) (4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that person.
{¶16} 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.” And we have held that “[i]t 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).” State v. Moore, 5th Dist. Morgan
No. 21AP0003, 2022-Ohio-2349, ¶¶ 27-28.
{¶17} In the case before us A.T. confirmed that she was twelve years old at the
time of the offenses and that Taylor was regularly abusing her. She did admit that she
was disturbed by dreams of continued abuse by Taylor, but she confirmed that she
distinctly remembered the two incidents of abuse that formed the basis of the charges
and that they were not the product of a dream. The victims’ mother corroborated the date
of the incidents and the rational for the delay in reporting the abuse.
{¶18} The testimony of A.T. and her mother was unrebutted. Taylor crafts an
argument relying upon his contention that their testimony should be discounted as not
credible and full of inconsistencies. As an appellate court, we are not fact finders; we
neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine
whether there is relevant, competent and credible evidence, upon which the fact finder
could base his or her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758,
Knox County, Case No. 21CA000023 6
1982 WL 2911 (Feb. 10, 1982). Accordingly, judgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed as
being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction,
54 Ohio St.2d 279, 376 N.E.2d 578 (1978). The Ohio Supreme Court has emphasized:
{¶19} “ ‘[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable presumption
must be made in favor of the judgment and the finding of facts. * * *.’ ” Eastley v. Volkman,
132 Ohio St.3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
well established that the trial court is in the best position to determine the credibility of
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002-Ohio-3405, 2002 WL
1454025, ¶ 9, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
{¶20} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’ ” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
2008 WL 5245576, ¶ 31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-
3395, 813 N.E.2d 964 (2nd Dist.2004), ¶ 81. In other words, “[w]hen there exist two fairly
reasonable views of the evidence or two conflicting versions of events, neither of which
is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th
Dist. Mahoning No. 99 CA 149, 2002 WL 407847 at ¶ 13, quoting State v. Gore, 131 Ohio
App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
Knox County, Case No. 21CA000023 7
{¶21} The judge as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness's credibility. “While the [trier of
fact] may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies *503 do not render defendant's conviction against the manifest
weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739,
2000 WL 297252 (Mar 23, 2000) quoting State v. Nivens, 10th Dist. Franklin
No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed, the [trier of fact] need not
believe all of a witness' testimony, but may accept only portions of it as true. State v.
Raver, 10th Dist. Franklin No. 02AP–604, 2003-Ohio-958, 2003 WL 723225, ¶ 21,
quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th
Dist. Franklin No. 02AP–1238, 2003-Ohio-2889, 2003 WL 21291042, quoting State v.
Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist.1992).
{¶22} In the case at bar, the judge heard the witnesses, viewed the evidence and
Taylor’s arguments. In the Decision and Entry after Bench Trial, the trial court
acknowledged that the testimony of the victim contained inconsistencies and that some
of the information in the report to Children’s Services was inaccurate, but concluded that:
Notwithstanding these inconsistencies, the victim did not waver in her
testimony about the Defendant's conduct in the two incidents. The victim is
very articulate, and a mature young woman for her age. She appeared
confident and assured, and her testimony was clear and definite about the
Defendant's acts against her. The Court finds the victim witness testimony
to be reliable based upon these observations of the witness during the trial.
Knox County, Case No. 21CA000023 8
The Court finds that the testimony of the victim's mother, Meredith Collins
is likewise credible and reliable, and it confirms the victim's testimony in
important details such as the timing of the victim reporting the incidents to
her mother, and the reasons for the delay in reporting the incidents to
outside agencies.
Decision and Entry after Bench Trial, Jun. 16, 2021, p. 7.
{¶23} The trial court in this case was in the best position to judge the credibility of
the witnesses by observing them during their testimony and we have held that “this court
must refrain from substituting our judgment on a cold record for that of the fact finder see
e.g.,(sic) Seasons Coal Company, Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77.”
Coventry v. Turrin, 5th Dist. Tuscarawas No. 1999AP040023, 2000 WL 492944, *3.
{¶24} Based upon the foregoing and the entire record in this matter, we find
Taylor's conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the judge appears to have fairly and impartially decided the matters
before him. The judge as a trier of fact can reach different conclusions concerning the
credibility of the testimony of the state's witnesses and Taylor's arguments. This court will
not disturb the trier of fact's finding so long as competent evidence was present to support
it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The judge heard the
witnesses, evaluated the evidence, and was convinced of Taylor's guilt.
{¶25} Upon careful consideration of the record in its entirety, we find that there is
substantial evidence presented which if believed, proves all the elements of the crime of
gross sexual imposition for which Taylor was convicted and we find no evidence that the
fact finder lost its way by rendering a guilty verdict.
Knox County, Case No. 21CA000023 9
{¶26} Taylor’s first and second assignments of error are overruled.
III., IV.
{¶27} Taylor contends that the trial court erred by sua sponte amending the
indictment after the trial and that, therefore, that portion of his sentence related to the
amendment is void. These assignments of error are linked so we consider them
simultaneously.
{¶28} Taylor argues that the trial court “circumvented the grand jury process by
amending Taylor’s indictment to R.C. 2941.148.” (Appellant’s Brief, p. 8). Because the
amendment was contrary to law, Taylor continues, his indefinite sentence was void as
the specification approved by the grand jury, R.C. 2941.149 did not apply to his case.
{¶29} The trial court noted the incorrect citation in a footnote to its Decision and
Entry after Bench Trial where it stated: “The Court finds that the indictment contains a
typographical error in citing to the wrong statute for the specification (R.C. 2941.149
instead of 2941.148), and that this error can be corrected by a motion to amend the
indictment pursuant to Cr.R. 7.” (Decision and Entry after Bench Trial, Jun. 16, 2021, p.
1). Taylor came before the court in October 2021 for sentencing, but the record contains
no objection or complaint regarding the alleged error in the citation or reference to any
prejudice that it caused. “It is a well-established rule that ‘an appellate court will not
consider any error which counsel for a party complaining of the trial court's judgment could
have called but did not call to the trial court's attention at a time when such error could
have been avoided or corrected by the trial court.’” (Citations omitted.) State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.
Knox County, Case No. 21CA000023 10
{¶30} Though not raised at trial, Taylor had the opportunity to raise this forfeited
claim on appeal through Crim.R. 52(B). Pursuant to Crim.R. 52(B), “plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.” Taylor did not raise plain error. Because he does not claim plain error on
appeal, we need not consider it. See, State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 17–20 (appellate court need not consider plain error where
appellant fails to timely raise plain-error claim); State v. Gavin, 4th Dist. Scioto
No. 13CA3592, 2015-Ohio-2996, ¶ 25, quoting Wright v. Ohio Dept. of Jobs & Family
Servs., 9th Dist. Lorain No. 12CA010264, 2013-Ohio-2260, ¶ 22 (“when a claim is
forfeited on appeal and the appellant does not raise plain error, the appellate court will
not create an argument on his behalf”). However, even if we were to consider Taylor’s
argument on the forfeited claim he would not prevail.
{¶31} Taylor carefully avoids citing the language of R.C. 2941.148 and 2941.149
as that would reveal that the trial court’s amendment corrected a typographical error and
did not alter the nature of the charge against him. The indictment contained the following
language: “The Grand Jury further find(sic) and specify(sic) that Adam P. Taylor is a
sexually violent predator," the language required by R.C. 2941.148(A)(2). The indictment
incorrectly included a reference to R.C. 2941.149 which addresses a specification
concerning repeat violent offenders, but did not include the language from that section.
The court’s sua sponte amendment corrected a typographical error and had no impact on
the nature of the offense charged or the penalty imposed.
{¶32} Taylor relies on State v. Dilley, 47 Ohio St.3d 20, 546 N.E.2d 937 (1989),
but we find that case inapplicable as it addressed an attempt by the state to add a
Knox County, Case No. 21CA000023 11
specification that was not included in the indictment. Id. at 20. The Supreme Court of Ohio
found that “state may not amend an indictment so as to include a specification contained
in R.C. 2941.143 without first presenting the specification to the grand jury or following
the other alternatives contained therein. The state may not avoid *23 the clear mandates
of R.C. 2941.143 and circumvent the grand jury process * * *.” Id. at 22–23. In the case
before us, the specification was presented to the grand jury and included in the indictment,
but with an incorrect citation to the Revised Code.
{¶33} The Supreme Court of Ohio has addressed this issue and found that mis-
numbering of a statute in an indictment did not invalidate the indictment: “Each count of
the indictment or information shall state the numerical designation of the statute that the
defendant is alleged to have violated. Error in the numerical designation or omission of
the numerical designation shall not be ground for dismissal of the indictment or
information, or for reversal of a conviction, if the error or omission did not prejudicially
mislead the defendant.” (Emphasis in original.) State ex rel. Dix v. McAllister, 81 Ohio
St.3d 107, 108, 689 N.E.2d 561, 562 (1998) quoting State v. Morales (1987), 32 Ohio
St.3d 252, 254, 513 N.E.2d 267, 270, fn. 4. See Crim.R. 7(B).
{¶34} The trial court is authorized to make such an amendment by Crim.R. 7 (D)
contingent upon a finding that the amendment does not “change the name or identity of
the crime charged.” State v. Isenogle, 5th Dist. Stark No. 2021CA00079, 2022-Ohio-
1257, ¶ 32. If we were to disregard Taylor’s failure to present this matter to the trial court
and the lack of argument regarding plain error, we woul find that the amendment had no
impact on the name and identity of the charged offense and that the indictment provided
Taylor with ample warning of the nature of the pending charges. Id. at ¶ 38.
Knox County, Case No. 21CA000023 12
{¶35} Taylor’s third assignment of error is denied.
{¶36} Taylor’s fourth assignment of error, a contention that the sentence imposed
was not authorized by law, is dependent on a finding that the third assignment of error
was well taken. Because we have denied the third assignment of error, the fourth
assignment of error must be denied as well.
{¶37} The decision of the Knox County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Delaney, J. concur.