State v. Bennett , 2018 Ohio 3623 ( 2018 )

[Cite as State v. Bennett, 2018-Ohio-3623.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-09-138
: OPINION
- vs - 9/10/2018
:
DALE E. BENNETT, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT
Case No. CRB1601318
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044,
for defendant-appellant
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Dale E. Bennett, appeals from his conviction in the Butler
County Area III Court for sexual imposition. For the reasons set forth below, we affirm
appellant's conviction.
{¶ 2} Following an incident that occurred on August 26, 2016, at a restaurant in West
Chester, Ohio, appellant was charged by complaint with one count of sexual imposition in
Butler CA2017-09-138
violation of R.C. 2907.06(A)(1), a misdemeanor of the third degree. The complaint alleged
appellant followed the victim, K.D., into Dewey's Pizza. Once inside the restaurant, appellant
touched K.D. on the shoulders while standing behind her before touching K.D.'s clothed
buttocks with his clothed penis. Appellant pled not guilty to the charge and a bench trial was
held on March 9, 2017.
{¶ 3} The state presented testimony from K.D., who testified that on the evening of
August 26, 2016, she visited Dewey's Pizza to pick up a carry-out order. After exiting her
vehicle, K.D. encountered appellant in the parking lot. Appellant was wearing a kilt, which he
compared to K.D.'s skirt. Appellant told K.D., "Mine's prettier than yours, mine's prettier than
yours, mine's prettier than yours." When K.D. went to enter the restaurant, appellant
demanded that she hold the door open for him, telling her "Well, men have equal rights, you
know, too; it's not just all about women." K.D. responded to appellant's peculiar statement by
saying "umm, okay," and holding the door open for him.
{¶ 4} Once inside, K.D. went to the end of the bar to pick up her pizza. Appellant
followed "closely behind" her. K.D. gave her name to the hostess. Appellant, who was
behind K.D., placed his hands on K.D.'s shoulders, massaged her shoulders, and rubbed his
semi-erect genitals on her buttocks for several seconds before walking away and
unsuccessfully attempting to engage a couple in conversation.
{¶ 5} K.D. stated she was "totally shocked" by appellant's actions but had "no doubt"
appellant had rubbed his genitals against her buttocks. K.D. was "100 percent positive"
appellant was not wearing a fanny pack, bag, or sporran around his waist when he was
standing behind her.1 K.D. had observed that appellant was wearing a kilt with a cotton T-
1. A "sporran" is "a large pouch of skin with the hair or fur on that is worn in front of the kilt by Highlanders in full
dress and used as a purse." Webster's Third New International Dictionary, 2206 (1993). At trial, appellant
described his sporran as a "medium-sized or large-sized chain purse" that he used to store his keys, money,
camera, identification, and phone.
-2-
Butler CA2017-09-138
shirt tucked into it, with "absolutely nothing around his waist."
{¶ 6} K.D. told the hostess what had occurred, and the hostess walked around the
restaurant to try to locate appellant. K.D. realized appellant had not given his name for a
table nor had he picked up a carryout order. K.D. therefore felt appellant had followed her
into the restaurant. The hostess was unable to locate appellant, and K.D. spoke with the
restaurant's manager, who called the police.
{¶ 7} Angela Robbins, an employee of Dewey's Pizza, testified that she was working
on August 26, 2016 when she observed appellant and K.D. enter the restaurant. Robbins
testified she briefly went into the kitchen when appellant and K.D. arrived. When she
returned from the kitchen, she saw K.D. waiting for her order and appellant "leaving very
quickly out the emergency exit." According to Robbins, the door was clearly marked "for
emergency only." Robbins testified that as appellant left through the emergency door, she
noticed he had a fanny pack over his shoulder. Robbins did not notice whether appellant
was wearing the fanny pack when he first arrived but stated that appellant had worn a fanny
pack around his waist on a prior visit to Dewey's Pizza that took place on August 4, 2016.
{¶ 8} West Chester Township Police Officer Steven Seitzman testified he was
dispatched to Dewey's Pizza on August 26, 2016, where he spoke with K.D., Robbins, and
the restaurant's manager. The following evening, Seitzman called appellant to discuss the
incident. This phone call was recorded, and the recording was played at trial.2
{¶ 9} During the phone call, appellant initially denied being in West Chester on
August 26, 2016. Later in the conversation, he admitted he went to Dewey's Pizza, but
2. App.R. 9(A)(1) provides that "[t]he original papers and exhibits thereto filed in the trial court, the transcript of
proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk
of the trial court shall constitute the record on appeal in all cases." (Emphasis added.) In the present case, the
recording of appellant's phone call with Officer Seitzman was not included in the record on appeal. However, a
transcription of the recording was included in the transcript of the trial proceedings and was reviewed by this
court in rendering our opinion.
-3-
Butler CA2017-09-138
stated that "[t]here was no place to sit. And I left. End of story as far as that goes."
Appellant also initially claimed he could not remember if he was wearing a kilt for his visit to
Dewey's Pizza, and he denied having any contact with a female patron at the restaurant. He
then suggested that it was possible someone misconstrued "just a nice hello," and stated that
"if I * * * touched anybody's shoulder or something, and they didn't like it or whatever, I mean
women do a whole lot more to me. I didn't do anything out of the way."
{¶ 10} Eventually appellant admitted to Seitzman that he touched a woman's
shoulders "maybe for a few seconds" as a means of greeting her and saying hello. He also
admitted he was wearing a kilt and stated that the sporran he was wearing with his kilt must
have brushed up against the woman and "she took it the wrong way." Appellant told
Seitzman, "I was just saying hello as I was leaving as far as I know. I just brushed forward * *
* [and] touched someone as I was leaving. No one said anything to me, so I didn't think
nothing more of it." He further stated, "Usually if I do something wrong or out of the way,
especially with a group or a family or a boyfriend or husband or whatever, somebody will turn
around and say something to you. Nobody said anything to me."
{¶ 11} In addition to testifying about his phone call with appellant, Seitzman testified
about his discussion with Robbins and his written report of that discussion. In Seitzman's
written report, he indicated Robbins' told him that appellant was wearing a fanny pack around
his waist on August 26, 2016, not on his shoulder. However, Seitzman testified he might
have been "mistaken" in drafting his report, as Robbins' trial testimony was "very vivid * * *
[and] more in depth than [the] little paragraph, and the two sentences of [his] conversation"
that he included in his report.
{¶ 12} Following the state's presentation of its case-in-chief, appellant moved for
acquittal pursuant to Crim.R. 29. The trial court denied the motion. Appellant's friend, Jim
Marlow, was called as a character witness for appellant. Marlow testified he has known
-4-
Butler CA2017-09-138
appellant for over 50 years, as appellant began living with Marlow's family when he was 10
years old. Marlow stated he talks with appellant at least once a week and sees appellant
about once a month. Marlow explained that when appellant was 16, appellant was involved
in a very serious car accident that noticeably changed his personality. According to Marlow,
some people avoid appellant as he "gets very excitable" and talks loudly.
{¶ 13} Marlow testified about his opinion of appellant's behavior around woman,
stating that he had never heard appellant say anything inappropriate or do anything
inappropriate to or around women. Rather, Marlow had observed appellant acting
appropriately when appellant was around Marlow's granddaughters and was out on dates
with women.
{¶ 14} Appellant then testified on his own behalf. Appellant discussed the serious car
accident he was in at age 16, stating he "guesses it has affected [him]." He discussed his
love of kilts and noted that he has been wearing them regularly for about ten years.
Appellant stated that whenever he wore a kilt, he also wore a sporran around his waist.
Inside the sporran appellant carried his keys, money, camera, identification, and phone.
{¶ 15} Appellant testified that on August 26, 2016, he went to Dewey's Pizza, a
restaurant he had frequented on a prior occasion. Appellant stated he was dressed in a kilt
and acknowledged that he was not wearing undergarments underneath the kilt. He testified
that he was wearing a sporran around his waist on this occasion and expressly denied that
he had carried the sporran over his shoulder, as Robbins had testified. Appellant stated the
numerous items he was carrying inside his sporran made it "quite heavy" and caused it to
hang down in front of his groin.
{¶ 16} Appellant admitted he had entered the restaurant at the same time as K.D.,
had teased K.D. that his kilt was cuter than her skirt, and had insisted that K.D. hold open the
door as "that's the proper thing to do." Appellant claimed that Dewey's Pizza was too
-5-
Butler CA2017-09-138
crowded, so he left after a few minutes to go to Bonefish Grill, a nearby restaurant. Appellant
acknowledged he had not told Seitzman about going to Bonefish Grill during their phone call
and stated the reason he did not tell Seitzman was because "[t]hat's very personal."
{¶ 17} Although appellant admitted during his phone call with Seitzman that he had
intentionally touched K.D.'s shoulders, at trial, appellant testified only that he "possibly"
placed his hands on K.D.'s shoulders when he was leaving Dewey's Pizza as a way of
"bracing" himself when trying to "squeeze through" people. Appellant also stated that it was
"possible" his sporran touched K.D.'s buttocks as he was "scooting out sideways" in order to
leave the restaurant. However, appellant expressly denied purposefully massaging K.D.'s
shoulders or rubbing his groin against K.D.'s buttocks, stating he "had no interest." He also
testified that he did not recall leaving the restaurant through an emergency exit and stated
that the reason he initially lied to Seitzman over the phone about having been at Dewey's
Pizza or wearing a kilt on August 26, 2016, was because he "didn't know what the phone call
was about * * * didn't know who it was," and was in a noisy environment having a hard time
hearing the caller.
{¶ 18} Following appellant's testimony, the defense rested, and the trial court found
appellant guilty as charged. Appellant was subsequently sentenced to a suspended 60-day
jail term, placed on probation for one year, designated a Tier I sex offender, and ordered to
pay a $250 fine and court costs.
{¶ 19} Appellant timely appealed his conviction, raising two assignments of error.
{¶ 20} Assignment of Error No. 1:
{¶ 21} THE TRIAL COURT ERRED IN OVERRULING DEFENSE COUNSEL'S
OBJECTION TO TESTIMONY REGARDING [APPELLANT'S] ALLEGED PRIOR
MISCONDUCT.
{¶ 22} In his first assignment of error, appellant argues the trial court erred when it
-6-
Butler CA2017-09-138
permitted the state to cross-examine a defense witness about a prior, uncharged act of
misconduct allegedly committed by appellant when the court had previously granted
appellant's motion in limine to exclude reference to the incident.
{¶ 23} Prior to trial commencing, appellant filed a motion in limine seeking to exclude
from evidence a prior bad act that occurred at Dewey's Pizza. The state was prepared to
present testimony from Robbins that on August 4, 2016, appellant had approached the bar at
Dewey's Pizza while wearing a kilt, placed his genitals on the bar, and asked her, "Want to
see my kilt?" The trial court granted appellant's motion to exclude testimony about this event.
{¶ 24} At trial, the defense presented testimony from Marlow about appellant's
character for truthfulness. Marlow testified appellant was "very truthful" individual with a good
reputation for honesty. Defense counsel then questioned Marlow about appellant's
interaction and "character for appropriate behavior" around women as follows:
[Defense Counsel]: Now, have you ever seen [appellant] interact
with any women, females?
[Marlow]: A couple of times he's had a date out. My wife * * *
and I would go out or something, we run into him, and he would
be with a date. I don't know very much about his personal life
that way, but I have seen him probably with two or three different
women in four or five years.
[Defense Counsel]: Okay. Have you seen him interact with your
granddaughters for instance?
[Marlow]: Oh, yes, they love him. I mean, [appellant], outside of
him being – he can be – it gets a little uncomfortable when he
gets close and talks, but I have never seen anything out of
[appellant] that would bother me or my grandchildren.
[Defense Counsel]: So, in all of your contacts with [appellant],
have you ever seen him act inappropriately or say anything
inappropriately to or around women?
[Marlow]: No, I have not.
***
-7-
Butler CA2017-09-138
[Defense Counsel]: All right. And lastly, based upon your
personal contacts and interactions with [appellant], do you have
an opinion regarding his character for appropriate behavior with
women?
[Marlow]: I have never seen him do anything inappropriate to
women. I have seen him out in his kilts and so forth. It's not my
wardrobe, but he did one of those ancestry.com things, and found
out he was part Scottish and he ha[s] been doing that ever since.
This is him, I guess. But I have never seen him say or do
anything to disrupt a woman's opinion of him. * * *
{¶ 25} Thereafter, on cross-examination, after being advised that Marlow had never
seen appellant do anything inappropriate, the prosecutor asked, "Do you think if [appellant]
walked into a bar with his kilt on and walked up to the bar and put his genitals on the bar and
said 'let me show you my kilt,' do you think that would be inappropriate?" Marlow answered,
"I would." Defense counsel then objected to the question, stating "Objection, Your Honor.
That's facts not in evidence." The prosecutor argued that defense counsel had "opened the
door" to cross-examination about specific instances of conduct. The trial court ultimately
overruled the objection, stating "I think it's appropriate engaging the witness and he said he
has not seen him do anything inappropriate. I think as far as this witness' opinion, whether or
not a hypothetical posed to him is inappropriate or not is a fair question. Overruled."
{¶ 26} Appellant challenges the trial court's decision to allow the state to cross-
examine appellant's character witness about a specific instance of appellant's misconduct.
Appellant contends the evidence was not proper under the rules of evidence and "Marlow's
inadmissible opinion testimony as to an uncharged act was prejudicial to the outcome in this
case." Specifically, appellant contends it was prejudicial for the judge, as the sole trier of
fact, to "hear a prominent character witness alter his opinion of the defendant's character
based on an uncharged act, when that opinion was elicited in the form of an impermissible
hypothetical question that speaks directly to a motive or lack of mistake."
{¶ 27} As an initial matter, we note that "[a] trial court has broad discretion in the
-8-
Butler CA2017-09-138
admission and exclusion of evidence and unless it clearly abused its discretion and appellant
is materially prejudiced thereby, an appellate court should not disturb the decision of the trial
court." State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9. An
abuse-of-discretion standard of review is a deferential review. State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, ¶ 14. An abuse of discretion is more than an error of law or
judgment; it implies that the trial court's decision was unreasonable, arbitrary, or
unconscionable. State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, ¶
8.
{¶ 28} Evid.R. 404 governs the admissibility of character evidence and it provides in
relevant part as follows:
(A) Character evidence generally. Evidence of a person's
character or a trait of character is not admissible for the purpose
of proving action in conformity therewith on a particular occasion,
subject to the following exceptions:
(1) Character of accused. Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut
the same is admissible; however, in prosecutions for rape, gross
sexual imposition, and prostitution, the exceptions provided by
statute enacted by the General Assembly are applicable.
(Emphasis added.) Therefore, "[t]he basic rule is that the defendant may, at his option, offer
evidence of his good character as proof that he did not commit the act charged because such
conduct is not in accord with his character. * * * If the accused offers evidence of his good
character, then and only then, can the prosecution offer evidence of the bad character of the
accused." Staff Notes to Evid.R. 404(A)(1); State v. Bozeman, 12th Dist. Butler No. CA2008-
10-248, 2009-Ohio-3677, ¶ 41; State v. Kelly, 11th Dist. Portage No. 2010-P-0049, 2012-
Ohio-523, ¶ 40.
{¶ 29} As the Ohio Supreme Court recognized, one of the ways to rebut the testimony
of a character witness is to cross-examine the witness "as to the existence of reports of
-9-
Butler CA2017-09-138
particular acts, vices, or associations of the person concerning whom he has testified which
are inconsistent with the reputation attributed to him by the witness – not to establish the
truth of the facts, but to test the credibility of the witness, and to ascertain what weight or
value is to be given his testimony." State v. Elliott, 25 Ohio St.2d 249 (1971), paragraph two
of the syllabus, vacated in part on other grounds, 408 U.S. 939, 92 S.Ct. 2872 (1972). "Such
inconsistent testimony tends to show either that the witness is unfamiliar with the reputation
concerning which he has testified, or that his standards of what constitutes good repute are
unsound." Id.{¶ 30} Furthermore, Evid.R. 405 sets forth the appropriate methods for proving
character, and provides as follows:
(A) Reputation or opinion. In all cases in which evidence of
character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in the
form of an opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct.
(B) Specific instances of conduct. In cases in which character
or a trait of character of a person is an essential element of the
charge, claim, or defense, proof may also be made of specific
instances of his conduct.
(Emphasis added.)
{¶ 31} Pursuant to the rules set forth above, we find that the state's cross-
examination of Marlow was proper. During direct examination, Marlow testified about
appellant's good character, raising the inference that appellant did not commit the crime
charged because such conduct was not in accord with his character "for appropriate behavior
with women." Appellant, therefore, opened the door to allow the prosecution to rebut the
inference that appellant had a character for appropriate behavior with women during its
cross-examination of Marlow. Evid.R. 404(A)(1) and 405(A) permitted the state to inquire
about specific instances of inappropriate conduct. See Bozeman at ¶ 38-58; State v. Posey,
- 10 -
Butler CA2017-09-138
9th Dist. Summit No. 20578, 2001 Ohio App. LEXIS 5498, *3-5 (Dec. 12, 2001); State v.
Mathis, 9th Dist. Summit No. 19036, 1999 Ohio App. LEXIS 3112, *2-6 (June 30, 1999).
{¶ 32} "[W]hen using specific instances of bad conduct to cross-examine a character
witness, an attorney must have a good faith factual basis for the prior conduct." Id. at *6,
citing State v. Hart, 72 Ohio App.3d 92, 98 (10th Dist.1991). Here, the prosecutor acted in
good faith when referencing appellant's December 4, 2016 conduct at Dewey's Pizza during
his cross-examination of Marlow. The prosecutor discussed the factual predicate for his
belief that the incident took place when the court initially considered appellant's motion in
limine at the start of the trial. Furthermore, as defense counsel never challenged the
prosecutor's good-faith basis for asking about the December 4, 2016 incident, we may
presume the prosecutor had one. See State v. Gillard, 40 Ohio St.3d 226, 231 (1988)
("Since the prosecutor's good-faith basis for asking these questions was never challenged,
we presume she had one").
{¶ 33} Appellant contends that the trial court erred when it allowed the state to ask
Marlow about the December 4, 2016 incident through the use of a "hypothetical," as Marlow
was a lay witness and not an expert witness. We find no error in the manner in which the
state cross-examined Marlow about the December 4, 2016 incident. The prosecutor merely
inquired about a specific instance of inappropriate conduct committed by appellant and asked
Marlow his opinion of such conduct. As discussed above, this was appropriate and
authorized by Evid.R. 405(A). See Mathis, 1999 Ohio App. LEXIS 3112 at *2-6.
{¶ 34} Furthermore, contrary to appellant's arguments, we find that appellant was not
prejudiced by the state's cross-examination of Marlow regarding the December 4, 2016
incident. In evaluating appellant's claim of prejudice, it is important to note that appellant was
tried to the bench. The Ohio Supreme Court has recognized that in bench trials, the trial
judge is "presumed to consider only the relevant material and competent evidence in arriving
- 11 -
Butler CA2017-09-138
at a judgment, unless the contrary affirmatively appears from the record." State v. Eubank,
60 Ohio St.2d 183, 187 (1979). See also State v. Flores, 12th Dist. Warren No. CA2014-03-
037, 2014-Ohio-5751, ¶ 29. We must therefore presume that the trial court considered
testimony relating to the December 4, 2016 incident only for its proper limited purpose. See
State v. Binks, 12th Dist. Butler No. CA2017-08-118, 2018-Ohio-1570, ¶ 51.
{¶ 35} Accordingly, for the reasons expressed above, we conclude that the trial court
did not abuse its discretion in permitting Marlow to be cross-examined about the December
4, 2016 incident at Dewey's Pizza. Defense counsel's questioning of Marlow opened the
door for the prosecution to rebut the inference that appellate had a character for appropriate
behavior around women in accordance with Evid.R. 404(A)(1) and 405(A). Appellant's first
assignment of error is, therefore, overruled.
{¶ 36} Assignment of Error No. 2:
{¶ 37} THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S RULE 29
MOTION FOR ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN
A CONVICTION UNDER R.C. 2907.06(A)(1); AND, [APPELLANT'S] CONVICTION WAS
CONTRARY TO LAW.
{¶ 38} In his second assignment of error, appellant argues the trial court erred by
denying his Crim.R. 29 motion for acquittal, his conviction for sexual imposition was not
supported by sufficient evidence, and his conviction was against the manifest weight of the
evidence.
{¶ 39} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same
standard as that used to review a sufficiency-of-the evidence claim. State v. Mota, 12th Dist.
- 12 -
Butler CA2017-09-138
Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5.
{¶ 40} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,
194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of
the evidence underlying a criminal conviction, an appellate court examines the evidence in
order to determine whether such evidence, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.
CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 41} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of
the evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. An
appellate court will overturn a conviction due to the manifest weight of the evidence "only in
the exceptional case in which the evidence weighs heavily against the conviction." Id., citing
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶ 42} Further, although the legal concepts of sufficiency of the evidence and weight
of the evidence are quantitatively and qualitatively different, "[a] determination that a
- 13 -
Butler CA2017-09-138
conviction is supported by the manifest weight of the evidence will also be dispositive of the
issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶
19.
{¶ 43} Appellant was convicted of sexual imposition in violation of R.C. 2907.06(A)(1),
which provides that "[n]o person shall have sexual contact with another, not the spouse of the
offender * * * when * * * [t]he offender knows that the sexual contact is offensive to the other
person, or one of the other persons, or is reckless in that regard." Sexual contact means
"any touching of an erogenous zone of another, including without limitation the thigh,
genitals, buttock, public 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). "In regard to 'sexual arousal'
or 'sexual gratification,' R.C. 2907.01(B) contemplates 'any touching of the described areas
which a reasonable person would perceive as sexually stimulating or gratifying.'" State v.
McCoy, 12th Dist. Butler No. CA2015-05-095, 2016-Ohio-1577, ¶ 14, quoting State v. Gesell,
12th Dist. Butler No. CA2005-08-367, 2006-Ohio-3621, ¶ 23.
{¶ 44} While the purpose of sexual arousal or gratification is an element of the
offense of sexual imposition, "there is no requirement that there be direct testimony regarding
sexual arousal or gratification." State v. Curtis, 12th Dist. Butler No. CA2008-01-008, 2009-
Ohio-192, ¶ 52. Rather, "[w]hether the touching was performed for the purpose of sexual
arousal or gratification is a question of fact to be inferred from the type, nature, and
circumstances of the contact." Gesell at ¶ 25. In making this determination, the trier of fact
is "permitted to infer what the defendant's motivation was in making the physical contact with
the victim." State v. Robinson, 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 43.
{¶ 45} After reviewing the record, weighing inferences and examining the credibility of
the witnesses, we find that appellant's conviction for sexual imposition is supported by
sufficient evidence and is not against the manifest weight of the evidence. The state
- 14 -
Butler CA2017-09-138
presented testimony and evidence proving all the essential elements of the offense beyond a
reasonable doubt.
{¶ 46} Testimony was presented that appellant made peculiar statements to K.D. in
the parking lot of Dewey's Pizza before following her into the restaurant. Once inside,
appellant neither gave his name for a table nor picked up a carryout order. Instead, appellant
stood directly behind K.D., massaged her shoulders, and rubbed his semi-erect genitals
against her buttocks for several seconds before fleeing the restaurant through an emergency
door. At this time, appellant was not wearing undergarments under his kilt. Looking at the
totality of these circumstances, a finder of fact could determine that appellant rubbed his
genitals against K.D.'s buttocks for the purpose of sexually arousing and gratifying himself
and then fled, knowing that the sexual contact was offensive to K.D. Appellant's defense that
the touching was accidental is belied by the fact that he followed K.D. into the restaurant,
admitted he intentionally touched her shoulders as a way of saying a "nice hello," made
sexual contact with her, immediately left out an emergency door, and then gave an ever-
changing statement about the events during his phone call with Officer Seitzman. Appellant
initially denied being at Dewey's Pizza on August 26, 2016, before admitting he had been
there, initially claimed he could not recall whether he wore a kilt to the restaurant before
remembering he had worn a kilt with a sporran, and initially denied making contact with a
female patron at the restaurant before admitting he touched K.D.'s shoulders with his hands
and his stating his sporran must have accidentally brushed up against K.D. as he was
leaving.
{¶ 47} Although appellant claimed at trial that it was his sporran, weighed down by his
personal belongings, that came into contact with K.D.'s buttocks, the trial court heard
testimony from K.D. that she was "100 percent positive" appellant had not been wearing the
sporran around his waist when he was standing behind her. Robbins also testified that
- 15 -
Butler CA2017-09-138
appellant was carrying a bag over his shoulder when he went out the restaurant's emergency
door. When there is a conflict in the testimony of witnesses, it is for the trier of fact to
determine the weight and credibility to be given to such evidence. State v. Marcum, 12th
Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, ¶ 31, citing State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. "[A] conviction is not against the manifest
weight of the evidence simply because the trier of fact believed the prosecution testimony."
State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. Here, the
trial court clearly believed the state's version of events and found K.D.'s and Robbins'
testimony credible. As the court noted in rendering its guilty verdict,
THE COURT: [T]here's the notion that the defendant says, "Well,
I was wearing a sporran the entire time." State's first witness,
[K.D.], is adamant that he was not wearing it. I don't really have
anything to suggest [that] the State's first witness, a private citizen
* * * developed a personal vendetta against somebody that she
doesn’t even know for brushing up against her. [That] seems
stretched.
And why her recollection is so adamant also is for her to
somehow fabricate or even for the State's other witness * * * the
other employee of Dewey's is saying that she recalls the sporran
around the defendant's shoulder gives credence to the testimony
of the State's first witness that it wasn't around his waist. And the
prosecutor's proposition that this sporran, if that was what was
brushed up against the buttocks of another person, the Court
agrees that is certainly not something likely to be mistaken or
clearly identified as an erect or semi-erect penis. That doesn't –
that doesn't make any sense as far as that is concerned.
***
But quite honestly, the thing that I find the most telling when we
weigh the credibility of the defendant versus the accusers in this
particular case is the defendant's statement that the contact he
would have had with her happened on his way out, and that
doesn't make any sense because if he had contact with her on
his way out, he would have had to backtrack from the bar to
where she was waiting on her to go * * * pizza there at that bar
corner, and then back out the other door.
Therefore, given the testimony and evidence before it, the trial court was entitled to discredit
- 16 -
Butler CA2017-09-138
appellant's testimony that it was his sporran – and not his genitals – that rubbed against
K.D.'s buttocks.
{¶ 48} Accordingly, after viewing the evidence in a light most favorable to the
prosecution and relying on the trial court's credibility determination that K.D.'s testimony was
credible while appellant's testimony was not, we find that appellant's conviction for sexual
imposition was supported by sufficient evidence and was not otherwise rendered against the
manifest weight of the evidence. Appellant's second assignment of error is, therefore,
overruled.
{¶ 49} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
- 17 -