In re R.C. , 2020 Ohio 1486 ( 2020 )

[Cite as In re R.C., 2020-Ohio-1486.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
In the Matter of: : Case No. 19CA20
R.C. :
Alleged Delinquent Child : DECISION AND
JUDGMENT ENTRY
:
RELEASED 4/10/2020
APPEARANCES:
Sara Barger, Barger Law Office, LLC and Dennis Kirk, Kirk Law Office, LLC, Hillsboro,
Ohio, for appellant.
Anneka P. Collins, Highland County Prosecutor, and James Roeder, Highland County
Assistant Prosecutor, Hillsboro, Ohio, for appellee.
Hess, J.
{¶1} R.C. appeals the trial court’s decision adjudicating him a delinquent child as
a result of committing gross sexual imposition in violation of O.R.C. 2907.05(A)(4). R.C.
contends that the trial court erred by denying his motion to suppress his statements made
to an investigating detective. He argues that he was not properly advised of his Miranda
rights and he lacked the capacity to knowingly and intelligently waive those rights. R.C.
also contends that his adjudication of delinquency was against the manifest weight of the
evidence because the record does not support a finding that the incident occurred or that
he acted with the purpose of sexual arousal or gratification.
{¶2} We conclude that the trial court did not err in denying R.C.’s motion to
suppress because R.C. was not in custody at the time of the interview, thus his Miranda
rights were not triggered, and his statements were made knowingly, intelligently, and
voluntarily. Additionally, we find that the trial court’s judgment is not against the manifest
weight of the evidence. We find that the trier of fact did not lose its way and create such
Highland App. No. 19CA20 2
a manifest miscarriage of justice that the conviction must be reversed. We overrule R.C.’s
assignments of error and affirm the trial court’s judgment.
I. PROCEDURAL HISTORY
{¶3} In February 2019, the state filed a complaint alleging that R.C. was a
delinquent child because he had sexual contact with M.G., a child less than thirteen years
of age, in violation of O.R.C. 2907.05(A)(4), gross sexual imposition. Prior to the
adjudicatory hearing, R.C. filed a motion to suppress the statements he made to an
investigating detective on two grounds: (1) he was not properly advised of his Miranda
rights and (2) his statements were not made knowingly, intelligently and voluntarily. The
trial court denied the motion, finding that R.C. was not in custody when the statements
were made and that the circumstances surrounding his statements showed that they were
made knowingly, intelligently and voluntarily. Following an adjudicatory hearing, the
Juvenile Division of the Highland County Court of Common Pleas found R.C. to be a
delinquent child. R.C. appealed.
II. ASSIGNMENT OF ERROR
{¶4} R.C. assigns the following errors for our review:
1. The trial court erred by overruling appellant’s motion to suppress as
appellant did not give a voluntary, knowing, and intelligent confession.
2. The trial court erred by finding that appellant was delinquent by reason
of gross sexual imposition because such a finding was against the
manifest weight of the evidence.
III. LAW AND ANALYSIS
A. Motion to Suppress
1. Standard of Review
Highland App. No. 19CA20 3
{¶5} In general “appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10
N.E.3d 691, ¶ 7. “When considering a motion to suppress, the trial court assumes the
role of trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence.” Id. “ ‘Accepting
these facts as true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.’ ” Codeluppi at ¶ 7, quoting Burnside at ¶ 8.
2. General Principles Concerning Custodial Interrogations
{¶6} The Fifth Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution provide that no person shall be compelled to be a witness
against himself or herself in any criminal case. State v. Arnold, 147 Ohio St.3d 138, 2016–
Ohio–1595, ¶ 30. “[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602 (1966). “A
suspect in police custody ‘must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court of law, that he
has the right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so desires.’ ” State v. Lather, 110
Ohio St.3d 270, 2006–Ohio–4477, ¶ 6, quoting Miranda at 479.
Highland App. No. 19CA20 4
{¶7} Police are not required to administer Miranda warnings to every person they
question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d
426, 440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.
711, 50 L.Ed.2d 714 (1977). Miranda warnings are required only for custodial
interrogations. Id. Miranda defined custodial interrogation as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Miranda at 444, 86 S.Ct. 1602.
{¶8} “In order to determine whether a person is in custody for purposes of
receiving Miranda warnings, courts must first inquire into the circumstances surrounding
the questioning and, second, given those circumstances, determine whether a
reasonable person would have felt that he or she was not at liberty to terminate the
interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 2004–Ohio–3430, 811 N.E.2d
48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383(1995). After the circumstances surrounding the interrogation are reconstructed, “the
court must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was a
‘ “ ‘formal arrest or restraint on freedom of movement’ “ ‘ of the degree associated with a
formal arrest.” Id., quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77
L .Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50
L.Ed.2d 714 (1977). Whether an individual is in custody is an objective inquiry. J.D.B. v.
North Carolina, 564 U.S. 261, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011); State v.
Hambrick, 4th Dist. Ross No. 15CA3497, 2016-Ohio-3395, ¶ 15; In re C.M.R., 2nd Dist.
No. 27519, 2018-Ohio-110, 107 N.E.3d 34, ¶15-16.
Highland App. No. 19CA20 5
{¶9} The United States Supreme Court has recognized that, “[i]n some
circumstances, a child's age ‘would have affected how a reasonable person’ in the
suspect's position ‘would perceive his or her freedom to leave.’ ” J.D.B. v. North Carolina,
564 U.S. 261, 270, 271–272, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), quoting Stansbury
v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The Court held
that, “so long as the child's age was known to the officer at the time of police questioning,
or would have been objectively apparent to a reasonable officer, its inclusion in the
custody analysis is consistent with the objective nature of that test.” Id. at 277, 131 S.Ct.
2394.
{¶10} In his motion to suppress, R.C. identified few factors to support his
contention that the interview was custodial in nature. He stated that it took place in a
patrol vehicle parked at R.C.’s residence and started with the investigator, Detective
Engle, stating that she “has to give Miranda” even though she told R.C. that “he is not
under arrest, which seems to contradict the Miranda she believes she is required to
provide.” (OR. 20, p. 2) The trial court found that the interview was not custodial in nature
and did not trigger Miranda rights.
{¶11} At the suppression hearing Detective Engle testified that she interviewed
R.C., a 17-year-old tenth grade student, (Tr. 7) at his home in her vehicle with his mother
present. Detective Engle’s vehicle was an unmarked police car equipped with a two-way
radio, and Engle was wearing a detective uniform. (Tr. 30-31) Detective Engle audio-
recorded the interview, which was played for the court. (May 31, 2019 Hearing Tr. p. 6)
Detective Engle began the interview by telling R.C. that he was not under arrest and
would not be leaving with her. She told R.C., “you can choose to end this interview at any
Highland App. No. 19CA20 6
point in time and get out of my car and go back into the house.” (Tr. p. 7) After
approximately thirty minutes, Detective Engle finished her interview with R.C., turned the
recording off, and R.C. exited her vehicle and went back into his house. (Tr. 24) Detective
Engle and R.C.’s mother, who was seated in the back seat of the vehicle, continued to
talk for approximately twenty more minutes after R.C. left. (Tr. 24) Detective Engle
testified that she never asked R.C. if he understood the idea that he could leave at any
time, but she had explained to him and also to his mother that they did not have to
participate in the interview and that R.C. was free to get out of the vehicle at any time he
chose. (Tr. 28)
{¶12} R.C.’s mother testified that when Detective Engle arrived at R.C.’s house,
she spoke to Detective Engle prior to her interview with R.C. and told Detective Engle
that R.C. has short-term memory problems, gets confused, and has an IEP.1 R.C.’s
mother testified that Detective Engle told her to “stay quiet unless I had a major question
or something” as “the interview was between the two of them.” (Tr. 42) R.C.’s mother
testified that R.C was in tenth grade, has never had any experience with law enforcement,
and has never been interviewed by law enforcement prior to his interview with Detective
Engle. (Tr. 46, 48)
{¶13} R.C. testified that he felt pressure to answer Detective Engle’s questions
but that he “sort of” understood that he was free to leave and get out of the car and “sort
of” knew that he could stop that interview at any point. (Tr. 52, 53, 54) R.C. testified that
he was sitting in the front seat of the unlocked vehicle. (Tr. 56) R.C. agreed that his
feelings of pressure could also have been nervousness at being question by a police
1Individualized Education Program, see O.A.C. 3301-51-07. The record contains no additional evidence
of R.C.’s cognitive abilities, memory function, or learning disabilities.
Highland App. No. 19CA20 7
officer. (Tr. 56) R.C. testified that he did not see any guns or handcuffs and was told that
he could leave anytime. (Tr. 56)
{¶14} After a careful review of the record, we find that R.C. was not in custody for
Miranda purposes at the time he spoke with Detective Engle. Detective Engle spoke to
R.C.’s mother and the mother agreed to bring R.C. to the patrol car to be interviewed and
was present throughout it. At the beginning of the interview, Detective Engle explained
that R.C. was not under arrest and could choose to end the interview, get out of the patrol
car, and go back inside his home. R.C. sat, without handcuffs, in the front of an unlocked
patrol car in front of his house and was questioned for approximately 30 minutes. R.C.
was not under arrest and was not “otherwise deprived of his freedom of action in any
significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. At the time of the interview
R.C. was 17 years old and a tenth-grade student. That the interview occurred in a police
vehicle is not alone sufficient to establish it was custodial. In re M.D., 12th Dist. Madison
No. CA2003-12-038, 2004-Ohio-5904, ¶ 18.
{¶15} Because R.C. was not in custody at the time he spoke with Detective Engle,
the trial court properly denied his motion to suppress on the ground that the interview was
not a custodial interrogation and thus R.C.’s Miranda rights were not triggered. Because
R.C. was not in custody, law enforcement had no obligation to inform him of his Miranda
rights and R.C.’s arguments that he did not knowingly waive them or that law enforcement
did not properly recite them are moot.2
3. General Principles Concerning Confessions
2The record shows that Detective Engle informed R.C. that anything he said could and would be used
against him, that he had a right to an attorney, and if he could not afford an attorney one would be
appointed for him, but she did not inform R.C. that he had the right to remain silent. (May 31, 2019 Tr. p.
6-7)
Highland App. No. 19CA20 8
{¶16} A second argument R.C. raised in his motion to suppress was that, “even if
Miranda was not required * * * [R.C.’s] alleged confession was not knowingly, voluntarily,
or intelligently given.” (O.R. 20, p. 5) In his appellate brief, R.C. contends that he “did not
voluntarily, knowingly, and intelligently waive his Miranda Rights and confess to a crime.”
(Brief p. 9) However, much of his argument addresses his waiver of Miranda rights, which
we have determined is moot as his interview was noncustodial. It is unclear from his
argument which facts from the record R.C. believes supports his contention that – aside
from compliance with Miranda – his confession was involuntary. However, in the interest
of justice we will take those same factors as grounds supporting his contention that his
confession was involuntary.
{¶17} Separate from the issue of compliance with Miranda in custodial
interrogations is the voluntariness of the defendant’s confession. In re N.J.M., 12th Dist.
Warren No. CA2010–03–026, 2010-Ohio-5526, ¶ 18, citing State v. Chase, 55 Ohio St.2d
237, 246, 378 N.E.2d 1064 (1978). “Even where Miranda warnings are not required, ‘a
confession may [still] be involuntary [and excludable] if on the totality of the
circumstances, the defendant's will was overcome by the circumstances surrounding
the giving of the confession.’ ” (Brackets sic.). In re N.J.M. at ¶ 18, quoting State v.
Fille, 12th Dist. Clermont No. CA2001–08–066, 2002-Ohio-3879, ¶15 and Dickerson v.
United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
{¶18} To satisfy due process with respect to a challenged confession, the state
must prove by a preponderance of the evidence that the confession was voluntary. Lego
v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The due process
test for voluntariness takes into consideration the totality of the circumstances. Dickerson
Highland App. No. 19CA20 9
v. U.S., 530 U.S. at 433–434, 120 S.Ct. 2326, 147 L.Ed.2d 405, citing Schneckloth v.
Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
{¶19} The Supreme Court of Ohio addressed confessions in the juvenile context
in Barker, infra:
The totality-of-the-circumstances test takes on even greater importance
when applied to a juvenile. * * * The totality-of-the-circumstances test allows
courts necessary flexibility to consider a juvenile's age and experience. The
court stated as follows:
The totality approach permits—indeed, it mandates—inquiry
into all the circumstances surrounding the interrogation,
[including] evaluation of the juvenile's age, experience,
education, background, and intelligence, and into whether he
has the capacity to understand the warnings given him, the
nature of his Fifth Amendment rights, and the consequences
of waiving those rights.
* * * “ ‘It is now commonly recognized that courts should take “special
care” in scrutinizing a purported confession or waiver by a child.’
” When an admission is obtained from a juvenile without counsel, “the
greatest care must be taken to assure that the admission was voluntary,
in the sense not only that it was not coerced or suggested, but also that
it was not the product of ignorance of rights or of adolescent fantasy,
fright or despair.” (Citations omitted, brackets sic.)
State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 38-41.
{¶20} R.C. contends that he did not voluntarily confess to a crime because he had
“memory troubles,” “would need additional time to answer the detective’s questions,” was
“rapidly asked numerous questions,” “had no previous interaction with law enforcement,”
“was asked closed ended questions,” “was provided the crime details,” and underwent
“extensive and intense questioning by the detective” to which he “eventually acquiesced.”
R.C. also contends that he was “a juvenile with a low functioning mental capacity” that
was “highly impressionable and susceptible to coercion.”
Highland App. No. 19CA20 10
{¶21} After carefully reviewing the record, including R.C.’s recorded interview, we
find, based on the totality of the circumstances, that R.C.’s statements to Detective Engle
were voluntary.
{¶22} The record shows that before the questioning began, R.C. was told he could
end the interview, leave and go back into his home. His mother was sitting with him during
the entire interview, during which time Detective Engle questions him for only
approximately 30 minutes. R.C.’s interview with the detective was not particularly lengthy,
intense or frequent. In re N.J.M., 2010–Ohio–5526 at ¶ 25.
{¶23} Although as the trial court noted, the detective’s questioning technique was
arguably “not standard or appropriate,” (Tr. 59) she did not use coercive police tactics to
obtain R.C.’s statements. “Coercive police activity is a necessary predicate to the finding
that a suspect involuntarily confessed.” In re R.L., 2014-Ohio-5065, 23 N.E.3d 298, ¶ 22
(2nd Dist.), citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d
473 (1986). Coercive law enforcement tactics include, but are not limited to, physical
abuse, threats, deprivation of food, medical treatment or sleep, use of certain
psychological techniques, exertion of improper influences or direct or implied promises,
and deceit. In re N.J.M., 2010–Ohio–5526 at ¶ 20. There is no evidence of physical
deprivation, mistreatment, threats, or improper inducement. Although the detective
repeatedly told R.C. she did not believe that he could not remember the events and
questioned his credibility, admonitions to tell the truth are both permissible and non-
coercive. Id. at ¶ 25; State v. Lewis, 7th Dist. Mahoning No. 03 MA 36, 2005–Ohio–2699,
¶ 15.
Highland App. No. 19CA20 11
{¶24} Detective Engle told R.C. the victim’s version of events and asked him
whether the events occurred as she described. R.C.’s responded repeatedly that he did
not know or could not remember. Detective Engle’s interview consisted entirely of long
narrative statements and leading questions about the events and whether R.C. touched
the victim’s buttocks and breasts, to which R.C. eventually responded, “I think so.”
However, “the use of leading questions does not coerce an individual to submit to those
questions.” Lewis at ¶ 16. During the interview, R.C. repeatedly stated that he did not
recall the incident. However, R.C. also stated that he “sort of” remembered laying on the
top bunk with the victim while they both watched R.C.’s brother play a video game and
he thought he may have touched the victim’s buttocks. After the detective explained the
victim’s version of events, R.C.’s responses were either to state that he did not remember,
or that he thought her story might be correct.
{¶25} The record shows that R.C. was a tenth grader with no prior criminal history
at the time of the interview. Although his mother stated that R.C. had memory issues and
had an IEP, there was nothing in the record, including the recorded statement, to support
counsel’s contention that R.C. was “a juvenile with a low functioning mental capacity”
that was “highly impressionable and susceptible to coercion.” R.C.’s age and mentality
did not prevent him from understanding the questions and answering them. Moreover,
diminished cognitive abilities do not necessarily equate to an involuntary statement,
especially where the juvenile does not have difficulty understanding questions, and the
juvenile’s responses were clear and responsive. In re M.J.C., 12th Dist. Butler No.
CA2014-05-124, 2015-Ohio-820, ¶ 16-21 (the confession of a 15 years old who had
trouble reading at a third grade level; was diagnosed with a mood disorder, ADHD, and a
Highland App. No. 19CA20 12
psychotic disorder; only prior criminal experience was a runaway charge; and where the
investigating detective repeatedly questioned juvenile's credibility and asked several
leading questions, was voluntary); In re R.L., 2014-Ohio-5065, 23 N.E.3d 298, ¶ 20-28
(2nd Dist.) (nine-year-old juvenile's statements to police officer during noncustodial
conversation were voluntarily made.); In re N.J.M., 2010–Ohio–5526 at ¶ 27 (the
confession of a 13–year–old boy with no prior criminal experience, an IQ of 67, and
delayed cognitive and emotional development, was voluntary).
{¶26} R.C. was never confused and never sounded as though he was in acute
distress. R.C.’s mother was present in the back seat and R.C. was not prevented from
conferring with her or vice versa. No “police trickery” or deceit was alleged or shown.
Nothing in the record suggests that R.C.’s will was overborne. In light of the foregoing,
we find that R.C.'s statements to Detective Engle were voluntary.
{¶27} The trial court properly denied R.C.’s motion to suppress. We overrule his
first assignment of error.
B. Manifest Weight of the Evidence
{¶28} For his second assignment of error, R.C. contends that the trial court’s
finding of delinquency for gross sexual imposition is against the manifest weight of the
evidence because the record does not support a finding that an incident occurred beyond
a reasonable doubt. And, the record does not support the finding that R.C. acted with the
purpose of sexual arousal or gratification.
1. Standard of Review
{¶29} “[I]n the juvenile context we employ the same standard of review applicable
to criminal convictions claimed to be against the manifest weight of the evidence.” In re
Highland App. No. 19CA20 13
Higginbotham, 4th Dist. Lawrence No. 04CA26, 2004-Ohio-6004, ¶ 4, citing In re Watson,
47 Ohio St.3d 86, 91, 548 N.E.2d 210 (1989). In determining whether a criminal conviction
is against the manifest weight of the evidence, an appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119;
State v. Woods, 2018-Ohio-4588, 122 N.E.3d 586, ¶ 64 (4th Dist.).
{¶30} “[U]nder Thompkins, even though there may be sufficient evidence to
support a conviction, a reviewing court can still reweigh the evidence and reverse a lower
court's holdings. Sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but weight of the
evidence addresses the evidence's effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 citing Thompkins at 386-87, 678
N.E.2d 541. “In other words, a reviewing court asks whose evidence is more persuasive—
the state's or the defendant's?” Id. Although there may be sufficient evidence to support
a judgment, it could nevertheless be against the manifest weight of the evidence. Id.“[T]he civil-manifest-weight-of-the-evidence standard affords the lower court more
deference then does the criminal standard.” (Citations omitted.) State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 26. “Weight of the evidence concerns
‘the inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other. It indicates clearly to the jury that the party
Highland App. No. 19CA20 14
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.’ ” (Citations omitted.) State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
{¶31} “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder's resolution of the conflicting testimony.”
(Citations omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25. “ ‘However, this review is tempered by the principle that questions of weight
and credibility are primarily for the trier of fact.’ ” State v. Elkins, 4th Dist. Lawrence No.
17CA14, 2019-Ohio-2427, ¶57 quoting State v. Garrow, 103 Ohio App.3d 368, 371, 659
N.E.2d 814 (4th Dist.1995).
{¶32} “If the prosecution presented substantial evidence upon which the trier of
fact could reasonably conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established, the judgment of conviction is not against the manifest
weight of the evidence.” (Emphasis added.) State v. Elkins, 4th Dist. Lawrence No.
17CA14, 2019-Ohio-2427, ¶¶ 57-58 citing State v. Picklesimer, 4th Dist. Pickaway No.
14CA17, 2015-Ohio-1965, ¶ 8. “Proof beyond a reasonable doubt is proof of such
character that an ordinary person would be willing to rely and act upon it in the most
important of his own affairs.” State v. Dyer, 4th Dist. Scioto No. 07CA3163, 2008-Ohio-
2711, ¶ 12; R.C. 2901.05 “A reviewing court should find a conviction against the manifest
weight of the evidence only in the exceptional case in which the evidence weighs heavily
Highland App. No. 19CA20 15
against the conviction.” (Internal quotations omitted.) State v. Taylor, 4th Dist. Ross No.
13CA3419, 2016-Ohio-1231, 62 N.E.3d 591 ¶ 31, quoting State v. Thompkins, 78 Ohio
St.3d at 387.
2. Legal Analysis
{¶33} R.C. was adjudicated delinquent for committing gross sexual imposition in
violation of O.R.C. 2907.05(A)(4), which provides in relevant part:
(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:
* * *
(4) The other person * * * is less than thirteen years of age, whether or not the
offender knows the age of that person.
{¶34} O.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.”
{¶35} The trial court held an adjudication hearing over two days in July and August
2019. At the hearing the victim, M.G., testified that when she was 10 years old in
November 2018 she was in R.C.’s bedroom with him and two other friends, G.L. and K.B..
(July 19, 2019, Tr. 8-9) Her friends G.L. and K.B. were playing a video game together and
she and R.C. were on the top bunk. (Tr. 11-12) M.G. testified that while they were laying
on the top bunk, R.C. got close to her and put his hand down her pants. She told him to
back away and he tried to do it again. After that, M.G. told the group that it was time for
her to go home and, because she was feeling uncomfortable, she left and went home.
(Tr. 13) M.G. testified that the next day she told her friend K.B. about it and, about a month
Highland App. No. 19CA20 16
later, told her mother. (Tr. 15) M.G. testified that her mother called the police and
eventually M.G. talked to Detective Engle about the incident.
{¶36} M.G. testified that during her interview with Detective Engle, M.G. was
presented a drawing with a girl’s body and M.G. marked the location on the drawing where
R.C. touched her. The drawing indicated that M.G. was touched on her buttocks and
breast. (Tr. 17, Ex 2) M.G. explained that R.C. touched her breast earlier that day when
she was looking around his house and his room, “[H]e came up behind me and he
grabbed underneath my chest, which made me feel real uncomfortable. But I thought he
was just rouse [sic] house…like rough house playing or whatever so I just ignored it. So,
I don’t know if that’s what he was doing but it just made me feel really uncomfortable.”
(Tr. 18)
{¶37} On cross-examination, M.G. testified that she did not tell her mother about
the incident until after a month or two after it happened and that she initially told law
enforcement that the incident occurred in the garage, not R.C.’s bedroom. (Tr. 20, 21)
M.G. also testified that both she and K.B. were neighbors of R.C.; that K.B. was spending
more time at R.C.’s house; that this made M.G. mad because K.B. was her best friend;
and that this was all happening before M.G. reported that R.C. had touched her. (Tr. 24-
25) On re-direct, M.G. explained that her statement that the incident occurred in the
garage was a lie, “I feel like I was just like wanting to tell it and I feel like I was kind of
confused but it was in his room, I kind of think I lied but it was in his room.” (T. 26)
{¶38} K.B. testified that she was in the bedroom the entire time and did not see
R.C. touch M.G. However, K.B. testified that during some of the relevant time period, she
was on the bottom bunk and M.G. was on the top bunk. M.G. eventually got down off the
Highland App. No. 19CA20 17
top bunk and joined K.B. on the bottom bunk. (Tr. 33-35) K.B. testified that M.G. and R.C
were never up on the top bunk together. (Tr. 41) K.B. testified that R.C., R.C.’s friend G.L.
and R.C.’s brother V.C. were all three playing video games, there were three to five video
game systems in the room, and she and M.G. were watching them. (Tr. 32) K.B. also
testified that she did not learn of the touching incident until Detective Engle came to school
two to three months later and pulled her out of recess to talk to her. (Tr. 37)
{¶39} G.L. testified that he was R.C.’s 14-year-old friend and was in the room the
entire time except to use the restroom or get a drink of water. (Tr. 49-50) G.L. testified
that he never saw R.C. on the top bunk with M.G. or have any physical contact with M.G.
(Tr. 51-52) G.L. testified that there were three video game consoles in the room and he,
R.C., and R.C.’s brother V.C. were at the three gaming consoles (Tr. 49-51) G.L. testified
that it was common for R.C. and him to sit playing video games for hours without getting
up. (Tr. 59)
{¶40} V.C. was R.C.’s 20-year old brother. V.C testified that he was in the
bedroom while M.G. was present. V.C. testified that R.C., G.L. and he all were playing
video games during her visit. (Tr. 61) V.C. never saw R.C. on the top bunk with M.G. or
touch her.
{¶41} L.C. was R.C.’s father and testified that he has poor vision and is blind in
one eye. (Tr. 66) He testified that he checked in on the group during M.G.’s visit. R.C.,
V.C. and G.L. were all three on their consoles playing video games and K.B. and M.G.
were watching. L.C. saw M.G. on the top bunk and told M.G. to get off the top bunk, but
M.G. was reluctant to do so because she told L.C. she could see the computers better
from up there. L.C. testified that he had to make M.G. get down off the top bunk.(Tr. 68-
Highland App. No. 19CA20 18
69) L.C. did not see R.C. up on the top bunk with M.G. L.C testified that M.G. eventually
left and went home but she did not seem upset and returned later that evening to play
outside in the front yard with R.C. and the others. (Tr. 71) L.C. did not become aware of
the accusations against R.C. until a sheriff appeared at his house. (Tr. 71)
{¶42} Detective Engle testified that she investigated the case and interviewed
R.C. in the driveway of his home approximately two months after the alleged incident.
(August 22, 2019, Tr. 7) Detective Engle testified that R.C. admitted that on the date of
the incident, he was in his bedroom with his friends, he and M.G. were on the top bunk,
and that he touched M.G.’s “butt.” (Tr. 9-10) Detective Engle testified that R.C. at first
could not recall the incident, “at first he appeared to have no knowledge of what I could
be talking about, but the longer that we talked he was very aware of what we were talking
about.” (Tr. 12)
{¶43} On cross-examination, Detective Engle admitted that she provided R.C.
with nearly all of the details of the crime, asked leading and closed-ended questions (i.e.
“did you slide over to her or did you reach your arm over?” (Tr. 39)), and that R.C.’s
overwhelming responses were “I don’t know,” “sort of,” I don’t remember,” and “I don’t
know.” (Tr. 45-48) Detective Engle testified that she only interviewed the victim and R.C.
She did not interview any of the other children or parents present at the time. (Tr. 13-14)
Detective Engle denied that her mind was made up before she interviewed R.C. or that
the tone of her interview with R.C. would lead a listener to believe that her mind was made
up about the incident prior to interviewing R.C. (Tr. 17) Nevertheless, in the recording of
the interview,3 Detective Engle begins by telling R.C., “I would like to talk to you about a
3The entire recorded interview was played into the record and a CD of the interview was part of the
appellate record. (Tr. 29, State Ex. 1)
Highland App. No. 19CA20 19
particular incident. Now when I ask you this, I don’t want you to seem that um that I think
you are a monster or that I think you prey on young girls or anything like that. Um, and I
can see how young girls now a days aren’t like young girls when your mom and I were
young.” (Tr. 30)
{¶44} Detective Engle then asks, “There was an incident where your brother and
you were in your room and your brother was playing X-Box with [K.B.] and there was
another child in the room. Do you remember who that child would have been? Do you
remember [M.G.] coming over to your house?” When R.C. answers, “She has before but
I don’t exactly remember?” Engle adds, “Roughly about a month ago?” R.C. responds, “I
don’t remember.” (Tr. 30-31) After R.C. fails to recall the specific time a month earlier that
he was playing video games in his room with friends, Detective Engle responds, “Okay, I
want you to understand something, I know you have trouble with memory but we are kind
of trained to say hey, we don’t want to recall a memory or when a bad memory comes
into effect blood goes to your brain, extra blood flow and your vein sticks out on your neck
because you’ve recalled something that you don’t wish to remember.” Still, R.C. responds
that he does not recall the incident.(Tr. 31)
{¶45} Detective Engle describes the incident in detail for R.C. and then asks if he
remembers it and R.C. responds several times that he does not recall it. Detective Engle
provides more details, asking multiple questions without waiting for an answer and then
concludes by asking, “And she went home because she was scared?“ R.C. responds to
the monologue and compound questioning with, “Sort of.” (Tr. 32) R.C. agrees that he
sort of remembers touching M.G.’s “butt” and then when asked for details, R.C. gives
Detective Engle the details she had provided to him earlier in the interview: he and M.G.
Highland App. No. 19CA20 20
were on the top bunk watching V.C and K.B. play X-Box. R.C. is unable to provide any
details of the incident not already provided to him by Detective Engle.
{¶46} When prodded for details he can remember about the day, R.C. repeated
stated that he cannot remember, “I don’t even remember what we did even yesterday
sometimes.” (Tr. 32) R.C. states that he may have laid on the top bunk with M.G. watching
his brother V.C “playing X-Box on his TV,” but that he does not remember much else
about it. (Tr. 33) Later when Detective Engle asks, “Were you and [M.G.] talking or were
you just watching the PlayStation?” R.C. changes his original answer that they were
watching V.C. play “X-Box” and adopts Detective Engle’s version that he and M.G. were
watching “PlayStation.” (Tr. 36-37)
{¶47} When Detective Engle asked R.C. a leading exculpatory question, “* * * I
know your mom told me you have memory issues and I’m okay with that but again we are
trained to interview people and anytime you don’t want to recall something negative,
everything about you changes. * * * And I’m almost certain that you’re not the monster
out there that you see on TV that touches young girls, is that correct? You don’t go around
touching neighborhood girls, do ya?” R.C. responds, “No, I don’t.” (Tr. 35) After a period
of silence and indecipherable mumbling on the recording during which it sounds like R.C.
is reluctant to talk further with Detective Engle, she asks, “I don’t want to sit here and feel
like you are a monster, [R.C.]. But we do have a story out here that has to be told and
most times, 9 times out of 10 you don’t want just one side being told. Which is why I am
here today instead of throwing you in handcuffs and arresting you. Again, I come with no
handcuffs, I come to talk. I don’t have you in my backseat, behind the cage. * * * So, at
Highland App. No. 19CA20 21
this point [R.C.] I need your side of the story. So, that I don’t have to present one side.”
R.C. responds, “If I don’t remember that, how can I actual [sic] say it.” (Tr. 36)
{¶48} Detective Engle describes the second incident in which R.C. allegedly
touched M.G.’s breasts, “Okay, do you remember um when [M.G.] got ready to leave and
she was standing at the bottom, on the bottom bunk, talking to [K.B.], standing beside
[K.B.], you came up behind her and with your palms facing her breasts, you might have
gave her a hug and touched her breasts?” R.C. responds, “I don’t know.” Detective Engle
then responds, “You see [R.C.] when I ask you direct questions, you tend to shut down
like you do recall, you just don’t want to say.” R.C. responds, “It’s because I am trying to
think.”(Tr. 38-39) Eventually after repeatedly being asked about touching M.G.’s breast,
R.C. responds, “I think so but it was messing around, (inaudible) grab her from behind,
like holding, just messing around.” (Tr. 41)
{¶49} After repeatedly stating that he cannot recall much about the day or does
not remember, Detective Engle asks, “Do you remember that day, [R.C.]?” R.C., “Not
exactly.” Detective Engle, “Do you remember bits and pieces of that day? So, when, so
did you touch her butt?” R.C., “I think so.” (Tr. 39) Then Detective Engle asks a series of
close-ended questions and R.C. chooses one of the two choices. Detective Engle, “Okay,
how did that come about? She’s on the top bunk, you’re on the top bunk. Everybody’s
watching X-Box, did you slide over close to her or did you reach your arm over?” R.C, “I
think I reached my arm over.” Detective Engle, “Okay, and when you reached your arm
over, did you touch her on the outside of her jeans or did you try to slide your hand down
her pants?” R.C., “I think I tried to slide my hand down her pants.” (Tr. 39) In response to
a series of leading questions, R.C. admitted that he thinks he may have touched M.G.’s
Highland App. No. 19CA20 22
skin when he put his hand in her pants, but doesn’t exactly remember. He agreed that he
may have put his hand her M.G.’s pants a second time but only touched M.G.’s
underwear. R.C. admitted that afterward, he thinks M.G. got down off the top bunk and
he may have stayed on the top bunk. (Tr. 41)
{¶50} Detective Engle admitted that she had been given information prior to the
interview that R.C. had difficulties with memory and was very suggestable and agreeable,
(Tr. 20) yet she agreed that she “did go at him repeatedly,” provided him with most of the
crime details, and gave him limited options for answers. She agreed that R.C. gave
noncommittal or vague responses throughout much of her interview. (Tr. 45-48)
{¶51} The trial court found R.C. a delinquent child. In its decision, the trial court
focused primarily on the testimony of the victim, M.G., and R.C.’s recorded statements.
The court noted that the state established that M.G. was a 10-year-old child. M.G. testified
that R.C. put his hand down her pants on several occasions and that earlier in the day
R.C. had reached around her and touched her breasts. (Tr. 57) As for R.C.’s recorded
interview, the trial court found that R.C. “did say I think I touched her butt and I reached
my arm around over and tried to slide my hand down her pants, [M.G.] just laid there.”
(Tr. 58) The trial court found it significant that while R.C. “never admitted” the alleged
incident, he also “certainly never denied.” (Tr. 59) The trial court criticized the interview
technique used with R.C. as arguably “not standard or appropriate” but determined that,
in this particular case, the inappropriate interview technique did not “mean that [R.C.]
gave a false conf… [sic] confession.” (tr. 59-60) Ultimately the court found, “I do believe
the touch happened. M.G. detailed what happened and R.C. never denied it, ever. In fact,
Highland App. No. 19CA20 23
said I think so, I think so. So, I do believe it happened beyond a reasonable doubt.” (Tr.
60)
{¶52} As for the element of “sexual contact,” the trial court discounted the incident
involving the breast touching, finding that the circumstance as described by both M.G.
and R.C. was likely just horsing around. However, as to the touch to the buttocks, the trial
court found that the touch occurred and that it was done for the purpose of sexual arousal
or gratification because R.C. was 17 years old and M.G. was 10 years old and R.C. placed
his hands into her pants and touched her skin. (Tr. 61)
{¶53} On a manifest weight of the evidence challenge, an appellate court will not
reverse a conviction on that basis unless it is obvious that the trier of fact lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed. After
a close examination of the state’s evidence we cannot find that the trier of fact lost its way
and that a manifest miscarriage of justice has occurred.
{¶54} Although there was inconsistent testimony concerning the breast
touching/hugging, the trial court ultimately determined it was “just horsing around” and
did not constitute gross sexual imposition. (Tr. 61) We find that the manifest weight of the
evidence supports the trial court’s rejection of the breast touching as a ground for the
gross sexual imposition charge. Both the victim and R.C. testified that they believed it
was just horse play and their respective testimony about it was inconsistent as to time
and place. Detective Engle led R.C. to agree that after M.G. got down off the bottom bunk
and was standing next to K.B., he came up behind her, hugged her and touched her
breast. (TR. 38, 41) However, M.G. testified that the hugging/breast touching incident
occurred earlier in the day and not while she was next to K.B. getting ready to leave.
Highland App. No. 19CA20 24
Thus, the version of events that Detective Engle got R.C. to agree to were not the same
version that M.G. testified to at trial. Likewise, none of the other witnesses who were in
the bedroom saw R.C. hug M.G. inappropriately when M.G. stated she was going home.
{¶55} The trial court found that M.G.’s testimony and R.C.’s recorded statement
were the most important and relevant testimony concerning the buttocks-touching
incident. We agree. The other witnesses were not in a position to have noticed whether
R.C. slipped his hand down the back of M.G.’s pants while both were lying on the top
bunk. M.G. did not make a loud protest, but rather moved away, got down, and went
home.
{¶56} As for R.C.’s recorded statement, although we find that Detective Engle’s
interview with R.C. did not rise to the level of “police coercion,” we afford it minimal
weight.4 Not only did Detective Engle get R.C. to agree to a different hugging incident
than M.G. testified had occurred, R.C. also agreed with her when she asked him if they
were watching “X-Box” and then agreed with her when she changed it to “Playstation.”
R.C. also denied touching neighborhood girls when Detective Engle asked the leading
question, “You don’t go around touching neighborhood girls, do ya?” (tr. 35) but then
acquiesced to possibly touching M.G. when asked leading questions about it. R.C.
repeatedly stated throughout the interview that he had memory issues and simply could
not recall the incident. Detective Engle acknowledged she had been told that R.C. was
very suggestable and agreeable, (Tr. 20) yet she provided him all the pertinent details of
the crime and led him through the interview with narrative, leading and closed-ended
4 At the suppression hearing, Detective Engle admitted that R.C.’s interview was her first interview, that it
was the first time she ever issued a Miranda warning, that it was her “first solo case” and that she had no
interview training prior to the case, but has had some training since. (May 31, 2019 Hearing Tr. p. 25)
Highland App. No. 19CA20 25
questions. R.C. provided no independent facts about the incident that were not already
provided to him by Detective Engle. While we acknowledge we typically defer to the trial
court on matters of credibility, we do this less so in criminal matters, and here, where
R.C.’s interview was an audio recording, the trial court has no greater advantage in
assessing its credibility and weight than we do.
{¶57} However, the trial court found the victim’s testimony about the buttocks-
touching incident to be credible. The victim was present and testified in court where the
trial court had an advantage over us in assessing her credibility and the weight to afford
her testimony. The weight and credibility of evidence are to be determined by the trier of
fact. State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. “A jury, sitting
as the trier of fact, is free to believe all, part or none of the testimony of any witness who
appears before it.” Id. We defer to the trier of fact on these evidentiary weight and
credibility issues because it is in the best position to gauge the witnesses' demeanor,
gestures, and voice inflections, and to use these observations to weigh their
credibility. Id.; see also State v. Minton, 2016-Ohio-5427, 69 N.E.3d 1108, ¶ 79-80 (4th
Dist.).
{¶58} Here, the trial court was able to observe the victim on the witness stand,
and was in the best position to judge and weigh her credibility. The victim’s testimony
about her previous lie to law enforcement was also observed by the trial court, as was
her testimony concerning her jealousy motive to fabricate the event. The trial court was
free to believe all, part, or none of her testimony. In sum, the trial court had before
it sufficient facts to ascertain the victim's credibility and to weigh it accordingly, and we
will not substitute our judgment for that of the trier of fact.
Highland App. No. 19CA20 26
{¶59} Additionally, the evidence supports the trial court’s finding that the buttocks
touch occurred for the purpose of sexual gratification. We explained the proof of sexual
gratification as follows:
Proof of sexual gratification generally must be accomplished by inference
rather than by direct evidence. See State v. Cobb (1991), 81 Ohio App.3d
179, 185, 610 N.E.2d 1009, 1012. In Cobb, the court noted that: “[T]he
proper method is to permit the trier of fact to infer from
the evidence presented at trial whether the purpose of the defendant
was sexual arousal or gratification by his contact with those areas of the
body described in R.C. 2907.01. In making its decision the trier of fact may
consider the type, nature and circumstances of the contact, along with the
personality of the defendant. From these facts the trier of fact may infer what
the defendant's motivation was in making the physical contact with the
victim. If the trier of fact determines, that the defendant was motivated by
desires of sexual arousal or gratification, and that the contact occurred,
then the trier of fact may conclude that the object of the defendant's
motivation was achieved.” Id. See, also, In re Anderson (1996), 116 Ohio
App.3d 441, 688 N.E.2d 545; In re Salyers (June 10, 1998), Ross App. Nos.
97CA2312 and 2319; In re Bloxson (Feb. 6, 1998), Geauga App. No. 97–
G–2062 (stating that “[a] sexual purpose can be inferred from the nature of
the act itself if a reasonable person would find that act sexually stimulating
to either the offender or the victim”).
(Brackets sic.) In re Higginbotham, 4th Dist. Lawrence No. 04CA26, 2004-Ohio-6004, ¶
18.
{¶60} Here, the trial court noted the ages of the victim and R.C. and the
circumstances surrounding the touch and found that it was done for the purpose of sexual
arousal or gratification. Although there is no direct evidence of R.C.'s sexual motivation,
sufficient evidence exists from which the trial court reasonably could have inferred that
he committed the act for purposes of sexual arousal or gratification. A reasonable person
could conclude that R.C.’s placement of his hand inside M.G.’s pants and on her buttocks
constituted contact for purposes of sexual gratification or arousal as there is no innocent
explanation for this behavior.
Highland App. No. 19CA20 27
{¶61} Having reviewed the testimony and the other evidence adduced at trial, we
do not believe that the trial court clearly lost its way in convicting R.C. of gross sexual
imposition for touching the buttocks of M.G. Thus, the adjudication was not against
the manifest weight of the evidence. We overrule R.C.’s second assignment of error.
IV. CONCLUSION
{¶62} We overrule R.C.’s assignments of error and affirm the judgment of the trial
court.
JUDGMENT AFFIRMED.
Highland App. No. 19CA20 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the HIGHLAND
COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION to carry this judgment
into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.