[Cite as State v. Brown, 2013-Ohio-5854.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J
: Hon. John W. Wise, J.
-vs- :
:
DAVID BROWN : Case No. 2013CA008
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. CRB 1200633
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTIE M. L. THORNSLEY JEFFREY G. KELLOGG
760 Chestnut Street 239 North 4th Street
Coshocton, OH 43812 Coshocton, OH 43812
Coshocton County, Case No. 2013CA008 2
Farmer, J.
{¶1} On October 21, 2012, appellant, David Brown, was charged with two
counts of sexual imposition in violation of R.C. 2907.06(A)(1). Said charges arose from
allegations that appellant touched the breasts of two different women in a public
establishment.
{¶2} A bench trial commenced on January 23, 2013. Appellant was found
guilty as charged. By judgment entry filed February 25, 2013, the trial court sentenced
appellant to thirty days on each count, to be served consecutively, suspended in lieu of
specific conditions. The trial court designated appellant as a Tier I sex offender.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED BY CONVICTING THE APPELLANT DAVID
BROWN ON INSUFFICIENT EVIDENCE."
I
{¶5} Appellant claims his conviction was against the sufficiency of the
evidence. We disagree.
{¶6} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "The 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." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). We
Coshocton County, Case No. 2013CA008 3
note the weight to be given to the evidence and the credibility of the witnesses are
issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact
"has the best opportunity to view the demeanor, attitude, and credibility of each witness,
something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio
St.3d 415, 418, 1997-Ohio-260.
{¶7} Appellant was convicted of two counts of sexual imposition in violation of
R.C. 2907.06(A)(1) which states the following:
(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:
(1) The offender knows that the sexual contact is offensive to the
other person, or one of the other persons, or is reckless in that regard.
{¶8} "Sexual contact" is defined in R.C. 2907.01(B) 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."
{¶9} Appellant argues there was no evidence that he touched either woman
"for the purpose of sexually arousing or gratifying either person." As explained by our
brethren from the Twelfth District in In Re: A.L., 12th Dist. Butler No. CA2005-12-520,
2006-Ohio-4329, ¶ 19-20:
Coshocton County, Case No. 2013CA008 4
In determining whether sexual contact occurred, "the 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." State v. Cobb (1991), 81 Ohio App.3d 179, 185. "While the
purpose of sexual arousal or gratification is an essential element of the
offense of gross sexual imposition, there is no requirement that there be
direct testimony regarding sexual arousal or gratification." State v.
Meredith, Warren App. No. CA2004-06-062, 2005-Ohio-062, ¶ 13, citing,
among others, In re Anderson, 116 Ohio App.3d at 443.
Whether the touching or contact 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. Merideth, citing Anderson
at 443-444, and State v. Mundy (1994), 99 Ohio App.3d 275, 289. In
determining the defendant's purpose, the trier of fact may infer what the
defendant's motivation was in making physical contact with the victim.
Meredith, citing Mundy and Cobb. "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." Cobb, 81 Ohio
App.3d at 185.
Coshocton County, Case No. 2013CA008 5
{¶10} Geanna Starr testified she was at Alpha Bits & Bytes when appellant
came in. T. at 23. She did not know him. Id. Appellant approached Ms. Starr, put his
arm around her, and squeezed her left breast. T. at 24, 26, 29. The business owner,
Adrian Padilla, and his employee, Faith Murphy, corroborated this testimony. T. at 17-
18, 29. Mr. Padilla testified he smacked appellant's hand and told him to keep his "f'ing
hands off my customers." T. at 6, 9, 19. Ms. Starr "kind of opened up her eyes and she
said like kind of a gasp." T. at 9. She testified she was shocked by appellant's actions.
T. at 26. Appellant did not apologize or say anything to Ms. Starr. T. at 24-25.
{¶11} Thereafter, appellant and Mr. Padilla went outside to talk. T. at 20. Ms.
Murphy came outside. T. at 6, 29. She did not know appellant. T. at 32. Appellant
performed a "Full Nelson/Half Nelson/Poke Nelson" joke on Ms. Murphy, whereupon he
placed Ms. Murphy in wrestling holds and then thrust behind her for the "Poke Nelson."
T. at 6, 20-21. Ms. Murphy broke away and went inside. T. at 6-7, 12, 21. Mr. Padilla
again told appellant to keep his hands off of his customers. T. at 7.
{¶12} After appellant reentered the establishment, he approached Ms. Murphy
and placed his hand down her shirt and touched her breast without her permission. T.
at 30-31. Mr. Padilla and Ms. Starr corroborated this testimony. T. at 7, 14, 22, 25. Ms.
Murphy grabbed appellant's arm, pulled it out of her shirt, and yelled at him. T. at 30.
She testified the contact was offensive. Id.
{¶13} Appellant testified he put his arm around Ms. Starr and then "realized that
it was not who I thought it was." T. at 39. He stated he apologized to her. Id.
Appellant stated he "did not grab that lady's boob." T. at 55. He stated he merely
Coshocton County, Case No. 2013CA008 6
placed his hand on her shoulder, "not anyplace inappropriate in any way, shape, form or
fashion." T. at 40.
{¶14} After appellant and Mr. Padilla went outside to talk, Ms. Murphy appeared
and appellant performed the wrestling joke on her. T. at 42. Appellant testified he and
Mr. Padilla were laughing and joking, and Mr. Padilla told appellant not to touch his
customer's "like that." Id.
{¶15} After appellant reentered the establishment, he placed his hand on Ms.
Murphy’s shoulder. Id. Appellant denied having his hand down her shirt. T. at 43.
{¶16} Appellant explained he was a "touchy person." T. at 50. He likes to hug
people, shake hands, and pat people on the back. Id. Mr. Padilla described appellant
as a "very flirtatious person" who thinks flirtation is a "physical touch." T. at 16.
{¶17} All of the events occurred within a twenty minute period. T. at 19. Mr.
Padilla testified he and appellant were friends and he did not have any "ax to grind" with
appellant. T. at 7.
{¶18} Based upon the testimony, there was sufficient evidence to establish that
appellant touched the women's breasts, an erogenous zone as defined in R.C.
2907.01(B). The gravamen of this case is whether appellant knew the sexual contact
was offensive or was reckless in that regard, and whether the sexual contact was for the
purpose of sexual arousal or gratification.
{¶19} After appellant touched Ms. Starr's breast, his hand was smacked away
and he was told not to touch customers in such a manner. Thereafter, appellant
touched Ms. Murphy's breast, and Ms. Murphy grabbed his arm and yelled at him.
Neither woman knew appellant. It can certainly be presumed that it would be offensive
Coshocton County, Case No. 2013CA008 7
to a woman to be touched on the breast by a stranger. In fact, Ms. Starr testified she
was shocked and Ms. Murphy testified the touching was offensive.
{¶20} The women did not know appellant nor encouraged his behavior. The trial
court acknowledged appellant's testimony regarding his "touchy" nature and his desire
to "shake hands," but noted one does not go up to a woman and "shake their breast."
T. at 60. The trial court concluded there could be no purpose for appellant's actions
other than sexual gratification. Id. As stated above, the trial court was permitted to infer
the purpose of the touching.
{¶21} Upon review, we find sufficient credible evidence to find appellant guilty of
the two counts of sexual imposition.
{¶22} The sole assignment of error is denied.
Coshocton County, Case No. 2013CA008 8
{¶23} The judgment of the Municipal Court of Coshocton County, Ohio is hereby
affirmed.
By Farmer, J.
Gwin, P.J. and
Wise, J. concur.
SGF/sg 11/26