[Cite as State v. Edwards, 2013-Ohio-3068.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010274
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DAVID EDWARDS COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 10CR081459
DECISION AND JOURNAL ENTRY
Dated: July 15, 2013
WHITMORE, Judge.
{¶1} Appellant, David Edwards, appeals from the judgment of the Lorain County
Court of Common Pleas. This Court affirms.
I
{¶2} Edwards was living with his long-time girlfriend, Ramona Gail Sturtevant.
Sturtevant is the paternal grandmother of J.S., who would frequently spend time at Sturtevant’s
house after school and on occasion would spend the night. J.S. and Edwards were friends and
had a close, loving relationship. This changed around the time J.S. turned ten. At that time, J.S.
became aggressive toward Edwards and began to avoid him.
{¶3} In June 2010, J.S. reported to school officials that Edwards had abused her.
While the school officials did not notify her mother, J.S. told her that same day. Her mother
immediately contacted the police. J.S. was interviewed by a detective and a social worker from
2
Children’s Services. Based on that interview, Edwards was indicted on one count of gross
sexual imposition (“GSI”), in violation of R.C. 2907.05(A)(4), a felony of the third degree.
{¶4} While the case remained pending, J.S. attended regular counseling sessions. In
August 2011, J.S. met with an assistant prosecutor to prepare for trial. At this meeting, J.S.
disclosed additional acts of abuse by Edwards. Based on this meeting, Edwards was indicted on
one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and an
additional count of GSI, in violation R.C. 2907.05(A)(4), a felony of the third degree.
{¶5} A jury convicted Edwards of the two counts of GSI, but found him not guilty of
rape. The court sentenced him to four years in prison. Edwards now appeals and raises four
assignments of error for our review.
II
Assignment of Error Number One
THE GUILTY VERDICTS ARE AGAINST THE SUFFICIENCY OF THE
EVIDENCE IN VIOLATION OF MR. EDWARDS’S RIGHTS UNDER THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO
STATE CONSTITUTION.
{¶6} In his first assignment of error, Edwards argues that the State failed to produce
sufficient evidence to support his convictions for gross sexual imposition. Specifically, Edwards
argues that the State failed to produce any evidence to establish that he had sexual contact with
J.S. for the purpose of sexual arousal or gratification.
{¶7} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient to
support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of
3
adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be
viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” Id.
{¶8} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court,
therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,
2008-Ohio-3721, ¶ 4 (9th Dist.).
{¶9} R.C. 2907.05(A)(4) provides, in relevant part, that:
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 * * * when * * * [t]he other person * * * is less than thirteen years of
age, whether or not the offender knows the age of that person.
“Sexual contact” is defined 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.” R.C. 2907.01(B).
{¶10} “[I]n the absence of direct testimony regarding sexual arousal or gratification, the
trier of fact may infer a purpose of sexual arousal or gratification from the ‘type, nature and
circumstances of the contact, along with the personality of the defendant.’” State v. Antoline, 9th
Dist. Lorain No. 02CA008100, 2003-Ohio-1130, ¶ 64, quoting State v. Cobb, 81 Ohio App.3d
179, 185 (9th Dist.1991). “From these facts the trier of facts may infer what the defendant’s
motivation was in making the physical contact with the victim.” Cobb at 185.
{¶11} J.S. testified that Edwards touched her breasts and “vaginal area” “below” her
clothes with his hands and his mouth. She further testified that the touching occurred in 2009-
2010, when she was 10 and 11 years old. Viewing the evidence in a light most favorable to the
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State, “[J.S.’s] testimony alone was sufficient because, if believed, it could have convinced the
average finder of fact beyond a reasonable doubt that [Edwards] had touched one or more
erogenous zones of a child under the age of thirteen for the purpose of sexual arousal or
gratification.” See State v. Thomas, 9th Dist. Wayne No. 10CA0003, 2010-Ohio-6373, ¶ 10.
Accordingly, Edwards’ first assignment of error is overruled.
Assignment of Error Number Two
THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN VIOLATION OF MR. EDWARDS’S RIGHTS UNDER THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO
STATE CONSTITUTION.
{¶12} In his second assignment of error, Edwards argues that his convictions are against
the manifest weight of the evidence. Specifically, Edwards argues that (1) Sturtevant’s
testimony establishes that Edwards never had the opportunity to commit the crimes; (2) J.S.’s
testimony was conflicting and inconsistent; and (3) the jury’s inconsistent verdicts demonstrate
that it lost its way.
{¶13} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387; Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. “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.’” (Emphasis sic.) Thompkins at 387, quoting Black’s at 1594.
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 and a new trial ordered.
5
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases. Otten at 340.
{¶14} Sturtevant, J.S.’s paternal grandmother, testified that J.S. had a close, loving
relationship with her long-time live-in boyfriend, Edwards. Sturtevant explained that things
changed after J.S. turned 10 years old. J.S. became aggressive towards Edwards, had locked him
in the shed for hours, and told the family that she wanted Edwards to die. Sturtevant denied ever
leaving J.S. alone with Edwards for long periods of time, but did acknowledge that Edwards
would occasionally be alone with her. Sturtevant said that the two could be alone when playing
outside together, in another part of the house, or when she made a quick trip to the local grocery
store. Sturtevant also testified that Edwards confessed to her that one day while J.S. was
teaching him to use the computer he “had put his hand down in her bosom, on her breast, and
pulled her bra strap.” According to Sturtevant, Edwards told her that she was in the kitchen
making food when this happened.
{¶15} J.S. testified that one day she “had an emotional breakdown during class and [ ]
couldn’t stop crying.” She explained that her teacher pulled her into the hallway to ask what was
wrong. Eventually, J.S. told her teacher that Edwards had “sexually molested” her, but did not
provide any details. J.S. was taken to the vice principal’s office where she repeated what she had
told her teacher. J.S. was sent back to class and picked up at the end of the day by her mother,
Olivia Rivera.
6
{¶16} Rivera testified that she picked up J.S. from school just like any other day and had
not been informed by the school of J.S’s report of abuse. Rivera stated that she knew
immediately that something was bothering J.S. and thought maybe she had gotten into trouble at
school. After pressing J.S. for what was bothering her, J.S. told Rivera that Edwards had been
abusing her. J.S. did not tell Rivera any details of the abuse. Rivera called the police and J.S.’s
father.
{¶17} A couple of days later, J.S. met with Detective Carpentiere and a social worker
from Children’s Services. J.S. told them that Edwards had touched her inappropriately, but made
no allegations of cunnilingus. J.S. testified that she did not tell Detective Carpentiere and the
social worker everything because she was “still very scared.” After her interview, J.S. began
meeting with a counselor. She met with her counselor once a week for a year. After completing
counseling, J.S. met with an assistant prosecutor to prepare for trial. It was at this meeting that
J.S. revealed that Edwards had “put his mouth on [her].” Based on this new allegation, Edwards
was indicted on one count of rape and an additional count of GSI.
{¶18} After trial, the jury found Edwards not guilty of rape, but guilty of the two counts
of GSI. Edwards argues that the jury’s verdict is inconsistent because the jury did not believe
J.S.’s allegations that formed the basis of the rape charge, but did believe her allegations of GSI.
{¶19} The State presented three witnesses: J.S., her mother, and her grandmother. The
defense did not call any witnesses. After a careful review of the record we cannot conclude that
Edwards’ acquittal of rape makes his convictions for GSI against the manifest weight of the
evidence. “In reaching its verdict, the jury was entitled to believe all, part, or none of the
testimony of each witness.” State v. Howse, 9th Dist. Lorain No. 12CA010251, 2012-Ohio-
6106, ¶ 45.
7
{¶20} Further, we cannot conclude that J.S.’s failure to disclose all incidents of abuse in
her initial interview means that “the greater amount of credible evidence, offered in a trial, [ ]
support[s] one side of the issue rather than the other.” (Emphasis sic.) Thompkins at 387,
quoting Black’s at 1594. J.S. testified that she did not reveal all of the abuse in her initial
interview because she was scared. Further, she explained that her counseling sessions helped her
talk about the abuse. After a review of all of the evidence, we conclude that this is not the
exceptional case where the jury created a manifest miscarriage of justice in finding Edwards
guilty of GSI. See Otten, 33 Ohio App.3d at 340. Accordingly, Edwards’ second assignment of
error is overruled.
Assignment of Error Number Three
THE TRIAL COURT’S INSTRUCTIONS TO THE JURY WERE
INCOMPLETE AND INACCURATE, AND THEREFORE DEPRIVED MR.
EDWARDS OF A FAIR TRIAL IN VIOLATION OF HIS RIGHTS UNDER
THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, AND ARTICLE ONE, SECTION 10 OF THE
OHIO STATE CONSTITUTION.
{¶21} In his third assignment of error, Edwards argues that the court erred in failing to
define “purposefully” in its instructions to the jury. Edwards concedes that no objection was
raised at trial.
{¶22} “[W]here specific intent or culpability is an essential element of the offense, a
trial court’s failure to instruct on that mental element constitutes error.” State v. Wamsley, 117
Ohio St.3d 188, 2008-Ohio-1195, ¶ 17, quoting State v. Adams, 62 Ohio St.2d 151, 153 (1980).
Failure to object to jury instructions waives all but plain error. State v. Skatzes, 104 Ohio St.3d
195, 2004-Ohio-6391, ¶ 52. “Plain error exists only where it is clear that the verdict would have
been otherwise but for the error.” Id., quoting State v. Long, 53 Ohio St.2d 91, 97 (1978).
“[T]he plain error rule should be applied with utmost caution and should be invoked only to
8
prevent a clear miscarriage of justice.” State v. Underwood, 3 Ohio St.3d 12, 14 (1983). In
analyzing whether there is reversible plain error, “an appellate court must review the instructions
as a whole and the entire record to determine whether a manifest miscarriage of justice has
occurred as a result of the error in the instructions.” Wamsley at ¶ 17. See also Adams at
paragraph three of the syllabus.
{¶23} To be guilty of gross sexual imposition under R.C. 2907.05(A)(4), a defendant
must touch the erogenous zone of another with the purpose of sexually arousing or gratifying
either person. State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, ¶ 25. “The statute
requires a specific intent behind the touching - the touching must be intended to achieve sexual
arousal or gratification.” Id.
{¶24} Here, on the charges of gross sexual imposition, the jury was instructed that to
find Edwards guilty it must find that he “had sex[ual] contact with J.S., not the spouse of
[Edwards,] and J.S. was less than thirteen years of age * * *.” R.C. 2907.05(A)(4). The court
properly defined sexual contact as “any touching of an erogenous zone of another * * * for the
purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). The court erred in
failing to define the term “purpose.” However, under the facts of this case, we conclude the error
does not rise to the level of plain error.
{¶25} “Purpose” is a commonly used word and is readily understood. A defendant’s
purpose may be inferred from “the ‘type, nature and circumstances of the contact, along with the
personality of the defendant.’” Antoline, 2003-Ohio-1130, at ¶ 64, quoting Cobb, 81 Ohio
App.3d at 185. Here, J.S. testified that Edwards touched her “below” her clothes on her breasts
and “vaginal area.” The record does not indicate any other rational explanation for the contact,
other than for the purpose of Edwards’ sexual gratification.
9
{¶26} After reviewing the record, we conclude that the court erred in failing to instruct
the jury on the definition of the required mens rea. However, this does not rise to the level of
plain error because a specific instruction on the definition of purpose would not have produced a
different result at trial. See State v. Jay, 8th Dist. Cuyahoga No. 91827, 2012-Ohio-914, ¶ 12.
Accordingly, Edwards’ third assignment of error is overruled.
Assignment of Error Number Four
MR. EDWARDS’S CONVICTIONS FOR GROSS SEXUAL IMPOSITION,
BOTH FELONIES OF THE THIRD DEGREE, VIOLATED R.C. 2945.75(A)(2)
BECAUSE THE JURY VERDICTS DID NOT INCLUDE THE DEGREE OF
THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS.
{¶27} In his fourth assignment of error, Edwards argues that the verdict forms are
insufficient to support his convictions are felonies of the third degree. Specifically, Edwards
argues that because the verdict forms “do not include the degree of the offense or the aggravating
element that the victim was under the age of thirteen,” he may only be convicted of a felony of
the fourth degree, the least degree of the offense. We disagree.
{¶28} R.C. 2945.75(A)(2) provides that:
When the presence of one or more additional elements makes an offense one of
more serious degree * * * A guilty verdict shall state either the degree of the
offense of which the offender is found guilty, or that such additional element or
elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of
the least degree of the offense charged.
{¶29} In State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, the Ohio Supreme Court
held that strict compliance with R.C. 2945.75(A)(2) was required to support a conviction of
tampering with governmental records, in violation of R.C. 2913.42(B)(4), and that the presence
of additional circumstances would not excuse the failure to comply with the statute. Pelfrey at ¶
14. The Court explained:
10
The express requirement of the statute cannot be fulfilled by demonstrating
additional circumstances, such as that the verdict incorporates the language of the
indictment, or by presenting evidence to show the presence of the aggravating
element at trial or the incorporation of the indictment into the verdict form, or by
showing that the defendant failed to raise the issue of the inadequacy of the
verdict form.
Id. The Court reasoned that “[t]he statutory requirement certainly imposes no unreasonable
burden on lawyers or trial judges.” Id. at ¶ 12.
{¶30} Subsequent to Pelfrey, the Ohio Supreme Court certified a conflict between State
v. Kepiro, 10th Dist. Franklin No. 06AP-1302, 2007-Ohio-4593, (Pelfrey does not apply to GSI
statute) and State v. Sessler, 3d Dist. Crawford No. 3-06-23, 2007-Ohio-4931 (Pelfrey applies to
the intimidation statute). The Court certified the following question.
Is the holding in State v. Pelfrey, 112 Ohio St.3d 422, applicable to charging
statutes that contain separate sub-parts with distinct offense levels?
State v. Sessler, 116 Ohio St.3d 1505, 2008-Ohio-381. The Court answered the question in the
affirmative and affirmed the Third District’s decision without analysis, but disallowed an appeal
in Kepiro. State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3810; State v. Kepiro, 119 Ohio St.3d
1408, 2008-Ohio-3880. We note the Tenth District continues to hold that Pelfrey is inapplicable
to R.C. 2907.05(A)(4). See State v. Kepiro, 10th Dist. Franklin No. 09AP-19, 2009-Ohio-4654.
{¶31} In 2012, the Ohio Supreme Court issued State v. Eafford, 132 Ohio St.3d 159,
2012-Ohio-2224. Eafford was indicted for possession of cocaine, but the jury verdict form only
stated that he was “guilty of Possession of Drugs in violation of § 2925.11(A) of the Ohio
Revised Code, as charged in Count Two of the indictment.” Id. at ¶ 18. The Supreme Court did
not apply the strict compliance standard it had previously set forth in Pelfrey. Instead, the Court
applied a plain error analysis and concluded that “Eafford [had] not shown that but for the use of
th[e] verdict form, the outcome of the trial would have been different.” Eafford at ¶ 19. In its
11
rationale, the Court noted that “the indictment alleged that Eafford possessed cocaine, expert
testimony confirmed that the substance at issue tested positive for cocaine, and throughout the
trial the parties and the court treated the phrase ‘possession of drugs’ as synonymous with the
possession of cocaine.” (Emphasis sic.) Id. at ¶ 17. The Court further noted that the trial court
included cocaine as the specific drug at issue in its jury instructions. Id.
{¶32} We note our sister courts resolve Eafford and Pelfrey differently. The Third
District in State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853, ¶ 17, noted that a
conflict exists between Eafford and Pelfrey. Gregory was indicted on one count of domestic
violence, as a felony of the third degree. However, the verdict form did not include the level of
the offense or the additional element that Gregory had “previously pleaded guilty to or been
convicted of two or more offenses of domestic violence[.]” Gregory at ¶ 19, quoting R.C.
2919.25(D)(4). In analyzing whether Gregory’s verdict form supported his conviction as a
felony of the third degree, the majority concluded that because Eafford did not expressly
overrule Pelfrey, Pelfrey still controlled. Gregory at ¶ 19.
{¶33} In contrast, the Eighth District has concluded that Eafford and Pelfrey are
reconcilable because the statutes at issue in the respective cases are distinguishable. State v.
Melton, 8th Dist. Cuyahoga No. 97675, 2013-Ohio-257, ¶ 31. The Eighth District explained that
“[t]he charge in Eafford, possession of cocaine, did not involve any additional elements that
elevated the level of the offense.” Id. At issue in Melton was “the crime of discharge of a
firearm on prohibited premises which causes serious physical harm to any person. (Emphasis
sic.) Id. at ¶ 32. The court concluded that because the serious physical harm element does
increase the offense, the strict compliance analysis in Pelfrey, and not plain error analysis of
Eafford, applied. Melton at ¶ 32.
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{¶34} After a careful review of the relevant statutes and case law, we are persuaded by
the rationale of the Tenth District and conclude that Pelfrey is inapplicable with respect to
violations of R.C. 2907.05(A)(4). See State v. Crosky, 10th Dist. Franklin No. 06AP-065, 2008-
Ohio-145, ¶ 147-148; State v. Nethers, 5th Dist. Licking No. 07 CA 78, 2008-Ohio-2679, ¶ 56-
57. Pelfrey applies when “the presence of one or more additional elements makes an offense one
of more serious degree.” R.C. 2945.75(A).
{¶35} R.C. 2907.05(A)(4) provides, in relevant part, that:
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 * * * when * * * [t]he other person * * * is less than thirteen years of
age, whether or not the offender knows the age of that person.
A violation of R.C. 2907.05(A)(4) is a felony of the third degree. R.C. 2907.05(C)(2). There are
no additional elements that will enhance this offense to a higher degree. R.C. 2907.05 does
contain other subsections, but each has their own separate elements. Here, as charged in the
indictment, the State was required to prove that Edwards had sexual contact with J.S. for the
purpose of sexual arousal or gratification and that J.S. was under the age of thirteen at the time of
the offense. Failure to prove any of these elements would have resulted in an acquittal, not a
conviction of a lesser degree of gross sexual imposition.
{¶36} Because we conclude that Pelfrey does not apply to R.C. 2907.05(A)(4),
Edwards’ verdict forms are sufficient to support his convictions as felonies of the third degree.
Edwards’ fourth assignment of error is overruled.
III
{¶37} Edwards’ assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
PAUL GRIFFIN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
State v. Edwards
Combined Opinion