[Cite as State v. Shreve, 2017-Ohio-8390.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JACK SHREVE : Case No. 2017CA00014
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016CR1488
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 30, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DONOVAN HILL
Prosecuting Attorney 116 Cleveland Avenue North
By: KATHLEEN O. TATARSKY Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2017CA00014 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jack Shreve, appeals his December 28, 2016
conviction in the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 16, 2016, the Stark County Grand Jury indicted appellant on
two counts of rape in violation of R.C. 2907.02 and one count of gross sexual imposition
in violation of R.C. 2907.05. Said charges arose from incidents involving the daughter
of his live-in girlfriend. The daughter, K.H., was under ten years old at the time.
{¶ 3} A jury trial commenced on December 12, 2016. The jury found appellant
guilty of one of the rape counts and the gross sexual imposition count, and not guilty of
the other rape count. By judgment entry filed December 28, 2016, the trial court
sentenced appellant to an aggregate term of life imprisonment with parole eligibility after
serving fifteen years.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I
{¶ 6} In his sole assignment of error, appellant claims his convictions were
against the manifest weight and sufficiency of the evidence. We disagree.
Stark County, Case No. 2017CA00014 3
{¶ 7} 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, 574 N.E.2d 492 (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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest
weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting
of a new trial "should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction." Martin at 175.
{¶ 8} Appellant was convicted of rape in violation of R.C. 2907.02(A)(1)(b)
which states:
(A)(1) No person shall engage in sexual conduct with another who
is not the spouse of the offender or who is the spouse of the offender but
is living separate and apart from the offender, when any of the following
applies:
Stark County, Case No. 2017CA00014 4
(b) The other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
{¶ 9} "Sexual conduct" is defined in R.C. 2907.01(A) as:
[V]aginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening
of another. Penetration, however slight, is sufficient to complete vaginal or
anal intercourse.
{¶ 10} Appellant was also convicted of gross sexual imposition in violation of
R.C. 2907.05(A)(4) which states:
(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the offender, to
have sexual contact with the offender; or cause two or more other persons
to have sexual contact when any of the following applies:
(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of that
person.
Stark County, Case No. 2017CA00014 5
{¶ 11} "Sexual contact" is defined in R.C. 2907.01(B) as: "[A]ny 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."
{¶ 12} For the rape count appellant was convicted of, the August 16, 2016
indictment alleged appellant, between February 1, and 22, 2016, engaged in sexual
conduct by "the insertion however slight of any part of the body or any instrument,
apparatus or other object into the vaginal or anal opening" of K.H. who was under the
age of ten.
{¶ 13} In his appellate brief, appellant challenges the credibility of the witnesses
and the contradictory testimony presented.
{¶ 14} At the time of trial, K.H. was nine years old. T. at 204. K.H. testified when
she was eight years old, she lived with her mom, her siblings, and appellant, her
mother's boyfriend. T. at 205-206. In February 2016, K.H. had her tonsils removed and
stayed home from school. T. at 206-207. At times she was left alone with appellant. T.
at 207. Appellant lured K.H. to an upstairs bedroom where he told her to watch a "nasty
movie," take off her clothes, put on her mother's clothes and black high heels, and get
on the bed whereupon he tied her to the bed and told her to be quiet. T. at 208-209.
K.H. testified appellant touched her "pee pee" with his finger and put a "dodo" in his
mouth. T. at 211. The dodo looked like a "wiener" and made buzzing sounds. Id. The
color of the dodo was blue, and there was also a white one. T. at 211-212. K.H. stated
appellant never touched her with the dodos. T. at 212. K.H. testified it only happened
two times, but in describing the second incident, stated appellant did not touch her. T.
Stark County, Case No. 2017CA00014 6
at 212-213. K.H. admitted to telling people in the past that her biological father had
done something to her, but explained, "[m]y mom told me to lie about it." T. at 216. On
cross-examination, K.H. reiterated that appellant never touched her with the dodos, and
never touched her during the second incident. T. at 219-220.
{¶ 15} Suzanne Cutler conducted a forensic interview with K.H. after K.H.
disclosed the incidents to her school counselor. T. at 223, 237. Based upon the results
of the interview, Stark Count Jobs and Family Services contacted law enforcement. T.
at 227-228.
{¶ 16} Canton Police Detective Terry Monter executed a search warrant of the
home. T. at 243. In the upstairs master bedroom, he found pornographic videos, a blue
dildo, and black high heels. T. at 247-248; State's Exhibits 1-C, 1-D, 1-E, 2, 4, and 5. A
white dildo was discovered in a dresser drawer. T. at 250; State's Exhibits 1-F and 3.
{¶ 17} Canton Police Detective Joseph Mongold investigated the allegations. He
received information that K.H. had disclosed the following (T. at 277-278):
Specifically that on an incident where she was home from school
and she was left home alone with Mr. Shreve, that he did touch her, and
I'll use her words, "her pee pee," with both his finger, by inserting his finger
into her pee pee with his pee pee on her pee pee and on her butt and did
use sexual devices, and she was very specific on those sexual devices
that were used; a white, I believe that she referred to it as a dodo on her,
and she described that as a device that vibrated, and she stated that he
used a blue dodo on himself during the incident.
Stark County, Case No. 2017CA00014 7
{¶ 18} Detective Mongold stated appellant consented to an interview and
voluntarily gave a DNA sample. T. at 281, 283. Appellant denied the allegations, but
admitted to watching pornography and "liked to have the individual that he was having
sex with wear high heels during sex." T. at 283, 298.
{¶ 19} Appellant's DNA was found on the non-handle of the blue dildo. T. at 286,
330-331; State's Exhibit 6-C. K.H.'s DNA was found on the handle and non-handle of
the white dildo. T. at 287, 332-333; State's Exhibit 6-C.
{¶ 20} Megan Dahlheimer, a pediatric nurse practitioner at Akron Children's
Hospital, physically examined K.H. T. at 345, 347. She testified K.H. told her appellant
put his pee pee "into her pee pee as well as into her butt." T. at 356. K.H. also told her
about the dildos and the nasty pictures. Id. The physical examination did not reveal
anything abnormal which Ms. Dahlheimer explained was not abnormal because "up to
96 percent, 97 percent of patients seen have a completely normal exam." T. at 359-
360. Ms. Dahlheimer completed a written assessment and diagnosed child sexual
abuse. T. at 361-362, 371; State's Exhibit 7. In making her diagnosis, Ms. Dahlheimer
noted the following (T. at 364-365):
"A forensic interview was completed with the patient while she was
in school. During her interview with Ms. Cutler, she disclosed vaginal-
penile and anal-penile penetration by Jack as well as oral-vaginal
penetration. Additionally, [K.] states she was made to watch pornography.
Stark County, Case No. 2017CA00014 8
"During [K.]'s medical examination today, she has disclosed
vaginal-penile, anal-penile, and oral-vaginal penetration as well to this NP.
She states this has happened more than one time. [K.] also speaks about
being made to watch pornography while in Jack's room.
{¶ 21} Carrie Schnirring, a psychology assistant at Northeast Ohio Behavioral
Health, met with K.H. four times and diagnosed her with posttraumatic stress disorder.
T. at 390, 401, 422; State's Exhibit 8. K.H. would at times speak in "baby talk" and then
get angry and blurt out angry statements in discussing what appellant did to her,
indicating the topic was stressful for her. T. at 406. K.H. told Ms. Schnirring that
appellant took her to the bedroom and would make her watch a "nasty show, and then
she explained that he would then copy the things that he saw on the nasty show with
her." T. at 412. Appellant "would have her wear nasty clothes" and then "take those
clothes off of her." Id. Appellant would put his private part "in her butt and also in her
vagina." T. at 413. K.H. also told Ms. Schnirring about the blue and white dildos and
explained that appellant would put one inside her pee pee. Id. "[A]fter he did that, when
she went to the bathroom afterwards and she wiped, there was blood on the toilet
paper." Id. This indicated to Ms. Schnirring that "this was something more than just her
finding someone's sex toys in a bedroom. This was something that she actually
experienced because it caused her to bleed later." T. at 414-415.
{¶ 22} Prior to meeting with K.H. over the incidents involving appellant, Ms.
Schnirring had evaluated K.H. in 2015 over sexual allegations she had made against
her biological father. T. at 425-426. At that time, K.H.'s disclosures to Ms. Schnirring
Stark County, Case No. 2017CA00014 9
were very inconsistent compared to the information she had provided during the
forensic interview. T. at 427. The story changed, the names changed, and K.H.
contradicted herself. Id. K.H.'s details were "fantastical in nature," seemed
"implausible," and were "farfetched." T. at 428. The allegations were not able to be
verified and were deemed inconclusive. Id. K.H. later explained her mother had
advised her to lie about her biological father. T. at 420. In comparison, K.H.'s
descriptions of the incidents with appellant were consistent and contained idiosyncratic
details i.e., "very unique aspects of the experience." T. at 405, 414, 421, 426-427.
{¶ 23} In defense, appellant called Meredith Skortschir, a psychiatric nurse
consultant with Child & Adolescent Behavioral Health. T. at 453. Ms. Skortschir saw
K.H. in later 2015 through the beginning of 2016 to help her with her medications for
ADHD and "an adjustment disorder with anxiety and depression." T. at 405, 453, 455.
Ms. Skortschir found K.H. to be both a truthful person and one that would tell lies. T. at
459.
{¶ 24} We 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, 552
N.E.2d 180 (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, 674 N.E.2d 1159 (1997).
{¶ 25} The jury heard testimony from nine year old K.H. recounting that appellant
had touched her pee pee with his finger. Although she testified appellant had not
touched her with the dildos, her DNA was found on the white one. K.H. disclosed to
others that appellant had touched her pee pee with the white dildo. While there were
Stark County, Case No. 2017CA00014 10
some inconsistencies between her trial testimony and what she had reported to others,
her disclosures to others were fairly consistent. She consistently described the
pornographic movies, the high heels, the two dildos, and appellant touching her pee pee
with his finger and the white dildo.
{¶ 26} Given K.H.'s testimony, corroborated by Ms. Dahlheimer's diagnosis of
child sexual abuse, Ms. Schnirring's diagnosis of posttraumatic stress disorder, and the
forensic evidence of K.H.'s DNA on the white dildo, we find sufficient credible evidence
of appellant engaging in sexual conduct/contact with K.H.
{¶ 27} Upon review, we find sufficient evidence, if believed, to support the
convictions, and do not find any manifest miscarriage of justice.
{¶ 28} The sole assignment of error is denied.
{¶ 29} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Hoffman, J. concur.
EEW/sg 106