State v. Jones

[Cite as State v. Jones, 2021-Ohio-3682.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 2020AP110024
:
GEORGE W. JONES JR. :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, case no.
2019CR090394

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 12, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RYAN STYER PATRICK J. WILLIAMS
TUSCARAWAS CO. PROSECUTOR 300 E. Third St., Ste. 1
KRISTINE W. BEARD Dover, OH 44622
125 E. High Ave.
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2020AP110024 2

Delaney, J.

{¶1} Appellant George W. Jones Jr. appeals from the November 12, 2020

Judgment Entry of the Tuscarawas County Court of Common Pleas. Appellee is the state

of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the record of appellant’s jury trial.

{¶3} On June 1, 2019, Jane Doe was 15 years old and living with Maternal

Grandparents. Jane would occasionally visit with Father and Stepmother, or with Mother,

but she lived primarily in the residence of Maternal Grandparents along with Aunt, Cousin,

and appellant, Aunt’s boyfriend. Aunt and appellant lived in the basement of the

residence; Jane’s bedroom was on the first floor.

Jane’s testimony: appellant entered her bedroom and touched her

{¶4} Around 7:00 p.m. on June 1, 2019, Jane returned from a visit to Father’s

house. Grandmother and Grandfather were out of town for vacation; Cousin was not

home. Aunt and appellant were in the basement, sitting on a couch watching television

and drinking “tall boys” of Busch or Bud Light. Jane Doe stood and talked to Aunt and

appellant for a short time. Then she said she was going to bed. Aunt and appellant asked

her to put some alcoholic beverages in a mini-fridge in her bedroom.

{¶5} Jane went upstairs to her bedroom. She put the drinks in the mini-fridge by

her bed. It was hot in the house because the air conditioner wasn’t working properly.

Jane usually sleeps in a nightshirt, but this night she slept in a bra, underpants, and

shorts. Although she usually leaves her bedroom door unlocked, she locked the bedroom

door this night because she had no shirt on. Jane fell asleep quickly.
Tuscarawas County, Case No. 2020AP110024 3

{¶6} She awoke sometime later and was surprised to find appellant in her room,

beside her bed. Appellant asked if he could have the drinks from the mini-fridge; Jane

said yes, appellant grabbed the drinks, and left the room. Jane got out of bed, locked her

bedroom door again, and fell back asleep.

{¶7} Jane awoke again a short time later, and testified that she felt as though

she was having a bad dream and someone was doing something to her. She awoke fully

and realized appellant was touching her vagina, under her underwear.

{¶8} Appellant looked up, realized Jane was awake, and said “Oh.” Jane asked

what he was doing, and appellant said he “just wanted to make sure he could still have

the drinks from her mini-fridge.” Jane told appellant he already had the drinks, and to get

out of her room. She told him to leave several times. Finally, appellant left the room.

{¶9} Jane ran to her closet and grabbed a shirt to put on. Appellant came into

her bedroom again, stating he was sorry and begging her not to tell anyone. He said he

is her “uncle,” doesn’t want her to tell anyone what he did, and will not do anything like

this ever again. Jane said, “it’s ok, please just get out of my room.”

{¶10} Jane knew what happened was wrong but wanted appellant out of her

room. She was crying and hysterical, and hurried to close her door again to keep him

out.

{¶11} Jane heard footsteps outside her bedroom and thought appellant went

down the basement steps. She turned her TV on, loudly, and called her father on her

phone. She was crying and very upset, unable to tell Father what was wrong. Father

said he would come to pick her up and hung up. Jane also called the Newcomerstown

Police Department, but they gave her the number for the Tuscarawas County Sheriff’s
Tuscarawas County, Case No. 2020AP110024 4

Department based upon the residence address. Jane’s stepmother called back to ask

Jane why she was so upset during the call with Father. Jane told Stepmother that

appellant touched her.

{¶12} Someone knocked on the door of Jane’s bedroom and she told them to go

away. Aunt said, “It’s me,” and Jane opened the door. Aunt asked what happened as

appellant stood behind her in the doorway, and Jane told Aunt appellant touched her.

Jane testified that Aunt immediately punched appellant in the face, threw him down the

basement steps, and pushed him out the basement sliding-glass doors.

{¶13} Jane testified that police directed her to Akron Children’s Hospital where

she was examined by a Sexual Assault Nurse Examiner (SANE).

Aunt’s testimony: Jane says appellant touched her

{¶14} Aunt testified for appellee at trial. She said Jane came home as Aunt and

appellant watched TV; Jane spoke to them briefly and went upstairs to bed. Aunt and

appellant continued to watch TV for a while and then also went to bed. Aunt woke up and

noticed appellant was out of bed. She went upstairs and found it “weird” that appellant

was standing in the hallway outside Jane’s bedroom. She asked appellant what was

wrong and appellant said Jane was crying in her bedroom.

{¶15} Aunt knocked on the door and Jane screamed “Go away.” Aunt asked to

come in and entered the room. She found Jane standing with her phone in her hand,

hysterical. At first, Jane was unable to tell Aunt what happened and seemed to be having

a panic attack. Aunt asked, “Was [appellant] in here?” and Jane nodded yes. Aunt asked,

“Did he touch you?” and Jane nodded yes.
Tuscarawas County, Case No. 2020AP110024 5

{¶16} Appellant was standing in the doorway behind Aunt, shaking his head. Aunt

turned around and punched appellant in the face. She pushed him down the basement

stairs, threw him out the sliding-glass doors, and locked the doors. Appellant tried to

leave but his car wouldn’t start. Aunt saw appellant outside, calling someone to ask for a

ride.

{¶17} Over objection, Aunt testified that appellant denied touching Jane.

{¶18} Jane’s father arrived. Jane and Aunt gathered some belongings and left

the house with Father and Stepmother. The four drove that night to Akron Children’s

Hospital for Jane’s SANE examination.

Investigation: appellant admits entering bedroom but denies touching

{¶19} Detective Jeff Moore investigated the matter for the Tuscarawas County

Sheriff’s Department. He photographed Grandparents’ residence, including Jane’s

bedroom, and the photos were admitted into evidence. Moore did not personally speak

with Jane but did interview Aunt, and testified that Aunt’s trial testimony was consistent

with her statement to him.

{¶20} Moore also interviewed appellant and obtained a written statement from

him. Appellant’s written statement to Det. Moore was admitted at trial as appellee’s

Exhibit H. Appellant’s statement is as follows:

* * * *.

I went upstairs to girlfriend’s niece’s bedroom. I unlocked the

door and tapped her foot to ask for alcohol. She told me the alcohol

was in the [illegible]. I grabbed the alcohol + left. I came back to the

room to say sorry for barging in and the niece became hysterical. My
Tuscarawas County, Case No. 2020AP110024 6

girlfriend came up the stairs and asked if I did anything sexual. The

niece said no but that I came into the room a couple times. My

girlfriend punched me in the face and then I left.

* * * *.

{¶21} Moore testified that appellant “maintained his denial” throughout the

investigation.

Defense case: no incriminating DNA evidence

{¶22} The sole defense witness at trial was a forensic scientist from BCI who

examined evidence from Jane’s clothing and rape kit. The forensic examiner testified she

was not able to generate a male DNA profile from the swabs included in the rape kit.

Indictment, trial, conviction, and community-control sentence

{¶23} Appellant was charged by indictment with one count of gross sexual

imposition pursuant to R.C. 2907.05(A)(5) and (C)(1), a felony of the fourth degree.

Appellant entered a plea of not guilty and the matter proceeded to trial by jury. Appellant

moved for judgments of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s

evidence and at the close of all of the evidence; the motions were overruled.

{¶24} Appellant was found guilty as charged. The trial court deferred sentencing

pending a pre-sentence investigation.

{¶25} The trial court sentenced appellant to a prison term of 18 months, with all

18 months suspended on the condition that appellant complete a two-year term of

supervised community control sanctions. Appellant’s sanctions include, e.g., residential

treatment in a sex-offender treatment program.
Tuscarawas County, Case No. 2020AP110024 7

{¶26} Appellant now appeals from the trial court’s November 12, 2020 judgment

entry of conviction and sentence.

{¶27} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶28} “I. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AS THERE WAS INSUFFICIENT EVIDENCE THAT

DEFENDANT COMMITTED GROSS SEXUAL IMPOSITION IN VIOLATION OF R.C.

2907.05(A)(5) GROSS SEXUAL IMPOSITION, A FELONY OF THE FOURTH DEGREE.”

{¶29} “II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL.”

ANALYSIS

I.

{¶30} In his first assignment of error, appellant argues his conviction is against

the manifest weight and sufficiency of the evidence. We disagree.

{¶31} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
Tuscarawas County, Case No. 2020AP110024 8

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.”

{¶32} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶33} Appellant was found guilty upon one count of gross sexual imposition

pursuant to R.C. 2907.05(A)(5), which states in pertinent part:

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: [t]he ability of the other person to resist or consent or the

ability of one of the other persons to resist or consent is substantially

impaired because of a mental or physical condition or because of

advanced age, and the offender knows or has reasonable cause to

believe that the ability to resist or consent of the other person or of
Tuscarawas County, Case No. 2020AP110024 9

one of the other persons is substantially impaired because of a

mental or physical condition or because of advanced age.

{¶34} Appellant first argues this is a case of “he said, she said,” because appellant

has maintained his innocence throughout and Jane’s story is supported by “no

corroborative evidence.” Appellant further argues appellee failed to prove Jane was not

his spouse.

{¶35} Jane’s testimony at trial was essentially uncontroverted. We have held that

the testimony of one witness, if believed by the factfinder, is enough to support a

conviction. State v. Keller, 5th Dist. Delaware No. 18CAA090075, 2019-Ohio-3857, ¶ 29,

appeal not allowed, 157 Ohio St.3d 1538, 2020-Ohio-122, 137 N.E.3d 1206, citing State

v. Dunn, 5th Dist. Stark No. 2008–CA–00137, 2009–Ohio–1688, ¶ 133.

{¶36} Appellant’s side of the story was admitted at trial through his written

statement to Detective Moore, which the jury was free to accept or reject. Although this

detail was given scant attention at trial, we note appellant admitted he unlocked Jane’s

bedroom door to enter her room. His claim that he merely touched her foot could have

been rejected by the jury in light of Jane’s testimony, her Aunt’s corroboration, and the

ensuing events. The weight to be given the evidence introduced at trial and the credibility

of the witnesses are primarily for the trier of fact to determine. State v. Thomas, 70 Ohio

St.2d 79, 434 N.E.2d 1356 (1982), syllabus. It is not the function of an appellate court to

substitute its judgment for that of the factfinder. State v. Jenks, 61 Ohio St.3d 259, 279,

574 N.E.2d 492 (1991). Any inconsistencies in the witnesses' accounts were for the trial

court to resolve. State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶

49. “The weight of the evidence concerns the inclination of the greater amount of credible
Tuscarawas County, Case No. 2020AP110024 10

evidence offered in a trial to support one side of the issue rather than the other.” Keller,

supra, at ¶ 29, citing State v. Brindley, 10th Dist. Franklin No. 01AP–926, 2002–Ohio–

2425, ¶ 16. We defer to the trier of fact as to the weight to be given the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

at paragraph one of the syllabus.

{¶37} We disagree that appellant’s conviction is against the manifest weight and

sufficiency of the evidence merely because he and Jane were the only two people in the

room. The jury was able to view Jane’s testimony and assess her credibility accordingly.

When assessing witness credibility, “[t]he choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” Keller, supra, at ¶ 30, citing State

v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

{¶38} The “he said/she said” premise is belied by the evidence presented at trial.

Keller, supra, at ¶ 31. Jane’s account of waking up to find appellant touching her was

corroborated by the testimony of Aunt, who found her afterward in the midst of a “panic

attack,” hysterical. Jane immediately told Aunt appellant touched her. The availability of

DNA evidence is not necessary to corroborate the victim’s testimony.

{¶39} Appellant further argues appellee failed to prove an element of the offense:

that Jane is not his spouse pursuant to R.C. 2907.05(A). We find this argument

unavailing upon our review of the entire record. No legitimate argument exists that Jane

was appellant’s spouse; appellant admits in his brief, “It is clear [appellant] was the

victim’s aunt’s boyfriend at the time of the incident.” At trial, evidence that appellant

referred to himself as Jane’s “uncle” and was merely Aunt’s boyfriend was
Tuscarawas County, Case No. 2020AP110024 11

uncontroverted. We find the evidence supports the jury’s verdict that Jane was not the

spouse of the offender.

{¶40} Appellant’s conviction upon one count of gross sexual imposition is

supported by sufficient evidence and is not against the manifest weight of the evidence.

His first assignment of error is overruled.

II.

{¶41} In his second assignment of error, appellant argues he received ineffective

assistance of counsel. We disagree.

{¶42} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

{¶43} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

{¶44} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for
Tuscarawas County, Case No. 2020AP110024 12

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶45} Appellant argues he was denied effective assistance of counsel because

defense trial counsel failed to call Deputy Chris Edwards as a defense witness. We

disagree with appellant’s characterization on appeal of Edwards’ potential testimony.

Appellant argues:

* * * *.

It is clear from a sidebar that occurred from TR. PP. 324-327

that counsel for [appellant] believed that the alleged victim made an

inconsistent statement to Deputy Chris Edwards, regarding where

she was touched. It appears that, in an initial statement, the alleged

victim may have stated she was touched on the breast.

* * * *.

Brief, 10.

{¶46} Upon our review of the transcript, we note that during cross-examination of

Detective Moore, Moore testified Edwards was the first law enforcement officer to contact

Jane’s family on the night of the incident, at the Newcomerstown Police Department.

Moore reviewed Edwards’ report of the family’s allegations. At sidebar, defense trial

counsel proffered what Edwards’ testimony would have been: Edwards spoke to

Stepmother, not to Jane directly; Stepmother said appellant touched Jane’s breasts; and

Jane denied telling Stepmother that appellant touched her breasts. T. 324-327.

Appellee’s objection to Moore’s testimony about Edwards’ report was therefore sustained

by the trial court as hearsay-upon-hearsay.
Tuscarawas County, Case No. 2020AP110024 13

{¶47} We disagree with appellant and find there is no evidence that Jane made a

conflicting statement to Edwards, and that Edwards would have been a valuable defense

witness. Any testimony about what Stepmother allegedly told him would have been

hearsay.

{¶48} Moreover, in the context of an ineffective-assistance claim, defense trial

counsel clearly recognized the potential limited benefit of Edwards and proffered his

expected testimony into the record. We therefore find defense trial counsel did not err in

his handling of Edwards as a potential witness, and even if Edwards had testified as

proffered, there is no reasonable probability that the outcome of the trial would have been

different.

{¶49} Appellant did not receive ineffective assistance of defense trial counsel and

his second assignment of error is overruled.
Tuscarawas County, Case No. 2020AP110024 14

CONCLUSION

{¶50} Appellant’s two assignments of error are overruled and the judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.