State v. Biggs

[Cite as State v. Biggs, 2022-Ohio-2481.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 21 CAA 09 0048
JOEL D. BIGGS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court
of Common Pleas, Case No. 21 CR I 05
0270

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: July 19, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL JOEL M. SPITZER
Delaware County Prosecuting Attorney 495 S. State Street
Marion, Ohio 43302
CHRISTOPHER E. BALLARD
Assistant Prosecuting Attorney
145 N. Union Street – 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 21 CAA 09 0048 2

Hoffman, J.
{¶1} Defendant-appellant Joel Biggs appeals the judgment entered by the

Delaware County Common Pleas Court convicting him of gross sexual imposition (R.C.

2907.05(A)(1)) and sentencing him to a period of community control not to exceed three

years. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In April of 2021, Appellant lived in an apartment in Delaware, Ohio with his

girlfriend, Gabbie. A.I. had been friends with Gabbie since elementary school. A.I. had

recently moved back to Ohio from Florida, and was living with her father. However, A.I.

and Gabbie discussed A.I. moving in with Gabbie and Appellant, as they had a spare

bedroom in their apartment. While A.I. was still living in Florida, Gabbie asked A.I. if she

would be interested in engaging in a threesome with Gabbie and Appellant. A.I.

responded she would consider the possibility of a threesome.

{¶3} A.I. planned an overnight visit at Appellant’s apartment on April 10, 2021.

During the evening hours, the group watched a movie, “Cat in the Hat.” The next day,

Gabbie and A.I. went to the grocery store to get hot chocolate for the evening. While

shopping at Meijer, Gabbie asked A.I. if she was still interested in a threesome. A.I. was

not sexually attracted to Appellant, and responded she was not interested in a threesome.

{¶4} During the evening of April 11, 2021, the group drank alcohol and smoked

marijuana at the apartment. They attempted to watch the movie “Frozen II,” but the movie

would not stream properly in the living room. Gabbie suggested they move to the

bedroom to watch the movie. Once in the bedroom, the group laid down on the bed to

watch the movie.
Delaware County, Case No. 21 CAA 09 0048 3

{¶5} At about 11:30 p.m. Gabbie got up from the bed and went to the bathroom,

leaving Appellant alone with A.I. Gabbie texted Appellant to initiate the threesome with

A.I.

{¶6} Appellant slid next to A.I. and whispered in her ear, “I know you’re attracted

to me.” Tr. 271. Appellant expressed a desire to have sex with A.I., and licked her ear.

Appellant then stuck his hand down the front of A.I.’s pajama pants, inside her underwear,

and began massaging the outside of her vagina. A.I. forcibly removed Appellant’s hand

and left the room. A.I. felt scared and began crying because she was flustered and did

not expect the sexual activity to happen.

{¶7} A.I. spent the night on the couch in the living room. The next day, Appellant

came out of the bedroom and began rubbing A.I.’s feet, continuing to ask if she was

attracted to him. A.I. called her mother to pick her up across the street in the Meijer store

parking lot.

{¶8} After calling the police, A.I. was sent for a sexual assault examination at

Grady Hospital. A.I.’s underwear was collected for DNA testing. Analysis of the

underwear showed the presence of the DNA of at least two males, but the evidence was

not of sufficient quality for comparison to any one individual.

{¶9} Delaware police seized Appellant’s cell phone. On April 11, 2021, prior to

the incident with A.I., Appellant ran the following searches in his internet browser: sexual

pressure; how to intimidate girls sexually; my husband is obsessed with me sexually; what

percentage of women report sexual assault; obsessive love; my husband pressures me

sexually; obsessive love disorder: symptoms, what it is, causes, and more; and how do

girls react to sexual assault.
Delaware County, Case No. 21 CAA 09 0048 4

{¶10} Appellant was indicted by the grand jury on one count of gross sexual

imposition. The case proceeded to jury trial in the Delaware County Common Pleas

Court. Following trial, Appellant was convicted as charged, and sentenced to a term of

community control not to exceed three years.

{¶11} It is from the August 30, 2021 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:

I. THE TRIAL COURT ERRED BY FAILING TO GRANT A

JUDGMENT OF ACQUITTAL, PURSUANT TO CRIM. R. 29(A) ON THE

GROSS SEXUAL IMPOSITION CHARGE, AND THEREAFTER

ENTERING A JUDGMENT OF CONVICTION OF THAT OFFENSE AS THE

CHARGE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

II. THE JURY VERDICT OF GUILTY ON THE GROSS SEXUAL

IMPOSITION CHARGE WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE PRESENTED AT TRIAL.

III. DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL UNDER

THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,

SECTION 10.

IV. DEFENDANT-APPELLANT WAS DEPRIVED OF HIS RIGHTS

TO DUE PROCESS AND A FAIR TRIAL UNDER THE FEDERAL AND
Delaware County, Case No. 21 CAA 09 0048 5

STATE CONSTITUTIONS BY THE CUMULATIVE EFFECT OF THE

NUMEROUS ERRORS IN THIS CASE.

I.

{¶12} In his first assignment of error, Appellant argues the judgment of conviction

is not supported by sufficient evidence and the trial court therefore erred in failing to grant

his Crim. R. 29 motion for a judgment of acquittal. He specifically argues the State failed

to prove the element of force necessary for a conviction of gross sexual imposition.

{¶13} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶14} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence

presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351, citing

State v. Williams, 74 Ohio St.3d 569, 576, 1996–Ohio–91, 660 N.E.2d 724; State v. Miley,

114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist. 1996). Crim. R. 29(A) allows a trial

court to enter a judgment of acquittal when the state's evidence is insufficient to sustain

a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,

after viewing the evidence in a light most favorable to the state, the court finds no rational

finder of fact could find the essential elements of the charge proven beyond a reasonable

doubt. State v. Franklin, 5th Dist. Stark No. 2007–CA–00022, 2007–Ohio–4649 at ¶ 12,

citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d 1096.
Delaware County, Case No. 21 CAA 09 0048 6

{¶15} Appellant was convicted of gross sexual imposition as defined by R.C.

2907.05(A)(1):

(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 purposely compels the other person, or one of the

other persons, to submit by force or threat of force.

{¶16} R.C. 2907.05 (A)(1) requires the victim's submission to sexual contact to be

obtained by force or threat of force. The force element needed to prove the offense of

gross sexual imposition is the same as it is for rape. State v. Riggs, 10th Dist. Franklin

Nos. 04AP-1279, 04AP1280, 2005-Ohio-5244 ¶120. In State v. Eskridge, 38 Ohio St.3d

56, 58-59, 526 N.E.2d 304 (1988), the Supreme Court of Ohio found the amount of force

required to meet this requirement varies depending on the age of the victim and the

relationship between the victim and the defendant. Id. at ¶ 58. However, some amount

of force must be proven beyond the force inherent in the crime itself. State v. Dye, 82

Ohio St.3d 323, 327, 695 N.E.2d 763, 766 (1998).1

{¶17} Numerous cases in Ohio have found the element of force demonstrated

where a victim and the victim’s clothing was manipulated during the sexual contact. See,

1 While Eskridge and Dye and their progeny recognize a subtle, inherent psychological element of force
present when the victim is a minor child and the perpetrator is a parent or authority figure, the instant case
involves an adult victim and a perpetrator who is not an authority figure. Further, the trial court did not
instruct the jury on psychological force, but rather instructed only on the element of physical force.
Delaware County, Case No. 21 CAA 09 0048 7

e.g., State v. Graves, 8th Dist. Cuyahoga App. No. 88845, 2007-Ohio-5430 (26-year-old's

pants pulled down and legs separated to facilitate vaginal intercourse); State v. Lillard

(May 23, 1996), Cuyahoga App. No. 69242, 1996WL273781 (appellant pulled up sleeping

16-year-old victim's robe and spread her legs in order to look into her vagina with a

flashlight); State v. Green, 5th Dist. Delaware No. 01CA-A-12-067, 2002-Ohio-3949

(relocating sleeping 16-year-old victim to chair and pulling down her pants and underwear

sufficient to demonstrate force); State v. Johnson, 2nd Dist. Greene No. 2009-CA-38,

2010-Ohio-2920 (moving victim’s shorts and underwear aside, holding her down with his

hand and failing to stop when asked until victim elbowed defendant off sufficient showing

of force); State v. H.H., 10th Dist. Franklin No. 10AP-1126, 2011-Ohio-6660 (carrying

sleeping granddaughter to the bed and removing her pants and underwear sufficient to

constitute force).

{¶18} The Third District has criticized the reduced level of force required by the

Eighth District cases cited above when a sleeping victim is involved, discussing the

distinction between sexual crimes which require proof of force and those which do not:

We decline to adopt the Eighth District's reduced level of force for

sleeping victims for several reasons. To begin with, the reasoning in the

Eighth District's line of cases stems from Eskridge where the victim was the

offender's four-year-old daughter.

The Ohio Supreme Court has limited the application of Eskridge's

reduced levels of force to situations where the offender is the victim's parent

or holds a similar position of authority over a child-victim. Schaim, 65 Ohio
Delaware County, Case No. 21 CAA 09 0048 8

St.3d at 55, 600 N.E.2d 661; Dye, 82 Ohio St.3d at 329, 695 N.E.2d 763.

Other districts that have applied a reduced level of force for sleeping victims

have done so only in cases involving child-victims. State v. Johnson, 2nd

Dist. No. 2009–CA–38, 2010–Ohio–2920, ¶ 18 (16 year-old); State v.

Burton, 4th Dist. No. 05CA3, 2007–Ohio–1660, ¶ 38 (10–13 years old);

State v. Green, 5th Dist. No. 01CA–A–12–067, 2002–Ohio–3949, ¶ 61 (16

year-old); State v. H.H., 10th Dist. No. 10AP–1126, 2011–Ohio–6660, ¶ 12

(17 year-old); State v. Rutan, 10th Dist. No. 97APA03–389 (Dec. 16, 1997),

(14–15 year-olds). The Eighth District's focus upon “force necessary to

facilitate the act” also ignores the fact that “the statute requires that some

amount of force must be proven beyond that force inherent in the crime

itself.” Clark, 2008–Ohio–3358, at ¶ 17; Dye, 82 Ohio St.3d at 327, 695

N.E.2d 763. The statute requires that the victim submit to the sexual contact

by force or threat of force. R.C. 2907.05(A)(1). This requires more than

“force necessary to facilitate the act” but force or threat of force sufficient to

overcome the will of the victim. Eskridge, 38 Ohio St.3d at 58–59, 526

N.E.2d 304.

Since the Eighth District's interpretation of the element of force in

sleeping-victim cases “fails to recognize the requirement that the force or

threat of force must be sufficient to overcome the will of the victim,” it blurs

the distinction between sex offenses requiring force and sex offenses not

requiring force. State v. Henry, 3d Dist. No. 13–08–10, 2009–Ohio–3535, ¶

32. The General Assembly has provided specific criminal offenses to protect
Delaware County, Case No. 21 CAA 09 0048 9

victims, like S.D., “whose ability to resist * * * is substantially impaired

because of a * * * physical condition” or who submit because they are

“unaware that the act is being committed.” See R.C. 2907.02(A)(1)(c);

2907.05(A)(5); 2907.03(A)(3). The Court of Appeals has concluded that

sleeping is a ‘physical condition’ that substantially impairs a victim's ability

to resist for purposes of rape in violation of R.C. 2907.02(A)(1)(c). Graves,

2007–Ohio–5430, at ¶ 22, citing State v. Younger, 8th Dist. No. 86235,

2006–Ohio–296; State v. Wright, 9th Dist. No. 03CA0057–M, 2004–Ohio–

603, ¶ 6; H.H., 2011–Ohio–6660, at ¶ 10. For the same reason, an offender

may also be convicted of committing gross sexual imposition against a

sleeping victim under R.C. 2907.05(A)(5). See id. Similarly, an offender may

be convicted of committing sexual battery or sexual imposition against a

sleeping victim under R.C. 2907.03(A)(2), (3) or R.C. 2907.06(A)(3). Henry,

2009–Ohio–3535, at ¶ 33, citing State v. Lindsay, 3d Dist. No. 8–06–24,

2007–Ohio–4490; State v. Antoline, 9th Dist. No. 02CA008100, 2003–

Ohio–1130; Wright, 2004–Ohio–603; State v. Byrd, 8th Dist. No. 82145,

2003–Ohio–3958, ¶ 23. By diminishing R.C. 2907.05(A)(1)' s element of

force to mere manipulation of a sleeping victim's body or clothing, the Eighth

District usurps the General Assembly's power to define and codify criminal

offenses and to treat offenders differently depending upon the nature of their

conduct.
Delaware County, Case No. 21 CAA 09 0048 10

{¶19} State v. Wine, 3rd Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶¶ 49-50,

aff'd, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶¶ 49-50.

{¶20} Recently, this Court found the State failed to prove the element of force

required for gross sexual imposition where the defendant reached inside the shorts of his

sixteen-year-old niece while she was sleeping:

Against that background, even if we were to adopt the Eighth

District's reduced level of force for initially sleeping victims, we find the facts

here are distinguishable from any of the above-mentioned sleeping child-

victim cases which appear to require manipulation of clothing plus

something more, such as relocation of the victim or repositioning of the

victim’s limbs. While appellant did manipulate Z.M.'s clothing, as soon as

Z.M. became aware of the nature of appellant's conduct, she got up and left

the room. T. 140. Appellant did not tell Z.M. to do or refrain from doing

anything, did not restrain her in any way nor reposition or relocate her body

in any way, and did not prevent Z.M. from leaving the room. He did not hold

Z.M. down in order to commit the act of touching Z.M. While we find

appellant's conduct despicable, we nonetheless find the evidence

presented by the state insufficient to prove force or threat of force.

Additionally, while appellant's conduct would meet the elements of gross

sexual imposition under R.C. 2907.05(A)(5) or sexual imposition pursuant

to R.C. 2907.06(A)(1), the state did not charge under these code sections
Delaware County, Case No. 21 CAA 09 0048 11

nor request to amend the indictment nor request a jury instruction for the

lesser-included offense of sexual imposition.

{¶21} State v. Moore, 5th Dist. Morgan No. 21AA0003, 2022-Ohio-2349, ¶38.

{¶22} The instant case involves an adult victim, who was not asleep. There was

no evidence Appellant removed A.I.’s clothing or manipulated her clothing beyond

reaching inside her pajama pants and underwear. Appellant did not tell the victim to do

anything or refrain from doing anything, and did not threaten her in any way if she failed

to comply. Appellant did not move or manipulate the victim herself, or any of her limbs.

There was no testimony Appellant held her down in order to commit the act of touching

her. While A.I. testified she forcibly removed Appellant’s hand from inside her pajama

pants, there is no evidence he struggled with her to continue touching her; rather, she

was able to leave the room without interference from Appellant. Although A.I. was

flustered, crying, and scared because she did not expect the touching to happen, there is

no evidence in the record Appellant employed any force or threat of force beyond the

force of the act itself, which is legally insufficient to meet the “force” element of the crime

of gross sexual imposition. We find the evidence legally insufficient to convict Appellant

of the crime of gross sexual imposition.

{¶23} However, in contrast to Moore, supra, in the instant case the trial court did

instruct the jury on the lesser-included offense of sexual imposition. The Ohio Supreme

Court has recently restated when there is insufficient evidence to sustain a conviction for

one crime, but sufficient evidence to sustain a lesser included offense of that crime, Ohio

law permits a court to modify the verdict accordingly, without ordering a new trial. State
Delaware County, Case No. 21 CAA 09 0048 12

v. Smith, 2022-Ohio-269, ¶12, citing Crim.R. 33(A)(4); R.C. 2945.79(D); State v.

Robinson, 161 Ohio St. 213, 118 N.E.2d 517 (1954), paragraph one of the syllabus. In

such a case, the trial court can modify its judgment to reflect the guilty verdict on the

lesser included offense. Id. at ¶13.

{¶24} The jury was instructed on sexual imposition as defined by R.C.

2907.06(A)(1):

(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.

{¶25} In the instant case, the victim testified Appellant stuck his hand inside her

pajama pants and began massaging her vaginal area on the outside. The State

presented evidence in the form of text messages between Appellant and Gabbie which

established Appellant was aware A.I. was not interested in the threesome they had

previously discussed, and was “weirded out” by Appellant. We find the evidence was

sufficient from which the jury could find Appellant was guilty of sexual imposition.

{¶26} Because we find there was insufficient evidence to demonstrate the element

of force required to prove gross sexual imposition, the first assignment of error is

sustained. Because, however, there was sufficient evidence to sustain a conviction for
Delaware County, Case No. 21 CAA 09 0048 13

sexual imposition, a lesser included offense of gross sexual imposition, we remand this

matter to the trial court to modify Appellant’s conviction and to resentence him

accordingly.

II.

{¶27} In his second assignment of error, Appellant argues the judgment convicting

him of gross sexual imposition is against the manifest weight of the evidence. This

assignment of error is rendered moot based on our ruling on Appellant’s first assignment

of error.

III.

{¶28} In his third assignment of error, Appellant argues his trial counsel was

ineffective for failing to call his own expert to testify the source of the male DNA found in

A.I.’s underwear could have been the result of cohabitating with other males.

{¶29} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as having

produced a just result. Id.

{¶30} Haydee Lara, a forensic DNA analyst at the Ohio Bureau of Criminal

Investigation, testified it is possible to have male DNA on your clothing if you live with a
Delaware County, Case No. 21 CAA 09 0048 14

male, and DNA can be transferred in the laundry or in a clothes hamper. We find

Appellant has not demonstrated calling his own expert witness to testify to substantially

the same thing would have changed the result of the proceeding.

{¶31} The third assignment of error is overruled.

IV.

{¶32} In his fourth assignment of error, Appellant argues the cumulative effect of

the errors he has raised in assignments of error one through three deprived him of a fair

trial. We find this claim is rendered moot by our finding of reversible error on his first

assignment of error.

{¶33} Appellant’s conviction and sentence for gross sexual imposition is vacated.

Because, however, there was sufficient evidence to sustain a conviction for sexual

imposition, a lesser included offense of gross sexual imposition, we remand this matter

to the trial court to modify Appellant’s conviction and to resentence him accordingly.

By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur