State v. Brown

[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