State v. Knox, Unpublished Decision (8-30-2000)
State v. Knox, Unpublished Decision (8-30-2000)
Opinion of the Court
It is clear from the record that Mr. Knox was convicted of sexual imposition, in violation of R.C.
The Defendant in Count Two of the Indictment is charged with Sexual Imposition. Before you can find the Defendant guilty, you must find beyond a reasonable doubt all of the essential elements of Sexual Imposition which are as follows:
On or about the period of time from August the 17th, 1998, to and including August the 21st of 1998; in Lorain County, Ohio; the Defendant had sexual contact with [Crystal]; who was not the spouse of the Defendant; and [Crystal] was 13 years of age or older but less than 16 years of age, whether or not the Defendant knew the age of such person, and the Defendant was at least 18 years of age and four or more years older than [Crystal].
Moreover, to record the results of its deliberations, the jury was given a form containing the following language: "COUNT TWO Indictment for SEXUAL IMPOSITION We, the jury, find the defendant * * _____________ of SEXUAL IMPOSITION." (Emphasis original.) Furthermore, as discussed above, the verbal description of the charge in the judgment entry indicated that Mr. Knox had been found guilty of sexual imposition, a third degree misdemeanor.
Based on the record, we determine that in count two, the jury found Mr. Knox guilty of violating R.C.
THE JUDGMENT OF CONVICTION OF GROSS SEXUAL IMPOSITION AND SEXUAL IMPOSITION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW AND THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29.
In his first assignment of error, Mr. Knox avers that his convictions for gross sexual imposition and sexual imposition were against the manifest weight of the evidence. Mr. Knox further contends that the trial court erred in overruling his motion for acquittal pursuant to Crim.R. 29. We disagree.
Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Wolfe
(1988),
"While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), Summit App. No. 19600, unreported, at 3, citing State v. Thompkins
(1997),
State v. Otten (1986),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.
Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.
(Emphasis omitted.) State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462, unreported, at 4.
Mr. Knox was found guilty of gross sexual imposition, in violation of R.C.
Mr. Knox was also convicted of sexual imposition, in violation of R.C.
[n]o person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person * * * is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person.
R.C.
[t]he corroborating evidence necessary to satisfy R.C.
2907.06 (B) need not be independently sufficient to convict the accused, and it need not go to every essential element of the crime charged. Slight circumstances or evidence which tends to support the victim's testimony is satisfactory.
See, also, Avon Lake v. Pinson (1997),
In the present case, we find that Mr. Knox's conviction for gross sexual imposition of Alicia1 is not against the manifest weight of the evidence. It is undisputed that Alicia was under thirteen years of age, specifically six years old, in August 1998 and was not Mr. Knox's spouse. Therefore, the focus of Mr. Knox's argument is that the State did not prove that Mr. Knox had sexual contact with Alicia. Although Alicia was unable to remember what happened with Mr. Knox, her older sister, Kiara,2 testified that at night, she saw Mr. Knox touch Alicia under her pajamas with his fingers. Tonya Brown, Kiara and Alicia's mother, testified that Kiara told her the next morning about the inappropriate contact, and that she subsequently took them to the hospital and then to the police station. At trial and during a prior interview with Detective Charles Gallion of the Elyria Police Department, Kiara was asked to identify where Mr. Knox touched Alicia. On both occasions, Kiara circled the genital area on a drawing of a little girl. Even though Kiara was confused about certain details of that night, she testified that she was certain that Mr. Knox touched Alicia's genital area with his fingers. After a careful review of the record, we cannot say that the jury clearly lost its way and committed a manifest miscarriage of justice in convicting Mr. Knox of gross sexual imposition.
Next, we find that Mr. Knox's conviction for sexual imposition of Crystal is not against the manifest weight of the evidence and that there is sufficient corroborating evidence to support a conviction. It is undisputed that Crystal was thirteen years of age in August 1998 and was not Mr. Knox's spouse. Mr. Knox stipulated that he was born on August 21, 1960, and therefore, he was at least eighteen years old and at least four years older than Crystal at the time of the alleged criminal conduct.
Again, Mr. Knox focuses on whether the State proved that Mr. Knox had sexual contact with Crystal. At trial, Crystal testified that she and her friend were watching television on an L-shaped couch, while her mother and her friends were outside on the porch. She testified that Mr. Knox came into the living room after she had fallen asleep and began touching her back, chest area, thigh, and buttocks; he also kissed her cheek and neck. At one point, Dave, her mother's boyfriend, came into the living room from the porch. Consequently, Mr. Knox stopped touching her, but resumed once Dave left. Crystal testified that she did not cry out for help because she was too scared. Further, Crystal stated that one cannot see from the porch into the living room because the door would not open completely, as it was blocked by a piece of furniture. Her mother's testimony confirmed this fact. A few days later, Crystal told her grandmother about the incident. It is unclear whether Crystal told her grandmother before or after learning that Mr. Knox had allegedly sexually assaulted another child. Crystal's mother testified that in August 1998, there was a day when Mr. Knox, Crystal, and her friend were watching television in the living room, while she was on the front porch with friends. The evidence adduced at trial constitutes at the least "[s]light circumstances or evidence which tends to support the victim's testimony[.]" Economo, 76 Ohio St.3d at syllabus. Mr. Knox's conviction for sexual imposition, therefore, was not against the manifest weight of the evidence.
Consequently, we conclude that Mr. Knox's assertion that the state did not produce sufficient evidence to support a conviction for gross sexual imposition and sexual imposition, therefore, is also without merit. See Roberts, supra, at 4. Mr. Knox's first assignment of error is overruled.
THE JUDGMENT FINDING APPELLANT TO BE A SEXUAL PREDATOR VIOLATE'S [sic] APPELLANT'S CONSTITUTIONAL RIGHTS.
Next, Mr. Knox argues that his designation as a sexual predator, pursuant to R.C. Chapter 2950, violates his constitutional rights. However, counsel for appellant merely lists various constitutional provisions with scant analysis or argument. This court reiterates it previous admonitions set forth in State v. Worstell (July 19, 2000), Lorain App. Nos. 99CA007345 and 99CA007368, unreported, at 4. Now, we turn to discuss the merits of Mr. Knox's constitutional claims.
First, Mr. Knox challenges the constitutionality of R.C. Chapter 2950 on the basis that the statute denies Mr. Knox due process of law, as guaranteed by the
Next, Mr. Knox avers that R.C. Chapter 2950 constitutes cruel and unusual punishment, violating the
Next, Mr. Knox argues that R.C. Chapter 2950 violates the ExPost Facto Clause of Section 10, Article
Lastly, Mr. Knox contends that R.C. Chapter 2950 violates Section
THE COURT SHOULD GRANT APPELLANT'S PRO S.E. [sic] ASSIGNMENTS OF ERROR.
In the third assignment of error, this court is requested to consider Mr. Knox's pro se assignments of error, which consist of a photocopy of a handwritten letter from Mr. Knox to his counsel, setting forth various potential grounds for his appeals in both the present case and in an appeal for another conviction. These photocopies are of poor quality, having words trailing from the edge of the page. This court has previously declined to consider a similar assignment of error, saying "`it is not the duty of this Court to create [appellant's] arguments * * * and search the record for evidence to support them.'" (Second alteration original.)State v. Miller (July 19, 2000), Lorain App. No. 99CA007334, unreported, at 6, quoting Sisson v. Ohio Dept. of Human Serv. (Apr. 19, 2000), Medina App. No. 2949-M, unreported, at 4; see, also, App.R. 12(A)(2) and 16(A)(7). Accordingly, Mr. Knox's third assignment of error is overruled.
The Court finds that 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, 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(E).
Costs taxed to Appellant.
Exceptions.
___________________________ WILLIAM G. BATCHELDER
FOR THE COURT, CARR, J., WHITMORE, J., CONCUR.
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