[Cite as State v. Elkins,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2010-CA-104 TIMOTHY ELKINS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 2010- CR-00093

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 21, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT ERIC W. BREHM Licking County Prosecutor BREHM & ASSOCIATES 20 S. 2nd St., 4th Fl. 604 E. Rich St., Ste. 2100 Newark, OH 43055 Colummbus, OH 43215 [Cite as State v. Elkins,

.]

Gwin, P.J.

{¶1} Defendant-appellant Timothy Elkins appeals his convictions and

sentences from the Licking County Court of Common Pleas for one count of Rape of a

minor less than ten years old, a felony of the first degree in violation of R.C.

2907.02(A)(1)(b) and two counts of Gross Sexual Imposition felonies of the third degree

in violation of R.C. 2907.05(A)(4). Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 26, 2010, a Licking County grand jury indicted appellant on

two (2) counts of rape and two (2) counts of gross sexual imposition (GSI).

{¶3} The first count was alleged to have occurred during C.E.B.’s kindergarten

year which spanned, roughly, from August 15, 2008 to August 15, 2009, and was

alleged to have taken place at the first of two apartments which her maternal

grandmother, Marjorie Elkins, lived in located at 106D Andover Road, Heath, Ohio.

C.E.B. testified that on one occasion while she had been sleeping, her "Uncle Timmy"

(appellant) had licked her privates.1

{¶4} The second count was alleged to have occurred during the approximate

time frame of November 1, 2009 to January 20, 2010. By this time C.E.B.'s grandmother

had moved to a trailer in Buckeye Lake, Ohio, and appellant had moved to the State of

Indiana. However, during the period of time appellant returned to his mother's trailer in

Buckeye Lake on at least two occasions: once near Christmas; and then again for

several days near his mother's birthday weekend, January 14-20, 2010, which was also

Martin Luther King Day weekend. As with the earlier episode, C.E.B. alleged that

appellant licked her "in the wrong place", which she identified as her vagina. 1 The jury was unable to agree on a verdict on this Count of the Indictment. Licking County, Case No. 2010-CA-104 3

{¶5} Counts Three and Four of the indictment allege acts of Gross Sexual

Imposition for acts committed against appellant's de facto step-niece, B.S. These two

counts involve a single temporal event where appellant was alleged to have touched

B.S. on her breast (Count Three), and in her genital region (Count Four). This event is

alleged to have occurred during March 1, 2008 to November 1, 2008.

{¶6} Prior to trial appellant filed a motion pursuant Evid.R. 601 requesting that

the trial court conduct a voir dire examination of C.E.B. to determine her competency to

testify.2 The court conducted the examination and permitted counsel to participate in the

questioning of C.E.B. At the conclusion of that evaluation, the trial court found that she

was competent to testify and she did testify before the jury during appellant's trial.

{¶7} The State called seven witnesses during appellant's three-day trial.

Appellant chose not to take the stand in his own defense; however, the defense did call

his mother, Marjorie Elkins to testify on his behalf.

{¶8} When the trial concluded on August 26, 2010, the jury found appellant

guilty of Rape as set forth in Count 2 of the Indictment and two counts of Gross Sexual

Imposition as set forth in Counts Three and Four. The jury could not agree on a verdict

on Rape as set forth in Count One of the Indictment.

{¶9} The trial court sentenced appellant to fifteen (15) years to life on the rape,

and five (5) years on each of the GSI counts; the five year terms were to run

concurrently with each other, but consecutive to the rape sentence, for an aggregate

sentence of twenty (20) years to life in prison. The trial court also imposed five years

of mandatory post-release control, and classified appellant as a Tier III sex offender.

2 C.E.B. was born April 13, 2003. (Comp. May 6, 2010 at 11; 15). Licking County, Case No. 2010-CA-104 4

{¶10} Appellant has timely appealed, raising the following two assignments of

error:

{¶11} “I. THE TRIAL COURT DID ERR BY FINDING C.E.B. COMPETENT TO

TESTIFY.

{¶12} “II. THE TRIAL COURT DID ERR WHEN IT ENTERED JUDGMENT

AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO

SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST

WEIGHT OF THE EVIDENCE.”

I.

{¶13} In his first assignment of error, appellant contends that the trial court

committed plain error in finding C.E.B. competent to testify at trial. Specifically

appellant’s argument centers upon three contentions, to wit: that during administration

of the oath at the competency hearing, C.E.B. was unable to spell her last name or

provide her current address; during cross-examination by the defense, C.E.B. agreed

that she would say a bad thing about a person, if C.E.B.'s mother instructed her to say a

bad thing; and C.E.B. experienced difficulty articulating time measurement; she was

unaware how many seasons are in a year, and she was unable to name the days of the

week.

{¶14} Evidence Rule 601 states:

{¶15} “Every person is competent to be a witness except:

{¶16} “(A) Those of unsound mind, and children under ten years of age, who

appear incapable of receiving just impressions of the facts and transactions respecting

which they are examined, or of relating them truly.” See, also R.C. 2317.01. Licking County, Case No. 2010-CA-104 5

{¶17} The Ohio Supreme Court has set forth the following factors for a

competency determination pursuant to Evid. R. 601(A):

{¶18} “In determining whether a child under ten is competent to testify, the trial

court must take into consideration (1) the child’s ability to receive accurate impressions

of fact or to observe acts about which he or she will testify, (2) the child’s ability to

recollect those impressions or observations, (3) the child’s ability to communicate what

was observed, (4) the child’s understanding of truth and falsity and (5) the child’s

appreciation of his or her responsibility to be truthful.” State v. Frazier (1991),

. The trial court must find, then, that the child witness: (1). has the ability

to recall the alleged acts of abuse; (2). has the ability to communicate those facts; and

(3). understands his responsibility to be truthful.

{¶19} A court conducting a voir dire to determine competency is not chained to a

ritualistic formula to ask specific questions. However, it must satisfy itself of the

elements enumerated in Frazier. State v. Swartsell, Butler App. No. CA2002-06-151,

at ¶ 13. As long as a witness understands the oath, or has the mental

capacity sufficient to receive just impressions of the facts and transactions relating to

what he or she is being questioned upon, then he or she is competent to testify at trial.

State v. Bradley (1989),

,

. See, also, State

v. Wildman (1945),

,

, paragraph three of the syllabus.

{¶20} “A child may be competent to testify even though the child * * * initially

does not recognize the concept of truth, so long as the voir dire continues on to

demonstrate that the child * * * generally * * * understands the concept of truthfulness.” Licking County, Case No. 2010-CA-104 6

State v. Brooks (Oct. 26, 2001), 2nd Dist. No. 18502, quoting State v. Boyd (Oct. 31,

1997), 2d Dist. No. 97 CA 1.

{¶21} A trial court's decision that a presumed incompetent witness is competent

to testify must be approached by a reviewing court with great deference because the

trial judge has the opportunity to observe the person's appearance, his or her manner of

responding to the questions, general demeanor and any indicia of ability to relate the

facts accurately and truthfully. See Frazier,

,

;

State v. Lewis (1982),

,

, 490. See also, State v.

Uhler (1992),

, citing State v. Bradley (1989),

, paragraph one of the syllabus. See, also, State v. Wilson (1952),

;

Banez v. Banez, Stark App. No.2006CA00216,

.

{¶22} In the case at bar, appellant argues that the trial court should have found

C.E.B. not competent to testify because C.E.B.’s inability to measure time illustrates her

inability to accurately communicate what she observed, and further C.E.B.'s admission

that she would say bad things, if her mother instructed her to, shows that she did not

appreciate her responsibility to be truthful.

{¶23} We find instructive the case law that has developed concerning the failure

to provide exact dates upon which a sexual assault is alleged to have occurred. In those

cases, courts have found specificity as to the time and date of an offense is not required

in an indictment. Under R.C. 2941.03: “an indictment or information is sufficient if it can

be understood therefrom: * * * (E) That the offense was committed at some time prior

to the time of filing of the indictment * * *.” An indictment is not invalid for failing to

state the time of an alleged offense or doing so imperfectly. The State is not required to Licking County, Case No. 2010-CA-104 7

prove that an offense occurred on any specific date, but rather may prove that the

offense occurred on a date reasonably near that charged in the indictment. State v.

Adams, 5th Dist. No. 02-CA-00043,

at ¶8.

{¶24} Impreciseness and inexactitude of the temporal evidence at trial is not “per

se impermissible or necessarily fatal to a prosecution.” State v. Robinette (Feb. 27,

1987), 5th Dist. No. CA-652. The question in such cases is whether the inexactitude of

temporal information truly prejudices the accused's ability fairly to defend him. Sellards,

supra; State v. Gingell (1982),

,

; State v.

Kinney (1987),

,

. Appellant has not argued or

alleged that the inexactitude prejudiced his ability to defend himself at trial.

{¶25} Grafted upon the question of prejudice is a problem that cases of child

abuse invariably present, i.e., a victim-witness who, due to tender years, does not have

the temporal memory of an adult and has problems remembering exact times. As this

court has noted: “[t]ime is neither essential nor an element of the crime of sexual

battery.” State v. Robinette (Feb. 27, 1987), 5th Dist. No. CA-652.

{¶26} In Robinette this court stated: “[w]e note that these particular cases often

make it more difficult to ascertain specific dates. The victims are young children who

may reasonably be unable to remember exact times and dates of psychologically

traumatic sexual abuses. This is especially true where the crimes involve several

instances of abuse spread out over an extended period of time. State v. Humfleet

(Sept. 9, 1985), Clermont App. No. CA84-04-031, unreported, at 15. The problem is

compounded where the accused and the victim are related or reside in the same

household, situations which often facilitate an extended period of abuse. An allowance Licking County, Case No. 2010-CA-104 8

for reasonableness and inexactitude must be made for such cases considering the

circumstances.”

{¶27} In State v. Sellards (1985),

,

, the

Supreme Court gave two examples of when the failure to provide specific dates and

times could be prejudicial to the accused. The court first noted that if the age of the

victim were an element of the crime with which the accused had been charged and the

victim bordered on the age required to make the conduct criminal, then the failure to

provide a more specific time frame would be prejudicial. This is true because “specific

dates of sexual conduct might well have become critical to the accused's ability to

prepare a defense, since sexual conduct toward one thirteen years of age or older

would not constitute the offense of rape as defined in the charged section of the criminal

code, R.C. 2907.02(A)(3).”

,

.

The second situation is where “the defendant had been imprisoned or was indisputably

elsewhere during part but not all of the intervals of time set out in the indictment.

Again, under such circumstances, the inability of the state to produce a greater degree

of specificity would unquestionably prejudice the defense."

The Sellards court

noted: “the record in this case does not indicate that the failure to provide the accused

with a specific date was a material detriment to the preparation of his defense. In this

regard, we note that while appellee claims on appeal that the inexactitude of the

indictment and bill of particulars as to date denied him the ability to present an alibi

defense, appellee never filed a notice of intent to rely on an alibi as is required by

Crim.R. 12.1. (Cf. State v. Dingus [1970],

,

[

];

,

.)”

Licking County, Case No. 2010-CA-104 9

{¶28} In the case at bar, C.E.B.’s age did not border on the age required to

make the conduct criminal. She was under ten years old at the time of the sexual

assaults and also at the time of appellant’s trial. As the case law illustrates, the fact that

an immature mind cannot relate time with the exactitude of an adult is not dispositive of

the child’s ability to know the importance of telling the truth. In the case at bar, the trial

court found that C.E.B. was aware of her ability to be truthful and was capable of

relating her experiences. After a thorough review of the record we find nothing to

demonstrate that the trial court abused its discretion by so finding.

{¶29} Finally, although C.E.B. admitted that she would say bad things, if her

mother instructed her to, there was never any evidence presented to suggest that her

mother had instructed her to say “bad things” about appellant. In any event, it was not

shown that C.E.B. would “lie” about a person if her mother told her too. In other words,

saying “bad things” are not the same thing as “telling lies” about a person or lying in the

courtroom.

{¶30} We have reviewed the entire voir dire and trial testimony of C.E.B. After

our review of these sections, we find no abuse of discretion in the trial court's

determination C.E.B. was competent to testify at trial.

{¶31} Appellant’s First Assignment of Error is overruled.

II.

{¶32} In his Second Assignment of Error appellant argues that his convictions on

the rape charge and the two gross sexual imposition charges were against the manifest

weight of the evidence and not based upon sufficient evidence. We disagree. Licking County, Case No. 2010-CA-104 10

{¶33} Our standard of reviewing a claim a verdict was not supported by sufficient

evidence is to examine the evidence presented at trial to determine whether the

evidence, if believed, would convince the average mind of the accused’s guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the 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

(1991),

,

, superseded by State constitutional

amendment on other grounds as stated in State v. Smith (1997),

,

..

{¶34} The Supreme Court has explained the distinction between claims of

sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a

question for the trial court to determine whether the State has met its burden to produce

evidence on each element of the crime charged, sufficient for the matter to be submitted

to the jury.

{¶35} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice, State v. Thompkins (1997),

,

,

, superseded by constitutional amendment on other grounds

as stated by State v. Smith,

,

,

. 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 the witnesses and

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its Licking County, Case No. 2010-CA-104 11

way and created such a manifest miscarriage of justice that the judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in

the exceptional case in which the evidence weighs heavily against the judgment.” State

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983),

. Because the trier of fact is in a better position to observe the

witnesses’ demeanor and weigh their credibility, the weight of the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967),

,

, syllabus 1.

{¶36} In Thompkins, the Ohio Supreme Court held "[t]o reverse a judgment of a

trial court on the basis that the judgment is not sustained by sufficient evidence, only a

concurring majority of a panel of a court of appeals reviewing the judgment is

necessary."

at paragraph three of the syllabus. However, to "reverse a judgment of

a trial court on the weight of the evidence, when the judgment results from a trial by jury,

a unanimous concurrence of all three judges on the court of appeals panel reviewing

the case is required."

at paragraph four of the syllabus; State v. Miller (2002),

,

,

{¶37} In this assignment of error, appellant argues that the evidence in this case

was deficient because the state did not produce any physical evidence of sexual abuse,

on either C.E.B. or B.S.; failed to produce a qualified expert on child abuse, to testify

that C.E.B.'s and B.S.' experiences and behaviors were consistent with the experiences

and behaviors of sexually abused children; and neither C.E.B. nor B.S. could testify with

specificity as to when the alleged abuse occurred. Licking County, Case No. 2010-CA-104 12

{¶38} “Sexual conduct” is defined as “vaginal intercourse between a male and a

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 cavity of another.

Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.

2907.01(A).

{¶39} When the prosecutor asked C.E.B. testified that appellant had licked her in

the area she identified as her vagina.

{¶40} Corroboration of victim testimony in rape cases is not required. See State

v. Sklenar (1991),

,

; State v. Banks (1991),

,

; State v. Lewis (1990),

,

; State v. Gingell (1982),

, 7 OBR 464,

.” State v. Johnson, 112 Ohio St .3d 210, 217,

at ¶ 53,

. See also, State v. Basham, Muskingum App. No. CT2007-0010,

.

{¶41} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had sexual conduct with C.E.B. and further that he committed the crime of

rape. We hold, therefore, that the state met its burden of production regarding each

element of the crime of rape and, accordingly, there was sufficient evidence to support

appellant's conviction for rape.

{¶42} Appellant was further convicted of two counts of gross sexual imposition. Licking County, Case No. 2010-CA-104 13

{¶43} Gross Sexual Imposition prohibits “sexual contact” when the offender

knows the other person is less than thirteen years of age. “Sexual Contact” is defined 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”. R.C. 2907.01. Accordingly, touching the

“erogenous zone” is what is prohibited.

{¶44} In the case at bar, B.S. testified at appellant’s jury trial. B.S. was born on July

8, 1999. B.S. testified that appellant touched her "privates" and "chest" one night

during the summer of 2008. B.S. alleged that appellant asked her not to tell.

{¶45} In the case at bar, the jury heard testimony from Laura Romans. Ms.

Romans performs personal safety presentations for children in Fairfield County

Schools. On January 28, 2010, Romans gave presentations to C.E.B.'s and B.S.'

elementary school.

{¶46} Angela Harrison the principal of C.E.B.'s and B.S.' elementary

school also testified. Ms. Harrison testified that on January 29, 2010, C.E.B. and

B.S. alleged to Harrison that they had been sexually abused.

{¶47} If the State relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “‘such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.’ “ State v. Jenks

(1991),

,

at paragraph one of the syllabus.

“‘Circumstantial evidence and direct evidence inherently possess the same probative

value [.]’” Jenks, 61 Ohio St .3d at paragraph one of the syllabus. Licking County, Case No. 2010-CA-104 14

{¶48} Furthermore, “‘[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is

required of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against

the standard of proof beyond a reasonable doubt.” ‘ Jenks, 61 Ohio St. 3d at 272,

. While inferences cannot be based on inferences, a number of

conclusions can result from the same set of facts. State v. Lott (1990),

,

, citing Hurt v. Charles J. Rogers Transp. Co. (1955),

, 331,

. Moreover, a series of facts and circumstances can

be employed by a jury as the basis for its ultimate conclusions in a case. Lott,

,

, citing Hurt, 164 Ohio St. at 331,

.

{¶49} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant committed the two Gross Sexual Imposition offenses. We hold, therefore, that

the state met its burden of production regarding each element of each of the crimes of

gross sexual imposition and, accordingly, there was sufficient evidence to support

appellant's conviction for each count of gross sexual imposition.

{¶50} Although appellant cross-examined the victims and the other state

witnesses regarding inconsistencies in, and the vagueness of, their testimony and

further argued that no forensic or expert evidence supported the allegations, the jury

was free to accept or reject any and all of the evidence offered by the appellant and

assess the witness' credibility. Although the evidence may have been circumstantial, we

note that circumstantial evidence has the same probative value as direct evidence.

State v. Jenks (1991),

,

. Licking County, Case No. 2010-CA-104 15

{¶51} Finally, as we noted in our disposition of appellant’s First Assignment of

Error, impreciseness and inexactitude of the temporal evidence at trial is not “per se

impermissible or necessarily fatal to a prosecution.” State v. Robinette (Feb. 27, 1987),

5th Dist. No. CA-652. The question in such cases is whether the inexactitude of

temporal information truly prejudices the accused's ability fairly to defend him.

State v. Gingell (1982),

,

; State v.

Kinney (1987),

,

. Appellant has not argued or

alleged that the inexactitude prejudiced his ability to defend himself at trial.

{¶52} We conclude the jury, in resolving the conflicts in the evidence, did not

create a manifest injustice to require a new trial. Viewing this evidence in a light most

favorable to the prosecution, we further conclude that a rational trier of fact could have

found beyond a reasonable doubt that appellant had committed the crimes of Gross

Sexual Imposition.

{¶53} Accordingly, appellant's convictions for gross sexual imposition are not

against the manifest weight of the evidence. Licking County, Case No. 2010-CA-104 16

{¶54} For the forgoing reasons, appellant’s Second Assignment of Error is

overruled.

{¶55} The judgment of the Court of Common Pleas, Licking County, Ohio is

affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS WSG:clw 0707 [Cite as State v. Elkins,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : TIMOTHY ELKINS : : : Defendant-Appellant : CASE NO. 2010-CA-104

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Licking County, Ohio is affirmed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS