[Cite as State v. Maresh,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100122

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MICHAEL A. MARESH

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-565381-A

BEFORE: Kilbane, J., Boyle, A.J., and Jones, J.

RELEASED AND JOURNALIZED: August 7, 2014 ATTORNEY FOR APPELLANT

R. Brian Moriarty 1370 Ontario, Suite 2000 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Kevin R. Filiatraut Assistant Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Michael Maresh (“Maresh”), appeals the denial

of his motion to suppress and his convictions for sexual battery. For the reasons

set forth below, we affirm.

{¶2} In September 2012, Maresh was charged with two counts of sexual

battery in violation of R.C. 2907.03(A)(1) and (A)(6). The charges arise from a

relationship between Maresh, a Parma Municipal Court probation officer, and B.M.,

one of his probationers. Maresh was also employed as a corrections officer for the

city of North Royalton. In December 2012, Maresh moved to suppress the

statements he made to North Royalton Detective Dave Loeding (“Loeding”) while

he was in the Veterans Administration Hospital (“V.A. Hospital”) in Cleveland,

Ohio. Maresh argued that his statement was coerced and involuntary, claiming that

he was interrogated while being treated in the hospital for mental health issues.

The state of Ohio opposed the motion. The trial court held a hearing, at which the

following evidence was adduced.

{¶3} On July 11, 2012, B.M.’s attorney notified Loeding of allegations that

Maresh had a sexual relationship with B.M. while he served as her probation

officer. After obtaining a statement from B.M., Loeding secured a search warrant

for Maresh’s cell phone. Loeding learned through Maresh’s supervisor in North Royalton that Maresh was on leave for Army Reserve training in Ravenna, Ohio.

On July 23, 2012, Loeding went to the Ravenna base and briefly spoke with

Maresh. He informed Maresh why he was there and obtained Maresh’s cell phone.

{¶4} While he was still in Ravenna, Maresh called his then fiancée, Alyssa

Gilpin (“Gilpin”), crying and apologizing for having an inappropriate relationship

with a girl that was on probation with him. Gilpin and Maresh have a son and

were living together at the time of the incident with B.M. He told Gilpin that the

police came to Ravenna and served him a search warrant for his phone. Gilpin told

Maresh that she was taking their son and leaving and Maresh “essentially flipped

out.” At that time, Maresh talked about killing himself. On a prior occasion,

Maresh threatened to kill himself after Gilpin caught him cheating on her through a

dating website. Subsequently, Gilpin alerted a commanding officer at the Ravenna

base and asked that Maresh stay at training until everything was figured out.

{¶5} After Maresh called Gilpin, Loeding contacted her about Maresh’s cell

phone to figure out how to view pictures on Maresh’s cell phone that were

protected by a password. Gilpin told Loeding that she did not want to get involved

and to speak with Maresh himself, as he wanted to speak with the police. Loeding

learned from Gilpin that Maresh was in the V.A. Hospital in Cleveland. {¶6} Maresh was sent to the V.A. Hospital, where he remained for

approximately one week. Gilpin visited Maresh on two occasions at the hospital.

On the first visit, Maresh was upset and embarrassed, but seemed coherent. On the

second visit, Gilpin brought their son. Gilpin testified that she would not have

brought their son with her if she thought Maresh was unstable. Gilpin and Maresh

spoke about plans for their future and Maresh had made a list of things he needed to

do to plan for their family’s future. Gilpin never thought Maresh was going to kill

himself. She felt that it was his way out of the situation.

{¶7} Loeding testified that he went to the V.A. hospital with North

Royalton Detective Floann Rybicki (“Rybicki”) on July 25, 2012, to speak with

Maresh. Rybicki accompanied Loeding to the hospital and observed Loeding’s

interaction with Maresh. Rybicki and Loeding had to lock up their firearms with

the hospital police before meeting with Maresh. Rybicki testified that Maresh

wanted to speak with Loeding to “clear things up.” Rybicki further testified that

she did not observe Maresh to be in any type of mental distress. She thought that

the interview lasted between one and one-half to two hours. The interview

occurred in a conference room, not Maresh’s hospital room. Hospital police

brought Maresh to the room and were standing outside the door during the

interview. Rybicki stood near the door while Loeding and Maresh sat at the table

in the room. At one point, both Rybicki and Loeding left the room so Maresh could write his statement. When questioned by the trial court, Rybicki testified

that, based on her training in interrogation techniques, she did not observe any

coercion or pressure techniques used during the questioning. She further testified

that most of the time there was spent with Maresh writing his statement.

{¶8} Loeding testified that he has been a police officer for 25 years and has

been a detective for 18 of those years. He testified that the hospital police brought

Maresh to him and Rybicki in a separate meeting room on Maresh’s floor.

Loeding was unsure if Maresh was under “custody.” He thought “military

direction” was more appropriate because Maresh was escorted to the room by

hospital police, and it did not seem that Maresh was able to leave the hospital if he

wanted to. Loeding advised and explained to Maresh his Miranda rights orally and

in writing. Maresh signed a form stating that he understood his rights, wished to

waive his rights, and speak with Loeding. Loeding testified that the interview

lasted approximately three hours. Loeding testified that Maresh was polite,

cooperative, willing, and gave more than what was asked. “There were many

times when there was not really an interrogation of questioning, it was more of

[Maresh] talking fluidily.” Maresh wanted Loeding to know that there was no

rape. Maresh told Loeding that he had a sexual relationship with his probationer,

B.M. Maresh spoke of two instances of sexual activity that occurred at B.M.’s home. He described these instances as being without the use of force. Their

relationship also included sending text messages of a sexual nature.

{¶9} Loeding testified that at no time did Maresh exercise his right to a

lawyer or wish to stop the interview. Maresh began to write his statement about

halfway through the interview. The handwritten statement is single-spaced and

consists of three pages. The statement details the sexual relationship Maresh had

with B.M. Loeding testified that he and Rybicki were in close proximity to

Maresh as he wrote his statement. Loeding further testified that during the entire

interview, Maresh never gave Loeding any concern that he was under any mental

distress. He testified that Maresh gave the statement voluntarily. Loeding believed

that Maresh was frustrated and upset about “a lot of a things in his life” and Maresh

wanted to “clear the air.”

{¶10} After the hearing, the trial court denied Maresh’s motion to suppress.

In its ruling, the trial court found that Maresh reviewed the Miranda rights form

and signed all indicated portions of the form; Maresh willingly came to the

conference room to speak with the detectives; there was no evidence that Maresh

was not alert or disoriented at the time of his interview; and there was no evidence

by any mental health professionals to substantiate any medical treatment or even

suggest that Maresh was not competent or sane at the time of his interrogation and interview. The matter then proceeded to a bench trial in May 2013, at which the

following additional evidence was adduced.

{¶11} On June 5, 2012, Parma Municipal Court assigned B.M. to report to

Maresh after being sentenced for her second OVI. B.M. met with Maresh and

signed paperwork outlining the rules of her probation. This form also contained

her contact information, including her cell phone number.

{¶12} On her way home from court, B.M. received a text from a number she

did not recognize, stating, “You looked really sexy in that dress.” B.M. texted

back, “Who is this?” She received a text in response stating, “It’s your probation

officer.” B.M. was shocked and found the text inappropriate. B.M. testified that

because this was her second OVI conviction, she had to get restricted license plates.

Subsequently, she had to go back to court another day in June to get a signature

from a Parma Municipal Court judge. B.M. had to meet first with Maresh, who

then took the paperwork to the judge. B.M. commented on how quickly Maresh

returned with the paperwork. Maresh replied, “me and [the judge] are pretty

tight.” B.M. testified that Maresh made it seem as though he and the judge were

friends. Maresh asked B.M. to call him everyday on her way to work.

{¶13} Over the next couple of weeks, B.M. received at least 50 text messages

from Maresh. Maresh first began texting B.M. about her “butt” and texted naked

pictures of himself. Maresh demanded that B.M. send him pictures. B.M. testified that she “held off for a few days, and then [Maresh] just kept on, you

know, send me pictures. Send me pictures, you know. I’m your probation

officer.” B.M. felt threatened and did not want to make him mad. She testified “I

was under his authority pretty much[.]” She had never been on probation before

and did not know what the consequences would be. B.M. testified that I knew he

was basically in charge of me, and * * * I did send him pictures of myself[.]”

B.M. texted several naked pictures of herself. B.M. testified that Maresh told her

“I could be your best friend or your worse enemy.” She took that to mean that “if I

don’t do what he says, then he could probably go to the judge and have my sentence

changed or — I just felt very threatened and intimidated.”

{¶14} On June 20, 2012, Maresh sent B.M. several texts, including naked

pictures of himself. He told B.M. that “i can’t guarantee that i won’t rape u Friday

limited” and “i won’t tell ne one how naughty u are....its Ur probation officer and

your secret!” In response, B.M. texted Maresh naked pictures of herself. The

next day, on June 21, 2012, Maresh texted B.M. “What happened to calling me this

morning.” He also texted her sexually explicit messages. B.M. testified that

Maresh showed up at her apartment at approximately 3:45 p.m. that afternoon,

which was the same apartment listed on her probation forms.

{¶15} B.M. testified that she was about to take a shower when she heard her

apartment buzzer. She buzzed Maresh in thinking it was one of her daughter’s friends. B.M. testified that after she opened the door, Maresh forced his way onto

her and started kissing her. He pushed her onto the couch, took off her robe, and

inserted his penis into her vagina. B.M. testified that his penis was inside her for

approximately ten seconds. B.M. told him to stop and that “this is wrong.”

Maresh then stood up and told her, “I just wanted you to have a little taste of your

probation officer.” After that, he asked for a glass of water, which she got for him,

and he left. Later that day, B.M. testified she received a text from Maresh, stating

“I really am sorry about today. I really feel like I violated you and forced you

when you didn’t want it. I’m sorry” and “[l]ike I said, my emotions got the best of

me. I won’t do it tomorrow too.” She testified, the next day he texted her “I

really am sorry for yesterday.”

{¶16} B.M. testified that Maresh continued to text her over the next several

days, including a text on June 24, 2012, that stated, “[w]e still on for tomorrow?”

and texts on June 25, 2012, that stated, “[w]e still on today?” “[o]kay I’ll take my

lunch around 12:45” and “[y]eah that’s okay. Tell them your officer is paying you

a visit.” B.M. testified Maresh came to the apartment on June 25, 2012, at

approximately 12:30 p.m. She told him not to come, so she was not expecting him.

B.M. was with her daughter and her daughter’s friends. They were getting ready

to go to the pool in her apartment complex. Maresh told B.M.’s daughter and her

friends to go outside, telling them that he had paperwork for B.M. As soon as her daughter and friends went outside, Maresh immediately grabbed her. He put

B.M.’s hand on his penis over his clothes. B.M’s daughter then came back into the

apartment and Maresh left. Two days later, Maresh texted B.M. “u didn’t freak me

out but I really am not looking for anything more than a friend with benefits” and

“ok, well Im sorry for sending u mixed signals [B.M.]”

{¶17} Then, on July 4, 2012, B.M. was arrested for drinking and driving in

Brunswick, Ohio. She notified Maresh of the violation, as required by probation

terms. Maresh responded to her by text, stating “Im.not going to violate Ur

probation [B.M.]” After B.M.’s arrest, she told her attorney about her and Maresh,

who then contacted Loeding.

{¶18} B.M. further testified that all of the above activity occurred while she

was ordered to report to Maresh as her probation officer. At no time was she

dating Maresh, nor did she want to have a sexual relationship with him.

{¶19} On cross-examination, B.M. acknowledged that she hired another

attorney and has a pending civil lawsuit against the city of Parma. B.M. testified

that when she took her phone to the police, she informed them that she deleted most

of the texts she sent Maresh. She explained that either she manually deleted them

or her phone automatically deleted them. B.M. testified that even though she knew

that the texts and naked pictures were inappropriate, she did not immediately notify

the authorities or her attorney. {¶20} In addition to the testimony Detective Loeding provided at the

suppression hearing, Loeding testified at trial that the only major difference

between what B.M. and Maresh told him is that B.M. said the sexual encounters

were forceful and Maresh said they were consensual. Loeding confirmed that

Maresh was working for Parma as a probation officer on both dates he went to

B.M.’s apartment. Maresh texted B.M. that he was only looking for “friends with

benefits” after she was arrested for her third OVI.

{¶21} On cross-examination, Loeding testified that B.M. told him she had a

“mutual flirtation” with Maresh and she returned “sexual comments” to him. B.M.

also told Loeding that she knew Maresh was coming to her apartment on June 21,

2012. She buzzed Maresh in and knew that “sex was going to happen.”

{¶22} Joel Gaiser (“Gaiser”), the Court Administrator for Parma Municipal

Court, testified that he was Maresh’s direct supervisor while Maresh was a

probation officer with the court. As a probation officer, Maresh was a direct link

between B.M., as the probationer, and the judge. It was Maresh’s job, as a

probation officer, to supervise defendants assigned to him, make sure the

probationers were doing what the judge ordered them to do, and notify the judge if

the probationers violated any of the terms of their probation, which were ordered by

Parma Municipal Court. {¶23} Natasha Branam (“Branam”) testified that she is a computer forensic

specialist with the Ohio Bureau of Criminal Investigation. She analyzed B.M.’s

cell phone and SIM card and Maresh’s cell phone. Branam was able to extract

from B.M.’s cell phone several texts from Maresh to B.M. with dates ranging from

June 20, 2012 to July 6, 2012. Branam was also able to extract pictures Maresh

sent to B.M.’s cell phone. Branam testified that Maresh’s text history was blank

prior to July 23, 2012, and his call history was blank prior to July 2, 2012. She

was able to extract from the micro SD card in Maresh’s phone photos of B.M. in

various states of nudity.

{¶24} After the conclusion of the trial, the court found Maresh guilty of both

counts of sexual battery. The court merged both counts for purposes of sentencing,

and the state elected to proceed with sentencing on Count 2. The court sentenced

Maresh to three years in prison and found him to be a Tier II sex offender.

{¶25} Maresh now appeals, raising the following five assignments of error

for review, which shall be discussed together where appropriate.

Assignment of Error One

The trial court erred and/or abused its discretion in denying [Maresh’s] motion to suppress.

Assignment of Error Two The trial court erred and/or abused its discretion in denying the motion to suppress as the statements were not voluntary under the Fifth Amendment.

Assignment of Error Three

The trial court committed prejudicial error by employing the wrong standard of review in its deliberations.

Assignment of Error Four

The guilty verdict was based upon insufficient evidence.

Assignment of Error Five

The guilty verdict was the manifest weight of the evidence.

Motion to Suppress

{¶26} In the first and second assignments of error, Maresh challenges the

trial court’s denial of his motion to suppress. Maresh maintains that he was in

custody at the time he gave his statement and his statement was involuntary. He

cites to the fact that he was at the V.A. Hospital for mental treatment because he

stated that he wanted to kill himself, and he was escorted by hospital police to the

conference room.

{¶27} We note that appellate review of a motion to suppress presents a mixed

question of law and fact. State v. Burnside,

,

,

. In deciding a motion to suppress, the trial court assumes the

role of trier of fact and is in the best position to resolve factual questions and evaluate the credibility of witnesses.

citing State v. Mills,

,

(1992). The reviewing court is bound to accept the trial

court’s findings of fact if they are supported by competent, credible evidence.

citing State v. Fanning,

,

(1982). With respect to

the trial court’s conclusion of law, the reviewing court applies a de novo standard of

review and decides whether the facts satisfy the applicable legal standard.

citing State v. McNamara,

,

(4th Dist. 1997).

{¶28} Under Miranda v. Arizona,

,

,

(1966), a person who is taken into custody or otherwise significantly

deprived of his freedom and subjected to interrogation by law enforcement officials

must be informed of certain constitutional rights and make a knowing and

intelligent waiver of those rights before statements obtained during the interrogation

will be admissible as evidence against him. The question of whether a waiver was

knowing and intelligent is a factual issue that must be determined based on the

totality of the circumstances. State v. Brewer,

,

(1990), citing State v. Edwards,

,

(1976).

{¶29} The totality of the circumstances analysis is triggered by evidence of

police coercion. Colorado v. Connelly,

,

,

(1986). “[C]oercive police activity is a necessary predicate to the

finding that a suspect involuntarily waived his Miranda rights and involuntarily confessed.”

A suspect’s decision to waive his Miranda rights is made

voluntarily absent evidence that his “‘will [was] overborne and his capacity for

self-determination was critically impaired because of coercive police conduct.’”

Colorado v. Spring,

,

,

(1987),

quoting Culombe v. Connecticut,

,

,

(1961).

[A] defendant’s mental condition is only one factor in the totality of circumstances to be considered in determining voluntariness. A defendant’s mental condition may be a “significant factor in the ‘voluntariness’ calculus. But this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.”’

(Citation omitted.) State v. Leonard,

,

,

, ¶ 34, quoting Connelly at 164.

{¶30} In the instant case, the record demonstrates, and the trial court

thoughtfully stated:

[Maresh is] relying on [Mincey v. Arizona,

,

,

(1978)]. * * * The court had an opportunity to review that case, and I’m going to find that that case is distinguishable from our case. * * *

[I]n that case * * * the individual who was being interviewed, that interview lasted nearly four hours. The defendant lay in a bed in a hospital. He had tubes, catheters, intravenous feeding devices attached to his body. During the interview, Mincey was in and out of consciousness. He was interrupted during those periods of consciousness where the interview continued to take place. He lapsed into unconsciousness during the interrogation and interview by the investigators. And then he also continued to ask that the interview stop, and despite his statements that he did not want to go forward, the interview continued to go forward.

I’m going to factually distinguish that case from our case. In our case, I will note for the record, the defendant is an educated person. He was interviewed on July 25th of 2012, at the Wade Memorial VA Hospital. At that time he was there and placed there by his commanding officers.

Exhibit 1 was provided to the Court and that’s * * * the statement of his rights. It was provided to the defendant, it was testified it was read to the defendant, and he also signed on all indicated portions of that statement.

***

He was provided a chance as well to read it and he was given that opportunity before he signed it.

I’m going to indicate that in the testimony provided to the Court by both detectives there was very little in the way of interrogation of this defendant. The officers had an opportunity to sit with him, they had be advised that he wanted to speak with them. I note that he was brought willingly to the conference room. * * * [I]n this case knowing that the detectives had come to interview him, he was escorted by the security guards willingly to the conference room where he was interviewed by the detectives.

***

There was no evidence presented that the defendant was not alert or disoriented at the time of his interview. There was no evidence presented by any mental health professionals to substantiate any medical treatment that the defendant was receiving at that time. That there was any diagnosis that the defendant was receiving medication, or receiving any treatment at the VA to confirm or even suggest that the defendant was not competent or sane at the time of his interrogation and interview.

The defendant’s statement was I believe proper, it was given knowingly and voluntarily[.] He had an opportunity to write his statement without any pressure from the two detectives. They did stand outside the door but only because they were instructed not to leave him alone. And he provided a very detailed three and-a-half or three full pages provided to the detectives. And the majority of the interview, I think which lasted more than three hours, was allowing the defendant an opportunity to write his statement.

So I note that he was not interviewed in his hospitalization room, and that his statement was a proper statement, again knowingly and voluntarily given, after he waived his right to counsel.

{¶31} We agree with the trial court’s analysis. Maresh’s statement to

Loeding was not coerced, nor was it involuntary. Accordingly, the trial court

properly denied Maresh’s motion to suppress.

{¶32} The first and second assignments of error are overruled.

Standard of Review

{¶33} In the third assignment of error, Maresh argues the trial court erred by

finding that R.C. 2907.03(A)(6) is a strict liability offense. R.C. 2907.03(A)(6),

provides that: “[n]o person shall engage in sexual conduct with another, not the

spouse of the offender, when * * *[t]he other person is in custody of law or a

patient in a hospital or other institution, and the offender has supervisory or

disciplinary authority over the other person.” Maresh argues that since this offense does not plainly indicate a purpose to impose strict liability, the trial court should

have used the “reckless standard.”

{¶34} However, in State v. Fortson, 8th Dist. Cuyahoga No. 92337,

, this court stated:

Sexual battery in violation of R.C. 2907.03(A)(6) is a strict liability offense; therefore, an offender’s state of mind, or mens rea, is irrelevant in determining guilt. R.C. 2907.03(A)(6) states that “[n]o person shall engage in sexual conduct with another * * * when * * * [t]he other person is in custody of law * * * and the offender has supervisory or disciplinary authority over the other person.” Additionally, R.C. 2901.21(B) states that “[w]hen the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense.” See also State v. Singleton, 11 Dist. Lake No. 2002-L-077,

, at ¶ 56

(holding that sexual battery of a victim “under the direct control or supervision” of

the offender is a strict liability offense).

{¶35} Based on the foregoing, the trial court, in the instant case, considered

the correct mental state during its deliberations.

{¶36} Therefore, the third assignment of error is overruled.

Sufficiency of the Evidence

{¶37} In the fourth assignment of error, Maresh contends that there was no

evidence presented that B.M. was placed in custody or detained against her will as

required by R.C. 2907.03(A)(6). {¶38} The Ohio Supreme Court in State v. Diar,

,

,

, explained the standard for sufficiency of

the evidence as follows:

Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997),

,

,

. In reviewing such a challenge, “[t]he 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.” State v. Jenks (1991),

,

, paragraph two of the syllabus, following Jackson v. Virginia (1979),

,

,

.

{¶39} Maresh focuses his sufficiency argument on his sexual battery

conviction in violation of R.C. 2907.03(A)(6), which provides that

[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person.

{¶40} Maresh argues that the state failed to present any evidence that B.M.

was placed in custody or detained against her will. Rather, he claims the evidence

demonstrates that B.M. “buzzed” Maresh into her apartment and she knew that “sex

was going to happen.”

{¶41} However, as the Third District Court of Appeals in State v. Chipps, 3d

Dist. Union Nos. 14-82-1 and 14-82-2,

, *3 (May 17,

1983), stated: R.C. 2907.03(A)(6) represents an exception to the general rule which permits sexual activity between consenting adults. As reflected in the committee comment[,] the section proscribes even voluntary sexual activity between an inmate and a person who has supervisory or disciplinary authority over the inmate. The purpose of the statute is to protect from sexual abuse those who come under the care and custody of the State. The statute is directed at those situations where the offender, through power conferred by the State, is able to coerce or force sexual activity by the misuse of that authority.

See also State v. Arega, 10th Dist. Franklin No. 12AP-263,

, ¶ 14.

{¶42} The Ohio Supreme Court has stated that

[p]robation * * * merely grants grace to the guilty person with the evident purpose of helping him to reform; yet the probated offender is still under surveillance although at large. He is not a free man; he is subject to the restraints and conditions imposed by the court during the period of his temporary freedom.

State ex rel. Gordon v. Zangerle,

,

(1940).

{¶43} In the instant case, the record demonstrates that B.M. was under

probation with the Parma Municipal Court at the time of both incidents. It is clear

that she was Maresh’s probationer. She began to report to Maresh on June 5,

2012. As B.M.’s probation officer, Maresh was a direct link between B.M. and the

judge. Maresh was responsible for supervising B.M., making sure she did what the

judge ordered her to do, and notifying the judge if B.M. violated any of the terms of

her court-ordered probation. Therefore, B.M.’s status as a probationer, the several

conditions imposed on B.M., and the consequences B.M. faced for violating the conditions while on probation to the Parma Municipal Court demonstrates that she

was in the “custody of the law” at the time of both incidents.

{¶44} Therefore, after viewing the evidence in a light most favorable to the

state, we conclude that any rational trier of fact could have found the essential

elements of sexual battery, in violation of R.C. 2907.03(A)(6), proven beyond a

reasonable doubt.

{¶45} Accordingly, the fourth assignment of error is overruled.

Manifest Weight of the Evidence

{¶46} In the fifth assignment of error, Maresh argues his conviction under

R.C. 2907.03(A)(6) is against the manifest weight of the evidence. He contends

that B.M.’s testimony is conflicting and unbelievable. Specifically, he refers to her

initial testimony that: her phone deleted the text messages, then later admitted that

she deleted the messages, and someone else let Maresh into her apartment, but

Loeding testified that she told him she knew that Maresh was coming over.

{¶47} We note that in contrast to a sufficiency argument, a manifest weight

challenge questions whether the state met its burden of persuasion. State v.

Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 13, citing Thompkins,

78 Ohio St.3d at 390,

,

. The Ohio Supreme Court in

State v. Wilson,

,

,

, ¶ 25, has

stated: [T]he reviewing court asks whose evidence is more persuasive — the state’s or the defendant’s? * * * “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” [Thompkins at 387], citing Tibbs v. Florida (1982),

,

,

.

{¶48} Moreover, an appellate court may not merely substitute its view for

that of the jury, but must find that “‘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 reversed and a new trial ordered.’” Thompkins at 387, quoting

State v. Martin,

,

(1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which

the evidence weighs heavily against the conviction.’”

quoting Martin.

{¶49} In the instant case, any conflicting testimony as to whether B.M. and

Maresh’s sexual encounters were consensual is inconsequential to Maresh’s

conviction under R.C. 2907.03(A)(6), a strict liability offense. B.M. was in the

“custody of law” at the time of the incidents, and as a result, the trial court did not

“lose its way” and create such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered

{¶50} Therefore, the fifth assignment of error is overruled.

{¶51} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, A.J., and LARRY A. JONES, SR., J., CONCUR