[Cite as State v. Stanforth,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2016-07-052

: OPINION - vs - 5/30/2017 :

HENRY L. STANFORTH, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2015 CR 0171

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, Henry Stanforth, appeals his conviction and sentence in

the Clermont County Court of Common Pleas for multiple sexual offenses. For the reasons

detailed below, we affirm.

{¶ 2} On March 26, 2015, Stanforth was indicted on one count of importuning in

violation of R.C. 2907.07, a third-degree felony, and two counts of gross sexual imposition in

violation of R.C. 2907.05, both third-degree felonies. The indictment alleged that between Clermont CA2016-07-052

June 1, 2014 and November 23, 2014, Stanforth sexually abused seven-year-old P.E. and

eight-year-old A.E.1

{¶ 3} This matter proceeded to a jury trial. The state presented the testimonies of the

victims' mother ("Mother") and father, social workers, the victims themselves, as well as other

individuals, including a former Stanforth victim who alleged a similar pattern of grooming and

exploitation when she was a child.

{¶ 4} Mother testified that, prior to this incident, she had a strong bond with Stanforth

and his wife for many years. Mother testified that the children also had a relationship with

Stanforth who was a grandfather-figure to A.E. and P.E. The children would go fishing and

four-wheeling with Stanforth in his backyard and Stanforth would occasionally give the0

children money and candy. The children would also stay the night at the Stanforth residence.

{¶ 5} In November of 2014, Mother testified that A.E. began wetting the bed and P.E.

would engage in similar changes in behavior such as sleeping on the couch or turning on the

television in the middle of the night. P.E. also began exhibiting self-esteem issues.

{¶ 6} Mother testified that in January of 2015, as she was making the bed, P.E.

started telling her that someone had been bullying her at school and later asked if they could

"speak privately." P.E. explained to Mother that someone had been "acting funny" in front of

her and later stated that a person had peed in front of her and that the person had touched

her "down there and that he had her touch him down there." Mother then spoke with A.E.,

who also confirmed that Stanforth had shown her his private parts.

{¶ 7} Mother contacted authorities and the children were interviewed by social

workers at the Mayerson Center. During the interview, as corroborated by the testimony of

1. Based on the range of dates contained in the indictment, P.E. may have been either six or seven years old and A.E. may have been seven or eight years old at the time of the abuse. For purposes of continuity, we will refer to P.E. as seven and A.E. as eight. -2- Clermont CA2016-07-052

the social worker, A.E. stated that Stanforth had lifted her shirt to look at her boobs and

pulled down her pants to look at her "thing" and that he had shown her his "thing." An

anatomical drawing confirmed that A.E. described her vagina as her "thing" and Stanforth's

"thing" as his penis. In her separate interview, P.E. stated that Stanforth had touched her

"thing" and had made her touch his "thing." Again, P.E. confirmed the meaning of "thing."

{¶ 8} The Clermont County Sheriff's Office assigned an investigator to the case and

Mother was asked to speak with Stanforth about the allegations while wearing a hidden

recording device. Mother spoke with Stanforth on two occasions in a nonconfrontational

manner, while acting as a concerned parent trying to understand the allegations. Mother did

not disclose that she had spoken with law enforcement. During the conversations, Stanforth

denied any wrongdoing, but offered strange and sometimes conflicting accounts. For

example, Stanforth initially denied any inappropriate conduct, but later admitted that the

children had seen him "peeing" in the woods. Later, Stanforth detailed an account where

A.E. had allegedly gotten injured while riding a four-wheeler and she had pulled her pants

and underwear down to inspect an injury. During all of the recorded conversations, Stanforth

denied the allegations as presented to him, but vacillated in some responses stating that he

would "make sure nothing happens again" and ensuring that he would never be with the

children alone. Several times, Stanforth expressed concern that his wife was "going to shit"

or "kill him" if she learned about the accusations.

{¶ 9} P.E. testified at trial and identified Stanforth as the perpetrator. P.E. explained

that she would hang out with Stanforth and ride four-wheelers at his house. P.E. detailed the

sexual incidents as occurring when she was alone with Stanforth in his exercise room.

During the summer of 2014, P.E. testified that Stanforth had touched her private parts and he

had her touch his private parts. P.E. stated that this had occurred on more than one

occasion and Stanforth had told P.E. not to tell anyone.

-3- Clermont CA2016-07-052

{¶ 10} A.E. also testified at trial and detailed the sexual incident occurring during the

summer of 2014. A.E., like her sister, stated that she would go over to Stanforth's house and

stay the night. Stanforth would go fishing with her and give her money and candy. Finally,

A.E. detailed the encounter with Stanforth and testified that Stanforth had shown her his

private and told her not to tell anyone.

{¶ 11} The final witness for the state was A.L. who was identified as a former

Stanforth victim brought to testify as to past sexual abuse relevant to show plan, scheme, or

absence of mistake. A.L. corroborated the grooming account and identified Stanforth's

scheme for engaging in sexual behavior with minor children. A.L. testified that when she was

12 years old, A.L. had befriended her by taking her out for fun activities like fishing and four-

wheeling. Eventually, Stanforth got A.L. alone and would begin the abuse. A.L. testified that

Stanforth would pull down her pants and touch her vagina and would pull down his pants and

have her touch his penis. A.L. likewise testified that Stanforth would give her money and

would take her to the store to buy candy. As with the victims in the present case, A.L. stated

that Stanforth told her not to tell anyone.

{¶ 12} The jury found Stanforth guilty of all offenses listed in the indictment. The trial

court imposed a three-year prison sentence for importuning and five-year prison sentences

for each count of gross sexual imposition. The trial court ordered all sentences to be served

consecutively for a total stated prison term of 13 years. Stanforth now appeals the decision

of the trial court, raising five assignments of error for review. For ease of discussion,

Stanforth's assignments of error will be addressed out of order.

{¶ 13} Assignment of Error No. 1:

{¶ 14} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING

EVIDENCE OF "OTHER ACTS" AS SUBSTANTIVE EVIDENCE.

{¶ 15} In his first assignment of error, Stanforth argues the trial court erred and -4- Clermont CA2016-07-052

abused its discretion by admitting other acts evidence through the testimony of A.L. regarding

his alleged prior sexual misconduct directed towards her when she was a 13-year-old child.

Stanforth's argument is without merit.

{¶ 16} A trial court has broad discretion in the admission and exclusion of evidence.

State v. Sanchez-Garza, 12th Dist. Butler No. CA2016-02-036,

. In

turn, a reviewing court should not disturb evidentiary decisions in the absence of an abuse of

discretion that has created material prejudice. State v. Wainscott, 12th Dist. Clermont No.

CA2015-07-056,

. An abuse of discretion is more than an error of law

or judgment, but instead connotes that "the trial court's decision was unreasonable, arbitrary

or unconscionable." State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-

6557, ¶ 8.

{¶ 17} Stanforth contends that A.L.'s testimony constitutes inadmissible other acts

evidence. As previously noted, A.L. testified that in 2000, when she was 12 years old, she

was sexually abused by Stanforth. A.L. explained that Stanforth was a relative of her

mother's ex-husband and would sometimes invite her and other young females over to his

house to fish and ride four-wheelers on his property. Eventually, Stanforth would get her

alone and would touch her vagina and breasts. This conduct occurred in Stanforth's

basement near the exercise equipment and in his truck. Following the instances of sexual

abuse, A.L. testified that Stanforth would give her money for candy and informed her that she

should not tell anyone of the sexual abuse.

{¶ 18} This issue is considered in light of Evid.R. 404(B) and R.C. 2945.59. The Ohio

Supreme Court outlined a three-part test for courts to use when determining the admissibility

of so-called "other acts" evidence. State v. Williams,

,

. First, the court should determine if the evidence is relevant to the determination of the

action. Id. at ¶ 20. Second, the court should determine whether the evidence is presented to -5- Clermont CA2016-07-052

prove the character of the accused to show activity in conformity therewith or whether the

evidence is presented for a legitimate purpose, such as those designated in Evid.R. 404(B).

State v. Ward, 12th Dist. Clermont No. CA2013-07-059,

. Finally, the

court should consider whether the probative value of the evidence is substantially outweighed

by the danger of unfair prejudice. State v. Adams, 9th Dist. Lorain No. 15CA010868, 2017-

Ohio-1178, ¶ 10, quoting

.

{¶ 19} Upon review of the record, we find the trial court did not abuse its discretion by

admitting A.L.'s testimony. First, the other acts evidence in A.L.'s testimony was relevant

because it tended to show Stanforth's motive and plan he exhibited of targeting, mentoring,

grooming, and abusing young females. Such testimony corroborated the testimony of A.E.

and P.E., as well as their mother in describing the relationship and the ultimate instances of

sexual abuse. Mother testified that she had a close relationship with Stanforth and he

accepted the role of a grandfather-figure for the children. The children testified that Stanforth

would fish and ride four-wheelers with them. Ultimately, Stanforth would isolate each child

and engage in sexual misconduct. Thereafter, Stanforth would give the victims money for

candy and would tell them "not to tell anybody."

{¶ 20} Second, the other acts evidence was elicited for a legitimate purpose,

including motive, intent, plan, scheme and absence of mistake. Stanforth's prior instance of

grooming was relevant to his motive, plan, and scheme. Similarly, Stanforth's prior conduct

rebutted his claims and denials captured on recording devices that perhaps the children had

only "caught him peeing" or that he accidentally viewed their vaginas. Furthermore,

immediately following A.L.'s testimony, the trial court gave a limiting instruction that such

evidence was not being offered to prove Stanforth's character. This instruction was also

given to the jury prior to deliberations. Williams, 134 Ohio St.3d at ¶ 23 (courts may presume

the jury followed instructions). -6- Clermont CA2016-07-052

{¶ 21} Third, the probative value of the other acts evidence was not substantially

outweighed by the danger of unfair prejudice. As noted above, the evidence of Stanforth's

prior conduct was relevant to Stanforth's motive and plan. The evidence was also not unduly

prejudicial because the trial court instructed the jury that the other acts evidence could not be

considered to show that Stanforth had acted in conformity with a character trait. The limiting

instruction lessened any potential prejudicial effect of A.L.'s testimony, which was relevant to

the testimony of P.E. and A.E. regarding the sexual abuse, which Stanforth had denied.

{¶ 22} Accordingly, we find the trial court did not abuse its discretion by permiting A.L.

to testify as to "other acts" evidence. Stanforth's first assignment of error is without merit and

hereby overruled.

{¶ 23} Assignment of Error No. 4:

{¶ 24} THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE

THE TESTIMONY PRESENTED WAS INSUFFICIENT FOR A FINDING OF GUILT.

{¶ 25} In his fourth assignment of error, Stanforth argues that his convictions are

based on insufficient evidence and against the manifest weight of the evidence. We

disagree.

{¶ 26} The concepts of sufficiency of the evidence and weight of the evidence are

legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152,

.

Nonetheless, as this court has observed, a finding that a conviction is supported by the

manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones,

12th Dist. Butler No. CA2012-03-049,

. "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." State v. Hart, 12th Dist. Brown

No. CA2011-03-008,

, ¶ 43.

{¶ 27} A manifest weight challenge scrutinizes the proclivity of the greater amount of -7- Clermont CA2016-07-052

credible evidence, offered at a trial, to support one side of the issue over another. State v.

Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶ 14. In assessing whether

a conviction is against the manifest weight of the evidence, a reviewing court examines the

entire record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses, and determines 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. State v. Morgan, 12th Dist. Butler Nos. CA2013-

08-146 and CA2013-08-147,

.

{¶ 28} Gross sexual imposition is defined in R.C. 2907.05, which states:

(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:

***

(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.

The Revised Code defines "sexual contact" 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(B).

{¶ 29} Importuning is defined in R.C. 2907.07 and states:

(A) No person shall solicit a person who is less than thirteen years of age to engage in sexual activity with the offender, whether or not the offender knows the age of such person.

"Sexual activity" includes "sexual contact," which is defined above. R.C. 2907.01(C).

{¶ 30} Based on our review, we find Stanforth's convictions are both supported by

sufficient evidence and are not against the manifest weight of the evidence. The state -8- Clermont CA2016-07-052

presented the testimonies of several witnesses who presented background information as to

the grooming process, including that Stanforth had a seemingly strong bond with the victims

by engaging in fun activities like fishing and four-wheeling. The testimony confirmed the fact

that Stanforth had the opportunity to isolate the 7-and-8-year-old victims.

{¶ 31} The specific conduct charged included two counts of GSI for Stanforth's

conduct with 7-year-old P.E. P.E. testified that in the summer of 2015, Stanforth had

touched her vagina. P.E. also testified that Stanforth had shown her and had her touch his

penis.

{¶ 32} The remaining count, importuning, related to Stanforth's conduct with A.E. In

her testimony, A.E. stated that Stanforth had shown her his penis in the summer of 2015.

{¶ 33} We have thoroughly reviewed the evidence in this case and find the state

presented sufficient evidence to sustain Stanforth's convictions and the jury's verdict was not

against the manifest weight of the evidence. Acting as trier of fact, the jury was in the best

position to resolve factual questions and evaluate witness credibility. The testimony and

evidence introduced at trial establishes a common pattern of grooming and abuse that was

perpetrated against two young victims and a guilty finding on all counts was appropriate.

Accordingly, we find Stanforth's fourth assignment of error is without merit and hereby

overruled.

{¶ 34} Assignment of Error No. 2:

{¶ 35} THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT MERGING

THE CONVICTIONS OF COUNTS 2 AND 3.

{¶ 36} Assignment of Error No. 3:

{¶ 37} PRESENTATION OF TWO IDENTICAL COUNTS TO THE JURY VIOLATED

APPELLANT'S DUE PROCESS AND DOUBLE JEOPARDY RIGHTS.

{¶ 38} Stanforth's second and third assignments of error may be addressed together. -9- Clermont CA2016-07-052

Stanforth claims that the state failed to distinguish specific instances of sexual conduct in its

indictment, bill of particulars, and during trial. In particular, Stanforth argues that Counts 2

and 3 as listed in the jury instructions were identical and confused the jury. This lack of

specificity, according to Stanforth, violated his due process rights and subjected him to

double jeopardy. Stanforth maintains that the two GSI convictions should be merged or

otherwise dismissed as in violation of his constitutional rights. We disagree.

{¶ 39} Stanforth cites Valentine v. Konteh,

(6th Cir. 2005), and State v.

Hemphill, 8th Dist. Cuyahoga No. 85431,

, in support of his argument that

the state's case lacked the requisite level of specificity to sustain his convictions.

{¶ 40} In Valentine, the defendant was charged with 20 counts of child rape and 20

counts of felonious penetration of a minor. The state alleged that each count occurred over a

10-month period. Id. at 629. The indictment mirrored the Revised Code and contained

identical language for each count of child rape and felonious penetration. Id. The bill of

particulars alleged that each offense occurred in the defendant's home. Id. at 634. The Sixth

Circuit granted habeas relief because the indictment and evidence presented at trial "did not

attempt to lay out the factual bases of forty separate incidents that took place." Id. at 632. In

fact, the only evidence presented with regard to the number of sexual encounters between

Valentine and the victim came from the victim who described a typical abusive encounter and

then estimated the number of times that the behavior occurred. Id. at 632-633. The court

found that "[g]iven the way that Valentine was indicted and tried, it would have been

incredibly difficult for the jury to consider each count on its own." Id. at 633.

{¶ 41} In Hemphill, the defendant was convicted of 22 counts each of rape and gross

sexual imposition with sexually violent predator specifications, 7 counts each of rape without

specifications, and 22 counts of kidnapping with sexual motivation specifications. Id. at ¶ 49.

Relying on Valentine, the Eight District held that the state had failed to adequately - 10 - Clermont CA2016-07-052

differentiate these counts and, with three exceptions, failed to subject each count to

individual proof. Id. at ¶ 88, ¶ 112. The court found that the majority of the charges were

based on a "numerical estimate unconnected to individual, distinguishable events." Id. at ¶

88.

{¶ 42} Based on our review, we find that Stanforth's two GSI convictions for the

actions taken against P.E. are not subject to merger. Counts 2 and 3 involved two separate

acts of GSI against P.E. In her testimony, P.E. stated that Stanforth had touched her vagina

and she had touched Stanforth's penis. The two instances of sexual contact are not allied

offenses because Stanforth performed distinct sex acts upon the child victim and had a

different animus for each act. State v. Vancleve, 12th Dist. Clermont No. CA2014-03-024,

.

{¶ 43} Furthermore, Stanforth's two GSI convictions did not violate any due process

rights or subject him to "double jeopardy." The bill of particulars in this case specifically

stated that Count 2 related to the instance in which P.E. touched Stanforth's penis and Count

3 related to Stanforth fondling P.E.'s vagina. P.E.'s testimony separately identified each

instance of sexual contact and the state presented the issue as such. This case in unlike the

situations presented in Valentine and Hemphill where the state presented the evidence in an

"all or nothing" fashion and generically described a sexual act with an estimated number of

times the act occurred. Instead, the state presented evidence tied to each count. This

allowed Stanforth the chance to defend against each count separately and allowed the jury to

contemplate each count separately. As a result, we find that Stanforth's two GSI convictions

are supported by law and do not violate Stanforth's constitutional rights. Therefore,

Stanforth's second and third assignment of error are overruled.

{¶ 44} Assignment of Error No. 5:

{¶ 45} TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ADEQUATELY CROSS- - 11 - Clermont CA2016-07-052

EXAMINING THE WITNESSES.

{¶ 46} In his fifth assignment of error, Stanforth alleges that his trial counsel was

ineffective. We find no merit to Stanforth's argument.

{¶ 47} To establish a claim of ineffective assistance of counsel, the appellant must

show that counsel's actions were outside the wide range of professionally competent

assistance and that he was prejudiced as a result of counsel's actions. State v. Patrick, 12th

Dist. Butler No. CA2015-05-090,

, citing Strickland v. Washington,

,

(1984).

{¶ 48} First, Stanforth argues that his trial counsel may have been unsympathetic to

his defense because this matter involved sexual crimes committed against young female

victims. However, a review of the record shows that Stanforth was zealously represented by

counsel and there is no suggestion, aside from Stanforth's own speculation, that any such

views tainted his counsel's presentation.

{¶ 49} Second, Stanforth argues that his trial counsel was ineffective because he did

not "properly" ask the victims to describe the physical features of his penis. This argument is

also without merit as the record indicates that Stanforth's trial counsel did cross-examine the

victims and asked whether the children could recall any distinctive features of Stanforth's

genitalia. When the young female children stated that they could not remember anything

unusual or any difference in "coloration," Stanforth's trial counsel declined to press further.

The decision to not dwell on such a graphic subject falls within the ambit of trial strategy.

State v. Clarke, 12th Dist. Butler No. CA2015-11-189,

. A decision to

further press the young victims on such a topic very much could have alienated the jury.

Accordingly, we find Stanforth did not receive ineffective assistance of counsel and his fifth

assignment of error is overruled.

- 12 - Clermont CA2016-07-052

{¶ 50} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

- 13 -