[Cite as State v. Wilson,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2017CA00052 JEREMY DAVID WILSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2016CR2121

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 16, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DONOVAN HILL Prosecuting Attorney, 116 Cleveland Ave. North Stark County, Ohio Canton, Ohio 44702

BY: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South – Suite 510 Canton, Ohio 44702 Stark County, Case No. 2017CA00052 2

Hoffman, J.

{¶1} Defendant-appellant Jeremy Wilson appeals his conviction and sentence entered

by the Stark County Court of Common Pleas, on one count of sexual battery, in violation of R.C.

2907.03(A)(5), a felony of the second degree, following a jury trial. Plaintiff-appellee is the state

of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On November 17, 2016, the Stark County Grand Jury secretly indicted Appellant

on the aforementioned charge. The charge arose out of numerous incidents involving Appellant’s

biological daughter, who was less than thirteen years of age, and taking place between October

23, 2005, and December 31, 2013. Appellant appeared for arraignment on December 2, 2016,

and entered a plea of not guilty to the charge.

{¶3} The trial court conducted an Arnold hearing on January 27, 2017. Megan

Dahlheimer, a pediatric nurse practitioner, and Carrie Schnirring, a psychology assistant, testified

to the statements made by the victim during their examination and treatment. The trial court ruled

limited statements made in the course of treatment and diagnosis would be allowed during the

jury trial.

{¶4} The trial court conducted a hearing on March 2, 2017. Following the hearing,

Appellant withdrew his motion to allow the jury to hear evidence of a prior allegation after the

victim testified to the nature of that prior allegation.

{¶5} The matter proceeded to trial on March 6, 2017. The following evidence was

adduced at trial.

{¶6} The victim testified, when she was approximately three years old, the family was

residing in a trailer in Waynesburg, Ohio. Appellant took her into the bedroom he shared with the

victim’s mother and proceeded to touch her vaginal area with his fingers. The victim recalled the

family moved to her aunt’s house in Canton when she was in the third grade. Appellant engaged Stark County, Case No. 2017CA00052 3

in sexual contact with the victim while the family resided in Canton. Appellant continued to abuse

the victim until she was 11 or 11 ½ years old.

{¶7} The sexual contact usually involved Appellant sticking his finger into the victim’s

vagina. When she was small, Appellant would insert one finger into her vagina, but as she

advanced in age, he would use two fingers. Appellant would sometimes lick her vagina.

{¶8} When the victim was nine or ten years old, Appellant took her on an out-of-state

trip in the semi-truck he drove. While it was still light outside, Appellant had the victim take a nap

with him in a bed placed in the back of the truck, and proceeded to have sexual contact with her

vagina.

{¶9} When the victim was approximately 11 ½ years old, the family was living in Paris,

Ohio. The victim had started her menstrual cycle that year. One day, the victim was upset and

crying because her mother would not let her visit a friend. Her mother told her to go into the

bedroom and take a nap with Appellant. Appellant allowed her to play with his cell

phone. Appellant instructed her to pull down her pants, and she complied. Appellant then licked

her vagina. He also pulled up her sports bra and licked her breasts. Appellant asked her if it felt

good, she replied, “No.”

{¶10} Following a fight with the victim’s mother, Appellant left the home for a period of

time. The victim believed she was safe. She typed, “Mom, dad touched me,” in the Note section

of the cell phone she received for Christmas. She handed the phone to her mother to read what

she had written. Her mother promised to take her to the police, but never did. When Appellant

returned home, the victim was upset and scared. Her mother was happy Appellant had

returned. When he was confronted about the victim’s accusations, Appellant denied having done

anything. Appellant stated the victim must have been thinking of someone else.

{¶11} Although Appellant repeatedly told the victim not to tell anyone, she finally confided

in Miss Woody, her dyslexia teacher at Minerva Middle School. Miss Woody brought her to the Stark County, Case No. 2017CA00052 4

school counselor’s office. The school contacted the police and her parents. Her mother asked

her why she told.

{¶12} Stark County Department of Job and Family Services (“SCDJFS”) became

involved in March, 2016. After her mother cancelled appointments at the Children’s Network, Pam

Spencer, a forensic interviewer with SCDJFS, went to the victim’s school to conduct an

emergency interview. Thereafter, the victim was removed from the home and placed with

relatives. She was subsequently placed in a foster home.

{¶13} On April 14, 2016, the victim, who was then 13 years old, was examined by Megan

Dahlheimer, a nurse practitioner at Akron Children’s Hospital. The victim reported to Dahlheimer

Appellant had “molested” her five or six time beginning when she was 2 or 3 years old, and ending

when she was 11 or 11 ½ years old. The victim stated Appellant touched her “privates” with his

fingers and his tongue, and she had experienced pain while it was happening and occasional

bleeding following the incidents. Dahlheimer completed a physical examination of the victim and

reported no abnormal physical findings. Dahlheimer explained she was not surprised by the lack

of physical findings given only 3% of the patients she sees who have reported sexual abuse

actually show physical trauma. Further, Appellant’s physical abuse of the victim stopped

approximately two years before it was reported to someone outside the family. Dahlheimer noted

the victim provided a clear and detailed disclosure. Dahlheimer concluded the victim had been

sexually abused.

{¶14} Carrie Schnirring, a psychology assistant at Northeast Ohio Behavioral Health,

conducted a sexual abuse evaluation. Schnirring met with the victim’s mother in May, 2016, and

began sessions with the victim on June 29, 2016. Schnirring met with her four times. The victim

informed Schnirring Appellant had “molested” her. The victim described the sexual acts

committed on her by Appellant as well as the places the acts occurred. After interviewing the

victim, Schnirring reviewed the notes from the forensic interview and concluded the victim’s

reporting to her was consistent with the forensic interview. Schnirring found no hidden agenda or Stark County, Case No. 2017CA00052 5

secondary motive for the victim’s accusations. Schnirring noted the victim loved Appellant and

did not want him to go to jail, but recognized what he had done to her was very wrong. Schnirring

diagnosed the victim with adjustment disorder with anxiety and depression. When the victim

described the events, she closed her eyes and shook her head “as if she was trying to get those

memories out of her head.” Transcript of Proceedings, Vol. II at 34. She was able to imitate the

sound of Appellant slurping.

{¶15} After the completion of the forensic interview, Detective Von Spiegel interviewed

Appellant. Appellant denied any sexual contact with the victim.

{¶16} At the close of the state’s case, Appellant moved for acquittal pursuant to Crim. R.

29. The trial court denied Appellant’s motion. Thereafter, Appellant rested without calling any

witnesses on his own behalf.

{¶17} After hearing all the evidence and deliberating, the jury found Appellant guilty of

one count of sexual battery. Appellant appeared for sentencing on March 15, 2017. The trial

court imposed a period of incarceration of 5 years. The trial court adjudicated Appellant a Tier III

sexual offender. The trial court memorialized Appellant’s conviction and sentence via Judgment

Entry filed March 24, 2017.

{¶18} It is from his conviction and sentence Appellant appeals, raising as his sole

assignment of error:

THE APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

I

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

both quantitatively and qualitatively different. State v. Thompkins,

, 1997–Ohio– Stark County, Case No. 2017CA00052 6

52,

, paragraph two of the syllabus. The standard of review for a challenge to the

sufficiency of the evidence is set forth in State v. Jenks,

,

(1991)

at paragraph two of the syllabus, in which the Ohio Supreme Court held, “An appellate court's

function when reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.”

{¶20} In determining whether a verdict is against the manifest weight of the evidence,

the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses, and determines

whether in resolving conflicts in 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.’ ” State v.

Thompkins,

,

(1997), quoting State v. Martin,

,

(1983).

{¶21} “The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass (1967),

,

, at

paragraph one of the syllabus. The trier of fact is in the best position to judge the credibility of the

witnesses.

{¶22} Appellant was convicted of one count of sexual battery, in violation of R.C.

2907.03(A)(5), which reads: Stark County, Case No. 2017CA00052 7

(A) No person shall engage in sexual conduct with another, not the spouse

of the offender, when any of the following apply: * * * (5) The offender is the other

person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or

person in loco parentis of the other person.

{¶23} Appellant asserts the state “failed to present sufficient evidence to meet each and

every element of these offenses [sic], and the testimony that was presented was instead

contradictory, biased, and crucially so lacking in credibility and cross-corroboration that the State’s

own witnesses admitted they lacked concrete evidence to support the accusations made by [the

victim].” Brief of Appellant at 3. Appellant also argues the allegations made by the victim at trial

were contradicted by the testimony of Schnirring and Dahlheimer. We disagree.

{¶24} Although there was no physical evidence of abuse, Dahlheimer explained the last

incident of sexual abuse occurred several years prior to her examination of the victim, and the

lack of physical evidence was not uncommon in sexual abuse victims. The victim’s testimony

was consistent with the statements she made to both Dahlheimer and Schnirring. The victim

described how Appellant touched her vagina, licked her vagina, and inserted his fingers into her

vagina. She recalled where she was living at the time of the different incidents as well as in which

room of the home the abuse occurred. She remembered the abuse which took place when she

accompanied Appellant on an out of state trip in the semi-truck he drove. Schnirring compared

the details the victim reported to her with the notes of the forensic examiner, and found the victim

was consistent and included idiosyncratic details each time.

{¶25} The jury was free to accept or reject any and all of the evidence offered by the

parties and assess the witnesses' credibility. “While the jury may take note of the inconsistencies

and resolve or discount them accordingly * * * such inconsistencies do not render defendant's

conviction against the manifest weight or sufficiency of the evidence.” State v. McGregor, 5th Dist.

Ashland No. 15–COA–023, 2016–Ohio–3082,

, ¶ 10, citing State v. Craig, 10th Stark County, Case No. 2017CA00052 8

Dist. Franklin No. 99AP–739,

(Mar. 23, 2000). Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true.

Our review of the

entire record reveals no significant inconsistencies or other conflicts in the State's evidence which

would demonstrate a lack of credibility of the witnesses sufficient to find the jury lost its way to

finding Appellant guilty.

{¶26} Based upon the foregoing, we find the jury's verdict was supported by sufficient

evidence and was not against the manifest weight of the evidence.

{¶27} Appellant's sole assignment of error is overruled.

{¶28} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur