[Cite as State v. Bennett,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-09-138

: OPINION - vs - 9/10/2018 :

DALE E. BENNETT, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT Case No. CRB1601318

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Dale E. Bennett, appeals from his conviction in the Butler

County Area III Court for sexual imposition. For the reasons set forth below, we affirm

appellant's conviction.

{¶ 2} Following an incident that occurred on August 26, 2016, at a restaurant in West

Chester, Ohio, appellant was charged by complaint with one count of sexual imposition in Butler CA2017-09-138

violation of R.C. 2907.06(A)(1), a misdemeanor of the third degree. The complaint alleged

appellant followed the victim, K.D., into Dewey's Pizza. Once inside the restaurant, appellant

touched K.D. on the shoulders while standing behind her before touching K.D.'s clothed

buttocks with his clothed penis. Appellant pled not guilty to the charge and a bench trial was

held on March 9, 2017.

{¶ 3} The state presented testimony from K.D., who testified that on the evening of

August 26, 2016, she visited Dewey's Pizza to pick up a carry-out order. After exiting her

vehicle, K.D. encountered appellant in the parking lot. Appellant was wearing a kilt, which he

compared to K.D.'s skirt. Appellant told K.D., "Mine's prettier than yours, mine's prettier than

yours, mine's prettier than yours." When K.D. went to enter the restaurant, appellant

demanded that she hold the door open for him, telling her "Well, men have equal rights, you

know, too; it's not just all about women." K.D. responded to appellant's peculiar statement by

saying "umm, okay," and holding the door open for him.

{¶ 4} Once inside, K.D. went to the end of the bar to pick up her pizza. Appellant

followed "closely behind" her. K.D. gave her name to the hostess. Appellant, who was

behind K.D., placed his hands on K.D.'s shoulders, massaged her shoulders, and rubbed his

semi-erect genitals on her buttocks for several seconds before walking away and

unsuccessfully attempting to engage a couple in conversation.

{¶ 5} K.D. stated she was "totally shocked" by appellant's actions but had "no doubt"

appellant had rubbed his genitals against her buttocks. K.D. was "100 percent positive"

appellant was not wearing a fanny pack, bag, or sporran around his waist when he was

standing behind her.1 K.D. had observed that appellant was wearing a kilt with a cotton T-

1. A "sporran" is "a large pouch of skin with the hair or fur on that is worn in front of the kilt by Highlanders in full dress and used as a purse." Webster's Third New International Dictionary, 2206 (1993). At trial, appellant described his sporran as a "medium-sized or large-sized chain purse" that he used to store his keys, money, camera, identification, and phone. -2- Butler CA2017-09-138

shirt tucked into it, with "absolutely nothing around his waist."

{¶ 6} K.D. told the hostess what had occurred, and the hostess walked around the

restaurant to try to locate appellant. K.D. realized appellant had not given his name for a

table nor had he picked up a carryout order. K.D. therefore felt appellant had followed her

into the restaurant. The hostess was unable to locate appellant, and K.D. spoke with the

restaurant's manager, who called the police.

{¶ 7} Angela Robbins, an employee of Dewey's Pizza, testified that she was working

on August 26, 2016 when she observed appellant and K.D. enter the restaurant. Robbins

testified she briefly went into the kitchen when appellant and K.D. arrived. When she

returned from the kitchen, she saw K.D. waiting for her order and appellant "leaving very

quickly out the emergency exit." According to Robbins, the door was clearly marked "for

emergency only." Robbins testified that as appellant left through the emergency door, she

noticed he had a fanny pack over his shoulder. Robbins did not notice whether appellant

was wearing the fanny pack when he first arrived but stated that appellant had worn a fanny

pack around his waist on a prior visit to Dewey's Pizza that took place on August 4, 2016.

{¶ 8} West Chester Township Police Officer Steven Seitzman testified he was

dispatched to Dewey's Pizza on August 26, 2016, where he spoke with K.D., Robbins, and

the restaurant's manager. The following evening, Seitzman called appellant to discuss the

incident. This phone call was recorded, and the recording was played at trial.2

{¶ 9} During the phone call, appellant initially denied being in West Chester on

August 26, 2016. Later in the conversation, he admitted he went to Dewey's Pizza, but

2. App.R. 9(A)(1) provides that "[t]he original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases." (Emphasis added.) In the present case, the recording of appellant's phone call with Officer Seitzman was not included in the record on appeal. However, a transcription of the recording was included in the transcript of the trial proceedings and was reviewed by this court in rendering our opinion. -3- Butler CA2017-09-138

stated that "[t]here was no place to sit. And I left. End of story as far as that goes."

Appellant also initially claimed he could not remember if he was wearing a kilt for his visit to

Dewey's Pizza, and he denied having any contact with a female patron at the restaurant. He

then suggested that it was possible someone misconstrued "just a nice hello," and stated that

"if I * * * touched anybody's shoulder or something, and they didn't like it or whatever, I mean

women do a whole lot more to me. I didn't do anything out of the way."

{¶ 10} Eventually appellant admitted to Seitzman that he touched a woman's

shoulders "maybe for a few seconds" as a means of greeting her and saying hello. He also

admitted he was wearing a kilt and stated that the sporran he was wearing with his kilt must

have brushed up against the woman and "she took it the wrong way." Appellant told

Seitzman, "I was just saying hello as I was leaving as far as I know. I just brushed forward * *

* [and] touched someone as I was leaving. No one said anything to me, so I didn't think

nothing more of it." He further stated, "Usually if I do something wrong or out of the way,

especially with a group or a family or a boyfriend or husband or whatever, somebody will turn

around and say something to you. Nobody said anything to me."

{¶ 11} In addition to testifying about his phone call with appellant, Seitzman testified

about his discussion with Robbins and his written report of that discussion. In Seitzman's

written report, he indicated Robbins' told him that appellant was wearing a fanny pack around

his waist on August 26, 2016, not on his shoulder. However, Seitzman testified he might

have been "mistaken" in drafting his report, as Robbins' trial testimony was "very vivid * * *

[and] more in depth than [the] little paragraph, and the two sentences of [his] conversation"

that he included in his report.

{¶ 12} Following the state's presentation of its case-in-chief, appellant moved for

acquittal pursuant to Crim.R. 29. The trial court denied the motion. Appellant's friend, Jim

Marlow, was called as a character witness for appellant. Marlow testified he has known -4- Butler CA2017-09-138

appellant for over 50 years, as appellant began living with Marlow's family when he was 10

years old. Marlow stated he talks with appellant at least once a week and sees appellant

about once a month. Marlow explained that when appellant was 16, appellant was involved

in a very serious car accident that noticeably changed his personality. According to Marlow,

some people avoid appellant as he "gets very excitable" and talks loudly.

{¶ 13} Marlow testified about his opinion of appellant's behavior around woman,

stating that he had never heard appellant say anything inappropriate or do anything

inappropriate to or around women. Rather, Marlow had observed appellant acting

appropriately when appellant was around Marlow's granddaughters and was out on dates

with women.

{¶ 14} Appellant then testified on his own behalf. Appellant discussed the serious car

accident he was in at age 16, stating he "guesses it has affected [him]." He discussed his

love of kilts and noted that he has been wearing them regularly for about ten years.

Appellant stated that whenever he wore a kilt, he also wore a sporran around his waist.

Inside the sporran appellant carried his keys, money, camera, identification, and phone.

{¶ 15} Appellant testified that on August 26, 2016, he went to Dewey's Pizza, a

restaurant he had frequented on a prior occasion. Appellant stated he was dressed in a kilt

and acknowledged that he was not wearing undergarments underneath the kilt. He testified

that he was wearing a sporran around his waist on this occasion and expressly denied that

he had carried the sporran over his shoulder, as Robbins had testified. Appellant stated the

numerous items he was carrying inside his sporran made it "quite heavy" and caused it to

hang down in front of his groin.

{¶ 16} Appellant admitted he had entered the restaurant at the same time as K.D.,

had teased K.D. that his kilt was cuter than her skirt, and had insisted that K.D. hold open the

door as "that's the proper thing to do." Appellant claimed that Dewey's Pizza was too -5- Butler CA2017-09-138

crowded, so he left after a few minutes to go to Bonefish Grill, a nearby restaurant. Appellant

acknowledged he had not told Seitzman about going to Bonefish Grill during their phone call

and stated the reason he did not tell Seitzman was because "[t]hat's very personal."

{¶ 17} Although appellant admitted during his phone call with Seitzman that he had

intentionally touched K.D.'s shoulders, at trial, appellant testified only that he "possibly"

placed his hands on K.D.'s shoulders when he was leaving Dewey's Pizza as a way of

"bracing" himself when trying to "squeeze through" people. Appellant also stated that it was

"possible" his sporran touched K.D.'s buttocks as he was "scooting out sideways" in order to

leave the restaurant. However, appellant expressly denied purposefully massaging K.D.'s

shoulders or rubbing his groin against K.D.'s buttocks, stating he "had no interest." He also

testified that he did not recall leaving the restaurant through an emergency exit and stated

that the reason he initially lied to Seitzman over the phone about having been at Dewey's

Pizza or wearing a kilt on August 26, 2016, was because he "didn't know what the phone call

was about * * * didn't know who it was," and was in a noisy environment having a hard time

hearing the caller.

{¶ 18} Following appellant's testimony, the defense rested, and the trial court found

appellant guilty as charged. Appellant was subsequently sentenced to a suspended 60-day

jail term, placed on probation for one year, designated a Tier I sex offender, and ordered to

pay a $250 fine and court costs.

{¶ 19} Appellant timely appealed his conviction, raising two assignments of error.

{¶ 20} Assignment of Error No. 1:

{¶ 21} THE TRIAL COURT ERRED IN OVERRULING DEFENSE COUNSEL'S

OBJECTION TO TESTIMONY REGARDING [APPELLANT'S] ALLEGED PRIOR

MISCONDUCT.

{¶ 22} In his first assignment of error, appellant argues the trial court erred when it -6- Butler CA2017-09-138

permitted the state to cross-examine a defense witness about a prior, uncharged act of

misconduct allegedly committed by appellant when the court had previously granted

appellant's motion in limine to exclude reference to the incident.

{¶ 23} Prior to trial commencing, appellant filed a motion in limine seeking to exclude

from evidence a prior bad act that occurred at Dewey's Pizza. The state was prepared to

present testimony from Robbins that on August 4, 2016, appellant had approached the bar at

Dewey's Pizza while wearing a kilt, placed his genitals on the bar, and asked her, "Want to

see my kilt?" The trial court granted appellant's motion to exclude testimony about this event.

{¶ 24} At trial, the defense presented testimony from Marlow about appellant's

character for truthfulness. Marlow testified appellant was "very truthful" individual with a good

reputation for honesty. Defense counsel then questioned Marlow about appellant's

interaction and "character for appropriate behavior" around women as follows:

[Defense Counsel]: Now, have you ever seen [appellant] interact with any women, females?

[Marlow]: A couple of times he's had a date out. My wife * * * and I would go out or something, we run into him, and he would be with a date. I don't know very much about his personal life that way, but I have seen him probably with two or three different women in four or five years.

[Defense Counsel]: Okay. Have you seen him interact with your granddaughters for instance?

[Marlow]: Oh, yes, they love him. I mean, [appellant], outside of him being – he can be – it gets a little uncomfortable when he gets close and talks, but I have never seen anything out of [appellant] that would bother me or my grandchildren.

[Defense Counsel]: So, in all of your contacts with [appellant], have you ever seen him act inappropriately or say anything inappropriately to or around women?

[Marlow]: No, I have not.

***

-7- Butler CA2017-09-138

[Defense Counsel]: All right. And lastly, based upon your personal contacts and interactions with [appellant], do you have an opinion regarding his character for appropriate behavior with women?

[Marlow]: I have never seen him do anything inappropriate to women. I have seen him out in his kilts and so forth. It's not my wardrobe, but he did one of those ancestry.com things, and found out he was part Scottish and he ha[s] been doing that ever since. This is him, I guess. But I have never seen him say or do anything to disrupt a woman's opinion of him. * * *

{¶ 25} Thereafter, on cross-examination, after being advised that Marlow had never

seen appellant do anything inappropriate, the prosecutor asked, "Do you think if [appellant]

walked into a bar with his kilt on and walked up to the bar and put his genitals on the bar and

said 'let me show you my kilt,' do you think that would be inappropriate?" Marlow answered,

"I would." Defense counsel then objected to the question, stating "Objection, Your Honor.

That's facts not in evidence." The prosecutor argued that defense counsel had "opened the

door" to cross-examination about specific instances of conduct. The trial court ultimately

overruled the objection, stating "I think it's appropriate engaging the witness and he said he

has not seen him do anything inappropriate. I think as far as this witness' opinion, whether or

not a hypothetical posed to him is inappropriate or not is a fair question. Overruled."

{¶ 26} Appellant challenges the trial court's decision to allow the state to cross-

examine appellant's character witness about a specific instance of appellant's misconduct.

Appellant contends the evidence was not proper under the rules of evidence and "Marlow's

inadmissible opinion testimony as to an uncharged act was prejudicial to the outcome in this

case." Specifically, appellant contends it was prejudicial for the judge, as the sole trier of

fact, to "hear a prominent character witness alter his opinion of the defendant's character

based on an uncharged act, when that opinion was elicited in the form of an impermissible

hypothetical question that speaks directly to a motive or lack of mistake."

{¶ 27} As an initial matter, we note that "[a] trial court has broad discretion in the -8- Butler CA2017-09-138

admission and exclusion of evidence and unless it clearly abused its discretion and appellant

is materially prejudiced thereby, an appellate court should not disturb the decision of the trial

court." State v. Martin, 12th Dist. Butler No. CA2007-01-022,

. An

abuse-of-discretion standard of review is a deferential review. State v. Morris,

,

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

judgment; it implies that the trial court's decision was unreasonable, arbitrary, or

unconscionable. State v. Perkins, 12th Dist. Clinton No. CA2005-01-002,

.

{¶ 28} Evid.R. 404 governs the admissibility of character evidence and it provides in

relevant part as follows:

(A) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, subject to the following exceptions:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable.

(Emphasis added.) Therefore, "[t]he basic rule is that the defendant may, at his option, offer

evidence of his good character as proof that he did not commit the act charged because such

conduct is not in accord with his character. * * * If the accused offers evidence of his good

character, then and only then, can the prosecution offer evidence of the bad character of the

accused." Staff Notes to Evid.R. 404(A)(1); State v. Bozeman, 12th Dist. Butler No. CA2008-

10-248,

, ¶ 41; State v. Kelly, 11th Dist. Portage No. 2010-P-0049, 2012-

Ohio-523, ¶ 40.

{¶ 29} As the Ohio Supreme Court recognized, one of the ways to rebut the testimony

of a character witness is to cross-examine the witness "as to the existence of reports of

-9- Butler CA2017-09-138

particular acts, vices, or associations of the person concerning whom he has testified which

are inconsistent with the reputation attributed to him by the witness – not to establish the

truth of the facts, but to test the credibility of the witness, and to ascertain what weight or

value is to be given his testimony." State v. Elliott,

(1971), paragraph two

of the syllabus, vacated in part on other grounds,

,

(1972). "Such

inconsistent testimony tends to show either that the witness is unfamiliar with the reputation

concerning which he has testified, or that his standards of what constitutes good repute are

unsound." Id.

{¶ 30} Furthermore, Evid.R. 405 sets forth the appropriate methods for proving

character, and provides as follows:

(A) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(B) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of the charge, claim, or defense, proof may also be made of specific instances of his conduct.

(Emphasis added.)

{¶ 31} Pursuant to the rules set forth above, we find that the state's cross-

examination of Marlow was proper. During direct examination, Marlow testified about

appellant's good character, raising the inference that appellant did not commit the crime

charged because such conduct was not in accord with his character "for appropriate behavior

with women." Appellant, therefore, opened the door to allow the prosecution to rebut the

inference that appellant had a character for appropriate behavior with women during its

cross-examination of Marlow. Evid.R. 404(A)(1) and 405(A) permitted the state to inquire

about specific instances of inappropriate conduct. See Bozeman at ¶ 38-58; State v. Posey,

- 10 - Butler CA2017-09-138

9th Dist. Summit No. 20578,

, *3-5 (Dec. 12, 2001); State v.

Mathis, 9th Dist. Summit No. 19036,

, *2-6 (June 30, 1999).

{¶ 32} "[W]hen using specific instances of bad conduct to cross-examine a character

witness, an attorney must have a good faith factual basis for the prior conduct." Id. at *6,

citing State v. Hart,

(10th Dist. 1991). Here, the prosecutor acted in

good faith when referencing appellant's December 4, 2016 conduct at Dewey's Pizza during

his cross-examination of Marlow. The prosecutor discussed the factual predicate for his

belief that the incident took place when the court initially considered appellant's motion in

limine at the start of the trial. Furthermore, as defense counsel never challenged the

prosecutor's good-faith basis for asking about the December 4, 2016 incident, we may

presume the prosecutor had one. See State v. Gillard,

(1988)

("Since the prosecutor's good-faith basis for asking these questions was never challenged,

we presume she had one").

{¶ 33} Appellant contends that the trial court erred when it allowed the state to ask

Marlow about the December 4, 2016 incident through the use of a "hypothetical," as Marlow

was a lay witness and not an expert witness. We find no error in the manner in which the

state cross-examined Marlow about the December 4, 2016 incident. The prosecutor merely

inquired about a specific instance of inappropriate conduct committed by appellant and asked

Marlow his opinion of such conduct. As discussed above, this was appropriate and

authorized by Evid.R. 405(A). See Mathis,

at *2-6.

{¶ 34} Furthermore, contrary to appellant's arguments, we find that appellant was not

prejudiced by the state's cross-examination of Marlow regarding the December 4, 2016

incident. In evaluating appellant's claim of prejudice, it is important to note that appellant was

tried to the bench. The Ohio Supreme Court has recognized that in bench trials, the trial

judge is "presumed to consider only the relevant material and competent evidence in arriving - 11 - Butler CA2017-09-138

at a judgment, unless the contrary affirmatively appears from the record." State v. Eubank,

(1979). See also State v. Flores, 12th Dist. Warren No. CA2014-03-

037,

. We must therefore presume that the trial court considered

testimony relating to the December 4, 2016 incident only for its proper limited purpose. See

State v. Binks, 12th Dist. Butler No. CA2017-08-118,

.

{¶ 35} Accordingly, for the reasons expressed above, we conclude that the trial court

did not abuse its discretion in permitting Marlow to be cross-examined about the December

4, 2016 incident at Dewey's Pizza. Defense counsel's questioning of Marlow opened the

door for the prosecution to rebut the inference that appellate had a character for appropriate

behavior around women in accordance with Evid.R. 404(A)(1) and 405(A). Appellant's first

assignment of error is, therefore, overruled.

{¶ 36} Assignment of Error No. 2:

{¶ 37} THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S RULE 29

MOTION FOR ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN

A CONVICTION UNDER R.C. 2907.06(A)(1); AND, [APPELLANT'S] CONVICTION WAS

CONTRARY TO LAW.

{¶ 38} In his second assignment of error, appellant argues the trial court erred by

denying his Crim.R. 29 motion for acquittal, his conviction for sexual imposition was not

supported by sufficient evidence, and his conviction was against the manifest weight of the

evidence.

{¶ 39} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own

motion, after the evidence on either side is closed, shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or

offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same

standard as that used to review a sufficiency-of-the evidence claim. State v. Mota, 12th Dist. - 12 - Butler CA2017-09-138

Warren No. CA2007-06-082,

.

{¶ 40} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins,

(1997); State v. Grinstead,

,

, ¶ 10 (12th Dist.). When reviewing the sufficiency of

the evidence underlying a criminal conviction, an appellate court examines the evidence in

order to determine whether such evidence, if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026,

, ¶ 9. Therefore, "[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.

{¶ 41} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095,

, ¶ 66. An

appellate court will overturn a conviction due to the manifest weight of the evidence "only in

the exceptional case in which the evidence weighs heavily against the conviction."

citing

State v. Thompkins,

(1997).

{¶ 42} Further, although the legal concepts of sufficiency of the evidence and weight

of the evidence are quantitatively and qualitatively different, "[a] determination that a - 13 - Butler CA2017-09-138

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049,

.

{¶ 43} Appellant was convicted of sexual imposition in violation of R.C. 2907.06(A)(1),

which provides that "[n]o person shall have sexual contact with another, not the spouse of the

offender * * * when * * * [t]he offender knows that the sexual contact is offensive to the other

person, or one of the other persons, or is reckless in that regard." Sexual contact means

"any touching of an erogenous zone of another, including without limitation the thigh,

genitals, buttock, public 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). "In regard to 'sexual arousal'

or 'sexual gratification,' R.C. 2907.01(B) contemplates 'any touching of the described areas

which a reasonable person would perceive as sexually stimulating or gratifying.'" State v.

McCoy, 12th Dist. Butler No. CA2015-05-095,

, quoting State v. Gesell,

12th Dist. Butler No. CA2005-08-367,

.

{¶ 44} While the purpose of sexual arousal or gratification is an element of the

offense of sexual imposition, "there is no requirement that there be direct testimony regarding

sexual arousal or gratification." State v. Curtis, 12th Dist. Butler No. CA2008-01-008, 2009-

Ohio-192, ¶ 52. Rather, "[w]hether the touching was performed for the purpose of sexual

arousal or gratification is a question of fact to be inferred from the type, nature, and

circumstances of the contact." Gesell at ¶ 25. In making this determination, the trier of fact

is "permitted to infer what the defendant's motivation was in making the physical contact with

the victim." State v. Robinson, 12th Dist. Butler No. CA2015-01-013,

.

{¶ 45} After reviewing the record, weighing inferences and examining the credibility of

the witnesses, we find that appellant's conviction for sexual imposition is supported by

sufficient evidence and is not against the manifest weight of the evidence. The state - 14 - Butler CA2017-09-138

presented testimony and evidence proving all the essential elements of the offense beyond a

reasonable doubt.

{¶ 46} Testimony was presented that appellant made peculiar statements to K.D. in

the parking lot of Dewey's Pizza before following her into the restaurant. Once inside,

appellant neither gave his name for a table nor picked up a carryout order. Instead, appellant

stood directly behind K.D., massaged her shoulders, and rubbed his semi-erect genitals

against her buttocks for several seconds before fleeing the restaurant through an emergency

door. At this time, appellant was not wearing undergarments under his kilt. Looking at the

totality of these circumstances, a finder of fact could determine that appellant rubbed his

genitals against K.D.'s buttocks for the purpose of sexually arousing and gratifying himself

and then fled, knowing that the sexual contact was offensive to K.D. Appellant's defense that

the touching was accidental is belied by the fact that he followed K.D. into the restaurant,

admitted he intentionally touched her shoulders as a way of saying a "nice hello," made

sexual contact with her, immediately left out an emergency door, and then gave an ever-

changing statement about the events during his phone call with Officer Seitzman. Appellant

initially denied being at Dewey's Pizza on August 26, 2016, before admitting he had been

there, initially claimed he could not recall whether he wore a kilt to the restaurant before

remembering he had worn a kilt with a sporran, and initially denied making contact with a

female patron at the restaurant before admitting he touched K.D.'s shoulders with his hands

and his stating his sporran must have accidentally brushed up against K.D. as he was

leaving.

{¶ 47} Although appellant claimed at trial that it was his sporran, weighed down by his

personal belongings, that came into contact with K.D.'s buttocks, the trial court heard

testimony from K.D. that she was "100 percent positive" appellant had not been wearing the

sporran around his waist when he was standing behind her. Robbins also testified that

- 15 - Butler CA2017-09-138

appellant was carrying a bag over his shoulder when he went out the restaurant's emergency

door. When there is a conflict in the testimony of witnesses, it is for the trier of fact to

determine the weight and credibility to be given to such evidence. State v. Marcum, 12th

Dist. Butler No. CA2017-05-057,

, citing State v. DeHass,

(1967), paragraph one of the syllabus. "[A] conviction is not against the manifest

weight of the evidence simply because the trier of fact believed the prosecution testimony."

State v. Lunsford, 12th Dist. Brown No. CA2010-10-021,

, ¶ 17. Here, the

trial court clearly believed the state's version of events and found K.D.'s and Robbins'

testimony credible. As the court noted in rendering its guilty verdict,

THE COURT: [T]here's the notion that the defendant says, "Well, I was wearing a sporran the entire time." State's first witness, [K.D.], is adamant that he was not wearing it. I don't really have anything to suggest [that] the State's first witness, a private citizen * * * developed a personal vendetta against somebody that she doesn’t even know for brushing up against her. [That] seems stretched.

And why her recollection is so adamant also is for her to somehow fabricate or even for the State's other witness * * * the other employee of Dewey's is saying that she recalls the sporran around the defendant's shoulder gives credence to the testimony of the State's first witness that it wasn't around his waist. And the prosecutor's proposition that this sporran, if that was what was brushed up against the buttocks of another person, the Court agrees that is certainly not something likely to be mistaken or clearly identified as an erect or semi-erect penis. That doesn't – that doesn't make any sense as far as that is concerned.

***

But quite honestly, the thing that I find the most telling when we weigh the credibility of the defendant versus the accusers in this particular case is the defendant's statement that the contact he would have had with her happened on his way out, and that doesn't make any sense because if he had contact with her on his way out, he would have had to backtrack from the bar to where she was waiting on her to go * * * pizza there at that bar corner, and then back out the other door.

Therefore, given the testimony and evidence before it, the trial court was entitled to discredit

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appellant's testimony that it was his sporran – and not his genitals – that rubbed against

K.D.'s buttocks.

{¶ 48} Accordingly, after viewing the evidence in a light most favorable to the

prosecution and relying on the trial court's credibility determination that K.D.'s testimony was

credible while appellant's testimony was not, we find that appellant's conviction for sexual

imposition was supported by sufficient evidence and was not otherwise rendered against the

manifest weight of the evidence. Appellant's second assignment of error is, therefore,

overruled.

{¶ 49} Judgment affirmed.

S. POWELL, P.J., and PIPER, J., concur.

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