[Cite as State v. Stock,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P.J Plaintiff – Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2017 CA 00199 PAUL STOCK

Defendant – Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2017 CR 0211

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 3, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO JACOB T. WILL Prosecuting Attorney 116 Cleveland Avenue, N.W. Stark County, Ohio 808 Courtyard Centre Canton, Ohio 44702 KRISTINE W. BEARD Assistant Prosecuting Attorney 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017 CA 00199 2

Hoffman, J. {¶1} Appellant Paul Stock, III appeals the judgment entered by the Stark County

Common Pleas Court convicting him of two counts of gross sexual imposition (R.C.

2907.05(A)(4)) and sentencing him to four years incarceration on each count, to be

served consecutively. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant is the maternal grandfather of two boys, born in 2005 and 2008.

The children called Appellant Pap Pap. The boys would often sleep over with their

grandparents, and sometimes would take turns watching television and sleeping in

Appellant’s bed. Appellant and his wife slept in separate bedrooms due to health issues.

{¶3} Unbeknownst to each other, Appellant engaged in touching the penis and

butt of each of the boys while they were in his bed. The older boy knew the touching was

bad and he needed to tell someone. Finally, he asked his younger brother if Appellant

was touching him as well. When the younger boy confirmed Appellant was touching him

in the same manner, the older grandson realized he had to tell his mom.

{¶4} On October 21, 2016, when the boys’ father was out of town and they were

alone with their mother, their mother came out of the shower and found the boys crying.

When she asked what was wrong, they told her Pap Pap was sexually abusing them.

Prior to this time, the younger boy was wetting the bed, and his teacher reported he came

to school crying every day; however, he did not tell his parents what was wrong. She

reported the incident immediately to the abuse hotline.

{¶5} The case was referred to Summit County Department of Jobs and Family

Services for investigation because mother was employed by Stark County Department of

Jobs and Family Services in Stark County. The boys were evaluated at Northeast Ohio Stark County, Case No. 2017 CA 00199 3

Behavioral Health and were examined medically at Akron Children’s Hospital. During

both exams, each boy disclosed Appellant touched his penis and his anus.

{¶6} Appellant was confronted by his daughter, the boys’ aunt, about the

allegations. Appellant claimed the older boy made Appellant touch his penis. Appellant

also told her the boy would walk in when Appellant was in the bathroom, and Appellant

implied there was sexual contact. Appellant denied any touching when he spoke to law

enforcement.

{¶7} Appellant was charged with one count of rape and two counts of gross

sexual imposition. The case proceeded to jury trial in the Stark County Common Pleas

Court. Appellant testified at trial the older boy had initiated touching, but he did not

provide this information to law enforcement, nor did he discuss it with the boy’s parents.

He denied all charges.

{¶8} The jury found Appellant not guilty of the charge of rape, but guilty of both

counts of gross sexual imposition. He was sentenced to four years incarceration on each

count, to be served consecutively, for an aggregate term of eight years incarceration.

{¶9} It is from the September 20, 2017 judgment of conviction and sentence

Appellant prosecutes his appeal, assigning as error:

I. THE DEFENDANT’S CONVICTION FOR TWO COUNTS OF

GROSS SEXUAL IMPOSITION IN VIOLATION OF R.C. 2907.05 WERE

[SIC] AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE. Stark County, Case No. 2017 CA 00199 4

II. APPELLANT WAS DENIED A FAIR TRIAL DUE TO

PROSECUTORIAL MISCONDUCT.

III. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S

MOTION FOR A MISTRIAL.

I.

{¶10} In his first assignment of error, Appellant argues the judgment is against the

manifest weight and sufficiency of the evidence. He argues the State failed to prove the

conduct occurred based on a lack of physical evidence and the lack of credibility of the

State’s witnesses. He further argues the State failed to prove if the conduct did in fact

occur, it was done for the purpose of sexual gratification.

{¶11} 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,

, 387,

,

, quoting State v. Martin,

,

(1983).

{¶12} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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,

,

,

paragraph two of the syllabus (1991). Stark County, Case No. 2017 CA 00199 5

{¶13} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass,

,

(1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger,

,

(1997).

{¶14} Appellant was convicted of two counts of gross sexual imposition in violation

of R.C. 2907.05(A)(4):

(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.

{¶15} Sexual contact is defined by R.C. 2907.01(B) 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.”

{¶16} The mother of the boys testified on October 21, 2016, the boys disclosed to

her Appellant was touching their penises and butts when they spent the night at his house.

She testified prior to the disclosure, the younger boy had been wetting the bed, crying at Stark County, Case No. 2017 CA 00199 6

school, and slipping academically. After the disclosure, these unexplained behaviors

subsided.

{¶17} Both boys testified at trial. The older boy testified when he visited his

grandparents, he sometimes slept in Appellant’s bedroom. When he slept in his

grandfather’s bed, his grandfather would take the boy’s pants off and touch his penis and

his butt. He testified one day when his mom was taking a shower, he asked his younger

brother if Pap Pap touched him, and his brother replied he did. He then knew they had

to tell their mom about the sexual abuse.

{¶18} The younger boy testified his grandfather would reach inside his pants and

touch his private parts, which he referred to as his pee-pee and butt. He testified

sometimes his older brother was in the room, but he could not see because the touching

occurred under the covers.

{¶19} The boys’ aunt testified Appellant told her one time the older boy made him

touch the boy’s crotch. Appellant also told her the boy would walk in when Appellant was

in the bathroom, and Appellant implied there was sexual contact.

{¶20} Carrie Schnirring, a psychological assistant at Northeast Ohio Behavioral

Health, testified the older boy disclosed memories about sexual abuse on multiple

occasions. He told Schnirring on one occasion, Appellant took off his clothes and digitally

penetrated the boy’s anus with his finger. He said on that night he cried himself to sleep

because he realized he really needed to tell someone, but he was afraid. The younger

boy related to her something happened in Appellant’s bedroom which made him scared

and sad. He told Schnirring Appellant started by rubbing his back, then moved to putting

his hands inside the boy’s pants, touching his penis and butt. Stark County, Case No. 2017 CA 00199 7

{¶21} Donna Abbott, a nurse practitioner at Akron Children’s Hospital, took a

medical history from both boys and performed physical exams. The video of each child’s

medical history was played for the jury. The boys stated Appellant had fondled their

penises and buttocks. Although neither boy showed physical signs of abuse, she testified

this was not inconsistent with their history.

{¶22} Based on this testimony, we find the State presented sufficient testimony

which, if believed by the jury, supported the jury’s conclusion the touching occurred.

{¶23} We further find the verdicts finding Appellant engaged in sexual contact with

the boys is not against the manifest weight of the evidence. The jury was in a better

position than this court to judge the credibility of the witnesses. In addition to the boys’

mother, aunt, and the medical professionals, the jury heard the testimony of both boys

and viewed the videos of the boys’ recounting the incidents at Akron Children’s Hospital.

While Appellant notes he was acquitted of the charge of rape, the jury may have

considered the lack of physical findings and the older boy’s failure to disclose anal

penetration in each recounting of the sexual abuse. Although Appellant testified the

touching did not happen as described by the boys and any touching was initiated by the

older boy, he did not relay this explanation to law enforcement when initially questioned,

nor did he discuss the behavior with his daughter and her husband when it allegedly

occurred. Further, he did not discuss the inappropriateness of the alleged behavior with

his grandson. We find the jury did not lose its way in finding the touching occurred.

{¶24} Appellant further argues the State failed to prove any touching was for

purposes of sexual gratification. Stark County, Case No. 2017 CA 00199 8

{¶25} There is no requirement the State present direct testimony regarding sexual

arousal or gratification. State v. Astley,

,

(10th Dist.

Franklin 1987); State v. Cobb,

,

(9th Dist. Lorain

1991); In Re Anderson,

,

(Twelfth Dist. Clermont

1996); State v. Brady, 5th Dist. Stark No. 2000CA00223,

(July 9, 2001).

In the absence of direct testimony regarding sexual arousal or gratification, the trier of

fact may infer the defendant was motivated by desires for sexual arousal or gratification

from the “type, nature and circumstances of the contact, along with the personality of the

defendant.”

{¶26} Both children testified they were touched by Appellant in his bed, with the

lights off, under the covers. Each child felt angry and scared by the touching. Neither

boy related the touching occurred under circumstances which would be normal for

children of their ages. From the circumstances of the offenses, the jury could infer the

touching occurred for purposes of sexual arousal or gratification.

{¶27} We find the judgment is not against the manifest weight or sufficiency of the

evidence. The first assignment of error is overruled.

II.

{¶28} In his second assignment of error, Appellant argues the prosecutor

committed misconduct in closing argument. Appellant argues the following statement

made by the prosecutor in closing argument improperly shifted the burden of proof to the

defense: Stark County, Case No. 2017 CA 00199 9

Was the touching done for the purpose of sexual gratification?

You’ve heard no evidence to the contrary. What this means is that the law

doesn’t want to penalize someone for accidentally doing this. There was

no accident; he purposefully did it. Or, too, for some lawful reason.

Applying medication to a child, not illegal. But there’s no evidence of that.

The Defendant wasn’t trying to help Cameron or put lotion on a body part

or give him a bath. None - - there was no evidence that this was done for

any reason other than the Defendant’s sexual gratification.

{¶29} Tr. (III) 790-91.

{¶30} Appellant did not object to the argument, and therefore we must find plain

error in order to reverse. The Ohio Supreme Court has recently clarified the standard of

review for plain error:

Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

errors or defects affecting substantial rights” notwithstanding an accused's

failure to meet his obligation to bring those errors to the attention of the trial

court. However, the accused bears the burden to demonstrate plain error

on the record, State v. Quarterman,

, 2014–Ohio–4034,

, and must show “an error, i.e., a deviation from a legal

rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.

Barnes,

,

(2002). Stark County, Case No. 2017 CA 00199 10

Even if the error is obvious, it must have affected substantial rights,

and “[w]e have interpreted this aspect of the rule to mean that the trial

court's error must have affected the outcome of the trial.”

We recently

clarified in State v. Rogers,

, 2015–Ohio–2459,

, that the accused is “required to demonstrate a reasonable

probability that the error resulted in prejudice—the same deferential

standard for reviewing ineffective assistance of counsel claims.” (Emphasis

sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez,

,

81–83,

,

(2004).

If the accused shows that the trial court committed plain error

affecting the outcome of the proceeding, an appellate court is not required

to correct it; we have “admonish[ed] courts to notice plain error ‘with the

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.’ ” (Emphasis added.)

, quoting State v. Long,

,

(1978), paragraph three of the syllabus.

{¶31} State v. Thomas,

,

, 2017–Ohio–8011, ¶¶

32–34.

{¶32} The test for prosecutorial misconduct is whether the prosecutor's remarks

and comments were improper and if so, whether those remarks and comments

prejudicially affected the substantial rights of the accused. State v. Lott,

,

(1990), cert. denied,

,

,

Stark County, Case No. 2017 CA 00199 11

(1990). In reviewing allegations of prosecutorial misconduct, we must review the

complained-of conduct in the context of the entire trial. Darden v. Wainwright,

,

,

(1986). Prosecutorial misconduct will not provide a

basis for reversal unless the misconduct can be said to have deprived appellant of a fair

trial based on the entire record.

,

.

{¶33} The prosecutor may comment on the failure of the defendant to present

exculpatory evidence:

It is long-standing precedent that the state may comment upon a

defendant's failure to offer evidence in support of its case. State v.

D'Ambrosio (1993),

,

; State v.

Williams (1986),

, 23 OBR 13, 17,

; State v. Petro (1948),

,

,

; and State v. Champion (1924),

, 289-

290,

. Such comments do not imply that the burden

of proof has shifted to the defense, nor do they necessarily constitute a

penalty on the defendant's exercise of his Fifth Amendment right to remain

*528 silent. A prosecutor may jeopardize the integrity of a trial by

commenting on a criminal defendant's decision not to testify. State v.

Thompson (1987),

,

, citing Griffin v.

California (1965),

,

,

,

. Nevertheless, the prosecutor is not precluded from challenging the

weight of the evidence offered in support of an exculpatory theory presented Stark County, Case No. 2017 CA 00199 12

by the defense. See State v. Watson (1991),

,

. Neither must the state, in order to satisfy its own burden of

proof, disprove every speculative set of possibly exculpatory circumstances

a defendant can suggest, nor refrain from arguing the defendant's failure to

provide evidence to support proffered theories of excuse or innocence.

{¶34} State v. Collins,

,

,

.

{¶35} We disagree with Appellant the above-quoted statement by the prosecutor

improperly shifted the burden of proof. As discussed in the first assignment of error, the

State need not present direct testimony of sexual gratification or arousal; rather, the

purpose of the sexual contact may be inferred from the type, nature, and circumstances

of the contact.

The prosecutor’s comments were fair commentary on the

inference the jury could draw from the contact, as there was no evidence in the record to

suggest the touching occurred for a legitimate reason. Appellant presented a complete

defense: the touching did not occur as testified to by the boys. He never argued the

touching occurred for some reason other than sexual gratification. We find no plain error

in the prosecutor’s comment in closing argument.

{¶36} The second assignment of error is overruled.

III.

{¶37} In his third assignment of error, Appellant argues the trial court erred in

denying his motion for mistrial based on an alleged discovery violation by the State. Stark County, Case No. 2017 CA 00199 13

{¶38} During trial, the mother of the boys testified the boys were in ongoing trauma

based therapy. Appellant moved for mistrial based on the State’s failure to disclose the

medical records from the ongoing counseling sessions in discovery. The trial court

overruled the motion. However, before the end of trial, the State secured the records for

in camera review by the trial court. After reviewing the records, the trial court found, “The

court’s review of those records indicates that there is nothing even remotely exculpatory

or helpful to Defense.” Tr. (III) 764-765.

{¶39} A mistrial should not be ordered in a criminal case merely because some

error or irregularity has intervened. State v. Reynolds,

,

(1988). The granting of a mistrial is necessary only when a fair trial is no longer

possible. State v. Franklin,

,

(1991). When

reviewed by the appellate court, we should examine the climate and conduct of the entire

trial, and reverse the trial court's decision as to whether to grant a mistrial only for a gross

abuse of discretion. State v. Draughn,

,

, 793–

794 (1992).

{¶40} Crim. R. 16(B) provides:

(B) Discovery: Right to Copy or Photograph. Upon receipt of a written

demand for discovery by the defendant, and except as provided in division

(C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide

copies or photographs, or permit counsel for the defendant to copy or

photograph, the following items related to the particular case indictment,

information, or complaint, and which are material to the preparation of a Stark County, Case No. 2017 CA 00199 14

defense, or are intended for use by the prosecuting attorney as evidence at

the trial, or were obtained from or belong to the defendant, within the

possession of, or reasonably available to the state, subject to the provisions

of this rule:

(1) Any written or recorded statement by the defendant or a co-

defendant, including police summaries of such statements, and including

grand jury testimony by either the defendant or co-defendant;

(2) Criminal records of the defendant, a co-defendant, and the record

of prior convictions that could be admissible under Rule 609 of the Ohio

Rules of Evidence of a witness in the state’s case-in-chief, or that it

reasonably anticipates calling as a witness in rebuttal;

(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or

hospital reports, books, papers, documents, photographs, tangible objects,

buildings, or places;

(4) Subject to division (D)(4) and (E) of this rule, results of physical

or mental examinations, experiments or scientific tests;

(5) Any evidence favorable to the defendant and material to guilt or

punishment;

{¶41} Crim. R. 16(J) provides materials which are privileged or confidential are

not subject to disclosure.

{¶42} The State argues the rule does not apply because the counseling records

were not in the possession of the State. However, the rule provides for discovery of Stark County, Case No. 2017 CA 00199 15

materials “within the possession of, or reasonably available to the state.” We find the

records were “reasonably available” to the State pursuant to Crim. R. 16(B). The boys’

mother testified she told the prosecutor they were continuing with counseling. Tr. (II) 387.

Further, the prosecutor was able to obtain the records during the course of a three-day

jury trial.

{¶43} However, Crim. R. 16(J) provides a limitation on discovery of materials

which are confidential. In State v. Brown, 5th Dist. Delaware No. 2005CAA01002, 2005-

Ohio-5639, we found no error in the trial court’s failure to conduct an in camera inspection

of confidential counseling records:

Under certain circumstances, a defendant is entitled to have

confidential records reviewed in camera by the trial court. Pennsylvania v.

Ritchie (1987),

,

,

. In Ritchie,

the United States Supreme Court dealt with the issue of a defendant's right

to discover statements made by a minor victim to a children services

agency. The Ritchie court held that the children services agency was

obligated to turn the records over to the trial court for in camera review to

determine the materiality of such records.

However, the Ritchie court

also held that a defendant may not require the trial court to search through

confidential records “without first establishing a basis for his claim that it

contains material evidence.”

. The Ritchie court, quoting

United States v. Valenzuela-Bernal (1982),

,

,

, held that a defendant “must at least make some Stark County, Case No. 2017 CA 00199 16

plausible showing of how their testimony would have been both material

and favorable to his defense.”

*In State v. Allan (Feb. 2, 1996), 6th Dist. No. L-94-272, the Court

noted that “[t]here exists little Ohio case law which discusses the initial

showing a defendant must make before he is entitled to an in camera review

of confidential records by the trial court. However, this issue has been

decided in several other states. In People v. Stanaway (1994),

,

, the Michigan Supreme Court provides a

synopsis of the approaches taken by several different states in determining

what a defendant must initially show in order to obtain an in camera review

of confidential records. In general, these states have held there must be

some showing that the records do, in fact, contain the alleged information

and there must be some showing that the information is relevant to the

defense. The Stanaway court concluded that a defendant would be entitled

to such in camera inspection if he or she “has a good faith belief, grounded

on some demonstrable fact, that there is a reasonable probability that the

records are likely to contain material information necessary to the defense.”

,

. In Washington v. Kalakosky (1993),

,

, the Washington Supreme Court held

that a defendant “must make a particularized showing that [confidential]

records are likely to contain material relevant to the defense” prior to

requiring the court to conduct an in camera inspection”. Stark County, Case No. 2017 CA 00199 17

The Court in Allan, supra, held “that a defendant is entitled to the trial

court's in camera inspection of children services agency records where the

defendant shows that there is a reasonable probability, grounded on some

demonstrable fact, that the records contain material relevant to the

defense”.

In the case at bar, appellant sought follow-up therapeutic counseling

records of both Lauren and Kimberly. Notably, appellant did not request the

trial court conduct an in camera inspection of the records.

The appellant has not cited any statute which requires these records

to be disclosed. Accordingly, we agree with the court in Allan, supra, that

before the appellant is entitled to have the trial court conduct an in camera

inspection of the counseling records, he is required to demonstrate that

there is a reasonable probability, grounded on some demonstrable fact, that

the records contain material relevant to the defense. Appellant has failed in

this burden. Accordingly, the trial court correctly refused appellant's request

for a release of the counseling records. Further, the trial court was under no

duty to conduct an in camera inspection of the records prior to overruling

appellant's motion to compel.

{¶44} Id. at ¶¶ 68-72.

{¶45} In the instant case, during trial the prosecutor produced the records to the

trial court, and the trial court conducted an in camera inspection. As the counseling

records were confidential, had Appellant known of the existence of the records prior to Stark County, Case No. 2017 CA 00199 18

trial and made a showing of a reasonable probability, grounded on a demonstrable fact,

the records contained material relevant to the defense, he would only have been entitled

to an in camera inspection of the records, which is what he received in the instant case.

The trial court found the records did not contain anything exculpatory to the defense. The

trial court made the counseling records a part of the record for appellate review. We have

reviewed the counseling records and concur with the trial court’s conclusion.

{¶46} The third assignment of error is overruled. The judgment of the Stark

County Common Pleas Court is affirmed.

By: Hoffman, J.

Wise, P.J. and

Delaney, J. concur