[Cite as State v. Conrad,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2018-01-016

Appellee, : OPINION 12/28/2018 : - vs - :

TYLER M. CONRAD, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2016-11-1707

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

Engel & Martin, LLC, Mary K. Martin, 5181 Natorp Blvd., Suite 210, Mason, Ohio 45040, for appellant

M. POWELL, J.

{¶ 1} Appellant, Tyler Conrad, appeals from his convictions in the Butler County

Court of Common Pleas for sexual imposition and contributing to the unruliness of a child.

For the reasons discussed below, this court affirms Conrad's convictions.

{¶ 2} Conrad was a teacher at a public senior high school. The state alleged that

Conrad – then 26 years old – had an inappropriate relationship with "S.," a 15-year-old Butler CA2018-01-016

female student. The allegations involved several incidences of sexual activity occurring in

and out of school.

{¶ 3} Following a police investigation, Conrad was indicted for two counts of sexual

battery in violation of R.C. 2907.03(A)(7), third-degree felonies (hereinafter the sexual

battery offenses). The sexual battery offenses were based upon two instances where

Conrad allegedly digitally penetrated S. while she was alone with him in his classroom.

Conrad was also indicted with one count of contributing to the unruliness of a child, a

violation of R.C. 2919.24(A)(2) (2016), a first-degree misdemeanor, and sexual imposition,

a violation of R.C. 2907.06(A)(4), a third-degree misdemeanor. These two charges related

to an incident where Conrad secretly met with S. and took her to his friend's home in Ross

Township, Butler County, Ohio (hereinafter "the Ross Twp. offenses"), where he allegedly

rubbed S.'s vagina. Conrad entered not guilty pleas to the charges and the matter

proceeded to a bench trial.

{¶ 4} S. testified that she was a sophomore student in Conrad's history class during

the 2015 - 2016 school year. At Conrad's request, she began to work as his teacher's aide

during a free study hall period. Conrad began to flirt with S. S. testified that Conrad would

sometimes sit beside her and touch her legs or approach her from behind and lay his hands

on her shoulders.

{¶ 5} As the close of the 2015 - 2016 school year approached, Conrad gave S. his

cellular phone number and invited her to text message him "happy birthday" on his birthday.

The two subsequently exchanged numerous text messages and calls over the summer of

2016 and into the next school year. S. did not tell her parents that she was communicating

with Conrad in this manner and only told her friend, O.

{¶ 6} S. alleged that Conrad repeatedly requested that she meet with him out of

school and offered to pick her up in his vehicle. On one occasion, S. and her friend, O,

-2- Butler CA2018-01-016

were having a sleepover when Conrad called. S. put the call on the speaker phone setting.

O. recognized Conrad's voice. Conrad was asking S. if they could meet. S. declined

Conrad's invitation.

{¶ 7} On another occasion toward the end of the 2015 - 2016 school year, Conrad

called S. and asked that she meet him by her neighborhood swimming pool. S. agreed.

Because she believed her parents would not have permitted her to meet with Conrad, S.

lied and told her parents that she was going to meet a friend. S. left her home and met

Conrad at the arranged rendezvous location.

{¶ 8} Conrad drove S. to Conrad's friend's home in Ross Township ("the Ross

home"). They went into the home, sat on the couch, and talked. Eventually, Conrad left

the room, then returned and told S. to "come here." When S. responded, Conrad then

began kissing her, lifted her up, carried her into a bedroom, and laid her down on the bed

where he continued to kiss her. Conrad then proceeded to rub her vagina, initially outside

the clothing, then underneath. When Conrad sensed that S. was uncomfortable, he

stopped and left the room.

{¶ 9} S. returned to the couch. She and Conrad watched television for some time

until S. announced that she should probably return home. Conrad dropped her off at a

shopping center near her home. During her testimony, S. could not recall exactly when this

incident occurred other than during the summer of 2016. O. testified that S. called her and

told her what happened shortly after it occurred and while O. was on vacation in Tennessee

around Memorial Day 2016.

{¶ 10} The state submitted evidence of cellular phone communications between

Conrad and S. from May 6, 2016 to October 9, 2016. During this time, Conrad and S.

exchanged 2,876 text messages and 73 calls. Conrad initiated most of the text messages

and calls. Many of these communications occurred outside of school hours, late at night

-3- Butler CA2018-01-016

and into the early morning hours.

{¶ 11} Conrad and S. continued communicating and interacting with one another into

S.'s junior year. Security camera videotapes capturing the hallway outside of Conrad's

classroom were admitted at trial and depicted S. walking into Conrad's classroom

repeatedly at a time when Conrad was not teaching a class. Comparing the cellular phone

records with the timestamp on the security videotapes indicated that that the two were

exchanging text messages contemporaneously with S. visiting with Conrad in his empty

classroom. S. testified that during one of these visits to Conrad's classroom, Conrad

touched her vagina on the outside of her leggings and on another occasion, he put his hand

inside her spandex shorts and digitally penetrated her vagina.

{¶ 12} S. testified that she was attending a religious youth camp and heard a sermon

which convinced her that what she had been doing with Conrad was wrong and that it had

to stop. On October 9, 2016, she told a religious youth leader about her relationship with

Conrad. The youth leader in turn called child protective services. Police then began an

investigation.

{¶ 13} Police conducted several interviews with S., who was reluctant to cooperate.

In the initial round of interviews, S. denied that any sexual activity took place at the school.

She later admitted that sexual activity occurred at the school, and that digital penetration

had occurred on more than one occasion. S. led police to the Ross home. Coincidentally,

as they drove by the Ross home, Conrad was standing in the driveway.

{¶ 14} Police interviewed Conrad. He admitted a "good relationship" with S. and

conceded that they had been in communication. However, Conrad denied any inappropriate

relationship or that any sexual activity occurred. Police confiscated Conrad's phone and

later downloaded its contents. The content of the text communications between Conrad

and S. had been erased.

-4- Butler CA2018-01-016

{¶ 15} Similarly, at Conrad's direction, S. had erased from her cellular phone all the

text messages exchanged with Conrad. S. explained that Conrad had once observed his

name on her cellular phone and had taken the phone from her and deleted all their

conversations. Conrad warned S. to delete any future communications.

{¶ 16} The state introduced testimony from S.'s mother, who testified concerning the

rules and discipline in S.'s household. The investigating detective testified and

authenticated the videotape of Conrad's police interview, which was subsequently

introduced into evidence. During Conrad's counsel's cross-examination of the investigating

detective, cellular phone records suggesting that Conrad was in Florida around Memorial

Day 2016 were identified and later admitted as evidence.

{¶ 17} At the close of the state's evidence, Conrad moved for acquittal pursuant to

Crim.R. 29. The court granted the motion with respect to one of the sexual battery counts,

as S. had not testified that penetration occurred on one of the two alleged incidents in

Conrad's classroom.

{¶ 18} During his defense case, Conrad presented the testimony of his friend who

owned the Ross home. The friend denied that Conrad had a key to access his home during

the time frame of the offenses alleged to have occurred there.

{¶ 19} In a written decision, the trial court acquitted Conrad of the remaining sexual

battery count. The court noted the inconsistencies in S.'s trial testimony and her initial

statements to the police where she denied that any sexual activity occurred in Conrad's

classroom and wavered on whether penetration occurred. However, the court found

Conrad guilty of the Ross Twp. offenses, specifically noting that it found that Conrad was

dishonest during his police interview and that O. provided credible corroborating testimony.

{¶ 20} Following the verdict, Conrad moved for a new trial on the basis that the state

knew but failed to disclose a narrower date range for the commission of the Ross Twp.

-5- Butler CA2018-01-016

offenses. Conrad argued that if had he known this narrower date range, i.e., around

Memorial Day 2016, he could have better prepared his alibi defense for trial. Conrad

attached the affidavits of the persons who were in Florida with Conrad around Memorial

Day 2016.

{¶ 21} Conrad appeals, assigning five errors for this court's review.1

{¶ 22} Assignment of Error No. 1:

{¶ 23} APPELLANT WAS DENIED A FAIR TRIAL AND WAS DENIED DUE

PROCESS DUE TO THE STATE'S FAILURE TO PROVIDE A MORE SPECIFIC DATE OF

OFFENSE.

{¶ 24} Conrad argues that the state deprived him of a fair trial when it did not provide

him with a narrowed date range for the Ross Twp. offenses before trial. Conrad contends

that this prejudiced him because he could not prepare his alibi defense.

{¶ 25} The state's original indictments alleged that the Ross Twp. offenses occurred

sometime between May 8, 2016 and August 15, 2016. On the morning of the first day of

the trial, the state moved to amend the indictments to narrow the potential offense dates to

between May 24 and August 1, 2016.

{¶ 26} Following O.'s testimony, in which she testified that S. told her about the

incident around Memorial Day 2016, Conrad's counsel questioned whether the state was

obligated to amend the bill of particulars to further narrow the dates of the Ross Twp.

offenses. The parties and court conferred, and it was agreed that the state would amend

the indictments to narrow the offense dates to between May 26, 2016 and June 2, 2016.

The parties further agreed that Conrad could file a written notice of alibi, which would

provide that Conrad left the state of Ohio for Florida on May 27, 2016 and returned to Ohio

1. Conrad appeals from the verdict only. The motion for a new trial remains unresolved by the trial court pending this appeal. -6- Butler CA2018-01-016

on June 5, 2016.

{¶ 27} During cross-examination of the investigating detective, Conrad introduced

evidence that he was on a Florida vacation on Memorial Day 2016, i.e., May 30, 2016.

Specifically, Conrad introduced Florida vacation photographs that indicated, by digital date-

stamp, that the photographs were taken between May 30, 2016 and June 4, 2016.

{¶ 28} Conrad contends that if the state had had provided him with the narrowed

offense dates prior to trial he could have prepared a stronger alibi defense. Although not

part of the trial record, Conrad references his new trial motion affidavits by persons who

vacationed with Conrad, including the affidavit of Conrad's girlfriend, who averred that she

travelled with Conrad to and from Florida between May 27, 2016 and June 5, 2016.

{¶ 29} "[T]he Ohio Constitution guarantees an accused that the essential facts

constituting the offense for which he is tried will be found in the indictment by the grand

jury." State v. Jackson,

,

. "An indictment meets

constitutional requirements if it 'first, contains the elements of the offense charged and fairly

informs a defendant of the charge against which he must defend, and, second, enables him

to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" State

v. Mielke, 12th Dist. Warren No. CA2012-08-079,

, quoting

.

{¶ 30} The failure to state the date of a crime will not render an indictment invalid or

affect a trial, judgment, or other proceedings where the exact date of the offense is not an

element of the offense which the state needs to prove. State v. Hornsby, 12th Dist.

Clermont No. CA2017-09-047,

, citing State v. Sellards,

(1985); State v. Madden,

(12th Dist. 1984). Neither sexual

imposition nor contributing to the unruliness of a child required the state the prove the exact

date of the offense. Moreover, the filing of an alibi defense "does not alter the rule that in a

-7- Butler CA2018-01-016

criminal case the exact date and time of the offense are immaterial unless the nature of the

offense is such that exactness of time is essential." State v. Sprauer, 12th Dist. Warren No.

CA2005-02-022,

, quoting State v. Dingus,

(4th

Dist. 1970), paragraph five of the syllabus.

{¶ 31} Upon review, this court does not find that the state denied Conrad a fair trial

or that he suffered prejudice as result the time frame for the Ross Twp. offenses alleged in

the indictment or bill of particulars at the commencement of his trial. At Conrad's request,

the indictment was amended after O.'s trial testimony. The amended time frame was within

the original date range alleged in the indictment, thus the amendment did not present an

entirely new time frame. Consequently, Conrad was aware that he could present an alibi

defense for a portion of the original time frame.

{¶ 32} In addition, the record indicates that the state provided Conrad with O.'s video-

recorded police interview wherein she stated that S. called her and told her about the

incident at approximately the beginning of June 2016. Thus, Conrad had additional notice

that the alleged offenses occurred around the time when he was out of the state.

{¶ 33} Nonetheless, Conrad presented his alibi defense at trial via the cellular phone

records introduced into evidence. The trial court obviously considered Conrad's alibi

defense, finding in its written decision that the phone records established that Conrad was

in Florida between May 30 and June 4, 2016. The court also noted that Conrad's cellular

phone record displayed numerous communications between Conrad and S. on May 26 and

May 27, 2016, which abruptly ended thereafter and did not resume until June 2. Based

upon the foregoing, the court found that it was reasonable to assume that Conrad committed

the Ross Twp. offenses on May 26 or 27 and then left for Florida shortly after.

{¶ 34} Finally, the record does not support the conclusion that Conrad could have

presented a "stronger" alibi defense had he been given the narrower date range at an earlier

-8- Butler CA2018-01-016

time. The affidavit of Conrad's girlfriend only avers that she travelled with him beginning on

May 27. Thus, the affidavit would not preclude the court from finding that Conrad committed

the offense either on May 26 or on May 27 before leaving for vacation. Accordingly, this

court finds that Conrad was not deprived of a fair trial and overrules Conrad's first

assignment of error.

{¶ 35} Assignment of Error No. 2:

{¶ 36} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 37} Conrad contends, in the alternative, that if this court finds he was not deprived

of a fair trial for the reasons set forth in the prior assignment of error, that he received

constitutionally deficient performance when his trial counsel did not seek a continuance to

better establish his alibi defense. Conrad argues that he could have secured trial testimony

from the witnesses who provided him with affidavits in his motion for a new trial.

{¶ 38} Counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment. State

v. Hendrix, 12th Dist. Butler No. CA2012-05-109,

. As a result, to

prevail on an ineffective assistance of counsel claim, Conrad must demonstrate (1) his trial

counsel's performance fell below an objective standard of reasonableness, and (2) he was

prejudiced as a result. Strickland v. Washington,

,

(1984); State v. Burns, 12th Dist. Clinton No. CA2013-10-019,

. The

failure to make an adequate showing on either prong is fatal to an ineffective assistance of

counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121,

,

¶ 50.

{¶ 39} For the reasons set forth in the first assignment of error, Conrad cannot

demonstrate prejudice. Conrad's alibi defense was presented at trial and did not establish

his innocence. The additional witnesses, including the girlfriend, did not provide an alibi for

-9- Butler CA2018-01-016

the time that the court found that Conrad committed the Ross Twp. offenses, i.e., either

May 26 or May 27, 2016. This court overrules Conrad's second assignment of error.

{¶ 40} Assignment of Error No. 3:

{¶ 41} THE TRIAL COURT ERRED IN DENYING [THE MOTION] TO MERGE

APPELLANT'S OFFENSES.

{¶ 42} Conrad argues that the court erred in failing to merge the Ross Twp. offenses

for purposes of sentencing because they were allied offenses of similar import. Conrad

argues that the acts of meeting the victim, transporting her to the house, the sexual contact,

and transporting her back to her neighborhood, were a single continuous and uninterrupted

event with one victim resulting in a single harm.

{¶ 43} Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the imposition of

multiple punishments for the same criminal conduct is prohibited. State v. Rodriguez, 12th

Dist. Butler No. CA2015-02-024,

. If any of the following occurs, the

defendant may be convicted and sentenced for multiple offenses: "(1) the offenses are

dissimilar in import or significance — in other words, each offense caused separate,

identifiable harm, (2) the offenses were committed separately, and (3) the offenses were

committed with separate animus or motivation." State v. Ruff,

, 2015-

Ohio-995, ¶ 25. Two or more offenses of dissimilar import exist "when the defendant's

conduct constitutes offenses involving separate victims or if the harm that results from each

offense is separate and identifiable." Id. at ¶ 26.

{¶ 44} "At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. An appellate court

applies a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger

determination. State v. Williams,

,

. "The

defendant bears the burden of establishing his entitlement to the protection provided by

- 10 - Butler CA2018-01-016

R.C. 2941.25 against multiple punishments for a single criminal act." State v. Lewis, 12th

Dist. Clinton No. CA2008-10-045,

, ¶ 14.

{¶ 45} Conrad's sexual imposition conviction was premised on a violation of R.C.

2907.06(A)(4), which provides in pertinent part: "[n]o person shall have sexual contact with

another * * * when * * * [t]he other person * * * is thirteen years of age or older but less than

sixteen years of age * * *."

{¶ 46} Conrad's contributing to the unruliness of a child conviction was based on a

violation of R.C. 2919.24(A)(2) (2016), which provided in relevant part: "[n]o person * * *

shall * * * [a]ct in a way tending to cause a child or a ward of the juvenile court to become

an unruly child * * *." An "unruly child" includes "[a]ny child who does not submit to the

reasonable control of the child's parents * * * by reason of being wayward or habitually

disobedient; * * *" and " * * *[a]ny child who behaves in a manner as to injure or endanger

the child’s own health or morals or the health or morals of others." R.C. 2151.022 (A) and

(C).

{¶ 47} The evidence presented at trial demonstrated that Conrad engaged in a

pattern of grooming S. to engage in a sexual relationship with him. This included his

flirtatious behavior, extensive covert communication, and multiple invitations to meet him

for reasons unrelated to school. The contributing offense involved just such an invitation

where S. secretly agreed to meet Conrad and then lied to her parents, telling them she was

going to meet with a friend. Conrad understood that he was contributing to S.'s unruliness

because he did not pick her up or drop her off at her home, but rather at a location where

S.'s parents would be unaware of their actions.

{¶ 48} Thus, in surreptitiously arranging to meet and transport S. to the Ross home,

Conrad undermined the rules and discipline of S.'s parents, i.e., tended to cause her to not

submit to the reasonable control of her parents by reason of being wayward and to act in a

- 11 - Butler CA2018-01-016

manner injurious to S.'s own health or morals. This harm was dissimilar in import to the

harm resulting from an adult having sexual contact with a child. This court overrules

Conrad's third assignment of error.

{¶ 49} Assignment of Error No 4:

{¶ 50} THE CONVICTIONS IN THIS MATTER WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE.

{¶ 51} Assignment of Error No. 5:

{¶ 52} THE CONVICTIONS IN THIS MATTER WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 53} Conrad argues that the state failed to submit sufficient evidence to support

the Ross Twp. offenses and that those convictions were also against the manifest weight

of the evidence. The concept of legal sufficiency of the evidence refers to whether the

conviction can be supported as a matter of law. State v. Everitt, 12th Dist. Warren No.

CA2002-07-070,

, ¶ 10. In reviewing the sufficiency of the evidence, an

appellate court must 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 reviewing the evidence in a light

most favorable to the prosecution, any rational trier of fact would have found all the essential

elements of the crime proven beyond a reasonable doubt. State v. Jenks,

(1991), paragraph two of the syllabus.

{¶ 54} To determine whether a conviction is against the manifest weight of the

evidence, a 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

- 12 - Butler CA2018-01-016

ordered. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111,

.

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

in extraordinary circumstances when the evidence presented at trial weighs heavily in favor

of acquittal. Id. at ¶ 18.

{¶ 55} With respect to the sexual imposition offense, Conrad contends that there was

no corroborating evidence admitted at trial. Pursuant to R.C. 2907.06(B), "[n]o person shall

be convicted of a violation of [sexual imposition] solely upon the victim's testimony

unsupported by other evidence." The Ohio Supreme Court has examined the corroboration

requirement of R.C. 2907.06(B) and held that the statute "does not mandate proof of the

facts which are the very substance of the crime charged * * *." State v. Economo,

(1996). Further, the Court found that the corroborating evidence necessary to

satisfy R.C. 2907.06(B) need not be independently sufficient to convict the accused, and it

need not go to every essential element of the crime charged.

. Slight circumstances

or evidence that tends to support the victim's testimony is satisfactory.

{¶ 56} Conrad argues that the only corroborative evidence was O.'s testimony, which

was derived from hearsay statements made by S. to O. Upon review, this court finds that

the record contains sufficient corroborating evidence to support the sexual imposition

charge. Conrad engaged in secret communications with S. for over five months, repeatedly

attempting to lure her away with him. O. heard one of these attempts when S. put Conrad

on speaker phone during a sleepover. S. was able to lead police to the Ross home and

police independently verified her description of the exterior and interior floor plan of the

house. S.'s account of the text message and phone calls arranging the meeting to travel to

the Ross home was also verified by the cellular phone records entered into evidence.

Finally, S. reported the alleged offense to O. shortly after it occurred. Consequently, the

record contains corroborating evidence necessary to satisfy the requirement under R.C.

- 13 - Butler CA2018-01-016

2907.06(B).

{¶ 57} Regarding the weight of the evidence, Conrad argues that the court lost its

way in finding S. unreliable on the sexual battery count but credible as to the Ross Twp.

offenses. The trial court, in acquitting Conrad of the sexual battery charge, noted its

concerns with inconsistencies in S.'s statements to police and the possibly suggestive

interviewing method used by the police. For those reasons, the court concluded that the

state had not met its burden of proof with respect to the sexual battery count. However, the

trial court sitting as factfinder is free to believe all, some, or none of the testimony presented.

State v. Erickson, 12th Dist. Warren No. CA2014-10-131,

, ¶ 42. Here, the

court did not have the same concerns with respect to the sexual imposition offense and the

weight of the evidence supports its determination. The trial court is in a better position that

this court to gauge witness credibility and there is nothing in the record that would make

this court question the verdict. As discussed above, there was substantial evidence

corroborating the victim's claims as to the sexual imposition charge.

{¶ 58} With regard to the contributing to the unruliness of a child charge, Conrad

argues that the state failed to put on evidence that S. was being unruly, i.e., that there was

no evidence that she understood she was breaking rules, that she did not lie to her parents,

and that there was no evidence that Conrad knew he was breaking S.'s parents' rules. This

argument is meritless. S.'s mother testified that S. would not have been allowed to spend

time alone, out of school, with an adult male teacher. S. testified that she lied to her parents

to meet with Conrad. Conrad acknowledged the wrongfulness of his conduct by arranging

to meet S. in places that would prevent S.'s parents from learning about their inappropriate

relationship. Conrad's conviction for contributing to the unruliness of a child is supported

by sufficient evidence and the greater weight of the evidence.

{¶ 59} Based on the foregoing, Conrad's convictions for the Ross Twp. offenses

- 14 - Butler CA2018-01-016

were supported sufficient credible evidence and the court did not lose its way in finding

Conrad guilty. This court overrules Conrad's fourth and fifth assignments of error.

{¶ 60} Judgment affirmed.

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

4

- 15 -