[Cite as State v. Young,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-03-047

: OPINION - vs - 3/18/2019 :

DUSTIN M. YOUNG, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2017-04-0695

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

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

HENDRICKSON, J.

{¶ 1} Appellant, Dustin M. Young, appeals from his convictions in the Butler County

Court of Common Pleas for gross sexual imposition and abduction. Young further appeals

the trial court's denial of his motion for leave to file a motion for new trial.

{¶ 2} On April 26, 2017, Young, a police officer employed by a public university's

police department, was indicted on one count of gross sexual imposition in violation of R.C. Butler CA2018-03-047

2907.05(A)(1), a felony of the fourth degree (count one); one count of kidnapping in violation

of R.C. 2905.01(A)(4), a felony of the second degree (count two); and two counts of

abduction in violation of R.C. 2905.02(A)(2), felonies of the third degree (counts three and

four). The charges arose out of three separate incidents occurring during the fall of 2016.

Counts one and two related to an incident in which it was alleged that Young had sexual

contact by means of force or the threat of force with K.K., a female coworker employed as an

emergency dispatcher. Young used his arm to hook K.K. between her legs, pull her down

onto his lap, and while holding K.K. on his lap, rubbed his arm on her vagina and grabbed

one of her breasts with his hand for the purpose of sexual arousal and gratification. Count

three related to a second incident, in which it was alleged that Young abducted K.K. while the

two were at work. Young grabbed K.K. and pushed her back against lockers, thereby placing

K.K. in fear. Finally, with respect to count four, on or about November 14 or 15, 2016, Young

was alleged to have abducted K.K. a second time at work. Young grabbed K.K. in a manner

that caused her to hit her head on a metal book case before pushing her back and pinning

her against some lockers, thereby placing her in fear.

{¶ 3} Young pled not guilty to the charges and, in October 2017, a three-day bench

trial was held. At trial, K.K. testified she and Young began working together more than five

years ago. The two had exchanged their private cellphone numbers so that personal and

job-related text messages could be exchanged. K.K. explained that she and Young had

become friends but, at some point in time, the nature of their relationship changed.

According to K.K., it "got to the point where [Young] wanted more than I did." Young started

sending K.K. "inappropriate" text messages. K.K. did not approach her superiors at work

because she felt she could handle things. However, sometime after May 2016, Young

became more aggressive. On one occasion, Young grabbed K.K.'s buttocks when she

walked by him at work.

-2- Butler CA2018-03-047

{¶ 4} Regarding counts one and two, K.K. testified that on one evening in the fall of

2016, while in the communications center at work, Young grabbed her and pulled her onto

his lap. According to K.K., she went to pick up papers from a printer and Young "put his right

arm between [her] legs, to where his hand was on the back of [her] butt and his arm was up

between [her] legs." Young pulled her to the chair he was sitting on and then, using his left

hand, grabbed her shoulder to spin her around before pulling her down onto his lap. K.K.

stated that Young's arm between her legs was moving and his forearm rubbed her genitalia

in both a back-and-forth and side-to-side motion. His hand that was over her shoulder was

touching her breast and he was biting at and trying to kiss the back of her neck. Young

asked K.K., "When are you going to let me do this to you outside of work?" K.K. told Young

to "let go" before pushing off of him and going back to her own work station.

{¶ 5} A few weeks later, the incident relating to count three occurred. K.K. testified

she was entering the communications room after going to the restroom when Young, who

was standing near some lockers, grabbed her by her shoulders and upper arms, spun her

around, and pushed her up against the lockers. K.K. testified Young tried to kiss her and

again asked her when she was going to allow him to do these things to her outside of work.

Young used his body weight to keep her against the lockers, and K.K. stated she felt

"trapped," "scared," and "mad."

{¶ 6} K.K. then testified about the incident relating to count four, which occurred while

she was working third shift on November 14, 2016. K.K. testified that as she walked into the

communications center after going to the breakroom, Young grabbed her, causing her head

to hit a metal bookshelf. Young then spun her around, pushed her up against the lockers,

and pinned her there using his body weight and holding onto her arms. Young told K.K., "I

know you like to be manhandled," and he again asked her when she was going to let him do

-3- Butler CA2018-03-047

this to her outside of work. K.K. testified she was "really scared" during this event, as she

"didn't know if it was ever going to stop or how bad it might get."

{¶ 7} K.K. explained that no one else was present when the incidents described

above occurred and she did not immediately report Young's conduct. Eventually, K.K. told

her superior about the incidents and she provided him with a written statement on November

22, 2016.

{¶ 8} K.K. also gave a statement to two city of Hamilton police detectives on

November 22, 2016. On cross-examination, K.K. acknowledged that during her interview

Detective Jon Richardson and Detective Mark Nichols asked her whether Young had ever

touched her genitalia or breasts, and she responded "no." However, K.K. explained that she

believed the detectives' question was asked to find out if there were other incidents in

addition to those she had already disclosed to the officers. K.K. further acknowledged that

she told the detectives that Young "never touched [her] inappropriately sexually." She also

admitted that notes describing the offenses to the university's "OEEL" office did not indicate

Young touched her breasts or that when Young's forearm was between her legs, he was

moving it to rub against her genitalia. Finally, on cross-examination, K.K. acknowledged that

on October 29, 2016, she went to a college hockey game and stood next to Young for the

duration of the game. Young had purchased a hockey shirt for her to wear but she denied

wearing it to the game.

{¶ 9} K.K. also testified about the text messages she received from Young. Although

Young had sent her a number of text messages on her personal cell phone, K.K. had not

saved the messages. Rather, she had deleted the messages from Young. However, she

provided her cell phone to law enforcement and they were able to recover some of the text

messages she and Young had exchanged from April 2016 through November 2016. In the

texts sent by Young, he frequently called K.K. "baby" and asked how her day was going. On -4- Butler CA2018-03-047

October 24, 2016, Young sent K.K. a message stating "Your ass is amazing. I want to feel it

again very soon." Then, on November 5, 2016, the following text messages were

exchanged:1

YOUNG (3:54:13 AM): I know baby. It's no big deal but I'm going to steal a big hug and a few of your sexy or two for it. Hehe

K.K. (3:54:58 AM): Your going to take my sexiness!

YOUNG (3:56:02 AM): Lol feel of your sexy ass!! It's hard…. to text and drive.

K.K. (3:57:10 AM): I know

Young (4:00:59 AM): Are you alright with that?

K.K. (4:01:30 AM): Depends on what that means

YOUNG (4:02:44 AM): I thought about pushing you over my desk and getting a really good feel

K.K. (4:03:25 AM): Now that's a bit much

YOUNG (4:04:07 AM): That's just a little bit much?

YOUNG (4:06:35 AM): I will try not to cross the line to much.

K.K. (4:07:48 AM): Again, uh huh

{¶ 10} Detective Richardson testified about his investigation of K.K.'s claims.

Richardson noted that Young was much larger in stature than K.K. He approximated that

Young was 6' 2'' tall and weighed around 250 pounds while K.K. was only "5-ish" feet tall and

weighed between 120 and 130 pounds.

{¶ 11} Richardson explained that Young was interviewed on November 28, 2016. The

1. Testimony from trial demonstrated that the time stamps on the text messages recovered from K.K.'s phone were for "Greenwich Mean Time or GMT or UTC minus zero." To convert the time to eastern standard time, accounting for daylight savings time, four hours had to be subtracted. This meant that the texts set forth in the body of the opinion were sent and received between 11:54 p.m. on November 4, 2015 and 12:07 a.m. on November 5, 2016.

-5- Butler CA2018-03-047

interview was recorded, and the recording was played at trial. During the interview, Young

admitted he had a "friendship" with K.K. but denied that any sexual contact between the two

of them had occurred. Young acknowledged that both he and K.K. sent inappropriate and

flirtatious texts, including K.K. sending him photographs of herself in her underwear and bra,

but he was unable to produce the text messages or photographs as he had deleted them and

had recently gotten a new phone.

{¶ 12} Richardson was cross-examined about his November 22, 2016 interview of K.K.

Richardson testified that K.K. was specifically asked whether Young had ever touched her

breasts or vagina, and K.K. stated that Young never did anything physically inappropriate

with her.

{¶ 13} Detective Walter Schneider, a digital forensic examiner, testified that he

specializes in the recovery of data and extraction of evidence from computer and cellphone

devices. On December 23, 2016, using a "Cellebrite" program, Schneider was able to

conduct an advanced logical extraction of deleted data from K.K.'s cellphone. Schneider

recovered some deleted text messages sent between Young and K.K. However, as

Schneider explained, not all deleted material on K.K.'s phone could be recovered as "[s]ome

things [were] overwritten" by new data after being deleted. Schneider stated he was not able

to recover any data from Snapchat.

{¶ 14} Following Schneider's testimony, Young moved for acquittal pursuant to Crim.R.

29. His motion was denied. Thereafter, he presented testimony from officers he worked with

in the university's police department. Sergeant Andrew Rosenberger testified that he was

aware that Young purchased a hockey shirt for K.K. and that she had worn it to a game held

on October 29, 2016. After the game, K.K., Young, and Rosenburg had returned to the

university's police station. There, K.K. told Rosenberger that the shirt she had on was bought

by Young. Further, that evening, K.K. came into his office and closed the door. K.K. told -6- Butler CA2018-03-047

Rosenberger that she was "just trying to make him jealous" and pointed to an area where

Young had been standing.

{¶ 15} Young also presented testimony from Detective Nichols, who stated that when

K.K. was interviewed on November 22, 2016, she did not provide specific details about her

vagina or breasts being touched when she described the incident where Young pulled her

onto his lap. K.K. did mention that Young reached between her legs and hooked her, which

Nichols "took * * * as a possibility" that he rubbed her vagina, but K.K. herself did not state

that Young rubbed her vagina by moving his arm up and down or back and forth.

{¶ 16} On October 13, 2017, after hearing the foregoing testimony, the trial court

found Young guilty of gross sexual imposition and abduction, as set forth in counts one and

four, and not guilty of kidnapping and abduction, as set forth in counts two and three. The

trial court journalized its verdict on October 18, 2017. The trial court then set the matter for

sentencing.

{¶ 17} On December 13, 2017, prior to Young's sentencing but nearly two months

after the court rendered its verdict, Young filed a motion for leave to file for a new trial based

on an irregularity in the proceedings. Young, now represented by new counsel, indicated that

after trial, on or about December 7 or 8, 2017, his original trial counsel was alerted to the

existence of "new" photographic evidence consisting of a Snapchat photograph of K.K.2 The

photograph contains a banner across it that reads "More room to bend me over here" and

shows K.K. with her top lifted and her bare breasts exposed. Although this photograph is

referred to as "new photographic evidence," Young's original trial counsel acknowledged that

the photograph had been provided to the defense during discovery. However, Young's

2. Young was represented by three attorneys at trial. Following the court's guilty verdict, but before sentencing, Young retained new counsel to handle his motion for leave to file for a new trial. Young's "new counsel" also represents him on appeal.

-7- Butler CA2018-03-047

original trial counsel claimed they were "unaware of it until after judgment" and that Young

had not been informed of the photograph's existence until December 7, 2017.

{¶ 18} In support of his motion for leave to file a motion for new trial, Young submitted

four affidavits, of which three were from his original trial attorneys and one was from his wife.3

In the affidavits from his trial attorneys, Young's attorneys state that the "new photograph had

a date stamp of 7 November 16," that the "new photograph was close in time with a text

message the court relied upon in convicting [Young] for his charged offenses" and the

photograph was "not considered while consulting with [Young] regarding defense theories or

for impeachment purposes." Young's lead trial attorney's affidavit states that upon receiving

the "new photograph," he reached out to the prosecutor, who "indicated the picture was not

new and had been provided in discovery in the phone data dump. * * * Over the weekend, I

reviewed the discovery and found the photograph – which I had not seen before."

{¶ 19} Young's wife's affidavit states that in December 2017, she accessed Young's

Snapchat account and discovered that Young and K.K. were friends on Snapchat. She

further stated that on October 31, 2016 and November 19, 2016, K.K. and Young exchanged

private Snapchat messages with one another. According to Young's wife, based on her

experience with Snapchat, she knew that "Snapchat images disappear after a certain time,

that the time the image will remain visible is represented by a number found at the top of the

image, that a sent image can be saved to the recipient's Snapchat program or screenshotted

by the recipient, and that the sender can include a message with the sent image that is

depicted over the top of the sent image." Attached to Young's wife's affidavit were images of

3. We note that on February 2, 2018, the trial court sealed the copies of the affidavits filed in support of Young's motion for leave to file a motion for new trial. The sealed affidavits were later referenced by the court at Young's sentencing hearing, held February 28, 2018. On February 27, 2019, pursuant to App.R. 9(E), the record on appeal was supplemented to include the affidavits filed under seal. See State v. Young, 12th Dist. Butler No. CA2018-03-047 (Feb. 27, 2019) (Entry Supplementing Record on Appeal).

-8- Butler CA2018-03-047

Young's phone that showed K.K. and Young were friends on Snapchat.

{¶ 20} The state filed a memorandum in opposition to Young's motion for leave to file

for a new trial, arguing that the photograph of K.K. was not "newly discovered" evidence as it

was provided to defense counsel during discovery on May 12, 2017. Furthermore, the state

argued that if the photograph had, in fact, been sent by K.K. to Young, then Young should

have known about the photo before trial and instructed defense counsel to look for it. As the

state argued, "despite [Young] being repeatedly asked to describe flirtatious texts during his

interview with Hamilton Police, * * * he never once indicated that he had seen or been sent

topless pictures by the victim – he stated that the victim would only ever show pictures of

herself in underwear and bra." The state contended that Young's argument that his trial

strategy would have been different as a result of this one photograph was "disingenuous."

{¶ 21} On February 27, 2018, the trial court issued a decision denying Young's motion

for leave to file a motion for new trial. The court found that Young failed to demonstrate by

clear and convincing evidence that he was unavoidably prevented from filing his motion for

new trial as his attorneys were given the photograph prior to trial and he failed to establish

that he received ineffective representation by his trial attorneys.

{¶ 22} After denying Young's motion for leave to file for a new trial, the trial court

sentenced Young to five years of community control. The court also classified Young as a

Tier I sex offender.

{¶ 23} Young timely appealed his conviction and the denial of his motion for leave to

file for a new trial, raising five assignments of error. For ease of discussion, we will address

Young's assignments of error out of order.

{¶ 24} Assignment of Error No. 4:

{¶ 25} THE TRIAL COURT ERRED BY OVERRULING THE MOTION FOR LEAVE TO

FILE FOR A NEW TRIAL. -9- Butler CA2018-03-047

{¶ 26} In his fourth assignment of error, Young argues the trial court erred when it

denied his motion for leave to file for a new trial. Young contends he was unavoidably

prevented from presenting K.K.'s topless snapchat photograph at trial because Young's trial

counsel did not know about the photograph until after trial and the photograph was labeled

"counsel only," thereby preventing Young from having access to it when it was exchanged

during discovery in May 2017.

{¶ 27} Crim.R. 33 provides that a new trial may be granted on a defendant's motion for

any of six causes materially affecting the defendant's substantial rights, including an

"[i]rregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion

by the court, because of which the defendant was prevented from having a fair trial." Crim.R.

33(A)(1). Crim.R. 33(B) sets forth the timing requirements for motions for a new trial and

provides as follows:

Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered, or the decision of the court where a trial by the jury has been waived, unless it is made to appear by clear and convincing evidence proof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided therein.

Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.

(Emphasis added.) Crim.R. 33(B).

- 10 - Butler CA2018-03-047

{¶ 28} Crim.R. 33(B), therefore, contemplates a two-step procedure. First, a

defendant files "a motion for leave to file a delayed motion for new trial supported by

evidence demonstrating that the [defendant] was unavoidably prevented from ascertaining

the ground sought to be asserted by way of motion for new trial within the fourteen days after

the rendering of the verdict." State v. Walden,

(10th Dist. 1984).

Then, if leave is granted upon a finding by the trial court that the defendant was unavoidably

prevented from filing the motion within the 14-day time period, Crim.R. 33(B) provides that

the defendant shall be given seven days to file his motion for new trial.

{¶ 29} In the present case, Young filed his motion for leave to file a motion for new trial

on December 13, 2017, 56 days after the trial court journalized its verdict. As Young's

motion sets forth a claim of irregularity in the proceedings and was filed outside the 14-day

period prescribed by Crim.R. 33(B), he was required to obtain leave of court to file his motion

for new trial. See State v. Farley, 10th Dist. Franklin No. 03AP-555,

.

{¶ 30} When seeking leave to file a motion for new trial, the moving party must

establish by "clear and convincing proof that the defendant was unavoidably prevented from

filing his motion for a new trial." See State v. Thornton, 12th Dist. Clermont No. CA2012-09-

063,

, citing Crim.R. 33(B). A party is unavoidably prevented from filing

a motion for new trial if "'the party had no knowledge of the existence of the ground

supporting the motion for a new trial and could not have learned of the existence of that

ground within the required time in the exercise of reasonable diligence.'"

quoting State v.

Rodriguez-Baron, 7th Dist. Mahoning No. 12-MA-44,

. See also State

v. DeVaughns, 2d Dist. Montgomery No. 27727,

.

{¶ 31} "Clear and convincing proof 'requires more than a mere allegation that a

defendant has been unavoidably prevented from discovering the evidence he seeks to

introduce as support for a new trial.'" State v. Williams, 12th Dist. Butler No. CA2003-01-001, - 11 - Butler CA2018-03-047

, quoting State v. Mathis,

(1st Dist. 1999). "To

meet this burden, the measure or degree of proof [a defendant] must demonstrate is that

'which will produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.'" State v. Watson, 12th Dist. Butler No. CA2016-08-

159,

, quoting Cross v. Ledford,

, 477 (1954).

{¶ 32} An appellate court reviews a trial court's denial of leave to file a delayed motion

for new trial under an abuse of discretion standard. State v. Barnes, 12th Dist. Clermont No.

CA99-06-057,

, *3-4 (Dec. 30, 1999); State v. Clyde, 6th Dist.

Erie No. E-18-016,

. An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary, or

unconscionable. Thornton at ¶ 21, citing State v. Darmond,

, 2013-Ohio-

966, ¶ 34. "A decision is unreasonable when it is 'unsupported by a sound reasoning

process.'" State v. Gearhart, 12th Dist. Warren No. CA2017-12-168,

,

quoting State v. Abdullah, 10th Dist. Franklin No. 07AP-427,

.

{¶ 33} In the present case, Young argued an irregularity in the proceeding, specifically

his trial attorneys' ineffective representation in failing to discover and discuss with him the

topless photo of K.K. that was provided by the state during discovery, denied him of a fair

trial. "Ineffective assistance of trial counsel may be raised as a ground for a new trial under

Crim.R. 33(A)(1) 'irregularity in the proceedings.'" Farley,

. See also

State v. Williams, 11th Dist. Trumbull No. 2013-T-0096,

. Young

claimed he was unavoidably prevented from learning of his attorneys' ineffective

representation within the 14-day timeframe set forth in Crim.R. 33(B) as his counsel did not

learn of the existence of the Snapchat photograph until more than 14 days after trial. Young

further contends that he could not have discovered the photograph himself, as the

photograph was marked "counsel only" when it was turned over during discovery. - 12 - Butler CA2018-03-047

{¶ 34} In denying Young's motion for leave to file for a new trial, the trial court

concluded Young failed to demonstrate he was unavoidably prevented from filing his motion

for new trial within the time allotted by Crim.R. 33(B). The court stated, in relevant part, that

as counsel for Defendant * * * admits that [they] already had this image prior to trial, but failed to use it, Defendant cannot be found to have been unavoidably prevented from filing his motion for a new trial. Nowhere within Defendant's Motion does he explain how he could have been unavoidably delayed from presenting evidence at trial which he already possessed.

The court then went a step further in its analysis and discussed the merits of Young's

ineffective assistance of counsel claim. The court concluded that Young's trial attorneys did

not provide deficient representation and, even if they had, Young could not demonstrate

prejudice. The court stated that if Young had, in fact, been the recipient of K.K.'s topless

Snapchat photograph, he "would have been aware of its existence, been able to discuss this

with counsel, and would have alerted counsel to look for, or ask about, such a picture."

Furthermore, the trial court found that there was not "any relation between the words on the

[banner of the] photograph and the days earlier text exchange." In the court's opinion,

the language of the victim in the text exchange indicated that she did not want to be pushed over and/or have her "butt grabbed." As such, for the Defense to point to a single topless Snapchat photograph, two days later, and with different language across it, and no proof that it was ever sent to anyone, much less the Defendant, as a continuation of that November 5th text conversation, defies reason and logic.

{¶ 35} Having thoroughly reviewed the record, we find that the trial court committed

reversible error in denying Young's motion for leave to file a motion for new trial as the court's

finding that Young "already possessed" the photograph prior to trial is unsupported by a

sound reasoning process. Through his trial attorneys' affidavits, Young provided clear and

convincing proof that he was unavoidably prevented from filing his motion for new trial within

the 14-day time period prescribed by Crim.R. 33(B). Young's trial attorneys admitted they

- 13 - Butler CA2018-03-047

had not discovered the Snapchat photograph when it was disclosed during discovery and,

therefore, had not discussed the photograph with Young prior to trial. As the photograph was

turned over as "counsel only" material, Young was prevented from viewing the photograph as

part of discovery. Crim.R.16(C) specifically prohibits "counsel only" material from being

shown to a defendant. Defense counsel is limited to "orally communicat[ing]" counsel only

material to the defendant. Crim.R. 16(C). Here, Young's three trial attorneys all attested that

because they had not discovered the photograph prior to trial, the photograph was not

communicated or discussed when consulting with Young about defense theories or ways to

impeach K.K.'s testimony.

{¶ 36} Young's attorneys learned of the photograph on December 7 or 8, 2017, which

was more than 50 days after Young's guilty verdict was rendered. Young, therefore, could

not have learned of his trial attorneys' ineffective representation – the alleged irregularity in

proceedings – within the 14-day time period set forth in Crim.R. 33(B). As such, Young's

motion for leave to file for a new trial should have been granted and Young provided with

seven days to file his motion for a new trial.

{¶ 37} We further find that the trial court erred in the present case when it denied

Young's motion for leave to file for a new trial as the court conflated two distinct issues.

Rather than limiting its analysis to the issue of whether Young was unavoidably prevented

from discovering his claim of irregularity in the proceedings due to counsels' alleged

ineffective assistance, the trial court improperly analyzed the merits of Young's right to a new

trial. See, e.g., State v. McConnell,

,

(2d Dist.)

(finding that the "trial court conflate[d] two distinct issues" as the "court's finding goes to the

merits of [defendant's] right to a new trial rather than the threshold issue of whether he was

unavoidably prevented from discovering the evidence on which he relies"); State v. Gaven,

10th Dist. Franklin No. 16AP-645,

(reversing the denial of a motion for - 14 - Butler CA2018-03-047

leave to file for a new trial where the "trial court's analysis improperly 'conflate[d] two distinct

issues' by resolving the motion for leave based on the merits of whether appellant is entitled

to a new trial rather than addressing the threshold issue of whether appellant was

unavoidably prevented from discovering the new evidence").

{¶ 38} The court rejected Young's claim of an irregularity in the proceedings based on

ineffective assistance of counsel without providing Young the opportunity to set forth any

arguments and evidence demonstrating how his trial attorneys' alleged deficient performance

in failing to recognize and use the Snapchat photograph prejudiced his right to a fair trial.

Young's motion for leave is a brief, one-page motion asking for permission to file a motion for

new trial. Because he was seeking leave to file his motion for new trial, Young's motion does

not set forth his ineffective assistance of counsel arguments in any detail. For the trial court

to deny the merits of Young's claim at this stage in the proceedings constitutes reversible

error. See Gaven at ¶ 20. Young should be provided with the opportunity to demonstrate

how knowledge of the photograph's existence and how use of the photograph at trial would

have resulted in a different outcome.4

{¶ 39} Accordingly, we sustain Young's fourth assignment of error, reverse the trial

court's decision denying Young's motion for leave to file a motion for new trial, remand the

matter, and direct the trial court to issue an entry granting Young leave to file his motion for

new trial. In accordance with Crim.R. 33(B), Young's motion for new trial shall be filed within

seven days of the trial court's entry granting leave for the motion. Thereafter, the trial court

4. The state argues that if the Snapchat photograph had been sent by K.K. to Young, then Young would have known about the picture before trial and been able to instruct defense counsel to look for it or question K.K. about it at trial. The state contends Young cannot establish that his counsel was deficient where Young did not inform counsel of the photograph. This argument by the state goes to the merits of Young's motion for new trial; it is not relevant to a determination of whether leave should be granted to file the motion for new trial.

- 15 - Butler CA2018-03-047

shall determine the merits of Young's motion for new trial and may, if it determines it is

necessary, hold a hearing on the motion.

{¶ 40} Assignment of Error No. 5:

{¶ 41} THE TRIAL COURT ERRED BY CONVICTING YOUNG OF GSI.

{¶ 42} In his fifth assignment of error, Young argues that his conviction for gross

sexual imposition is based on insufficient evidence. While our resolution of Young's fourth

assignment of error mandates reversal, we are compelled to address his sufficiency

challenge due to his constitutional protection against double jeopardy. See State v. Lovejoy,

(1997); State v. Tillman, 12th Dist. Butler No. CA2003-09-243,

.

{¶ 43} The Fifth Amendment to the United States Constitution provides that no person

shall "be subject for the same offence to be twice put in jeopardy of life or limb." Similarly,

Article I, Section 10 of the Ohio Constitution provides that "[n]o person shall be twice put in

jeopardy for the same offense." Therefore, the double-jeopardy clauses protect against a

"second prosecution for the same offense after acquittal." Girard v. Giordano, Slip Opinion

No.

. This protection applies to "prevent retrial after an appellate court

determines that the evidence presented at trial was insufficient to convict." Id. at ¶ 10. The

double jeopardy clause prevents the state from having a "'second bite at the apple' and a

chance to present evidence it failed to offer at the first trial."

.5 As the

possibility exists that a new trial may be granted upon our remand of appellant's fourth

assignment of error, we find we must review the evidence offered at Young's trial to

5. In contrast to a reversal based on insufficient evidence, "when an appellate court's reversal is based on 'trial error' – for example, an erroneous admission of evidence – the Double Jeopardy Clause does not bar retrial." Girard v. Giordano, Slip Opinion No.

, citing Lockhart v. Nelson,

,

(1988) and State v. Brewer,

,

, ¶ 18.

- 16 - Butler CA2018-03-047

determine whether sufficient evidence was presented to support his conviction for gross

sexual imposition. In doing so, we note that we consider "all the evidence admitted at trial,

whether improperly admitted or not." State v. B.C.M., 12th Dist. Warren Nos. CA2016-07-059

and CA2016-07-062,

, citing State v. Brewer,

,

, ¶ 25-26. See also State v. Martucci, 9th Dist. Summit No. 28888, 2018-Ohio-

3471, ¶ 13.

{¶ 44} 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.

{¶ 45} Young was convicted of gross sexual imposition in violation of R.C.

2907.05(A)(1), which provides that "[n]o person shall have sexual contact with another, not

the spouse of the offender * * * when * * * [t]he offender purposely compels the other person,

or one of the other persons, to submit by force or threat of force." Sexual contact "means

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

buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually

arousing or gratifying either person." R.C. 2907.01(B).

{¶ 46} Young argues the state failed to prove the sexual arousal or gratification

element of gross sexual imposition. Young claims that the evidence presented by the state - 17 - Butler CA2018-03-047

demonstrates that any contact he may have made with K.K.'s vagina or breast was

"incidental to [his] purpose of forcing her onto his lap for a few seconds." Further, Young

contends the state improperly relied on "salacious texts" sent between Young and K.K. from

November 4, 2016, which was weeks after the lap-pulling incident occurred, to establish the

sexual arousal or gratification element. Young argues that use of these text messages

constituted impermissible "inference stacking" as the trial court "assumed the texts were

accurate to convey a sexual meaning – and inferred again that Young's sexual mindset was

likewise present at the much earlier GSI event."

{¶ 47} "While an essential element of the offense of gross sexual imposition is that the

act is for the 'purpose of sexual arousal or gratification,' there is no requirement that there be

direct testimony regarding sexual arousal or gratification." State v. English, 12th Dist. Butler

No. CA2013-03-048,

. "Whether 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." State v. Gesell, 12th Dist. Butler No. CA2005-08-

367,

. 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,

. "If the trier

of fact determines that the defendant was motivated by desires of sexual arousal or

gratification, and that the contact occurred, then the trier of fact may conclude that the object

of the defendant's motivation was achieved." State v. Pence, 12th Dist. Warren No. CA2012-

05-045,

.

{¶ 48} Contrary to Young's arguments, we find that his conviction for gross sexual

imposition was supported by sufficient evidence as any rational trier of fact could have found

the essential elements of gross sexual imposition proven beyond a reasonable doubt. The

state presented testimony from K.K. that Young, when pulling K.K. into his lap, had his right - 18 - Butler CA2018-03-047

arm between her legs and he was moving his forearm to rub against her genitalia in both a

back-and-forth and side-to-side motion. K.K. further testified that Young's hand was over her

shoulder touching her breast and Young was biting at and trying to kiss the back of her neck.

While doing these things, Young asked K.K., "When are you going to let me do this to you

outside of work?" Given Young's placement of his arm and hand on K.K.'s erogenous zones

and Young's statement at the time of the contact, a rational trier of fact could infer that the

purpose of Young's sexual contact with the victim was for sexual arousal or gratification.

{¶ 49} Furthermore, with respect to the text messages Young exchanged with K.K., we

find that consideration of the text messages did not result in impermissible inference

stacking. Impermissible inferencing stacking occurs when a trier of fact "draw[s] an inference

based entirely upon another inference, unsupported by any additional fact or another

inference from other facts." State v. Braden, 12th Dist. Preble No. CA2013-12-012, 2014-

Ohio-3385, ¶ 12. Here, the trier of fact could look at the text messages presented by the

state to determine the nature of Young's and K.K.'s relationship and to infer Young's touching

was for purposes of sexual arousal or gratification without stacking inferences on top of each

other. In the text messages, Young called K.K. "baby," commented on her sexiness and

physical attributes, and indicated his desire to push her over his desk and "[get] a really good

feel." Using these messages, the trier of fact could infer that at the time Young rubbed K.K.'s

vagina with his forearm and touched her breast with his hand, he was motivated by desires of

sexual arousal or gratification.

{¶ 50} Accordingly, for the reasons stated above, we find that sufficient evidence was

presented to support Young's conviction for gross sexual imposition. Young's fifth

assignment of error is, therefore, overruled.

{¶ 51} Assignment of Error No. 1:

{¶ 52} THE TRIAL COURT ERRED BY EXCLUDING ADMISSIBLE EVIDENCE. - 19 - Butler CA2018-03-047

{¶ 53} Assignment of Error No. 2:

{¶ 54} THE TRIAL COURT ERRED BY ADMITTING INADMISSIBLE EVIDENCE.

{¶ 55} Assignment of Error No. 3:

{¶ 56} THE TRIAL COURT'S CUMULATIVE ERRORS DENIED YOUNG DUE

PROCESS AND A FAIR TRIAL.

{¶ 57} Based on our resolution of Young's fourth assignment of error, we find his first,

second, and third assignments of error are not yet ripe for review and we decline to address

them. See State v. Purk, 9th Dist. Summit No. 28059,

; State v.

Chaffin, 2d Dist. Montgomery No. 24241,

.

{¶ 58} Judgment affirmed in part, reversed in part, and the matter remanded for further

proceedings consistent with this opinion.

RINGLAND and M. POWELL, JJ., concur.

- 20 -