[Cite as State v. Wycuff,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA28 : vs. : : DECISION AND SHAWN A. WYCUFF, : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Evan Wagner, Evan N. Wagner at Law, LLC, Columbus, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Heather MJ Carter, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a Circleville Municipal Court judgment of

conviction and entry of sentence. Appellant, Shawn Wycuff, was found guilty by a

jury of one count of sexual imposition, a third-degree misdemeanor in violation of

R.C. 2907.06(A)(1). He was sentenced to sixty days in jail, with thirty days

suspended and the other thirty days were stayed pending appeal. He was also

classified as a Tier I sex offender. On appeal, Wycuff contends 1) that his

conviction is void ab initio because the prosecuting attorney in the matter lacked

statutory authority to try him for the crime charged; and 2) that the trial court Pickaway App. No. 19CA28 2

committed plain error by deferring judgment on his Crim.R. 29 motion made at the

close of the State’s case-in-chief. Because Wycuff has failed to demonstrate the

outcome of the proceedings would have been different if he had been prosecuted

by the city law director instead of the assistant county prosecutor, he has not

established plain error occurred below. Thus, his first assignment of error is

without merit and it is overruled.

{¶2} With respect to Wycuff’s second assignment of error, because

Wycuff’s Crim.R. 29 motion was made at the close of all evidence rather than the

close of the State’s case-in-chief, the trial court was permitted to defer ruling on it

in accordance with Crim.R. 29(B). Additionally, because we have concluded that

Wycuff’s conviction for sexual imposition was supported by sufficient evidence,

we find no merit to his second assignment of error. Accordingly, having found no

merit in the assignments of error raised by Wycuff on appeal, they are both

overruled and the judgment of the trial court is affirmed.

FACTS

{¶3} Shawn Wycuff, Appellant herein, was charged with one count of

sexual imposition, a third-degree misdemeanor in violation of R.C. 2907.06(A)(1),

on February 8, 2019. The complaint was filed in the Circleville Municipal Court.

The complaint alleged that Wycuff touched a minor female identified as A.M. on

her upper thigh, close to her vagina, and then “touched her belly.” A probable Pickaway App. No. 19CA28 3

cause affidavit attached to the complaint averred that A.M. had spent the night at

Wycuff’s residence because she was having visitation with her mother, who lived

with Wycuff.1 The affidavit further averred that A.M.’s mother told her to sleep in

Wycuff’s bed and that Wycuff would sleep on the couch. The affidavit described

an incident that occurred that involved A.M. waking up to find Wycuff “in bed

with her with his hand around her touching her thigh close to her vagina and

rubbing her belly.” The affidavit stated that in response, A.M. “freaked out and

got out of bed and slept on the couch.” It appears that after this incident Wycuff

began communicating with A.M. on Facebook via private message. A.M.’s aunt,

who was her primary custodian, discovered messages between Wycuff and A.M.

that were inappropriate, which led her to make a police report. In particular, in one

of the messages Wycuff told A.M. that he doesn’t let anyone come in his room,

“let alone [his] bed[,]” and that A.M. should feel special. A.M.’s aunt also took

her to Nationwide Children’s Hospital, where an interview and physical

examination took place.

{¶4} It appears from the record that the Circleville Director of Law, Gary

Kenworthy, was initially handling the prosecution of the matter. His name appears

on several praecipes for subpoenas that were issued to various trial witnesses.

1 Although the probable cause affidavit is part of the record for appellate purposes, the affidavit was not introduced as an exhibit at trial and was not before the jury for consideration. Pickaway App. No. 19CA28 4

However, when the jury trial began, Assistant Pickaway County Prosecutors

Heather MJ Carter and Justin Benedict were present on behalf of the State rather

than Mr. Kenworthy. There is no explanation in the record regarding why the

county prosecutor’s office became involved in the case or why Heather Carter

proceeded to try the case rather than the law director for the city. In its appellate

brief, the State represents that the law director’s office requested Ms. Carter’s

presence at the final pretrial hearing “due to her participation in the investigation.”

Thereafter, the law director asked if the county prosecutor’s office would be

willing to handle the case due to their direct involvement in the investigation. The

State further represents that all parties, including defense counsel, agreed to the

arrangement that the county prosecutor’s office would handle the case from that

point forward.

{¶5} The case was tried before a jury and no objection was made to the

assistant county prosecutor’s participation in the trial. The State presented several

trial witnesses, including the victim, the victim’s aunt, the victim’s mother’s

boyfriend’s sister (who the victim had resided with for a short time), and Detective

Daniel Maher from the Circleville Police Department, who is also a special deputy

with the U.S. Marshal Service and task force officer for the Franklin County

Internet Crimes Against Children Task Force. The State also introduced several

exhibits demonstrating Wycuff had been communicating with the victim in the Pickaway App. No. 19CA28 5

form of private Facebook messages after the incident. After the State rested its

case and admitted its exhibits, the defense rested as well without presenting any

witnesses. Thereafter, defense counsel stated she would “like to make a Rule 29

motion” after the jury was dismissed. The trial court heard the motion but stated

that it would reserve decision on the motion pursuant to Crim.R. 29(B). Finally,

closing arguments were made, jury instructions were given, and the matter was

submitted to the jury for deliberation.

{¶10} The jury found Appellant guilty as charged. Defense counsel did not

renew the motion for acquittal and the trial court did not expressly rule on the

motion before imposing sentence and concluding the proceedings. Wycuff

subsequently filed his timely appeal, setting forth two assignments of error for our

review.

ASSIGNMENTS OF ERROR

I. “THE APPELLANT’S CONVICTION IS VOID AB INITIO BECAUSE THE PROSECUTING ATTORNEY IN THE MATTER SUB JUDICE LACKED STATUTORY AUTHORITY TO TRY THE APPELLANT FOR THE CRIME CHARGED.”

II. “THE TRIAL COURT COMMITTED PLAIN ERROR BY DEFERRING JUDGMENT ON THE APPELLANT’S CRIM.R. 29 MOTION AT THE CLOSE OF THE STATE’S CASE-IN-CHIEF.”

ASSIGNMENT OF ERROR I

{¶11} In his first assignment of error, Wycuff contends that his conviction is

void ab initio because the prosecuting attorney lacked statutory authority to try him Pickaway App. No. 19CA28 6

for the crime charged. More specifically, Wycuff argues that pursuant to R.C.

1901.34(A), the Circleville City Director of Law was solely authorized to try this

matter, and as a result he claims his conviction should be vacated. The State

responds by arguing that even if the county prosecutor’s handling of the matter was

erroneous, any error was harmless. Because the argument raised under this

assignment of error presents a question of law, we review this matter de novo. City

of Logan v. Quillen, 4th Dist. Hocking No. 94CA26,

, *8 (Oct.

27, 1995).

{¶12} Wycuff argues that the specific issue to be decided in this case is

“whether a county prosecuting attorney may prosecute a misdemeanor charge in

municipal court.” Wycuff argues that “a county prosecutor trying a misdemeanor

case in municipal court – is more akin to a lack of jurisdiction over the particular

case at bar because the county prosecutor was want of statutory authority to try the

action in the first instance.” Both parties set forth R.C. 1901.34 as relevant to the

determination of this issue, but they acknowledge there is very little case law on

this particular question. Although there are some Attorney General opinions on

this topic, “ ‘Attorney General opinions are not binding on courts; at best, they are

persuasive authority.’ ” State v. Hicks, 4th Dist. Adams No. 11CA933, 2012-Ohio-

3831, ¶ 28, quoting State ex rel. Van Dyke v. Pub. Emps. Retirement Bd.,

,

,

, ¶ 40. Pickaway App. No. 19CA28 7

{¶13} With regard to Wycuff’s jurisdictional analogy, we note that he was

charged and convicted of sexual imposition, a third-degree misdemeanor in

violation of R.C. 2907.06(A)(1), which occurred in the city of Circleville. Subject

matter jurisdiction refers to a court's power to hear and decide a particular case on

its merits. BCL Enterprises, Inc. v. Ohio Dept. of Liquor Control,

,

,

; Morrison v. Steiner,

,

, paragraph one of the syllabus (1972). A judgment rendered by a

court lacking subject matter jurisdiction is void ab initio. Patton v. Diemer,

,

, paragraph three of the syllabus (1988). R.C.

1901.20(A)(1) provides that the municipal court has jurisdiction over

“misdemeanor cases committed within its territory.” Therefore, the Circleville

Municipal Court had subject matter jurisdiction over Wycuff’s case.

Furthermore, the criminal complaint filed against Wycuff was handled by the city

law director until the final pre-trial. Thus, the jurisdiction of the municipal court

was properly invoked and this matter was prosecuted in a normal fashion from the

beginning of the case until just prior to the jury trial, at which time the county

prosecutor’s office began to assist. As such, we reject Wycuff’s argument to the

extent he argues his conviction should be vacated based upon a failure of

jurisdiction. Pickaway App. No. 19CA28 8

{¶14} R.C. 1901.34 governs criminal prosecutions, compensation of

prosecuting officers and agreements with prosecuting attorneys. It provides in

section (A) as follows:

Except as provided in divisions (B) and (D) of this section, the village

solicitor, city director of law, or similar chief legal officer for each

municipal corporation within the territory of a municipal court shall

prosecute all cases brought before the municipal court for criminal

offenses occurring within the municipal corporation for which that

person is the solicitor, director of law, or similar chief legal officer.

Except as provided in division (B) of this section, the village solicitor,

city director of law, or similar chief legal officer of the municipal

corporation in which a municipal court is located shall prosecute all

criminal cases brought before the court arising in the unincorporated

areas within the territory of the municipal court.

R.C. 1901.34(B) provides, in pertinent part, that in certain counties, “county

prosecuting attorneys shall prosecute in municipal court all violations of state law

arising in their respective counties.” The only counties within the Fourth District

Court of Appeals listed in section (B) are Hocking and Jackson counties. Thus,

this section does not apply to Pickaway county. Section (B) also addresses

compensation for county attorneys given the duty of prosecuting violations of state Pickaway App. No. 19CA28 9

law in municipal courts, which is not at issue herein. R.C. 1901.34(D) states that

prosecuting attorneys in counties other than those listed in section (B) may do as

follows:

enter into an agreement with any municipal corporation in the county

in which the prosecuting attorney serves pursuant to which the

prosecuting attorney prosecutes all criminal cases brought before the

municipal court that has territorial jurisdiction over that municipal

corporation for criminal offenses occurring within the municipal

corporation.

Section (D) does not elaborate on what type of agreement would be required in

order for a county prosecuting attorney to prosecute criminal offenses brought in

the municipal court. Thus, based upon a review of R.C. 1901.34 it appears that the

Pickaway County Prosecutor was not statutorily authorized to prosecute the

criminal offense of sexual imposition in the Circleville Municipal Court in the

absence of an agreement to do so, as referenced in R.C. 1901.34(D). See 1994

Ohio Op. Atty. Gen. No. 94-051, syllabus (“A county prosecuting attorney may not

prosecute misdemeanor cases brought before a municipal court, unless the

prosecuting attorney is required to bring such prosecutions pursuant to R.C.

1901.34(B), or the county prosecuting attorney and a municipal corporation have

entered into an agreement pursuant to R.C. 1901.34(D) whereby the county Pickaway App. No. 19CA28 10

prosecuting attorney agrees to prosecute in municipal court criminal cases within

the municipal court’s jurisdiction that arise out of criminal offenses occurring

within the boundaries of that municipal corporation.”).

{¶15} However, this Court previously considered R.C. 1901.34 in City of

Logan v. Quillen, supra. Quillen was convicted in the “Hocking County Municipal

Court” of operating a motor vehicle outside the scope of his court-granted driving

privileges. Id. at *1. Quillen was initially charged with a violation of the city

code, which was later amended to a state law violation. Id. at *4. Quillen argued

on appeal that R.C. 1901.34 mandated that the Hocking County Prosecutor

prosecute all violations of state law and that it was error for the Logan City Law

Director to continue with the prosecution of his case after the charge was amended.

Id. at *8. This Court upheld Quillen’s conviction, based in part upon our

determination that “[t]he nature of R.C. 1901.34 suggests that it is not meant to be

jurisdictional, but rather administrative and directory.” Id. at *9, citing State v.

Eddy, 4th Dist. Washington No. 89CA15 (Mar. 6, 1991). In reaching our decision,

we noted that the State’s argument that “the city and county [had] exchanged

mutual aid to each other on similar matters in the past, and that neither the city nor

county [had] complained about the manner in which this case was prosecuted.” Id.

at *8. We further reasoned that “[t]he issue of which particular attorney prosecutes Pickaway App. No. 19CA28 11

appellant’s case has no direct impact on appellant.” Id. at *9. As such, we found

that any violation of R.C. 1901.34(B) constituted harmless error. Id.

{¶16} Although Quillen is factually distinguishable from the case sub judice

and the legal question presented is not exactly identical, we find the reasoning

contained therein is still persuasive. First, the State here represents that all parties

agreed to the county prosecutor’s involvement in the case during the final pre-trial

hearing and jury trial. Although there is nothing actually in the record to confirm

this, there is likewise an absence of any objection by the defense. Thus, it can be

inferred that the defense made no objection to the county prosecutor’s

participation. Accordingly, we conclude Wycuff waived any error under R.C.

1901.34. See State v. Hooker, 11th Dist. Lake No. 12-103,

, *1

(Sept. 30, 1987) (affirming criminal conviction in municipal court in case

prosecuted by county prosecutor despite lack of evidence that a valid agreement

existed pursuant to R.C. 1901.34(D) where the appellant failed to object at trial).

{¶17} Second, we are mindful that “ ‘[i]t is a well-established rule that “ ‘an

appellate court will not consider any error which counsel for a party complaining

of the trial court's judgment could have called but did not call to the trial court's

attention at a time such error could have been avoided or corrected by the trial

court.’ ” ’ ” State v. Owens,

,

, ¶ 50, quoting State v.

Quarterman,

,

,

, quoting Pickaway App. No. 19CA28 12

State v. Awan,

,

(1986), quoting State v.

Childs,

,

(1968), paragraph three of the syllabus.

Because Wycuff failed to object below, we must limit our consideration of the

arguments raised under this assignment to a plain error review. To constitute plain

error under Crim.R. 52(B), the defendant must demonstrate (1) an error, i.e., a

deviation from a legal rule, (2) that the error constitutes an obvious defect in the

trial proceedings, and (3) that the error must have affected substantial rights, i.e.,

the error must have affected the outcome of the trial. State v. Rogers,

,

,

, citing State v. Barnes,

,

(2002). Moreover, “even if an accused shows that

the trial court committed plain error affecting the outcome of the proceeding, an

appellate court is not required to correct it.” Rogers at ¶ 23. Instead, courts take

notice of plain error with the utmost caution, under exceptional circumstances, and

only to prevent a manifest miscarriage of justice. Rogers at ¶ 23, citing State v.

Long,

,

(1978), paragraph three of the syllabus.

See also State v. Lewis, 4th Dist. Ross No. 14CA3467,

,

, ¶ 9. With these standards in mind, we consider Wycuff’s claim.

{¶18} Here, Appellant was convicted of one count of sexual imposition in

violation of R.C 2907.06(A)(1), which provides as follows: Pickaway App. No. 19CA28 13

(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:

(1) The offender knows that the sexual contact is offensive to the other

person, or one of the other persons, or is reckless in that regard.

R.C. 2907.01(B) defines “sexual contact” 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.”

{¶19} The victim testified that she fell asleep alone in Wycuff’s bed and

awoke to him lying in bed behind her with his hand on her inner thigh, close to her

vagina. She testified that when she awoke and realized what was happening, she

got up and went to the couch in the other room. After the incident occurred,

Wycuff began sending Facebook messages to the victim, one of which stated as

follows: “U no how bad I wanted to kiss u that night but didn’t wanna fill rejected

lime usual.” [sic]. Additional messages sent by Wycuff asked the victim to spend

the night with him and to lie to her aunt about where she would be staying. We

believe the evidence introduced by the State through the victim’s testimony and the

Facebook messages satisfied the elements of the offense charged. As such, we Pickaway App. No. 19CA28 14

cannot conclude that the county prosecutor’s prosecution of the matter, rather than

the city law director, even if it was a technical violation of R.C. 1901.34, changed

the outcome of the proceedings. The sentiment voiced in Quillen also applies

herein: “[t]he issue of which particular attorney prosecutes appellant’s case has no

direct impact on appellant.” Quillen, supra, at *9.

{¶20} Based on the foregoing, we cannot conclude Wycuff has

demonstrated plain error occurred as a result of his prosecution being handled by

the county prosecutor rather than the city law director. Accordingly, we find no

merit to the arguments raised under his first assignment of error and it is overruled.

ASSIGNMENT OF ERROR II

{¶21} In his second assignment of error, Wycuff contends that the trial court

committed plain error by deferring judgment on his Crim.R. 29 motion, which he

contends was made at the close of the State’s case-in-chief. The State argues that

Wycuff’s argument “fails on its face” because the motion was made at the close of

all evidence, not at the close of the State’s case-in-chief, and that Crim.R. 29(B)

permits the trial court to defer ruling on such motion until the end of trial. For the

following reasons, we agree with the State.

{¶22} Crim.R. 29 provides, in pertinent part, as follows:

(A) Motion for Judgment of Acquittal. The court on motion of a

defendant or on its own motion, after the evidence on either side is Pickaway App. No. 19CA28 15

closed, shall order the entry of a judgment of acquittal of one or more

offenses charged in the indictment, information, or complaint, if the

evidence is insufficient to sustain a conviction of such offense or

offenses. The court may not reserve ruling on a motion for judgment

of acquittal made at the close of the state's case.

(B) Reservation of Decision on Motion. If a motion for a judgment of

acquittal is made at the close of all the evidence, the court may reserve

decision on the motion, submit the case to the jury and decide the

motion either before the jury returns a verdict, or after it returns a

verdict of guilty, or after it is discharged without having returned a

verdict.

Thus, while a motion for acquittal that is made at the close of the State’s case-in-

chief must be ruled on immediately, according to the plain language of the statute a

trial court may reserve decision on a motion for acquittal made at the close of all of

the evidence. Crim.R. 29(A) and (B); State v. Canalos, 4th Dist. Athens No. 1442,

.

{¶23} Although Wycuff argues on appeal that his motion for acquittal was

made at the close of the State’s case-in-chief, the trial transcript reveals otherwise.

For instance, the following exchange occurred on the record after the State

presented its last witness: Pickaway App. No. 19CA28 16

MS. CARTER: Your Honor, the State would move to enter exhibits

and thereafter rest.

THE COURT: I currently have those as seven, would that be

correct?

MS. CARTER: Yes, Your Honor.

THE COURT: Very good. Ms. Janes, any – any objection on the

introduction of those seven?

***

MS. JANES: Okay. That’s fine. [after it was agreed Exhibit 7

would not be entered into evidence.]

***

THE COURT: Ms. – Ms. Janes, at this point would you like to call

any witnesses?

MS. JANES: No, Your Honor.

THE COURT: Okay. Very good. That having been done, do we

want to proceed to argument or would you like to take a break over

lunch?

MS. CARTER: Can we just have a quick recess, Your Honor?

MS. JANES: And – Pickaway App. No. 19CA28 17

THE COURT: Okay. We’re gonna take a break at this point for

lunch from 11:30 to, say, 12:30.

MS. CARTER: Oh, I didn’t realize –

THE COURT: Come back at 12:30. Will that work?

MS. CARTER: Yes, that’s fine.

MS. JANES: Your Honor, I would also like to make a Rule 29

motion once the jury’s --

THE COURT: Okay. We’ll do that outside – yeah.

***

THE COURT: Back on the record here. The jury is no longer with

us. At the close of the State’s case. Defendant indicated a desire to

make a motion to Rule 29. Ms. Janes.

Thereafter, counsel for both sides made their arguments regarding the motion. In

response, the trial court stated as follow:

THE COURT: Well, the Court – I will say that I understand the

argument on Rule 29. It’s – its’s a close call. I tell you what I’m going

to do is under 29B, I’m going to reserve a ruling on that motion pending

the decision of the jury. I’ll reserve that under B and take a look at it at

that point. So for that purposes [sic] right at this moment, I’m going to

reserve ruling on that. I have the ability to do that based on the current Pickaway App. No. 19CA28 18

status of the case. So we’ll do that at that point. Thank you very much.

We’ll see you back here at 12:30.

{¶24} Despite the fact that the trial court stated on the record that Wycuff

indicated a desire to make a motion for acquittal at the close of the State’s case, the

trial transcript indicates otherwise. The transcript clearly reveals that the motion

was not made until after defense counsel informed the court she did not wish to

present any witnesses. Thus, the motion was made at the close of all evidence and

the trial court was permitted to reserve ruling on the motion, as expressly stated by

the court. Further, once the jury returned a verdict of guilty, defense counsel did

not renew the motion and trial court did not expressly rule on the motion.

However, pending motions that are not ruled upon by the trial court are deemed

denied. State v. Smith, 1st Dist. Hamilton Nos. C-180439, C-180604, 2019-Ohio-

5350, ¶ 13, citing State v. Guenther, 9th Dist. Lorain No. 06CA008914, 2007-

Ohio-681, ¶ 12 (“We presume by the trial court’s silence that Appellant’s motion

* * * was denied.”). See also Montgomery v. Montgomery, 4th Dist. Scioto Nos.

03CA2923, 03CA2925,

(“ * * * we note that it is well-

settled law that a motion not expressly ruled on is deemed impliedly overruled.”)

(Citations omitted). Thus, we find no error in the trial court’s decision to reserve

judgment on the motion for acquittal pursuant to Crim.R. 29(B), or its subsequent

implied overruling of the motion after the jury rendered its verdict. Pickaway App. No. 19CA28 19

{¶25} However, our analysis does not end here. Wycuff also raises a

challenge to the sufficiency of the evidence within this assignment of error, rather

than raising the argument as a separate assignment of error. In Milton Banking Co.

v. Dulaney, 4th Dist. Jackson No. 11CA1,

, this Court noted

that an appellant’s brief must contain arguments “with respect to each assignment

of error,” in accordance with App.R. 16(A)(7). See also State v. Bloomfield, 4th

Dist. Ross No. 03CA2720,

, citing State v. McCoy, 4th Dist.

Hocking No. 02CA12,

, fn. 3, State v. Nave, 4th Dist. Meigs No.

01CA3,

, fn. 3, Marietta v. Barth, 4th Dist. Washington No.

99CA22,

, fn. 2 (Dec. 22, 1999), and State v. Wyatt, 4th Dist. Scioto

No. 93CA2168,

, *2 (Aug. 30, 1994). We explained that

“[a]lthough appellate courts have the option to address two or more assignments of

error at once, the parties do not.” Milton Banking Co. at fn. 1, citing Powell v.

Vanlandingham, 4th Dist. Washington No. 10CA24,

, ¶ 24 and

Keffer v. Cent. Mut. Ins. Co., 4th Dist. Vinton No. 06CA652,

. We further noted that “App.R. 12(A)(2) permits us to disregard those

assignments of error that are not separately argued.” Milton Banking Co. at fn.1.

However, in both Milton Banking Co. and State v. Bloomfield, we ultimately

decided to consider the assignments of error that were not separately assigned in

the interests of justice. Here, although Wycuff failed to separately assign and Pickaway App. No. 19CA28 20

argue that his conviction was not supported by sufficient evidence, and although

we are therefore permitted to disregard the argument in accordance with App.R.

12(A)(2), in the interests of justice, we will address the argument.

{¶26} We have already determined, under a plain error analysis, that

Wycuff’s conviction for sexual imposition was supported by sufficient evidence.

However, as explained above, plain error review employs a somewhat limited

analysis. A claim of insufficient evidence, however, generally invokes a due

process concern and raises the question whether the evidence is legally sufficient

to support the verdict as a matter of law. State v. Thompkins,

,

(1997). Thus, when reviewing the sufficiency of the

evidence, an appellate court's inquiry primarily focuses upon the adequacy of the

evidence, or whether the evidence, if believed, could reasonably support a finding

of guilt beyond a reasonable doubt. Thompkins, syllabus. The standard of review

is whether, after viewing the probative evidence and inferences reasonably drawn

therefrom in the light most favorable to the prosecution, any rational trier of fact

could have found all the essential elements of the offense beyond a reasonable

doubt. E.g., Jackson v. Virginia,

,

,

(1979); State v. Jenks,

,

, paragraph two of the

syllabus (1991), superseded by constitutional amendment on other grounds as

stated in State v. Smith,

,

(1997). Furthermore, a Pickaway App. No. 19CA28 21

reviewing court is not to assess “whether the state's evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

.

{¶27} As such, when reviewing a sufficiency of the evidence claim, an

appellate court must construe the evidence in a light most favorable to the

prosecution. See State v. Hill,

,

(1996);

State v. Grant,

,

(1993). A reviewing court

will not overturn a conviction on a sufficiency of the evidence claim unless

reasonable minds could not reach the conclusion that the trier of fact did. State v.

Tibbetts,

,

(2001); State v. Treesh,

,

(2001). Here, after our review of the record, we

believe the State presented sufficient evidence to prove the essential elements of

the offense of sexual imposition beyond a reasonable doubt.

{¶28} As set forth above, sexual imposition is governed by R.C.

2907.06(A)(1), which provides as follows:

(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: Pickaway App. No. 19CA28 22

(1) The offender knows that the sexual contact is offensive to the other

person, or one of the other persons, or is reckless in that regard.

Furthermore, R.C. 2907.01(B) defines “sexual contact” 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.” Here, the victim testified that she

awoke to Wycuff lying in bed behind her with his hand on her inner thigh, near her

vagina. The victim testified that upon waking in that situation, she got up out of

the bed and went to the couch. When asked why she didn’t immediately report the

incident to her aunt or to the staff at Nationwide Children’s Hospital, the victim

testified she was embarrassed about what happened.2 We believe the victim’s

testimony at trial demonstrated that she found the contact to be offensive.

Moreover, we conclude the Facebook messages sent by Wycuff to A.M.

sufficiently establish that Wycuff’s actions were for the purpose of his own sexual

arousal or gratification. For instance, in the messages sent by Wycuff he indicated

he really wanted to kiss A.M. on the night in question and he thereafter asked A.M.

to lie to her aunt and come spend the night with him.

2 Although the medical records from Nationwide Children’s Hospital were utilized and referenced during the trial, they were not admitted as exhibits. Thus, they are not part of the appellate record. Pickaway App. No. 19CA28 23

{¶29} Additionally, although not specifically argued by Wycuff, we are

mindful of R.C. 2907.06(B), which provides that “[n]o person shall be convicted of

a violation of this section solely upon the victim’s testimony unsupported by other

evidence.” Thus, the sexual imposition statute has a corroboration requirement.

However, we have explained as follows with respect to the corroboration

requirement:

the corroborating evidence “need not be independently sufficient to

convict the accused.” State v. Economo (1996),

,

,

, syllabus. Rather, even “[s]light

circumstances or evidence which tends to support the victim's

testimony is satisfactory.”

at syllabus. Corroborating evidence is

not an element of the offense, but an ancillary evidential requirement

that the trial court must decide.

.

State v. Franklin, 4th Dist. Highland Nos. 05CA20, 05CA21, 2006-Ohio-

6369, ¶ 23. In Franklin, we determined that the fact that a police report was

made by the victim and her mother on the date in question, coupled with

defense counsel’s stipulation that the victim was at the location in question on

the date in question, sufficiently met the corroboration requirement. Franklin

at ¶ 30. See also State v. Laferty, 4th Dist. Vinton No. 97CA517,

(Apr. 21, 1999) (finding sufficient corroboration where other Pickaway App. No. 19CA28 24

evidence showed that the victim’s car was in the defendant’s driveway at the

time of the offense.)

{¶30} Here, there seems to be no real dispute that the victim was staying at

Wycuff’s residence with her mother and her mother’s boyfriend for the weekend

when this incident occurred. The victim’s aunt, who has temporary custody of the

victim, further verified this fact when she testified at trial. Additionally,

subsequent Facebook messages sent by Wycuff to A.M reference that she had been

in his room and in his bed, which is where the incident reportedly occurred.

Finally, A.M.’s aunt testified that when A.M. returned home after being at

Wycuff’s for the weekend, her behavior was unusual in that she came in and went

directly upstairs. We find that this evidence constitutes sufficient corroboration

that Wycuff committed the crime of sexual imposition.

{¶31} Thus, after viewing the evidence in a light most favorable to the State,

we find that any rational trier of fact could have found the essential elements of the

crime of sexual imposition proven beyond a reasonable doubt. Therefore, we

cannot conclude that the trial court erred in implicitly overruling Wycuff’s

Crim.R. 29 motion for acquittal. Because we find no merit to Wycuff’s second

assignment of error, it is hereby overruled.

{¶32} Accordingly, having found no merit in either of the assignments of Pickaway App. No. 19CA28 25

error raised on appeal, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED. Pickaway App. No. 19CA28 26

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Circleville Municipal Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and Myers, V.J., concur in Judgment and Opinion. For the Court,

__________________________________ Jason P. Smith Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.