[Cite as State v. Ward,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-06-009

: OPINION - vs - 11/22/2021 :

CHRISTOPHER WARD, :

Appellant. :

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 19CR12910

David A. Yost, Ohio Attorney General, and Andrea K. Boyd, Assistant Attorney General, for appellee.

The Hobbs Law Office, and H. Steven Hobbs, for appellant.

PIPER, P.J.

{¶ 1} Appellant, Christopher Ward, appeals his convictions in the Preble County

Court of Common Pleas for multiple counts of sexual battery and gross sexual imposition.

{¶ 2} Ward, a trooper with the Ohio State Highway Patrol, was investigated after

multiple women and a minor made allegations against him of sexual misconduct. The

minor, a 15-year-old girl, told police that during a sleep-over with Ward's daughter, Ward Preble CA2020-06-009

touched her pubic area underneath her panties. One woman told police that she was a

passenger in a car that Ward pulled over for speeding. After Ward ordered her out of the

car, Ward patted the woman down multiple times, using an open hand and cupping the area

between the woman's legs and chest area with his hands.

{¶ 3} Ward pulled another woman over for allegedly having a broken brake light on

a trailer she was pulling behind her vehicle. Ward entered the woman's vehicle with his

pants unzipped. When the woman tried to exit her vehicle, Ward pulled her by her hair

closer to him and threatened her. He then slapped her, stepped on her hand, and forced

his penis into her mouth. After the sexual assault occurred, Ward photographed the woman

with a camera.

{¶ 4} Another woman reported that Ward pulled her over several times, issuing a

warning each time rather than a citation. He wrote his telephone number on the last written

warning he gave her, and the woman agreed to call him out of hopes that he would stop

pulling her over. The two went to dinner and then back to Ward's home where the woman

had parked her vehicle. The woman heard Ward answer a telephone call from his daughter

and heard that Ward was screaming at his daughter over the phone. He then disappeared

for a few moments and then returned wearing his trooper's uniform. He then pinned the

woman's arms down and placed his hands down the woman's pants and rubbed her vaginal

area underneath her clothing. She was then able to escape.

{¶ 5} Ward was indicted on several counts related to the sexual misconduct. Ward

pled not guilty, waived his right to a jury trial, and the matter proceeded to a four-day bench

trial. The trial court found Ward guilty of one count of sexual battery and three counts of

gross sexual imposition. The trial court sentenced Ward to an aggregate sentence of three

years in prison and designated him a Tier III sex offender. Ward now appeals his

convictions and sentence, raising the following assignments of error.

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{¶ 6} Assignment of Error No. 1:

{¶ 7} THE STATE VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS IN

FAILING TO COMPLY WITH BRADY V. MARYLAND.

{¶ 8} Ward argues the state improperly withheld favorable evidence from the

defense in violation of the United States Supreme Court's decision in Brady v. Maryland,

,

(1963). Specifically, Ward argues that the state suppressed

favorable evidence when it did not produce GPS records that showed the location of Ward's

patrol cruiser during the alleged sexual offenses.

{¶ 9} "The suppression by the prosecution of evidence favorable to an accused

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution." State v. Johnston,

(1988), paragraph four of the syllabus, citing Brady. Evidence is material pursuant

to Brady "only if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different. A 'reasonable

probability' is a probability sufficient to undermine confidence in the outcome." Johnston at

paragraph five of the syllabus. Brady and its progeny apply only to evidence unknown to

the defendant at the time of the trial. State v. Smith, 12th Dist. Fayette No. CA2015-12-

024,

, ¶ 19-20

{¶ 10} In order to establish a Brady violation, a defendant must show that (1) the

evidence at issue was favorable to him or her because it was either exculpatory or

impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently;

and (3) prejudice ensued. State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-

Ohio-62, ¶ 91, citing Strickler v. Greene,

,

(1999).

{¶ 11} The Brady test is stringent and the mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the outcome of the trial,

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does not establish "materiality" in the constitutional sense. State v. Fulton, 12th Dist.

Clermont No. CA2002-10-085,

, citing United States v. Agurs,

,

(1976). Also, a Brady violation occurs only where

suppressed exculpatory evidence is discovered after trial so that even if the evidence is

disclosed during the trial, there is no Brady violation. State v. Clarke, 12th Dist. Butler No.

CA2015-11-189,

.

{¶ 12} After reviewing the record, we find that the state did not violate Brady for

multiple reasons. The GPS records in question showed the location of Ward's patrol cruiser

at various times. It is undisputed that the documents showing the coordinates were public

record and thus available to Ward at any point prior to trial. In fact, Ward asserted in his

motion for a new trial that he had made a public records request for records of his GPS

coordinates that he now claims were suppressed by the state. See State v. Stepp, 12th

Dist. Butler No. CA2020-05-062,

(no Brady violation where nothing

prevented the appellant from filing a public records request for the information alleged to

have been suppressed); State v. Davis, 5th Dist. Licking No. 2008-CA-16,

(no Brady violation where the records were publicly available and appellant could have

obtained access to them); and Matthews v. Ishee,

(6th Cir. 2007)

(concluding that documents in question were public information so that the government

could not have "disclosed" information "readily available to the defense").

{¶ 13} Moreover, the record indicates that the state produced 568 pages of GPS

records as part of its supplemental discovery and gave notice of such discovery well in

advance to the bench trial. These records showed approximately three months of GPS

information regarding Ward while he was on duty. Ward was clearly aware that the state

had in its possession GPS information for a specific timeframe and could easily have

requested different or additional records to account for other times. Thus, the records were

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not known only to the state, and Ward was able to procure additional documents had he

wanted such for purposes of trial.

{¶ 14} Nor can Ward demonstrate that the records would have been material within

the meaning of Brady, as there is no indication that Ward would not have been convicted

had he received every record noting his cruiser's location. The record indicates that Ward's

location was only recorded via GPS when he reported an incident. During trial, the court

heard the following testimony from a staff lieutenant with the Ohio State Highway Patrol's

Planning and Research Development Section who works with the Highway Patrol's policy

and accreditation, central records, and statistical analysis.

[Q] How does a dispatcher know when to open an incident?

[A] * * * it's usually when the – the Trooper radios the dispatcher.

[Q] So in order to start an incident, the Trooper must radio dispatch?

[A] Yes.

[Q] So if a Trooper doesn't radio dispatch[,] an incident may not be recorded?

[A] It may not be if, if the dispatcher's not getting any information back. * * *.

[Q] Well, let's say a Trooper doesn't want dispatch to know, if they don't tell dispatch that they're stopping somebody, and if they don't run them through LEADS, would dispatch know that they're stopping somebody?

[A] Not – no.

Thus, if Ward did not report an incident during the times the women were assaulted, his

cruiser's location would not have been recorded and he would not have been able to prove

his physical location in a different area.

{¶ 15} Had Ward believed that his cruiser's location could have proven he was

somewhere else during a time he was accused of committing the sexual misconduct, he

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could have requested a copy of the record via a public records request. However, he did

not do so and there is no indication in the record that the state suppressed any exculpatory

documents. Having found no Brady violation, Ward's first assignment of error is overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE DEFENDANT-APPELLANT'S CONVICTIONS ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 18} Ward argues in his second assignment of error that his convictions are against

the manifest weight of the evidence.

{¶ 19} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

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

, ¶

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

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

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

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Miller, 12th Dist. Preble No. CA2019-11-010,

.

{¶ 20} Questions regarding witness credibility and weight of the evidence "are

primarily matters for the trier of fact to decide since the trier of fact is in the best position to

judge the credibility of the witnesses and the weight to be given the evidence." State v.

Walker, 12th Dist. Butler App. No. CA2006-04-085,

. As such, 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. State v. Ostermeyer, 12th Dist. Fayette No. CA2021-01-002,

.

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{¶ 21} Ward was convicted of sexual battery in violation of R.C. 2907.03(A)(6), which

provides, "no person shall engage in sexual conduct with another, not the spouse of the

offender, when any of the following apply: The other person is in custody of law or a patient

in a hospital or other institution, and the offender has supervisory or disciplinary authority

over the other person." Ward was also convicted of gross sexual imposition in violation of

R.C. 2907.05(A)(1) and (5), which provide,

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 purposely compels the other person, or one of the other persons, to submit by force or threat of force.

(5) The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.

{¶ 22} After reviewing the evidence, we find that Ward's convictions were not against

the manifest weight of the evidence. Regarding the first conviction for gross sexual

imposition, the state presented testimony from the minor who informed police that Ward

had touched her pubic area. The victim testified that when she was 15 years old, she spent

the night at Ward's house with his daughter, with whom she was friends. At approximately

1:00 a.m., Ward came into his daughter's room where the two girls were lying next to each

other in the same bed. The victim testified that she had seen Ward drinking alcohol earlier

in the evening and that she thought he was drunk at the time he spoke to the girls. After

speaking with the girls for approximately an hour, he left the room and the two fell asleep.

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{¶ 23} The victim testified that she later awoke when she felt a hand rubbing the

bottom of her leg. She turned the opposite direction in the bed and fell back to sleep.

However, she awoke again when she felt a hand on her inner thigh. The victim testified

that the hand was rubbing her and moving toward her pubic area, and that the hand was

larger than a woman's hand and rough. She also testified that she felt the hand underneath

her panties touching her pubic hair.

{¶ 24} The victim testified that she nudged Ward's daughter in the back and that

Ward's daughter woke up. Although the victim did not tell Ward's daughter what had just

occurred, Ward's daughter observed her father on the floor next to the bed and told him that

he was not supposed to be in her room. Ward responded that he must have fallen asleep

while he was speaking with the girls. However, the victim testified that she and Ward's

daughter had seen Ward leave the room earlier in the night.

{¶ 25} The next morning, Ward texted his daughter and asked that she tell the victim

that he was "sorry about last night." However, the victim did not tell Ward's daughter what

occurred. Instead, she called her sister and told her about the events. The victim's sister

informed their mother and the victim's mother told the victim to inform Ward's daughter what

occurred on the night in question. After the victim texted Ward's daughter and told her what

occurred on the night in question, Ward's daughter told her older sister, and a detective

later came to the victim's home to ask her about the events.

{¶ 26} The state then presented testimony from Ward's daughter who also testified

that she observed Ward drinking alcohol on the night in question and that he came into her

room and talked to her and the victim. Ward's daughter testified that after he left, he closed

the door. However, she was later awoken and observed her father laying on the floor of

her bedroom. Ward's daughter testified that she told him to get out of her room and that he

left.

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{¶ 27} Regarding another count of gross sexual imposition, the victim testified that

she and her friend were on their way to breakfast when Ward pulled them over for speeding.

The victim, who was the passenger in the vehicle, testified that Ward removed her friend

from the car and placed her in the back of his cruiser. He then asked the victim to exit the

vehicle and consent to a pat down. The victim complied. The victim testified that Ward told

her to stand with her arms down at her side and to spread her legs. He then patted down

the victim's arms and sides, and then patted down her chest area. The victim testified that

Ward paused on her chest area and then continued to pat down her legs, thighs, as well as

her vaginal area with an open palm, and that he repeated his pat down three times.

{¶ 28} When asked to more thoroughly explain the way in which Ward patted her

down in her vaginal area, the victim testified that Ward cupped his hand, "pressed up

against, rubbing inward and his fingers curled a couple of times just pressing up, just feeling

overly in-depth in there each time." The victim testified that after Ward patted her down for

the last time, he placed her in the back of his cruiser with her friend and that she told her

friend that Ward had touched her vagina. Once Ward released the two, they continued to

a nearby restaurant where the victim called police and her father. She then filed a complaint

with the Ohio State Highway patrol.

{¶ 29} The final gross sexual imposition victim testified that Ward pulled her over

multiple times over an extended period of time, each time issuing her a warning. The last

time he pulled her over, he issued a written warning and included his name and telephone

number on the back of the citation. The victim testified that she called Ward in hopes of

stopping his pulling her over. They agreed to a date, and she drove to his house to meet

him.

{¶ 30} The victim testified that the two went to dinner and then returned to Ward's

house. There, the victim overheard Ward on the telephone with his daughter. She testified

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that Ward was yelling and screaming during his telephone conversation and that his face

was "blood red." He then disappeared from the victim's view and came back wearing his

trooper's uniform.

{¶ 31} Ward moved behind the victim's body and put his arms around her. The victim

testified that Ward placed his arms over her arms and then placed his hands down her

pants and began rubbing her vaginal area. The victim was able to "twist" out of Ward's

arms and leave his house.

{¶ 32} Regarding the sexual battery charge, the victim testified she was returning

home after transporting a horse in a trailer when she was pulled over by Ward. Ward told

her to shut off her engine, took her driver's license, and told her that he had pulled her over

because a light on the trailer was broken. Ward then claimed that the road noise was too

loud and went around to the passenger side of the victim's vehicle and entered her truck.

When the victim asked Ward to exit her truck, he told her to "shut up" and that she needed

to listen to him. Ward then unbuckled the victim's seatbelt, grabbed her hair, and pulled her

across the seat. When the victim cried out and told Ward, "no," he again told her to shut

up.

{¶ 33} The victim testified that Ward's pants were unzipped and that he exposed his

penis. Ward told the victim that he knew where she was from and that he had friends in her

location that would "watch over" her. Ward instructed the victim to make him "happy." The

victim tried to move, but Ward held her head, pushed it down, and stepped on her hand

with his boot. When the victim began crying, Ward yanked her head up by her hair and

slapped her in the face. Ward then forced his penis into the victim's mouth. After Ward

released the victim, he smiled at her and warned her that he could "do certain things" to

keep her "quiet." He then produced a camera and took a photograph of the victim.

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{¶ 34} Ward testified in his own defense and claimed that he did not commit any of

the charged sexual crimes. On appeal, he further points to minor contradictions in the

witnesses' testimony regarding their retelling of the sexual misconduct. However, the

inconsistencies, such as at what time of the day the incident occurred, were inconsequential

to the overall question of whether the act took place, and instead, were meant to test the

credibility of the witnesses. The trial court was in the best position to judge the credibility

of the witnesses, and we will not disturb such findings on appeal. Convictions are not

against the manifest weight of the evidence simply because the trier of facts believed the

state's witnesses over the defense. State v. Martino, 12th Dist. Butler No. CA2017-09-139,

.

{¶ 35} After reviewing the record and weighing the evidence with all related

reasonable inferences, we find that the trial court did not clearly lose its way or create such

a manifest miscarriage of justice that Ward's convictions must be reversed and a new trial

ordered. As such, his second assignment of error is overruled.

{¶ 36} Judgement affirmed.

HENDRICKSON and BYRNE, JJ., concur.

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