[Cite as State v. Lieurance, 2013-Ohio-3875.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-12-21

        v.

MICHAEL J. LIEURANCE,                                     OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-12-23

        v.

MICHAEL J. LIEURANCE,                                     OPINION

        DEFENDANT-APPELLANT.


                   Appeals from Auglaize County Municipal Court
                           Trial Court No. 12 CRB 00491

                                     Judgments Affirmed

                          Date of Decision: September 9, 2013


APPEARANCES:

        Jennifer L. Brunner and Elizabeth A. Mote for Appellant

        Edwin A. Pierce and Alexander N. Fowler for Appellee
Case Nos. 2-12-21 and 2-12-23


SHAW, J.

       {¶1} Defendant-appellant, Michael J. Lieurance (“Lieurance”), appeals the

judgments of conviction and sentence issued by the Auglaize County Municipal

Court finding him guilty of sexual imposition, in violation of R.C. 2907.06(A)(1),

sentencing him to serve 10 days in jail, and placing him on two years of

community control.

       {¶2} The prosecution provided the following evidence in support of its case

against Lieurance. On August 6, 2012, Lieurance was on a family vacation at

Glacier Hills Campground in Auglaize County with his partner, William Birt

(“Birt”), and Birt’s children. Lieurance and Birt owned a trailer parked on a

campsite in the campground.

       {¶3} At approximately 10:00 p.m. that evening, Lieurance made the

acquaintance of sixteen-year-old T.B., who was also vacationing at the

campground with his mother and four younger sisters. There is some discrepancy

about whether Lieurance invited T.B. to his campsite, but it is nevertheless

undisputed that T.B. was seated in a folding chair to the right of Lieurance and the

two engaged in small talk. At this time, no one else was seated at the campsite

with T.B. and Lieurance.

       {¶4} T.B. recalled Lieurance reaching over him with his right hand to grab

his cigarettes, which were located in the cup holder in the right arm of T.B.’s


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Case Nos. 2-12-21 and 2-12-23


chair. T.B. testified that as Lieurance reached over T.B.’s lap, “he brushed his

hand across my bottom genitals [sic] area and when he pulled back he rubbed

them across as he was going back as well.” (Tr. at 7). T.B. specifically stated that

Lieurance touched his penis and testicles over his clothes. T.B. explained that he

did not do anything at that point because he thought it might have been an

accident.

       {¶5} Shortly thereafter, T.B.’s six-year-old sister came over to Lieurance’s

campsite and sat on T.B.’s lap. T.B. began tickling her and Lieurance joined in.

T.B. testified that as Lieurance attempted to tickle his sister, his hand slid down

and tickled T.B. on his penis instead. T.B. testified that he became nervous and

uncomfortable and did not know how to react. He then took his sister over to his

mother, who was at a neighboring campsite.

       {¶6} T.B. then returned to Lieurance’s campsite and sat down. T.B. could

not explain why he returned to the campsite. At this time, Birt, Lieurance’s

partner was also at the campsite and conversed with Lieurance and T.B. T.B.

testified that “when [Birt] was there [Lieurance] wouldn’t touch [him] at all in any

way, but after [Birt] left [Lieurance] would rub [his left] leg a lot.” (Tr. at 9).

       {¶7} T.B. testified that “at the times [sic] I was getting ready to leave

[Lieurance] reached over and was rubbing my leg again and slid his hand and full

on grabbed [me] by my testicles and my penis and started rubbing.” (Tr. at 10).


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Case Nos. 2-12-21 and 2-12-23


T.B. stated that he then attempted to leave when Lieurance reached again to touch

him, but he moved and walked away.

       {¶8} T.B. testified that he walked over to the campsite of a family friend,

Tommy Deal, where his mother was sitting. T.B. recalled sitting down in front of

Tommy at the campsite. He also testified that about ten minutes after he left

Lieurance’s campsite, he texted Tommy and told him that he really needed to talk

to someone when his (T.B.’s) mother was not around. The prosecution admitted

as an exhibit at trial a picture of the text message T.B. sent to Tommy, which

stated “Don’t say ANYTHING outloud [sic]…but when mom leave [sic] I need to

talk to you badly…plss [sic].” T.B. testified that once he was able to talk to

Tommy alone, he told Tommy that Lieurance had touched him inappropriately and

recounted each incident to Tommy. T.B. testified that he also told his mother

about the incidents with Lieurance later that night. T.B. subsequently decided to

file a report with law enforcement.

       {¶9} On August 15, 2012, a criminal complaint was filed against Lieurance

alleging that he committed the offense of sexual imposition against T.B.

       {¶10} On August 22, 2012, Lieurance appeared in open court and entered a

plea of not guilty to the charge.




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Case Nos. 2-12-21 and 2-12-23


         {¶11} On October 1, 2012, the trial court conducted a bench trial. Several

witnesses testified, including Lieurance in his defense. After hearing the evidence,

the trial court took the matter under advisement.

         {¶12} On October 23, 2012, the trial court issued a journal entry finding

Lieurance guilty of sexual imposition and set the matter for sentencing.

         {¶13} On November 13, 2012, the trial court issued a sentencing entry

imposing a sentence of ten days in jail and placing Lieurance on community

control for two years. Lieurance was also classified as a Tier I sex offender.

         {¶14} On November 15, 2012, the trial court issued an entry entitled

“Community Control Sanctions,” which set forth the terms and conditions of

Lieurance’s community control in greater detail than in the original sentencing

entry.

         {¶15} Lieurance now appeals, asserting the following assignments of error.

                        ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT ERRED IN FINDING MICHAEL J.
         LIEURANCE GUILTY OF SEXUAL IMPOSITION, A
         VIOLATION OF R.C. 2907.06, BECAUSE THERE IS AN
         ABSENCE OF CORROBORATING EVIDENCE REQUIRED
         TO SUSTAIN CONVICTION.

                        ASSIGNMENT OF ERROR NO. II

         THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS
         TO DUE PROCESS AND A FAIR TRIAL WHEN IT FOUND
         HIM GUILTY BEYOND A REASONABLE DOUBT AND
         ENTERED A JUDGMENT OF CONVICTION OF SEXUAL

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Case Nos. 2-12-21 and 2-12-23


      IMPOSITION AGAINST HIM, BECAUSE THAT FINDING
      WAS AGAINST THE MANIFEST WEIGHT OF THE
      EVIDENCE.

                      ASSIGNMENT OF ERROR NO. III

      MICHAEL J. LIEURANCE DID NOT RECEIVE A FAIR AND
      JUST TRIAL BECAUSE OF THE INEFFECTIVE
      ASSISTANCE OF HIS TRIAL COUNSEL.

                      First and Second Assignments of Error

      {¶16} In his first and second assignments of error, Lieurance argues that his

conviction for sexual imposition was not supported by sufficient evidence and was

against the manifest weight of the evidence.

      {¶17} When reviewing the sufficiency of the evidence, “[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, 61 Ohio St.3d 259

(1981), paragraph two of the syllabus.

      {¶18} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “ ‘[weigh] the

evidence and all reasonable inferences, consider the credibility of witnesses and

[determine] whether in resolving 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. Thompkins, 78


                                         -6-
Case Nos. 2-12-21 and 2-12-23


Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).    A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶19} Lieurance was convicted of sexual imposition, in violation of R.C.

2907.06(A)(1), which states in relevant part.

       (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.

       {¶20} Before we address Lieurance’s arguments under these assignments of

error, it is necessary to discuss the remaining evidence presented at trial.

       {¶21} In addition to T.B.’s testimony previously discussed, the prosecution

presented the testimony of Tommy Deal, in whom T.B. first confided regarding

the incidents with Lieurance. On the night in question, Tommy recalled T.B.

sitting down at his campsite and sending him a text message, expressing that T.B.

needed to talk to him alone. Tommy indicated that T.B. told him the details of the

encounters with Lieurance that night. Tommy testified that he advised T.B. to




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Case Nos. 2-12-21 and 2-12-23


decide how he wanted to proceed. Tommy also recalled observing Lieurance to be

drunk that evening.

         {¶22} Tommy testified that the following day he point blank asked

Lieurance why he touched T.B. Tommy recalled that at first Lieurance acted as if

he did not know what Tommy was talking about. Tommy told Lieurance that he

thought Lieurance was lying to him. Tommy testified that Lieurance then stated

repeatedly that it would never happen again. Tommy recalled that the next day he

spoke to Lieurance, who repeated that it would never happen again. Tommy also

admitted that he threatened to “rip [Lieurance] in half” if he ever touched T.B.

again.

         {¶23} The prosecution also presented the testimony of Sgt. Douglas Burke

and Sgt. Brian Vernon, the law enforcement officers who took statements from

T.B. and his mother and who later spoke to Lieurance regarding the allegations.

Their conversation with Lieurance was recorded and admitted as an exhibit at trial.

During the conversation, Lieurance admitted to having numerous alcoholic

beverages on the day of the alleged incidents. When asked about the specific

allegations, Lieurance responded that he remembered tickling T.B.’s sister on the

leg and that he accidently touched T.B. and apologized. However, regarding the

other allegations of grabbing and touching T.B. in the genital area, Lieurance




                                        -8-
Case Nos. 2-12-21 and 2-12-23


admitted that he was intoxicated and repeatedly said that if it did happen he did

not remember and it was not intentional.

       {¶24} The defense presented the testimony of Lieurance and his partner,

Birt. Birt recalled Lieurance drinking on the day of the incidents. Birt testified

that he saw Lieurance with T.B. and T.B.’s sister at their campsite. However, he

could not recall if Lieurance was ever alone at the campsite with T.B. and he

testified that he did not see Lieurance touch T.B. Birt admitted that during the

time when the alleged incidents occurred, he was running back and forth between

campsites and that he also ran into town to purchase cigarettes.

       {¶25} As the last witness for the defense, Lieurance took the stand.

Lieurance admitted that he began drinking around noon on the day of the alleged

incidents. Lieurance recalled that T.B. arrived at his campsite and sat in the chair

Lieurance was previously sitting in. Lieurance recalled reaching across T.B. to

grab his cigarettes, but denied that he touched T.B. Lieurance also remembered

tickling T.B.’s younger sister with T.B. Lieurance explained that when T.B.

tickled the girl’s sides she squirmed and fell back on T.B.’s lap, entrapping

Lieurance’s hand in T.B.’s groin area. Lieurance testified that he immediately

withdrew his hand and apologized to T.B.         Lieurance denied that any other

incident occurred.




                                        -9-
Case Nos. 2-12-21 and 2-12-23


       {¶26} We now turn to address Lieurance’s arguments on appeal. First,

Lieurance contends that his conviction for sexual imposition is not supported by

corroboration of T.B.’s testimony, as required by R.C. 2907.06(B).

       {¶27} Section 2907.06(B) of the Revised Code sets forth the specific

requirement that “No person shall be convicted of a violation of this section solely

upon the victim’s testimony unsupported by other evidence.” R.C. 2907.06(B).

“However, the corroborating evidence “need not be independently sufficient to

convict the accused.”     State v. Economo, 76 Ohio St.3d 56, 1996-Ohio-426,

(1996). Rather, even “[s]light circumstances or evidence which tends to support

the victim’s testimony is satisfactory.” Id. at syllabus. Corroborating evidence is

not an element of the offense, but an ancillary evidentiary requirement that the

trial court must decide. Id. at 60-62.

       {¶28} In Economo, the corroborating evidence consisted of: (1)

confirmation that the victim had an appointment with the defendant on the date in

question; (2) a witness’ testimony that the victim appeared frightened and upset,

and asked to not be left alone with the defendant; and (3) a witness’ testimony that

the victim was on the verge of crying upon exiting a room where she had been

alone with the defendant. Economo at 60.

       {¶29} Here, the corroborating evidence consisted of: (1) Tommy’s

testimony that T.B. told him of the incidents shortly after they occurred; (2)


                                         -10-
Case Nos. 2-12-21 and 2-12-23


Tommy’s testimony that he confronted Lieurance about the allegations and

Lieurance responded by saying that it would never happen again; (3) statements

made to law enforcement by both T.B. and his mother reporting the allegations;

(4) Lieurance’s statements to law enforcement confirming that Lieurance and T.B.

were sitting together at the campsite on the night in question; and (5) Lieurance’s

statements to law enforcement that he was intoxicated that night and could not

remember if the alleged incidents occurred. We find that this evidence meets the

criteria established in Economo of slight circumstances or evidence tending to

support the victim’s testimony and is therefore also sufficient to meet the

requirements of R.C. 2907.06(B).

       {¶30} Next, Lieurance contends that his conviction for sexual imposition is

against the manifest weight of the evidence on two grounds. First, Lieurance

argues that the evidence did not support the trial court’s finding that he intended

the touching to be sexually arousing or gratifying. Second, Lieurance argues that

the evidence did not support the trial court’s finding that he acted knowingly or

recklessly.

       {¶31} Regarding the first ground cited by Lieurance, “sexual contact” is

defined to mean “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.


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Case Nos. 2-12-21 and 2-12-23


2907.01(B). The Ohio Revised Code does not define “sexual arousal” or “sexual

gratification.” State v. Gesell, 12th Dist. Butler No. CA2005–08–367, 2006–

Ohio–3621, ¶ 23, citing In re Anderson, 116 Ohio App.3d 441, 443, (12th Dist.

1996). However, courts have construed R.C. 2907.01(B) to “contemplate any

touching of the described areas which a reasonable person would perceive as

sexually stimulating or gratifying.” State v. Astley, 36 Ohio App.3d 247, 250,

(10th Dist. 1987).

       {¶32} In addition, “[w]hile the purpose of sexual arousal or gratification is

an essential element of the offense of * * * sexual imposition, there is no

requirement that there be direct testimony regarding sexual arousal or

gratification[.]” Gesell at ¶ 25. Rather, the proper method to determine whether

sexual contact occurred is to permit the trier of fact to infer from the evidence

presented whether the defendant’s contact with those areas of the body described

in R.C. 2907.01 was made for sexual arousal or gratification. See Id. at ¶ 24.

       {¶33} In this case, T.B. testified that Lieurance “grabbed,” “touched,” or

“rubbed” his penis and testicles over his clothes on three separate occasions while

they were sitting at Lieurance’s campsite.      T.B. also testified that Lieurance

repeatedly rubbed his leg during this time. Thus, a reasonable trier of fact could

certainly infer that this contact was made for the purpose of sexually arousing or

gratifying Lieurance.


                                       -12-
Case Nos. 2-12-21 and 2-12-23


       {¶34} Lieurance also argues that the trial court erred in finding that he

knew that the sexual contact was offensive to T.B., or was reckless in that regard.

A person acts “knowingly” when he is aware that his conduct will probably cause

a certain result or will probably be of a certain nature. See R.C. 2901.22(B). A

person acts recklessly “when, with heedless indifference to the consequences, he

perversely disregards a known risk that his conduct is likely to cause a certain

result or is likely to be of a certain nature.” See R.C. 2901.22(C).

       {¶35} Notwithstanding the fact that T.B. is a minor and Lieurance is much

older than him, T.B. testified that Lieurance would not touch him when his partner

was present, but when Lieurance’s partner left the campsite Lieurance would

resume rubbing T.B.’s leg. T.B. also testified that Lieurance’s touching made him

feel uncomfortable and nervous.       T.B. stated that based on these feelings he

removed his sister from the situation and eventually left Lieurance’s campsite.

Moreover, in his statements to police, Lieurance acknowledged that the alleged

touching of a minor was inappropriate, but he also stated that could not remember

whether or not the events happened due to his intoxicated state.          Notably,

“[v]oluntary intoxication may not be taken into consideration in determining the

existence of a mental state that is an element of a criminal offense.”        R.C.

2901.21(C).    Thus, there was evidence presented at trial for the trier of fact

conclude that Lieurance knew that the sexual contact was offensive to T.B., or


                                        -13-
Case Nos. 2-12-21 and 2-12-23


acted reckless with regard to whether it was offensive. Therefore, we find the trier

of fact did not lose its way in finding Lieurance’s actions were at the very least

reckless and constituted an unwarranted and offensive touching.

       {¶36} After viewing the evidence in a light most favorable to the

prosecution, 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.

With regard to the manifest weight of the evidence, we note that the trial court as

the trier of fact is in the best position to assess the credibility of witnesses. Here,

the trial court chose to believe the prosecution’s witnesses. Accordingly, we

cannot say that the trier of fact clearly lost its way in finding Lieurance guilty of

sexual imposition.     Lieurance’s first and second assignments of error are

overruled.

                             Third Assignment of Error

       {¶37} In his third assignment of error, Lieurance argues that his trial

counsel was ineffective for: 1) failing to file any pretrial motions or to prepare for

trial; 2) failing to properly object at trial; 3) failing to present evidence; and 4)

failing to present evidence or argument in mitigation at sentencing

       {¶38} At the outset, we note that attorneys licensed by the State of Ohio are

presumed to provide competent representation.          State v. Hoffman, 129 Ohio

App.3d 407 (1998). To prevail on a claim of ineffective assistance of counsel, a


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Case Nos. 2-12-21 and 2-12-23


defendant must prove that trial counsel’s performance fell below objective

standards of reasonable representation and that the defendant was prejudiced as a

result. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42

Ohio St.3d 136, paragraph two of the syllabus (1989). This requires showing that

counsel made errors so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687.

       {¶39} Also, in order to show that a defendant has been prejudiced by

counsel’s deficient performance, the defendant must prove that there exists a

reasonable probability that, but for counsel’s errors, the outcome at trial or in his

legal proceedings would have been different. Bradley, 42 Ohio St.3d at paragraph

three of the syllabus.    “Reasonable probability” is a probability sufficient to

undermine confidence in the result. Id. at 142.

       {¶40} When considering a claim of ineffective assistance of counsel, the

court “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

Accordingly, courts are to afford a high level of deference to the performance of

trial counsel. Bradley, 42 Ohio St.3d at 142. Tactical or strategic trial decisions,

even if unsuccessful, do not generally constitute ineffective assistance. State v.

Carter, 72 Ohio St.3d 545, 558, 1995–Ohio–104. Rather, the errors complained of




                                        -15-
Case Nos. 2-12-21 and 2-12-23


must amount to a substantial violation of counsel’s essential duties to his client.

See Bradley at 141–142.

       {¶41} Here, the record establishes that the prosecution’s evidence in this

case was relatively straight forward and did not require a complex defense. There

are several possible tactical reasons for why trial counsel chose not to prolong the

litigation and to proceed to trial in an expedient manner.          The record also

establishes that trial counsel lodged several objections at trial, including objecting

to the admissibility of the prosecution’s exhibits. Despite appellate counsel’s

representations on appeal, trial counsel did present evidence in Lieurance’s

defense.   The fact that appellate counsel would have prepared the defense

differently is not a basis for a legitimate ineffective assistance of counsel claim.

Finally, appellate counsel’s argument regarding a failure to present evidence in

mitigation is pure speculation and presupposes that there is evidence that could

have been presented that would support a lesser sentence. Notably, Lieurance’s

sentence is well below the maximum sentence the trial court could have imposed.

       {¶42} Simply put, the arguments set forth by Lieurance’s appellate counsel

are speculation and conjecture predicated upon what appellate counsel would have

done differently at trial. Moreover, none of the circumstances enumerated by

appellate counsel demonstrate a reasonable probability that, but for trial counsel’s




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Case Nos. 2-12-21 and 2-12-23


alleged errors, the outcome at trial or in the legal proceedings would have been

different. Accordingly, Lieurance’s third assignment of error is overruled.

       {¶43} Based on the foregoing, the conviction and sentence of the Auglaize

County Municipal Court is affirmed.

                                                              Judgments Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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