      [Cite as State v. Harris, 2020-Ohio-1497.]

                                 COURT OF APPEALS OF OHIO

                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

      STATE OF OHIO,                               :

                       Plaintiff-Appellee,         :
                                                              No. 108377
                       v.                          :

      DWAYNE HARRIS,                               :

                       Defendant-Appellant. :


                                  JOURNAL ENTRY AND OPINION

                       JUDGMENT: AFFIRMED
                       RELEASED AND JOURNALIZED: April 16, 2020


           Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-630253-A


                                               Appearances:

              Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
              and Aqueelah A. Jordan, Assistant Prosecuting Attorney, for
              appellee.

              Rick L. Ferrara, for appellant.


MICHELLE J. SHEEHAN, J.:

                Defendant-appellant Dwayne Harris (“Harris”) appeals from his

convictions for two counts of gross sexual imposition (“GSI”) and two counts of
kidnapping. Because we find sufficient evidence supports the convictions and the

convictions are not against the manifest weight of the evidence, we affirm.

                                    I. Procedural History

              On July 5, 2018, Harris was charged in a 19-count indictment,

including five counts of rape (Counts 1, 3, 5, 12, and 14); nine counts of kidnapping

(Counts 2, 4, 6, 9, 11, 13, 15, 17, and 19); and five counts of GSI (Counts 7, 8, 10, 16,

and 18). With the exception of Count 13, the kidnapping charges included a sexual

motivation specification. And with the exception of Counts 5, 12, 14, 16, and 18,

the remaining charges included a sexually violent predator specification. The

indictment involves three young sisters who were less than 13 years of age at the

time the alleged sexual conduct occurred: K.P. (d.o.b. February 13, 2007), H.P.

(d.o.b. February 2, 2009), and R.P. (d.o.b. September 2, 2010). Harris was dating

the children’s mother, A.P. (“Mother”), at the time the alleged conduct occurred.

              On January 23, 2019, the matter proceeded to a bench trial. The

state presented the testimony of K.P., the alleged victim; Mother; Kimberly Foley,

social worker with University Hospitals; Kathleen Hackett, pediatric SANE nurse

at Rainbow Babies and Children’s Hospital; Hristina Lekova, DNA analyst with the

Cuyahoga County Medical Examiner’s Office; and Cleveland Police Detective

Richard Tusing.

              At the close of the state’s case, the state voluntarily dismissed

Counts 8, 12, 13, 18, and 19 (charges involving all three children). And following

the defense’s Crim.R. 29 motion, the court dismissed Counts 14 and 15 (charges
involving H.P.). At the conclusion of trial, the court found Harris not guilty in

Counts 1-6, 16, and 17 (charges involving K.P. and H.P.). The court found Harris

guilty in Counts 7, 9, 10, and 11, all of which involved K.P. The state agreed to

merge Count 7 with Count 9 and Count 10 with Count 11, and it elected to proceed

to sentencing on Counts 7 and 10. The court then sentenced Harris to 10 years to

life in prison on Count 10 and 3 years on Count 7, to be served concurrently.

             Harris now appeals his conviction in the remaining four counts,

raising two errors for our review: (1) the manifest weight of the evidence did not

support a conviction (concerning all four counts); and (2) insufficient evidence

supported his convictions (concerning Counts 7 and 9).

                                  II. Substantive Facts

             K.P. (or “the victim”) was 11 years old at the time of trial. She

testified that Harris moved into her home in October 2016, when she was 9 years

old. She lived with her mother, her aunt, her grandmother, her brothers, and her

sisters. After Harris moved in, K.P.’s aunt and grandmother left and her mother

returned to work outside the home, which made K.P. sad.

             K.P. stated that Harris was in charge of the children when her mother

was working. During this time, when K.P. was home with Harris, she sometimes

played video games with Harris in her mother’s bedroom. K.P. testified that one

day in the summer of 2017, while her mother was working, Harris pulled K.P.’s

pants down in the bedroom and “tried to touch” her “between [her] legs, put[ting]

his fingers in my private part.” K.P. then described her private part as the area
below her stomach and above the top of her leg, specifically stating it is the area

she uses when she goes to the bathroom. She explained that Harris put his fingers

on the outside and the inside of her “private part.” When Harris did this, K.P. told

him to “get off of [her].” K.P. stated that when she told him to stop, he did not

always stop. When she was able to move away from him, she ran down the stairs.

K.P. testified that she did not tell her mother what happened right away because

she was afraid Harris might “do something,” because Harris was “muscular” and

“has tattoos.”

                 K.P. testified that on a “different day” that same summer, Harris

called K.P. into her mother’s bedroom. She listened to him because she was taught

to “respect adults.” K.P. stated that Harris pulled her arm and asked if she wanted

to “play a game,” to which K.P. replied, “no.” She stated that, for approximately

two minutes, he tried to put his “private part in her private part,” but ultimately,

his private part was only on the outside of her private part. She told him to “get

off” of her and she pinched and scratched him, because he was “holding her” and

“forcing down on [her].” K.P. stated that she screamed for help, and her younger

sisters “came on the steps but [were] scared to come up.”

                 Once again, K.P. testified regarding an incident that occurred during

the summer of 2017, when she was 10 years old, and she and Harris were in her

mother’s bedroom playing a game. This time, according to K.P., Harris “put his

mouth” on her “chest,” which she described as the area below her head and above

her stomach. K.P. testified that Harris pushed her shirt and bra up and began to
“lick” her chest. She stated that it “didn’t feel right” and she told Harris to “stop”

and “get off.” K.P. did not tell her mother.

               K.P. also testified regarding an incident in 2018 that occurred while

she was in the basement with Harris. K.P. was cleaning the basement with her

siblings because her younger brother had ripped up some foam and it was all over

the basement. She stated that it was difficult to clean up because it “kept flying

away.” Her siblings decided they were finished and went upstairs, but according to

K.P., Harris told her that she was not finished. After K.P.’s siblings left, Harris

pulled K.P. over to the couch where he was sitting and he put his hands in her

pants and began touching the outside of her “private part.” K.P. told him to “stop,

get off of [her],” and she ran very fast upstairs and hid in the closet. Harris

followed K.P. upstairs and found her in the closet. According to K.P., Harris told

Mother that K.P. ran upstairs to avoid cleaning the basement. K.P. then returned

to the basement with Harris and her mother, where Harris “banged [K.P.’s] head

against the poll and then “start[ed] choking [her].” At this point, K.P. began to cry

and told Mother that Harris had been touching her.

               K.P. testified that the next day, while Harris was working, Mother

moved K.P., her siblings, and her grandmother to K.P.’s aunt’s house. The day

after, Mother took K.P. to the hospital for an examination, where K.P. spoke with a

nurse, a social worker, and a police detective. K.P. told them what had happened

with Harris.
             Mother testified that she began a relationship with Harris in 2016

and by the end of the year, he began living at her home. In March 2017, she began

working outside the home and the children’s grandmother began watching the

children. In July 2017, the grandmother moved out and Harris began watching the

children while Mother worked. On June 24, 2018, while Mother was sitting on the

couch with her baby, she saw K.P. run upstairs from the basement after all of her

other children had come up, and she saw Harris follow K.P. upstairs. According to

Mother, Harris explained that K.P. had not finished her basement chores.

Thereafter, Harris, Mother, and K.P. returned to the basement, where Mother saw

all the foam on the floor. Mother stated that she “had [her] head turned, [and] was

looking another way” and then saw Harris grab K.P. “by the shirt,” and they were

“tussling.” Mother told Harris to “let her go.” At this point, K.P. was “crying * * *

upset * * * and scared,” which was unusual for K.P. Mother stated that K.P. then

told her what had previously happened and Mother was “shocked” and began to

cry as well. Mother testified that she asked Harris to leave and he refused. Mother

said that she felt threatened, so she waited until Harris left the house the next day

to move her children out of the home. Mother then brought K.P. to the hospital.

              While at the hospital, Kimberly Foley, University Hospitals social

worker, was first to meet with K.P.             Foley testified that she makes

recommendations based upon what an alleged victim reports to her, and if there

are reports of “skin to skin sexual contact within 72 hours,” she will recommend

the alleged victim receive an examination. Foley testified that based upon what
K.P. told her, Foley referred K.P. to the SANE nurse for an examination. Foley

further testified that after having a conversation with K.P. and meeting with the

medical treatment team, Foley telephoned the Department of Children and Family

Services and the police. Foley included her notes in K.P.’s medical records.

             Kathleen Hackett, Pediatric SANE nurse, testified that on June 25,

2018, she examined K.P.      Nurse Hackett compiled a report based upon her

examination of K.P., and she testified that during the examination, K.P. had

reported to her that “yesterday” Harris put his hands in her pants and touched her

private parts. K.P. also reported that “last summer” Harris put his mouth on her

chest area. Nurse Hackett asked K.P. to circle on the female diagram the areas she

had been touched, and K.P. circled a picture of the vaginal area and the breast or

chest area. K.P. did not circle any body part on the back side of the diagram or the

mouth.

             Nurse Hackett testified that she submitted for analysis the underwear

K.P. was wearing at the time of her examination, but she did not have the

underwear that K.P. was wearing during the alleged incident the previous night.

Nurse Hackett explained that it is possible to collect “touch DNA” on the

underwear K.P. was wearing the following day because “skin cells still slough off”

and “if there’s any DNA [it] could still fall onto those underpants, especially for

kids.”

             Hristina Lekova, the DNA analyst with the medical examiner’s office,

analyzed the DNA collected from the inside crotch area of K.P.’s underpants that
were submitted by Nurse Hackett. Lekova observed a mixture of unknown male

DNA profiles from this sample. Lekova testified that, due to the location of the

DNA and the amount of DNA collected, it was likely that the DNA was actual

“touch DNA” and not “transfer DNA,” which is a secondary source.

              Detective Tusing interviewed K.P. and her mother. Based upon the

interviews, the detective arrested Harris.

                                  III. Sufficient Evidence

              We address Harris’s second assignment of error first.          In this

assignment of error, Harris contends that there is insufficient evidence to support

his convictions for gross sexual imposition in Count 7 and, consequently,

kidnapping in Count 9.

              When assessing a challenge of sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether

such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. “The 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.” Id. A 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.” State v. Thompkins, 78 Ohio St.3d 380,

390, 678 N.E.2d 541 (1997).
              In Count 7, Harris was charged with gross sexual imposition in

violation of R.C. 2907.05(A)(4), which provides that

      [n]o 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 * * * [t]he other person, or one of the
      other persons, is less than thirteen years of age, whether or not the
      offender knows the age of that person.

              “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). Count 7 specifically charges Harris with having

sexual contact with the victim by touching her breasts with his mouth.

              Harris claims that the state failed to demonstrate “sexual contact.”

In support, he argues that the victim only testified that Harris touched her chest,

not her breasts, and the nurse testified that the victim did not have fully developed

breasts but rather “breast buds starting and some development of breast tissue.”

Harris contends, therefore, that even if the testimony is believed, the contact to

which the victim testified is not the “touching of an erogenous zone.”

              For purposes of convicting a defendant of gross sexual imposition in

violation of R.C. 2907.05(A), the female breast is “per se [an] erogenous zone * * *

and the state is relieved of the obligation to prove that [the breast is], in fact, [an]

erogenous zone[].”       State v. Kleyman, 8th Dist. Cuyahoga No. 90817,

2008-Ohio-6656, ¶ 26, citing State v. Ackley, 120 Ohio Misc.2d 60,
2002-Ohio-6002, 778 N.E.2d 676, ¶ 9 (C.P.). And a female’s “chest area” or the

area “between a female’s breasts” is within the erogenous zone contemplated by

the statute. State v. Harrel, 5th Dist. Delaware No. 99CAA03013, 2000 Ohio App.

LEXIS 38, 7 (Jan. 3, 2000); see also State v. Patel, 2d Dist. Greene No. 2010-CA-

77, 2011-Ohio-6329, ¶ 64 (rejecting the defendant’s attempt to distinguish between

the victim’s “breast” from her “chest” where the victim testified the defendant

“kissed her ‘chest’” and finding the defendant’s act of kissing the victim’s “chest”

was sufficient to establish the contact necessary for a sexual imposition

conviction).

               Moreover, Harris was charged under R.C. 2907.05(A)(4) with the

gross sexual imposition of a person less than 13 years of age. This section of the

statute expressly addresses conduct perpetrated upon prepubescent and pubescent

children and was arguably created to provide enhanced protection to children. It is

entirely possible, and perhaps even likely, that a victim of this age — for which the

statute was designed to protect — will have not yet developed breasts. In fact, the

nurse testified as such, stating that the victim was beginning to develop breast

tissue. It is therefore unreasonable to find that a child’s undeveloped breast, or her

chest, is not an area protected by statute, and we reject Harris’s argument that

because the victim “did not technically have breasts,” he could not have been

convicted of touching an erogenous zone.

               In light of the foregoing, we find the state presented evidence of

sexual contact, namely that Harris touched the victim’s erogenous zone, sufficient
to   support   a   conviction   for   gross   sexual   imposition   in   violation   of

R.C. 2907.05(A)(4) where the young victim testified that Harris licked her chest.

               Harris’s second assignment is overruled.

                            IV. Manifest Weight of the Evidence

               In his first assignment of error, Harris contends that the convictions

are not supported by the manifest weight of the evidence. In support, he argues

that the trial court lost its way because it had “no method to verify the truth of” the

victim’s statements, no physical evidence corroborated the victim’s statements,

and the victim’s testimony was “riddled with inconsistency.”

               A manifest weight challenge questions whether the state has met its

burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. This

challenge raises a factual issue:

      “The court, reviewing the entire record, weighs the evidence and all
      reasonable inferences, considers the credibility of witnesses and
      determines whether in resolving conflicts in the evidence, the jury
      clearly lost its way and created such a manifest miscarriage of justice
      that the conviction must be reversed and a new trial ordered. The
      discretionary power to grant a new trial should be exercised only in
      the exceptional case in which the evidence weighs heavily against the
      conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). The use of the word “manifest” in the standard of review “means that

we can only reverse the trier of fact if its decision is very plainly or obviously

contrary to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577,

2018-Ohio-5031, ¶ 20.
              Here, in support of the allegations in Count 7, K.P. testified that

Harris licked her chest in the summer of 2017. In her testimony, she provided

specific details surrounding the incident, including that Harris pushed her shirt

and bra up in order to “lick” her chest, that it “didn’t feel right,” and that she told

Harris to “stop” and “get off.” Regarding Count 10, K.P. testified that in June 2018,

Harris placed his hands in her pants and began touching the outside of her “private

part.”   K.P. explained that Harris specifically called K.P. back down to the

basement after her siblings left and they were therefore alone in the basement

when he pulled her over to the couch and began touching her. She also testified

that she told him to stop and she attempted to get away from him by running

upstairs and hiding in the closet.

              Although, as Harris argues, there is no eyewitness or any testimony

supporting K.P.’s allegations, it is well settled that a sexual assault conviction may

rest solely on the victim’s testimony, if believed, and there is no requirement that a

victim’s testimony be corroborated. State v. Castellon, 8th Dist. Cuyahoga

No. 106813, 2019-Ohio-628, ¶ 41; State v. Magwood, 8th Dist. Cuyahoga No.

105885, 2018-Ohio-1634, ¶ 32; State v. Patterson, 8th Dist. Cuyahoga No. 100086,

2014-Ohio-1621, ¶ 40. Moreover, K.P.’s testimony concerning Harris’s conduct in

licking her chest and in touching her private parts under her pants was consistent

with what she reported to the SANE nurse.

              Harris also contends that there is no physical evidence supporting

K.P.’s testimony. A lack of physical evidence, however, “does not require reversal
since a victim’s testimony, if believed, is sufficient to obtain and sustain a rape

conviction.” State v. Butts, 8th Dist. Cuyahoga No. 55549, 1989 Ohio App. LEXIS

2856, 4 (July 20, 1989); State v. Timmons, 10th Dist. Franklin Nos. 13AP-1038

and 13AP-1039, 2014-Ohio-3520, ¶ 23 (stating that physical or forensic evidence is

not required to prove rape).

              Finally, Harris claims that K.P.’s testimony was “riddled with

inconsistency.” In support, he argues the following: while K.P. learned of stranger

danger at school, she did not disclose her allegations until getting into trouble for

not cleaning the basement; K.P. reported to the nurse that Harris had touched her

buttocks but she told the police that he did not; K.P. testified that Harris choked

her in the basement, but Mother’s testimony did not support K.P.’s account of the

incident; and K.P. testified that Harris made her watch porn but that she “actually

* * * didn’t watch it, she looked away from the porn.”

              A conviction is not against the manifest weight of the evidence

“solely because the [factfinder] heard inconsistent or contradictory testimony.”

State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 72, citing State v.

Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v.

Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11; see also State

v. Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (“‘While the

jury may take note of the inconsistencies and resolve or discount them accordingly,

* * * such inconsistencies do not render defendant’s conviction against the

manifest weight or sufficiency of the evidence.’”), quoting State v. Nivens, 10th
Dist. Franklin No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, 7 (May 28, 1996).

The factfinder “‘may take into consideration a witness’s conflicting testimony in

determining her credibility and the persuasiveness of her account by either

discounting or resolving the discrepancies.’” State v. Taylor, 10th Dist. Franklin

No. 14AP-254, 2015-Ohio-2490, ¶ 34, quoting State v. Rankin, 10th Dist. Franklin

No. 10AP-1118, 2011-Ohio-5131, ¶ 29.

              In this case, we do not find the factfinder lost his way in resolving the

alleged “inconsistencies” noted above. Nor do we find these alleged inconsistencies

rendered Harris’s conviction against the manifest weight of the evidence. K.P.

testified that she was afraid of Harris because he was muscular and had tattoos;

she testified that she tried to tell the detective everything she remembered; and the

fact that K.P. looked away from the porn Harris showed K.P. does not create an

inconsistency in her testimony that Harris made her watch porn.             Moreover,

although Mother did not testify that she too saw Harris choke K.P., Mother

testified that her head was turned before she saw Harris grab K.P. by the shirt and

they began to “tussle.” Mother also testified that K.P. was crying and upset, which

was unusual for K.P., and Mother told Harris to “let her go.” Mother’s testimony

does not contradict K.P.’s testimony in this regard.

              Having reviewed the evidence, we cannot say the factfinder lost his

way in resolving any conflicts in the evidence and created a manifest miscarriage of

justice such that Harris’s conviction in Counts 7, 9, 10, and 11 must be reversed and

a new trial ordered.
              Harris’s first assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



____________________________
MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
