[Cite as State v. James, 2019-Ohio-2604.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       17CA011234

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
WALTER L. JAMES                                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   16CR094820

                                 DECISION AND JOURNAL ENTRY

Dated: June 28, 2019



        HENSAL, Judge.

        {¶1}     Walter James appeals his convictions from the Lorain County Court of Common

Pleas. This Court affirms.

                                                 I.

        {¶2}     The victim in this case is Mr. James’s stepdaughter who, at the time of trial, was

28 years old. Mr. James married the victim’s mother (“S.H.”) when the victim was four years

old. S.H. had a son from a previous relationship, and had a daughter with Mr. James after they

married. The family of five moved into a ranch-style home when the victim was 7 years old.

According to the victim, Mr. James started sexually abusing her around that time. The abuse

started with Mr. James kissing her and touching her vagina as he put her to bed at night.1 When

she was 10 years old, the victim moved from her first-floor bedroom to a basement bedroom.




        1
            The victim could not recall whether the initial touching occurred over, or beneath her
clothes.
                                                2


Once she moved to the basement, Mr. James began inserting his fingers into her vagina “most

nights[.]” This progressed to the victim performing oral sex on Mr. James by the time she was

12 or 13 years old, and to having vaginal intercourse with him when she was around 13 years

old.

       {¶3}      In 2003, the victim confided in one of her youth-group friends about the abuse.

That friend told the pastor’s wife, who told the pastor, who then contacted Children’s Services.

Children’s Services removed Mr. James from the family home while they conducted an

investigation.    Fearing that her family would be split up, the victim recanted and the

investigation ended without charges being filed. Mr. James then returned to the family home.

       {¶4}      Shortly after his return, S.H. had a mental breakdown, which lasted about three

years. During that time, S.H. was heavily medicated and spent most of her time in her bedroom

while Mr. James looked after the three children. Within a few months after his return, Mr. James

began having sex with the victim multiple times a week. The abuse continued into adulthood,

with the victim explaining that she continued to have sex with Mr. James even after she moved

out of the family home. She explained that sex eventually became the “price” she had to pay for

him doing things for her, including work on her home or car.

       {¶5}      The abuse stopped in 2014, and the victim stopped communicating with Mr.

James in 2015. S.H. took notice and reached out to her daughter. The victim met with S.H. for

lunch and disclosed the abuse. S.H. took several days to process the information, and then

confronted Mr. James. According to S.H., Mr. James acknowledged the truth of the allegations

and left the family home. S.H. initially sought a dissolution of the marriage, but eventually filed

for divorce.
                                                  3


        {¶6}    The victim testified that she initially did not report the abuse to the police because

she had hoped that Mr. James would continue to provide for her mother and other siblings, which

she felt Mr. James owed to her given the years of abuse. When he stopped supporting them, she

reported the abuse to the police.

        {¶7}    A grand jury indicted Mr. James on one count of rape in violation of Revised

Code Section 2907.02(A)(1)(b), one count rape in violation of Section 2907.02(A)(2), four

counts of sexual battery in violation of Section 2907.03(A)(5), and one count of unlawful sexual

contact with a minor in violation of Section 2907.04(A). Mr. James pleaded not guilty and the

matter proceeded to a jury trial.

        {¶8}    At trial, the State presented testimony from the victim and S.H. Mr. James did

not testify, nor did he present any evidence aside from three letters that the victim wrote to him

contemporaneous with the alleged abuse. The jury ultimately returned a verdict of guilty on all

counts, and the trial court sentenced Mr. James to a total of 24 years of incarceration. He now

appeals, raising two assignments of error for our review, which we will address in reverse order

to facilitate our review.

                                                 II.

                                    ASSIGNMENT OF ERROR II

        THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR. JAMES FOR
        THE FOLLOWING: RAPE IN VIOLATION OF R.C. [] 2907.02(A)(1)(b);
        RAPE IN VIOLATION OF R.C. [] 2907.02(A)(2); FOUR (4) COUNTS OF
        SEXUAL BATTERY IN VIOLATION OF R.C. [] 2907.03(A)(5); AND
        UNLAWFUL SEXUAL CONDUCT WITH A MINOR IN VIOLATION OF R.C.
        [] 2907.04(A).

        {¶9}    In his second assignment of error, Mr. James challenges the sufficiency of the

evidence presented at trial. Whether a conviction is supported by sufficient evidence is a

question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
                                                4


In carrying out this review, our “function * * * is to examine the evidence admitted at trial to

determine 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 (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.

       {¶10} As the State points out, Mr. James has not argued that the State failed to present

sufficient evidence relative to the elements of each offense. Rather, he asserts that the State

failed to present sufficient evidence because the witnesses provided inconsistent testimony. This

assertion relates to the credibility of the witnesses, which sounds in weight, not sufficiency.

State v. Kuruc, 9th Dist. Medina No. 15CA0088-M, 2017-Ohio-4112, ¶ 35.

       {¶11}    Aside from challenging the witnesses’ allegedly inconsistent testimony, Mr.

James’s only discernable argument in support of his challenge to the sufficiency of the evidence

is that the State’s evidence lacked specificity as to when the alleged abuse occurred for purposes

of establishing three of the counts for sexual battery, each of which pertained to a separate year:

2004, 2005, and 2006. While he acknowledges that the victim testified that the abuse started

when she was seven years old (in 1996) and continued through her graduation from high school

in 2007, he argues that this “broad allusion to a general period of time” is insufficient. We

disagree.

       {¶12} Section 2907.03(A)(5), under which Mr. James was charged, provides that “[n]o

person shall engage in sexual conduct with another, not the spouse of the offender, when * * *

[t]he offender is the other person’s * * *stepparent[.]” As this Court has stated, “[t]he precise
                                                5


date of the offense of sexual battery is not an element of the crime.” State v. Covic, 9th Dist.

Medina No. 11CA0055-M, 2012-Ohio-3633, ¶ 28, citing R.C. 2907.03

       {¶13} The State presented evidence that, if believed, indicated that – aside from a few

months after the Children’s Services investigation in 2003 – Mr. James engaged in sexual

conduct with his stepdaughter several times per week from the time she was seven years old (in

1996) until 2014. Viewing this evidence in a light most favorable to the State, a reasonable jury

could have concluded that Mr. James was guilty beyond a reasonable doubt of sexual battery as

charged in the indictment.

       {¶14} In light of the foregoing, Mr. James’s second assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

       THE CONVICTION OF MR. JAMES FOR THE FOLLOWING: RAPE IN
       VIOLATION OF R.C. [] 2907.02(A)(1)(b); RAPE IN VIOLATION OF R.C. []
       2907.02(A)(2); FOUR (4) COUNTS OF SEXUAL BATTERY IN VIOLATION
       OF R.C. [] 2907.03(A)(5); AND UNLAWFUL SEXUAL CONDUCT WITH A
       MINOR IN VIOLATION OF R.C. [] 2907.04(A), WAS CONTRARY TO THE
       MANIFEST WEIGHT OF THE EVIDENCE.


       {¶15} In his first assignment of error, Mr. James challenges the weight of the evidence

presented at trial. When considering a challenge to the manifest weight of the evidence, this

Court is required to consider 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. Otten, 33 Ohio App.3d

339, 340 (9th Dist.1986).

       {¶16} In support of his assignment of error, Mr. James argues that the victim and S.H.

provided inconsistent and unreliable testimony regarding the events that transpired. He further
                                                  6


argues that their motives render their testimony unreliable. More specifically, Mr. James argues

that the victim was not credible because some of her memories of the abuse came to light as a

result of therapy, the alleged abuse went unnoticed by the other household members, she

recanted her previous accusation of abuse, she wrote loving letters to Mr. James during the

period of the alleged abuse, she did not present any of the allegedly incriminating text messages

Mr. James sent to her at trial, and financial motivations – rather than the safety of her family –

underpinned her decision to report the abuse.

       {¶17} Regarding S.H., Mr. James argues that her testimony contradicted the victim’s

because S.H. testified that she put the victim to bed at night, while the victim testified that he did.

Mr. James also argues that S.H.’s testimony undermined the victim’s testimony because S.H.

testified that she never witnessed or suspected any abuse, that their marriage was stronger after

the Children’s Services investigation, and that – despite having a better relationship with her

daughter as she (the victim) got older – the victim did not disclose the abuse to her until 2015.

       {¶18} Mr. James also challenges S.H.’s testimony based upon the fact that some of it

pertained to information she learned through non-verbal communication. For example, S.H.

testified that the victim did not provide details of the abuse when she and the victim met for

lunch, and that Mr. James never verbalized his guilt when she confronted him a few days later.

Instead, she testified that the victim told her that Mr. James had been hurting her, and that she

(S.H.) understood what the victim meant based upon her appearance and nervous behavior. She

also testified that, based upon the way Mr. James responded when she confronted him –

including packing some of his belongings and leaving the family home – she understood that he

was not going to challenge what the victim had told her.
                                               7


       {¶19} As. Mr. James acknowledges in his merit brief, “the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts[,]” who is

“free to believe all, part, or none of the testimony of each witness.” State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus; Prince v. Jordan, 9th Dist. Lorain No.

04CA008423, 2004-Ohio-7184, ¶ 35. “This Court will not overturn the trial court’s verdict on a

manifest weight of the evidence challenge only because the trier of fact chose to believe certain

witness testimony over the testimony of others.” State v. Hill, 9th Dist. Summit No. 26519,

2013-Ohio-4022, ¶ 15. Mr. James’s challenge to the manifest-weight of the evidence is based

entirely upon the credibility – or alleged lack thereof – of the victim and her mother. The jury,

however, was in the best position to observe the witnesses’ demeanor and to “use th[o]se

observations to weigh the credibility and resolve the conflicts in the testimony.” State v.

Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28. This Court will not substitute our

judgment for that of the jury. State v. Willard, 9th Dist. Medina No. 05CA0096-M, 2006-Ohio-

5071, ¶ 10. Having reviewed the entire record, we cannot say that the jury “clearly lost its way

and created such a manifest miscarriage of justice that the conviction[s] must be reversed and a

new trial ordered.” Otten, 33 Ohio App.3d at 340. Accordingly, Mr. James’s first assignment of

error is overruled.

                                              III.

       {¶20} Mr. James’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MICHAEL J. DUFF, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
