[Cite as State v. Tate, 2013-Ohio-370.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 98221



                                          STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     ALPHONSO TATE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-544177

        BEFORE: E.A. Gallagher, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                    February 7, 2013
ATTORNEY FOR APPELLANT

Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Fallon Radigan
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
 EILEEN A. GALLAGHER, J.:

              {¶1} Alphonso Tate appeals from his conviction received in the Cuyahoga

 County Court of Common Pleas.                             Tate argues that the state failed to support his

 convictions for gross sexual imposition with sufficient evidence and that the jury lost its

 way in finding him guilty.                     Finding no merit to the instant appeal, we affirm the

 judgment of conviction.

              {¶2} On October 22, 2010, C.G., born July 11, 2000, was home alone due to a

 school suspension. C.G. lived with his mother, R.M., and his siblings. At that time,

 R.M. had a relationship with Tate, who would often stay with the family.1 In 2010,

 R.M. worked as a nursing assistant at two different facilities while also attending Brown

 Mackie College in Akron for her nursing degree. R.M. testified that because of her

 busy schedule, Tate would often help with caring for and disciplining her children,

 including C.G.

              {¶3} C.G. testified that on October 22, 2010, Tate picked him up from his

 residence and returned him to Tate’s home, where his mother was sleeping. C.G. stated

 that R.M. woke up and before leaving for work, instructed Tate to return C.G. to his

 home. C.G. testified that Tate did not bring him home that night, instead, the two ate

 Chinese food and watched movies in Tate’s bedroom until they fell asleep.                            C.G.



          1
            The parties are referred to herein by their initials or title in accordance with
this court’s established policy regarding nondisclosure of identities in juvenile cases.
testified that Tate’s home only had furniture in one room so he and Tate slept in the same

bed.

       {¶4} C.G. stated that during the night, Tate woke him up by rubbing his

shoulders. Tate asked C.G. to let him see something and then put his hands down

C.G.’s pants. C.G. testified that he tried to move Tate’s hands away, but that Tate

continued to grab and squeeze his penis. Tate did eventually remove his hands but then

told C.G. to put his hands down Tate’s pants. When C.G. did not comply, Tate pulled

C.G.’s hands into Tate’s pants. C.G. testified that Tate instructed him to squeeze and

play with his penis. C.G. described that “some stuff came out * * * it was slimy.”

Once this happened, C.G. went to the bathroom to wash his hands and returned to the

bedroom. Tate again told C.G. to put his hands down Tate’s pants, instructing him to

squeeze, twist and play with Tate’s penis. C.G. stated that this occurred until more

“slimy stuff” came out of Tate’s penis. C.G. went to the bathroom a second time to

wash his hands and, again, returned to the bed where Tate lie.

       {¶5} C.G. testified that he fell asleep after this second incident, but that Tate

woke him up again by sticking his finger down the backside of C.G.’s “butt.” C.G.

stated that Tate never inserted his finger inside C.G. but that Tate told him “don’t tell

nobody.” C.G. testified that he fell back asleep and woke up when his mother returned

to Tate’s home.

       {¶6} R.M. testified that when she saw C.G. at Tate’s home, she was angry

because that meant that he would miss another day of school. R.M. stated that she, C.G.
and Tate drove to Brown Mackie College in Akron because she had to finish an

assignment that was due that same day. R.M. stated that C.G. and Tate waited in the car

while she worked on the assignment in the library. Once R.M.’s paper was done, the

three drove back to Cleveland. When they arrived in Cleveland, Tate asked R.M. to

drop him off at a friend’s house and wait while he visited. Tate exited the vehicle,

leaving C.G. and R.M. alone.

       {¶7} After several minutes of questioning by R.M., C.G. told R.M. that Tate

touched him and that he never wanted to go to Tate’s home again. R.M. testified that

she did not call the police or take her son for a medical evaluation until one week later.

R.M. stated that she delayed the police and medical involvement because she was

overwhelmed with the whole situation and her life.

       {¶8} C.G.’s behavior began to decline in March 2011 when he began cutting

himself with scissors and drew pictures that demonstrated that he was going to kill

himself. C.G.’s behavior escalated to the point that C.G. was admitted to Fairview

Hospital. While at the hospital, C.G. spoke with Registered Nurse Kathy Goellnitz.

Goellnitz testified that C.G. complained of suicidal thoughts and gave a history of the

sexual assault that occurred in October 2010. Specifically, C.G. told Nurse Goellnitz

that Tate “touched my private parts * * * he made me rub his private parts and put his

finger in my butt.” Nurse Goellnitz performed a sexual assault examination but the

delay of five months contributed to the lack of any evidence of a sexual assault.

       {¶9} The Cuyahoga County Grand Jury indicted Tate with one count of
kidnapping, one count of rape and five counts of gross sexual imposition; to each were

attached sexual motivation and sexually violent predator specifications. Tate elected to

try all specifications to the court with the remainder of the charges being tried to a jury.

A jury found Tate not guilty of the charges of kidnapping, rape and one count of gross

sexual imposition and guilty of gross sexual imposition as charged in Counts 3, 4 and 5.

The trial court granted Tate’s motion for acquittal pursuant to Crim.R. 29 on Count 7 and

found Tate not guilty on the attached specifications. The trial court imposed a prison

term of 48 months on each count of gross sexual imposition to be served concurrently

with one another.

        {¶10} Tate appeals, raising the following assignments of error.

                                  Assignment of Error I

        The convictions for gross sexual imposition were against the manifest
        weight of the evidence.

                                  Assignment of Error II

        The convictions for gross sexual imposition were not supported by
        sufficient evidence and the trial court erred when it overruled Appellant’s
        Motion for Criminal Rule 29 acquittal.

        {¶11} Although these arguments involve different standards of review, we will

consider them together because we find the evidence in the record applies equally to

both.

        {¶12} The standard of review with regard to the sufficiency of the evidence is set

forth in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), as follows:
       Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
       acquittal if the evidence is such that reasonable minds can reach different
       conclusions as to whether each material element of a crime has been
       proved beyond a reasonable doubt.

       {¶13} Bridgeman must be interpreted in light of the sufficiency test outlined in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

in which the Ohio Supreme Court held:

       An appellate court’s function when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence
       submitted at trial to determine whether such evidence, if believed, would
       convince the average mind of the defendant’s guilt beyond a reasonable
       doubt. 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. (Citation omitted.)

       {¶14} In evaluating a challenge based on manifest weight of the evidence, a

court sits as the 13th juror, and intrudes its judgment into proceedings that it finds to be

fatally flawed through misrepresentation or misapplication of the evidence by a jury that

has “lost its way.” State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d

541. As the Ohio Supreme Court declared:

       Weight of the evidence concerns “the inclination of the greater amount of
       credible evidence, offered in a trial, to support one side of the issue rather
       than the other. It indicates clearly to the jury that the party having the
       burden of proof will be entitled to their verdict, if, on weighing the
       evidence in their minds, they shall find the greater amount of credible
       evidence sustains the issue which is to be established before them.
       Weight is not a question of mathematics, but depends on its effect in
       inducing belief.”

       * * * 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. (Citations
       omitted.) Id. at 387, 547.

       {¶15} This court is mindful that weight of the evidence and the credibility of

witnesses are primarily for the trier of fact and a reviewing court must not reverse a

verdict where the trier of fact could reasonably conclude from substantial evidence that

the state has proven the offense beyond a reasonable doubt. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), at paragraphs one and two of the syllabus. The goal

of the reviewing court is to determine whether the new trial is mandated. A reviewing

court should only grant a new trial in the “exceptional case in which the evidence weighs

heavily against a conviction.” (Citation omitted.) State v. Lindsey, 87 Ohio St.3d 479,

2000-Ohio-465, 721 N.E.2d 995.

       {¶16} In the present case, the jury found Tate guilty of three counts of gross

sexual imposition, which, pursuant to R.C. 2907.05(A)(4), 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:

       (4) The 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.

       {¶17} “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).

       {¶18} The Ohio Revised Code does not define “sexual arousal” or “sexual

gratification.”   In re Anderson, 116 Ohio App.3d 441, 443, 688 N.E.2d 545 (12th

Dist.1996). However, R.C. 2907.01(B) “contemplate[s] 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, 523 N.E.2d 322 (10th Dist.1987). See also

Anderson at 443.

       {¶19} In determining whether sexual contact occurred, “the proper method is to

permit the trier of fact to infer from the evidence presented at trial whether the purpose

of the defendant was sexual arousal or gratification by his contact with those areas of the

body described in R.C. 2907.01.” State v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d

1009 (9th Dist.1991).    “While the purpose of sexual arousal or gratification is an

essential element of the offense of gross sexual imposition, there is no requirement that

there be direct testimony regarding sexual arousal or gratification.” State v. Meredith,

12th Dist. No. CA2004-06-062, 2005-Ohio-2664.

       {¶20} Whether the touching or contact was performed for the purpose of sexual

arousal or gratification is a question of fact to be inferred from the type, nature and

circumstances of the contact.     Meredith, citing Anderson at 443-444, and State v.

Mundy, 99 Ohio App.3d 275, 289, 650 N.E.2d 502 (2d Dist.1994). In determining the

defendant’s purpose, the trier of fact may infer what the defendant’s motivation was in
making physical contact with the victim. Meredith, citing Mundy and Cobb. “If the

trier of fact determines that the defendant was motivated by desires of sexual arousal or

gratification, and that the contact occurred, then the trier of fact may conclude that the

object of the defendant’s motivation was achieved.” Cobb at 185.

        {¶21} To prove its case, the state presented the testimony of C.G., who was 11

years old at the time of Tate’s trial. C.G. testified that in 2010, Tate put his hand down

C.G.’s pants and touched his penis. C.G. also stated that Tate made him touch and

squeeze Tate’s penis to the point where “slimy stuff” came out on two occasions. C.G.

testified that this incident took place in Tate’s bedroom, on Tate’s bed, inside Tate’s

home.

        {¶22} The state also presented the testimony of R.M. and Nurse Goellnitz, both of

whom corroborated C.G.’s testimony.

        {¶23} Contrary to what Tate claims, this evidence is sufficient to allow the trial

court to find that Tate engaged in “sexual contact” on three occasions with C.G. when he

touched C.G.’s penis and when he made C.G. touch his penis. These body parts qualify

as “erogenous zones” for purposes of R.C. 2907.01(B). Additionally, the manner of

Tate’s contact with C.G. was sufficient to allow the court to infer that Tate’s touching of

C.G. was undertaken for the purpose of sexual gratification. In re Anderson at 441.

Therefore, there was sufficient evidence to permit the trial court to find that Tate’s acts

amounted to gross sexual imposition.

        {¶24} Furthermore, we do not find that the jury lost its way in convicting Tate of
the three charges of gross sexual imposition. Tate argues that the five-month delay

between the incident and C.G.’s medical examination coupled with the lack of physical

evidence of the crimes prove that the jury lost its way.         We disagree.    The state

supported its case with the testimonial evidence of C.G., who clearly stated that Tate

touched his penis and made him touch Tate’s penis. The fact that no physical evidence

documenting this touching was presented to the jury does not mean that no sexual

contact took place. Additionally, the jury was in the best position to weigh the evidence

and the credibility of witnesses. As the reviewing court, we find that the trier of fact

could reasonably conclude from the substantial evidence presented by the state, that the

state has proven the offenses beyond a reasonable doubt. Accordingly, we cannot state

that the trier of fact lost its way and created such a manifest miscarriage of justice that

the convictions must be reversed and a new trial ordered.

       {¶25} Tate’s first and second assignments of error are overruled.

       {¶26} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from 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 appeal 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.




EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
