[Cite as State v. Buzanowksi, 2014-Ohio-1947.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99854



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                           WOJCIECH BUZANOWSKI
                                                       DEFENDANT-APPELLANT




                       JUDGMENT:
   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-10-540907

        BEFORE: E.A. Gallagher, J., Rocco, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: May 8, 2014
ATTORNEYS FOR APPELLANT

Mark R. Devan
Steven D. Shafron
Berkman, Gordon, Murray & Devan
55 Public Square
Suite 2200
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Adam M. Chaloupka
        Scott Zarzycki
Assistant County Prosecutors
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant Wojciech Buzanowski appeals his convictions from

the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm, in

part, reverse, in part, and remand.

       {¶2} A true bill indictment was returned against Buzanowski, charging him with

two counts of rape, two counts of sexual battery, kidnapping, gross sexual imposition,

unlawful sexual conduct with a minor and three counts of contributing to the unruliness

or delinquency of a minor. Buzanowski pleaded not guilty to the indictment, and the

case proceeded to a jury trial.

       {¶3} At the conclusion of the state’s case the trial court granted a Crim.R. 29

motion dismissing one count of rape and two counts of contributing to the unruliness or

delinquency of a minor. The jury found Buzanowski not guilty of the two counts of

sexual battery and kidnapping but guilty of the remaining count of contributing to the

unruliness or delinquency of a minor.       The jury was unable to reach a verdict on the

counts of rape, gross sexual imposition and unlawful sexual conduct with a minor. The

trial court declared a mistrial as to those counts.

       {¶4} Prior to retrial, Buzanowski filed a motion to dismiss the count of rape

based on double jeopardy grounds, and the trial court granted the motion.       The case

proceeded to a second jury trial on the charges of gross sexual imposition and unlawful

sexual conduct with a minor.
       {¶5} The following facts were adduced at Buzanowski’s second trial: on the

night of December 23, 2009, H.K. and two female friends, A.K. and M.B., were at A.K.’s

home coloring M.B.’s hair. At the time, H.K. and A.K. were 15 years of age and M.B.

was 17. M.B. received a phone call from Buzanowski inviting her to come to his home

to hang out. M.B., H.K. and A.K. agreed to go to Buzanowski’s home but concocted a

story about going to the movies to tell to their parents.

       {¶6} At Buzanowski’s home the girls met Buzanowski and his friend Nenad

Banic in the living room. Buzanowski’s roommate, Matej Milos, was also at the house

but he lived in the basement and spent the majority of the evening there playing video

games.   Buzanowski asked the girls how old they were before offering everyone a shot

of cherry vodka. H.K. testified that she informed Buzanowski that she was 15 years old

and a sophomore in high school. H.K.’s testimony was contradicted by A.K., M.B.,

Banic and Milos, all of whom asserted that there was no precise discussion of age but

rather that H.K. told Buzanowski that they were “old enough to party” or some close

variation.

       {¶7} While in the living room, H.K. drank two to three shots of vodka. At one

point she began dancing near Buzanowski and eventually sat on his lap and “straddled”

him. H.K. and Buzanowski began to “make out,” causing A.K., M.B. and Banic to feel

uncomfortable and then leave the living room and go to the kitchen.   The bottle of cherry

vodka remained in the living room with H.K. and Buzanowski. A.K. “peeked” into the

living room from the kitchen and saw H.K. on Buzanowski’s lap. A.K. did not believe
H.K. to be intoxicated. A.K. saw Buzanowski’s hand on H.K.’s crotch but did not

intervene because she felt H.K. was fine, acting on her own accord, and that the activities

with Buzanowski were consensual.

       {¶8} After 30 to 45 minutes A.K., M.B. and Banic returned to the living room

and found that H.K. and Buzanowski had left the room and the door to Buzanowski’s

bedroom was closed. H.K. testified that she was feeling drunk and that Buzanowski

took her to his bedroom. H.K. testified that Buzanowski had to help her to the bedroom

because she was stumbling and could not walk by herself. H.K. remembered being in a

state of undress but did not know how she came to that condition. Buzanowski was also

undressed. H.K. testified that Buzanowski was on top of her, vaginally penetrating her

with his penis. She testified that during this time she was blacking out and “coming in

and out” of consciousness. She eventually vomited over the side of Buzanowski’s bed

and left the room.

       {¶9} A.K., M.B. and Banic were in the living room when H.K. exited the

bedroom. H.K. testified that she immediately told A.K. that Buzanowski had raped her.

 No other witness, including A.K., testified to this.        A.K. testified that she left

Buzanowski’s home that night believing that everything that had occurred between H.K.

and Buzanowski was consensual. A.K. and M.B. agreed that when H.K. exited the

bedroom her appearance, including her clothing and hair, was disheveled.             M.B.

described H.K. as drunk and slurring her speech, however, M.B. testified that H.K. was

not so impaired that she did not know what was going on. A.K. testified that H.K. was
stumbling when she exited the bedroom and that she joined H.K. in the bathroom where

H.K. vomited.

       {¶10} During this time period H.K.’s father began repeatedly calling H.K.’s phone.

 The girls were afraid to answer his calls because he was described as a strict and

intimidating parent and they feared his wrath when he discovered that H.K. was

intoxicated.    H.K. wanted to go home because of the repeated phone calls and the late

hour that was considerably past her curfew.    A.K. left Buzanowski’s home before H.K.

and M.B. because she had an earlier curfew.      M.B. drove H.K. home and testified that

Buzanowski helped her to the car where they hugged.       M.B. testified that there was no

discussion of Buzanowski on the ride home but rather the focus was on everyone having

their stories straight about going to the movies. In contrast, H.K. denied any recollection

of the movie cover story. When M.B. dropped H.K. off at her home, H.K. walked from

the curb to the house unassisted.

       {¶11} H.K.’s father discovered H.K. intoxicated when she returned home and

demanded answers from A.K. and M.B. A.K. testified that he called her 20 times and

she divulged to him what she knew of H.K.’s drinking and interactions with Buzanowski

after she was threatened by H.K.’s father.   H.K.’s father spoke with an officer of the city

of Parma Heights police department the next morning and was advised to take H.K. to

Fairview Hospital to have a rape kit performed. At Fairview, H.K. spoke with both a

SANE nurse and Detective Jim Griffith of the Parma Heights police department outside

the presence of her father.   Although H.K.’s narrative history to the SANE nurse made
no mention of any sexual conduct, on the assault history form she checked a box for

“vaginal penetration” by “penis” and denied any anal penetration.           Detective Griffith

spoke with her at the hospital but she again omitted details of any sexual conduct.

Detective Griffith testified that he did not receive a full statement from H.K. until July

2010. Detective Griffith also testified that H.K. had failed to report key details such as

her claim at trial that she had informed Buzanowski that she was 15 and that she told

Buzanowski “no” during their sexual conduct.

         {¶12} Forensic scientists from the Ohio B.C.I. testified that vaginal, anal and oral

swabs from H.K.’s       SANE exam as well as underwear recovered from H.K. were tested

and compared to samples obtained from Buzanowski. Semen matching Buzanowski’s

DNA was identified on both the anal swab and H.K.’s underwear.

         {¶13} At the conclusion of the second trial, the jury returned guilty verdicts against

Buzanowski on both counts: gross sexual imposition and unlawful sexual conduct with a

minor.     The trial court sentenced Buzanowski to two years of community control

sanctions including a six-month term in the Cuyahoga County jail and classified him as a

Tier II sex offender.    Buzanowski appeals, asserting five assignments of error.

         {¶14} Buzanowski’s first assignment of error states:

         The trial court erred in failing to instruct the jury on the issue of

         recklessness, an essential element of the offense of contributing to [the]

         unruliness or delinquency of a child, R.C. 2919.24(A)(1).

         {¶15} R.C. 2919.24(A)(1) provides in pertinent part that
       No person * * * shall do any of the following: (1) Aid, abet, induce, cause,
       encourage, or contribute to a child * * * becoming an unruly child, as
       defined in section 2151.022 of the Revised Code, or a delinquent child, as
       defined in section 2152.02 of the Revised Code * * *.

       {¶16} The Ohio Supreme Court has held that recklessness is the culpable mental

state that applies to the offense of contributing to the unruliness or delinquency of a child

under R.C. 2919.24. State v. Moody, 104 Ohio St.3d 244, 2004-Ohio-6395, 819 N.E.2d

268; State v. Middleton, 12th Dist. Warren No. CA2012-08-082, 2013-Ohio-1848, ¶ 9.

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. R.C. 2901.22(C). A person is reckless with respect to

circumstances when, with heedless indifference to the consequences, he perversely

disregards a known risk that such circumstances are likely to exist. Id.

       {¶17} The trial court failed to instruct on recklessness as an element of

contributing to the unruliness or delinquency of a child. However, a defendant may not

assign as error the giving or omitting any instructions unless he objects before the jury

retires and further objects by “stating specifically the matter objected to and the grounds

of the objection.”   Crim.R. 30(A). The record reflects that Buzanowski failed to object

to the instruction at trial and, therefore, has waived all but plain error on appeal. State v.

Burns, 8th Dist. Cuyahoga No. 95465, 2011-Ohio-4230, ¶ 9. “Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention

of the court.” Crim.R. 52(B).
       As a general rule, a defendant is entitled to have the jury instructed on all
       elements that must be proved to establish the crime with which he is
       charged, and, where specific intent or culpability is an essential element of
       the offense, a trial court’s failure to instruct on that mental element
       constitutes error.

State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980).              However, a trial

court’s failure to separately and specifically charge the jury on every element of each

crime with which a defendant is charged does not per se constitute plain error nor does it

necessarily require reversal of a conviction.    Only by reviewing the record in each case

can the probable impact of such a failure be determined, and a decision reached as to

whether substantial prejudice may have been visited on the defendant, thereby resulting in

a manifest miscarriage of justice.

Id.   An erroneous jury instruction does not constitute a plain error or defect under

Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been

otherwise. State v. Burns, 8th Dist. Cuyahoga No. 95465, 2011-Ohio-4230, ¶ 10, citing

State v. Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d 452 (1983).

       {¶18} We find that the trial court’s failure to instruct the jury on the culpable

mental state that applies to the offense of contributing to the unruliness or delinquency of

a child resulted in a manifest miscarriage of justice in this case.       Unlike Adams, the

mental state of Buzanowski, and specifically, his knowledge of the victim’s age prior to

offering her alcohol, was heavily disputed in the first trial.   The state presented evidence

that H.K. informed Buzanowski that she was 15 years old and only a sophomore in high

school prior to offering her alcohol. However, H.K. offered this testimony for the first
time at trial and admitted that she had omitted this key fact from her numerous prior

statements of what had occurred.     In contrast, during the first trial three of the four other

witnesses to the events testified that when Buzanowski inquired if she was old enough to

drink, H.K. responded with some variation of “old enough to party.” The fourth witness

did not recall any discussion of age. Two different witnesses, including H.K.’s own

friend M.B., testified that H.K. presented the appearance of a 19 to 20 year old.        M.B.,

who was 17 years old at the time, explained that H.K. had on makeup, her hair was teased

up and that people commonly thought H.K. was older than her despite their age

difference.

         {¶19} Thus, although there was some testimony from which one could possibly

infer that Buzanowski had reason to believe H.K. was under 18 years old, such an

inference was not required based upon the evidence. Thus, given the omission of the

recklessness standard that the jury was required to apply to Buzanowski’s actions for the

offense of contributing to the unruliness or delinquency of a child under R.C. 2919.24 and

the significant testimony that H.K. verbally implied and physically appeared to be 19 to

20 years old or older, this court concludes the erroneous instruction constituted plain

error.

         {¶20} Buzanowski’s first assignment of error is sustained.

         {¶21} Buzanowski’s second assignment of error states:

         The evidence was insufficient to support a conviction for gross sexual

         imposition, R.C. 2907.05(A)(5), where the evidence was that at the time
      that the appellant and the complainant were engaged in sexual contact, she

      recalled specific events before, during and after sexual activity and there

      was no evidence that she was substantially impaired or that the appellant

      knew or should have known she was substantially impaired, and the trial

      court erred in denying his motion for a judgment of acquittal of gross sexual

      imposition.

      {¶22} This court has said that, in evaluating a sufficiency of the evidence

argument, courts are to assess not whether the state’s evidence is to be believed but

whether, if believed, the evidence against a defendant would support a conviction. State

v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry then 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.

      {¶23} Buzanowski was charged with gross sexual imposition in violation of R.C.

2907.05(A)(5), which provides in pertinent 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:

      ***

      (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.

       {¶24} A.K.’s testimony established that sexual contact occurred in the living room

when Buzanowski had his hand on H.K.’s crotch as well as in the bedroom when his

penis touched her vagina.     See, e.g., State v. Ball, 4th Dist. Hocking No. 07CA2,

2008-Ohio-337, ¶ 27 (holding that a defendant’s touching of a victim’s mouth with his

penis constituted sexual contact);   State v. Lemasters, 8th Dist. Cuyahoga No. 97611,

2012-Ohio-3080, ¶ 10 (noting that there may be circumstances in which gross sexual

imposition and rape could be allied offenses of similar import).

       {¶25} The sole question remaining is whether the state presented sufficient

evidence that   Buzanowski     knew or had reasonable cause to believe that H.K. was

substantially impaired. The phrase “substantially impaired” is not defined in the Ohio

Revised Code but “must be given the meaning generally understood in common usage.”

State v. Zeh, 31 Ohio St.3d 99, 103, 509 N.E.2d 414 (1987). In Zeh, the Ohio Supreme

Court held that the state may establish substantial impairment at trial through evidence

showing a reduction or decrease in the victim’s ability to act or think. Voluntary

intoxication is a “mental or physical condition” that could, at times, cause substantial

impairment. State v. Theodus, 8th Dist. Cuyahoga No. 97290, 2012-Ohio-2064, ¶ 8.
       {¶26} However, the statutes do not criminalize sexual conduct resulting from an

alcohol or drug-induced state of lowered inhibitions.         State v. Freeman, 8th Dist.

Cuyahoga No. 95511, 2011-Ohio-2663, ¶ 17.           Rather, a person’s conduct becomes

criminal under R.C. 2907.05(A)(5) only when engaging in sexual contact with an

intoxicated victim when the individual knows or has reasonable cause to believe that the

victim’s ability to resist or consent is substantially impaired because of voluntary

intoxication. State v. Rivera, 8th Dist. Cuyahoga No. 97091, 2012-Ohio-2060, ¶ 22.

       {¶27} Even if it could be argued that the testimony failed to establish that H.K.

was substantially impaired at the time of the conduct in the living room, the state

certainly presented sufficient evidence that H.K. was substantially impaired in the

bedroom. H.K. testified that she drank two to three shots of vodka in the living room.

While she stated that she was merely “tipsy” in the living room, she testified that she felt

drunk when she left the living room to go to the bedroom and at that point she stumbled

and needed Buzanowski’s assistance to walk. In addition to H.K.’s own testimony

regarding blacking out in the bedroom, witnesses observed H.K.’s intoxicated state when

she left the bedroom.

       {¶28} We find that the state presented sufficient evidence that Buzanowski knew

or had reasonable cause to believe that H.K. was substantially impaired at the time of the

gross sexual imposition.

       {¶29} Buzanowski’s second assignment of error is overruled.

       {¶30} Buzanowski’s third assignment of error states:
       The appellant’s conviction of gross sexual imposition should be reversed

       because his re-trial and conviction of that offense was barred by the

       collateral estoppel component of the Double Jeopardy Clauses of the Fifth

       and Fourteenth Amendments to the United States Constitution and Article I,

       Section 10 of the Ohio Constitution.

       {¶31} Buzanowski argues that the state was barred from pursuing a re-trial on the

charge of gross sexual imposition after the jury in the first trial was hung on that count.

Buzanowski’s argument is based on the fact that the jury in his first trial acquitted him of

sexual battery and, thus, determined that either H.K. was not substantially impaired or

that he did not know or have cause to reasonably believe that she was so impaired.

Buzanowski argues that because the jury, in acquitting him of sexual battery, determined

this factual issue in his favor, under the doctrine of collateral estoppel he could not be

subject to a second trial where the same factual issue would need to be determined

against him in order to convict him of gross sexual imposition. For the reasons below,

we find his argument persuasive.

       {¶32} The Double Jeopardy Clause of the Fifth Amendment provides that no

person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

 Fifth Amendment to the U.S. Constitution. This is enforceable to the states through the

Fourteenth Amendment.      Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d

707 (1969). The Double Jeopardy Clause bars not only multiple punishments for the same

offense but also affords protection against successive prosecutions for the same offense
after acquittal or conviction. State v. Edwards, 8th Dist. Cuyahoga Nos. 94568 and

94929, 2011-Ohio-95, ¶ 17, citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53

L.Ed.2d 187 (1977).

“Even if two offenses are sufficiently different to permit the imposition of consecutive

sentences, successive prosecutions will be barred in some circumstances where the

second prosecution requires the relitigation of factual issues already resolved by the first.”

Id. at ¶ 19, quoting Brown.

       {¶33} The United States Supreme Court held that the rule of collateral

estoppel is embodied by the Fifth Amendment guarantee against double jeopardy.          Ashe

v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970).

       Collateral estoppel is the doctrine that recognizes that a determination of

       facts litigated between two parties in a proceeding is binding on those

       parties in all future proceedings. Collateral estoppel means simply that

       when an issue of ultimate fact has once been determined by a valid and final

       judgment, that issue cannot again be litigated between the same parties in

       any future lawsuit.

(Internal citation omitted.) State v. Potter, 8th Dist. Cuyahoga No. 90821,

2008-Ohio-5265, ¶ 24, quoting State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112

(1997).

       {¶34} In Lovejoy, a jury found the defendant not guilty as to some counts, but was

hung as to other counts.     The Ohio Supreme Court rejected the application of double
jeopardy and collateral estoppel to the hung counts based on the jury’s inconsistent

responses to different counts.1

        {¶35} In 2009, the United States Supreme Court addressed the convergence of

double jeopardy, collateral estoppel and hung counts in Yeager v. United States, 557 U.S.

110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009). In Yeager, the defendant was charged with

securities and wire fraud, insider trading and money laundering.                  The jury acquitted

Yeager on the fraud counts but failed to reach a verdict on the insider trading and money

laundering counts.      The government recharged Yeager with some of the insider trading

and money laundering counts.             Although the Circuit Court of Appeals in Yeager

concluded that the jury must have found when it acquitted Yeager that he did not have

any insider information, the court refused to apply collateral estoppel to his subsequent

re-prosecution on the insider trading and money laundering counts due to the

inconsistency between the acquittals and the hung counts.

        {¶36} The Supreme Court reversed and overruled the “inconsistency” analysis

relied upon by the        Court of Appeals.         The court recognized that the doctrine of

collateral estoppel extended to criminal proceedings including those where a jury reaches

a verdict on some counts but is hung on others. The court held that in order to decipher


        1
         However, this court noted in State v. Dunbar, 8th Dist. Cuyahoga No. 87317,
2007-Ohio-3261, that the Sixth Circuit essentially reversed the Supreme Court of Ohio when it
granted Lovejoy’s writ of habeas corpus by determining that collateral estoppel applied to bar
Lovejoy’s subsequent prosecution. The Sixth Circuit “reasoned that because his first trial had resulted
in a hung jury on the issues of identity and intent to kill, that these issues were previously decided in
Lovejoy’s favor and could not be relitigated.” Id. at fn. 6.
what a jury has decided, courts should examine the record of a prior proceeding, taking

into account the pleadings, evidence, charge, and other relevant matter, and conclude

whether a rational jury could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration. Id. at 120. The court held

that a hung count is not a relevant part of the record of the prior proceeding, stating:

“Because a jury speaks only through its verdict, its failure to reach a verdict cannot — by

negative implication — yield a piece of information that helps put together the trial

puzzle.” Id. at 121. Accordingly, the court found that the consideration of hung counts

has no place in the issue-preclusion analysis.   The court concluded that if a jury decided

a critical issue of ultimate fact in favor of a defendant, then he was protected from further

prosecution for any charge for which that fact is an essential element. Id. at 123.

       {¶37} In addition to gross sexual imposition in violation of R.C. 2907.05(A)(5),

defined above, Buzanowski was charged, and acquitted, of the crime of sexual battery in

violation of R.C. 2907.05(A)(2), which provides in pertinent part:

       (A) No person shall engage in sexual conduct with another, not the spouse
       of the offender, when any of the following apply:

       (2) The offender knows that the other person’s ability to appraise the nature

       of or control the other person’s own conduct is substantially impaired.

       {¶38} Buzanowski correctly notes that he did not contest at trial the fact that

sexual conduct occurred between himself and H.K.           H.K.’s testimony was the only

account of what occurred in the bedroom.      In fact, the defense acknowledged this point

in closing argument stating:
      The semen that was present, yeah, semen was present.     I mean, it wasn’t a

      big issue in the case, because no one is saying that nothing happened.    So

      the presence of the semen, again, as I said, * * * the scientists said the

      presence of semen does not mean that anything was done by force or in

      violation of law.

      {¶39} The record reflects that Buzanowski instead contested H.K.’s alleged

impairment and argued that the sexual conduct was consensual. H.K.’s testimony that

sexual conduct occurred was uncontroverted and strongly supported by DNA evidence.

      {¶40} Although gross sexual imposition requires only sexual contact while sexual

battery requires sexual conduct, as discussed in Buzanowski’s second assignment of error,

the undisputed testimony of H.K. that Buzanowski vaginally penetrated her with his penis

constituted both sexual conduct as well as sexual contact. As the elements of sexual

conduct and sexual contact were not in dispute at trial, we can only conclude that the

jury’s acquittal on the sexual battery was based upon the element of           substantial

impairment.

      {¶41} This court has previously noted that to establish a violation of either gross

sexual imposition or sexual battery, the state must establish both that the victim was

substantially impaired and that the defendant knew or had cause to reasonably believe the

victim was substantially impaired, either mentally or physically. State v. Rivera, 8th

Dist. Cuyahoga No. 97091, 2012-Ohio-2060, ¶ 20.
         {¶42} We are left with the inescapable conclusion that the jury in Buzanowski’s

first trial concluded that either H.K. was not substantially impaired or at the very least

Buzanowski lacked knowledge of such impairment.             Because the jury resolved this

factual issue in favor of Buzanowski when it acquitted him of sexual battery in violation

of R.C. 2907.05(A)(2) at his first trial, pursuant to Yeager the state was precluded from

retrying him on the hung count of gross sexual imposition for which that fact was an

essential element.

         {¶43} Buzanowski’s third assignment of error is sustained.

         {¶44} Buzanowski’s fourth assignment of error states:

         The trial court committed reversible error when, over objection, it allowed

         the SANE nurse’s transcription of the complainant’s statement into

         evidence, which constituted inadmissible hearsay, and then included that

         statement in exhibits that were sent to the jury for consideration during its

         deliberations.

         {¶45} Buzanowski argues that the trial court erred in admitting into evidence a

narrative statement recorded by the SANE nurse during her examination of H.K.            The

nurse testified that the narrative reflected the recounting of the incident in H.K.’s own

words.      Buzanowski contends that H.K.’s statements made during the medical

examination were hearsay and were not made for the purposes of medical diagnosis or

treatment and, therefore, did not fall within the hearsay exception under Evid.R. 803(4).
       {¶46} Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it

falls within an exception provided by the rules of evidence. Should hearsay statements

be admitted improperly, however, such error does not necessarily require reversal of the

outcome of the trial if it was harmless.      See Arizona v. Fulminante, 499 U.S. 279,

306-309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

       {¶47} Crim.R. 52(A) describes a harmless error as one that “does not affect

substantial rights [and therefore] shall be disregarded.” In order to find harmless error in a

criminal matter, a reviewing court must find that the error was harmless beyond a

reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967).   When determining whether the admission of evidence is harmless, this court

must find that “there is no reasonable probability that the evidence may have contributed

to the defendant’s conviction.”    State v. Walker, 8th Dist. Cuyahoga No. 68889, 1996

Ohio App. LEXIS 1691 (Apr. 25, 1996), citing State v. Johnson, 71 Ohio St.3d 332, 643

N.E.2d 1098 (1994).

       {¶48} Evid.R. 803(4) allows, as an exception to the hearsay rule, the admission of

“statements made for purposes of medical diagnosis or treatment and describing medical

history, or past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as reasonably pertinent to

diagnosis or treatment.”   The staff notes to the rule provide in pertinent part:
       The circumstantial guaranty of trustworthiness of this exception is derived

       from the assumption that a person will be truthful about his physical

       condition to a physician because of the risk of harmful treatment resulting

       from untruthful statements. * * * The exception is limited to those

       statements made by the patient which are reasonably pertinent to an

       accurate diagnosis and should not be a conduit through which matters of no

       medical significance would be admitted.

Staff Notes to Evid.R. 803(4).

       {¶49} “When examining the admissibility of hearsay statements under Evid.R.

803(4), the primary inquiry is whether the statements were made for the purposes of

medical diagnosis or treatment, as opposed to some other purpose.” Fields v. CSX

Transp., Inc., 197 Ohio App.3d 561, 2011-Ohio-6761, 968 N.E.2d 70, ¶ 17 (8th Dist.). As

stated by the Ohio Supreme Court: “The test under Evid.R. 803(4) goes solely to whether

a statement was made for purposes of medical diagnosis or treatment.        If a statement is

made for purposes of diagnosis or treatment, it is admissible pursuant to Evid.R. 803(4).”

 State v. Dever, 64 Ohio St.3d 401, 414, 596 N.E.2d 436 (1992).

       {¶50} The narrative in this instance contains scant information that could be used

for medical diagnosis or treatment.    In fact, the narrative noticeably omits any mention

of sexual contact or sexual conduct between Buzanowski and H.K. This point was not

lost upon Buzanowski’s trial attorney who used it to attack the credibility of H.K. at trial.
       {¶51} Although the narrative statement is not protected by the hearsay exception

under Evid.R. 803(4), we find that the admission of these hearsay statements did not

violate appellant’s confrontation rights, and constituted harmless error.       Therefore, we

do not find that reversal is required in this matter.

       {¶52} H.K., the declarant, testified at trial and was subject to cross-examination.

Because defense counsel was able to cross-examine H.K., appellant’s confrontation rights

were not violated.        See State v. Simmons, 8th Dist. Cuyahoga No. 98613,

2013-Ohio-1789, ¶ 27, citing State v. Gray, 12th Dist. Butler No. CA2011-09-176,

2012-Ohio-4769, ¶ 48.      Furthermore, the SANE nurse testified at trial and the defense

cross-examined her on her recitation of H.K.’s statements.

       {¶53} Additionally, the error in admitting H.K.’s narrative was harmless pursuant

to Crim.R. 52(A) because it was merely cumulative to the admissible testimony of H.K.

Id. at ¶ 28, citing State v. Greer, 8th Dist. Cuyahoga No. 91983, 2009-Ohio-4228, ¶ 59.

H.K. took the stand and provided testimony regarding the events of the night including

the information provided in her narrative.      In fact, the narrative was actually a detriment

to the state’s case as it omitted any mention of sexual conduct and many other important

details to which H.K. incongruously testified at trial.     The narrative was actually a key

component of Buzanowski’s argument that H.K. repeatedly offered different accounts of

the events that night and lacked credibility.
       {¶54} It cannot be said that the result of the trial would have been otherwise,

absent the inclusion of the narrative at trial.   We, therefore, find that the trial court’s

error in admitting the narrative was harmless.

       {¶55} Buzanowski’s fourth assignment of error is overruled.

       {¶56} Buzanowski’s fifth assignment of error states:

       The appellant’s convictions for gross sexual imposition and unlawful sexual
       conduct with a minor are against the manifest weight of the evidence where
       the complainant admitted that her statements to law enforcement personnel,
       family and hospital staff were not consistent with her testimony, that she
       could not recall many of the facts, that her version of the facts changed over
       time, and where all of the state’s witnesses contradicted the complainant’s
       testimony on essential elements of the offenses.

       {¶57} Buzanowski argues that his convictions were against the manifest weight of

the evidence. A manifest weight challenge questions whether the prosecution met its

burden of persuasion.    State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶

27. When considering a manifest weight challenge, a reviewing court reviews the entire

record, weighs the evidence and all reasonable inferences therefrom, considers the

credibility of the witnesses and determines whether the finder of fact clearly lost its way.

State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing

court may reverse the judgment of conviction if it appears that 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.   Id.

       {¶58} Having found that Buzanowski’s conviction for gross sexual imposition was

barred by double jeopardy, we need not address that charge here. Buzanowski was
convicted of unlawful sexual conduct with a minor in violation of R.C. 2907.04, which

provides in pertinent part:

       (A) No person who is eighteen years of age or older shall engage in sexual
       conduct with another, who is not the spouse of the offender, when the
       offender knows the other person is thirteen years of age or older but less
       than sixteen years of age, or the offender is reckless in that regard.

       {¶59} As Buzanowski has not disputed that sexual conduct occurred between

himself and H.K., the sole question before this court on his manifest weight challenge is:

was Buzanowski reckless in regards to H.K. being less than 16 years old?      Viewing the

entire record, the evidence regarding H.K.’s age in this case is such that the jury clearly

lost its way in finding that Buzanowski was reckless in regards to H.K. being less than

16 years old at the time of their interaction.

       {¶60} On December 23, 2009, H.K. was 15 years old and turned 16 two months

later, on February 28, 2010. As mentioned above, H.K. testified that she informed

Buzanowski that she was 15 years old and only a sophomore in high school prior to

consuming alcohol.       However, H.K. admitted that she had failed to divulge this

important detail to the investigating detective, or anyone else, despite numerous

opportunities and claimed that for the first time at Buzanowski’s first trial.

Furthermore, this testimony was directly contradicted by every other witness to the

events.   A.K., M.B., Banic and Milos universally agreed that there was no precise

discussion of age but rather when questioned regarding being old enough to drink, H.K.

told Buzanowski that the girls were “old enough to party” or some close variation.
       {¶61} M.B., whom Buzanowski knew to be 17 years old at the time, testified that

people commonly thought H.K. was older than she. She explained that H.K. wore quite

a bit of makeup, wore high heels, had her hair teased and was dressed up on December

23, 2009. M.B. testified that H.K. appeared to be 19 or 20 on the night of the incident

and at the very least looked 18 years of age. A.K. agreed with M.B.’s description of

H.K that night and testified that H.K. always looked older. Banic also testified that H.K.

appeared to be 18 or 19 years old. Milos testified that he was not sure H.K. was old

enough to drink but did not think she was less than 16 years old.

       {¶62} Considering the entire record, particularly the consistent testimony of the

four eyewitnesses regarding H.K.’s appearance on December 23, 2009, as well as

statements regarding age, this is the rare instance where the finder of fact clearly lost its

way and created such a manifest miscarriage of justice.      However, because there is not

unanimity on this issue, the unlawful sexual conduct conviction is affirmed.        Reversing a

conviction on the manifest weight of the evidence requires the unanimous concurrence of

all three appellate judges. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541

(1997), at paragraph four of the syllabus, citing Section 3(B)(3), Article IV of the Ohio

Constitution (noting that the power of the court of appeals is limited in order to preserve

the jury’s role with respect to issues surrounding the credibility of witnesses).

       {¶63} Buzanowski’s fifth assignment of error is overruled.
       {¶64} Buzanowski’s convictions for contributing to the unruliness or delinquency

of a minor and gross sexual imposition are reversed.            Case remanded for further

proceedings consistent with this opinion.

       It is ordered that appellee and appellant share the 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 in part, 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

MARY EILEEN KILBANE, J., CONCURS;
KENNETH A. ROCCO, P.J., CONCURS IN PART AND
DISSENTS IN PART (SEE SEPARATE OPINION)



KENNETH A. ROCCO, P.J., CONCURRING AND DISSENTING:

       {¶65} Although I concur with the majority opinion with respect to its disposition

of Buzanowski’s first, second, and fourth assignments of error, I respectfully dissent with

respect to the majority opinion’s disposition of Buzanowski’s third assignment of error.
In addition, I would add that I cannot find that Buzanowski’s convictions are against the

manifest weight of the evidence.

       {¶66} A review of the record in this case supports the majority opinion’s

disposition of Buzanowski’s first assignment of error for a simple reason. The jury

easily could have presumed from the instruction the trial court provided on the charge of

contributing to the unruliness or delinquency of a child that the offense was one of strict

liability. The victim testified that she was fifteen years old at the time of the offense.

Without an explanation of the culpable mental state required to prove Buzanowski’s guilt,

that information was all the jury needed to convict him.

       {¶67} Similarly, I agree with the majority’s decision that the admission of the

sexual assault nurse examiner’s testimony constituted harmless error. I diverge from the

majority opinion, however, in my review of his third assignment of error and the evidence

presented to support Buzanowski’s guilt on the charges of gross sexual imposition and

unlawful sexual conduct with a minor.

       {¶68} Buzanowski argues in his third assignment of error that, because the jury at

his first trial acquitted him of the charge of sexual battery, the Double Jeopardy Clause

barred his conviction in the second trial for gross sexual imposition.         I find this

argument to be unpersuasive.

       {¶69}    At his first trial, the jury acquitted Buzanowski of violating R.C.

2907.03(A)(2), i.e., engaging in sexual conduct with the victim knowing that her ability to

appraise the nature of her conduct was substantially impaired. In his second trial, the
jury found him guilty of violating R.C. 2907.05(A)(5), engaging in sexual contact with

the victim when he knew or had reasonable cause to believe that her judgment was

substantially impaired.

       {¶70} In the first trial, the jury could have determined that the state failed to prove

Buzanowski “knew” the victim was substantially impaired when he engaged in sexual

conduct with her. In the second trial, the jury could have concluded from the evidence

presented that Buzanowski had “reasonable cause to believe” that the victim was

substantially impaired when he engaged in sexual contact with her. Because these two

offenses do not involve identical “ultimate factual issues,” they do not implicate

Buzanowski’s double jeopardy rights.         Therefore, I believe the majority opinion’s

reliance on State v. Edwards, 8th Dist. Cuyahoga Nos. 94568 and 94929, 2011-Ohio-95,

as authority for its position is misplaced. Consequently, I would overrule Buzanowski’s

third assignment of error.

       {¶71} This brings me, finally, to the issue of whether the jury “lost its way” in

finding Buzanowski guilty of gross sexual imposition and of unlawful sexual conduct

with a minor. I do not think so.

       {¶72} The majority opinion believes that H.K.’s version of the incident was

untrustworthy. However, the focus should be on whether the jury could find from all of

the evidence that Buzanowski had reasonable cause to believe that H.K.’s ability to

consent to sexual contact was substantially impaired and that Buzanowski was reckless

with respect to H.K.’s age when he engaged in sexual conduct with her.
      {¶73} Nearly all of the state’s witnesses described H.K. as being, not just

uninhibited, but “drunk,” after imbibing the liquor. M.B., Banic, Milos, and A.K. all

testified that there was some discussion about M.B.’s girlfriends’ ages before Buzanowski

began pouring the vodka shots. Each indicated that H.K’s response was that they were

“old enough.” Milos stated this response was inadequate for him. All of this testimony

suggested that Buzanowski had suspicions about the issue but chose to overlook the

matter.

      {¶74} A review of H.K.’s testimony indicates she may well have embellished her

version of the incident on direct examination, but she underwent rigorous and lengthy

cross-examination.   During her testimony, H.K. explained her reasons for providing

additional details of the incident as time went on.         Some of those details were

corroborated by the other witnesses.

      {¶75} In my view, the jury was in the best position to weigh the testimony of all of

these witnesses, and this court should not substitute a contrary judgment. I conclude that

Buzanowski’s fifth assignment of error lacks merit.

      {¶76} Based upon the foregoing, although I believe Buzanowski’s conviction for

contributing to the unruliness or delinquency of a child should be reversed, and that

matter remanded for further proceedings, I would affirm his other convictions.



KEY TERMS:

Sufficiency, manifest weight, instructed on all elements, recklessness, contributing to the
unruliness or delinquency of a child, manifest miscarriage of justice, gross sexual
imposition, SANE nurse narrative, hearsay, harmless error, unlawful sexual conduct
with minor. Appellant’s conviction for contributing to the unruliness or delinquency of
a child constituted a manifest miscarriage of justice where the trial court failed to instruct
the jury on the appropriate mental state for the offense, recklessness, and the appellant’s
mental state at the time of the offense was heavily disputed at trial. State presented
sufficient evidence to support appellant’s conviction for gross sexual imposition.
However, state was barred by collateral estoppel from retrying appellant on the gross
sexual imposition charge. Trial court erred in allowing the SANE nurse’s narrative into
evidence as it constituted impermissible hearsay, however it was harmless error. The
court was split on whether appellant’s conviction for unlawful sexual conduct with a
minor was against the manifest weight of the evidence.
