[Cite as State v. Carter, 2014-Ohio-4174.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

         Plaintiff-Appellee,                       :     CASE NO. CA2013-12-228

                                                   :            OPINION
    - vs -                                                       9/22/2014
                                                   :

JOHN TYRON CARTER,                                 :

         Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-06-0927



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



         PIPER, J.

         {¶ 1} Defendant-appellant, John Carter, appeals his convictions and sentence in the

Butler County Court of Common Pleas for two counts of unlawful sexual conduct with a

minor.

         {¶ 2} A.J., a 14-year-old girl, along with her mother and sister, moved into Carter's

home in August, 2012 when Carter was 33 years old. Carter was a family friend, and offered
                                                                      Butler CA2013-12-228

to give A.J.'s family his bedroom in which to live. Carter's home was also occupied by

several people so that when A.J. and her family moved into his bedroom, Carter began

sleeping in the living room of his home. When A.J.'s mother began a relationship with

another house member and began staying in his room, Carter moved back into his bedroom.

While staying in both the living room and in the bedroom, Carter and A.J. engaged in sexual

relations.

       {¶ 3} After A.J.'s family moved out of the house, A.J.'s mother found text messages

on A.J.'s phone that indicated the sexual relationship between A.J. and Carter. A.J.'s mother

took the text messages to the Hamilton Police Department, and filed a report in December

2012. Detective Mark Nichols began an investigation. At first, A.J. denied any sexual

relationship with Carter. However, she eventually admitted that she and Carter engaged in

sexual conduct.

       {¶ 4} Carter was indicted on four counts of unlawful sexual conduct with a minor, with

each count specific to an act of fellatio, cunnilingus, vaginal intercourse, and anal

intercourse. Carter pled not guilty to the charges, and the matter proceeded to a two-day jury

trial. The jury found Carter guilty of counts one and three, specific to fellatio and vaginal

intercourse, and not-guilty of count two specific to cunnilingus. The jury could not reach a

unanimous verdict as to count four, specific to anal intercourse. The trial court sentenced

Carter, who had a previous conviction for corruption of a minor, to seven years on count one

and five years on count three. The trial court ordered the sentences to run consecutive for

an aggregate sentence of 12 years. Carter now appeals his convictions and sentence,

raising the following assignment of error:

       {¶ 5} MR. CARTER'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

       {¶ 6} Carter argues in his sole assignment of error that his convictions were against
                                             -2-
                                                                            Butler CA2013-12-228

the manifest weight of the evidence.

       {¶ 7} A manifest weight challenge examines the inclination of the greater amount of

credible evidence, offered at a trial, to support one side of the issue rather than the other.

State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298.

               In determining whether a conviction is against the manifest
               weight of the evidence, the court, reviewing the entire record,
               weighs the evidence and all reasonable inferences, considers
               the credibility of the witnesses and determines 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. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.

       {¶ 8} While appellate review includes the responsibility to consider the credibility of

witnesses and the weight given to the evidence, "these issues are primarily matters for the

trier of fact to decide since the trier of fact is in the best position to judge the credibility of the

witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No.

CA2006-04-085, 2007-Ohio-911, ¶ 26.              Therefore, an appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances to

correct a manifest miscarriage of justice, and only when the evidence presented at trial

weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶ 9} Carter was convicted of two counts of unlawful sexual conduct with a minor in

violation of R.C. 2907.04(A), which provides, "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."

       {¶ 10} During the state's case-in-chief, it presented several witnesses who testified to

the incidents in question. First to testify was A.J., who testified that when she was 14 years

old, she and her mother and sister moved into Carter's home. A.J. testified that she and
                                                 -3-
                                                                        Butler CA2013-12-228

Carter engaged in sexual conduct, and that it eventually progressed into sexual intercourse.

A.J. recalled that the sexual conduct occurred on a regular basis in Carter's house, including

the living room, basement, and Carter's bedroom.

       {¶ 11} A.J. admitted that she was untruthful when first asked about her relationship

with Carter. A.J. testified that she had several things in common with Carter, and that the two

were close friends so that she did not want Carter to get into trouble for their relationship.

A.J. also testified that she did not want to anger her family by admitting to her sexual

relationship with Carter so that she kept their relationship a secret and denied the sexual

conduct when first questioned about it.

       {¶ 12} On cross-examination, Carter's counsel questioned A.J. about how her story

had changed, and that she did not admit to the sexual conduct at first when questioned about

it. Again, A.J. reiterated that she was not honest about the relationship at first out of fear of

getting in trouble for her actions, and out of fear that Carter would be punished for his

conduct.

       {¶ 13} The state next presented the testimony of A.J.'s mother who testified that she

became suspicious of a sexual relationship between A.J. and Carter when she saw the two

together on the living room couch touching each other. A.J.'s mother testified that she

confronted the two, and that they denied any inappropriate conduct, claiming instead that

they were best friends. A.J.'s mother testified that her suspicions were finally confirmed

when she found A.J.'s phone, which contained text messages between A.J. and Carter

regarding their sexual relationship. A.J.'s mother also testified to taking the text messages to

the police, and filing a report against Carter.

       {¶ 14} The state then called the boyfriend of A.J.'s mother, who was also living in the

house at the time the sexual relationship occurred between A.J. and Carter. The boyfriend

testified that he saw A.J. and Carter laying on a bed or the couch together multiple times "like
                                               -4-
                                                                        Butler CA2013-12-228

husband and wife or boyfriend and girlfriend." He also testified that he observed A.J. and

Carter "like hugged up and everything like that, like cradling each other." The boyfriend also

testified that he confronted Carter, and that Carter would change the subject every time he

was questioned about his relationship with A.J.

       {¶ 15} Detective Mark Nichols testified on behalf of the state regarding his

investigation into the matter. Detective Nichols testified that once he received the text

messages and report from A.J.'s mother, he interviewed Carter. Detective Nichols testified

that Carter admitted that he had received the text messages from A.J. and that he had sent

the replies to A.J., as those text messages were given to the police by A.J.'s mother.

Detective Nichols then testified to the sexual content of the messages, including A.J. asking

Carter, "how come you cum so fast?," Carter warning A.J. to be careful with what she was

saying because the texts were stored on the network and could be read by others, and A.J.

telling Carter, "baby, we have a lot more we need to try." Detective Nichols testified that

Carter tried to explain the texts by stating that he thought they were from someone else when

he read and responded to them.

       {¶ 16} Detective Nichols testified on cross-examination that the first time he

interviewed A.J. about her relationship with Carter, she told him that she and Carter were

only friends and never had a sexual relationship. Detective Nichols also testified that in his

11 years of experience in investigating child sexual abuse cases, he was not surprised that

A.J. hid the nature of her relationship with Carter at first, and that such dishonesty by the

victim is a common occurrence.

       {¶ 17} Before the state rested, it called Deputy Michael Jacobs of the Butler County

Sheriff's Office, Division of Sex Offender Registration and Notification. Deputy Jacobs

testified that Carter had registered with the Butler County Sheriff's Office as a sexual-oriented

offender from 1998 to 2010 because of a prior conviction for corruption of a minor.
                                               -5-
                                                                        Butler CA2013-12-228

        {¶ 18} Carter testified in his own defense, and claimed that he never had any sexual

contact with A.J. and that the two were never more than friends. Carter testified that he

would sit on the couch with A.J. and listen to her discuss her problems, but that he never

touched her in a sexual manner while sitting on the couch, or at any other location in the

home.

        {¶ 19} Kenneth Smiley, who also lived in Carter's home, testified on behalf of the

defense that he never witnessed any sexual contact between A.J. and Carter. Smiley

described the relationship between A.J. and Carter as "casual" and that he did not believe

anything "inappropriate" happened between the two. On cross-examination, Smiley testified

that he spent a large portion of his time in his own bedroom, as he and his girlfriend had a

young baby to take care of.

        {¶ 20} In order to demonstrate that his convictions were against the manifest weight of

the evidence, Carter argues that he did not have any sexual contact with A.J. However, the

jury convicted Carter of unlawful sexual conduct with a minor, thereby rejecting Carter's claim

that he never engaged in sexual conduct with A.J. Carter also challenges his convictions,

arguing that A.J.'s testimony lacked credibility because her story changed throughout the

course of the investigation. However, the jury heard testimony that A.J. was not honest

about the nature of her relationship with Carter out of fear that either she or he would receive

reprisal, and she wanted to avoid getting anyone into trouble. By virtue of its verdict of guilty

on some counts, and not-guilty on another, the jury obviously weighed the evidence and

considered which witnesses were credible, and which were not, specific to each count in the

indictment.

        {¶ 21} The jury made its determination after accepting testimony from five witnesses

during the state's case-in-chief, as well as two witnesses in Carter's defense. "Upon

acknowledging that such extensive testimony will inevitably produce some inconsistent or
                                               -6-
                                                                      Butler CA2013-12-228

conflicting assertions, we recognize the sound principal [sic] that the trier of fact is best

positioned to weigh the credibility of the individual witness and reach a conclusion based on

the totality of the evidence." State v. Hernandez, 12th Dist. Warren No. CA2010-10-098,

2011-Ohio-3765, ¶ 41, quoting State v. Dunn, 9th Dist. Lorain No. 04CA008549, 2005-Ohio-

1270, ¶ 10. The jury heard all of the testimony, considered the evidence, and found the

state's theory of the case and its witnesses credible on two of the charges so that we will not

disturb such a finding on appeal.

       {¶ 22} Having found that Carter's convictions were not rendered against the manifest

weight of the evidence, we overrule his assignment of error.

       {¶ 23} Judgment affirmed.


       RINGLAND, P.J., and S. POWELL, J., concur.




                                              -7-
