[Cite as State v. Hoffman, 2013-Ohio-4111.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 13-12-54

        v.

AARON D. HOFFMAN,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 12-CR-0060

                                     Judgment Affirmed

                         Date of Decision: September 23, 2013




APPEARANCES:

        Kent D. Nord for Appellant

        Derek W. DeVine and Heather N. Jans for Appellee
Case No. 13-12-54


ROGERS, J.

      {¶1} Defendant-Appellant, Aaron Hoffman, appeals the judgment of the

Court of Common Pleas of Seneca County convicting him of sexual battery and

unlawful sexual conduct with a minor and sentencing him to a 60-month prison

term. On appeal, Hoffman argues that his conviction was against the manifest

weight of the evidence. For the reasons that follow, we affirm the trial court’s

judgment.

      {¶2} On April 4, 2012, the Seneca County Grand Jury indicted Hoffman

with sexual battery in violation of R.C. 2907.03(A)(5), (B), a felony of the third

degree, and unlawful sexual conduct with a minor in violation of R.C. 2907.04(A),

(B)(3), also a felony of the third degree. The indictment arose from Hoffman’s

purported sexual relationship with A.G. from 2009 until 2011, during which time

she was between 15 and 17 years old. The alleged relationship occurred while

Hoffman lived with A.G. and her mother, Abby Hartsel.

      {¶3} A jury trial was held from September 24, 2012 to September 27, 2012.

At trial, the following relevant evidence was adduced.

      {¶4} First, Officer Gary McClure of the Tiffin Police Department testified

regarding his investigation of an incident on August 25, 2010 at Hoffman’s

residence. Officer McClure responded to a possible burglary at the residence

which led him to make contact with Hoffman. The alleged perpetrator of the


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burglary suggested that his motivation for his actions was Hoffman’s purported

sexual relationship with his daughter. Based on the nature of the perpetrator’s

allegations, the investigating officers delved into Hoffman’s possible activities

inside the house with A.G. According to Officer McClure, his initial contact with

Hoffman about those activities proceeded as follows:

      Hoffman advised that he received back rubs from [A.G.] due to a
      back injury that he had received several years before this. He
      advised that he receives back rubs from [A.G.] there, two to three
      times a week. Normally, he is wearing just a pair of gym shorts.
      And when [A.G.] rubs a certain spot on his lower back, he does get
      aroused and ejaculates. Trial Tr., p. 159-60.

Despite these revelations, the investigation did not move beyond this initial

contact. On cross-examination, the following exchange occurred:

      Q: Well, what – well, did it – you looked at the [police] report
      earlier today. Did it say in that report that [Hoffman] admitted
      ejaculating?

      A: I don’t believe he admitted that [Hoffman] did, but [A.G.] and
      [Hartsel] –

      Q:   Well, all right. Thank you. That’s all the questions I have.

Trial Tr., p. 161-62.

      {¶5} Tiffin Police Department dispatcher, Alexia Feasel, then testified

regarding a telephone call received by the department on March 27, 2011. In that

call, the boyfriend of A.G.’s brother reported A.G.’s allegation to him and her




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brother that Hoffman was engaged in a sexual relationship with her.                 The

boyfriend also indicated that A.G. alleged Hoffman threatened her.

       {¶6} Tiffin Police Officer Jack DeMonte responded to the March 27, 2011

call from Hoffman’s residence. He indicated that he made contact with Hoffman

and that Hoffman denied A.G.’s allegations. According to Officer DeMonte,

Hoffman “referred to [A.G.] as his daughter.” Trial Tr., p. 173. Officer DeMonte

said that A.G. left Hoffman’s residence on March 27, 2011 to go live with her

brother.

       {¶7} Lieutenant Michelle Craig of the Tiffin Police Department was the

next witness to testify.   She discussed the execution of a search warrant at

Hoffman’s residence on March 31, 2011. Lieutenant Craig described Hoffman’s

behavior during the search as follows:

       Q:    Did [Hoffman] make any other comments during the search
       warrant?

       A:      Yes. He would contradict himself throughout. We found
       numerous VCR, VCR tapes of nudity. He says those were old. He
       doesn’t even have a VCR. And we opened up the TV stand
       underneath the TV and there was a VCR. And I said, I thought you
       didn’t have a VCR. Well, “that’s dusty.” I said, okay.
             Ugh, I then asked him if [A.G.] ever slept in the back bedroom,
       in the main bedroom? And he said, nope, she never slept there.
             And, I said, well, we will be taking samples for DNA
       comparison. And then he changed and said “well, she does sleep
       there, but when she does I sleep on the couch.”

Trial Tr., p. 190. Lieutenant also testified that Hoffman denied the allegations:


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       Q: Did [Hoffman] make any other comments with regards to this
       relationship with [A.G.]?

       A: He said he wouldn’t touch her inappropriate [sic] because he
       was like a father to her. Uhm, every morning she kisses him on his
       cheek good morning and every night she kisses on his check for
       good-night.

Trial Tr., p. 190.

       {¶8} As part of the search, Lieutenant Craig took DNA samples from

Hoffman, Hartsel, and A.G. She indicated that Hoffman’s residence had two

bedrooms: (1) the back, master bedroom, which was described as Hoffman’s and

Hartsel’s room; and (2) the front, single bedroom, which was described as A.G.’s

room. Lieutenant Craig also said that a portion of the mattress from the back

bedroom and several sex toys were taken from the residence for further testing.

Additionally, she testified that the searching officers found several pornographic

movies, magazines, and pictures in Hoffman’s residence.        In regard to the

August 2010 investigation of Hoffman, Lieutenant Craig testified as follows:

       Q:    What caused the case to be put on hold?

       A: Basically when we questioned [Hartsel] and [A.G.] about that
       and massages were, yes, that’s what was happening. [Hartsel] said,
       yes, he did tell me he was ejaculating, but that later she was told it
       was just something [Hoffman] was using against her. And when he
       asked if there was any other sexual activity, [Hartsel] said, no.

       ** *




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       Q: Was there an explanation for why the information – that was
       coming out during this investigation was different from the
       investigation that occurred back in 2010?

       A: Yes. I did ask [A.G.] why she lied to us. And she said that she
       was afraid. She said [Hoffman] gets out of everything. I thought he
       would get out of it and come after me or take things away from me
       or hit me, as he has in the past or – or hit me.

Trial Tr., p. 201-02.

       {¶9} Lieutenant Craig also discussed A.G.’s receipt of text and electronic

messages from a person claiming to be “Byron Smith.”           According to her

investigation, the phone number “Smith” gave to A.G. was registered in

Hoffman’s name. This discovery led to the execution of another search warrant.

In the second search, the police found text messages on Hoffman’s phone and

electronic messages on his computer between “Smith” and A.G. When asked

about “Smith,” Hoffman indicated that “Smith” was a person who lived in

Bascom, Ohio. However, after further investigation, Lieutenant Craig was unable

to find any “Byron Smith” who lived in the Bascom area.

       {¶10} On cross-examination, Hoffman testified as follows regarding the

contents of the messages between “Smith” and A.G.:

       When we came across [the messages], at that time we already knew
       that Aaron Hoffman was purporting to be Byron Smith. And we
       wanted to know why he was contacting her in that way and what the
       purpose of that was. Which, once you read the notes you see that
       it’s a controlling issue.
             And that basically he’s trying to persuade her saying, “His
       sister had the same incident. Regrets throwing her uncle in jail for

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       doing the same thing to her.” Basically. Uhm, that “he must have
       really cared for her to promise these things for sexual favors.” And,
       “shouldn’t you have a serious talk?”
             And also, uhm, a lot of things that were the same, “he’ll go [to]
       the prison for life. Do you really wanna do that to him?” These
       kind[s] of statements are made in there.

Trial Tr., p. 221.

       {¶11} Sergeant Jason Windsor of the Tiffin Police Department also testified

regarding the investigation of the messages between “Smith” and A.G. As part of

the investigation, he posed as A.G. during the exchange of messages.             The

following relevant exchange occurred:

       Q: How did this [“Smith”] character appear when he was texting
       you as [A.G.]?

       A: Uhm, he appeared very obsessed and controlling. Uhm, he
       would send texts six, seven, eight in a row. And if I didn’t respond
       he was asking, where you at? What are you doing? At that time, I
       was on midnight shift so I come [sic] up with an excuse that I was
       babysitting in the day you can’t text me. Because I go to sleep after
       I got home from work, I turned the phone off. When I woke up at
       two, three in the afternoon, there would be seven, eight texts in there
       waiting for me.

       ***

       Q: Was there any indication from these text messages and
       communications that this [“Smith”] individual had any kind of
       interest in [A.G.]?

       A: He appeared to wanna know what she was doing all the time.
       He appeared to be infatuated with her. Said, he would say that, you
       know, “I really like you. You mean the world to me,” stuff like that.



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Trial Tr., p. 295-96.     According to Sergeant Windsor, Hoffman, posing as

“Smith,” did not try to get A.G. to stop pursuing the charges. Rather, Hoffman

merely said that the case “could become a long drawn out thing.” Trial Tr., p.

297.

       {¶12} Freda Cardwell, one of Hoffman’s neighbors, next testified that

Hoffman lived in his residence with A.G. and Hartsel. She further stated that

Hoffman called A.G. his daughter.

       {¶13} A.G. was the primary witness regarding the alleged sexual

relationship between her and Hoffman. She said that she was born in February

1994 to Hartsel and her father, Duane Gelhausen, who has several disabilities and

lives in a nursing home. Starting in 2009, when she was 14 or 15 years old, A.G.

started to live in Hoffman’s residence with Hoffman and her mother. According

to A.G., the sexual relationship started soon after moving in:

       Q: And once you moved into [Hoffman’s residence], did anything
       sexual happen between you and [Hoffman]?

       A:    Yes.

       Q: And do you remember approximately when this sexual activity
       started between you and [Hoffman]?

       A:    Uhm, I believe it was around when I was 15, 15 ½.

       ***



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       Q: * * * What kind of sexual activity started between you and
       [Hoffman] at that time you were living at [his residence]?

       A: Uhm, it began with, uhm, hand ejaculations, uhm, moving to
       oral and anal and vaginal.

       Q: Now, when you’re talking about oral sex and such, who was
       performing what to who?

       A:   Uhm, both.

       Q:   And there was sexual intercourse between the two of you?

       A:   Yes.

       Q:   Did all of this start before you were 16?

       A:   Yes.

Trial Tr., p. 326-27.

       {¶14} A.G. described her sexual activity with Hoffman in great detail:

       Q: When you would perform oral sex on [Hoffman] did he
       ejaculate?

       A:   Yes.

       Q:   Did he use condoms at all?

       A:   Yes.

       Q:   Do you know what kind of condoms those were?

       A:   For which activity?

       Q:   Were there multiple condoms that were used?

       A: Uhm, when oral was performed the taste of the semen was very
       disgusting so he had gotten flavored condoms. And eventually he

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       ended up using Jolly Ranchers instead, but for the intercourse he
       used Trojan Ecstasy.

Trial Tr., p. 330. A.G. also extensively described the tattoos and marking on

Hoffman’s body, including those on his hips.

       {¶15} According to A.G., she had sexual relations with Hoffman two to

three times a week. She said that they had sexual relations in the back bedroom,

including during her menstrual cycle. During the course of the activities, the two

used sex toys, including a back massager, a pink vibrator, and a purple “puff

plug.” Trial Tr., p. 332. A.G. said that both of them used the vibrator, with her

using it on her vagina and Hoffman using it on his anus. In return for these sexual

activities, A.G. testified that she received special privileges, such as later curfews,

and that Hoffman promised to give her other items, such as a car.

       {¶16} In regards to her relationship with Hoffman, A.G. testified as

follows:

       Q: From the time that you and your mom moved in with
       [Hoffman] to [his residence] until the time you left in March 2011,
       what was your relationship like with [Hoffman]?

       A: Uhm, sometimes he treated me like a girlfriend and sometimes
       he treated me like a daughter.

       Q:   Did you have chores that you were required to do?

       A:   Yes.

       Q:   What kind of chores did you have in the house?


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       A:    Just dishes, laundry, keep the house clean, take care of the dog.

       Q: If you wanted permission to go somewhere, to go out with your
       friends or something, who did you have to ask permission of?

       A:    [Hoffman].

       ***

       Q:    Did you ever go out to dinner with [Hoffman] and [Hartsel]?

       A:    Yes.

       Q: Do you know who would pay when you usually went out to
       dinner?

       A:    [Hoffman].

       Q:    Did [Hoffman] act similar to a father figure to you?

       A:    Yes.

Trial Tr., p. 336-38. A.G. also discussed going on vacations with Hoffman,

including a trip to a nudist camp.

       {¶17} As to the previous August 2010 investigation, A.G. said that she lied

to the police and denied a sexual relationship with Hoffman because she “was just

terrified.” Trial Tr., p. 341. She also indicated that she had not come forward

earlier with her allegations because she “was scared.” Trial Tr., p. 335.

       {¶18} On cross-examination, Hoffman elicited testimony from A.G.

regarding her irritation with Hartsel over the payment of her father’s disability

benefits:


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      Q: Because of your father’s disability and ill-health, you, as a
      dependent, or your caretaker, were to receive dependency benefits
      through social security, correct?

      A:    Yes.

      Q:    You became aware of that, didn’t you?

      A:    Uhm, when I was in my mother’s care. I didn’t see a dime of
      it.

      Q:    You became aware of it, didn’t you?

      A:    Yes.

      ***

      Q: She said – did you – it irritated you, didn’t it, that you did not
      see as much as a dime of it?

      A:    A little.

      Q: And it continued that way until late March of 2011, didn’t it?
      Your mother was receiving the social security dependency money
      you represented?

      A:    Yes, mom got that money.

      ***

      Q: * * * When, in late March of 2011 you left the care of your
      mother and you went to live with your brother * * * and his fiancé *
      * *, what became of your social security money?

      A: It was given to my brother and his fiancé for financial means
      for providing for me.




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Trial Tr., p. 346-48. Although the money from the dependency benefits went to

A.G.’s brother, she indicated that it was eventually deposited in her savings

account to pay her college tuition.

       {¶19} A.G. denied that Hartsel was responsible for the rules of the house or

that Hartsel disciplined her.     She said that she had many disagreements and

arguments with Hoffman over what she could and could not do. This led to the

following exchange:

       Q: All right. And you had a design in mind the month of March
       2011 that you’d like to break from your mother and go live with
       [your brother], correct?

       A:    Yes.

       ***

       Q: You had to find a way out of [Hoffman’s residence], didn’t
       you, in March 2011?

       A:    Yes.

       Q: And by telling [A.G.’s online boyfriend] and your brother that
       you had sexual conduct with [Hoffman], that was effected; that did
       happen, didn’t it?

       A:    Yes, but all of the allegations were true.

Trial Tr., p. 357, 361. A.G. identified two letters that she wrote around the time of

the August 2010 investigation in which she denied having sexual relations with

Hoffman. She also admitted that she denied any sexual activity when talking with

her high school friends.

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       {¶20} A.G. acknowledged that she used the sex toys found in Hoffman’s

residence. She said that Hoffman bought the sex toys for her. She also stated that

she masturbated in the back bedroom.

       {¶21} On redirect examination, A.G. said that she wanted to leave

Hoffman’s residence because she was “depressed,” “miserable,” “afraid,” and

“disgusted in [her]self.” Trial Tr., p. 392. She said that Hoffman made her watch

pornographic movies and look at pornographic magazines so that she could “learn

new moves for him.” Trial Tr., p. 393. A.G. further testified to her fear of

Hoffman:

       Q: Now, you previously testified that you were afraid of coming
       forward with this sexual abuse information. Why were you afraid?

       A: I was afraid of what people would think of me. I was afraid for
       my safety. I was afraid where I was gonna go, what I was gonna do
       and I was just terrified.

       Q:    With regard to your safety, what were you afraid of?

       A: Well, [Hoffman] owns numerous guns and ammunition. And I
       know he has a violent past.

Trial Tr., p. 393.

       {¶22} The State’s final witness was Casandra Agosti, a forensic scientist

with the Ohio Bureau of Criminal Identification and Investigation. She performed

chemical analyses of several items seized from Hoffman’s residence.           The

chemical analysis of the towel that was found on top of the back massager in the


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back bedroom revealed a “mixture with contribution from [A.G.] and [Hoffman].”

Trial Tr., p. 420.    According to Agosti, mixture “means that there actually

essentially were two DNA profiles together on this item.” Trial Tr., p. 420.

       {¶23} The cutout from the back bedroom’s mattress contained a mixture

that “was consistent with [A.G.] and [Hoffman].” Trial Tr., p. 421. The red

sexual device contained a mixture with A.G. the major profile at one point and

Hoffman the major profile at the opposite point. The body massager was found to

have a mixture with A.G. the major profile and Hoffman the minor profile. Agosti

testified that she was able to eliminate Hartsel as a contributor to the mixture on

the mattress, the red sexual device, and the body massager.

       {¶24} In his defense, Hoffman called several character witnesses who

testified to his general good character. One witness, Jade Carter, testified that

A.G. does not have a reputation for truthfulness in the community. However, on

cross-examination, Carter acknowledged that she was serving time for a

“probation violation.” Trial Tr., p. 541.

       {¶25} Hoffman testified on his own behalf. In regard to the nudist camp

vacation, Hoffman said that he was never naked in view of A.G. As to the August

2010 investigation of the back rubs A.G. gave to Hoffman, he testified as follows:

       I told them [the police] – how the story came about, I was mad at
       [Hartsel] for, you know, as you heard earlier, I was upset and I did a
       stupid thing and whispered in [Hartsel]’s ear. I said, you know, I
       come in my pants. I didn’t think [A.G.] would hear. Well, she did.

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      And then, whew, from there on it just escalated like the old
      telephone game, you tell something and it just escalated into
      something I didn’t even think it would even escalate. Yeah.

Trial Tr., p. 565-66. Hoffman denied actually ejaculating during the back rubs and

ever being naked in A.G.’s presence. He also said that Hartsel was always present

during the back rub and that she could not give them because she had diabetes,

which affected her hands.

      {¶26} Hoffman said that he never had legal custody of A.G. He further

discussed the authority over A.G. as follows:

      Q: What, if any, authority gave you authority during that two year
      period of time over [A.G.]?

      A:    Nobody gave me authority over her.

      Q: Who was exercising authority over [A.G.] that two year period
      of time?

      A:    That would be, would be Abby Hartsel.

Trial Tr., p. 577.     Additionally, the following relevant exchange occurred

regarding Hoffman’s role in disciplining A.G.

      Q:    Well, okay, did you tack on any rules yourself?

      A:    No.

      Q:    Why not?

      A:    It ain’t my kid.

      Q:    Well, you had the power over her, didn’t you?


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       A:   No, I didn’t.

       Q:   You were telling her what to do, weren’t you?

       A:   No, sir. [Hartsel] said that’s my daughter, I’ll take care of her.

Trial Tr., p. 589-90.

       {¶27} Hoffman testified that A.G. was “infatuated” with the back bedroom

and was constantly going in there. Trial Tr., p. 578. He also said that on March

26, 2011, he came home to find the bed in the back bedroom “all unmade and the

massager on the towel was laying up on the nightstand.” Trial Tr., p. 592. At that

time, Hoffman said it seemed like another man was there with A.G., but he did not

see the other man.

       {¶28} As to the “Smith” character, Hoffman said that he was emulating

“Dog the Bounty Hunter” and created the character as a means to elicit

information from A.G. The following exchange about this purported motivation

occurred:

       Q:   All right. How did you go about it?

       A: To trying to be her friend so she would confide and so she
       would tell the truth that she was lying about all of this. And, I don’t
       know. It didn’t work out as well as it did on TV.

Trial Tr., p. 624-25. Ultimately, Hoffman said he wanted to use “Smith” to get

“the truth.” Trial Tr., p. 626.




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       {¶29} Hoffman denied ever having sexual relations with A.G. He also

denied threatening her, asking her to lie to the police, and promising favors in

exchange for sexual relations. Hoffman further denied watching or looking at the

pornography found in the house. He indicated that he received the pornography

after buying a box at a local flea market without first looking inside of it.

Hoffman additionally said that the pornographic magazine found under his

mattress was not his. According to his testimony, Hoffman suspected that one of

A.G.’s acquaintances came into the residence and planted the magazine there.

       {¶30} On     cross-examination,         Hoffman   noted   that   there   were

inconsistencies between his testimony and his previous statements to police. For

instance, he admitted that he told police officers that he ejaculated after A.G.

rubbed his back. He also acknowledged telling police that “Smith” was a real

person and lived in Bascom. On cross, Hoffman further discussed his role in

A.G.’s life as follows:

       Q: And you also told several people, you testified that you treated
       [A.G.] like your own daughter right?

       A:   I treat a lot of kids like that.

       Q: That you – you took in her and [Hartsel], it was a whole
       package deal, right?

       A:   Yeah.

       Q:   Gave fatherly advice?


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Case No. 13-12-54


         A:     I gave a lot of kids fatherly advice.

         Q:     Took her places?

         A:       I took [Hartsel] places a lot. I take a lot of kids places.

Trial Tr., p. 635. After Hoffman’s testimony, he rested and the trial court

charged the jury.

         {¶31} On September 27, 2012, the jury returned guilty verdicts on both

counts alleged in the indictment. The trial court issued its judgment entry of

sentencing on November 13, 2012, which imposed concurrent 60 month prison

terms.1

         {¶32} Hoffman filed this timely appeal, presenting the following

assignment of error for our review.

                                        Assignment of Error

         THE CONVICTION IN THE TRIAL COURT SHOULD BE
         REVERSED BECAUSE IT IS AGAINST THE MANIFEST
         WEIGHT OF THE EVIDENCE AND BECAUSE THE
         EVIDENCE SUPPORTING IT WAS INSUFFICIENT AS A
         MATTER OF LAW TO PROVE THE CONVICTION
         BEYOND A REASONABLE DOUBT.

         {¶33} In his sole assignment of error, Hoffman argues that his conviction

was against the manifest weight of the evidence.2 We disagree.


1
  The trial court’s judgment entry states that there was a “finding of guilty by a trial to the Court.” (Docket
No. 49, p. 1). This statement was erroneous since the record plainly reflects that the trial court conducted a
jury trial in this matter.
2
  Although the language of the assignment of error seems to challenge the sufficiency of the evidence as
well as the manifest weight of the evidence, Hoffman’s brief focuses exclusively on the manifest weight of
the evidence. As such, we view this appeal as not presenting a sufficiency challenge.

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                                 Standard of Review

       {¶34} When an appellate court analyzes a conviction under the manifest

weight standard, it “sits as the thirteenth juror.” State v. Thompkins, 78 Ohio St.3d

380, 387 (1997), superseded by constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 83 (1997). Accordingly, it must review the

entire record, weigh all of the evidence and its reasonable inferences, consider the

credibility of the witnesses, and determine whether the fact finder “clearly lost its

way” in resolving evidentiary conflicts and “created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1989). When applying the manifest

weight standard, a reviewing court should only reverse a trial court’s judgment “in

exceptional case[s]” when the evidence “weighs heavily against the conviction.”

Id. at paragraph three of the syllabus.

                                 R.C. 2907.03(A)(5)

       {¶35} Hoffman was convicted of sexual battery in violation of R.C.

2907.03(A)(5). This statute states 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 natural or adoptive parent, or a stepparent, or guardian, custodian, or

person in loco parentis of the other person.”         R.C. 2907.03(A)(5).   “Sexual

conduct” is defined as “vaginal intercourse between a male and a female; anal


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intercourse, fellatio, and cunnilingus between persons regardless of sex; and,

without privilege to do so, the insertion, however slight, of any part of the body or

any instrument, or other object into the vaginal or anal opening of another.” R.C.

2907.01(A).

       {¶36} There is no definition in the Revised Code for “in loco parentis.”

However, the Supreme Court of Ohio has defined the phrase, for the purposes of

R.C. 2907.03(A)(5), as “apply[ing] to a person who has assumed the dominant

parental role and is relied upon by the child for support.” State v. Noggle, 67 Ohio

St.3d 31 (1993), paragraph one of the syllabus, superseded by statute on other

grounds as stated in State v. Bajaj, 7th Dist. Columbiana No. 03 CO 16, 2005-

Ohio-2931. In Noggle, the court further stated as follows: “A person in loco

parentis has assumed the same duties as a guardian or custodian, only not through

a legal proceeding. * * * Simply put, [R.C. 2907.03(A)(5)] applies to the people

the child goes home to.” Id. at 33. Based on these principles, “[t]he key factors of

an in loco parentis relationship have been delineated as ‘the intentional assumption

of obligations incidental to the parental relationship, especially support and

maintenance.’” Evans v. The Ohio State Univ., 112 Ohio App.3d 724, 736 (10th

Dist. 1996), quoting Nova Univ., Inc. v. Wagner, 491 So.2d 116, fn. 2 (Fla.1986).




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                                 R.C. 2907.04(A)

      {¶37} Hoffman was also convicted of violating R.C. 2907.04(A), which

states that “[n]o 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.” The statute

imposes criminal liability where the offender either knows the victim was between

13 and 16 years of age or is reckless as to the victim’s age.         Under R.C.

2901.22(B), a person is deemed to “have knowledge of circumstances when he is

aware that such circumstances probably exist.” As to recklessness, the Revised

Code provides that “[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.” R.C. 2901.22(C).

                       Recapitulation of Relevant Evidence

      {¶38} This matter essentially presents a he-said/she-said situation with

A.G. claiming a sexual relationship and Hoffman denying it.           Despite the

existence of conflicting testimony, we do not find that the evidence is so

overwhelming as to render Hoffman’s conviction a miscarriage of justice.

      {¶39} A.G. testified extensively regarding the alleged sexual relationship

between her and Hoffman. She indicated that the relationship started while she


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was 15 years old, included anal, oral, and vaginal sex, and occurred while she

lived in Hoffman’s residence, where he treated her like a daughter.              Also,

according to testimony from investigating police officers, Hoffman admitted to

them that he was a father figure for A.G. In light of this evidence, the elements of

sexual battery and unlawful sexual contact with a minor are clearly satisfied.

       {¶40} Additionally, the chemical analyses of the mattress from the back

bedroom and the sex toys, which showed DNA profiles from both Hoffman and

A.G., tend to corroborate A.G.’s testimony. Further, Hoffman’s assumption of the

“Byron Smith” character and his misleading of police about it markedly reduce his

credibility and indicate a propensity for deception. Moreover, a reasonable juror

could easily disregard some of the more far-fetched denials in Hoffman’s

testimony, such as his position that the pornographic magazine under his mattress

was not his and his allegation that one of A.G.’s acquaintances planted it there.

                               Hoffman’s Arguments

       {¶41} Hoffman’s position focuses on three items: (1) Officer McClure’s

purported lack of credibility; (2) Officer DeMonte’s alleged lack of credibility;

and (3) A.G.’s purported lack of credibility. None of these items are a sound basis

for reversal of Hoffman’s conviction.

       {¶42} Hoffman identifies the following testimony from Officer McClure as

indicating his lack of credibility: “Mr. Hoffman advised * * * [that] when [A.G.]


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rubs a certain spot on his lower back, he does get aroused and he ejaculates.” Trial

Tr., p. 159-60. Hoffman argues in his brief that this testimony was categorically

untrue. Hoffman’s argument, however, has no basis since his own testimony

confirms the veracity of Officer McClure’s testimony:

       I told them [the police] – how the story came about, I was mad at
       [Hartsel] for, you know, as you heard earlier, I was upset and I did a
       stupid thing and whispered in [Hartsel]’s ear. I said, you know, I
       come in my pants. I didn’t think [A.G.] would hear. Well, she did.
       And then, whew, from there on it just escalated like the old
       telephone game, you tell something and it just escalated into
       something I didn’t even think it would even escalate. Yeah.

Trial Tr., p. 565-66. Based on Hoffman’s own admission, we find little reason to

disbelieve Officer McClure.

       {¶43} According to Hoffman, Officer DeMonte’s testimony is incredible

because he stated that his August 2010 investigation stemmed from an allegation

that Hoffman was engaged in a sexual relationship with another person’s daughter.

While there may be an evidentiary basis for this statement’s exclusion, we are

unable to find that this statement, by itself, renders Officer DeMonte’s testimony

incredible.   Further, Officer DeMonte’s testimony in comparison to the other

evidence adduced at trial was minimal and relatively inconsequential.

       {¶44} In regard to A.G.’s credibility, Hoffman argues that the evidence at

trial manifestly shows that she had financial and personal motivations to concoct

the allegations against him so she could get out of his residence. While there is


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certainly evidence suggesting this, we do not believe that a reasonable juror had to

conclude that those motivations produced A.G.’s allegations. Indeed, a reasonable

juror could rely on the following testimony to find that A.G. came forward due to

the emotional trauma she suffered from the purported sexual relationship between

her and Hoffman:

       Q:   Did you wanna leave the home?

       A:   Yes. So desperately.

       Q:   And why is that?

       A: I – I was depressed. I was miserable. I was afraid. I was – I
       felt disgusted in myself.

Trial Tr., p. 392. Hoffman also argues that the variance in A.G.’s version of

events from the August 2010 investigation to the current matter render her

testimony unbelievable. However, A.G. testified at length that she originally

denied the sexual relationship with Hoffman because she was afraid of him.

       {¶45} Hoffman finally argues that A.G. was incredible because the police

did not find condoms in Hoffman’s residence, which would tend to discredit her

testimony that Hoffman used condoms during their sexual activities. However,

this lack of evidence is not fatal to A.G.’s credibility. Further, A.G. also testified

that Hoffman used Jolly Ranchers to disguise the taste of his semen and the police

did find them in his bedroom.



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       {¶46} In sum, Hoffman’s conviction was not against the manifest weight of

the evidence.

       {¶47} Accordingly, we overrule Hoffman’s sole assignment of error.

       {¶48} Having found no error prejudicial to Hoffman in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                             Judgment Affirmed

WILLAMOWSKI and SHAW. J.J., concur.

/jlr




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