[Cite as State v. Maynard, 2013-Ohio-2796.]


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

STATE OF OHIO                                       C.A. No.       12CA0026

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
GARY E. MAYNARD                                     COURT OF COMMON PLEAS
                                                    COUNTY OF WAYNE, OHIO
        Appellant                                   CASE No.   11-CR-0224

                                DECISION AND JOURNAL ENTRY

Dated: June 28, 2013



        MOORE, Presiding Judge.

        {¶1}    Defendant, Gary E. Maynard, appeals from his conviction in the Wayne County

Court of Common Pleas. This Court affirms.

                                               I.

        {¶2}    In 2011, the Wayne County Grand Jury indicted Mr. Maynard on one charge of

gross sexual imposition in violation of R.C. 2907.05(A)(4), a third degree felony, and one charge

of sexual imposition in violation of R.C. 2907.06(A)(4), a third degree misdemeanor. These

charges stemmed from allegations made against Mr. Maynard by his twelve-year-old neighbor,

“RH,” and her thirteen-year-old friend, “AL.” Mr. Maynard pleaded not guilty and waived his

right to jury trial. The case proceeded to bench trial. The trial court found Mr. Maynard not

guilty of gross sexual imposition and sexual imposition, but it found him guilty of attempted

gross sexual imposition and attempted sexual imposition. In an entry issued on April 10, 2012,

the trial court imposed sentence on Mr. Maynard.
                                                 2


       {¶3}    Mr. Maynard timely filed a notice of appeal, and he now presents three

assignments of error for our review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       MR MAYNARD’S CONVICTIONS WERE AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE[.]

       {¶4}    In his first assignment of error, Mr. Maynard argues that his convictions were

against the manifest weight of the evidence. We disagree.

       {¶5}    When a defendant asserts that his conviction is against the manifest weight of the

evidence:

       [A]n appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶6}    In making this determination, this Court is mindful that “[e]valuating evidence

and assessing credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459,

466 (9th Dist.1994), citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th

Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist.1987).

       {¶7}    Here, Mr. Maynard was convicted of attempted gross sexual imposition, in

violation of R.C. 2907.05(A)(4) and R.C. 2923.02(A), and attempted sexual imposition, in

violation of R.C. 2907.06(A)(4) and R.C. 2923.02(A). R.C. 2907.05(A)(4) provides:

       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 * * *
       [t]he other person, or one of the other persons, is less than thirteen years of age,
       whether or not the offender knows the age of that person.
                                                  3


R.C. 2907.06(A)(4) provides:

       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 * * *
       [t]he other person, or one of the other persons, is thirteen years of age or older but
       less than sixteen years of age, whether or not the offender knows the age of such
       person, and the offender is at least eighteen years of age and four or more years
       older than such other person.

       {¶8}     R.C. 2907.01(B) defines “sexual contact” as “any touching of an erogenous zone

of another, including without limitation the thigh, genitals, buttock, pubic region, or if the person

is a female, a breast, for the purpose of sexually arousing or gratifying either person.”

Accordingly, the culpable mental state for gross sexual imposition and sexual imposition is

purposely. State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, ¶ 28 (“[T]he element of

sexual contact in an R.C. 2907.05(A)(4) violation requires a mens rea of purpose.”). R.C.

2901.22(A) provides that an action is performed “purposely” when the actor has a “specific

intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct

of a certain nature, regardless of what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.”

       {¶9}     R.C. 2923.02(A) prohibits the attempt of an offense, and provides that “[n]o

person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the

commission of an offense shall engage in conduct that, if successful, would constitute or result in

the offense.”

       {¶10} Here, in support of its case, the prosecution called RH, AL, their parents, and two

police officers. RH testified that she and her family had lived across the street from Mr.

Maynard and his wife for about three years, and during that time, Mr. Maynard would

occasionally babysit her.    She would also spend the night at his house, where she would
                                               4


sometimes bring her 13-year-old friend, AL. Around March or April of 2011, when RH was 12

years old, Mr. Maynard had begun acting in ways that made her uncomfortable. RH testified

that Mr. Maynard had begun pushing her up by her buttocks while he followed her as she

ascended his stairs. In Mr. Maynard’s guest bedroom, RH and AL would often dress up and

make videos utilizing a computer with a webcam. On one occasion, after Mr. Maynard brought

the girls food into the guestroom, he hugged AL from behind her, with his arms and hands

around AL’s breasts. On another occasion, Mr. Maynard tried to lift RH’s shirt, tank top and bra

while he was making strange faces and sounds. Mr. Maynard also took RH and AL to his

mother’s house to use her hot tub. The three of them got in the hot tub in their swimsuits, and

Mr. Maynard grabbed them by their waists to pull them toward his lap. On another occasion, RH

and AL were using Mr. Maynard’s telephone to play games.           RH saw a picture list and

discovered pictures of her and AL wearing tank tops, and she was uncomfortable seeing these

pictures because she did not recall Mr. Maynard taking them. RH recalled another incident when

Mr. Maynard was rubbing her shoulders, and his hands moved quickly down her shirt and bra,

which startled her and made her jump. RH said that Mr. Maynard would frequently rub her

shoulders and recalled that “he kept like trying to get down my shirt.” RH told Mr. Maynard to

stop or she would tell her father, and Mr. Maynard would respond that if she did, he would take

back everything that he had bought for her.

       {¶11} RH further testified that Mr. Maynard bought her clothes and a cell phone. She

left the phone at AL’s house because RH had her own phone, and AL’s phone had been shut off.

One night when she was at AL’s house, RH and AL told AL’s mother, Patricia L., about some of

the incidents above that had concerned RH.
                                                5


       {¶12} AL testified that she was thirteen years old in March and April of 2011. She had

met Mr. Maynard when he and she were both present at RH’s home. Thereafter, AL would

occasionally accompany RH when she visited Mr. Maynard’s house. AL and RH would make

videos on the computer in Mr. Maynard’s guestroom. She thought that Mr. Maynard was nice,

but he had begun to act in ways that made her uncomfortable. Mr. Maynard would come into the

guestroom and hug the girls from behind them, and would move his hands from the tops of their

chests down to their waists, and, in doing so, his hands would touch their breasts. Also,

sometimes Mr. Maynard would touch the girls’ buttocks while hugging them. He would also

touch their buttocks when they ascended his steps. Once, when the girls were preparing to

change, Mr. Maynard did not want to leave the guestroom, although he did ultimately exit the

room prior to them undressing. On another occasion, AL went with RH to Mr. Maynard’s

mother’s home to use the hot tub. While they were in the hot tub, Mr. Maynard repeatedly

pulled RH toward him.

       {¶13} AL further testified that RH had left several items of clothing and a cell phone at

AL’s home. RH told her that Mr. Maynard had purchased the clothes and cell phone for her, but

she was not supposed to let her parents know. RH told AL that she could use the cell phone.

However, AL’s mother, Patricia L., found the cell phone and questioned the girls about it.

       {¶14} Patricia L. testified that RH had brought several items of clothing to her home and

wanted to keep this clothing secret from her parents. Thereafter, Patricia was home from work

while AL was at school, and she heard a noise coming from AL’s room. When she inspected,

she found a cell phone that had a picture of Mr. Maynard and a text requesting RH to call him.

Patricia answered the text by asking who it was that was texting. Mr. Maynard responded by

asking “Is this [AL?]” She then wrote back saying that she was AL’s mother, but she did not
                                               6


receive any further texts. She called the number and received an automated voicemail message.

That night, she asked AL and RH about the cell phone. RH told Patricia that Mr. Maynard had

purchased the phone for her, but her father was not supposed to know. RH also told Patricia that

Mr. Maynard had begun making comments to her that made her feel uncomfortable. Patricia

told RH that she needed to tell her parents. However, the next day, Patricia L. spoke with RH’s

mother, Patricia H., and asked her where RH was. Patricia H. told her that RH was at Mr.

Maynard’s house. Patricia L. then told Patricia H. about the conversation she had with RH.

       {¶15} Patricia H. testified that Mr. Maynard would frequently assist her and her

husband, Todd, in watching RH. Patricia H. first became aware that Mr. Maynard was acting

inappropriately toward RH on April 26, 2011, when Patricia L. notified her that something had

happened with a telephone and that Mr. Maynard was “trying to do stuff to them.” When

Patricia H. asked RH what had occurred, RH told her that Mr. Maynard had been trying to touch

her, and that he had put his hands down her shirt and had touched her buttocks. Patricia H. then

telephoned her husband, who was working in Pennsylvania.

       {¶16} Todd testified that he thought of the Maynards like family. However, he was

concerned about the relationship between RH and Mr. Maynard, and, in April of 2011, he and his

wife asked RH if there was anything “going on” between RH and Mr. Maynard. RH denied that

there was. On April 26, 2011, his wife called him while he was working in Pennsylvania, and

she informed him that “what we thought might happen happened.” Todd then drove home, and

he arrived at his house early the next afternoon. He waited on his stoop for Mr. Maynard to

arrive home from work. When Mr. Maynard arrived home, he approached Todd. As Mr.

Maynard was walking toward him, Todd told him to stop, and, when Mr. Maynard asked why,

Todd informed him that he knew why. Todd then asked Mr. Maynard what gave him the right
                                                7


“to put [his] hands on” RH, and Mr. Maynard responded “because she let me,” at which point

Todd struck Mr. Maynard.

       {¶17} A neighbor testified that she had witnessed Todd and Mr. Maynard arguing by the

street. She overheard Todd ask Mr. Maynard, “[W]hat gave you the right to do that to my

daughter,” and she heard Mr. Maynard respond that “she told me I could.” Todd then punched

Mr. Maynard, and she telephoned police.

       {¶18} Officer Brandon Lash of the Wooster Police Department responded to the call.

Officer Lash testified that someone had reported an altercation, but when he arrived at the scene,

Todd and Mr. Maynard were standing on the street and things appeared to have calmed. When

the officer approached, Todd began referencing inappropriate sexual behavior of Mr. Maynard

toward Todd’s daughter. The officer then interviewed Todd, Patricia H., and RH, and Officer

Clint Bartolic, who had also arrived at the scene, interviewed Mr. Maynard.            On cross-

examination, Officer Lash testified that, when he interviewed RH, she indicated that Mr.

Maynard’s attempts to touch her breasts were unsuccessful. Officer Bartolic testified that, when

he interviewed Mr. Maynard, Mr. Maynard denied that he at any time inappropriately touched

RH.

       {¶19} Detective Anthony Lemmon testified that he arrived at the scene after Officers

Lash and Bartolic. When the detective arrived, he advised the officers to arrange interviews with

the girls through the Child Advocacy Center. On May 5, 2011, Detective Lemmon watched on

closed circuit television as RH was interviewed by Child Advocacy personnel. On cross-

examination, the detective authenticated a video copy of the interview. During the interview,

RH stated that, approximately two months prior, Mr. Maynard had tried to stay in the room with

her and AL while they changed clothes. After that, he was giving AL a hug, and RH saw him
                                                8


grab AL’s buttocks. Two weeks prior, she and AL spent the night at Mr. Maynard’s home, and

RH saw pictures of RH and AL on Mr. Maynard’s cell phone. The picture of AL appeared to

have been shot from an angle veering down her tank top. A few days after RH discovered the

pictures, Mr. Maynard tried to take off RH’s top, and his hands went underneath her top, tank top

and bra. RH stated that Mr. Maynard had tried to put his hands down both of the girls’ shirts,

and that he would touch their buttocks as they walked up the steps, and, when doing so, would

make odd sounds. The Child Advocacy representative provided an anatomical drawing to RH

and asked her to indicate on the picture where Mr. Maynard had touched her. On re-direct

examination, the detective identified the drawing as the State’s Exhibit B. The exhibit indicates

that RH circled the breasts and buttocks on the drawing.

       {¶20} The defense provided the testimony of the Maynards. Neither Mr. nor Mrs.

Maynard recalled the girls spending the night at their home in March or April of 2011. Mr.

Maynard testified that he was like an uncle to RH. He maintained that he never touched RH’s or

AL’s breasts. He acknowledged that he did at times “smack” them on their buttocks with the

back of his hand when they would “lollygag,” but there was nothing sexual associated with this.

Mr. Maynard explained that he purchased a cell phone for RH because her father would often

restrict RH’s use of her own phone, and Mr. Maynard would then be unable to reach her to see if

she needed a ride home from school. In mid-April, Mr. Maynard learned that RH had given the

phone to AL to use, and he demanded return of the phone. RH was very upset regarding his

demand to return the phone.

       {¶21} Mr. Maynard further testified that he was making Native American regalia for

RH, and he had measured her for the outfit. When Todd confronted him in the street in April,
                                                9


Todd asked him why he had “measure[d]” his daughter. He responded that RH had let him,

believing that Todd was referencing the measurements Mr. Maynard had taken for the regalia.

       {¶22} The State called Todd on rebuttal. Todd maintained that he never inquired of Mr.

Maynard why he “measure[d]” RH, and Mr. Maynard had never said anything to him about

measuring her.

       {¶23} The crux of Mr. Maynard’s manifest weight argument is that the victims were not

credible because their accounts of his actions were vague and inconsistent, and because the

testimony at trial had not established any wrongdoing on the part of Mr. Maynard until he

demanded the return of his cell phone. However, although the record demonstrates that RH and

AL recounted somewhat differing versions of the incidents at issue, and their statements to

various witnesses changed somewhat over time, the trial court was free to believe all, part, or

none of their testimony. Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, ¶ 35,

citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993). This is because the trier of fact

“is best able to view witnesses and observe their demeanor, gestures and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.” State v. Cook, 9th

Dist. No. 21185, 2003-Ohio-727, ¶ 30, quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659

(8th Dist.1993). After a review of the record, we cannot conclude that this is the extraordinary

case where the trial court created a manifest miscarriage of justice in finding Mr. Maynard guilty

of attempted gross sexual imposition and attempted sexual imposition.          Accordingly, Mr.

Maynard’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       INASMUCH AS THE STATE FAILED TO PUT [MR. MAYNARD] ON
       NOTICE THAT IT WAS SEEKING A CONVICTION UNDER OHIO’S
       ATTEMPT STATUTE, THE TRIAL COURT ERRED AND VIOLATED [HIS]
       DUE PROCESS RIGHTS BY FINDING [HIM] GUILTY THEREUNDER[.]
                                                10


       {¶24} In his second assignment of error, Mr. Maynard argues that the trial court violated

his due process rights by convicting him of attempted gross sexual imposition and attempted

sexual imposition because the State failed to provide him notice that it was seeking convictions

for attempted offenses. We disagree.

       {¶25} R.C. 2945.74 provides in part that “[t]he jury may find the defendant not guilty of

the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law.”

Likewise, Crim.R. 31(C) provides in part that “[t]he defendant may be found not guilty of the

offense charged but guilty of an attempt to commit it if such an attempt is an offense at law.”

       {¶26} This Court has recognized:

       Both R.C. 2945.74 and Crim.R. 31(C) provide, in relevant part, that the trier of
       fact may find a defendant not guilty of a charged offense, but guilty of an attempt
       to commit the charged offense if such attempt is an offense at law. It is well
       established that attempts to commit charged crimes constitute one of the three
       types of lesser offenses a trier of fact may consider when determining a
       defendant’s guilt, the other two types being inferior degrees of the indicted
       offense and lesser included offenses.

State v. Pleban, 9th Dist. No. 10CA009789, 2011-Ohio-3254, ¶ 9, citing Shaker Hts. v. Mosely,

113 Ohio St.3d 329, 2007-Ohio-2072, ¶ 10, citing State v. Deem, 40 Ohio St.3d 205 (1988),

paragraph one of the syllabus.

       {¶27} “Lesser included offenses need not be separately charged in an indictment,

because when an indictment charges a greater offense, it necessarily and simultaneously charges

the defendant with lesser included offenses as well.” (Internal quotations omitted.) State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 8. Therefore, “although an accused may be

convicted of a lesser included offense, it is not necessary that each lesser included offense of a

crime be set forth in the indictment.” State v. Robinson, 9th Dist. No. 94CA005788, 1995 WL

110134, *2 (Mar. 15, 1995), quoting White v. Maxwell, 174 Ohio St. 186, 188 (1963).
                                                11


Consequently, “[a]s it is well understood that indictment on a greater offense simultaneously

charges a defendant with lesser offenses, [Mr. Maynard] was given adequate notice that he had

been charged with [gross sexual imposition, sexual imposition] and each of [their] lesser

offenses.” State v. Cole, 9th Dist. No. 17064, 1995 WL 752682, *2 (Dec. 20, 1995). We note

that Mr. Maynard has not argued that his indictment was insufficient, and he set forth legal

precedent that the trier of fact could find him guilty of attempt. Such would constitute a lesser

included offense to the indicted offense. Further, he has not provided any authority to support

his argument that, under the circumstances of this case, he was denied due process. Accordingly,

Mr. Maynard’s second assignment of error lacks merit and is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT MISAPPLIED THE ATTEMPT STATUTE TO [MR.
       MAYNARD]’S CONDUCT THROUGH THE IMPOSITION OF A LESSER
       DEGREE OF CULPABILITY THAN THAT REQUIRED TO CONVICT
       UNDER THE INDICTED OFFENSES[.]

       {¶28} In his third assignment of error, Mr. Maynard maintains that the trial court applied

a less stringent culpable mental state than that of purposely in convicting him of attempted gross

sexual imposition and attempted sexual imposition. We disagree.

       {¶29} “A person acts purposely when it is his specific intention to cause a certain

result,” which, here, would be sexual arousal or sexual gratification of either the offender or the

victim. R.C. 2901.22(A), Dunlap, 2011-Ohio-4111, ¶ 28 (“[T]he element of sexual contact in an

R.C. 2907.05(A)(4) violation requires a mens rea of purpose.”). The trier of fact can infer “from

the evidence presented at trial whether the purpose of the defendant was sexual arousal or

gratification by his contact with those areas of the body described in R.C. 2907.01.” State v.

Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991). This is because “[t]he determination of a

defendant’s mental state, absent some comment on his or her part, must of necessity be
                                                12


determined by the nature of the act when viewed in conjunction with the surrounding facts and

circumstances.”   (Quotation omitted.)     In re Anderson, 116 Ohio App.3d 441, 443 (12th

Dist.1996).

       {¶30} Here, Mr. Maynard maintains that the trial court must have applied a mental state

of less stringent culpability than that of purposely in regard to “sexual arousal or gratification”

because (1) it made no finding that Mr. Maynard acted with the purpose of sexual arousal or

gratification in attempting contact with RH and AL, and (2) there was no actual proscribed

contact committed from which the requisite purpose could be inferred with respect to attempted

conduct.

       {¶31} First, we know of no requirement that the trial court explicitly issue a finding that

the attempted contact was for the purpose of sexual arousal or gratification. Appellant has

pointed us to no authority standing for that proposition, and our research has uncovered none.

Next, although the trial court found that the State had not proved actual sexual contact, the trial

court had evidence before it from which it could infer that the attempted contact itself was

purposeful and was done for the purpose of sexual arousal or gratification. RH and AL testified

that Mr. Maynard had repeatedly tried to touch their breasts on so many occasions and under

such circumstances that the trial court could have appropriately determined that there lacked a

legitimate explanation for his behavior. He had refused to leave the guest room while the girls

changed clothes. In addition, the testimony indicated that Mr. Maynard had been observing and

photographing the girls surreptitiously. AL testified that the girls had replayed a video recorded

on the webcam that showed Mr. Maynard looking in on them as they played, and RH testified

that Mr. Maynard had pictures of the girls in tank tops on his phone which were taken

unbeknownst to her. Moreover, RH testified that when she threatened Mr. Maynard that she
                                                13


would tell her father about his attempted contact with her, he responded that he would take back

all the items he had purchased for her. Based upon the circumstances surrounding the attempted

contacts, the trial court had ample evidence before it from which it could infer that Mr. Maynard

attempted to engage in sexual contact with RH and AL for the purpose of sexual arousal or

gratification. Accordingly, Mr. Maynard’s third assignment of error is overruled.

                                                III.

       {¶32} Mr. Maynard’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

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

       Costs taxed to Appellant.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                         14




BELFANCE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

MICHAEL C. ASSEFF, Attorney at Law, for Appellant.

ALEK EL-KAMHAWY, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
