[Cite as State v. Jay, 2012-Ohio-914.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 91827




                                         STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                         JEFFREY JAY
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-506937

        BEFORE:           Celebrezze, J., Blackmon, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                      March 8, 2012
ATTORNEY FOR APPELLANT

Jeffrey Jay, pro se
4196 Plymouth Road
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: T. Alan Regas
       Lisa Williamson
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} This cause is before us on remand from the Ohio Supreme Court for

application of State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, 953 N.E.2d 816

(“Dunlap II”).

       {¶2} Appellant, Jeffrey Jay, was tried and convicted of gross sexual imposition of

a child under 13, in violation of R.C. 2907.05(A)(4), and child endangerment, in violation

of R.C. 2919.22(A). An appeal was taken to this court. State v. Jay, 8th Dist. No.

91827, 2009-Ohio-4364, 2009 WL 2624989 (“Jay I”).                We affirmed appellant’s

convictions and held that gross sexual imposition of a child under age 13 is a strict

liability offense, relying on State v. Dunlap, 8th Dist. No. 91165, 2009-Ohio-134, 2009

WL 97813 (“Dunlap I”). Jay I at ¶ 14.

       {¶3} Appellant sought review by the Ohio Supreme Court. The court accepted

appeal on Propositions of Law No. I (“the trial court erred when it failed to grant

appellant’s motion for judgment of acquittal as to the offenses of gross sexual imposition

and endangering children”) and No. II (“the trial court committed plain error when it fail

[sic] to instruct the jury on [the] element of purpose relative to offense of gross sexual

imposition, and thus denied appellant due process and fair trial”).

       {¶4} The Ohio Supreme Court held in Dunlap II that only the age of the victim is a

strict liability element of R.C. 2907.05(A)(4). Id. at ¶ 14. The sexual-contact element
of the statute requires purposeful action.      Id. at ¶ 23.     The Ohio Supreme Court

remanded the case to this court for application of Dunlap II.

       {¶5} Gross sexual imposition, as it relates to this case, prohibits “sexual contact

with another, not the spouse of the offender * * * [when] [t]he other person * * * is less

than thirteen years of age, whether or not the offender knows the age of that person.”

R.C. 2907.05(A)(4).

       {¶6} Sexual contact is defined in R.C. 2907.01(B) to mean “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.”

       {¶7} Purpose is defined in R.C. 2901.22(A) as actions with “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.”

       {¶8} One’s purpose may be inferred from actions, and the “the trier of fact ‘may

infer what the defendant’s motivation was in making the physical contact with the victim’

by considering ‘the type, nature and circumstances of the contact, along with the

personality of the defendant.’”         State v. Salinas, 10th Dist. No. 09AP-1201,

2010-Ohio-4738, 2010 WL 3820597, ¶ 30, quoting State v. Cobb, 81 Ohio App.3d 179,

185, 610 N.E.2d 1009 (9th Dist. 1991).
       {¶9} Here, appellant admitted stroking his son’s penis, causing it to become erect.

That is direct evidence of a touching of an erogenous zone for the purpose of sexually

arousing the victim. As the concurring and dissenting opinion pointed out in Jay I:

       [T]he type of sexual contact appellant engaged in is so abhorrent to most
       persons that it could be inferred that appellant acted for purposes of sexual
       gratification. Although it appears that appellant’s actions toward his toddler
       son were not undertaken to sexually gratify himself, a reasonable trier of
       fact could find that his aberrant conduct was, at some level, committed to
       sexually arouse his son — even if done in a playful manner. Certainly, his
       admission of masturbating the child’s penis suggests a kind of depravity
       that could only be sexual in nature. The jury could rationally find that
       appellant’s actions went beyond puerile fun. Id. at ¶ 40 (Stewart, J.,
       concurring in part and dissenting in part).

       {¶10} There is evidence in the record that appellant touched his three-year-old

son’s penis until it became erect. This indicates action with a purpose to sexually arouse

the young boy.       Therefore, appellant’s conviction for gross sexual imposition is

supported by sufficient evidence.

       {¶11} Further, the jury instructions given contained the definition of sexual contact

as set forth in R.C. 2907.01(B), including “for the purpose of sexually arousing or

gratifying either person.” These instructions were not given in error. State v. Scott, 8th

Dist. No. 91890, 2011-Ohio-6255, 2011 WL 6150058, ¶ 6 (“the jury was instructed on

the element of sexual contact and provided the definition set forth in R.C. 2907.01(B).

Consistent with Dunlap, the indictment herein was not defective, the jury was properly

instructed, and the trial court did not err.”).

       {¶12} Also, appellant failed to object to these instructions, waiving all but plain

error. Plain error does not exist unless the appellant establishes that the outcome of the
trial clearly would have been different but for the trial court’s allegedly improper actions.

 State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).               A specific

instruction defining purpose would likely have made no difference given appellant’s

admitted actions in this case.

       {¶13} Consistent with our holding herein, we modify our prior opinion. The

judgment of the trial court remains affirmed.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA A. BLACKMON, A.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
