[Cite as State v. Beaver, 2019-Ohio-3411.]


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

STATE OF OHIO                                           C.A. No.    18CA0055-M

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
DWAINE L. BEAVER                                        COURT OF COMMON PLEAS
                                                        COUNTY OF MEDINA, OHIO
        Appellant                                       CASE No.   17CR0871

                                 DECISION AND JOURNAL ENTRY

Dated: August 26, 2019



        HENSAL, Judge.

        {¶1}     Dwaine Beaver appeals his conviction in the Medina County Court of Common

Pleas for gross sexual imposition. For the following reasons, this Court affirms.

                                                  I.

        {¶2}     Mr. Beaver put his hand down the front of his five-year-old granddaughter B.B.’s

underwear while they were in his basement viewing his worm farm. Although he alleged that he

was only checking to see whether she had a wetting accident, the Grand Jury indicted him on one

count of gross sexual imposition. A jury found him guilty of the offense, and the trial court

sentenced him to four years imprisonment. Mr. Beaver has appealed, assigning three errors.

                                                  II.

                                         ASSIGNMENT OF ERROR I

        INEFFECTIVE ASSISTANCE OF COUNSEL. DEFENDANT DWAINE
        BEAVER WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
        THROUGH TRIAL COUNSEL’S FAILURE TO MEET THE STANDARD OF
        PROFESSIONAL CONDUCT REQUIRED IN VARIOUS PARTS OF THE
                                                 2


       TRIAL INCLUDING BUT NOT LIMITED TO FAILURE TO PROPERLY
       EXECUTE A SUBPOENA TO A KEY DEFENSE REBUTTAL WITNESS,
       AND FAILURE TO OBJECT TO THE COMPETENCY FINDING OF THE
       MINOR WITNESS.

       {¶3}    Mr. Beaver’s first assignment of error is that his trial counsel was ineffective. To

prevail on a claim of ineffective assistance of counsel, Mr. Beaver must establish (1) that his

counsel’s performance was deficient to the extent that “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but for his counsel’s

deficient performance the result of the trial would have been different. Strickland v. Washington,

466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective standard

of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the

syllabus. A court, however, “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In

addition, to establish prejudice, Mr. Beaver must show that there existed a reasonable probability

that, but for his counsel’s errors, the outcome of the proceeding would have been different. State

v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.

       {¶4}    Mr. Beaver argues that his trial counsel’s performance was deficient because his

counsel failed to properly subpoena a witness that could have discredited the testimony of B.B.1

Mr. Beaver notes that one of the issues at trial was whether his touching of B.B. was “for the

purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). B.B. testified that,



       1
        Although Mr. Beaver’s assignment of error also asserts that his counsel was ineffective
for not objecting to the trial court’s competency finding, Mr. Beaver has not developed an
argument as to that issue in the body of his brief so this Court will disregard it. App.R. 12(A)(2).
                                                3


after Mr. Beaver touched her, he told her that they should keep it a secret between the two of

them, implying that the act may have had a sexual purpose. According to Mr. Beaver, his

attorney failed to properly subpoena a hospital employee who conducted an intake interview

with B.B. Mr. Beaver alleges that the employee would have testified that B.B. did not state

during the interview that he had asked her to keep the touching a secret, undermining B.B.’s

allegation at trial.

        {¶5}     After the trial court quashed the subpoena to the hospital employee, Mr. Beaver

did not make a proffer regarding her testimony. There is also no other indication in the record

about what her testimony would have been. This Court has held that, if “allegations of the

ineffectiveness of counsel are premised on evidence outside the record, * * * the proper

mechanism for relief is through the post-conviction remedies of R.C. 2953.21, rather than

through a direct appeal.” State v. Sweeten, 9th Dist. Lorain No. 07CA009106, 2007-Ohio-6547,

¶ 12. Thus, even if Mr. Beaver’s counsel’s performance was deficient for not properly serving

the subpoena, we are unable to determine on the record before this Court whether there is a

reasonable probability that the outcome of the trial would have been different if the witness had

testified. We, therefore, overrule Mr. Beaver’s first assignment of error. See State v. Emich, 9th

Dist. Medina No. 17CA0039-M, 2018-Ohio-627, ¶ 18 (explaining that this Court may not

engage in assumptions about materials that are not in the record to sustain an ineffective-

assistance-of-counsel argument).

                                   ASSIGNMENT OF ERROR II

        PROPER IN CAMERA INSPECTION. THE TRIAL COURT FAILED TO
        CONDUCT A PROPER IN CAMERA INSPECTION AND ELEMENTS OF
        FINDING OF COMPETENCY OF A MINOR WITNESS, AGE 5.
                                                 4


       {¶6}    Mr. Beaver’s second assignment of error is that the trial court incorrectly

determined that B.B. was competent to testify. Mr. Beaver argues that the court’s examination

of B.B. established that she was not adequately able to distinguish fact from fiction. He also

argues that the court failed to adequately assess B.B.’s intellectual capacity to recount events

accurately.

       {¶7}    Evidence Rule 103(A)(1) provides that “[e]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is affected, and *

* * [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears

of record, stating the specific ground of objection * * *.” Following the trial court’s examination

of B.B.’s competency, Mr. Beaver’s counsel stated that “it appears that she does overcome the

presumption against competency so I’m not going to object.” Accordingly, we conclude that,

under Rule 103(A)(1), Mr. Beaver is precluded from challenging B.B.’s competency on appeal.

Evidence Rule 103(D) provides that this Court may still notice plain error, but Mr. Beaver has

not argued that the trial court’s conduct amounted to plain error in his brief, and we decline to

construct an argument for him. See State v. Garfield, 9th Dist. Lorain No. 09CA009741, 2011-

Ohio-2606, ¶ 45 (declining to construct plain error argument for defendant who forfeited

evidentiary issue under Rule 103(A)). Mr. Beaver’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       CRIM. R. 29 MOTION FOR DISMISSAL. THE TRIAL COURT ERRED IN
       NOT GRANTING DEFENDANT-APPELLANT’S MOTION FOR DISMISSAL
       PURSUANT TO CRIM. R. 29.

       {¶8}    Mr. Beaver’s third assignment of error is that the trial court incorrectly denied his

motions for acquittal under Criminal Rule 29. Under that rule, a defendant is entitled to a

judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a
                                                  5


conviction * * *.” Crim.R. 29(A). Whether a conviction is supported by sufficient evidence is a

question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

In making this determination, we must view the evidence in the light most favorable to the

prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry 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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶9}    Mr. Beaver argues that the State failed to prove that the touching was for the

purpose of sexual gratification of either him or B.B. He notes that there was no evidence that he

engaged in any sort of repetitive movement, rubbing, or attempted stimulation while he was

attempting to determine if B.B. was wet. He also notes that both B.B. and her mother testified

that B.B. still occasionally had wetting problems at the time of the incident.

       {¶10} The jury found Mr. Beaver guilty of one count of gross sexual imposition under

Revised Code Section 2907.05(A)(4). That section provides that “no person shall have sexual

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

less than thirteen years of age * * *.”        R.C. 2907.05(A)(4). “‘Sexual contact’ means 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.” R.C. 2907.01(B). “A person acts purposely when it is the person’s

specific intention to cause a certain result, or, when the gist of the offense is a prohibition against
                                                 6


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

the offender's specific intention to engage in conduct of that nature.” R.C. 2901.22(A).

       {¶11} “A person’s purpose or intention may be proven through direct or circumstantial

evidence.” State v. Persinger, 9th Dist. Lorain No. 13CA010397, 2014-Ohio-4125, ¶ 5. “[I]n

the absence of direct testimony regarding sexual arousal or gratification, the trier of fact may

infer a purpose of sexual arousal or gratification from the ‘type, nature and circumstances of the

contact, along with the personality of the defendant.’” State v. Antoline, 9th Dist. Lorain No.

02CA008100, 2003-Ohio-1130, ¶ 64, quoting State v. Cobb, 81 Ohio App.3d 179, 185 (9th

Dist.1991). “From these facts the trier of facts may infer what the defendant’s motivation was in

making the physical contact with the victim.” Cobb at 185.

       {¶12} According to B.B.’s mother, at the time of the incident, B.B. occasionally wet

herself. When she did, B.B. would immediately notify her mother and then go change herself.

B.B.’s mother also testified that Mr. Beaver had never been involved in B.B.’s potty training and

had never changed one of her diapers.

       {¶13} According to B.B., while visiting her grandparents with her parents, Mr. Beaver

took her downstairs to the basement to see a worm farm. After going downstairs, they went over

to a table and Mr. Beavers asked her to stand on it. He then put his hand inside her panties and

touched her crotch. He told her that he was checking to see if she was wet and he kept his hand

there for a “moment[.]” Mr. Beaver also told her to “just keep this between you and me.”

According to B.B., Mr. Beaver did not ask her if he could check to see if she was wet before he

did so. After he was finished, Mr. Beaver lowered B.B. off the table, they saw the worms, and

went back upstairs. B.B.’s mother testified that, when B.B. told her about the touching, B.B.

said that it lasted for a minute and was not a quick touch.
                                                   7


       {¶14} Viewing the evidence in a light most favorable to the State, we conclude that

there was sufficient circumstantial evidence from which a rational trier of fact could infer that

Mr. Beaver touched B.B.’s pubic region for the purpose of sexual arousal or gratification. Mr.

Beaver’s third assignment of error is overruled.

                                                III.

       {¶15} Mr. Beaver’s assignments of error are overruled. The judgment of the Medina

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 Medina, 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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
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TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

THOMAS T. MULLEN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
