[Cite as State v. Smith , 2011-Ohio-965.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                MEIGS COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 09CA16
                                :
     vs.                        : Released: February 24, 2011
                                :
JEANETTA A. SMITH,              : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Michael L. Barr, Little & Sheets LLP, Pomeroy, Ohio, for Defendant-
Appellant.

Colleen S. Williams, Meigs County Prosecutor, and Matthew J. Donahue,
Meigs County Assistant Prosecutor, Pomeroy, Ohio, for Plaintiff-Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1}       Defendant-Appellant, Jeanetta Smith, appeals the decision of

the Meigs County Court of Common Pleas. For her involvement in the

sexual abuse of her daughter, A.S., Smith was convicted of complicity to

gross sexual imposition, complicity to sexual battery of a child under

thirteen, and complicity to rape of a child. Smith claims there was error in

the court below in that: 1) her convictions were against the manifest weight

of the evidence, and; 2) she was charged and convicted of both sexual

battery and rape contrary to R.C. 1.51. We find that neither of Smith’s
Meigs App. No. 09CA16                                                         2


assignments of error are warranted. There was substantial evidence for

Smith’s conviction, and the charges of sexual battery and rape were not

allied offenses of similar import. As such, we overrule each of her

assignments of error and affirm the trial court’s decision.

                                   I. Facts

      {¶2}    In 2008, Meigs County Children Services took custody of the

three children of appellant Jeanetta Smith (“Smith”) and her husband,

Kenneth Michael Smith. The oldest of the children, A.S., was four at the

time. After their removal from Jeanetta Smith’s home, A.S. and her two

younger siblings were placed in foster care. While in foster care, A.S.

exhibited behavior typical of a child who had been sexually abused.

Children Services began investigating the matter and interviewed Smith and

her husband. Both initially denied any knowledge of, or involvement in, any

abuse. But in a subsequent interview, Smith admitted that she had been

involved in her husband’s sexual abuse of A.S. Children Services alerted

law enforcement and took Smith to the Meigs County Sherrif’s Department,

where Smith repeated her confession. Her confession at the Sherrif’s

Department was recorded in its entirety.

      {¶3}    Smith was indicted on multiple counts and a jury trial was

held in July 2009. During the trial, the jury heard testimony from multiple
Meigs App. No. 09CA16                                                          3


witnesses, including Children Services case workers, medical personnel who

had examined A.S., and Smith herself, who testified in her own defense.

Smith’s recorded confession was also played for the jury. Smith testified

that she had not abused A.S., and that she had given a false confession only

because she was being denied visitation. She testified that she believed if

she told Children Services personnel what they wanted to hear, she would be

allowed to see A.S. again.

      {¶4}     The jury found Smith guilty of complicity to: gross sexual

imposition, under R.C. 2907.05(A)(4); sexual battery of a child under

thirteen, under R.C. 2907.03(A)(5) and (B); and rape of a child under

thirteen, under 2907.02(A)(1)(b). The trial court sentenced her to five years

for gross sexual imposition, to a mandatory eight years for sexual battery,

and to life imprisonment, with the possibility of parole after fifteen years, for

the rape charge – all sentences to run consecutively, for a total of life

imprisonment, with the possibility of parole after twenty-eight years.

Following sentencing, Smith timely filed the current appeal.

                           II. Assignments of Error
First Assignment of Error

      DEFENDANT-APPELLANT JEANETTA SMITH’S
      CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
      THE EVIDENCE.
Meigs App. No. 09CA16                                                          4


Second Assignment of Error

      THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT
      GRANTING DEFENDANT-APPELLANT’S MOTION FOR
      JUDGMENT OF ACQUITTAL PURSUANT TO CRIM.R. 29 AND
      ORC 1.51.
Third Assignment of Error

      THE TRIAL COURT COMMITTED PLAIN ERROR IN
      SENTENCING IN CONTRADICTION OF ORC 1.51.

                        III. First Assignment of Error
      {¶5}    In her first assignment of error, Smith argues that the jury's

verdict was against the manifest weight of the evidence. “The legal concepts

of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different.” State v. Thompkins (1997), 78

Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the

adequacy of the evidence, while weight tests “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other[.]” State v. Sudderth, 4th Dist. No. 07CA38,

2008-Ohio-5115, at ¶27, quoting Thompkins at 387.

      {¶6}    “Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence.” State v. Smith, 4th Dist. No. 06CA7,

2007-Ohio-502 at ¶41. When determining whether a criminal conviction is
Meigs App. No. 09CA16                                                            5


against the manifest weight of the evidence, we “will not reverse a

conviction where there is substantial evidence upon which the [trier of fact]

could reasonably conclude that all the elements of an offense have been

proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d

56, 526 N.E.2d 304, paragraph two of the syllabus. See, also, Smith at ¶41.

We “must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the 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 granted.” Smith at ¶41, citing State v. Garrow

(1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, “[o]n the trial

of a case, * * * the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” State v. DeHass (1967) 10

Ohio St.2d 230, 227 N.E.2d 212.

      {¶7}     During trial, the jury first heard the testimony of Linda

Higgins, A.S.’s foster mother who initially raised concerns regarding sexual

abuse. Higgins, who had training in identifying indicators of sexual abuse,

saw such behavior in A.S. when A.S. and her two younger siblings were

placed in her care. A.S. had rage issues and exhibited sexualized behavior,
Meigs App. No. 09CA16                                                          6


such as simulating sexual acts, both by herself and with her two-year-old

brother, and attempting to insert objects into herself. As a result of Higgin’s

observations, Children Services opened an investigation regarding the

possible abuse of A.S.

      {¶8}    The jury also heard the testimony of Dr. Phillip Scribano, the

Director of the Child Advocacy Center, who examined A.S. at the request of

Children Services. Scribano testified that the behaviors exhibited by A.S.

were not typical of a four-year-old. He further stated that such behavior was

indicative of direct experience with, or exposure to, sexual activity.

Scribano testified that, given the severity of A.S.’s sexualized behaviors and

other factors, he believed that she had been sexually abused.

      {¶9}    The jury also heard the testimony of Candace Walker and

Emily Bass, employees of Children Services. They observed A.S.’s

sexualized behavior, including pulling her younger brother on top of her self,

moving her hips back and forth and making moaning noises. They tried to

interview A.S. regarding the possible abuse, but A.S’s ability to

communicate verbally was extremely limited.

      {¶10} When Children Services initially interviewed Smith and her

husband together, both denied knowledge of any abuse. But Walker

subsequently spoke with Smith’s husband alone. And as a result of
Meigs App. No. 09CA16                                                        7


information she learned during that conversation, she asked Smith to come

and speak with her once more. In that second interview, which took place at

Children Services, Walker and Bass told Smith that they had information

regarding her involvement in the abuse of A.S. Walker and Bass testified

that at that point, Smith admitted her involvement and detailed the abuse.

      {¶11} Most importantly, the jury heard Smith's recorded confession.

Immediately after her second interview at Children Services, Smith agreed

to accompany Walker and Bass to the sheriff's office. There, she again

admitted to the abuse. This second confession was recorded, with Smith’s

full knowledge. From that recording, the jury heard Smith, in her own

voice, detail the extremely disturbing sexual abuse, including that: Smith

and A.S. would masturbate together on the bed; Smith’s husband would

perform oral sex on A.S. while Smith performed oral sex on her husband;

Smith and A.S. would both perform oral sex on her husband at the same

time, and; her husband, while having sex with Smith, would insert his finger

into A.S. Though, in her confession, Smith claimed she would not directly

touch A.S. during these encounters, she admitted that she encouraged A.S. to

participate, and do what she was doing. She also admitted that she enjoyed

these encounters. Finally, she admitted that, at the time the abuse was

occurring, she knew it was both wrong and illegal.
Meigs App. No. 09CA16                                                            8


      {¶12} During trial, Smith took the stand in her own defense. She

testified that the statements she made in her confession were not true. Smith

claimed that Walker and Bass coerced her confession by yelling at her, and

by telling her that she would be allowed to visit her children if she

confessed. “I basically told them what they wanted to hear because I

thought I was going to be able to see my kids.” Walker and Bass both

explicitly denied this allegation, testifying that Smith was not promised

anything in exchange for her confession. Further rebutting Smith's

allegation that her testimony was coerced is the fact that she voluntarily

accompanied Walker and Bass to the sheriff's office to make her confession.

She admitted that, at that time, she was not placed in restraints, she was not

placed under arrest or taken into custody, and she was told that she could

leave any time she liked.

      {¶13} After a complete examination of the record, we find there was

substantial evidence for the jury's decision and that the jury could have

reasonably concluded that all the elements of complicity to gross sexual

imposition, sexual battery, and rape were proven beyond a reasonable doubt.

The testimony of A.S.’s foster mother, medical professionals, and employees

of Children Services clearly established that A.S. was sexually abused.
Meigs App. No. 09CA16                                                            9


Further, Smith's confession clearly establishes that she and her husband were

responsible for that abuse.

      {¶14} Regarding the factual circumstances surrounding her

confession, the jury heard both Smith's version of events and law

enforcement and Children Services’ version. To the extent that Smith’s

testimony differed from other witnesses as to whether or not her confession

was voluntary, such determinations of credibility are for the trier of fact. As

such, it was the jury's role, not the role of this reviewing court, to resolve

issues involving conflicting testimony. Thus, we find the State presented

substantial evidence for Smith’s conviction and we overrule her first

assignment of error.

                IV. Second and Third Assignments of Error

      {¶15} Smith's second and third assignments of error are based on the

same argument, and we consider them together. Smith contends that it was

error to indict and convict her for both sexual battery of a child under

thirteen, under R.C. 2907.03(A)(5) and (B) and rape of a child under

thirteen, under 2907.02(A)(1)(b). Smith asserts that the rape charge is a

general statutory provision and the sexual battery charge is a specific

statutory provision. And under R.C. 1.51, when a general provision and a

special provision conflict, the special provision prevails. Accordingly,
Meigs App. No. 09CA16                                                       10


Smith contends that she could properly have been charged and sentenced

only for sexual battery, not for rape. For the following reasons, we disagree.

      {¶16} The Supreme Court of Ohio has stated that “R.C. 1.51 comes

into play only when a general and a special provision constitute allied

offenses of similar import and additionally do not constitute crimes

committed separately or with a separate animus for each crime.” State v.

Chippendale (1990), 52 Ohio St.3d 118, 120, 556 N.E.2d 1134.

Accordingly, when the offenses in question are not allied offenses of similar

import, R.C. 1.51 does not preclude the offender from being charged with

and convicted of both. See, e.g., State v. Eppinger, 162 Ohio App.3d 795,

835 N.E.2d 746, 2005-Ohio-4155 at ¶14.

      {¶17} In State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d

816, the Supreme Court of Ohio established a two-part test to determine

whether two offenses are allied offenses of similar import. The Court

further refined its analysis in numerous subsequent cases, culminating in

State v. Johnson, --- N.E.2d ----, 2010 WL 5392806 (Ohio), 2010-Ohio-

6314. There, the court stated the following:

      {¶18} “In determining whether offenses are allied offenses of similar

import under R.C. 2941.25(A), the question is whether it is possible to

commit one offense and commit the other with the same conduct, not
Meigs App. No. 09CA16                                                          11


whether it is possible to commit one without committing the other. * * * If

the offenses correspond to such a degree that the conduct of the defendant

constituting commission of one offense constitutes commission of the other,

then the offenses are of similar import.” Id. at ¶48.

      {¶19} “If the multiple offenses can be committed by the same

conduct, then the court must determine whether the offenses were committed

by the same conduct, i.e., ‘a single act, committed with a single state of

mind.’” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-

4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting). “If the answer to

both questions is yes, then the offenses are allied offenses of similar import

and will be merged.” Id. at ¶50.

      {¶20} In the case sub judice, Smith argues that the commission of

sexual battery on a child under thirteen, under R.C. 2907.03(A)(5) and (B)

necessarily results in the commission of rape of a child under thirteen, under

2907.02(A)(1)(b). And, thus, they are allied offenses of similar import.

However, even if Smith is correct, and the commission of one necessarily

results in the commission of the other, we find that she can be convicted of

both because the crimes were committed separately.

      {¶21} Under the second part of the Johnson analysis, a defendant

may be convicted of both offenses if the offenses were committed
Meigs App. No. 09CA16                                                          12


separately or there was a separate animus for each. During trial, the

evidence showed that A.S. had been sexually abused in a number of ways.

In Smith's confession, she admitted that, among other abuses, she

encouraged A.S. to perform oral sex on her husband, her husband performed

oral sex on A.S., and her husband digitally penetrated A.S. The Supreme

Court of Ohio has stated that such separate acts constitute separate crimes

even when taking place during the same event. In State v. Nicholas (1993),

66 Ohio St.3d 431, 613 N.E.2d 225, the Court found that vaginal

intercourse, cunnilingus, and digital penetration constituted separate acts.

“Since each constitutes a separate crime with a separate animus, they do not

constitute allied offenses of similar import.” Nicholas at 435.

      {¶22} We find Nicholas to be controlling in the case sub judice.

Even if, in these circumstances, Smith's complicity to sexual battery

necessarily resulted in complicity to rape, the sexual abuse consisted of

various sexual acts. Accordingly, separate crimes were committed for which

Smith could be charged separately. As such, we overrule her second and

third assignments of error.

                               V. Conclusion

      {¶23} After a complete review of the record below, we find there

was substantial evidence for Smith's conviction. Accordingly, her argument
Meigs App. No. 09CA16                                                          13


that the jury's decision was against the manifest weight of the evidence has

no merit. Similarly, because her complicity to the sexual abuse of A.S.

constituted separate crimes and not a single act, her offenses of complicity to

sexual battery and complicity to rape were not allied offenses of similar

import. As such, we also overrule her second and third assignments of error

and affirm the decision of the court below.

                                                 JUDGMENT AFFIRMED.
Meigs App. No. 09CA16                                                          14


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of 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 Meigs County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J. and Kline, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
