[Cite as State v. Edwards, 2013-Ohio-3068.]


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

STATE OF OHIO                                       C.A. No.       12CA010274

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DAVID EDWARDS                                       COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   10CR081459

                                 DECISION AND JOURNAL ENTRY

Dated: July 15, 2013



        WHITMORE, Judge.

        {¶1}    Appellant, David Edwards, appeals from the judgment of the Lorain County

Court of Common Pleas. This Court affirms.

                                                I

        {¶2}    Edwards was living with his long-time girlfriend, Ramona Gail Sturtevant.

Sturtevant is the paternal grandmother of J.S., who would frequently spend time at Sturtevant’s

house after school and on occasion would spend the night. J.S. and Edwards were friends and

had a close, loving relationship. This changed around the time J.S. turned ten. At that time, J.S.

became aggressive toward Edwards and began to avoid him.

        {¶3}    In June 2010, J.S. reported to school officials that Edwards had abused her.

While the school officials did not notify her mother, J.S. told her that same day. Her mother

immediately contacted the police. J.S. was interviewed by a detective and a social worker from
                                                  2


Children’s Services. Based on that interview, Edwards was indicted on one count of gross

sexual imposition (“GSI”), in violation of R.C. 2907.05(A)(4), a felony of the third degree.

       {¶4}    While the case remained pending, J.S. attended regular counseling sessions. In

August 2011, J.S. met with an assistant prosecutor to prepare for trial. At this meeting, J.S.

disclosed additional acts of abuse by Edwards. Based on this meeting, Edwards was indicted on

one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and an

additional count of GSI, in violation R.C. 2907.05(A)(4), a felony of the third degree.

       {¶5}    A jury convicted Edwards of the two counts of GSI, but found him not guilty of

rape. The court sentenced him to four years in prison. Edwards now appeals and raises four

assignments of error for our review.

                                                  II

                                 Assignment of Error Number One

       THE GUILTY VERDICTS ARE AGAINST THE SUFFICIENCY OF THE
       EVIDENCE IN VIOLATION OF MR. EDWARDS’S RIGHTS UNDER THE
       FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO
       STATE CONSTITUTION.

       {¶6}    In his first assignment of error, Edwards argues that the State failed to produce

sufficient evidence to support his convictions for gross sexual imposition. Specifically, Edwards

argues that the State failed to produce any evidence to establish that he had sexual contact with

J.S. for the purpose of sexual arousal or gratification.

       {¶7}    “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of
                                                  3


adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be

viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.” Id.

       {¶8}    “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955).                This Court,

therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,

2008-Ohio-3721, ¶ 4 (9th Dist.).

       {¶9}    R.C. 2907.05(A)(4) provides, in relevant part, that:

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

“Sexual contact” is defined 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.” R.C. 2907.01(B).

       {¶10} “[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.

       {¶11} J.S. testified that Edwards touched her breasts and “vaginal area” “below” her

clothes with his hands and his mouth. She further testified that the touching occurred in 2009-

2010, when she was 10 and 11 years old. Viewing the evidence in a light most favorable to the
                                                  4


State, “[J.S.’s] testimony alone was sufficient because, if believed, it could have convinced the

average finder of fact beyond a reasonable doubt that [Edwards] had touched one or more

erogenous zones of a child under the age of thirteen for the purpose of sexual arousal or

gratification.” See State v. Thomas, 9th Dist. Wayne No. 10CA0003, 2010-Ohio-6373, ¶ 10.

Accordingly, Edwards’ first assignment of error is overruled.

                                 Assignment of Error Number Two

        THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE
        EVIDENCE IN VIOLATION OF MR. EDWARDS’S RIGHTS UNDER THE
        FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
        STATES CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO
        STATE CONSTITUTION.

        {¶12} In his second assignment of error, Edwards argues that his convictions are against

the manifest weight of the evidence.         Specifically, Edwards argues that (1) Sturtevant’s

testimony establishes that Edwards never had the opportunity to commit the crimes; (2) J.S.’s

testimony was conflicting and inconsistent; and (3) the jury’s inconsistent verdicts demonstrate

that it lost its way.

        {¶13} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387; Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. “Weight of the evidence concerns ‘the

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

the issue rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting Black’s at 1594.

        In determining whether a criminal conviction is against the manifest weight of the
        evidence, an 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.
                                                 5


State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.

       {¶14} Sturtevant, J.S.’s paternal grandmother, testified that J.S. had a close, loving

relationship with her long-time live-in boyfriend, Edwards. Sturtevant explained that things

changed after J.S. turned 10 years old. J.S. became aggressive towards Edwards, had locked him

in the shed for hours, and told the family that she wanted Edwards to die. Sturtevant denied ever

leaving J.S. alone with Edwards for long periods of time, but did acknowledge that Edwards

would occasionally be alone with her. Sturtevant said that the two could be alone when playing

outside together, in another part of the house, or when she made a quick trip to the local grocery

store. Sturtevant also testified that Edwards confessed to her that one day while J.S. was

teaching him to use the computer he “had put his hand down in her bosom, on her breast, and

pulled her bra strap.” According to Sturtevant, Edwards told her that she was in the kitchen

making food when this happened.

       {¶15} J.S. testified that one day she “had an emotional breakdown during class and [ ]

couldn’t stop crying.” She explained that her teacher pulled her into the hallway to ask what was

wrong. Eventually, J.S. told her teacher that Edwards had “sexually molested” her, but did not

provide any details. J.S. was taken to the vice principal’s office where she repeated what she had

told her teacher. J.S. was sent back to class and picked up at the end of the day by her mother,

Olivia Rivera.
                                                  6


          {¶16} Rivera testified that she picked up J.S. from school just like any other day and had

not been informed by the school of J.S’s report of abuse.            Rivera stated that she knew

immediately that something was bothering J.S. and thought maybe she had gotten into trouble at

school. After pressing J.S. for what was bothering her, J.S. told Rivera that Edwards had been

abusing her. J.S. did not tell Rivera any details of the abuse. Rivera called the police and J.S.’s

father.

          {¶17} A couple of days later, J.S. met with Detective Carpentiere and a social worker

from Children’s Services. J.S. told them that Edwards had touched her inappropriately, but made

no allegations of cunnilingus. J.S. testified that she did not tell Detective Carpentiere and the

social worker everything because she was “still very scared.” After her interview, J.S. began

meeting with a counselor. She met with her counselor once a week for a year. After completing

counseling, J.S. met with an assistant prosecutor to prepare for trial. It was at this meeting that

J.S. revealed that Edwards had “put his mouth on [her].” Based on this new allegation, Edwards

was indicted on one count of rape and an additional count of GSI.

          {¶18} After trial, the jury found Edwards not guilty of rape, but guilty of the two counts

of GSI. Edwards argues that the jury’s verdict is inconsistent because the jury did not believe

J.S.’s allegations that formed the basis of the rape charge, but did believe her allegations of GSI.

          {¶19} The State presented three witnesses: J.S., her mother, and her grandmother. The

defense did not call any witnesses. After a careful review of the record we cannot conclude that

Edwards’ acquittal of rape makes his convictions for GSI against the manifest weight of the

evidence. “In reaching its verdict, the jury was entitled to believe all, part, or none of the

testimony of each witness.” State v. Howse, 9th Dist. Lorain No. 12CA010251, 2012-Ohio-

6106, ¶ 45.
                                                 7


        {¶20} Further, we cannot conclude that J.S.’s failure to disclose all incidents of abuse in

her initial interview means that “the greater amount of credible evidence, offered in a trial, [ ]

support[s] one side of the issue rather than the other.” (Emphasis sic.) Thompkins at 387,

quoting Black’s at 1594. J.S. testified that she did not reveal all of the abuse in her initial

interview because she was scared. Further, she explained that her counseling sessions helped her

talk about the abuse. After a review of all of the evidence, we conclude that this is not the

exceptional case where the jury created a manifest miscarriage of justice in finding Edwards

guilty of GSI. See Otten, 33 Ohio App.3d at 340. Accordingly, Edwards’ second assignment of

error is overruled.

                               Assignment of Error Number Three

        THE TRIAL COURT’S INSTRUCTIONS TO THE JURY WERE
        INCOMPLETE AND INACCURATE, AND THEREFORE DEPRIVED MR.
        EDWARDS OF A FAIR TRIAL IN VIOLATION OF HIS RIGHTS UNDER
        THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
        STATES CONSTITUTION, AND ARTICLE ONE, SECTION 10 OF THE
        OHIO STATE CONSTITUTION.

        {¶21} In his third assignment of error, Edwards argues that the court erred in failing to

define “purposefully” in its instructions to the jury. Edwards concedes that no objection was

raised at trial.

        {¶22} “[W]here specific intent or culpability is an essential element of the offense, a

trial court’s failure to instruct on that mental element constitutes error.” State v. Wamsley, 117

Ohio St.3d 188, 2008-Ohio-1195, ¶ 17, quoting State v. Adams, 62 Ohio St.2d 151, 153 (1980).

Failure to object to jury instructions waives all but plain error. State v. Skatzes, 104 Ohio St.3d

195, 2004-Ohio-6391, ¶ 52. “Plain error exists only where it is clear that the verdict would have

been otherwise but for the error.” Id., quoting State v. Long, 53 Ohio St.2d 91, 97 (1978).

“[T]he plain error rule should be applied with utmost caution and should be invoked only to
                                                8


prevent a clear miscarriage of justice.” State v. Underwood, 3 Ohio St.3d 12, 14 (1983). In

analyzing whether there is reversible plain error, “an appellate court must review the instructions

as a whole and the entire record to determine whether a manifest miscarriage of justice has

occurred as a result of the error in the instructions.” Wamsley at ¶ 17. See also Adams at

paragraph three of the syllabus.

        {¶23} To be guilty of gross sexual imposition under R.C. 2907.05(A)(4), a defendant

must touch the erogenous zone of another with the purpose of sexually arousing or gratifying

either person. State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, ¶ 25.             “The statute

requires a specific intent behind the touching - the touching must be intended to achieve sexual

arousal or gratification.” Id.

        {¶24} Here, on the charges of gross sexual imposition, the jury was instructed that to

find Edwards guilty it must find that he “had sex[ual] contact with J.S., not the spouse of

[Edwards,] and J.S. was less than thirteen years of age * * *.” R.C. 2907.05(A)(4). The court

properly defined sexual contact as “any touching of an erogenous zone of another * * * for the

purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). The court erred in

failing to define the term “purpose.” However, under the facts of this case, we conclude the error

does not rise to the level of plain error.

        {¶25} “Purpose” is a commonly used word and is readily understood. A defendant’s

purpose may be inferred from “the ‘type, nature and circumstances of the contact, along with the

personality of the defendant.’” Antoline, 2003-Ohio-1130, at ¶ 64, quoting Cobb, 81 Ohio

App.3d at 185. Here, J.S. testified that Edwards touched her “below” her clothes on her breasts

and “vaginal area.” The record does not indicate any other rational explanation for the contact,

other than for the purpose of Edwards’ sexual gratification.
                                                9


       {¶26} After reviewing the record, we conclude that the court erred in failing to instruct

the jury on the definition of the required mens rea. However, this does not rise to the level of

plain error because a specific instruction on the definition of purpose would not have produced a

different result at trial. See State v. Jay, 8th Dist. Cuyahoga No. 91827, 2012-Ohio-914, ¶ 12.

Accordingly, Edwards’ third assignment of error is overruled.

                               Assignment of Error Number Four

       MR. EDWARDS’S CONVICTIONS FOR GROSS SEXUAL IMPOSITION,
       BOTH FELONIES OF THE THIRD DEGREE, VIOLATED R.C. 2945.75(A)(2)
       BECAUSE THE JURY VERDICTS DID NOT INCLUDE THE DEGREE OF
       THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS.

       {¶27} In his fourth assignment of error, Edwards argues that the verdict forms are

insufficient to support his convictions are felonies of the third degree. Specifically, Edwards

argues that because the verdict forms “do not include the degree of the offense or the aggravating

element that the victim was under the age of thirteen,” he may only be convicted of a felony of

the fourth degree, the least degree of the offense. We disagree.

       {¶28} R.C. 2945.75(A)(2) provides that:

       When the presence of one or more additional elements makes an offense one of
       more serious degree * * * A guilty verdict shall state either the degree of the
       offense of which the offender is found guilty, or that such additional element or
       elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of
       the least degree of the offense charged.

       {¶29} In State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, the Ohio Supreme Court

held that strict compliance with R.C. 2945.75(A)(2) was required to support a conviction of

tampering with governmental records, in violation of R.C. 2913.42(B)(4), and that the presence

of additional circumstances would not excuse the failure to comply with the statute. Pelfrey at ¶

14. The Court explained:
                                                   10


       The express requirement of the statute cannot be fulfilled by demonstrating
       additional circumstances, such as that the verdict incorporates the language of the
       indictment, or by presenting evidence to show the presence of the aggravating
       element at trial or the incorporation of the indictment into the verdict form, or by
       showing that the defendant failed to raise the issue of the inadequacy of the
       verdict form.

Id. The Court reasoned that “[t]he statutory requirement certainly imposes no unreasonable

burden on lawyers or trial judges.” Id. at ¶ 12.

       {¶30} Subsequent to Pelfrey, the Ohio Supreme Court certified a conflict between State

v. Kepiro, 10th Dist. Franklin No. 06AP-1302, 2007-Ohio-4593, (Pelfrey does not apply to GSI

statute) and State v. Sessler, 3d Dist. Crawford No. 3-06-23, 2007-Ohio-4931 (Pelfrey applies to

the intimidation statute). The Court certified the following question.

       Is the holding in State v. Pelfrey, 112 Ohio St.3d 422, applicable to charging
       statutes that contain separate sub-parts with distinct offense levels?

State v. Sessler, 116 Ohio St.3d 1505, 2008-Ohio-381. The Court answered the question in the

affirmative and affirmed the Third District’s decision without analysis, but disallowed an appeal

in Kepiro. State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3810; State v. Kepiro, 119 Ohio St.3d

1408, 2008-Ohio-3880. We note the Tenth District continues to hold that Pelfrey is inapplicable

to R.C. 2907.05(A)(4). See State v. Kepiro, 10th Dist. Franklin No. 09AP-19, 2009-Ohio-4654.

       {¶31} In 2012, the Ohio Supreme Court issued State v. Eafford, 132 Ohio St.3d 159,

2012-Ohio-2224. Eafford was indicted for possession of cocaine, but the jury verdict form only

stated that he was “guilty of Possession of Drugs in violation of § 2925.11(A) of the Ohio

Revised Code, as charged in Count Two of the indictment.” Id. at ¶ 18. The Supreme Court did

not apply the strict compliance standard it had previously set forth in Pelfrey. Instead, the Court

applied a plain error analysis and concluded that “Eafford [had] not shown that but for the use of

th[e] verdict form, the outcome of the trial would have been different.” Eafford at ¶ 19. In its
                                                  11


rationale, the Court noted that “the indictment alleged that Eafford possessed cocaine, expert

testimony confirmed that the substance at issue tested positive for cocaine, and throughout the

trial the parties and the court treated the phrase ‘possession of drugs’ as synonymous with the

possession of cocaine.” (Emphasis sic.) Id. at ¶ 17. The Court further noted that the trial court

included cocaine as the specific drug at issue in its jury instructions. Id.

       {¶32} We note our sister courts resolve Eafford and Pelfrey differently. The Third

District in State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853, ¶ 17, noted that a

conflict exists between Eafford and Pelfrey. Gregory was indicted on one count of domestic

violence, as a felony of the third degree. However, the verdict form did not include the level of

the offense or the additional element that Gregory had “previously pleaded guilty to or been

convicted of two or more offenses of domestic violence[.]” Gregory at ¶ 19, quoting R.C.

2919.25(D)(4). In analyzing whether Gregory’s verdict form supported his conviction as a

felony of the third degree, the majority concluded that because Eafford did not expressly

overrule Pelfrey, Pelfrey still controlled. Gregory at ¶ 19.

       {¶33} In contrast, the Eighth District has concluded that Eafford and Pelfrey are

reconcilable because the statutes at issue in the respective cases are distinguishable. State v.

Melton, 8th Dist. Cuyahoga No. 97675, 2013-Ohio-257, ¶ 31. The Eighth District explained that

“[t]he charge in Eafford, possession of cocaine, did not involve any additional elements that

elevated the level of the offense.” Id. At issue in Melton was “the crime of discharge of a

firearm on prohibited premises which causes serious physical harm to any person. (Emphasis

sic.) Id. at ¶ 32. The court concluded that because the serious physical harm element does

increase the offense, the strict compliance analysis in Pelfrey, and not plain error analysis of

Eafford, applied. Melton at ¶ 32.
                                                 12


       {¶34} After a careful review of the relevant statutes and case law, we are persuaded by

the rationale of the Tenth District and conclude that Pelfrey is inapplicable with respect to

violations of R.C. 2907.05(A)(4). See State v. Crosky, 10th Dist. Franklin No. 06AP-065, 2008-

Ohio-145, ¶ 147-148; State v. Nethers, 5th Dist. Licking No. 07 CA 78, 2008-Ohio-2679, ¶ 56-

57. Pelfrey applies when “the presence of one or more additional elements makes an offense one

of more serious degree.” R.C. 2945.75(A).

       {¶35} R.C. 2907.05(A)(4) provides, in relevant part, that:

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

A violation of R.C. 2907.05(A)(4) is a felony of the third degree. R.C. 2907.05(C)(2). There are

no additional elements that will enhance this offense to a higher degree. R.C. 2907.05 does

contain other subsections, but each has their own separate elements. Here, as charged in the

indictment, the State was required to prove that Edwards had sexual contact with J.S. for the

purpose of sexual arousal or gratification and that J.S. was under the age of thirteen at the time of

the offense. Failure to prove any of these elements would have resulted in an acquittal, not a

conviction of a lesser degree of gross sexual imposition.

       {¶36} Because we conclude that Pelfrey does not apply to R.C. 2907.05(A)(4),

Edwards’ verdict forms are sufficient to support his convictions as felonies of the third degree.

Edwards’ fourth assignment of error is overruled.

                                                 III

       {¶37} Edwards’ assignments of error are overruled.            The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
                                                13




       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 Lorain, 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.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, J.
CONCURS.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

PAUL GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
