[Cite as State v. Jackson, 2018-Ohio-3492.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 103957



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                       DEMETRIUS JACKSON

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-15-598188-A

        BEFORE: E.A. Gallagher, A.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 30, 2018
ATTORNEY FOR APPELLANT

Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Sherrie S. Royster
       Anthony Thomas Miranda
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, A.J.:

       {¶1} This cause is before this court on remand from the Ohio Supreme Court in State

v.Jackson, Slip Opinion No. 2018-Ohio-2169, for further review of our decision released

December 15, 2016. The Ohio Supreme Court, having reversed our judgment in this case

which was based on the Fifth and Sixth Amendments to the United States Constitution, has

remanded it to us with instructions to consider Jackson’s second and third assignments of error.

       {¶2} Defendant-appellant Demetrius Jackson appeals his convictions for rape, gross

sexual imposition and kidnapping in the Cuyahoga County Court of Common Pleas. For the

following reasons, we affirm as to those assignments of error.

       Factual and Procedural Background

       {¶3} Appellant was charged by a Cuyahoga County Grand Jury with three counts of rape,

gross sexual imposition, importuning with a prior conviction for a sexually or child victim

oriented offense, felonious assault and kidnapping with a sexual motivation specification. Each

of these crimes were alleged to have been committed against a 14-year old female (“C.H.”).

       {¶4} The case proceeded to a bench trial where C.H. testified that, on August 5, 2015, she

went to an older sister’s home in Cleveland, Ohio and was interacting with her young relatives

while two of her sisters were on the porch drinking with the appellant.    C.H. testified that she

did not know the appellant and that both of her sisters were intoxicated. Later that night, the

occupant of the home, C.H.’s sister N.J.,1 told C.H. to go upstairs and lay down with N.J.’s two

children, ages 7 and 1. C.H. had fallen asleep in a bedroom with the two children and was

awakened by the appellant who told her that her sister, S.H., had told him to come lay with her.

C.H. rebuffed his advances and told him to leave the room, which he did, and after which he
went downstairs but returned and repeated that her sister told him to go upstairs and lay with her.

 C.H. herself went downstairs, as did the appellant, and found both of her sisters to be asleep on

a couch. At that point the appellant laid himself on the living room floor and C.H. returned

upstairs to a bedroom.

       {¶5} C.H. testified that appellant returned to the upstairs bedroom and asked her to allow

him to perform oral sex on her. When she refused, appellant stated “I’ll give you $200 a week

if you don’t say anything.” Appellant then “ripped” C.H.’s underwear off of her, proceeded to

perform oral sex on her and when she resisted, he choked her and said “let me just do this.”

The appellant then inserted his fingers, and later his penis, into her vagina.

       {¶6} At some point appellant stopped his assault which gave C.H. an opportunity to grab

her cellular telephone from a windowsill and run, without shoes or underwear, to a family

member’s home approximately eight houses away and from where Cleveland police were called.

 C.H. was transported to University Hospitals by EMS where she was examined, treated and

released.

       {¶7} N.J., the occupant of the home where these events transpired, testified that on the

night in question, her sister S.H. brought appellant to the house after she went to the store to

purchase alcohol. N.J. testified that she had fallen asleep and was awakened, on the couch, by

her brother-in-law, K.F., who informed her that C.H. was at his home down the street and that

she had been raped. N.J. went to the house of K.F. where she found the victim “hysterically

crying . . . she was screaming ‘he raped me, he raped me. . .’”

       {¶8} Kathleen Hackett, the sexual assault nurse examiner who interacted and examined

C.H. at U.H. Rainbow Babies and Children’s Hospital read the victim’s own words from the


       1
        N.J. identified herself as the victim’s “god-sister.”
triage notes that echoed C.H.’s testimony but for the fact that C.H. did not report to her any

digital penetration. The nurse noted a mark on C.H.’s neck.

       {¶9} Laura Evans, a DNA analyst at the Cuyahoga County Medical Examiner’s Office

testified that testing of the victim’s vaginal swabs revealed the presence of seminal material but

no DNA profile foreign to the victim was found. The DNA analyst testified that sometimes the

victim’s DNA can mask another person’s DNA.              She testified that Jackson could not be

excluded as a possible contributor to the DNA profile from a dried stain from the victim’s left

ear. She further testified that testing done of the penile swabs taken from Jackson could not

exclude C.H. as a possible contributor.

       {¶10} Appellant testified on his own behalf. He testified, however, only because the

court admitted the testimony concerning what was allegedly said to the child advocate, over

objection. Appellant claimed that the sexual activity with the victim was consensual. He

maintained that he had only a “few swigs” of alcohol and smoked two blunts of marijuana on the

night in question.   He testified that everyone, including the victim, was drinking and that he

thought the victim was at least 18 years old. He testified that the victim started kissing him, that

they performed oral sex on each other and that the victim asked him to pay her for same. He

denied choking the victim or in penetrating her in any fashion. He also testified to the limited

mobility of his right arm.

       {¶11} At the close of the state’s case the trial court dismissed the importuning and

felonious assault charges. The trial court found appellant guilty of two counts of rape, gross

sexual imposition and kidnapping with a sexual motivation specification. The trial court found

appellant not guilty of the third count of rape (cunnilingus).
       {¶12} The trial court found the kidnapping count to be an allied offense to the rape and

gross sexual imposition counts and merged the kidnapping count with those offenses. The state

elected to proceed to sentencing on the two rape counts and the kidnapping count. The trial

court imposed prison terms of 11 years on each of the three counts and ordered the sentences to

run concurrently.

       Law and Analysis

       I. Hearsay

       {¶13} In his second assignment of error, Jackson argues that he was denied his Sixth

Amendment right to be confronted with the witnesses against him when the state introduced an

alleged hearsay statement through the testimony of Cleveland police officer Louis Adipietro.

Adipietro testified that he responded to the scene and that C.H. told him, “I was raped.”

       {¶14} Hearsay is “a statement, other than one made by the declarant while testifying . . .

offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). But if a statement

is offered for another purpose, then it is not hearsay and is admissible. State v. Osie, 140 Ohio

St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 118.

       {¶15} “Law-enforcement officers may testify to out-of-court statements for the

nonhearsay purpose of explaining the next investigatory step.” State v. Beasley, Slip Opinion

No. 2018-Ohio-493, ¶ 172, citing State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70

N.E.3d 508, ¶ 186. Testimony to explain police conduct is admissible as nonhearsay if it satisfies

three criteria: (1) the conduct to be explained is relevant, equivocal, and contemporaneous with

the statements, (2) the probative value of the statements is not substantially outweighed by the

danger of unfair prejudice, and (3) the statements do not connect the accused with the crime

charged. Id., citing State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27.
       {¶16} The testimony in this instance satisfies the standard of Ricks.     Officer Adipietro

was describing his interaction with C.H. when he arrived on scene solely as context for his

subsequent investigatory steps and C.H.’s statement did not implicate Jackson. Therefore, the

statement was nonhearsay and did not violate the Confrontation Clause. Id. at ¶ 175, citing

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 186.

       {¶17} Furthermore, even if the statement had not been admissible under Ricks, any error

would be harmless in this instance.   First, this case was tried to the bench and despite overruling

the objection the trial court stated that it would not consider the statement as evidence to

establish that C.H. was raped. Secondly, C.H. testified at trial that she was raped. When a

hearsay declarant is examined at trial “on the same matters as contained in impermissible hearsay

statements and where admission is essentially cumulative, such admission is harmless.” State v.

Tucker, 8th Dist. Cuyahoga No. 83419, 2004-Ohio-5380, ¶ 78, citing State v. Tomlinson, 33 Ohio

App.3d 278, 281, 515 N.E.2d 963 (12th Dist.1986); State v. Shropshire, 8th Dist. Cuyahoga

No. 104775, 2017-Ohio-8308, ¶ 26.

       {¶18} Jackson’s second assignment of error is overruled.

       II. Manifest Weight

       {¶19} In his third assignment of error, Jackson argues that his convictions are against the

manifest weight of the evidence.

       {¶20} A manifest weight challenge attacks the credibility of the evidence presented and

questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist.

Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Thompkins, 78 Ohio St.3d 380,

387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing court may determine that a
judgment of a trial court is sustained by sufficient evidence but nevertheless conclude that the

judgment is against the weight of the evidence.

       {¶21} In evaluating a challenge to the verdict based on the manifest weight of the

evidence in a bench trial,

       [T]he trial court assumes the fact-finding function of the jury. Accordingly, to

       warrant reversal from a bench trial under a manifest weight of the evidence claim,

       this 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 evidence, the trial court clearly lost its way and created such

       a manifest miscarriage of justice that the judgment must be reversed and a new

       trial ordered.

Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 16 (8th Dist.),

citing Thompkins.

       {¶22} In conducting such a review, this court remains mindful that the credibility of

witnesses and the weight of the evidence are matters primarily for the trier of fact to assess. State

v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the syllabus.

Reversal on manifest weight grounds is reserved for the “exceptional case in which the evidence

weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

       {¶23} Jackson argues that his convictions were against the manifest weight of the

evidence because the convictions hinged on the credibility of C.H.’s account of the incident and

because the investigating officers failed to collect C.H.’s underwear for examination. The trial

court in this instance heard accounts of the incident from both C.H. and Jackson and concluded
that C.H.’s version of events “very credibly portrays a sexually assaulted 14-year-old.”

Conversely, the trial court did not find Jackson’s story to be credible particularly in light of the

C.H.’s flight from the scene following their encounter. The trial court also noted that Jackson’s

use of his right arm at trial was inconsistent with the defense’s position he could not have used

the arm as described by C.H. due to its limited mobility.   The trial court was in the best position

to judge the credibility of the witnesses in this instance. We cannot say that its judgment is

against the manifest weight of the evidence.

       {¶24} Jackson’s third assignment of error is overruled.

       {¶25} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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 Cuyahoga County

Court of Common Pleas to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.



_____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION);
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY AND CONCURS WITH
SEPARATE OPINION


SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
       {¶26} I concur in judgment only with the lead opinion because I believe the law

enforcement officer’s testimony that C.H. told him “I was raped” was hearsay. It is clear from

the record that appellant was the suspect in the case. The testimony was introduced after the

officer was questioned regarding what the victim meant when she indicated “it’s my fault” while

on the scene. The officer then testified that “[w]hile on the scene, she did say, ‘I was raped.’”

By implication, the statement was in reference to the incident between appellant and the victim,

thereby connecting appellant to the crime charged. The testimony constituted inadmissible

hearsay because it was offered to prove the truth of the matter asserted, rather than to explain

police conduct. Nonetheless, I agree with the majority that any error was harmless because the

trial court did not consider the statement as evidence that the victim was raped and the victim

herself testified at trial that she had been raped. I also agree that appellant’s convictions are not

against the manifest weight of the evidence. Therefore, the trial court’s judgment should be

affirmed.
