[Cite as State v. Morefield, 2014-Ohio-5170.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 STATE OF OHIO                                           :
                                                         :        Appellate Case No. 2013-CA-71
          Plaintiff-Appellee                             :
                                                         :        Trial Court Case No. 13-CR-0325
 v.                                                      :
                                                         :
 EARROL D. MOREFIELD                                     :        (Criminal Appeal from
                                                         :        (Common Pleas Court)
          Defendant-Appellant                   :
                                                         :

                                                    ...........
                                                OPINION
                           Rendered on the 21st day of November, 2014.
                                                    ...........

RYAN A. SAUNDERS, Atty. Reg. #0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellant

SHAWNA YOFFE, Atty. Reg. #0090653, Office of the Ohio Public Defender, 250 East Broad
Street, Columbus, Ohio 43215
        Attorney for Defendant-Appellee

                                                             .............

PER CURIAM:.

        {¶ 1}     Defendant-appellant Earrol D. Morefield appeals from his conviction and
                                                                                                    2


sentence, following a jury trial, for Sexual Battery, in violation of R.C. 2907.03(A)(5), a

felony of the third degree. Morefield contends that the trial court erred by failing to instruct

the jury that penetration of the victim’s vagina was an element of the offense that the State was

required to prove beyond reasonable doubt, that the prosecutor “counseled the jury to convict

[him] * * * even if no penetration actually occurred,” that his conviction is against the

manifest weight of the evidence, and that the trial court’s imposition of a four-year sentence is

“unsupported by any consideration of statutory factors on the record.”

       {¶ 2}    We conclude that the trial court did instruct the jury that penetration was an

element of the offense, that the prosecutor did not counsel, or otherwise urge, the jury to

convict absent proof of penetration, and that the conviction is not against the manifest weight

of the evidence. But we conclude that, upon this record, in which the only matters of fact

addressed to the statutory purposes and principles of sentencing, and the statutory seriousness

and recidivism factors, are arguments of the prosecutor at the sentencing hearing, unsupported

by facts in the record, it appears that the trial court did not properly consider the statutory

factors. Accordingly, Morefield’s conviction is Affirmed, his sentence is Reversed, and this

cause is Remanded for re-sentencing in accordance with this opinion.



                                       I. The Offense

       {¶ 3}    Morefield is the step-father of the victim, A.K., and lived in the same

household with her for a number of years. A.K. was thirteen at the time of the offense.

       {¶ 4}    Although there were other witnesses at trial, only Morefield and A.K. could

testify as to the touching constituting the offense.             According to A.K., Morefield
                                                                                                3


uncharacteristically went outside to observe her feeding the family’s chickens in a barn behind

the house. This was in July, 2012. After she was done feeding the chickens, Morefield hugged

her. According to A.K., Morefield then put his hand down her pants, and: “He took his fingers

and put it in my vagina.” A.K. denied having done or said anything to encourage Morefield’s

behavior. After about 40 seconds, Morefield withdrew his hand from A.K.’s pants.

       {¶ 5}    Morefield testified that A.K. had been in the habit, while scantily dressed, of

masturbating in the house in front of the family, including two younger siblings. According to

Morefield, he went out to the barn to confront A.K. about her behavior, which he found

disturbing. He then testified:

               And I said, I’m going to ask her about this and what she’s doing and why

       she’s doing it in front of her sister and brother. I didn’t tell anybody that, but

       that’s what I was thinking, so we fed the chickens and started out of the barn. I

       went up to her and said, “[A.K.], what’s going on with you? What were you

       doing in the chair? What’s the matter? What’s going on?” She said, “Well,

       [K.] told me I should shave and I’m itching.” And she smirked at me.

               I said, “[A.K.], I think you were doing something else.” She says, “No, I

       was not,” and she smirked at me again. And spontaneously I walked up to her

       and put my hand around her and said, “[A.K.], you can’t be doing that. You’re

       lying to me.”

       And I stuck my hand in her pants. It was wet and I pulled my hand back out. And there

was hair. She lied about shaving. And I told her afterwards, “[A.K.], you can’t be doing that.

What if you went to your friends [sic] house, your girlfriends [sic] house and you’re acting that
                                                                                                         4


       way and her brother has friends over or something and it gets out of hand.”

       {¶ 6}    Morefield denied having hugged A.K. before he put his hands down her pants. He specifically

denied having inserted any part of his hand in her vagina.

       {¶ 7}    A.K. reported Morefield’s act to her mother (Morefield’s wife). Her mother advised A.K. to let

her handle the matter. Nothing was done.

       {¶ 8}    About nine months later, after a fight with her mother, A.K. left the house and walked three

miles to her sister’s house. Concerned, A.K.’s mother called the sheriff’s office, which led to a deputy arriving

at A.K.’s sister’s house, followed shortly by A.K.’s mother. A.K. was told that she might get into trouble as an

unruly child. A.K. touched upon the incident nine months earlier after the deputy pointed out that it could be

dangerous for a 13-year-old girl to be walking outside alone at night, telling the deputy, “it’s too late.” A.K.

was taken downtown, and spoke to a detective in the sheriff’s office, telling him what had occurred with her

stepfather.

       {¶ 9}    That same evening, A.K.’s sister called Morefield. The call was recorded by the sheriff’s

office, and the recording is in evidence. When Morefield discussed the incident with A.K.’s sister, his account

of it was consistent with his trial testimony.

       {¶ 10} A.K.’s mother testified that some time after the incident, she discussed it with Morefield, whose

account of what had happened was consistent with his trial testimony.



                                         II. The Course of Proceedings

               {¶ 11} Morefield was charged by indictment with Sexual Battery, in violation of R.C.

       2907.03(A)(5), a felony of the third degree, and with Gross Sexual Imposition, in violation of

       R.C. 2907.05(A)(1). Morefield was convicted of Sexual Battery, but acquitted of Gross Sexual
                                                                                                  5


Imposition.

       {¶ 12} Morefield was sentenced to a four-year prison term for Sexual Battery. From his

conviction and sentence, Morefield appeals.



                       III. The Trial Court Did Instruct the Jury that

                         Penetration Is an Element of Sexual Battery

       {¶ 13} Morefield’s First Assignment of Error is as follows:

               THE TRIAL COURT DENIED EARROL DAVID MOREFIELD’S

       RIGHT TO DUE PROCESS AND A FAIR TRIAL BY GIVING INCORRECT

       JURY INSTRUCTIONS, WHICH MISLED THE JURY TO BELIEVE HE

       SHOULD BE CONVICTED OF SEXUAL BATTERY EVEN IF NO

       PENETRATION ACTUALLY OCCURRED, IN VIOLATION OF THE FIFTH,

       SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION

       AND ARTICLE I, SECTIONS 10 AND 16, OF THE OHIO CONSTITUTION.

       {¶ 14} Sexual Battery, in violation of R.C. 2907.03(A)(5), is the engaging in sexual

conduct with another when the offender occupies one of certain relationships to the victim that

includes being the victim’s stepparent. That Morefield was A.K.’s stepfather was undisputed.

The determinative issue was whether he had engaged in sexual conduct with A.K. “Sexual

conduct” includes “the insertion, however slight, of any part of the body * * * into the vaginal or

anal opening of another.” R.C. 2907.01(A). Thus, penetration is an element of the offense that

the State was required to prove.

       {¶ 15} By contrast, Gross Sexual Imposition, the offense of which Morefield was
                                                                                                     6


acquitted, does not require penetration – mere touching of a specified body part may suffice, but

only if it is done for the purpose of sexually gratifying or arousing the offender or the victim.

R.C. 2907.01(B).

        {¶ 16} Morefield contends that the jury was not instructed that penetration was an

element of the offense of which he was convicted. The record indicates otherwise. The trial

court instructed the jury that before it could find Morefield guilty of Sexual Battery, it must find

beyond reasonable doubt that he engaged in sexual conduct with the victim within the time-frame

charged in the indictment, when he was the victim’s stepparent. The trial court then instructed

the jury that:

                  Sexual conduct means, without privilege to do so, the insertion, however

        slight, of any part of the body into the vaginal opening of another. Penetration,

        however slight, is sufficient to complete digital vaginal penetration.

        {¶ 17} Shortly thereafter, the trial court instructed the jury that:

                  Digital vaginal penetration for the purpose of sexually arousing or

        gratifying either person is not an essential element of sexual battery. (Emphasis

        added.)

        {¶ 18} No objection was made to this instruction, which we construe to have been an

instruction that digital vaginal penetration need not have been for the purpose of sexually

arousing or gratifying either person to constitute Sexual Battery.

        {¶ 19} By contrast, in instructing the jury on the elements of Gross Sexual Imposition,

Count II of the indictment, the trial court properly instructed the jury that sexual contact, as an

element of that offense, must be for the purpose of sexually arousing or gratifying either person.
                                                                                                                                                7


         {¶ 20} Morefield argues that by having instructed the jury on the mental culpability state

of recklessness, in connection with the Sexual Battery charge,1 the trial court left the jury with

the impression that if, by his act, Morefield recklessly exposed his victim to the possibility of

digital penetration of his victim’s vagina, without penetration actually having occurred, he would

be guilty of Sexual Battery.                     We are not persuaded by this argument.                                  The trial court

unequivocally instructed the jury that sexual conduct is an element of Sexual Battery, and that

sexual conduct meant the digital penetration of the victim’s vagina. These instructions would

lead a reasonable jury to conclude that digital penetration, not the mere risk of digital penetration,

was an element of the offense that the State was required to prove beyond reasonable doubt.

         {¶ 21} If we were to accept Morefield’s argument, then we would necessarily conclude

that in any prosecution in which an instruction on the mental culpability state of recklessness is

given, a jury would likely be misled, despite clear instructions to the contrary, that the actual

commission of the criminal act need not be proven, so long as the offender is shown to have

recklessly exposed a victim to the risk of commission of the criminal act. This we are not

prepared to conclude. A reasonable jury can be expected to understand the distinction between

the criminal act and the mens rea required for the offense.

         {¶ 22} Morefield also complains that written jury instructions were not submitted to the

jury, as required by Crim.R. 30(A). It is true that there is nothing in the record to reflect that the

jury was given written jury instructions. But Morefield did not object to the trial court’s failure


            1
             In his brief, Morefield contends that penetration is a strict-liability element of the offense. But he does not complain, nor
 would we expect him to, that the State was required to prove a mental culpability state that it ought not to have been required to prove.
 Accordingly, we take no position, in this appeal, whether the element of penetration, in a Sexual Battery prosecution, is a strict-liability
 offense.
                                                                                               8


to have provided the jury with written instructions, at a time when this failure could have been

cured.    Therefore, this error is governed by the plain-error standard of review.      State v.

Williford, 49 Ohio St.3d 247, 252, 551 N.E.2d 1279 (1990). The jury was instructed that it

could submit questions during its deliberations; it had no questions. We conclude that the

failure to have provided the jury with written instructions was unlikely to have affected the

outcome of the proceedings; therefore, no plain error occurred.

         {¶ 23} Morefield’s First Assignment of Error is overruled.



               IV. The Prosecutor Did Not Counsel the Jury to Find Morefield

                   Guilty of Sexual Battery Even if No Penetration Occurred

         {¶ 24} Morefield’s Second Assignment of Error is as follows:

                THE PROSECUTION’S MISSTATEMENTS OF THE LAW IN

         CLOSING ARGUMENT, WHICH COUNSELED THE JURY TO CONVICT

         EARROL DAVID MOREFIELD OF SEXUAL BATTERY EVEN IF NO

         PENETRATION ACTUALLY OCCURRED, VIOLATED HIS RIGHT TO DUE

         PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, AND

         FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

         ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

         {¶ 25} Morefield predicates this assignment of error upon the following remark during

the State’s closing argument:

         When your intent even in his own mind, if your intent is to stick your hand down a

thirteen-year-old’s pants forcibly to see if she is wet, you’re reckless that you may, in fact,
                                                                                                          9


       penetrate however slightly her vaginal cavity. And again, when he had pulled out his hand, he

       admitted that his hand was wet, ladies and gentlemen.

       {¶ 26} Morefield construes this statement, to which no objection was interposed, as an argument that

the jury should convict him if he was reckless, whether or not any penetration occurred. We disagree. The

State was responding to Morefield’s testimony and argument that his motives were benign, and to the necessity

that it prove that Morefield was reckless. This is clear from the passage in the State’s closing argument

immediately following the above-quoted passage:

               I would submit to you that he did it with sexual motivation. I would submit to you that

       he did it for many seconds. But even if you find that he was reckless when he stuck his hand

       down her pants and only penetrated her a second and got his hand wet and pulled it out, he’s still

       guilty of sexual battery. (Emphasis added.)

       {¶ 27} From the italicized portion of the above-quoted passage, it is clear that the State accepted that it

had to prove penetration, however slight, and was arguing to the jury that even if Morefield did not intend to

penetrate the victim’s vagina, if penetration occurred as a result of recklessness on his part, he would still be

guilty of Sexual Battery. We find no fault with this argument, which was responsive to Morefield’s position

that his motives were benign.

       {¶ 28} Morefield’s Second Assignment of Error is overruled.



              V. Morefield’s Conviction Is Not Against the Manifest Weight of the Evidence

               {¶ 29} Morefield’s Third Assignment of Error is as follows:

                      EARROL DAVID MOREFIELD’S SEXUAL BATTERY CONVICTION

               IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN
                                                                                                          10


                 VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS OF THE

                 U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

                 CONSTITUTION.

                 {¶ 30} A.K. testified, unequivocally, that Morefield, her stepfather, digitally penetrated

       her vagina. From her testimony, it is clear that this was highly offensive to her, and certainly not

       consensual. Morefield testified that although he touched her pubic area, he did not penetrate her

       vagina.     The jury evidently credited A.K.’s testimony, not Morefield’s, as to the issue of

       penetration.

                 {¶ 31} Although an appellate court conducting a weight-of-the-evidence review sits as a

       “thirteenth juror,” weighing the evidence and all reasonable inferences, the determination of

       which witnesses giving conflicting testimony to credit is primarily for the finder-of-fact, who has

       seen and heard the witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

       476684, *4.

                 A reviewing court considering a manifest-weight claim “review [s] the entire record,

       weighs the evidence and all reasonable inferences, [and] considers the credibility of witnesses.”

       State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717. The question for

       the reviewing court is “whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must be reversed and a new

       trial ordered. The discretionary power to grant a new trial should be exercised only in the

       exceptional case in which the evidence weighs heavily against conviction.” Id. See [State v.]

       Thompkins, 78 Ohio St.3d [380,] 387, 678 N.E.2d 541 [(1997)].

State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 77.
                                                                                                        11


       {¶ 32} In our view, this is not the rare case where a jury lost its way. The jury may well have believed

Morefield’s testimony that his purpose for putting his hand down A.K.’s pants was not for sexual arousal or

gratification, since that would explain the jury’s verdict acquitting Morefield of Gross Sexual Imposition. The

one major conflict in the testimony was whether Morefield penetrated A.K.’s vagina while conducting his

spontaneous examination. Both parties made cogent arguments to the jury on this point. Morefield admitted

that he had acted unwisely in examining A.K.’s pubic region without his wife, or A.K.’s older sister, being

present. The jury may have concluded that Morefield’s impulsive examination included probing the inside of

A.K.’s vagina. We cannot say that the jury lost its way, or that the evidence in this case weighs heavily against

conviction.

       {¶ 33} Morefield’s Third Assignment of Error is overruled.



                  VI. The Record Fails to Demonstrate that the Trial Court Considered

                            the Statutory Purposes and Principles of Sentencing,

                           and the Statutory Seriousness and Recidivism Factors

       {¶ 34} Morefield’s Fourth Assignment of Error is as follows:

               THE    TRIAL     COURT’S      IMPOSITION       OF    A    4-YEAR     SENTENCE        WAS

       UNSUPPORTED BY ANY CONSIDERATION OF STATUTORY FACTORS ON THE

       RECORD.

               {¶ 35} The sentence imposed, four years, is one year less than the maximum sentence

       that the trial court was authorized by statute to impose. In sentencing an offender for a felony, a

       trial court is required to consider the purposes of felony sentencing. R.C. 2929.11(A). A trial

       court is also required to consider statutory seriousness and recidivism factors. R.C. 2929.12(A).
                                                                                                   12


 The trial court has discretion in selecting the appropriate sentence. Id.

       {¶ 36} As Morefield notes, the trial court did not refer to the statutory sentencing

purposes, principles, and factors at the sentencing hearing when it imposed sentence. In its

judgment entry, however, the trial court does recite that it considered the statutory sentencing

purposes, principles, and factors.     As Morefield also notes, “[a] silent record raises the

presumption that the trial court considered the factors contained in R.C. 2929.12.” Morefield’s

brief, p. 14, quoting State v. Rutherford, 2d Dist. Champaign No. 08CA11, 2009-Ohio-2071, ¶

34. See also State v. Adams, 37 Ohio St.3d 295, 297-298, 525 N.E.2d 1361 (1988); State v.

Carlton, 2d Dist. Montgomery No. 26086, 2014-Ohio-3835, ¶ 18.

       {¶ 37} Morefield complains that the trial court’s failure to have articulated its

consideration of the statutory factors deprives him of the opportunity to know what the trial

court’s findings were. But the trial court did have the benefit of statements by both Morefield,

personally, and the State before it imposed sentence. Morefield pointed out that he had never

been in trouble before, and that he had “been in these children’s lives since they were three,”

while understanding that what he did was wrong.

       {¶ 38} The State made the following statements:

       When looking at the factors, we believe that the mental injury caused to this victim was

exasperated [sic] because of her young age, which she did suffer from serious psychological harm

and the defendant’s relationship in this matter facilitated the offense; and we believe that a prison

term would be consistent with the purposes and principals [sic] set forth entered [sic] by 2929.11

and that this defendant is not at this time amenable to community control sanctions, Your Honor.

       When you look at this case and I can’t speak for the victim in this matter other than to say
                                                                                                                                                    13


         that her life is obviously at this point never going to be the same. We had a trial here where

         obviously there was sides. We had a now thirteen-year-old victim who sat in this courtroom

         with some of her family while her mother2 and other parts of her family sat on the opposite side

         of the courtroom. Her life subject to the actions of this individual are never going to be the same

         for her.

                    Her life, her family’s life, everybody involved in this matter, life has now changed and

         will never be the same because of the hands of Mr. Morefield. We believe that prison in this

         matter is necessary and also appropriate. Thank you, Your Honor.

         {¶ 39}         Although the trial court’s judgment entry recited that the purposes and principles of sentencing

had been considered, the only mention of any factors at the sentencing hearing was by the prosecutor. The

prosecutor stated that:

                    - the child suffered “mental injury” and “serious psychological harm,” which was

                    “caused” by the defendant and was exacerbated because of her young age.

                    - her life has changed forever and “will never be the same because of the hands of Mr.

                    Morefield.”

                    {¶ 40}       All this may be true and, from a subjective point of view, we have no reason to

         doubt it. Our concern is that nothing the prosecutor said was reflected in the record (and there

         was no pre-sentence investigation report). The law does not allow a trial court to take judicial

         notice of the effect of a particular act upon a particular individual, and assertions of fact in a

         prosecutor’s argument, unsupported by the record, should not be considered in sentencing.


           2
              Although A.K.’s mother testified for the State, her testimony appeared in many respects to be more sympathetic to Morefield, her husband, and less
 sympathetic to her daughter, the victim.
                                                                                                 14


        {¶ 41} When the record is silent, we presume that the trial court considered the statutory

purposes, principles, and factors in the sense that an appellant always has the burden of showing

that the court erred. The only times we have reversed a sentence is when there is evidence in the

record which contradicts the court’s findings, conclusions, or both. See, e.g., State v. Nichols,

195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082.

        {¶ 42}    Here, the only record is one in which the prosecutor makes statements that go

directly to factors the trial court is required by statute to consider. For example, in determining

whether an offender’s conduct is more serious than normally constituting the offense, the trial

court must consider whether “the physical or mental injury * * * was exacerbated because of the

physical or mental condition or age of the victim.” R.C. 2929.12(B)(1). Another consideration

is whether “the victim * * * suffered serious physical [or] psychological * * * harm as a result of

the offense.”

        {¶ 43} We are, therefore, left with a negative-pregnant silent record, which is pregnant

with the possibility that the court considered and accepted the prosecutor’s conclusory

allegations. We sustain Morefield’s Fourth Assignment of error, and remand for the trial court

to state its considerations explicitly on the record.



                                          VII. Conclusion

        {¶ 44} Morefield’s Fourth Assignment of Error having been sustained, and his other

assignments of error having been overruled, his sentence is Reversed, and this cause is Remanded

for re-sentencing in accordance with this opinion. The judgment is otherwise affirmed.

                                                        .............
                                                         15


FROELICH, P.J., and FAIN, J., and DONOVAN, J., concur.

                                      ..........

Copies mailed to:

Ryan A. Saunders
Shawna Yoffe
Hon. Douglas M. Rastatter
