[Cite as State v. Cassell, 2016-Ohio-8260.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2016CA00012
RICHARD CASSELL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Stark County Court of
                                                Common Pleas, Case No. 2015CR0376


JUDGMENT:                                       Affirmed

DATE OF JUDGMENT ENTRY:                         December 19, 2016

APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO,                                DONOVAN HILL
Prosecuting Attorney,                           116 Cleveland Ave. North
Stark County, Ohio                              Canton, Ohio 44702

By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section

DANIEL J. PETRICINI
Assistant Prosecuting Attorney
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00012                                                        2

Hoffman, P.J.



       {¶1}   Defendant-appellant Richard Ryan Cassell appeals his convictions entered

by the Stark County Court of Common Pleas on one count of gross sexual imposition, in

violation of R.C. 2907.05(A)(4), and one count of disseminating matter harmful to

juveniles, in violation of R.C. 2907.31(A)(1). Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 25, 2014, M.C., the minor child of Appellant and his ex-wife,

M.P., returned to M.P.’s residence after visitation with Appellant. At the time, Appellant

lived with his parents in Uniontown, Ohio.

       {¶3}   Upon returning to M.P.’s residence, M.C. took a nap, and then asked her

mother to talk. During their conversation, M.C. disclosed to her mother Appellant had

physically picked her up and bit her butt cheek. She told her mother Appellant walked

around naked and made her lick his nipples while he rubbed his penis. M.C. further stated

Appellant showed her pornographic videos in the second living room of his parent’s

house. M.C. remarked the videos depicted people without clothes on, describing a “boy

standing up and a girl on her knees,” “doing sex” and “humping.”

       {¶4}   As a result of M.C.’s statements, M.P. contacted the Stark County Sheriff’s

Office to report Appellant’s conduct. The Stark County Sheriff’s Office contacted Appellant

and asked him to come to the Stark County Sheriff’s Department for an interview.

Appellant freely and willingly drove himself to the interview. During the interview,

Appellant did not deny sexual contact with M.C. Rather, Appellant admitted to showing

his children pornographic materials, including a magazine and cable television, to educate
Stark County, Case No. 2016CA00012                                                          3


them on the ways they could make money in the pornographic industry and for sexual

education. Appellant continually directed blame toward his ex-wife, and different

“parenting styles.” When asked about M.C.’s statements relative to touching Appellant’s

private areas, Appellant did not deny the contact, instead explaining the family dynamic

and his relationship with his ex-wife.

       {¶5}   The Stark County Sheriff’s Department contacted the Children’s Network

ran by Akron Children’s Hospital. A forensic interview of M.C. was conducted by the

Children’s Network on February 4, 2015. The interview was watched via closed circuit

television by Megan Dahlheimer, a pediatric nurse practitioner, and the interview was

conducted by Alissa Edgein, also a pediatric nurse practitioner. During the interview, M.C.

disclosed multiple events of Appellant touching her breasts and vagina, both over and

under her clothes, biting her buttocks, putting his finger in her mouth, exposing his genitals

to her, lying on the bed nude and rubbing himself, making her rub his genitals, and making

her and her siblings watch pornographic videos.

       {¶6}   The Stark County Grand Jury indicted Appellant on two counts of gross

sexual imposition, in violation of R.C. 2907.05(A)(4), and two counts of disseminating

matter harmful to juveniles, in violation of R.C. 2907.31(A)(1). One count each pertained

to M.C., and one count each pertained to H.C., also a minor child of Appellant and M.P.

       {¶7}   The trial court conducted a competency hearing as to the two minor

children, H.C. and M.C., on July 1, 2015. Via Judgment Entry of August 3, 2015, the trial

court determined the two minor children were competent to testify at trial.

       {¶8}   At trial, M.C. testified her date of birth is November 1, 2006. She stated,

when she visited with Appellant, they would sleep in the same twin bed. During her visits
Stark County, Case No. 2016CA00012                                                        4


with Appellant, she stated he would touch her “up here” and her “down part.” She referred

to her private areas as her “boobies and “wiener.” She stated the touching was over and

under her clothes. She further testified Appellant had her touch his boobies and lick them,

while he rubbed his penis. He also put his finger in her mouth.

       {¶9}   M.C. testified Appellant had her and her siblings watch movies, where

people were doing sex with their clothes off.

       {¶10} H.C., M.C.’s brother, testified Appellant showed him and his siblings a video

on Facebook with boobs. The video was a demonstration of “real and fake boobs.”

       {¶11} M.P., the minor children’s mother, testified at trial M.C. told her Appellant

picked her up and “bit her on the butt.” M.C. told her Appellant would rub her front side

with her pants were still on, would walk around naked, and would lie next to her on the

bed naked making her lick his nipples while he rubbed his penis. She further stated the

children told her Appellant made the children watch a pornographic movie and told the

children it was his job to teach them about sex.

       {¶12} Following the close of the State’s case, Appellant moved the court for a

Criminal Rule 29 acquittal as to the charges. The trial court granted Appellant’s motion

for acquittal as to the two counts pertaining to H.C. The trial proceeded only as to the two

counts charged pertaining to M.C.: one count of gross sexual imposition, in violation of

R.C. 2907.05(A)(4) and one count of disseminating material harmful to a juvenile, in

violation of R.C. 2907.31(A)(1).

       {¶13} The jury found Appellant guilty of the charges, and the trial court sentenced

Appellant to sixty months on the gross sexual imposition charge and twelve months on
Stark County, Case No. 2016CA00012                                                         5


the disseminating material harmful to juveniles charge. The trial court ordered the terms

run consecutively. The trial court further designated Appellant a Tier II sex offender.

       {¶14} Appellant assigns as error:

       {¶15} I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶16} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶17} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶18} Appellant was convicted of one count of gross sexual imposition, in violation

of R.C. 2907.05(A)(4), which reads,



              (A) No person shall have sexual contact with another, not the spouse

       of the offender; cause another, not the spouse of the offender, to have
Stark County, Case No. 2016CA00012                                                        6


       sexual contact with the offender; or cause two or more other persons to

       have sexual contact when any of the following applies:

              ***

              (4) The other person, or one of the other persons, is less than thirteen

       years of age, whether or not the offender knows the age of that person.



       {¶19} Appellant was also convicted of one count of disseminating material harmful

to a juvenile, in violation of R.C. 2907.31(A)(1), which reads,



              (A) No person, with knowledge of its character or content, shall

       recklessly do any of the following:

              (1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent,

       or present to a juvenile, a group of juveniles, a law enforcement officer

       posing as a juvenile, or a group of law enforcement officers posing as

       juveniles any material or performance that is obscene or harmful to

       juveniles;



       {¶20} Appellant maintains he has an affirmative defense to the charge of

dissemination as he utilized the media for a bona fide educational purpose with his minor

children.

       {¶21} R.C. 2907.31 (C)(1) states,

              It is an affirmative defense to a charge under this section, involving

       material or a performance that is obscene or harmful to juveniles, that the
Stark County, Case No. 2016CA00012                                                       7


       material or performance was furnished or presented for a bona fide medical,

       scientific, educational, governmental, judicial, or other proper purpose, by a

       physician, psychologist, sociologist, scientist, teacher, librarian, clergyman,

       prosecutor, judge, or other proper person.



       {¶22} The burden of going forward with the evidence of an affirmative defense,

and the burden of proof, by a preponderance of the evidence, for an affirmative defense,

is on the accused. R.C. 2901.05(A). Upon consideration of the evidence, we cannot say

the jury clearly lost its way and created a manifest miscarriage of justice in rejecting

Appellant’s claim the materials were shown to M.C. for a bona fide educational purpose.

Rather, viewing the evidence offered at trial in a light most favorable to the prosecution,

a reasonable jury could have found the essential elements of the charges proven beyond

a reasonable doubt.

       {¶23} The evidence presented at trial, as set forth above, demonstrates M.C. told

her mother Appellant “bit her in the butt;” put his finger in her mouth; exposed himself by

walking around naked; touched her chest area and her vaginal area, over and under her

clothes; and made her lick his nipples while he rubbed his penis. M.C. herself testified to

the conduct at trial.

       {¶24} Appellant was interviewed by the Stark County Sheriff’s Department and did

not deny the conduct. Rather, he explained “sex would be a part of her life” and he felt it

was his duty to educate his children.

       {¶25} Megan Dahlheimer and Alissa Edgein testified at trial as to the forensic

interview conducted with M.C., and her statements relative to the sexual conduct.
Stark County, Case No. 2016CA00012                                                          8


       {¶26} It is well established the trier of fact is in the best position to determine the

credibility of witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002-Ohio-3405, 2002

WL 1454025, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

       {¶27} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

2008 WL 5245576, ¶ 31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-

3395, 813 N.E.2d 964 (2nd Dist.2004), ¶ 81. In other words, “[w]hen there exist two fairly

reasonable views of the evidence or two conflicting versions of events, neither of which

is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th

Dist. Mahoning No. 99 CA 149, 2002 WL 407847, at ¶ 13, citing State v. Gore, 131 Ohio

App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

       {¶28} Upon review of the evidence presented at trial, we cannot say the jury

clearly lost its way in finding Appellant guilty of gross sexual imposition as to M.C., and

we find the conviction is supported by the sufficiency of the evidence.

       {¶29} As to Appellant’s conviction for disseminating material harmful to a juvenile,

Appellant himself admitted to showing the material to his children as part of sexual

education and/or to educate them on ways to make money in the pornographic industry.

M.C. testified as to her observations of the content of the material. Based thereon, we do

not find the jury lost its way in convicting Appellant of the charge, and Appellant’s

conviction for dissemination is supported by the sufficiency of the evidence.
Stark County, Case No. 2016CA00012                                             9


      {¶30} Appellant’s convictions in the Stark County Court of Common Pleas are

affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur
