[Cite as State v. Wareham, 2013-Ohio-3191.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 3-12-11

        v.

LOVELL C. WAREHAM,                                       OPINION

        DEFENDANT-APPELLANT.




               Appeal from Crawford County Common Pleas Court
                          Trial Court No. 12-CR-0048

                                     Judgment Affirmed

                             Date of Decision: July 22, 2013




APPEARANCES:

        Shane M. Leuthold for Appellant

        Ryan M. Hoovler for Appellee
Case No. 3-12-11


ROGERS, J.

      {¶1} Defendant-Appellant, Lovell Wareham, appeals the judgment of the

Court of Common Pleas of Crawford County convicting him of unlawful sexual

conduct with a minor and sentencing him to a 14-month prison term. On appeal,

Wareham asserts that his conviction was against the manifest weight of the

evidence. For the reasons that follow, we affirm the trial court’s judgment.

      {¶2} On March 12, 2012, the Crawford County Grand Jury indicted

Wareham with one count of unlawful sexual contact with a minor in violation of

R.C. 2907.04(A), a felony of the fourth degree. The indictment arose from an

alleged sexual relationship between Wareham, who was 20 years old, and C.T., a

13-year old female. The relationship purportedly lasted between January 3, 2012

and February 21, 2012.

      {¶3} This matter went to trial on August 2, 2012. At trial, Officer Thomas

Walker of the Bucyrus Police Department was the first to testify. He indicated

that on February 21, 2012, he was dispatched to the residence at 1118 Willard

Street, where there were reports of an altercation. While Officer Walker was en

route to the house, the dispatcher informed him that Wareham had been involved

and was walking southbound away from the residence. As Officer Walker got

closer to the residence, he spotted Wareham walking as the dispatcher had said

and stopped his cruiser. According to Officer Walker, Wareham then voluntarily


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agreed to get into the cruiser because it was raining and he needed a ride. After

getting into the cruiser, Officer Walker drove Wareham back to the residence.

      {¶4} Officer Walker testified that he talked to C.T.’s mother, Brandy Shaw,

when he arrived on the scene:

      Ms. Shaw told me that, uhm, she had found that Mr. Wareham was
      20-years old and her daughter admitted to having sex with Mr.
      Wareham. Uhm, she initially stated that the fight – or she was
      misled, that he had told her that his name was Caleb and he was 16-
      years of age.
      And that he had come to the house wanting to make contact with her
      and she refused to let allow [sic] him in the house. And at some
      point, uhm, [C.T.]’s brother showed up and a physical altercation
      ensued between the two of them. Trial Tr., p. 65.

Upon learning this, Officer Walker commenced his investigation by confronting

Wareham with Shaw’s allegations.         Officer Walker described this initial

confrontation as follows:

      Q:    Okay. And did [Wareham] say anything to you at that time?

      A: At the time when he was getting out of the car, he said I
      shouldn’t – pardon my expression for using profanity – he said, “I
      should have not fucked with that girl. I should have left her alone.”
      Trial Tr., p. 65-66.

      {¶5} After this initial confrontation, Wareham was taken to an interrogation

room, where Officer Walker performed a pat-down search of him. Officer Walker

testified that he found five condoms on Wareham’s person. Once the search was

over, Officer Walker stated that “Mr. Wareham had made the comment that, ‘He



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always practiced safer sex with [C.T.]. He always used a condom.’”1 Trial Tr., p.

66. Subsequently, Officer Walker testified that he Mirandized Wareham, who said

that he did not want to make any further statements without an attorney present.

        {¶6} On cross-examination, Officer Walker discussed C.T.’s statements to

Wareham’s family regarding her age:

        Q: All right. Now, did it not come out in the investigation that
        [C.T.] was telling [Wareham]’s family she was 17?

        A: She never said that. During my videotape interview with her
        she said that she emphatically told him that she was 13-years old and
        that he was fully aware of it. Trial Tr., p. 70.

Officer Walker acknowledged that there was no recording of Wareham’s

statements described above. He also admitted that he did not attempt to find

physical evidence of a sexual relationship between Wareham and C.T.

        {¶7} Officer Walker indicated that during his interview of C.T., she

recalled losing her virginity to Wareham on January 3, 2012. But, Officer Walker

also indicated that C.T. could not recall the exact location of this first sexual

encounter. The following exchange occurred regarding this apparent dichotomy:

        Q:    Does that seem odd to you?

        A:    No, sir.

        Q: Would a woman know exactly the day and time of this but not
        know where?


1
 On July 17, 2012, Wareham moved to suppress his pre-Miranda statements. The trial court denied the
motion on July 31, 2012 and he has not challenged the validity of this decision on appeal.

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       A: To be quite honest with you, I didn’t ask her where she lost her
       virginity. * * * She indicated that they had sex * * * between * * *
       January 3rd and February 21st. And, uhm, she said it was between
       the two houses [C.T.’s house and Wareham’s house] and
       miscellaneous other places. Trial Tr., p. 77-78.

       {¶8} C.T. then testified.   She said that she was 13 years old between

January 3, 2012 and February 21, 2012 and that during that time frame, she had

sex with Wareham. C.T. also indicated that both she and Shaw told Wareham

how old she was. C.T. further testified that all of her sexual encounters with

Wareham occurred in either his room at his house or in her room at her house.

She said that when Wareham introduced her to his family, he said that she was 17

years old, and that when she introduced Wareham to Shaw, they said that he was

16 years old.

       {¶9} On cross-examination, C.T. denied that she told police that she could

not recall the location where she and Wareham first had sexual relations. She also

acknowledged that the police could have recovered used condoms had they sought

them. Finally, C.T. admitted that she looks older than she is.

       {¶10} Shaw was the next witness to take the stand. She testified that she

“specifically said [to Wareham that] my daughter is 13-years old, don’t have any

ideas.” Trial Tr., p. 103. When Wareham was introduced to her, C.T. said his

name was “Caleb” and both C.T. and Wareham said he was 16 years old. Shaw

testified that in early February she learned Wareham was actually 20 years old,


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which led her to again remind him that C.T. was 13 years old and that they could

not be in a romantic relationship. Shaw further testified that during the altercation

on February 21, 2012, Wareham said to her “[y]ou better be glad it’s me with my

dick inside [C.T.] than [S.W., another boy alleged to have romantic ties to C.T.].”

Trial Tr., p. 107. On cross-examination, Shaw said that while she believed C.T.’s

allegations, she never noticed C.T. and Wareham having sex in the house.

       {¶11} After Shaw’s testimony, the State rested. Wareham’s case-in-chief

relied on the testimony of his half-sister, Rikki Eggleston (“Rikki”) and his ex-

stepfather, Fred Eggleston (“Fred”), as well as his own. At the time of the alleged

sexual relations, Wareham lived in Fred’s house with Rikki. Rikki testified as

follows regarding the likelihood that Wareham had sex in the house with C.T.:

       Q: Now, [C.T.] is saying that her [sic] and [Wareham] were going
       at it at your house. I think you know what I mean.

       A: Yes. And no, they was [sic] not because they had to keep the
       door open. When [C.T.] was at my house, the door to [Wareham]’s
       room was open 24/7. I was – I used to go in there and just bug
       [Wareham] just to make him mad. He’s my brother.

       Q: Well, in other words, the question, the real question is, are you
       aware of any time when they could’ve done this when you and Fred
       were not around?

       A: No, because [Wareham] did not have a house key. And when
       [Wareham] was at the house with [C.T.] or any other woman, the
       house – the doors were always open. My dad always told him he
       was not having sex in the house. Trial Tr., p. 128.



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       {¶12} Fred likewise testified to the open-door policy in his house. Based

on this policy, Fred said that it was “impossib[le]” for Wareham and C.T. to have

sex in his house.” Trial Tr., p. 133. He said that from January 2012 to February

2012, Wareham did not have a house key because “sometimes [Wareham] isn’t

the trusting [sic] person.” Trial Tr., p. 136. On cross-examination, however, Fred

indicated that at some point, he did give Wareham a house key and that that could

have occurred in December 2011, January 2012, or February 2012.

       {¶13} During his testimony, Wareham denied having sex with C.T. and he

said that there was never a time where he could because whenever the two were

together, other people were in their houses. Wareham also denied confessing to

Officer Walker and he testified that he had condoms on his person because he had

plans to find a woman at a local bar later that evening.

       {¶14} Wareham stated that he believed C.T. was 17 years old. According

to Wareham, he did not learn of C.T.’s actual age until February 21, 2012, when

another friend told him about her age. After learning this, he said that he decided

to end their relationship.

       {¶15} On cross-examination, the following exchange occurred regarding

the February 21, 2012 incident:

       Q: So the reason you went over [to C.T.’s house] was to tell [C.T.]
       that you lied to me, you’re only 13 yet that never got out of your
       mouth?


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       A: No, it never got out of my mouth. I never got a chance, like I
       said. Trial Tr., p. 151.

Wareham also admitted that he has a previous conviction for theft. Further, he

admitted to misleading Shaw about his age because he was worried that she would

not let him see C.T.

       {¶16} The jury returned a guilty verdict on August 2, 2012. The trial court

subsequently sentenced Wareham to 14 months in prison on October 17, 2012.

       {¶17} Wareham filed this timely appeal, presenting the following

assignment of error for our review.

                                Assignment of Error

       THE JURY’S FINDING OF GUILTY WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶18} In his sole assignment of error, Wareham argues that his conviction

was against the manifest weight of the evidence. After our review of the record,

we disagree.

                       Manifest Weight of the Evidence Standard

       {¶19} When an appellate court analyzes a conviction under the manifest

weight standard, it “sits as the thirteenth juror.” State v. Thompkins, 78 Ohio St.3d

380, 387 (1997), superseded by constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 83 (1997). Accordingly, it must review the

entire record, weigh all of the evidence and its reasonable inferences, consider the


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credibility of the witnesses, and determine whether the fact finder “clearly lost its

way” in resolving evidentiary conflicts and “created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1989). When applying the manifest

weight standard, a reviewing court should only reverse a trial court’s judgment “in

exceptional case[s]” when the evidence “weighs heavily against the conviction.”

Id. at paragraph three of the syllabus.

                                  R.C. 2907.04(A)

       {¶20} Wareham was charged with violating R.C. 2907.04(A). This statute

provides as follows:

       No person who is eighteen years of age or older shall engage in
       sexual conduct with another, who is not the spouse of the offender,
       when the offender knows that the other person is thirteen years of
       age or older but less than sixteen years of age, or the offender is
       reckless in that regard. R.C. 2907.04(A).

For the purposes of this statute, sexual conduct is relevantly defined as “vaginal

intercourse between a male and a female.” R.C. 2907.01(A). R.C. 2907.04(A)

only provides for criminal liability when the offender knows that the victim was

between 13 and 16 years of age or is reckless as to the victim’s age. Under R.C.

2901.22(B), a person is deemed to have “knowledge of circumstances when he is

aware that such circumstances probably exist.” As to recklessness, the Revised

Code provides that “[a] person is reckless with respect to circumstances, when,


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with heedless indifference to the consequences, he perversely disregards a known

risk that such circumstances are likely to exist.” R.C. 2901.22(C).

                        Pertinent Evidence Offered at Trial

       {¶21} C.T. testified that she and Wareham had vaginal intercourse between

January 3, 2012 and February 21, 2012. Further, she said that at that time she was

13 years old and Wareham was 20 years old. C.T.’s allegations were corroborated

in both Officer Walker’s and Shaw’s testimonies. Officer Walker testified that

C.T. made the same allegations in her police statement and that Wareham admitted

to using condoms when he had sexual relations with C.T. Meanwhile, Shaw

testified that during the incident on February 21, 2012, Wareham told her, “‘You

better be glad it’s me with my dick inside [C.T.] than [S.W.].’” Trial Tr., p. 107.

       {¶22} Additionally, there was significant evidence offered to show that

Wareham knew C.T. was 13 years old at the time that they were engaging in

sexual relations. C.T. herself testified that Wareham knew about her age, while

Shaw testified that she affirmatively told him about C.T.’s age on two occasions.

Further, Wareham admitted that he lied to Shaw about his age and name so that

she would not stop him from dating C.T.

                              Wareham’s Arguments

       {¶23} Wareham’s assignment of error essentially presents four arguments:

(1) Officer Walker’s testimony was incredible; (2) C.T.’s testimony was


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incredible; (3) Officer Walker’s and C.T.’s testimonies contradict his own; and (4)

the State offered no physical evidence that Wareham had sexual intercourse with

C.T.   We do not find that any of these arguments support a finding that

Wareham’s conviction was against the manifest weight of the evidence.

       {¶24} In regard to Wareham’s arguments about the credibility of Officer

Walker and C.T., we note that when assessing the manifest weight of the evidence,

“[i]t is well established that the * * * credibility of the witnesses [is] primarily a

matter for the trier of fact.” State v. Clark, 101 Ohio App.3d 389, 409 (8th Dist.

1995). Further, the mere existence of inconsistencies in the testimony of different

witnesses does not mandate that an appellate court reverse a conviction on

manifest weight grounds. See State v. Humberto, 196 Ohio App.3d 230, 2011-

Ohio-3080, ¶ 11 (10th Dist.) (“The jury may take note of any inconsistencies and

resolve them accordingly, believing all, part, or none of a witness’s testimony.”);

State v. Westerfield, 10th Dist. No. 07AP-1072, 2008-Ohio-4458, ¶ 38 (rejecting

manifest weight argument even though inconsistencies existed among the

witnesses’ testimonies). Although there are some inconsistencies in the testimony

offered by Officer Walker and C.T., they are not so overwhelming as to preclude

rational jurors from finding that their testimonies included credible information.

       {¶25} Additionally, as to Wareham’s argument about the conflict between

his testimony and that of other witnesses, we note that jurors are entitled to believe


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the testimony offered by the State’s witnesses. See State v. Bates, 12th Dist. No.

CA2009-06-174, 2010-Ohio-1723, ¶ 11 (“It is well-established that when

conflicting evidence is presented at trial, a conviction is not against the manifest

weight of the evidence simply because the jury believed the prosecution

testimony.”). As such, the jurors were entitled to believe C.T.’s version of events

over Wareham’s. The jury was also at liberty to consider Fred’s testimony that

Wareham was not a trustworthy person and Wareham’s admission that he was

previously convicted for a theft offense.

       {¶26} As to Wareham’s arguments regarding the lack of physical evidence,

we note that there is no requirement for such evidence to prove an unlawful sexual

contact with a minor charge. See State v. Sauto, 9th Dist. No. 26404, 2013-Ohio-

1320, ¶ 45-47 (rejecting manifest weight of the evidence challenge of unlawful

sexual contact with a minor conviction that was partially predicated on lack of

physical evidence); State v. Jones, 12th Dist. No. CA2012-03-049, 2013-Ohio-

150, ¶ 16-22 (same); State v. Carter, 8th Dist. No. 94967, 2011-Ohio-2658, ¶ 19

(same); see also State v. J.E.C., Jr., 10th Dist. No. 12AP-584, 2013-Ohio-1909, ¶

40 (rejecting manifest weight challenge of sex offense conviction because “[t]here

is no requirement that a defendant’s conviction for a sex offense be based on

physical evidence”).    Since C.T. testified that she and Wareham had vaginal

intercourse and there is corroborating evidence in the record, “we fail to find the


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lack of physical evidence is a significant factor in weighing the evidence.” State v.

West, 10th Dist. No. 06AP-11, 2006-Ohio-6259, ¶ 18. Consequently, we find that

the failure of the State to offer physical evidence does not render Wareham’s

conviction against the manifest weight of the evidence.

       {¶27} In sum, the State offered significant evidence to show each element

required for a conviction under R.C. 2907.04(A). Further, Wareham’s arguments

fail to establish that his conviction was against the manifest weight of the

evidence. As such, we find no error in Wareham’s conviction.

       {¶28} Accordingly, we overrule Wareham’s sole assignment of error.

       {¶29} Having found no error prejudicial to Wareham in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                                Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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