[Cite as State v. Libbey-Tipton, 2012-Ohio-2769.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97382




                                      STATE OF OHIO
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                               ADAM LIBBEY-TIPTON
                                                          DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-549697

        BEFORE: Keough, J., Blackmon, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: June 21, 2012
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., Ohio 44118


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Melissa Riley
       Anna M. Faraglia
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Adam Libbey-Tipton, appeals his conviction for gross

sexual imposition. For the reasons that follow, we affirm.

       {¶2} In April 2011, defendant was charged with one count each of rape, in

violation of R.C. 2907.02(A)(1)(b); gross sexual imposition, in violation of R.C.

2907.05(A)(4); and kidnapping, in violation of R.C. 2905.01(A)(4). Following a jury

trial, the defendant was found not guilty of rape and kidnapping, but guilty of gross

sexual imposition; he was sentenced to one year of community control sanctions with a

suspended five year prison term. This appeal followed.

       {¶3} In his first and second assignments of error, the defendant contends that there

was insufficient evidence to support his conviction and his conviction was against the

manifest weight of the evidence.       We consider these assignments of error together

because they are related.

       {¶4} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial.         State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶5} A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion.        State v. Ponce, 8th Dist. No. 91329,

2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). The manifest weight of the evidence standard of review requires us to 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.” State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986); see also Thompkins at 387.

       {¶6} The use of the word “manifest” means that the trier of fact’s decision must be

plainly or obviously contrary to all of the evidence. State v. Griffie, 8th Dist. No. 89009,

2007-Ohio-5325, ¶ 6. This is a difficult burden for an appellant to overcome because the

resolution of factual issues resides with the trier of fact. Id., citing State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact

has the authority to “believe or disbelieve any witness or accept part of what a witness

says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶7} Gross sexual imposition, as it relates to this case, means “sexual contact with

another, not the spouse of 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.” R.C.

2907.05(A)(4).

       {¶8} Sexual contact is defined in R.C. 2907.01(B) to mean “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.”

       {¶9} The Ohio Supreme Court resolved that the culpable mental state for gross

sexual imposition is “purposefully.”          State v. Dunlap, 129 Ohio St.3d 461,

2011-Ohio-4111, 953 N.E.2d 816, ¶ 28 (“[T]he element of sexual contact in an R.C.

2907.05(A)(4) violation requires a mens rea of purpose.”).

       {¶10} Purpose is defined in R.C. 2901.22(A) as actions with “specific intention to

cause a certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.” One’s purpose may be inferred

from actions, and the “the trier of fact ‘may infer what the defendant’s motivation was in

making the physical contact with the victim’ by considering ‘the type, nature and

circumstances of the contact, along with the personality of the defendant.’” State v.

Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738, ¶ 30, quoting State v. Cobb, 81

Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991).

       {¶11} Defendant argues on appeal that the doubtful credibility of the witnesses and

their conflicting testimony render his conviction for gross sexual imposition invalid.
Specifically, he contends that because L.L. testified that she was untruthful when she

spoke with the caseworker, the evidence is legally insufficient to support his conviction.

However, issues of credibility and believability are left for the trier of fact and are

analyzed under a manifest weight argument, not a sufficiency challenge. The victim

testified that in July 2005 when she was almost four years old the defendant pulled her

pants and panties out and touched her genitalia. This testimony alone is sufficient to

satisfy a sufficiency of the evidence challenge.

       {¶12} Moreover, we find that the defendant’s conviction for gross sexual

imposition was not against the manifest weight of the evidence.           The jury heard

testimony from both the victim and her sister regarding the defendant’s actions.

       {¶13} The victim testified that while visiting her grandparents in Ohio in July

2005, she and her sister were in the defendant’s bedroom jumping on the bed. The

defendant and the victim are cousins. The defendant was playing a video game, but then

stopped playing, approached her, and “pulled down [her] pants and touched [her] in the

wrong spot.” When questioned further, she stated that he put his finger inside her pants,

under her panties, and touched her in her “private part,” which was determined to be her

vagina. She denied that he rubbed her vagina and admitted that she was able to walk

away from him. She further testified that she told him to “stop” and then ran out of the

room into the kitchen and her sister followed her. She testified that she did not tell

anyone what happened.
       {¶14} The victim’s sister, L.L., testified that she was in the room when the

defendant touched her sister. According to L.L., her sister was jumping on the bed when

she saw the defendant with his hand in her sister’s pants. L.L. testified that her sister ran

out of the room, and she followed her. L.L. admitted she did not tell anyone what

happened. During L.L.’s testimony, she admitted that some of the statements she made

to the social worker were not true. When questioned about why she lied to the counselor,

L.L. explained: “I lied to Miss Joy because I did not believe it was that serious when I

was [age] 9, but now that I see it today[,] it’s really serious.”

       {¶15} Around Thanksgiving 2006, the victim and L.L. were talking about their

upcoming visit to Ohio to see their paternal grandparents. Their maternal grandmother

overheard the girls talking and heard the victim say she did not want to go because of

what the defendant did to her. The grandmother questioned the girls about what she

overheard and they told her what had happened.                She testified that the victim

demonstrated to her what the defendant did.

       {¶16} The crux of the defendant’s arguments on appeal are that the stories of these

two children have changed over the years. While some minor details of who was present

at the house in 2005 may have changed, and L.L.’s statements to the caseworker in 2008

admittedly contained some lies, one detail that did not change was that the defendant

fondled the victim, who was almost four years old at the time. This fact remained

constant from when the maternal grandmother overheard the girls talking in November

2006, to when the victim was interviewed by the police in 2006, to when L.L. was
interviewed by the crisis counselor in 2008, and to when both girls testified at trial in

2011. The trier of fact is in the best position to weigh the credibility of witnesses, and

the record demonstrates that the jury considered the credibility of the witnesses and all the

evidence in rendering its verdict.

       {¶17} Accordingly, the defendant’s assignments of error are overruled; his

conviction for gross sexual imposition is supported by sufficient evidence and is not

against the manifest weight of the evidence.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR
