[Cite as State v. Watson, 2012-Ohio-1624.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.    25915

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MARVIN G. WATSON                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 10 09 2609

                                 DECISION AND JOURNAL ENTRY

Dated: April 11, 2012



    BELFANCE, Judge.

        {¶1}     Marvin Watson appeals his convictions for unlawful sexual conduct with a minor

and sexual battery. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}     K.T. is the half-sister of one of Mr. Watson’s children.      Throughout her

childhood, she and her half-brother would spend every other weekend at Mr. Watson’s home.

Mr. Watson began making sexual remarks towards her and eventually began a sexual

relationship with her when she was a teenager.

        {¶3}     When K.T. turned 18, she moved out of her mother’s home and began living with

her cousin.     She told her cousin about her relationship with Mr. Watson, and her cousin

encouraged K.T. to make a report to the police. K.T. spoke with Detective Susan Hackbart, who

asked K.T. to make a one-party consent call to Mr. Watson and to record the conversation, which

she did.
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       {¶4}    Mr. Watson was indicted for unlawful sexual conduct with a minor and sexual

battery, and a jury found him guilty of both counts. The trial court merged the unlawful sexual

conduct conviction with the sexual battery and sentenced Mr. Watson to five years in prison.

Mr. Watson has appealed, raising two assignments of error for our review.

                                               II.

                                  ASSIGNMENT OF ERROR I

       WATSON’S CONVICTIONS FOR SEXUAL BATTERY AND UNLAWFUL
       CONDUCT WITH A MINOR WERE BASED UPON INSUFFICIENT
       EVIDENCE AS A MATTER OF LAW, AS NO EVIDENCE WAS
       PRESENTED TO ESTABLISH THE NECESSARY ELEMENT OF
       PENETRATION TO SUSTAIN SUCH CONVICTIONS.

       {¶5}    In Mr. Watson’s first assignment of error, he argues that his convictions were not

supported by sufficient evidence. We disagree.

       {¶6}    In determining whether the evidence presented was sufficient to sustain a

conviction, this Court reviews the evidence in the light most favorable to the prosecution. State

v. Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:

       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.

Id. at paragraph two of the syllabus.

       {¶7}    Mr. Watson was convicted of violating R.C. 2907.04(A), which provides that

“[n]o 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 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.” He
                                                 3


was also convicted of violating R.C. 2907.03(A)(5), which provides that “[n]o person shall

engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender

is the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or person

in loco parentis of the other person.”

       “Sexual conduct” means vaginal intercourse between a male and female; anal
       intercourse, fellatio, and cunnilingus between persons regardless of sex; and,
       without privilege to do so, the insertion, however slight, of any part of the body or
       any instrument, apparatus, or other object into the vaginal or anal opening of
       another. Penetration, however slight, is sufficient to complete vaginal or anal
       intercourse.

R.C. 2907.01(A).

       {¶8}    We initially note that Mr. Watson does not suggest that there was insufficient

evidence to find that he was a person in loco parentis or that, if sexual conduct occurred, K.T.

was between the ages of 13 and 16. Instead, he argues that “there is nothing in the testimony of

[K.T.] that establishes any actual penetration in any of the alleged acts of sexual misconduct * *

*.”

       {¶9}    K.T. testified that Mr. Watson was like a “father figure[]” to her. She had known

Mr. Watson since she was approximately five years old due to his relationship with her mother

with whom he had a son. She would often accompany her half-brother over to Mr. Watson’s

house every other weekend, and Mr. Watson would invite her to family gatherings and take her

to church. According to K.T., Mr. Watson bought her school supplies, helped her with her

homework, and paid her library fines. Mr. Watson even paid for her cell phone.

       {¶10} K.T. testified that, when she turned 13 or 14, Mr. Watson asked her to become

sexually involved with him, making remarks like “you are not going to be a virgin forever * * *.”

One night, Mr. Watson picked K.T. up from a friend’s house and drove her to Hardesty Park. He

parked the car and they discussed having sex with each other. K.T. testified that she was initially
                                                4


willing but that, “[w]hen it started to happen, [she] was kind of getting scared * * *.” Despite

her repeated statements that they should not have sex, Mr. Watson told her to relax and try not to

think about it. They had vaginal intercourse in the back of Mr. Watson’s van, and then he

dropped her off at her house.

       {¶11} According to K.T., this was not the only time they had sex. They also had sex at

the home of Tamica Watson, who was Mr. Watson’s wife, when K.T. was 14 or 15. She also

testified that they engaged in oral sex with her performing fellatio and Mr. Watson performing

cunnilingus. K.T. testified that they continued to have sex until she was 17.

       {¶12} K.T. eventually moved in with her cousin, who encouraged her to speak with the

police about her relationship with Mr. Watson.        She spoke with Detective Hackbart, who

requested that K.T. call Mr. Watson and record the conversation, which she did. During the call,

Mr. Watson admitted to having sex with K.T., and said that the first time was at Ms. Watson’s

house. K.T. replied that that was wrong, and that they had first had sex over at Hardesty Park

when she “was going to Litchfield.” Mr. Watson did not believe that to be the case, but, when

K.T. filled in the details about him picking her up from a friend’s house, he responded “Ok now I

gotcha. I gotcha ok alright.” K.T. suggested that they had continued to have sex from that point

when she was 13 until she was 17 and that she did not understand why Mr. Watson was upset

because she might have a new boyfriend. Mr. Watson responded, “Well I thought me and you

had an understanding[.]”

       {¶13} As we noted above, Mr. Watson confines his sufficiency argument to whether the

State presented sufficient evidence that sexual conduct occurred. He argues that, because K.T.

“characterized the activity [] without any details as ‘sexual intercourse[,’] ‘sex[,’] or ‘oral

sex[,]’” there was no evidence that any penetration had occurred and, therefore, there was no
                                               5


evidence that sexual conduct had occurred. However, K.T.’s testimony, when viewed in the

light most favorable to the State, leads to the logical inference that penetration occurred.

Furthermore, Mr. Watson’s argument ignores the fact that cunnilingus is included in the

definition of sexual conduct, see R.C. 2907.01(A), and K.T. specifically testified that Mr.

Watson had performed oral sex on her.

       {¶14} During the recorded conversation, Mr. Watson admits to engaging in sexual

conduct with K.T. and never disputed K.T.’s statement during the conversation that their

relationship lasted from when she was 13 until she was 17. K.T. testified that the relationship

had begun when she was 13 and that Mr. Watson was a “father figure[]” with whom she had

spent many weekends growing up and who took her to church, helped with her homework, and

provided supplies and a cell phone for her. Viewing the evidence in the light most favorable to

the State, there was sufficient evidence for the jury to find that Mr. Watson had engaged in

unlawful sexual conduct with a minor and had committed sexual battery.

       {¶15} His first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING
       PREJUDICIAL AND INFLAMMATORY EVIDENCE OF OTHER ALLEGED
       ACTS OF SEXUAL MISCONDUCT OF DEFENDANT.

       {¶16} In Mr. Watson’s second assignment of error, he argues that the trial court

committed plain error when it allowed K.T.’s cousins to testify about their sexual relationships

with him.

       {¶17} We initially note that, despite the contrary representations of Mr. Watson and the

State, Mr. Watson’s trial counsel did preserve this error for appeal, objecting when the State’s

direct examination of the cousins reached their testimony about their alleged relationships with
                                                  6


Mr. Watson.     Mr. Watson’s counsel also requested that the trial court “note a continuing

objection[,]” which the trial court did in both instances. Accordingly, Mr. Watson has not

forfeited all but plain error on appeal and, therefore, we will review the assigned error under the

applicable standard of review. See State v. Horne, 9th Dist. No. 25238, 2011-Ohio-1901, ¶ 7.

       {¶18} Mr. Watson argues that the testimony of K.T.’s cousins was inadmissible under

Evid.R. 404(B), which provides that

       [e]vidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, opportunity,
       intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This Court has reviewed the admissibility of Evid.R. 404(B) evidence under both a de novo and

an abuse of discretion standard. Compare Horne at ¶ 8 (abuse of discretion) with State v.

Morris, 9th Dist. 09CA0022-M, 2010-Ohio-4282, ¶ 13 (de novo review). The Supreme Court

has accepted review of this issue. See State v. Morris, 128 Ohio St.3d 1448, 2011-Ohio-1618.

       {¶19} However, we do not need to resolve the standard review at this time because,

under either standard, the admission of the testimony of K.T.’s cousins was erroneous. The State

essentially concedes this point in its brief, acknowledging that their testimony “demonstrates that

[Mr.] Watson engages in sexual relations with girls whom he knows through family and who are

of a certain age range[]” while putting forth no argument that the testimony falls within one of

the exceptions of Evid.R. 404(B). Instead, the State argues that the error was harmless. See

Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.”). In this case, we agree.

       {¶20} Even where the admission of evidence is erroneous, the error is harmless where

there is overwhelming evidence of the defendant’s guilt. State v. Williams, 6 Ohio St.3d 281

(1983), paragraph six of the syllabus. Mr. Watson admitted during the recorded conversation
                                                7


with K.T. that they had had sex. He also agreed that the first time they had had sex was in

Hardesty Park and that she was going to Litchfield, which is a middle school, at the time. Nor

did he dispute her statement that she was 13 when their sexual relationship began.

       {¶21} Mr. Watson also told her in the phone conversation that being with her was his

“dream” and that he “was building [his] whole life around [his] dream * * * and nothing else

mattered.” He said to K.T., “You are all I ever wanted. I would have done anything you told me

to do. * * * I thought if I could make you happy, we’d stay together. That’s all I wanted.” He

added, “The day you said you’d have my baby, I didn’t sleep that whole night.”

       {¶22} In addition to Mr. Watson’s statements in the phone conversation, K.T. testified at

length about Mr. Watson’s relationship with her, specific acts of sexual conduct, the duration of

their sexual relationship, and how old she was when the sexual conduct occurred. Given Mr.

Watson’s admissions in the phone conversation and K.T.’s testimony, there was overwhelming

evidence of Mr. Watson’s guilt. Accordingly, the admission of the other acts testimony, in this

case, was harmless error.

       {¶23} Mr. Watson’s second assignment of error is overruled.

                                             III.

       {¶24} Mr. Watson’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT




DICKINSON, J.
CONCURS.

CARR, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
