[Cite as State v. Smith, 2018-Ohio-1495.]


               IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                       :
                                                     :
        Plaintiff - Appellee                         : NUNC PRO TUNC
                                                     :
                                                     : JUDGMENT ENTRY
        -vs-                                         :
                                                     :
                                                     :
RONALD R. SMITH,                                     : Case No. 2017CAA080060
                                                     :
        Defendant - Appellant                        :


        The Opinion previously issued in this case contained a typographical error. On

page 2, the writing author was cited incorrectly. It should read “Baldwin, J.”




                                             HON. CRAIG R. BALDWIN



                                             HON. JOHN W. WISE



                                             HON. WILLIAM B. HOFFMAN
[Cite as State v. Smith, 2018-Ohio-1495.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 17CAA080060
                                                :
 RONALD R. SMITH                                :
                                                :   NUNC PRO TUNC
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court
                                                    of Common Pleas, Case No. 16CR-I-12-
                                                    0619



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             April 17, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 CAROL HAMILTON O’BRIEN                             DAVID BIRCH
 DELAWARE CO. PROSECUTOR                            286 South Liberty St.
 KIMBERLY E. BURROUGHS                              Powell, OH 43065
 140 N. Sandusky St.
 Delaware, OH 43015
Delaware County, Case No. 17CAA080060                                                      3

Baldwin, J.

          {¶1} Appellant Ronald R. Smith appeals from the July 18, 2017 Judgment Entry

on Sentence of the Delaware County Court of Common Pleas. Appellee is the state of

Ohio.

                          FACTS AND PROCEDURAL HISTORY

          {¶2} Jane Doe is the step-granddaughter of appellant and Cheryl Smith. Doe’s

Mother is the daughter of Cheryl and stepdaughter of appellant. Cheryl has another

daughter, Aunt, whose children were close with Jane Doe and her siblings. At the time

of these events, appellant and Cheryl lived in a trailer in the city of Delaware. Mother and

Aunt were frequent visitors with their children, staying in the trailer sometimes for days at

a time.

          {¶3} Appellant worked as an over-the-road semi driver and was often away

during the week. The female grandchildren would sleep with Cheryl in her bed while

appellant was away, and the male grandchildren would sleep on the floor in the living

room.      Mother and/or Aunt would sleep in the second bedroom, sometimes with

boyfriends.

          {¶4} The family claimed to have unusual rules: none of the grandchildren were

permitted to be alone with Paw-Paw (appellant), and none of the children were permitted

to sit on his lap. These rules purportedly arose because a former common-law spouse

of Cheryl sexually abused Mother and Aunt and was sentenced to three life terms in

prison. Appellant therefore “didn’t want to be accused of anything he didn’t do.”

                                            Disclosure
Delaware County, Case No. 17CAA080060                                                       4


       {¶5} Jane Doe was 15 years old at the time of trial. She testified that on more

than one occasion when she was younger, she watched T.V. in the living room of the

trailer with appellant seated on the couch beside her. Doe testified appellant would make

her touch him by placing her hand on his penis and “moving it around.” Doe would get

up and leave the room. Doe testified this happened frequently and she told Mother about

it but nothing changed. When the abuse occurred, Cheryl was usually in the trailer, but

doing other things such as cooking or laundry.

       {¶6} One night in July 2012, Doe spent the night in the trailer. Doe testified she

slept in the master bedroom, in the bed with Cheryl. Mother and a boyfriend were in the

second bedroom, and Doe’s male siblings were in the living room. Doe awoke in the

middle of the night to appellant in the bed next to her, touching her vagina. She testified

he had pulled her underwear down to her thighs and touched her under her nightgown.

Doe moved away from appellant and put her arm on Cheryl. Doe thought Cheryl was

sleeping because she was snoring and she didn’t wake up when Doe put her arm around

her.

       {¶7} Appellant got out of the bed and went onto the patio and started his Harley-

Davidson motorcycle. Doe testified he did this because he was angry. The sound of the

motorcycle startled everyone in the trailer awake. The various family members who

testified at trial, on behalf of both appellee and appellant, remembered this night distinctly

because it was the only night appellant woke everyone with the motorcycle.

       {¶8} Doe did not immediately tell anyone about the rape. In 2016, one of her

siblings died suddenly and Doe was depressed and cutting herself. She was hospitalized

for over a week due to a suicide attempt and entered intensive counseling upon her
Delaware County, Case No. 17CAA080060                                                     5


release. During one of the early counseling sessions, she revealed the sexual abuse to

her counselor. The counselor reported the abuse to Children’s Services, who in turn

reported the abuse to the Delaware Police Department.

                              Mother’s Testimony and Investigation

       {¶9} Mother testified for appellee at trial. She said she lived with appellant and

Cheryl off and on for several years. Mother remembered the night in 2012 when appellant

woke everyone with the motorcycle, but she didn’t know about the rape at that time. Very

shortly after that night, appellant, Cheryl, and the grandchildren moved to Texas. Mother

followed a few months after, and eventually the entire family returned to Ohio.

       {¶10} Mother testified that after appellant and Cheryl moved to Texas, one day

Doe told her “Paw-Paw made her sit on his lap” and “touched her leg.” Mother said she

was driving at the time and pulled over to the side of the road to tell Doe “we don’t sit on

Paw-Paw’s lap.” She was unaware of any other allegations until 2016, after Doe was

released from the hospital. The counselor called Mother in and told her the allegations.

Mother acknowledged she has a “distant” relationship with Cheryl because Cheryl did not

protect her from abuse when she was younger. She acknowledged Cheryl and appellant

gained custody of one of her children before the move to Texas.

       {¶11} A social worker from the Delaware County Department of Jobs and Family

Services testified about her forensic interview of Jane Doe, stating delayed disclosure of

abuse is not unusual.     A detective watched the forensic interview on closed-circuit

television and another detective spoke to appellant and Cheryl for follow-up. Detective

Sergeant Bolen testified appellant told him he came home from work that night in July

2012 and was angry to see Doe in the bed with Cheryl, so he started the motorcycle
Delaware County, Case No. 17CAA080060                                                     6


because he was angry. Cheryl told Bolen more details about who was in the trailer that

night, including Mother and her boyfriend, Doe, and Doe’s siblings.

                          Defense Case: A New Witness Comes Forward

       {¶12} A number of family members testified on appellant’s behalf at trial. His

stepsister testified the family rules were well-known: the children were not to be alone

with appellant and were not to sit on his lap. One of Doe’s brothers testified Doe was

never alone with appellant; he didn’t believe the allegations against appellant; and a third

child, a female Cousin, was in the bed with Cheryl and Doe that night. Doe’s brother

acknowledged he has animosity against Mother, who lost custody of him to Cheryl and

appellant at one point.

       {¶13} The female Cousin testified on behalf of appellant. She is one of Aunt’s

daughters and was once close with Doe. Cousin testified she was in the trailer on the

night of the motorcycle incident. She said appellant came home from work and she heard

him come into the room because the floor squeaked. She said appellant left the room

because there was no room for him in the bed and started the motorcycle as a joke.

Cousin acknowledged that her two written statements to law enforcement were written by

Cheryl.

       {¶14} Cheryl testified that she has a rocky relationship with Mother due to the

abuse Mother suffered as a child. Despite this tense relationship, Mother and her children

often stayed at the trailer, as did Aunt and her children. Cheryl testified she was never

alone in the trailer with only appellant and Doe, and appellant and Doe never watched

T.V. in the living room together, so it was not possible that appellant made Doe touch him.
Delaware County, Case No. 17CAA080060                                                     7


       {¶15} Cheryl remembered the night of the motorcycle incident. She said she woke

up when appellant came into the room because the floor squeaked, and she heard

appellant say, “I’ll be damned, I’m home from the road and I can’t even sleep in my own

bed.” Cheryl testified Doe and Cousin were in bed with her, and after the motorcycle

started, they got up so appellant could sleep for a while. On cross-examination, the

prosecutor asked Cheryl why she never told detectives Cousin was also present in the

bed that night, and Cheryl insisted she did tell the detective about Cousin. She testified

Bolen was lying when he said Cheryl and appellant never mentioned Cousin.

       {¶16} Appellant testified on his own behalf. He reiterated that children never sat

on his lap and denied that he ever made Doe touch him. He denied that he touched Doe

on the night of the motorcycle incident. He said he came home and found three people

in his bed, and was angry that he couldn’t sleep after work, so he started the motorcycle.

Appellant “thought” he told the detective that Cousin was present in the bed that night but

he wasn’t sure. Appellant agreed with Cheryl, however, that Bolen lied on the stand

because he did know Cousin was also a witness.

                           Indictment, Trial, Conviction, and Sentence

       {¶17} Appellant was charged by indictment with one count of rape of a child under

the age of 13 pursuant to R.C. 2907.02(A)(1)(b), a felony of the first degree [Count I], and

two counts of gross sexual imposition pursuant to R.C. 2907.05(A)(4), both felonies of

the third degree [Counts II and III]. Appellant entered pleas of not guilty and the matter

proceeded to trial by jury. Appellant was found not guilty upon Count I and guilty upon

Counts II and III. The trial court ordered a pre-sentence investigation and the matter

proceeded to sentencing on July 18, 2017. The trial court imposed a 3-year term of
Delaware County, Case No. 17CAA080060                                                     8


community control, including, e.g., 60 days of local incarceration.         Appellant was

determined to be a Tier II sex offender.

       {¶18} Appellant’s sentence was stayed pending appeal.

       {¶19} Appellant now appeals from the trial court’s July 18, 2017 judgment entry.

       {¶20} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

       {¶21} “THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                        ANALYSIS

       {¶22} In his sole assignment of error, appellant argues his convictions upon two

counts of gross sexual imposition are against the manifest weight of the evidence. We

disagree.

       {¶23} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶24} A manifest-weight challenge “concerns ‘the inclination of the greater

amount of credible evidence * * * to support one side of the issue rather than the other.’ ”
Delaware County, Case No. 17CAA080060                                                     9

(Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d

180, ¶ 75, citing Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Black's

Law Dictionary 1594 (6th Ed.1990). In addressing a manifest-weight argument, we are

able to consider the credibility of the witnesses. State v. Sanders, 5th Dist. Ashland No.

15-COA-33, 2016-Ohio-7204, 76 N.E.3d 468, ¶ 38, citing State v. McCrary, 10th Dist.

Franklin No. 10AP–881, 2011-Ohio-3161, 2011 WL 2536451, ¶ 13, internal citation

omitted.

       {¶25} Appellant was found guilty of two counts of gross sexual imposition

pursuant to R.C. 2907.05(A)(4), which states: “No person shall have sexual contact with

another, not the spouse of the offender[,] * * * when any of the following applies: [t]he

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.” Sexual contact is defined by R.C.

2907.01(B) as “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.”

       {¶26} Appellant argues his convictions are based solely upon the testimony of

Jane Doe, in contradiction of the other witnesses. Appellant points out that Mother

testified Doe only told her appellant made her sit on his lap and touched her leg; several

witnesses testified to the “strict rules” of the household about appellant not being alone

with the grandchildren; and no one noticed anything unusual about Doe’s relationship

with appellant and she didn’t seem afraid of him. The jury was free to accept or reject

any and all of the evidence offered by the parties and assess the witnesses' credibility.

“While the jury may take note of the inconsistencies and resolve or discount them
Delaware County, Case No. 17CAA080060                                                         10


accordingly * * * such inconsistencies do not render defendant's conviction against the

manifest weight or sufficiency of the evidence.” State v. McGregor, 5th Dist. Ashland No.

15–COA–023, 2016-Ohio-3082, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP–

739, 2000 WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness'

testimony, but may accept only portions of it as true. Id.

       {¶27} Our review of the entire record reveals no significant inconsistencies or

other conflicts in appellee's evidence that would demonstrate a lack of credibility of Jane

Doe, who testified that appellant would place her hand on his penis and “move it around.”

She testified this happened frequently and she told Mother about it but nothing changed.

       {¶28} Appellant implies the convictions cannot rest upon Jane Doe’s testimony

alone, but it was the jury’s role to evaluate the credibility of all of the witnesses and resolve

conflicts in the evidence. See, State v. Eichorn, 5th Dist. Morrow No. 02 CA 953, 2003-

Ohio-3415, appeal not allowed, 100 Ohio St.3d 1471, 2003-Ohio-5772, 798 N.E.2d 406,

and appeal not allowed, 117 Ohio St.3d 1480, 2008-Ohio-1841, 884 N.E.2d 1110; State

v. Burge, 5th Dist. Stark No. 2016CA00217, 2017-Ohio-7862; In re M.B., 5th Dist. Ashland

No. 15-COA-028, 2016-Ohio-4780, appeal not allowed, 147 Ohio St.3d 1507, 2017-Ohio-

261, 67 N.E.3d 824, and cert. denied sub nom. M.B. v. Ohio, 137 S.Ct. 2276, 198 L.Ed.2d

708 (2017). The jury in this matter chose to believe the victim; the jury was in the best

position to assess her testimony and found her to be a credible witness. See, State v. Hill,

5th Dist. Muskingum No. CT2009-0044, 2010-Ohio-4295; State v. Southall, 5th Dist. Stark

No. 2008 CA 00105, 2009-Ohio-768.

       {¶29} We have reviewed the record in the case of sub judice and are not

persuaded by appellant's contention that the jury's verdict led to a manifest miscarriage
Delaware County, Case No. 17CAA080060                                                   11


of justice. As we have often emphasized, the trier of fact, as opposed to this Court, is in

a far better position to weigh the credibility of witnesses. State v. Reardon, 5th Dist.

Tuscarawas No. 2001AP080082, unreported, 2002 WL 1025488, *2 (May 17, 2002),

citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The implicit credibility

conclusions of the jurors are not a sufficient basis for now claiming they effectively lost

their way under the circumstances of this case. Id.

       {¶30} Appellant thus has not shown that “a miscarriage of justice” occurred or that

the jury “lost its way” when it found him guilty of two counts of gross sexual imposition.

His sole assignment of error is overruled.

                                     CONCLUSION

       {¶31} Appellant’s sole assignment of error is overruled and the judgment of the

Delaware County Court of Common Pleas is affirmed.

By: Baldwin, J.,

Wise, John, P.J. and

Hoffman, J., concur.
