[Cite as State v. Fishel, 2016-Ohio-7656.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2016 CA 00037
CHRISTOPHER J. FISHEL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2015 CR 01357


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         November 7, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                BERNARD L. HUNT
PROSECUTING ATTORNEY                           2395 McGinty Road Road NW
RENEE M. WATSON                                North Canton, Ohio 44720
ASSISTANT PROSECUTOR
110 Central Plaza, South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2016 CA 00037                                                    2

Wise, J.

      {¶1}   Appellant Christopher J. Fishel appeals his conviction on one count of

sexual battery and one count of disseminating matter harmful to juveniles, entered in the

Stark County Common Pleas Court following a jury trial.

      {¶2}   Appellee is the State of Ohio.

                                STATEMENT OF THE FACTS

      {¶3}   In June 2014, then 16-year-old M.G. began contacting the man she believed

was her biological father, Defendant-Appellant Christopher Fishel. The contact started

with letters and phone calls. When M.G.'s mother discovered M.G.'s efforts, she became

angry and intercepted letters from Appellant Fishel. After discovering this, M.G. had

Appellant send letters to the address of her grandmother Cindy Lemmeyer. (T. (II) at 136,

161-162.)

      {¶4}   Meanwhile, M.G.'s relationship with her mother and step-father deteriorated

and M.G. moved in with her great-grandparents. Her great-grandparents live on the same

property as Lemmeyer, and M.G. would visit with Lemmeyer at least once a day. (T.(II)

at 137-138, 159-160).

      {¶5}   Lemmeyer also corresponded with Appellant via letters and eventually

agreed to take M.G. to meet him in person. The first meeting was on Thanksgiving, 2014.

Appellant lived with his mother Judy Fishel in Stark County. This fact made Lemmeyer

more comfortable when making a decision to permit M.G. to see Appellant outside her

supervision. Before she consented to unsupervised visits, Lemmeyer wanted to be sure

Appellant was in fact M.G.'s biological father and requested he agree to a paternity test.
Stark County, Case No. 2016 CA 00037                                                      3


The test was completed, and Appellant was determined to be M.G.'s father. (T. (II) at 140-

144, 163-164).

       {¶6}    M.G. began visiting Appellant at his mother's home in December, 2014.

Either Lemmeyer would take her there or Appellant and his friends would come and pick

her up. At some point that same month, Appellant sent M.G. a video of himself

masturbating. Included in the video was the message; "Do you want to play with daddy?"

(T. (II) at 153, 165-166, 177-178).

       {¶7}    Around the same time, M.G. was visiting Appellant and drinking Mike's Hard

Lemonade. She started to feel sick, so she laid down on a sofa in the basement and went

to sleep. She woke to Appellant beside her, masturbating. M.G. got up, went upstairs to

the bathroom and sat there for about 15 minutes. Appellant's mother was home, but M.G.

did not say anything to her. (T. (II) at 180-181).

       {¶8}    M.G. went back to visit Appellant about 4 days later. Appellant was upset

about the previous incident and was talking about killing himself. The visit went fine until

bedtime. M.G. was drinking again. She and Appellant blew up an air mattress so she

could sleep in the basement. M.G. laid down and went to sleep. She woke to find herself

naked from the waist down, and Appellant naked on top of her engaging in vaginal

intercourse. She recalled that the situation felt like a dream so she figured she was

dreaming and went back to sleep. She again told no one. (T. (II) at 182-184).

       {¶9}    The same thing happened again, approximately 4-5 days later. Again it

happened after she fell asleep on the air mattress, but this time she had consumed no

alcohol. (T. (II) at 184).
Stark County, Case No. 2016 CA 00037                                                       4


       {¶10} In total, there were three such incidences. When M.G. told Appellant she

was going to tell, he threatened to kill himself and told her it would be her fault and she

would have to live with knowing she had killed her father. M.G. continued to keep

Appellant’s behavior secret until mid-January, 2015. (T. (II) at 185-186,208).

       {¶11} On January 13, 2015, Appellant and his friend Dean showed up at the

Wadsworth Taco Bell where M.G. worked. M.G. had expected Dean, but not her father.

M.G. and 40-year-old Dean had begun flirting, texting, and talking to one another a couple

weeks before. While at Taco Bell, M.G. and Appellant got in an argument when Appellant

said something derogatory about M.G.'s mother. M.G. struck Appellant, dumped a drink

on him, and told him that she and Dean were going to run away and get married. Appellant

called M.G. a “slut”, told her they were through, and left. (T. (II) at 168-172).

       {¶12} That same day, Appellant sent a text to Lemmeyer telling her that his friend

Dean was interested in M.G., and he did not want them getting together. Over the

following couple of days, M.G. and Dean spoke frequently, mostly about forgiving

Appellant for the Taco Bell incident, and M.G. going back for a visit. (T. (II) at 173).

       {¶13} On January 15, Lemmeyer took M.G. to Appellant's home for a visit. When

they got there, they found Appellant agitated, pacing, and ranting. There was a crutch by

the door and when Lemmeyer asked what it was for, Appellant said it was to beat up

Dean if he came over because Dean wanted to sell M.G. for cocaine. Not wanting to listen

to her father, M.G. went outside and sat in Lemmeyer's car. (T. (II) at 172-174).

       {¶14} Appellant followed M.G. and tried to talk to her. M.G. got out of the car and

started walking away. When Appellant began following her, M.G. threw her drink at him.

Lemmeyer pulled up beside her, M.G. got in the car, and they drove away. They did not
Stark County, Case No. 2016 CA 00037                                                    5


get far before Appellant called, begging them to come back. Lemmeyer suggested they

go back for a few minutes to "see how it goes." (T. (II) at 174-175).

       {¶15} When they returned, a North Canton police officer was at the house.

Appellant was telling the officer that M.G. was having a sexual relationship with Dean and

was going to run away with him. M.G. asked the officer what would happen if a 38-year-

old-man had sex with a 17 year old. She claims the officer told her probably nothing

because it would be too hard to prove. Lemmeyer spoke with the officer for a bit, and then

they left for home. (T. (II) at l75-176).

       {¶16} On the way home, Lemmeyer was irritated because she had driven all the

way to North Canton and M.G. did not stay. M.G. started crying. Lemmeyer asked M.G.

why she asked the officer the question she asked. M.G. responded by showing Lemmeyer

the video Appellant had sent of him masturbating. (T. (II) at 147, 176-178).

       {¶17} Lemmeyer became concerned about what else may have occurred. She

contacted Appellant and told him she had seen the video. A few days later, Lemmeyer

had a second conversation with M.G. and M.G. told her everything. Based on that

conversation, she contacted Appellant again. Appellant said he would tell her everything,

but she would not like what he had to say. He then confirmed M.G.'s story. Lemmeyer

sent a letter to the North Canton Police Department reporting what she had learned. (T.

(II) 147-149, 179).

       {¶18} North Canton police officer John Hemric opened an investigation in

response to Lemmeyer's letter. He interviewed Appellant and M.G., seized Appellant’s

phone and obtained a warrant to search the phone. (T. (II) at 220-224).
Stark County, Case No. 2016 CA 00037                                                      6


       {¶19} Appellant denied having sex with his daughter and claimed that he sent the

video to M.G. by mistake. According to Appellant, he intended to send the video to a

friend named Marissa whose phone contact appeared below M.G.'s in his phone.

       {¶20} At trial, Appellant took the stand in his own defense and repeated this tale,

also claiming that Marissa called him "daddy." But text messages were also recovered

from Appellant's phone. Although texts to Marissa were recovered, Appellant did not start

texting Marissa until 3 days after M.G. made her disclosures, and well after he sent the

video to M.G. (T. (II) at 225-227, 257, 258, 316).

       {¶21} Texts between M.G. and Appellant were recovered from the phone, but

there were obvious gaps in conversations indicating texts had been deleted. Additionally,

nude pictures of M.G. were found on Appellant's phone. He claimed M.G. asked him to

take the photos. M.G. admitted she sent some "selfies" to Appellant. (T. (II) at 268-277).

       {¶22} After the allegations came out, Appellant sent M.G. a photo of himself

holding a sign which read "I luv u baby plz come back to and forgive me I'm sorry." This

photo was also recovered from Appellant's phone. Around the same time, Appellant

posted photos of M.G. on his Facebook page. (T. (II) at 191-195).

       {¶23} Texts from Appellant to Dean were also recovered from the phone. In a

conversation on January 16, the day after M.G. disclosed to Lemmeyer, Appellant tells

Dean that he "tried ending it last night" by taking a bunch of pills. He told Dean that "her

grandma knows everything" and asked "How do you get over what her and I did, not

possible." (T. (II) at 280-283).

       {¶24} As a result of these events, in September 2015, the Stark County Grand

Jury indicted Appellant on one count of sexual battery, in violation of R.C. §2907.03(A)(5),
Stark County, Case No. 2016 CA 00037                                                   7


and one count of disseminating matter harmful to juveniles, in violation of R.C. §2907.31

(A)(l) and or (A)(2).

       {¶25} Appellant pled not guilty to the charges.

       {¶26} On January 13, 2016, a jury trial commenced in this matter. The state

presented 4 witnesses. Appellant presented testimony from his mother and took the stand

in his own defense.

       {¶27} The trial court recessed for the evening after closing arguments of counsel.

The following morning, the jury deliberated for 5 minutes before convicting Appellant as

charged. (T. (III) at 387-388).

       {¶28} On January 19, 2016, the trial court sentenced Appellant to five (5) years

for sexual battery and twelve (12) months for disseminating matter harmful to juveniles

and ordered him to serve the sentences consecutively. He was additionally classified at

a Tier III sex offender. (T. (IV) at 15-16).

       {¶29} Appellant now appeals, raising the following errors for review:

                                    ASSIGNMENTS OF ERROR

       {¶30} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S

MOTION TO DISMISS UNDER CRIMINAL RULE 29 (A).

       {¶31} “II. THE JURY VERDICTS IN THIS CASE WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.”

                                               I., II.

       {¶32} Appellant's two Assignments of Error raise common and interrelated issues;

therefore, we will address the arguments together.
Stark County, Case No. 2016 CA 00037                                                      8


       {¶33} Appellant maintains the trial court erred in overruling his Criminal Rule 29

motion for acquittal and his convictions are against both sufficiency and the manifest

weight of the evidence.

       {¶34} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal

using the same standard used to review a sufficiency of the evidence claim. State v. Larry,

5th Dist. Holmes No. 15CA011, 2016–Ohio–829, ¶ 20 citing State v. Carter, 72 Ohio St.3d

545, 553, 651 N.E.2d 965, 1995–Ohio–104.

       {¶35} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two

of the syllabus, in which the Ohio Supreme Court held, “[a]n 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.” See State v. Dowdle, 5th Dist. Stark No.

2015CA00119, 2016–Ohio–485, ¶ 16.

       {¶36} 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
Stark County, Case No. 2016 CA 00037                                                      9


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.

      {¶37} In the case sub judice, Appellant was convicted of sexual battery pursuant

to R.C. §2907.03(A)(5) and disseminating matter harmful to juveniles pursuant to R.C.

§2907.31(A)(1) and/or (A)(2).

      {¶38} To find Appellant guilty of sexual battery, the trier of fact would have to find

beyond a reasonable doubt that, between January 1, 2014, and January 21, 2015,

Appellant engaged in sexual conduct with M.G., not his spouse, when Appellant is M.G.'s

natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco

parentis of M.G. (R.C. §2907.03(A)(5).)

      {¶39} Sexual conduct includes, “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.

      {¶40} To find Appellant guilty of disseminating matter harmful to juveniles, the trier

of fact would have to find that Appellant, as a continuing course of conduct from January

1, 2014, to January 21, 2015, with knowledge of the content, did recklessly present or

deliver to M.G., any material or performance that is obscene or harmful to juveniles.

      {¶41} R.C. §2907.01(E) defines “harmful to juveniles” as:
Stark County, Case No. 2016 CA 00037                                                 10


            (E) “Harmful to juveniles” means that quality of any material or

     performance describing or representing nudity, sexual conduct, sexual

     excitement, or sado-masochistic abuse in any form to which all of the

     following apply:

            (1) The material or performance, when considered as a whole,

     appeals to the prurient interest of juveniles in sex;

            (2) The material or performance is patently offensive to prevailing

     standards in the adult community as a whole with respect to what is suitable

     for juveniles; and

            (3) The material or performance, when considered as a whole, lacks

     serious literary, artistic, political, and scientific value for juveniles.

     {¶42} R.C. §2907.01(F) defines obscene:

            (F) When considered as a whole, and judged with reference to

     ordinary adults or, if it is designed for sexual deviates or other specially

     susceptible group, judged with reference to that group, any material or

     performance is “obscene” if any of the following apply:

            (1) Its dominant appeal is to prurient interest;

            (2) Its dominant tendency is to arouse lust by displaying or depicting

     sexual activity, masturbation, sexual excitement, or nudity in a way that

     tends to represent human beings as mere objects of sexual appetite;

            (3) Its dominant tendency is to arouse lust by displaying or depicting

     bestiality or extreme or bizarre violence, cruelty, or brutality;
Stark County, Case No. 2016 CA 00037                                                     11


              (4) Its dominant tendency is to appeal to scatological interest by

       displaying or depicting human bodily functions of elimination in a way that

       inspires disgust or revulsion in persons with ordinary sensibilities, without

       serving any genuine scientific, educational, sociological, moral, or artistic

       purpose;

              (5) It contains a series of displays or descriptions of sexual activity,

       masturbation, sexual excitement, nudity, bestiality, extreme or bizarre

       violence, cruelty, or brutality, or human bodily functions of elimination, the

       cumulative effect of which is a dominant tendency to appeal to prurient or

       scatological interest, when the appeal to such an interest is primarily for its

       own sake or for commercial exploitation, rather than primarily for a genuine

       scientific, educational, sociological, moral, or artistic purpose.

       {¶43} As to the sexual battery charge, M.G. testified that Appellant was her father

and that on three separate occasions, he engaged in vaginal intercourse with her. (T. (III)

at 182-185). By itself, M.G.’s testimony is sufficient to prove each element of the charge

of sexual battery. One witness, believed by a jury, is sufficient to establish a fact. State

v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881.

       {¶44} While Appellant argues that M.G.’s testimony should not be believed

because she did not tell Judy Fishel about the incidents sooner and initially denied that

same had occurred, such goes to credibility which is a matter for the jury as the trier of

fact to determine. ‘While the jury may take note of the inconsistencies and resolve or

discount them accordingly * * * such inconsistencies do not render defendant's conviction

against the manifest weight or sufficiency of the evidence.’ ” State v. Naugle, 5th District
Stark County, Case No. 2016 CA 00037                                                    12

Stark No. 2008-CA-00190, 2009-Ohio-3268. See also State v. Craig (Mar. 23, 2000),

Franklin App. No. 99AP–739, 2000 WL 297252, *3, quoting State v. Nivens (May 28,

1996), Franklin App. No. 95APA09–1236, 1996 WL 284714, *3.

       {¶45} With regard to the charge of disseminating matter harmful to juveniles,

Appellant is not disputing that the content of the video of him masturbating is “obscene”

or that he sent such video to M.G., but argues instead that he sent it to her in error

because he had intended to send the video to a friend named Marissa whose name is in

his contact list immediately after his daughter in his phone.

       {¶46} 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 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 (Mar. 23, 2000). Indeed, the

jurors need not believe all of a witness' testimony, but may accept only portions of it as

true. Id. 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 appellee's

witnesses.

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

jury “lost its way” when it found him guilty of sexual battery and disseminating matter

harmful to juveniles.
Stark County, Case No. 2016 CA 00037                                               13


      {¶48} Appellant’s Assignments of Error are overruled.

      {¶49} For the reasons stated in the foregoing opinion, the judgment of the Stark

County Court of Common Pleas is affirmed.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.


JWW/d 1026
