[Cite as State v. Hinty, 2020-Ohio-79.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
MICHAEL HINTY                                 :       Case No. 2019 CA 00010
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Municipal Court,
                                                      Case No. 18-CRB-957




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     January 13, 2020




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

MITCHELL R. HARDEN                                    ANDREW R. SANDERSON
136 West Main Street                                  738 East Main Street
Lancaster, OH 43130                                   Lancaster, OH 43130
Fairfield County, Case No. 2019 CA 00010                                                    2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant Michael Hinty appeals the March 6, 2019 entry of

conviction and sentence of the Fairfield County Municipal Court, Lancaster, Ohio.

Plaintiff-Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

       {¶ 2} At the time of events in this matter, Hinty had been living with the child victim

and her mother, Rebecca, for 8 years. The child victim, A.C. was 10 years old. A.C. is a

special needs, low-functioning, non-verbal child.

       {¶ 3} On February 16, 2018, Hinty took A.C. to a father-daughter dance at A.C.'s

school, Gorsuch West Elementary. Assistant Principal Maureen Kemper was present as

a chaperone along with Gorsuch teacher Jo Lena Sark and her husband Bret. As the

three looked out over the crowd from the stage, Kemper noticed Hinty standing at the

back wall of the gymnasium with A.C. standing directly in front of him. Hinty's hands were

draped over A.C.'s shoulders, as he rubbed A.C.'s breasts. Kemper pointed this activity

out to the Sark's. All three were shocked, and viewed the touching as inappropriate. After

4-5 minutes of this, the three watched as Hinty turned to face the wall and put his hands

down at his crotch.

       {¶ 4} The entire time Hinty was fondling A.C.'s breasts, he was talking to another

parent, Michael Gillette. When later questioned about the incident, Gillette stated he found

the behavior "a little out of the ordinary" and "…not a really normal thing to do."

Nonetheless, Gillette did not view the behavior as sexual because A.C. is not "developed"

and "is like a little boy."
Fairfield County, Case No. 2019 CA 00010                                                   3


          {¶ 5} The incident was captured on surveillance video and later turned over to

police.

          {¶ 6} Lancaster Police Detective Alex Sinewe spoke with Hinty about the incident.

Hinty did not deny touching A.C.'s breasts. He instead explained that A.C. is prone to

"fits," and that he does what he was observed doing to calm A.C. Hinty further explained

that it is only natural to rub A.C's chest, shoulder or stomach, and that there was nothing

sexual about the interaction.

          {¶ 7} Hinty was later charged with one count of sexual imposition pursuant to R.C.

2907.06(A)(1). The state later amended the charge to one count of sexual imposition

pursuant to R.C. 2907.06(A)(2), a misdemeanor of the third degree. Hinty pled not guilty

to the charge and elected to proceed to a bench trial on January 25, 2019 where the

above outlined evidence was adduced. Before the beginning of the trial, counsel for Hinty

stipulated that Hinty knew A.C., that A.C. was not Hinty's spouse, and that A.C.'s

disabilities substantially impaired her ability to apprise the nature of, or control Hity's

touching. Hinty was not in the courtroom when his counsel entered into these stipulations,

however, counsel indicated he had discussed the matter with Hinty and that Hinty was

willing to so stipulate.

          {¶ 8} After hearing the evidence, the trial court found Hinty guilty of the amended

charge. Following a pre-sentence investigation, the trial court sentenced Hinty to a 60-

day jail term and suspended 30 days. Hinty was additionally placed on 5 years probation

and classified as a Tier I sex offender.

          {¶ 9} Hinty filed an appeal, and his jail term was stayed pending this appeal. He

raises three assignments of error:
Fairfield County, Case No. 2019 CA 00010                                                   4


                                               I

       {¶ 10} "THE TRIAL COURT DENIED THE DEFENDANT-APPELLANT DUE

PROCESS DURING THE PROCEEDINGS BELOW."

                                              II

       {¶ 11} "THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL HEREIN."

                                              III

       {¶ 12} "THE CONVICTION OF THE DEFENDANT-APPELLANT WAS OBTAINED

WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO ESTABLISH EACH AND

EVERY ELEMENT OF THE OFFENSE IN QUESTION."

                                               I

       {¶ 1} In his first assignment of error, Hinty argues he was denied due process

when his counsel and the state entered into stipulations regarding elements of the

charged offense when he was not present in the courtroom. We disagree.

       {¶ 2} In State v. Wallace, Richland App. No.2002CA0072, 2003-Ohio-4119, ¶ 14,

this court set forth the law regarding this issue as follows:



              "A defendant has a fundamental right to be present at all critical

              stages of his criminal trial. State v. Hill, 73 Ohio St.3d 433, 444, 1995-

              Ohio-287, 653 N.E.2d 271, citing, Crim.R. 43(A) and Section 10,

              Article I, Ohio Constitution. The United States Supreme Court has

              stated that an accused is guaranteed the right to be present at all

              stages of a criminal proceeding that are critical to its outcome when
Fairfield County, Case No. 2019 CA 00010                                                    5


              his or her absence may frustrate the fairness of the proceedings.

              Kentucky v. Stincer (1987), 482 U.S. 730, 745, 107 S.Ct. 2658, 96

              L.Ed.2d 631. This right is embodied in Crim.R. 43(A). Criminal Rule

              43(A) provides that, 'the defendant shall be present at the

              arraignment and every stage of the trial, including the impaneling of

              the jury, the return of the verdict, and the imposition of sentence, * *

              *.' "



       {¶ 3} Errors of constitutional dimension, however, do not automatically trigger

prejudicial error. State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983).

Rather, "error[s] of [a] constitutional stature, either state or federal" are deemed

nonprejudicial if they are " 'harmless beyond a reasonable doubt.' " Id., quoting Chapman

v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967) and citing State v. Abrams, 39 Ohio

St.2d 53, 313 N.E.2d 823 (1974), paragraph two of the syllabus. "Particularly, as regards

a defendant's constitutional right to be present at all stages of his trial, prejudicial error

exists only where 'a fair and just hearing * * * [is] thwarted by his absence.' " Id., quoting

Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330 (1934) and citing United States

v. Brown, 571 F.2d 980 (6th Cir.1978).

       {¶ 4} Before trial began in this matter, the following exchange took place:



              The Court: This matter is State of Ohio vs. Michael Hinty. It's Case

              No. 18CRB957. The Defendant, Mr. Hinty, is not present in the

              courtroom, but it's my understanding before we begin trial in this
Fairfield County, Case No. 2019 CA 00010                                                  6


                matter, that the parties were agreeing to some stipulations. Is that

                correct, gentlemen?

                [Counsel for Hinty]: Yes, Your Honor.

                [Counsel for the state]: That is correct, Your Honor. Just for clarity

                for the record * * * we did speak at length in chambers. The State

                has nine witnesses today and would be able to cut a significant

                amount of testimony out today if Defendant were to agree to stipulate

                to particular elements.

                The State intends to show that * * * Defendant had sexual contact

                with someone not the spouse of him and that he knows that the

                person he had contact with, that person's ability to apprise the nature

                or control the Defendant's touching was substantially impaired. So

                based on my understanding, we would be entering into a stipulation

                that the offender knew that the victim in this case, her ability to

                apprise the nature of his actions was, in fact, substantially impaired,

                and that she is also not his spouse.

                The Court: All right. And is that acceptable to the defense, Mr. Ort?

                [Counsel for Hinty]: Yes, Your Honor. I've discussed it with my client.

                He is aware and he would stipulate. He was the long-time boyfriend

                so he was aware of the child's disabilities.

      T. 5-6.
Fairfield County, Case No. 2019 CA 00010                                                   7


       {¶ 5} While stipulations to elements of a charged offense are certainly

critical to the outcome of a criminal matter, we find no error in this particular

instance. First, counsel for Hinty indicated that he had discussed the stipulations

with Hinty, and that Hinty was in agreement with the same. Hinty does not dispute

that representation on appeal.

       {¶ 6} Second, even if that were not true, during trial the state produced

evidence of the very things that were stipulated to. Maureen Kemper and Detective

Sinewe's testimony both testified that Hinty was aware of A.C's disabilities,

establishing he took the child to counseling sessions, attended her Individualized

Education Plan meetings, and reported to Detective Sinewe that A.C. is "autistic."

T. 11-12, 27, 48. Sinewe further established that Hinty is not A.C.'s spouse, but

rather a father figure. T. 48

       {¶ 7} Because the state produced evidence of the stipulated matters, we find any

error in Hinty's absence from the courtroom during stipulations did not thwart a fair hearing

and is harmless beyond a reasonable doubt.

       {¶ 8} The first assignment of error is overruled.

                                             II

       {¶ 9} In his second assignment of error, Hinty argues his trial counsel rendered

ineffective assistance. We disagree.

       {¶ 10} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
Fairfield County, Case No. 2019 CA 00010                                                   8


result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.” Strickland

at 694, 104 S.Ct. 2052.

       {¶ 11} Hinty argues his trial counsel failed to object to inadmissible and prejudicial

evidence presented by the state including other complaints related to Hinty's interaction

with A.C., other reports filed with Child Protective Services, testimony regarding a bruise

found on A.C.'s thigh, and details of Hinty's prior conviction for domestic violence.

       {¶ 12} While this testimony may have been objectionable, this matter was tried to

the court. When a matter is submitted to the bench, we must presume the trial court

considered only relevant, competent and admissible evidence in its deliberations. This

assumption may only be overcome by an affirmative showing to the contrary by an

appellant. State v. Jeffries, 8th Dist. Cuyahoga No. 106889, 2018-Ohio-5039, ¶ 15 citing

State v. Wiles, 59 Ohio St.3d 71, 86, 571 N.E.2d 97 (1991); State v. Montgomery, 10th

Dist. Franklin No. 13AP-512, 2014-Ohio-4354, ¶ 20; State v. Rowe, 2nd Dist. Montgomery

No. 25993, 2014-Ohio-3265, ¶ 45; State v. Pearson, 10th Dist. Franklin Nos. 14AP-793

and 14AP-816, 2015-Ohio-3974, ¶ 13. That being the case, we find neither fault in Hinty's

representation, nor prejudice.

       {¶ 13} The second assignment of error is overruled.

                                             III

       {¶ 14} In his final assignment of error, Hinty argues his conviction is not supported

by sufficient evidence. We disagree.
Fairfield County, Case No. 2019 CA 00010                                                    9


       {¶ 15} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶ 16} Here, Hinty was charged with a violation of R.C. 2907.06(A)(2). This section

required the state to prove Hinty had sexual contact with A.C., who is not his spouse,

when Hinty knew A.C.'s ability to appraise the nature of, or control Hinty's conduct was

substantially impaired.

       {¶ 17} Sexual contact is defined by R.C. 2907.01(B) as the touching of the

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."

       {¶ 18} Hinty argues the state failed to prove his actions were carried out for the

purpose of sexual gratification, as it relied wholly on the circumstantial evidence of his act

of turning towards the wall and putting his hands to his crotch to satisfy this element.

Circumstantial evidence however, is to be given the same weight and deference as direct

evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

       {¶ 19} Further, there is no requirement the state present direct testimony regarding

sexual arousal or gratification. State v. Astley, 36 Ohio App.3d 247, 523 N.E.2d 322 (10th

Dist. Franklin 1987); State v. Cobb, 81 Ohio App.3d 179, 610 N.E.2d 1009 (9th Dist.
Fairfield County, Case No. 2019 CA 00010                                                  10


Lorain 1991); In Re Anderson, 116 Ohio App.3d 441, 688 N.E.2d 545 (Twelfth Dist.

Clermont 1996); State v. Brady, 5th Dist. Stark No. 2000CA00223, 2001 WL 815574 (July

9, 2001). In the absence of direct testimony regarding sexual arousal or gratification, the

trier of fact may infer the defendant was motivated by desires for sexual arousal or

gratification from the “type, nature and circumstances of the contact, along with the

personality of the defendant.” Cobb, supra.

       {¶ 20} The trial court as the trier of fact viewed the video of the incident, listened

to Hinty's interview with Detective Sinewe, and came to the conclusion that Hinty's

behavior was carried out for the purpose of sexually gratifying himself or A.C. We find this

judgment is not against the sufficiency of the evidence and overrule Hinty's final

assignment of error.

       {¶ 21} The judgment of the Lancaster Municipal Court is affirmed.




By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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