[Cite as State v. Gunter, 2011-Ohio-3388.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95775




                                        STATE OF OHIO

                                               PLAINTIFF-APPELLEE

                                                   vs.


                                        JERRY GUNTER

                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-531348

        BEFORE:             Sweeney, P.J., Cooney, J., and S. Gallagher, J.
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       RELEASED AND JOURNALIZED:                 July 7, 2011

ATTORNEY FOR APPELLANT

Richard A. Neff, Esq.
614 W. Superior Avenue
Suite 1310
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mark J. Mahoney, Esq.
Assistant County Prosecutor
8 Floor, Justice Center
 ht




1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, P.J.:

       {¶ 1} Defendant-appellant Jerry Gunter (“defendant”) appeals his convictions for

rape, kidnapping, and gross sexual imposition.     After reviewing the facts of the case and

pertinent law, we affirm.

       {¶ 2} On December 9, 2009, defendant was charged with one count each of rape,

kidnapping, and gross sexual imposition.   The alleged victim was his 11-year-old cousin J.G.

 The case proceeded to a bench trial and on August 26, 2010, the court found defendant guilty
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as indicted.     The court sentenced defendant to ten-years-to-life in prison for the rape and

kidnapping, and one year in prison for the gross sexual imposition, to run concurrently.

       {¶ 3} Defendant appeals and raises one assignment of error for our review.

       {¶ 4} “I.      The trial court erred to the prejudice of the defendant-appellant when it

returned a verdict of guilty against both the sufficiency of the evidence and the manifest

weight of the evidence.”

       {¶ 5} When reviewing sufficiency of the evidence, an appellate court must determine,

“after viewing the evidence in a light most favorable to the prosecution, whether any

reasonable trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.”     State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.

       {¶ 6} The proper test for an appellate court reviewing a manifest weight of the

evidence claim is as follows:

       {¶ 7} “The appellate court sits as the ‘thirteenth juror’ and, reviewing the entire

record, weighs all the reasonable inferences, considers the credibility of witnesses and

determines whether, in resolving conflicts in evidence, the jury 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. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

       {¶ 8} In the instant case, defendant was convicted of the following offenses:
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       {¶ 9} Rape in violation of R.C. 2907.02(A)(1)(b), which states that “No person shall

engage in sexual conduct with another * * * when * * * [t]he other person is less than thirteen

years of age, whether or not the offender knows the age of the other person.”

       {¶ 10} Kidnapping in violation of R.C. 2905.01(A)(4), which states that “No person,

by force, threat, or deception * * * shall remove another from the place where the other person

is found or restrain the liberty of the other person * * *   [t]o engage in sexual activity * * *

with the victim against the victim’s will * * *.”

       {¶ 11} Gross sexual imposition in violation of R.C. 2907.05(A)(4), which states that

“No person shall have 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.”

       {¶ 12} The following evidence was presented at trial:

       {¶ 13} J.G. testified that she slept over her aunt’s house on Saturday October 31,

Sunday November 1, and Monday November 2, 2009.               Defendant’s bedroom was in the

basement of this house.    Defendant and J.G.’s uncle Nate also has a bedroom in the basement

of this house.   J.G., defendant, and another cousin named Keith were playing video games

and watching television in defendant’s bedroom on Sunday night.       Nate was in his own room

that night.   J.G. fell asleep in a chair in defendant’s bedroom.     Defendant and Keith fell

asleep in defendant’s twin bed.
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          {¶ 14} J.G. testified that she woke up in the middle of the night and was scared to go

upstairs.    J.G. asked defendant to scoot over.       Keith moved toward the wall, defendant

moved toward the middle, and J.G. got into the bed with her back to defendant.       After about

two minutes, defendant pulled J.G.’s pajama pants and underwear down and put his penis

inside her “private.”    J.G. tried to push defendant off her, but he pulled her back.   J.G. felt

something inside of her, defendant began to move back and forth, then J.G. felt pain and

something wet.      Defendant stopped, and J.G. pulled her pants up and went upstairs.   She lay

down on the couch and began to cry.        She thought it was sometime between 6:00 and 7:00

a.m.

          {¶ 15} J.G. did not tell anyone what defendant allegedly did to her because J.G. was

scared.     J.G. slept in one of the upstairs bedrooms on Monday night.     She woke up in the

middle of the night, and defendant was lying in the bed with her.       He put his hand on her

“stomach close to [her] private part,” then he left.

          {¶ 16} J.G.’s mom picked J.G. up the next morning.     When they got home, J.G. told

her mom that something happened.        Her mom asked what happened, and J.G. said it started

with the letter “R.”     Her mom asked again, and J.G. said it started with the letters “R-A.”

When J.G.’s mom “put it together,” J.G. filled in the details.    J.G.’s mom told a few family

members what happened, then her brother Bernard took J.G. to the hospital.
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         {¶ 17} J.G.’s mother testified that she picked J.G. up from her aunt’s house on Tuesday

November 3, 2009.      As J.G. and her mom were walking home from the bus stop, J.G. told

her mom that defendant sexually assaulted her over the weekend.           J.G.’s mother called her

brother Bernard, who took them to the hospital to have J.G. examined.        Additionally, Bernard

arranged for the police to come to the hospital and take an incident report.

         {¶ 18} Renee Hotz, the forensic nurse who examined J.G. at University Hospitals,

testified that J.G. was wearing the same underwear at the time of the exam as she had been

wearing when defendant raped her.        Hotz collected this underwear for testing along with

swabs taken from J.G.’s genitalia.   During the exam, Hotz noted a laceration on J.G.’s genital

area.    Hotz testified that it may have been caused by a sexual assault, and, in her opinion,

there was “penetration in the case of [J.G.].”

         {¶ 19} Hotz read the following statement, which is what J.G. told Hotz happened:

         {¶ 20} “I was laying on a chair on the basement.        I woke up and was falling back to

sleep.   We had watched a vampire movie.         I was scared.    I asked [defendant] to move over.

 I thought he was laying on the edge.     He kept pulling me back.        He was putting his hand

on my stomach, then into my pants.      He took his hand out and pulled my pants down.          He

put his thing into me.      I kept pushing him away.        Then he pulled me back again.         I

scratched him on his arm.     Then he kept doing it again.       Then he stopped after a while * *

*.”
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       {¶ 21} On cross-examination, Hotz testified that the laceration found on J.G. was not

conclusive of sexual assault and could have been caused by other factors.          Additionally,

J.G.’s hymen was intact, although this was not necessarily indicative that J.G. had never been

penetrated.

       {¶ 22} According to the Ohio Bureau of Criminal Identification and Investigation

(“BCI”) reports, semen and blood were found on J.G.’s underwear and genital swabs.             A

scientist from BCI testified that two DNA profiles were present on these items, one consistent

with J.G. and the other consistent with defendant.     The “frequency of occurrence from the

DNA profile from the sperm fraction” found on the underwear and one of the genital swabs is

between “one in 42 quintillion 140 quadrillion unrelated individuals [and] one in 237 sextillion

137 quintillion unrelated individuals.”   In other words, other than defendant, “that rules out

anybody else on the planet.”

       {¶ 23} In defendant’s case-in-chief, he did not dispute the scientific evidence placing

his DNA on J.G.’s genitals and underwear.     Rather, he disputed how it got there.   Defendant

testified as follows:

       {¶ 24} On October 30, 2009, defendant’s cousin Bernard and two other males

kidnapped defendant at gunpoint.     Bernard told defendant that he loved his family, but he

needed defendant to do something for him.      Bernard also said, “I will kill you if I have to.”

Bernard did not tell defendant what “something” meant.
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        {¶ 25} On the night of November 1, 2009, after playing video games and watching

television, defendant and his cousin Keith fell asleep in defendant’s bed and J.G. fell asleep in

the chair in defendant’s room.     J.G. did not come into defendant’s bed at any time, and

defendant had no sexual contact with J.G. at any time. Defendant did not wake up until the

next morning around 6:00 when his mother told him to turn the television off.

        {¶ 26} On November 2, 2009, Bernard came to defendant’s house and told defendant,

“I need you to put your sperm on [J.G.’s] drawers. * * * I need you to do this because if I go

down I’m going down for a long time; I need you to do this for me. * * * [Y]ou only going to

do about three weeks, then they gonna let you go.”

        {¶ 27} As a result of the conversation with Bernard, defendant masturbated into a

tissue, and approached J.G., who was upstairs watching television.      Defendant asked J.G. if

she knew what was going on.        J.G. nodded      her head up and down, indicating that she

understood what defendant was asking her.        Defendant handed J.G. the tissue and left the

room.    Defendant does not know what J.G. did with the tissue.     Defendant felt he had to do

this because he was afraid of Bernard.

        {¶ 28} Defendant learned later that day that J.G. accused him of raping her.

Defendant was “shocked, but * * * thought it was all part of what was supposed to happen.”

Defendant voluntarily spoke with social workers and denied the allegations against him.       He

later provided a DNA sample.       Defendant did not say anything about the incident with
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Bernard, because defendant was “still going along with” what Bernard told defendant to do,

and defendant was trying to protect his family.      Eventually, defendant told his attorney about

Bernard’s threats.

       {¶ 29} Nate testified that his bedroom is two to three feet away from defendant’s

bedroom.     On Sunday night, November 1, 2009, Nate was in his room, while defendant,

Keith, and J.G. were playing video games in defendant’s room.         On the way to the bathroom

around 5:30 or 6:00 a.m., Nate looked into defendant’s bedroom because the television was

on.   Nate saw defendant and Keith asleep in defendant’s bed.         J.G. was in the chair under a

blanket.   Shortly after this, defendant’s mom came downstairs and told defendant to turn the

television off.

       {¶ 30} Keith testified that he, defendant, and J.G. were watching television and playing

video games in defendant’s bedroom on Sunday night November 1, 2009.                 Nate was in the

other bedroom in the basement.      Keith and defendant fell asleep in the bed, with defendant

against the wall and Keith closer to the edge of the bed.     J.G. fell asleep in the chair.   Keith

testified that he did not hear or feel anything unusual while he slept that night.     Keith recalled

defendant’s mother yelling at defendant to turn the television off.

       {¶ 31} In looking at defendant’s arguments regarding the sufficiency of the evidence,

we first note that it is undisputed that J.G. was under the age of 13, which is an element of

defendant’s rape and gross sexual imposition convictions.      J.G.’s testimony, coupled with the
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DNA evidence, is sufficient to show that defendant engaged in sexual conduct with J.G.,

which supports the rape conviction.      J.G. testified that defendant put his penis inside her

“private” and moved back and forth.      Pursuant to R.C. 2907.01(A), sexual conduct includes

vaginal intercourse and “[p]enetration, however slight, is sufficient to complete vaginal * * *

intercourse.”

       {¶ 32} We additionally find that there was sufficient evidence to show that defendant

restrained J.G.’s liberty in relation to the kidnapping conviction.   In State v. Logan (1979), 60

Ohio St.2d 126, 130, 397 N.E.2d 1345, the Ohio Supreme Court held the following: “It is

clear from the plain language of the statute that no movement is required to constitute the

offense of kidnapping; restraint of the victim by force, threat, or deception is sufficient.

Thus, implicit within every forcible rape is a kidnapping.”      Furthermore, the rape of a child

by an adult family member is “inevitably forcible.”      State v. Williams, Cuyahoga App. No.

92714, 2010-Ohio-70, ¶33.

       {¶ 33} The essential element of gross sexual imposition pertinent to the case at hand is

that defendant had “sexual contact” with J.G.      Sexual contact is defined in 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.”   J.G. testified that on Monday night she awoke

to find defendant in bed with her, touching her stomach near her pubic region.       Given J.G.’s
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allegation that this happened the night after defendant raped her, we find the testimony

sufficient to show that defendant’s touch was sexual in nature.      See, e.g., State v. Daniels,

Cuyahoga App. No. 92563, 2010-Ohio-899, ¶58 (stating that “Ohio courts have consistently

held that a rape conviction may rest solely on the victim’s testimony, if believed.”)

       {¶ 34} Turning to the manifest weight of the evidence, the court found that this case

turned on “two competing and conflicting theories” about how defendant’s DNA got on J.G.’s

underwear and genitalia.    The court stated that the state’s case was “very credible,” and the

defendant’s case did not present reasonable doubt.      The court did not believe defendant’s

testimony about being kidnapped and threatened by Bernard.         Specifically, the court noted

that there was no explanation or rationale behind why Bernard wanted defendant to do what

defendant allegedly did.    The court also found it unbelievable that defendant would not

initially report the threats to anyone and that J.G. was somehow involved or at least aware of

this scheme.

       {¶ 35} The fact-finder is free to believe all, part, or none of each witness’s testimony.

See State v. Martin, Cuyahoga App. No. 90722, 2008-Ohio-5263.            As the Ohio Supreme

Court has noted, “where the decision in a case turns upon credibility of testimony, and where

there exists competent and credible evidence supporting the findings and conclusions of the

trial court, deference to such findings and conclusions must be given by the reviewing court.”

Myers v. Garson (1993), 66 Ohio St.3d 610, 614, 614 N.E.2d 742.
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       {¶ 36} Accordingly, we find that there was sufficient evidence to convict defendant of

rape, kidnapping, and gross sexual imposition, and these convictions were not against the

manifest weight of the evidence. Defendant’s sole assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its 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.




JAMES J. SWEENEY, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
