[Cite as State v. Whitacre, 2014-Ohio-1369.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2013-T-0045
        - vs -                                  :

ANTHONY J. WHITACRE,                            :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 12 CR 1.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Anthony J. Whitacre, appeals his conviction of two counts of

unlawful sexual conduct with a minor. Appellant was sentenced to an aggregate prison

term of 30 months. On appeal, appellant maintains his convictions are against the

manifest weight of the evidence. Based on the following, we affirm the trial court’s

judgment.

        {¶2}     In their appellate briefs, both appellant and appellee, the state of Ohio,

agree that there are very few disputed facts. Appellant, age 20, and the 13-year-old
victim, J.H., agreed to meet at a specific location at a park in Niles, Ohio. There, the

two engaged in vaginal intercourse and fellatio. When the two were leaving the park,

J.H. saw her father who was out looking for her. Evading her father, J.H. went to her

grandmother’s house where she was eventually picked up by her father. J.H. told her

father she had been raped by appellant. J.H. was taken to the Niles Police Department

and then to a local hospital where “rape kit” evidence was gathered.

       {¶3}   Appellant voluntarily went to the Niles Police Department and spoke with

Detective Ron Wright. Appellant admitted to having a sexual encounter with J.H., but

stated that the encounter was consensual.

       {¶4}   Approximately four days after this incident took place, J.H. spoke to the

Children Services Bureau. J.H. confirmed that a rape had not occurred, but that she

and appellant had consensual vaginal intercourse and engaged in oral sex.

       {¶5}   Appellant was indicted on two counts of unlawful sexual conduct with a

minor, felonies of the fourth degree, in violation of R.C. 2907.04(A) and (B). After a trial

by jury, appellant was found guilty on both counts.

       {¶6}   Appellant filed a timely notice of appeal and asserts the following

assignment of error:

       {¶7}   “The appellant’s convictions are against the manifest weight of the

evidence.”

       {¶8}   A manifest weight of the evidence argument presupposes the state offered

a quantum of evidence sufficient to establish the charges.             However, appellant

maintains that the state failed to present sufficient evidence to demonstrate that he

acted either knowingly or recklessly with regard to J.H.’s age. Appellant argues that he

neither knew the age of the victim nor was he reckless in that regard. In the interest of


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justice, we therefore first analyze whether the state presented sufficient evidence to

sustain appellant’s convictions.

       {¶9}     When measuring the sufficiency of the evidence, an appellate court must

consider whether the state set forth adequate evidence to sustain the jury’s verdict as a

matter of law. Kent v. Kinsey, 11th Dist. Portage No. 2003-P-0056, 2004-Ohio-4699,

¶11, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A verdict is supported

by sufficient evidence when, after viewing the evidence most strongly in favor of the

prosecution, there is substantial evidence upon which a jury could reasonably conclude

that the state proved all elements of the offense beyond a reasonable doubt. State v.

Schaffer, 127 Ohio App.3d 501, 503 (11th Dist.1998), citing State v. Schlee, 11th Dist.

Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994).

       {¶10} R.C. 2907.04(A) states: “No 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.”

       {¶11} R.C. 2907.04(A) includes a “reckless” standard with respect to a

defendant’s knowledge of the juvenile’s age. R.C. 2901.22(C) states the definition of

“recklessly”:

                A person acts recklessly when, with heedless indifference to the
                consequences, he perversely disregards a known risk that his
                conduct is likely to cause a certain result or is likely to be of a
                certain nature. A person is reckless with respect to circumstances
                when, with heedless indifference to the consequences, he
                perversely disregards a known risk that such circumstances are
                likely to exist.

       {¶12} With regard to the age of J.H., appellant maintains the state’s evidence

consisted solely of J.H.’s statement to appellant that she was 13 years of age. In


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addition to J.H.’s testimony, however, J.H.’s father testified that appellant had known

J.H. prior to this incident. In fact, appellant had been acquainted with J.H. since the

time she was six years of age. This evidence was corroborated by appellant’s own

admission: appellant admitted knowing J.H. for approximately seven or eight years prior

to this incident. Therefore, the state presented sufficient evidence to sustain the jury’s

verdict as a matter of law.

       {¶13} Next, appellant essentially argues that his version of the incident is more

credible than the version presented by J.H.        For example, appellant argues J.H.’s

testimony was replete with inconsistencies, prior falsities, and conduct that would lead

one to believe she was the proper age of consent. Appellant argues the record is

devoid of any evidence that he was not forthcoming; i.e., from the inception of the

investigation, appellant has maintained that J.H. informed him she was 18 years of age.

       {¶14} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “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, 78 Ohio

St.3d 380, 387 (1997).        In weighing the evidence submitted at a criminal trial, an

appellate court must defer to the factual findings of the trier of fact regarding the weight

to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. Further, a conviction resulting from a

trial by jury shall not be reversed on the weight of the evidence except by the

concurrence of all three judges hearing the appeal. Thompkins at 386.




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       {¶15} We cannot conclude the jury lost its way in returning a guilty verdict.

Appellant attempts to discredit J.H.’s testimony by citing those portions of the transcript

that indicate she has drank alcohol and smoked marijuana. Yet, we are mindful that the

jury, as the trier of fact, is entitled to believe all, part, or none of a witness’s testimony.

State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-2040, ¶21. Here, the jury

was aware that J.H. initially told the authorities she was raped by appellant.            J.H.

explained to the jury that she was scared when she made these allegations. J.H., as

well as her father, also testified that appellant has known J.H. for approximately seven

or eight years. This statement was corroborated by appellant himself. “The trier of fact

is in the best position to evaluate inconsistencies in testimony by observing the

witness’s manner and demeanor on the witness stand—attributes impossible to glean

through a printed record.” Id.; see also State v. Barnes, 11th Dist. Portage No. 2012-P-

0133, 2013-Ohio-2836, ¶49 (“we must defer to the weight and credibility the jury gave to

the evidence in this case”).

       {¶16} Appellant’s assignment of error is without merit.

       {¶17} Based on the opinion of this court, the judgment of the Trumbull County

Court of Common Pleas is hereby affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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