[Cite as State v. Pistawka, 2016-Ohio-1523.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      27828

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JAMES THOMAS PISTAWKA                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2014 05 1398

                                 DECISION AND JOURNAL ENTRY

Dated: April 13, 2016



        HENSAL, Judge.

        {¶1}     James Pistawka appeals his convictions for rape, gross sexual imposition, and

sexual battery from the Summit County Court of Common Pleas. For the following reasons, this

Court affirms.

                                                 I.

        {¶2}     The Grand Jury indicted Mr. Pistawka on five counts of rape, nine counts of gross

sexual imposition, and one count of sexual battery. The charges arose out of incidents reported

by Mr. Pistawka’s daughters and step-daughter.

        {¶3}     According to C.G., she was nine years old when Mr. Pistawka married her mother

in 2001. Beginning when she was 10, Mr. Pistawka would ask her to sit under a blanket with

him and watch a movie. During the movie, he would put his hands down her pants and on her

vagina. Other times, Mr. Pistawka offered to tuck her into bed. While in her room, he would sit

on her bed, reach under her nightgown and put a finger inside her vagina. He also twice put his
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mouth on it. C.G. testified that, one time while she was in Mr. Pistawka’s room, he took his

penis out and made her rub it for a few seconds. According to C.G., she reported his conduct

after she ran away from home when she was fifteen years old. After living in several different

places, however, she missed her mother and wanted to return home. C.G. testified that she was

not allowed to return until she recanted her accusations against Mr. Pistawka. C.G., therefore,

did recant her accusations and the investigation into them was dropped until her step-sisters

made their own allegations.

       {¶4}   S.P. testified that she was born in 1999 and is Mr. Pistawka’s daughter. He began

touching her inappropriately when she was seven years old while she visited him on weekends.

According to S.P., he would call her into his room to cuddle under a blanket. After getting under

it with him, he would move her hand onto his penis. As she grew older, he began getting more

physical with her. He would stick his hands down her shirt to touch her breasts, put them down

her pants to touch her vagina, and force her to kiss him for long periods. One day at school

while learning about the treatment of women during the French Revolution, her teacher informed

her class that rape is a hate crime. Wondering if Mr. Pistawka hated her, she told her mother

about the touching. Her mother called the police.

       {¶5}   K.P., another of Mr. Pistawka’s daughters, testified that he only touched her

inappropriately one time. According to K.P., she was staying at her grandmother’s house when

Mr. Pistawka came into her room to put a movie in for her. At the time, she was sitting on the

edge of the bed. After Mr. Pistawka put the movie in, he came over to her and pushed her legs

apart so that he could hug her. He also began kissing her face and neck. Uncomfortable with his

actions, she got up, but Mr. Pistawka came up behind her and grabbed her, pressing himself

against her buttocks. He started kissing her again on her neck and jawline and also put one of
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his hands down below her belly button. After a few minutes, however, he stopped and left the

room.

        {¶6}   A jury found Mr. Pistawka guilty of two counts of rape and four counts of gross

sexual imposition as to C.G., one count of rape, four counts of gross sexual imposition, and one

count of sexual battery as to S.P., and one count of gross sexual imposition as to K.P. After

merging the sexual battery count with one of the rape counts, the trial court sentenced Mr.

Pistawka to a total of 15 years imprisonment. Mr. Pistawka has appealed, assigning three errors,

which this court has rearranged to facilitate our analysis of them.

                                  ASSIGNMENT OF ERROR II

        APPELLANT INCURRED PLAIN ERROR WHEN THE TRIAL COURT
        FAILED TO SEVER THE CHARGES IN THIS CASE AS ALLEGED BY THE
        THREE SEPARATE VICTIMS.

        {¶7}   Mr. Pistawka argues that the trial court incorrectly denied his motion to sever the

counts in the indictment.     He concedes that, because he did not renew his motion at the

conclusion of all the evidence, he has forfeited all but plain error. State v. Miller, 9th Dist.

Lorain Nos. 10CA009922, 10CA009915, 2012-Ohio-1263, ¶ 17-18.                Under Criminal Rule

52(B), “[p]lain errors or defects affecting substantial rights may be noticed although they were

not brought to the attention of the court.” “Notice of plain error * * * is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. “Plain error

does not exist unless it can be said that but for the error, the outcome of the trial would clearly

have been otherwise.” State v. Wickline, 50 Ohio St.3d 114, 120 (1990).

        {¶8}   Mr. Pistawka argues that the court should not have allowed the State to try the

offenses together because the testimony of each victim would not have been admissible at the
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others’ trials and because the evidence was not so simple and distinct that the jury could separate

it. See State v. Schaim, 65 Ohio St.3d 51, 59 (1992) (providing criteria for determining whether

a defendant was prejudiced by the joinder of multiple offenses). He argues that the testimony of

each alleged victim was inflammatory as to the offenses involving the others, especially the

offense involving K.P., who only alleged that he hugged her uncomfortably on one occasion.

       {¶9}    Criminal Rule 14 provides that, “[i]f it appears that a defendant * * * is prejudiced

by a joinder of offenses * * *, the court shall order an election or separate trial of [the] counts * *

*.” To prevail on a claim that the trial court erred in denying a motion to sever, the defendant

normally “has the burden of demonstrating three facts.” Schaim at 59.

       He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at
       the time of the motion to sever he provided the trial court with sufficient
       information so that it could weigh the considerations favoring joinder against the
       defendant’s right to a fair trial, and (3) that given the information provided to the
       court, it abused its discretion in refusing to separate the charges for trial.

Id. Because Mr. Pistawka did not preserve his argument, however, he must establish that the

court committed plain error. See State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-

3524, ¶ 82.

       {¶10} Assuming, for the sake of argument, that the court should not have tried Mr.

Pistawka’s offenses together, we conclude that Mr. Pistawka has not established that the

outcome of his trial clearly would have been different. Although he contends that the testimony

of each victim would not have been supported by the allegations of the others if the offenses had

been separated, we note that C.G., S.P. and K.P each took the stand to present direct evidence of

Mr. Pistawka’s attacks. They also each specifically identified Mr. Pistawka as their attacker.

Accordingly, while the jury may have been more willing to credit their testimony in light of the

testimony of the other victims, we cannot say that the outcome of Mr. Pistawka’s trial clearly
                                                 5


would have been different if the offenses had been separated. See State v. Bell, 7th Dist.

Mahoning No. 06-MA-189, 2008-Ohio-3959, ¶ 21. Mr. Pistawka’s second assignment of error

is overruled.

                                 ASSIGNMENT OF ERROR III

       APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE
       PROCESS OF LAW PURSUANT TO THE UNITED STATES AND OHIO
       CONSTITUTIONS WHEN THE STATE INTRODUCED EVIDENCE OF A
       CARE INTERVIEW THROUGH A WITNESS WHO HAD NOT CONDUCTED
       THE INTERVIEW AND DEFENSE COUNSEL WAS NOT PERMITTED TO
       CROSS-EXAMINE THE WITNESS REGARDING THE INTERVIEW.

       {¶11} Mr. Pistawka next argues that the trial court erred when it allowed the State to

play the video of an interview that C.G. gave to a hospital social worker. The social worker who

conducted the interview no longer worked at the hospital at the time of trial, so the State played

the interview during the testimony of the social worker who replaced her and who had

interviewed S.P. after S.P. reported Mr. Pistawka’s actions. On cross-examination of the social

worker who interviewed S.P., the trial court refused to allow Mr. Pistawka to ask about what was

said during C.G.’s interview. The court explained that, because the social worker who was on

the stand had not conducted the interview, she was “in no better position than the jury to judge

what the evidence was * * * .” According to Mr. Pistawka, his inability to cross-examine the

social worker who conducted C.G.’s interview violated his right to confrontation.

       {¶12} To the extent that Mr. Pistawka argues that C.G.’s interview should not have been

played for the jury, we note that Mr. Pistawka objected to the playing of C.G.’s interview

because C.G. had already testified. He did not argue that playing the video would violate his

right to confrontation. He, therefore, has forfeited that issue for appeal. State v. Ricks, 9th Dist.

Medina No. 09CA0094-M, 2010-Ohio-4659, ¶ 13. Although Mr. Pistawka has not forfeited
                                                6


consideration of plain error, he has not argued plain error on appeal and we decline to develop an

argument for him. Id.

       {¶13} To the extent that Mr. Pistawka argues that the court incorrectly refused to let him

question the social worker who interviewed S.P. about the content of C.G.’s interview, he has not

pointed this Court to any authority that establishes that he should have been permitted to ask her

about the content of the interview, let alone that the trial court’s ruling, according to him,

“denied him a fair trial and due process[.]”        Mr. Pistawka’s third assignment of error is

overruled.

                                 ASSIGNMENT OF ERROR I

       APPELLANT’S CONVICTIONS WERE BASED ON INSUFFICIENT
       EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶14} Mr. Pistawka next argues that his conviction involving K.P. is not supported by

sufficient evidence because there was no evidence that he hugged her with the purpose of

sexually arousing or gratifying himself.     Whether a conviction is supported by sufficient

evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380,

386 (1997). In making this determination, we must view the evidence in the light most favorable

to the prosecution:

       An 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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶15} The jury found Mr. Pistawka guilty of one count of gross sexual imposition

regarding K.P. Revised Code section 2907.05(A)(4) provides that “[n]o person shall have sexual
                                                 7


contact with another * * * when any of the following applies * * * [t]he other person * * * is less

than thirteen years of age * * *.” “Sexual contact” is defined 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.”

R.C. 2907.01(B).

       {¶16} Although there was no direct evidence that Mr. Pistawka pressed himself against

K.P.’s buttocks for the purpose of sexual arousal or gratification, a “trier of fact may infer a

purpose of sexual arousal or gratification from the ‘type, nature and circumstances of the contact,

along with the personality of the defendant.’”        State v. Persinger, 9th Dist. Lorain No.

13CA010397, 2014-Ohio-4125, ¶ 5, quoting State v. Edwards, 9th Dist. Lorain No.

12CA010274, 2013-Ohio-3068, ¶ 10. According to K.P., she got up from the bed where she had

been sitting because Mr. Pistawka was kissing her face and neck while hugging her good night,

which she thought was “weird” given her age. After she stood, Mr. Pistawka came up behind her

and grabbed her arms, pulling them across her. He went to tickle her, but reached past her belly

button, lower than she thought he should have. As he held her and pressed against her buttocks,

he began kissing her again along her neck and jawline. According to K.P., the kissing lasted for

several minutes, even after she asked him to stop.

       {¶17} Viewing K.P.’s testimony in a light most favorable to the State, we conclude that

there was sufficient evidence from which the jury could infer that Mr. Pistawka touched one of

K.P.’s erogenous zones for the purpose of sexual arousal or gratification. We, therefore, reject

his argument that his conviction for gross sexual imposition as to K.P. is not supported by

sufficient evidence.
                                                  8


       {¶18} Mr. Pistawka also argues that his convictions are against the manifest weight of

the evidence. If a defendant asserts that his convictions are against the manifest weight of the

evidence

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶19} Mr. Pistawka argues that the jury lost its way with respect to the charges

involving each girl because it was influenced by the testimony of the other girls. Regarding

C.G.’s allegations, Mr. Pistawka notes that C.G. saw several counselors during the years before

she ran away from home, but never said anything to any of them about his alleged touching. He

also notes that C.G.’s mother testified that she never told C.G. that she could only return home if

she recanted her allegations against Mr. Pistawka. He further notes that C.G.’s mother and

brother testified that C.G. does not have a reputation for truthfulness in the community.

       {¶20} Regarding S.P.’s allegations, Mr. Pistawka notes that S.P. met with a social

worker in 2011, but did not say anything to her about his alleged improper touching, even though

she testified that it had started in 2006.   Regarding K.P.’s allegations, he repeats his assertion

that there was not even sufficient evidence to support his conviction.
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       {¶21} The social worker who conducted S.P.’s interview testified that it is common for

children to not report sexual acts with a family member because they may be embarrassed by it,

they may have been threatened, or they might simply not understand everything that happened

until they are older.    She also testified that it can take some time for a child to become

comfortable enough with a counselor for them to disclose what happened. Her testimony

provided an explanation for why C.G. and S.P. did not report Mr. Pistawka’s acts earlier, despite

the fact that they were receiving professional counseling. We also note that “the jury was in the

best position to evaluate the credibility of the witnesses and it was entitled to believe all, part, or

none of the testimony of each witness.” State v. Shank, 9th Dist. Medina No. 12CA0104-M,

2013-Ohio-5368, ¶ 29. Upon review of the record, we cannot say that the jury lost its way when

it gave credence to C.G., S.P., and K.P.’s testimony.          Accordingly, we conclude that Mr.

Pistawka’s convictions are not against the manifest weight of the evidence. Mr. Pistawka’s third

assignment of error is overruled.

                                                 III.

       {¶22} Mr. Pistawka’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



MOORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NATHAN A. RAY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
