[Cite as State v. Vargas, 2013-Ohio-4281.]


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

STATE OF OHIO                                         C.A. No.       12CA010195

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOSE R. VARGAS                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   11CR082399

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2013



        HENSAL, Judge.

        {¶1}     Defendant-Appellant, Jose R. Vargas, appeals from his conviction in the Lorain

County Court of Common Pleas. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     On March 9, 2011, the Grand Jury indicted Vargas on one count of gross sexual

imposition in violation of Revised Code Section 2907.05(A)(4). Vargas pleaded not guilty, and

proceeded to a bench trial. The trial court found him guilty and sentenced him to three years of

community control, a $2,000 fine, and classified him as a Tier II sex offender.

        {¶3}     Vargas filed a timely appeal of his conviction. His counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that there were no appealable issues, and

moved to withdraw as counsel. This Court determined that there were arguable issues that could

be raised on appeal, granted counsel’s motion to withdraw, and appointed new counsel on
                                                   2


Vargas’s behalf. Vargas’s new counsel has raised three assignments of error for our review.

This Court rearranges his assignments of error to facilitate our review.

                                                  II.

                                   ASSIGNMENT OF ERROR III

          THE TRIAL COURT ERRED IN DENYING VARGAS’ (SIC) MOTION FOR
          JUDGMENT OF ACQUITTAL AS THE STATE FAILED TO PRESENT
          SUFFICIENT EVIDENCE OF GUILT.

          {¶4}   In his third assignment of error, Vargas argues that the trial court erred in failing

to grant his Criminal Rule 29 motion. This Court disagrees.

          {¶5}   “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Slevin, 9th Dist. Summit No. 25956,

2012-Ohio-2043, ¶ 15. “Whether the evidence is legally sufficient to sustain a verdict is a

question of law” that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997).

          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. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Collmar, 9th Dist. Summit No. 26496, 2013-Ohio-1766, ¶ 7.

          {¶6}   Vargas was convicted of violating Revised Code Section 2907.05(A)(4), which

provides that:
                                                  3


       No person shall have sexual contact with another, not the spouse of the offender;
       [or] cause another, not the spouse of the offender, to have sexual contact with the
       offender * * * when any of the following applies:

       ***

       The other person * * * is less than thirteen years of age, whether or not the
       offender knows the age of that person.

“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). Specifically, Vargas

argues that the State failed to present any evidence that his physical contact with the victim was

done for the purpose of sexual arousal or gratification.

       {¶7}    The victim, N.B., is the granddaughter of Vargas’s long-time “significant other.”

N.B. testified that she called Vargas “abuelo,” which is Spanish for “grandpa.” N.B. visited with

her grandparents every two weeks and stayed the weekend with them overnight once per month.

N.B. testified that she “would have fun” when she visited her grandparents.

       {¶8}    N.B. testified that she arrived on a Friday night in early October 2010 to spend the

weekend with her grandparents. She was 11 years old at the time. According to N.B., nothing

“out of the ordinary” happened that night and she had a good time. On Saturday, N.B. went with

her grandparents to run errands. The victim testified that her grandmother went into a store,

while she and Vargas remained in the car. Vargas reached over the seat and started tickling her

stomach. According to N.B., he reached under her jacket and t-shirt to touch her skin as he was

tickling her. Vargas then inserted his finger under the waistband of her pants. N.B. slapped his

hand away and told him to stop. The victim testified that Vargas then told her to open her legs,

which she refused to do. As her grandmother was returning to the car, Vargas said, “Shh. Don’t

tell grandma anything.” N.B. testified that she felt very uncomfortable and “knew it wasn’t
                                                4


really right for him to be doing it,” but that she did not tell her grandmother because she was

“trying to process everything” and figure out “why he was doing this.” Vargas had never done

anything like that before or otherwise made her feel uncomfortable according to N.B.

       {¶9}    That night, N.B. went to tell Vargas that dinner was ready. She testified that he

opened his arms for a hug and embraced her. According to N.B., the hug lasted longer than

usual. She stated that Vargas gave her two long kisses on each side of her neck wherein she

could feel his saliva on her skin. N.B. felt very uncomfortable and testified that this was not

normally how he kissed her.

       {¶10} Later on in the evening, as N.B. lay on her grandparents’ bed waiting for her

grandmother, the victim testified that Vargas joined her on the bed and they tickled each other.

N.B. stated that Vargas stuck his tongue in her ear. According to N.B., this was not something

he had done before, and it made her feel “[v]ery uncomfortable” and “disgusted.” The victim

went to her room and remained there.

       {¶11} N.B. testified that that same evening, as Vargas was hugging her, he turned her

around so that her buttocks were pressed to his pelvic area. He put one hand on her stomach, the

other on her chest, and held her tight. Vargas used his hand that was on her stomach to push her

closer to the front of his body. He then asked her if she “liked it,” to which N.B. replied, “No.”

N.B. testified that she struggled and got free. This incident also made her feel uncomfortable.

       {¶12} “In the absence of direct testimony regarding sexual arousal or gratification, the

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. Edwards, 9th

Dist. Lorain No. 12CA010274, 2013-Ohio-3068, ¶ 10, quoting State v. Antoline, 9th Dist. Lorain

No. 02CA008100, 2003-Ohio-1130, ¶ 64. “‘From these facts the trier of facts may infer what the
                                                5


defendant’s motivation was in making the physical contact with the victim.’” Id., quoting State

v. Cobb, 81 Ohio App.3d 179, 185 (9th Dist.1991).

       {¶13} N.B. testified that Vargas asked her if she “liked it” when her buttocks were

pressed up against his pelvic area. N.B. further testified that all the incidents made her feel

uncomfortable and that she knew what Vargas was doing was “wrong” and “wasn’t really right.”

Accordingly, the trier of fact could reasonably infer from her testimony, if believed, that

Vargas’s conduct was done for his sexual arousal or gratification.

       {¶14} Viewing the evidence in a light most favorable to the State, this Court concludes

that there was sufficient evidence from which any rational trier of fact could have found that the

prosecution proved beyond a reasonable doubt that Vargas committed the offense of gross sexual

imposition. N.B. testified that the incidents occurred in October 2010 when she was 11 years

old. Further, her testimony, if believed, would have demonstrated that Vargas had sexual contact

with her. Vargas’s third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       VARGAS’ [SIC] CONVICTIONS WERE AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶15} Vargas argues in his second assignment of error that his conviction is against the

manifest weight of the evidence. We do not agree.

       {¶16} To determine whether Vargas’s conviction was against the manifest weight of the

evidence, this 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 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.
                                                  6


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. “When a court of appeals reverses a judgment of a trial court

on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits

as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

Id., quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).

       {¶17} Vargas challenges the trial court’s finding that his alleged act of positioning the

victim’s buttocks to his pelvic area constituted gross sexual imposition. He argues that there was

no evidence that he was “grinding” against the victim, and further maintains that, within a

familial relationship, “[i]t certainly cannot be criminal, even if unwanted, for someone to hug,

even tightly and even uncomfortably, someone in that particular situation.”

       {¶18} N.B.’s mother testified that approximately 35 to 40 minutes after she picked N.B.

up from her grandparents’ home on Sunday, she told her that she did not love her grandpa

anymore “[b]ecause he tried to touch me.” According to the victim’s mother, N.B. told her about

the incidents that occurred that weekend. She described N.B. as “upset, but not so much as

disappointed. * * * [S]he was very disappointed and very determined that she would just not go

over there anymore.” After telling her mother what happened, N.B. “broke down and started

crying.” The victim and her mother reported the incidents that night to the police. Prior to that

weekend, N.B.’s mother testified that her daughter loved visiting her grandparents and looked

forward to going to their home.

       {¶19} Vargas presented the testimony of N.B.’s grandmother, his daughter, and his

daughter’s boyfriend. N.B.’s grandmother testified that N.B. never mentioned anything about

these incidents to her. Vargas’s daughter testified that she talked to N.B. that weekend, but that
                                                 7


N.B. never mentioned anything about these incidents to her either. According to Vargas’s

daughter, her father never did anything “inappropriate” to her or her sister.        The boyfriend

testified that he was at the house the day of the incidents, but that nothing usual happened.

        {¶20} Vargas testified in his own defense at trial. He denied that any of the incidents

occurred. Vargas further testified that N.B. made up the allegations, but that he does not know

why she would do so.

        {¶21} When pronouncing its verdict, the trial court found that Vargas “grabbed [N.B.]

around the waist and pull[ed] her towards him so that her rear was lodged tightly in his groin

area * * *.” Vargas argues that “there was no testimony that anyone’s rear was lodged tightly

into Mr. Vargas’ (sic) groin area.” Vargas’s argument rests purely on semantics, however, as the

trial court used the word “groin” whereas the victim testified that her buttocks were touching his

“pelvic area.”

        {¶22} While Vargas argues in his brief that this type of hug within the context of a

grandfather-granddaughter relationship does not constitute gross sexual imposition, he denied at

trial that any of the touching, including the tickling, the hug and the kisses, ever occurred. He

denied that he had physical contact in any way with N.B., much less that it was innocent or

incidental to their relationship.

        {¶23} After a careful review of the record, this Court concludes that the trial court did

not lose its way when it determined that Vargas’s act of pressing N.B.’s buttocks against his

pelvic area, together with N.B.’s testimony regarding whether or not she “liked” to be placed in

that position, constituted gross sexual imposition. The trial court specifically found that N.B.’s

testimony was credible. “[T]he weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of facts.” State v. Frazier, 9th Dist. Summit No. 25654,
                                                8


2012-Ohio-790, ¶ 56, quoting State v. Jackson, 86 Ohio App.3d 29, 32 (4th Dist.1993). “This

Court will not overturn the trial court’s verdict on a manifest weight of the evidence challenge

only because the trier of fact chose to believe certain witnesses’ testimony over the testimony of

others.” State v. Brown, 9th Dist. Wayne No. 11CA0054, 2013-Ohio-2945, ¶ 42. Accordingly,

Vargas’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S DETERMINATION OF GUILT ON AN OFFENSE
       FOR WHICH VARGAS WAS NOT INDICTED VIOLATED HIS RIGHT TO A
       GRAND JURY INDICTMENT.

       {¶24} In his first assignment of error, Vargas argues that he was convicted under a

subsection of the statute different from what was listed on his indictment. This Court disagrees.

       {¶25} The Ohio Constitution necessitates that, except in certain cases, a defendant “held

to answer for a capital, or otherwise infamous crime” has the right to a grand jury indictment.

Ohio Constitution, Article I, Section 10. Criminal Rule 7(A) further provides that all felonies,

other than those that may incur a death sentence or life imprisonment, “shall be prosecuted by

indictment” unless the defendant waives the indictment. “The indictment shall * * * contain a

statement that the defendant has committed a public offense specified in the indictment. * * *

Each count of the indictment * * * shall state the numerical designation of the statute that the

defendant is alleged to have violated.” Crim.R. 7(B).

       {¶26} N.B. testified that at the time of trial she was 12 years old and that her birthdate

was September 7, 1999. The victim’s mother also testified to the same information. The victim

was questioned about incidents that occurred over a period of three days in October 2010. N.B.

would have been 11 years old at that time.
                                                  9


       {¶27} The trial court, when pronouncing its verdict, stated that Vargas’s testimony about

the fact that N.B. had an opportunity to go to the movies with a relative, but instead chose to

spend the day with her grandparents, was important. It stated that:

       Notwithstanding the opportunity to leave for the afternoon and go with her
       [relative] and her [relative’s boyfriend], which I believe would be far more
       attractive to the average 13-year-old than spending the day at grandma’s house,
       she chose to spend the afternoon not at the picture show, but with her
       grandmother and [Vargas].

Vargas maintains that the court’s comment about the “average 13-year-old” constitutes an

incorrect finding of fact about the age of the victim, which is one of the necessary elements of

the offense pursuant to the subsection of the statute he was charged under.

       {¶28} Vargas also challenges the trial court’s statement that appears to contemplate a

different subsection of the gross sexual imposition statute. The trial court stated that:

       I find that the third incident that occurred here, where Mr. Vargas was alleged to
       have grabbed her around the waist and pull her towards him so that her rear was
       lodged tightly in his groin area, the Court finds that that * * * particular maneuver
       was done for the sexual gratification of the defendant in an effort to seduce, and
       that the defendant purposely compelled the victim to submit to that by force.

(Emphasis added.) While Vargas was indicted under Revised Code Section 2907.05(A)(4),

subsection (A)(1) of the same statute defines gross sexual imposition as occurring when “[t]he

offender purposely compels the other person * * * to submit by force or threat of force.”

       {¶29} Vargas argues that the incorrect “finding[]” that the victim was 13 years old at the

time of the incident, coupled with the finding that he “purposely compelled the victim to submit

* * * by force,” demonstrates that the trial court convicted him under Section 2907.05(A)(1)

rather than Section 2907.05(A)(4), which is the subsection under which he was indicted.

       {¶30} Our review of the record does not support Vargas’s argument that the trial court

made an incorrect finding that the victim was 13 years old. There was neither direct testimony at
                                                10


trial that N.B. was 13 years old nor indirect testimony or evidence from which the court could

have drawn such a conclusion. It is clear from our review of the record and the context of the

statement that the trial court was making a generic statement about the reticence of children of

that general age group to willingly choose to spend time with their grandparents over the

opportunity to do more fun things like going to the movies. It is equally clear from the context

of the statement that the trial court thought that the fact that N.B. willingly chose to spend time

with her grandparents rather than go to the movies, and then suddenly refused to even go back to

their home, was an important fact that weighed in favor of the victim’s credibility.

       {¶31} Further, the judgment entry of his conviction stated that the “Defendant [was]

found guilty of gross sexual imposition, R.C. 2907.05(A)(4), a third degree felony, as charged in

the indictment.” “The Ohio Supreme Court has ‘repeatedly stated that a court speaks exclusively

through its journal entries’ not oral pronouncements.” State v. Dowey, 9th Dist. Summit No.

25963, 2012-Ohio-4915, ¶ 8, quoting In re Guardianship of Hollins, 114 Ohio St.3d 434, 2007-

Ohio-4555, ¶ 30. The trial court’s judgment entry finds Vargas guilty of the offense pursuant to

the subsection of the statute under which he was indicted. Accordingly, to the extent that the

court misspoke when it pronounced its verdict, its error was harmless. Crim.R. 52(A); Dowey at

¶ 8. Vargas’s first assignment of error is overruled.

                                                II.

       {¶32} Vargas’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                11


       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 Lorain, 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.

       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.
BELFANCE, J.
CONCUR.


APPEARANCES:

MICHAEL STEPANIK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
