[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 : O P I N I O N

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 43130Fairfield County, Case No. 2019 CA 00010 2

Wise, Earle, J. {¶ 1} Defendant-Appellant Michael Hinty appeals the March 6, 20 19 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 livi ng with the child victim and her mother, Rebecca, for 8 years. The child victim, A.C. wa s 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-daughte r dance at A.C.'s school, Gorsuch West Elementary. Assistant Principal Maureen Ke mper was present as a chaperone along with Gorsuch teacher Jo Lena Sark and her hus band 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. Kemp er pointed this activity out to the Sark's. All three were shocked, and viewed the touch ing 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 lat er questioned about the incid ent, 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 becau se 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 a bout the incident. Hinty did not deny touching A.C.'s breasts. He instead explaine d 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 impositi on 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 degr ee. Hinty pled not guilty to the charge and elected to proceed to a bench trial on Januar y 25, 2019 where the above outlined evidence was adduced. Before the beginning of th e trial, counsel for Hinty stipulated that Hinty knew A.C., that A.C. was not Hinty's spou se, 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 enter ed into these stipulations, however, counsel indicated he had discussed the matter with Hin ty and that Hinty was willing to so stipulate. {¶ 8} After hearing the evidence, the trial court found Hinty g uilty 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 pla ced on 5 years probation and classified as a Tier I sex offender. {¶ 9} Hinty filed an appeal, and his jail term was stayed pendi ng 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 A ND EVERY ELEMENT OF THE OFFENSE IN QUESTION." I {¶ 1} In his first assignment of error, Hinty argues he was den ied due process when his counsel and the state entered into stipulations regard ing elements of the charged offense when he was not present in the courtroom. We di sagree. {¶ 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 criti cal 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 h as stated that an accused is guaranteed the right to be present at all stages of a criminal proceeding that are critical to its outcom e whenFairfield County, Case No. 2019 CA 00010 5 his or her absence may frustrate the fairness of the proceeding s. 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 impanel ing of the jury, the return of the verdict, and the imposition of sent ence, * * *.' "

{¶ 3} Errors of constitutional dimension, however, do not autom atically trigger prejudicial error. State v. Williams , 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983). Rather, "error[s] of [a] constitu tional stature, either state o r federal" are deemed nonprejudicial if they are " 'harmless beyond a reasonable doub t.' " 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 t hisFairfield 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 St ate has nine witnesses today and would be able to cut a significant amount of testimony out today if Defendant were to agree to sti pulate to particular elements. The State intends to show that * * * Defendant had sexual conta ct with someone not the spouse of him and that he knows that the person he had contact with, that person's ability to apprise th e nature or control the Defendant's touching was substantially impaired. So based on my understanding, we would be entering into a stipulat ion that the offender knew that the victim in this case, her abilit y to apprise the nature of his actions was, in fact, substantially i mpaired, 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 boyfri end 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 c ertainly critical to the outcome of a criminal matter, we find no error in this particular instance. First, counsel for Hinty indicated that he had discus sed the stipulations with Hinty, and that Hinty was in agreement with the same. Hint y does not dispute that representation on appeal. {¶ 6} Second, even if that were not true, during trial the stat e produced evidence of the very things that were stipulated to. Maureen Ke mper 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 mat ters, 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 couns el, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that c ounsel'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 b ut for counsel's errors, theFairfield 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 suffi cient to undermine confidence in the outcome.” Strickland at 694, 104 S.Ct. 2052. {¶ 11} Hinty argues his trial counsel failed to object to inadm issible and prejudicial evidence presented by the state including other complaints rela ted 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 m atter was tried to the court. When a matter is submitted to the bench, we must pre sume the trial court considered only relevant, competent and admissible evidence in its deliberations. This assumption may only be overcome by an affirmative showing to th e 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 fin d 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 convi ction 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 exami ne the evidence at trial to determine whether such evidence, if believed, would su pport a conviction. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inqui ry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the crime pr oven 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 co ntrol Hinty's conduct was substantially impaired. {¶ 17} Sexual contact is defined by R.C. 2907.01(B) as the touc hing of the erogenous zone of another, including without limitation the thi gh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpos e 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 cir cumstantial 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 direc t 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 a rousal 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 c ontact, 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 con clusion 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 ove rrule Hinty's final assignment of error. {¶ 21} The judgment of the Lancas ter Municipal Court is affirme d.

By Wise, Earle, J. Gwin, P.J. and Baldwin, J. concur.

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