[Cite as State v. Ussery , 2020-Ohio-4771.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Patricia A. Delane y , J. -vs- Case No. 2019CA00081 JOHN T. USSERY, JR. Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2018-CR-1919

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: October 2, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

JOHN D. FERRERO DONOVAN HILL Prosecutin g Attorne y , 116 Cleveland Avenue, N.W. Stark Count y , Ohio 808 Court y ard Centre Canton, Ohio 44702 KRISTINE W. BEARD Assistant Prosecutin g Attorne y Appellate Section 110 Central Plaza, South

– Suite 510 Canton, Ohio 44702-1413Stark Count y , Case No. 2019CA00081 2

Hoffman, P.J. {¶1} Appellant John T. Ussery, Jr. appeals the judgment entered by t he Stark County Common Pleas Court convicting him of sexual battery (R.C . 2907.03(A)(5)) and gross sexual imposition (R.C. 2907.05(A)4)), and sentencing him to eight years incarceration. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} When N.B. was bet ween the ages of 5 to 7, her biological father and her stepmother, L.W., divorced. N.B.’s biological mother was not i nvolved in her life, and she refers to her stepmother as her “mom.” After the divorce, N.B. divided her time between her father’s home and her stepmother’s home on the same schedul e as her brothers, despite the fact there was no formal custody arrangement as to N.B. {¶3} Appellant began dating L. W. when N.B. was ten years old, and m oved in to L.W.’s home. On July 18, 2018, the family went out to dinne r at a restaurant, and went shopping afterwards. Upon returning home, they played a game. N.B. went to bed around 8:00-9:00 p.m. At around 2:30 a.m., Appellant entered N .B.’s bedroom, shut the door, and closed the blinds. He slid into bed behind N.B., pul led down her underwear, and rubbed his penis on N.B.’s butt and front. After ejaculati ng, Appellant got out of bed, turned on the hall light, shut the door, and left. When L.W. got up at 3:00 a.m. to use the bathroom, she noted Appellant was awake. N.B. cried hersel f to sleep. {¶4} Before leaving for work the next morning, L.W. checked on N.B. N.B. did not disclose the incident to her stepmother. After Appellant l eft for work, N.B. borrowed a phone from a neighbor, and called 911. She told the 911 disp atcher she had been raped.Stark Count y , Case No. 2019CA00081 3

{¶5} Officer Daniel Kunkle and Detective Brian Ayers responded to th e call. They met N.B. on the porch. After speaking with her, police ca lled her father, and asked him to pick up the children and to take N.B. to Akron Children’ s Hospital. {¶6} Jennifer Gierlach, a caseworker at Akron Children’s Hospital, c onducted a forensic interview with N.B. Based on N.B.’s description of th e incident, Gierlach referred N.B. to the CARE center of the hospital for further evaluation. N.B. was examined by Dr. Charles Lee. Using a sexual assault kit, he swabbed N.B.’s vag inal and anal area. {¶7} Det. Ayers met with Appellant and L.W. at the police station. Appellant denied he had been sexually inappropriate with N.B., but consen ted to an oral swab of his cheek for a DNA sample. As the detective left the intervie w room, he heard Appellant say, “That damn child.” Tr. (II) 559. {¶8} The swabs taken by Dr. Lee and other evidence collected by poli ce were submitted to the Ohio Bureau of Investigation for further analy sis. Forensic scientist Stacy Violi tested the swabs for DNA. She found acid phosphate on th e swab taken from N.B.’s vagina, which indicated the presence of semen. She found DNA o f an unknown male, of insufficient quantity to determine the source. The anal swab a nd swabs taken from N.B.’s thighs were negative for acid phosphate activity, but also indi cated the presence of the DNA of a male, in insufficient quantities to determine the sour ce. A sample taken from the crotch of N.B.’s underwear tested positive for acid phospha te activity, and positive for a mixture of N.B.’s DNA, Appellant’s DNA, and an unknown DNA. {¶9} The samples were forward to Hallie Dreyer for Y-STR testing, wh ich involves splitting the samples which tested positive for acid p hosphate into two separate fractions: a sperm fraction and a non-sperm fraction. The vag inal sample provided aStark Count y , Case No. 2019CA00081 4

male DNA profile suitable for DNA comparison. Appellant’s DNA was detected in both the non-sperm fraction and the s perm fraction. The probability of Appellant’s profile being found in the sperm fraction is 1 in 699 men in the United State s. {¶10} Appellant was indicted by the Stark County Grand Jury on one co unt of sexual battery and one count of gross sexual imposition. The c ase proceeded to jury trial in the Stark County Common Pleas Court. Appellant was convicte d as charged. The trial court merged the offenses, and sentenced Appellant to eight yea rs incarceration on the sexual battery conviction. It is from the May 1, 2019, judgmen t of the court Appellant prosecutes this appeal, assigning as error:

THE APPELLANT’S CONVICTIONS WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶11} Appellant argues his convictions were against the manifest weig ht and sufficiency of the evidence. {¶12} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “i n reviewing the entire record, weighs the evidence and all reasonable inferences, considers th e credibility of witnesses, and determines whether in resolving conflicts in evidence the j ury ‘clearly lost its way and created such a manifest miscarriage of justice that the convict ion must be reversed and

a new trial ordered.’” State v. Thompkins , 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).Stark Count y , Case No. 2019CA00081 5

{¶13} An appellate court's function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991). {¶14} Appellant was convicted of sexual battery in violation of R.C. 2907.03(A)(5):

(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: (5) The offender is the other person's natural or adoptive par ent, or a stepparent, or guardian, custodian, or person in loco parenti s of the other

person.

{¶15} Appellant was also convicted of gross sexual imposition in viol ation of R.C. 2907.05(A)(4):

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other pe rsons to have sexual contact when any of the following applies: (4) The other person, or one of the other persons, is less tha n thirteen years of age, whether or not the offender knows the age of that person.Stark Count y , Case No. 2019CA00081 6

{¶16} Sexual conduct is defined by R.C. 2907.01(A):

(A) “Sexual conduct” means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between per sons regardless of sex; and, without privilege to do so, the inserti on, however slight, of any part of the body or any instrument, apparatus, o r other object into the vaginal or anal opening of another. Penetration, howev er slight, is sufficient to complete vaginal or anal intercourse.

{¶17} Sexual contact is defined by R.C. 2907.01(B):

(B) “Sexual contact” means any touching of an erogenous zone o f another, including without limitation the thigh, genitals, butt ock, pubic region, or, if the person is a female, a breast, for the purpos e of sexually arousing or gratifying either person.

{¶18} N.B. testified at trial Appellant came into her bedroom around 2:30 a.m., shut the blinds, closed the door, and climbed into her bed. He pulled down her underwear, and rubbed his penis on her front and on her butt. The vaginal swab taken from N.B. revealed Appellant’s DNA in both the sperm and the non-sperm fr action. Further, Appellant’s DNA was found in the crotch of N.B.’s underwear. T his is sufficient evidence, if believed by the jury, to support Appellant’s convictions for sexual battery and gross sexual imposition.Stark Count y , Case No. 2019CA00081 7

{¶19} Appellant argues N.B.’s testimony is not credible, as the detai ls varied when

she talked to different adults about the incident and when she testified at trial. He argues N.B. did not like Appellant and wanted to live solely with her father because her father’s rules were more lenient. He argues L.W.’s testimony establishe d Appellant had a bad cough on the night in question and could not have left the bedr oom without her knowledge, and further she testified N.B. was not an honest chi ld. He argues police failed to test the sheets in N.B.’s room for DNA, and failed to check the blinds for Appellant’s fingerprints. {¶20} N.B.’s statements to police, the caseworker at Akron Children’s , and her trial testimony did vary on details surrounding the incident. However, as this Court has previously held:

A fundamental premise of our criminal trial system is that ‘th e jury is

the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness t estimony, therefore, has long been held to be the ‘part of every case [th at] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S .Ct. 720, 724–725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266–

1267.Stark Count y , Case No. 2019CA00081 8

The jury was free to accept or reject any and all of the evide nce offered by the parties and assess the witness's credibility. “W hile the jury may take note of the inconsistencies and resolve or discount th em accordingly * * * such inconsistencies do not render defendant' s conviction against the manifest weight or sufficiency of the evidence”. State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors ne ed not believe all of a witness' testimony, but may accept only portio ns of it as true. State v. Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶ 21, citing

State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke, Franklin App. No. 02AP1238, 2003–Ohio–2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096.

{¶21} State v. Cobb , 5th Dist. Stark No. 2014 CA 00218, 2015-Ohio-3661, ¶¶ 45-

46. {¶22} The jury in this case was made aware of contradictions in N.B.’ s various statements to adults involved in the case, yet found her testim ony at trial to be credible. We find the jury did not lost its way in believing the testimon y of N.B. concerning the conduct of Appellant on the night of July 18, 2018. {¶23} Further, we find the testimony of L.W. does not establish N.B. was not an honest child, nor does it establish Appellant failed to leave t he bedroom on the night in question. L.W. testified Appellant had a bad cough and she did not notice him leaving the bedroom, but she also testified he was awake at 3:00 a.m., shortly after the time frameStark Count y , Case No. 2019CA00081 9

given by N.B. for the incident. L.W. testified at trial N.B. w as honest for the most part; N.B. had lied about “stupid stuff like any kid,” but has not li ed about anything “major.” Tr. (II) 393. While she admitted she told police N.B. was not an h onest child, she reiterated on cross-examination N.B. lies about “stupid stuff.” Tr. (II) 408. Both N.B. and L.W. testified N.B. did not like Appellant, but L.W. testified N.B. never talked about living solely

with her father. {¶24} As for the failure of the police to fingerprint the blinds or t est the bedding in N.B.’s bedroom, finding his fingerprints on the blinds of a roo m in a house where he resided would be of limited probative value. Further, as Appel lant’s DNA was found in the crotch of N.B.’s underwear and on a vaginal swab taken from N.B., we find testing other items in the bedroom would similarly have been of limited probative value.Stark Count y , Case No. 2019CA00081 10

{¶25} We find the jury did not lose its way in convicting Appellant o f sexual battery and gross sexual imposition. The convictions are not against t he manifest weight or sufficiency of the evidence. The assignment of error is overru led. {¶26} The judgment of the Stark County Common Pleas Court is affirmed

.

By: Hoffman, P.J. Gwin, J. and Delaney, J. concur