[Cite as State v. Burns , 2012-Ohio-2536.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24174

v. : T.C. NO. 10CRB4212 10CRB4265 MAURICE BURNS : (Criminal appeal from Defendant-Appellant : Municipal Court)

:

. . . . . . . . . . O P I N I O N

Rendered on the 8th day of June , 2012.

. . . . . . . . . . STEPHANIE L. COOK, Atty. Reg. No. 0067101, Chief Prosecutor, City of Dayton, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee JOHN C. MEEHLING, Atty. Reg. No. 0077630, 1105 Wilmington Avenue, Dayton, Ohio 45420 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Maurice D. Burns was found guilty af ter a bench trial in the Dayton2 Municipal Court of unlawful re straint, sexual imposition, assa ult, and domestic violence. The charges stemmed from an a ltercation between Burns and his former girlfriend, Katie. 1 The trial court merged the assault charge with the domestic violence charge, and it sentenced Burns to 180 days in jail for the domestic violen ce. Burns was also sentenced to 60 days in jail for the sexual imposition and to 60 days in jail (with seven days su spended) for unlawful restraint. For each offense, Burns was given cr edit for 53 days that he had already spent in jail. With respect to the sexual imposition charge, Burns was designed a Tier I sex

offender. {¶ 2} Burns appeals from his convictions, cla iming that the trial court should have granted his Crim.R. 29(A) motion for acquittal for the sexual imposition charge and that all

of his convictions were based on insufficient evidence and ag ainst the manifest weight of the evidence. For the following reasons, the trial court’s judgment will be affirmed. I. Facts and Procedural History {¶ 3} The State’s principal witness at tria l was Burns’s former girlfriend, Katie. Her testimony established the following facts. {¶ 4} Burns and Katie lived together, on and off, for six years, and they had two young children together. The family lived in a two-story home in Dayton, along with a roommate who lived in a portion of the ba sement. In May 2010, Burns and Katie had recently ended their relationship, but they conti nued to reside together while one of them made plans to move out. {¶ 5} At approximately 12:30 p.m. on May 10, 2010, Burns and Katie got into an

1 For privacy reasons, we will refer to the complain ant by her first name.3 argument about a text message that Katie had made severa l weeks before to Burns’s employer, which had resulted in Burns’s being fired from that job. Burns apparently had just learned about the message , and he began looking thr ough Katie’s cell phone. Katie followed him through the house, trying to get her phone back. {¶ 6} Burns went down to the basement, wh ere he had an office, went into the office, and closed the door. Katie turned off the office light, using the switch on her side of the door. Burns then pushed the door open, cau sing Katie to stumble. Burns grabbed Katie’s shoulders, “threw” her over the side of a couch (which was to the left of the door), resulting in Katie’s lying on her back with her legs over the arm of the couch. Burns held

Katie down with his hands. Burn s told Katie that if she couldn’t “leave him alone then he’ll give me what I want.” Katie understood Burns to mean that he would try to have sex with

her. {¶ 7} Katie began to squirm on the couc h and told him to stop. While Burns held Katie down, he pulled he r underwear and sweat pants down to her knees. Burns flipped Katie off the couch, so that her knees were on the floor and her face was in the

cushions. Burns continued to hold her down with his forearm. Katie was soon able to tell that Burns was naked from the waist down, and sh e “felt him in his privates touch me.” Katie straightened her body and crossed her legs. She squirmed and told him to stop, while Burns tried to separate her legs. Burns then let Katie get up, and she ran upstairs. {¶ 8} Once upstairs, Katie grabbed a camer a and went into the bathroom. She testified, “I knew I hurt so I wanted to see what I could get pictures of.” Burns followed her to the bathroom, but soon left. Afterward, Katie photographed scratc hes on her right leg,4 buttocks, and right wrist and hand, as well as a rug burn on her left knee. (These were also photographed later that day by the police.) Sh e testified that her wr ists, arms, hands, and legs were in pain. Katie th en grabbed her purse and left the house with the intention of going to the police; she testif ied that Burns still had her phone. {¶ 9} As Katie drove from the house, she b ecame shaky and started to cry. She pulled into a Walgreens parking lot. After she calmed down, she decided to go back to the house, pack a bag, and get the children before Bu rns could take them elsewhere, and then go to the police station. {¶ 10} Katie returned home, went upstairs, and began to put belongings into a duffel bag. Burns came into the room and said to her, sarcastically, “Oh, you are leaving. That’s sad.” He asked where she was going and how she would get there; he indicated that she would not be permitted to take the car that she usually drove, which was titled in Burns’s name. When Katie brought her packed bag downstairs to the living room and was getting ready to gather the children, Burns tried to take her car keys from her shirt pocket. Katie turned away from him, but he wrestled her to th e floor, restrained her, and sat on her back. Burns got the keys from her pocket and th en called 911. Katie heard Burns tell the dispatcher that he was in a domestic altercation and that he had to restrain Katie because she was being physically aggressive. Katie yelled that Burns had tried to rape her. She repeatedly screamed at Burns to get off of her. {¶ 11} The police arrived within minutes. Burns called the couple’s five-year-old daughter from her bedroom and had her answer the door for the police. Once the police entered, Burns got off of Katie, and she was handcuffed by the police and seated on the5 living room couch. A couple of minutes later, the handcuffs were removed, and Katie was

taken outside to be interviewe d by one of the officers; Burns remained inside the house and spoke with another officer. A female de tective came and took photographs of Katie’s injuries. (Katie testified that she later developed bruises on her wrists and legs and that she photographed those bruises, but the photos were not provided to the State.) Approximately an hour after the police a rrived, Burns was arrested. {¶ 12} Dayton Police Officers Ferdinand Leal and Officer David Klawon testified at trial that they were dispatched to Burn s’s residence on a report of a boyfriend/girlfriend dispute. Klawon stated that the complainant reported that the complainant’s girlfriend was attacking him and trying to steal his car. When the officers arrived, they heard a woman screaming; they came in the unlocked front door . Upon entering the house, they saw Katie lying on her stomach with Burns sitting on top of her, holding her hands; Katie was crying and screaming, “Get off of me!” Burns told the officers that Katie was out of control. Based on the dispatch report, which had also indicated that Katie was out of control and violent, Officer Leal handcu ffed her, stood her up, and had he r sit on the couch. Officer

Leal testified that Burns was calm. {¶ 13} Officer Leal spoke with Burns afte r Katie was taken outside the house by Officer Klawon. Burns did not complain of any injuries, and Leal did not observe any injuries on Burns. Later, Officer Leal took photos of the scratches on Katie’s right leg, buttocks, and right wrist; a female officer photographed the rug burn on Katie’s buttocks. {¶ 14} Burns testified on his ow n behalf. Consistent w ith Katie’s testimony, he indicated that the dispute bega n when he took Katie’s phone in order to transfer contact6 information from her phone to his. Katie cam e downstairs to ask Burns for her phone back, and Burns had responded that she could have it when he was done transferring the contacts.

Burns indicated that Katie followed him around the house while he had her phone. He agreed with Katie’s testimony that he eventually walked to his office in the basement and closed the door, and that Katie turned off the office light. {¶ 15} According to Burns, after Katie turned off the office light, he stepped out of his office with the phones, Katie spat on him a nd called him names, a nd he went into the kitchen with the phones. While in the kitche n, Burns reminded Katie that she had a meeting from 1:00 to 3:00 p.m. that day. Katie again asked for her phone, and Burns refused to give it to her. Katie cursed at Burns and left for her meeting. {¶ 16} Burns further testified that Katie returned after 30-45 minutes; at that time, Burns was sitting on the couch with the couple’s infant son. Burns saw Katie go upstairs, and he heard drawers opening and closing. Bu rns went upstairs to see what she was doing, and he asked if she were leaving. Katie di d not respond, so Burns went back downstairs. Katie soon came back downstairs, pumped breast milk, and then went upstairs for the bag. When she returned downstairs, Burns told her, “Well if you can’t tell me where you’re going you have to give me the keys because you ar e not insured on the car and depending on where you take the car I need to know if you leave.” Burns explained that most of Katie’s family lived in Columbus, Ohio, and that Katie did not have insurance for the car. Burns saw Katie’s car keys sticking out of her pocket, and he grabbed them. Burns took the car key from the key ring and returned the house key to Katie. {¶ 17} Burns testified that Katie got upset and became violent. He stated that she7 was “kicking and swinging” at him, and that he got behind her to stop it. (On cross-examination, Burns acknowledged that Ka tie did not “make contact” with him when she swung and kicked.) Burns was concerned that they both would be arrested, because they previously had an altercation which led to criminal charges. Burns put Katie “in an

arm bar” and called 911. Burns te stified that he was not injure d by Katie. He testified on cross-examination that, while he waited for the police, he asked his daughter to unlock the front door and then sent her back upstairs. {¶ 18} Burns described the officers’ arrival a nd their investigation of the incident. Burns stated that he had requested a scraping of his fingernails and expressed concern that Katie had caused the injuries to hersel f. No fingernail scraping was done. {¶ 19} Burns acknowledged that he took Katie ’s cell phone, but he denied that he threw her onto the couch, pulled dow n her pants, and tried to se xually assault her. Burns further denied that he had caused the inju ries reflected in the photographs of Katie. {¶ 20} Burns was subsequently charged with unlawful restraint, assault, domestic violence, and sexual imposition. After a bench trial, he was convict ed of all counts and sentenced, as described above. {¶ 21} Burns appeals from his convictions, rais ing three assignments of error. We will address the first and third assignments together. II. Sexual imposition charge {¶ 22} Burns’s first and third assignments of error are directed to his conviction for sexual imposition. They state:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN8 OVERRULING APPELLANT’S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AND THE

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE FOR THE CHARGE OF SEXUAL IMPOSITION

THE TRIAL COURT ERRED WHEN IT FOUND DEFENDANT GUILTY OF SEXUAL IMPOSITION, IN CONTRAVENTION OF R.C. 2908.06(B). {¶ 23} In his first and third assignments of error, Burns claims that the trial court erred in denying his Crim.R. 29(A) motion for a judgment of acquittal on his sexual imposition charge, and he argues that his convic tion for that offense wa s against the manifest weight of the evidence. Burns further cla ims that his conviction for sexual imposition violates R.C. 2907.06(B), which require s corroboration of that offense. {¶ 24} When reviewing the denial of a Cr im.R. 29(A) motion, an appellate court applies the same standard as is used to re view a sufficiency of the evidence claim. State v. Thaler, 2d Dist. Montgomery No. 22578, 2008-Ohio-5525, ¶ 14. “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of

law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. When reviewing whether the State has presente d sufficient evidence to suppor t a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the e ssential elements of th e crime proven beyond a9 reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be dist urbed on appeal unless “reasonabl e minds could not reach the conclusion reached by the trier-of-fact.” Id. {¶ 25} In contrast to the sufficiency of the evidence standard, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evid ence is more believabl e or persuasive.” Wilson at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 26} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However, we may deter mine which of several competin g inferences suggested by the evidence should be preferred. Id. {¶ 27} The fact that the evidence is subject to different interpretations does not render the conviction against the mani fest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485 N.E.2d10 717. {¶ 28} R.C. 2907.06, the sexual imposition statut e, states that “[n]o person shall have sexual contact with another, not the s pouse of the offender * * * when * * * (1) [t]he

offender knows that the sexual contact is offensiv e to the other person, * * * or is reckless in that regard.” R.C. 2907.06(A)(1). “Sexual c ontact” is defined as “any touching of an erogenous zone of another, including wit hout limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breas t, for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). The sexual impos ition statute further provides, “No person shall be convicted of a violati on of this section solely upon the victim’s testimony unsupported by other evidence.” R.C. 2907.06(B). {¶ 29} The corroboration requirement in R.C. 2907.06(B) “does not mandate proof of the facts which are the very substance of the crime charged.” State v. Economo , 76 Ohio St.3d 56, 59, 666 N.E.2d 225 (1996). “The corrobora ting evidence necessary to satisfy R.C. 2907.06(B) need not be independently sufficient to convict the accused, and it need not go to every essential element of the crime charged. Slight circumstances or evidence which tends to support the victim’s testimony is satisfactory. The corr oboration requirement of R.C. 2907.06(B) is a threshold inquiry of legal sufficiency to be determined by the trial judge, not a question of proof, which is th e province of the factfinder.” Id . at 60. {¶ 30} Burns argues that the trial court should have granted his Crim.R. 29(A) motion and that his conviction for sexual impos ition was against the manifest weight of the evidence, because Katie’s testimony at trial was unbelievable. He emphasizes that Katie

could not describe in detail how Burns held her down on th e basement couc h, particularly11 while allegedly lowering his pants. He further emphasize s that the police officer’s photographs of the basement did not show the area in disarray, and that Katie could not explain why the coffee table had not been disturbed during the a lleged assault. Burns also argues that Katie should have had marks or redness on her f ace from having her face pressed into the couch, and he asserts th at Katie could have inflicted her injuries on herself during a short time period that she was alone in the hous e during the officer’s investigation. Finally,

Burns asserts that he could not be convicted of sexual imposition, because there were no corroborating witnesses, DNA evidence, or physical evidence. {¶ 31} In this case, Katie testified that Burns threw her onto the basement couch and threatened to touch her sexually. She described how Burns pu lled down her pants and underwear while she squirmed on the couch, how he then turned her over so that her knees

were on the floor and her face was in the cush ions, and how she felt his bare “privates” touch her in an attempt to have intercourse with her. Katie testified that she told Burns to stop and that she straightened her body and cr ossed her legs in order to prevent him from penetrating her. Katie further testified that Burns tried to uncross her legs and separate them. The State presented photos of a rug bur n on Katie’s left knee, and scratches on her right leg, buttocks, and right wrist and hand. {¶ 32} Katie’s testimony, if be lieved, was sufficient to prove beyond a reasonable

doubt that Burns had sexual contact with Katie when he knew that the sexual contact was offensive to her. The photographs of the scratches and the rug burn tended to support Katie’s description of the a ssault and, thus, were sufficien t to satisfy the corroboration requirement of R.C. 2907.06(B). The trial court did not err in denying Burns’s Crim.R.12 29(A) motion. {¶ 33} Moreover, Burns’s conviction for sexual imposition was not against the manifest weight of the evidence. The credibility of the witnesses and the weight to be given to their testimony were matters for the trial court, as the trier of fact, to determine. The trial court did not lose its way simply because it chos e to believe the State’s version of the events, which it had a right to do. {¶ 34} The first and third assign ments of error are overruled. III. Unlawful Restraint, Domestic Violence, and Assault {¶ 35} Burns’s second assignment of error states

THE TRIAL COURT ERRED WHEN IT FOUND DEFENDANT GUILTY OF UNLAWFUL RESTRAINT, DOMESTIC VIOLENCE, AND ASSAULT, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 36} In his second assignment of error, Burns claims that his convictions for unlawful restraint, domestic viol ence, and assault were against the manifest weight of the evidence. Although not a part of his assignment of error, he further argues that the State failed to present sufficient evidence to support these convictions, because Katie’s testimony

was not credible. {¶ 37} Katie testified at trial that she and Burns had two children together, and that they had lived together, on and off, for six years. During their altercation on May 10, 2010, Burns pushed Katie onto the ba sement couch and held her down while he attempted to sexually assault her. Katie testified that her wrists, arms, hands, and legs were hurt by Burns’s action, and the State presented evidence that Katie was scratche d and sustained a rug13 burn during Burns’s attack. Katie further testified that Burns later wrestled her to the floor, held her arms so that she couldn’t move, and sat on her until the police arrived. Officers Leal and Klawon observed Burns’s pinning Katie on the floor and heard Katie crying and screaming at Burns to get off of her. {¶ 38} Construed in the light most favorable to the State, the State’s evidence was sufficient to prove that Burns committed domestic violence, assault, and unlawful restraint. Moreover, his convictions did not constitute a manifest injusti ce, and the trial court did not lose its way when it chose to credit that Stat e’s evidence. Burns’s convictions for domestic violence, assault, and unlawfu l restraint were not against the manifest weight of the

evidence. {¶ 39} The second assignment of error is overruled.

IV. Conclusion {¶ 40} The trial court’s judgment will be affirmed.

. . . . . . . . . . GRADY, P.J. and HARSHA, J., concur. (Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Stephanie L. Cook John C. Meehling Hon. Daniel G. Gehres