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Date: 01-18-2018

Case Style:



Case Number: 2017CA00052

Judge: William B. Hoffman


Plaintiff's Attorney: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney

Defendant's Attorney:

Description: On November 17, 2016, the Stark County Grand Jury secretly indicted Appellant
on the aforementioned charge. The charge arose out of numerous incidents involving Appellant’s
biological daughter, who was less than thirteen years of age, and taking place between October
23, 2005, and December 31, 2013. Appellant appeared for arraignment on December 2, 2016,
and entered a plea of not guilty to the charge.
{¶3} The trial court conducted an Arnold hearing on January 27, 2017. Megan
Dahlheimer, a pediatric nurse practitioner, and Carrie Schnirring, a psychology assistant, testified
to the statements made by the victim during their examination and treatment. The trial court ruled
limited statements made in the course of treatment and diagnosis would be allowed during the
jury trial.
{¶4} The trial court conducted a hearing on March 2, 2017. Following the hearing,
Appellant withdrew his motion to allow the jury to hear evidence of a prior allegation after the
victim testified to the nature of that prior allegation.
{¶5} The matter proceeded to trial on March 6, 2017. The following evidence was
adduced at trial.
{¶6} The victim testified, when she was approximately three years old, the family was
residing in a trailer in Waynesburg, Ohio. Appellant took her into the bedroom he shared with the
victim’s mother and proceeded to touch her vaginal area with his fingers. The victim recalled the
family moved to her aunt’s house in Canton when she was in the third grade. Appellant engaged
Stark County, Case No. 2017CA00052

in sexual contact with the victim while the family resided in Canton. Appellant continued to abuse
the victim until she was 11 or 11 ½ years old.
{¶7} The sexual contact usually involved Appellant sticking his finger into the victim’s
vagina. When she was small, Appellant would insert one finger into her vagina, but as she
advanced in age, he would use two fingers. Appellant would sometimes lick her vagina.
{¶8} When the victim was nine or ten years old, Appellant took her on an out-of-state
trip in the semi-truck he drove. While it was still light outside, Appellant had the victim take a nap
with him in a bed placed in the back of the truck, and proceeded to have sexual contact with her
{¶9} When the victim was approximately 11 ½ years old, the family was living in Paris,
Ohio. The victim had started her menstrual cycle that year. One day, the victim was upset and
crying because her mother would not let her visit a friend. Her mother told her to go into the
bedroom and take a nap with Appellant. Appellant allowed her to play with his cell
phone. Appellant instructed her to pull down her pants, and she complied. Appellant then licked
her vagina. He also pulled up her sports bra and licked her breasts. Appellant asked her if it felt
good, she replied, “No.”
{¶10} Following a fight with the victim’s mother, Appellant left the home for a period of
time. The victim believed she was safe. She typed, “Mom, dad touched me,” in the Note section
of the cell phone she received for Christmas. She handed the phone to her mother to read what
she had written. Her mother promised to take her to the police, but never did. When Appellant
returned home, the victim was upset and scared. Her mother was happy Appellant had
returned. When he was confronted about the victim’s accusations, Appellant denied having done
anything. Appellant stated the victim must have been thinking of someone else.
{¶11} Although Appellant repeatedly told the victim not to tell anyone, she finally confided
in Miss Woody, her dyslexia teacher at Minerva Middle School. Miss Woody brought her to the
Stark County, Case No. 2017CA00052

school counselor’s office. The school contacted the police and her parents. Her mother asked
her why she told.
{¶12} Stark County Department of Job and Family Services (“SCDJFS”) became
involved in March, 2016. After her mother cancelled appointments at the Children’s Network, Pam
Spencer, a forensic interviewer with SCDJFS, went to the victim’s school to conduct an
emergency interview. Thereafter, the victim was removed from the home and placed with
relatives. She was subsequently placed in a foster home.
{¶13} On April 14, 2016, the victim, who was then 13 years old, was examined by Megan
Dahlheimer, a nurse practitioner at Akron Children’s Hospital. The victim reported to Dahlheimer
Appellant had “molested” her five or six time beginning when she was 2 or 3 years old, and ending
when she was 11 or 11 ½ years old. The victim stated Appellant touched her “privates” with his
fingers and his tongue, and she had experienced pain while it was happening and occasional
bleeding following the incidents. Dahlheimer completed a physical examination of the victim and
reported no abnormal physical findings. Dahlheimer explained she was not surprised by the lack
of physical findings given only 3% of the patients she sees who have reported sexual abuse
actually show physical trauma. Further, Appellant’s physical abuse of the victim stopped
approximately two years before it was reported to someone outside the family. Dahlheimer noted
the victim provided a clear and detailed disclosure. Dahlheimer concluded the victim had been
sexually abused.
{¶14} Carrie Schnirring, a psychology assistant at Northeast Ohio Behavioral Health,
conducted a sexual abuse evaluation. Schnirring met with the victim’s mother in May, 2016, and
began sessions with the victim on June 29, 2016. Schnirring met with her four times. The victim
informed Schnirring Appellant had “molested” her. The victim described the sexual acts
committed on her by Appellant as well as the places the acts occurred. After interviewing the
victim, Schnirring reviewed the notes from the forensic interview and concluded the victim’s
reporting to her was consistent with the forensic interview. Schnirring found no hidden agenda or
Stark County, Case No. 2017CA00052

secondary motive for the victim’s accusations. Schnirring noted the victim loved Appellant and
did not want him to go to jail, but recognized what he had done to her was very wrong. Schnirring
diagnosed the victim with adjustment disorder with anxiety and depression. When the victim
described the events, she closed her eyes and shook her head “as if she was trying to get those
memories out of her head.” Transcript of Proceedings, Vol. II at 34. She was able to imitate the
sound of Appellant slurping.
{¶15} After the completion of the forensic interview, Detective Von Spiegel interviewed
Appellant. Appellant denied any sexual contact with the victim.
{¶16} At the close of the state’s case, Appellant moved for acquittal pursuant to Crim. R.
29. The trial court denied Appellant’s motion. Thereafter, Appellant rested without calling any
witnesses on his own behalf.
{¶17} After hearing all the evidence and deliberating, the jury found Appellant guilty of
one count of sexual battery. Appellant appeared for sentencing on March 15, 2017. The trial
court imposed a period of incarceration of 5 years. The trial court adjudicated Appellant a Tier III
sexual offender. The trial court memorialized Appellant’s conviction and sentence via Judgment
Entry filed March 24, 2017.
{¶18} It is from his conviction and sentence Appellant appeals, raising as his sole
assignment of error:


{¶19} The legal concepts of sufficiency of the evidence and weight of the evidence are
both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–
Stark County, Case No. 2017CA00052

52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the
sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991)
at paragraph two of the syllabus, in which the Ohio Supreme Court held, “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.”
{¶20} In determining whether a verdict is against the manifest weight of the evidence,
the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses, and determines
whether in resolving conflicts in evidence the jury ‘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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶21} “The weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, at
paragraph one of the syllabus. The trier of fact is in the best position to judge the credibility of the
{¶22} Appellant was convicted of one count of sexual battery, in violation of R.C.
2907.03(A)(5), which reads:

Stark County, Case No. 2017CA00052

(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 parent, or a stepparent, or guardian, custodian, or
person in loco parentis of the other person.

{¶23} Appellant asserts the state “failed to present sufficient evidence to meet each and
every element of these offenses [sic], and the testimony that was presented was instead
contradictory, biased, and crucially so lacking in credibility and cross-corroboration that the State’s
own witnesses admitted they lacked concrete evidence to support the accusations made by [the
victim].” Brief of Appellant at 3. Appellant also argues the allegations made by the victim at trial
were contradicted by the testimony of Schnirring and Dahlheimer. We disagree.
{¶24} Although there was no physical evidence of abuse, Dahlheimer explained the last
incident of sexual abuse occurred several years prior to her examination of the victim, and the
lack of physical evidence was not uncommon in sexual abuse victims. The victim’s testimony
was consistent with the statements she made to both Dahlheimer and Schnirring. The victim
described how Appellant touched her vagina, licked her vagina, and inserted his fingers into her
vagina. She recalled where she was living at the time of the different incidents as well as in which
room of the home the abuse occurred. She remembered the abuse which took place when she
accompanied Appellant on an out of state trip in the semi-truck he drove. Schnirring compared
the details the victim reported to her with the notes of the forensic examiner, and found the victim
was consistent and included idiosyncratic details each time.
{¶25} The jury was free to accept or reject any and all of the evidence offered by the
parties and assess the witnesses' credibility. “While the jury may take note of the inconsistencies
and resolve or discount them accordingly * * * such inconsistencies do not render defendant's
conviction against the manifest weight or sufficiency of the evidence.” State v. McGregor, 5th Dist.
Ashland No. 15–COA–023, 2016–Ohio–3082, 2016 WL 2942992, ¶ 10, citing State v. Craig, 10th
Stark County, Case No. 2017CA00052

Dist. Franklin No. 99AP–739, 2000 WL 297252 (Mar. 23, 2000). Indeed, the jurors need not
believe all of a witness' testimony, but may accept only portions of it as true. Id. Our review of the
entire record reveals no significant inconsistencies or other conflicts in the State's evidence which
would demonstrate a lack of credibility of the witnesses sufficient to find the jury lost its way to
finding Appellant guilty.

Outcome: Based upon the foregoing, we find the jury's verdict was supported by sufficient evidence and was not against the manifest weight of the evidence.

Appellant's sole assignment of error is overruled.

The judgment of the Stark County Court of Common Pleas is affirmed.

Plaintiff's Experts:

Defendant's Experts:


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