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State of Ohio v. John Daniels

September 21, 2011

STATE OF OHIO
PLAINTIFF-APPELLEE
v.
JOHN DANIELS
DEFENDANT-APPELLANT



Criminal Appeal from Tuscarawas County Court of Common Pleas Case No. 2009 CR 10 0266

The opinion of the court was delivered by: Edwards, J.

Cite as

State v. Daniels,

JUDGES: Sheila G. Farmer, P.J. Julie A. Edwards, J. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

JUDGMENT: Affirmed

{¶1} Appellant, John Daniels, appeals a judgment of the Tuscarawas County Common Pleas Court convicting him of one count of unlawful sexual conduct with a minor (R.C. 2907.04(A)) and one count of sexual imposition (R.C. 2907.06(A)(4)). Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On July 27, 2009, Lee Ann Hagerty checked into the Ramada Limited, a hotel in Strasburg, Ohio. She was accompanied by her three-year-old daughter and her 15-year-old foster daughter, G.C., who she has since adopted. Hagerty and the two girls went to the hotel pool, located next to the registration desk, after 8:00 p.m. They spent approximately two hours at the pool. During this time, Hagerty engaged in conversation with appellant, who was perched on the edge of the hot tub drinking a beer. He specifically asked Hagerty the age of G.C., and Hagerty told him that G.C. was fifteen years old.

{¶3} At about 10:15 p.m., Lee Ann and her younger daughter left the pool area, but allowed G.C. to stay in the pool until closing time. Lee Ann asked the night auditor working at the hotel desk to keep an eye on G.C. G.C. and appellant were the only two people left in the pool area.

{¶4} G.C. and appellant raced in the pool before moving to the hot tub. While in the hot tub, appellant kissed G.C. on the mouth, untied her bikini top and touched her breast with his mouth and digitally penetrated G.C.'s vagina. He also submerged his head under water and performed cunnilingus on G.C.

{¶5} The desk staff of the hotel observed the couple kissing in the hot tub and believed they were too close. A hotel employee wanted to break up the activity in the hot tub as she had been instructed in the past by the manager, so she advised them at about 10:45 p.m. that they had to leave the pool before the 11:00 p.m. closing time so she could add chemicals to the pool water.

{¶6} Appellant and G.C. left the pool together and went to appellant's room, which was down the hall from G.C.'s room. When G.C. failed to return to her room in a timely manner, Lee Ann called the front desk. She was advised that G.C. and a man had become affectionate in the pool and they were asked to leave.

{¶7} Lee Ann then called the Strasburg police. After talking to desk staff and obtaining appellant's hotel room number, Patrolman Evan Fisher knocked on appellant's room door. A voice asked who was at the door, and Patrolman Fisher responded that it was the police. Appellant answered the door completely naked. He then closed the door and Patrolman Fisher heard rustling around inside the room. When appellant opened the door again, he was clothed. G.C. was standing near the bed in the room.

{¶8} When questioned by the officer at the hotel, G.C. did not disclose sexual activity between herself and appellant. Appellant claimed that he had taken a shower and they were going to play cards. When interviewed by a social worker a week later,

G.C. disclosed sexual activity in the hot tub. Before the grand jury she again testified as to sexual activity in the hot tub. However at trial, she testified that in appellant's hotel room, they showered together and he again penetrated her vagina with his finger. She also testified that they laid on the bed naked and appellant rubbed his penis against her body.

{¶9} Appellant was indicted on one count of unlawful sexual conduct with a minor and one count of sexual imposition. The case proceeded to bench trial in the Tuscarawas County Common Pleas Court. The court did not consider evidence of sexual activity which occurred in the hotel room because the grand jury had not considered such evidence and appellant was not placed on notice of such evidence. The court found appellant guilty on both counts and sentenced him to two years community control for unlawful sexual conduct with a minor and 60 days incarceration for sexual imposition. Appellant assigns four errors:

{¶10} "I. THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT GUILTY OF SEXUAL IMPOSITION WITHOUT SUFFICIENT EVIDENCE OF CORROBORATION AS REQUIRED BY THE STATUTE.

{¶11} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE UNLAWFUL SEXUAL CONDUCT WITH A MINOR AND SEXUAL IMPOSITION AT THE TIME OF SENTENCING WHERE THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT.

{¶12} "III. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHERE THERE WAS NO CORROBORATING EVIDENCE AND WHERE THE VICTIM ADMITTED TO GIVING FALSE TESTIMONY TO THE GRAND JURY AS WELL AS TESTIFIED TO A NEW VERSION OF EVENTS ON THE DAY OF TRIAL.

{¶13} "IV. IF THIS COURT FINDS THAT THE ISSUE OF MERGER WAS WAIVED FOR FAILURE OF COUNSEL TO RAISE THE ISSUE AT THE TIME OF SENTENCING, THEN FAILURE TO REQUEST MERGER WAS INEFFECTIVE ASSISTANCE OF COUNSEL."

I

{¶14} In his first assignment of error, appellant argues there was insufficient evidence to corroborate the victim's testimony concerning sexual imposition.

{ΒΆ15} 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 essential elements of the crime proven beyond a reasonable doubt. State v. ...


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