APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 04 0942
THOMAS C. LOEPP, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
EVE V. BELFANCE, Judge.
(¶1} Defendant-Appellant Roger Ball appeals from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
(¶2} Mr. Ball was a foster parent in Summit County and generally had between three and six school-age boys in his care at any given time. On June 23, 2010, one of Mr. Ball's foster children, J.W., born August 18, 1999, presented a Summit County Children Services' supervisor with a letter alleging that Mr. Ball had inappropriately touched J.W. Subsequently, four other boys, C.H., born July 28, 1998, CD., born January 3, 2000, F.B., born March 15, 2001, and R.W., born August 27, 2002, alleged that Mr. Ball had sexually assaulted them as well.
(¶3} As a result of the allegations, Mr. Ball was indicted for one count of rape, one count of gross sexual imposition, and one count of sexual battery involving C.H., one count of gross sexual imposition involving CD., one count of gross sexual imposition involving J.W., and two counts of gross sexual imposition involving F.B. A supplemental indictment was filed alleging one count of gross sexual imposition involving R.W. Subsequently, the State dismissed as duplicative one of the gross sexual imposition counts involving F.B. and the counts were renumbered. The matter proceeded to a jury trial. The jury found Mr. Ball guilty of all seven counts. The trial court merged the rape and sexual battery charges for purposes of sentencing and Mr. Ball was sentenced to an aggregate term of 35 years to life in prison. Mr. Ball has appealed, raising three assignments of error for our review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT'S JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE * * * AND IS NOT SUPPORTED BY THE EVIDENCE.
(¶4} While Mr. Ball frames his argument in terms of challenges to both the sufficiency and weight of the evidence, Mr. Ball only challenges the evidence based upon the credibility of the witnesses and conflicts in the testimony. Accordingly, his argument is actually limited to a challenge to the weight of the evidence. See State v. Hill, 9th Dist. Lorain No. 09CA009709, 2011-Ohio-1154, ¶ 10.
(¶5} In reviewing a challenge to the weight of the evidence, the appellate court
[m]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
(¶6} Mr. Ball was found guilty of one count of rape in violation of R.C. 2907.02(A)(1)(b), one count of sexual battery in violation of R.C. 2907.03(A)(5), and five counts of gross sexual imposition in violation of R.C. 2907.05(A)(4).
(¶7} R.C. 2907.02(A)(1)(b) states that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." R.C. 2907.03(A)(5) provides that "[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he 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."
"Sexual conduct" means * * * anal intercourse[ or] fellatio * * * between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into ** * anal opening of another. Penetration, however slight, is sufficient to complete* * * anal intercourse.
R.C. 2907.01(A). R.C. 2907.05(A)(4) states that "[n]o 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 when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person." "'Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region * * * for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).
(¶8} Both sides presented substantial evidence in support of their competing positions. Moreover, while much of the boys' account of events contained similar information, the accounts varied between boys. Further, with respect to some of the boys, the accounts of the same boy varied somewhat each time the boy was questioned. Thus, the jury was faced with the task of carefully evaluating the testimony of over a dozen witnesses and determining the witnesses' credibility. After a thorough, independent ...