Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2015 CR 00693.
Watkins, Trumbull County Prosecutor, and Deena L DeVico,
Assistant Prosecutor, N.W., Warren, OH 44481 (For
J. Rohrbaugh, II, Robert J. Rohrbaugh, II, L.L.C., (For
COLLEEN MARY OTOOLE, J.
Appellant, Jonathan R. Emerine, appeals from the May 2, 2016
judgment of the Trumbull County Court of Common Pleas finding
him guilty of rape and three counts of gross sexual
imposition following a jury trial and sentencing him to 31
and one half years to life in prison. Appellant was also
labeled a Tier III sex offender. On appeal, appellant asserts
the trial court erred in not providing lesser included
offense instructions and alleges his conviction is against
the manifest weight of the evidence. Finding no error, we
On September 4, 2015, the Trumbull County Grand Jury indicted
appellant on one count of rape, a felony of the first degree,
in violation of R.C. 2907.02(A)(1)(b) and (B), with a factual
finding pursuant to R.C. 2971.03(B)(1)(c) that he purposely
compelled the victim to submit by force or threat of force;
and three counts of gross sexual imposition, two felonies of
the third degree and one felony of the fourth degree, in
violation of R.C. 2907.05(A)(1)(4), (B), and (C)(1)(2).
Appellant was represented by counsel, entered a not guilty
plea at his arraignment, and waived his right to a speedy
A jury trial commenced on March 28, 2016.
Appellee, the state of Ohio, presented nine witnesses to
testify on its behalf: K.M., the 13-year-old victim; Amanda
Coleman, K.M.'s mother; S.M., the 11-year-old victim;
Bridget Coleman, S.M.'s mother; Sergeant Jennifer Carr,
with the Howland Township Police Department
("HTPD"); Detective Tony Villanueva, with the HTPD;
Janet Gorsuch, a nurse practitioner at Akron Children's
Hospital; John Melville, M.D., a child abuse pediatrician and
Site Director of the Child Advocacy Center at Akron
Children's Hospital; and Mary Wocjiak, an investigator
with Trumbull County Children Services.
This case involves two young female victims, 11-year-old S.M.
and 13-year-old K.M. Regarding S.M., on April 2, 2015, she
spent the night with her aunt, Cassie Emerine
("Cassie"). Cassie lived at her Howland Township
home with appellant (Cassie's husband and S.M.'s
uncle) and her infant son. Cassie and S.M. had a very close
relationship. They had lived together for several years and
had regular sleepovers in subsequent years. On the night at
issue, around midnight, S.M. was awake on the couch. She was
wearing a bra, panties, and a long t-shirt. Appellant entered
the room and asked S.M. if she wanted to watch a T.V. show on
his cell phone. The others in the home were asleep.
Appellant and S.M. laid on the couch together. Appellant then
asked S.M. to go with him to the basement to help him do
laundry. In the basement, appellant began tickling S.M. on
her breasts over her t-shirt. S.M. indicated appellant sort
of pushed her/sat her down on a pile of laundry, straddled
over her, and continued tickling her. S.M. was
"uncomfortable." She tried to get up from
underneath him but she was not successful. She asked
appellant to stop several times and he finally did.
Appellant and S.M. went back upstairs. They laid on the couch
together to finish watching the show on appellant's cell
phone. Appellant began touching S.M., skin to skin, on her
breast with one hand and her vaginal area with the other.
S.M. testified that appellant initially rubbed her vaginal
area with his hand before getting rougher. Appellant ended up
grabbing S.M.'s breast and pushing his finger into her
vagina. She told him to stop because it hurt. However,
appellant continued rubbing her breast and vaginal area for a
while. He told S.M. that when Cassie leaves for work in the
morning, they could go into the bedroom together.
S.M. was scared. She immediately messaged her mother, Bridget
Coleman, to come pick her up. While getting dressed and
waiting for her mom, S.M. said that appellant continued to
bother her. He pushed her knees up to her shoulders and
pinned her down on her back. He asked her why she was getting
dressed and why she was leaving. When Bridget arrived, S.M.
left. At that time, S.M. was afraid to tell her mother what
appellant had done to her for fear that it would break up the
family. S.M. did not tell anyone until three months later
when asked by her mother if appellant had touched her, after
learning that appellant had touched S.M.'s cousin, K.M.
A criminal investigation began on July 3, 2015. At the HTPD,
S.M. told the same version of events of what had taken place
to Sergeant Carr. Detective Villanueva and Sergeant Carr
spoke about the incident. S.M. was also interviewed about a
week later by Investigator Wocjiak as part of a medical and
emotional examination. S.M. also gave the same account of
what had happened to Wocjiak. S.M. provided very good detail
and created a timeline that described how the incident
progressed through the night.
Nurse Practioner Gorsuch conducted a physical examination of
S.M. The tests for pregnancy and sexually transmitted disease
were negative. The exam of S.M.'s vaginal area and hymen
were normal. Gorsuch testified that little girls' hymens
are tender to the touch and are covered by the labia majora
to protect them from any contact by outside objects including
underwear or clothing. Gorsuch indicated that nothing would
touch the hymen and cause pain unless it is purposefully
touched. Gorsuch recommended S.M. receive trauma-focused
cognitive behavioral counseling.
Dr. Melville testified that a normal medical examination is
present in at least half of all child sexual assault cases
even those resulting in pregnancy. Dr. Melville stated the
vagina heals very quickly without a scar or other sign of
injury. In this case, over three months had passed between
the incident and the medical exam. Dr. Melville further
indicated that a girl of S.M.'s age would not have pain
upon touching her vaginal area unless her hymen had been
touched and penetration had occurred.
Regarding K.M., on June 26, 2015, she was babysitting her
one-year-old cousin at Cassie's and appellant's home
in Howland Township. Like S.M., Cassie is K.M.'s aunt and
appellant is K.M.'s uncle. K.M. watched the baby from
8:00 a.m. when Cassie left for work until appellant came home
sometime in the afternoon. Appellant sat by K.M. on the couch
and asked her what kind of bra she was wearing. K.M.
responded that she had on a sports bra. Appellant reached
over, pushed his hand through the side of her tank top and
bra, and began touching K.M.'s breast, skin to skin.
Appellant pulled his hand out, reached back in, and began
grabbing K.M.'s breast, skin to skin.
K.M. managed to pull away. She scooted over to the other side
of the couch. Appellant followed and scooted over next to
her. K.M. slid down off the couch to sit on the floor
instead. Appellant followed, slid off the couch, and sat next
to her on the floor. K.M. covered herself up with her arms.
She was scared that appellant might try to touch her again.
Appellant grabbed K.M.'s arms with one hand and held them
to her chest. This forced K.M. to slide down. She was lying
on her back with her arms pinned down to her chest. Appellant
was on his knees behind K.M. pinning her to the floor with
According to K.M., appellant then used his other hand to pull
up the front of the waistband of her leggings. He looked down
her pants at her pubic area. K.M. managed to get one hand
free and tried covering up her pubic area. Appellant asked
her if she shaved down there. K.M. asked appellant to stop at
least once or twice. However, appellant continued to try
pulling her hand away from her pubic area while still pinning