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State v. Emerine

Court of Appeals of Ohio, Eleventh District, Trumbull

March 31, 2017

STATE OF OHIO, Plaintiff-Appellee,
JONATHAN R. EMERINE, Defendant-Appellant. v.

         Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 00693.

          Dennis Watkins, Trumbull County Prosecutor, and Deena L DeVico, Assistant Prosecutor, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

          Robert J. Rohrbaugh, II, Robert J. Rohrbaugh, II, L.L.C., (For Defendant-Appellant).



         {¶1} 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 affirm.

         {¶2} 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 trial.

         {¶3} A jury trial commenced on March 28, 2016.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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 one hand.

         {¶14} 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 her ...

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