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State v. Zimmer

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602862

          ATTORNEY FOR APPELLANT Daniel J. Misiewicz Law Office of Daniel J. Misiewicz

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Andrew F. Rogalski Assistant County Prosecutor

          BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Celebrezze, J.



         {¶1} Leo A. Zimmer ("Zimmer") appeals his convictions for various sexual offenses and assigns the following errors for our review:

I. The trial court erred in denying defendant-appellant's motion for acquittal pursuant to Ohio Criminal Rule 29.
II. Defendant-appellant's convictions are against the manifest weight of the evidence.

         {¶2} Having reviewed the record and pertinent law, we affirm. The apposite facts follow.

         {¶3} On February 9, 2016, Zimmer was indicted for various sexual offenses relating to A.C., whose date of birth is April 2, 1995, and A.B., whose date of birth is October 26, 1991. The incidents were alleged to have occurred almost exclusively at Zimmer's family's home on Pershing Avenue in Cleveland ("the Pershing house") between 1999 and 2009.

         {¶4} On July 1, 2016, after a bench trial, the court found Zimmer guilty of two counts of rape in violation of R.C. 2907.02(A)(1)(b); three counts of rape in violation of R.C. 2907.02(A)(2); five counts of kidnapping in violation of R.C. 2905.01(A)(4); and one count of gross sexual imposition ("GSI") in violation of R.C. 2907.05(A)(4).

         {¶5} On August 18, 2016, the court sentenced Zimmer to two terms of life in prison for rape of a child under the age of 13; ten years in prison each for three counts of forcible rape; and ten years in prison for the kidnapping associated with the GSI. The other kidnapping convictions merged into the associated rape convictions, and the GSI merged into the associated kidnapping conviction. The court ordered all sentences to be served concurrently.

         {¶6} It is from these convictions that Zimmer appeals.

         Sufficiency of the Evidence

         {¶7} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the prosecution's evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134.

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.

State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

         {¶8} In the case at hand, Zimmer argues that the state "failed to present any evidence that [A.C. and A.B.] were ever moved or restrained in any way" in support of his kidnapping convictions. Zimmer was convicted of five counts of kidnapping in violation of R.C. 2905.01(A)(4), which states that "[n]o person, * * * in the case of a victim under the age of thirteen * * * by any means, shall remove another from the place where the other is found or restrain the liberty of the other person, * * * [t]o engage in sexual activity * * * with the victim against the victim's will * * *."

         {¶9} In State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14, this court held that, concerning merged offenses, if "there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the appellate court need not consider the sufficiency of the evidence on the count that is subject to merger because any error would be harmless * * *."

         {¶10} Pursuant to Ramos, therefore, we need only consider the sufficiency of the evidence concerning Zimmer's kidnapping conviction associated with the GSI. This kidnapping is charged in count eight of the indictment, which states that, between April 1999 and April 2001, Zimmer restrained A.C.'s liberty "by any means * * * for the purpose of engaging in sexual activity * * *." The indictment further states that A.C. was four to five years old when this kidnapping occurred. It is important to note that, because the victim was under the age of 13, the state need not prove that the kidnapping was the result of force, threat, or deception.

         {¶11} At trial, A.C. testified as follows about this incident.

         {¶12} A.C. first met Zimmer when she was about five years old. A.C. spent "a lot of time" at the Pershing house, because A.C.'s aunt was dating Zimmer. From the time she was in second grade to the time she was in ninth grade, A.C. and her mom lived with Zimmer and A.C.'s aunt in the Pershing house. According to A.C, other people also lived there, including Zimmer's parents, Zimmer's siblings and their spouses, and A.B., who is Zimmer's great-niece.

         {¶13} A.C. did not specifically remember the first time that Zimmer touched her inappropriately, but she testified that "I have certain memories of me sitting on his lap, and if I were to have a dress on or a skirt, his hand reaching up and just touching inappropriately in ways, and * * * just fondling through, like, my clothes or under my dresses if I were to be close to him or sitting on his lap."

         {¶14} A.C. recalled a specific incident that occurred at the home of Zimmer's cousin[1] when A.C. was "about" in the second grade. "I was supposed to be sleeping on the couch with my cousin in the living room while I believe [the adults] were playing cards in the dining room, slash, kitchen. And [Zimmer] came to check on us, and we weren't sleeping yet. And I do remember him putting his hand in my pants that night. * * * He played on the outside of my vagina."

         {¶15} This court has held that, in relation to kidnapping, "a child's liberty may be restrained through the inherent social/psychological pressures that accompany" an adult-child familial relationship. State v. Weems, 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, ¶ 25. See also State v. Diaz, 8th Dist. Cuyahoga No. 103878, 2016-Ohio-5523. Given the tender age of A.C. when this GSI occurred, the fact that Zimmer is 17 years older than A.C, and A.C.'s testimony that she was part of "the ...

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