Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Celebrezze,
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE
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.
Having reviewed the record and pertinent law, we affirm. The
apposite facts follow.
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
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).
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.
It is from these convictions that Zimmer appeals.
of the Evidence
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.
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
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 * * *."
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 * * *."
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.
At trial, A.C. testified as follows about this incident.
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.
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."
A.C. recalled a specific incident that occurred at the home
of Zimmer's cousin 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
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