Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2016 CR 00268
Watkins, Trumbull County Prosecutor, and Deena L DeVico,
Assistant Prosecutor, (For Plaintiff-Appellee).
Kenneth J. Lewis, (For Defendant-Appellant).
R. WRIGHT, J.
Appellant, Gilbert Skeins, Jr., appeals his conviction for
rape and gross sexual imposition involving a minor. We
Skeins had one child with Joy Slusher and she was pregnant
with their second child in February 2016. Skeins and Slusher
resided with Slusher's mother and stepfather in Niles,
Ohio. On February 14, 2016, Slusher went shopping with her
parents and they left Skeins home alone with the children,
which included Slusher's child from another relationship,
Slusher's child with Skeins, and Slusher's niece,
A.K., who was visiting and had slept over the night before
with her cousins. A.K. was five years old at the time.
While the kids were watching a movie, Skeins told A.K. to go
to the bathroom, which she did. Skeins followed her in and
closed the door. He then made A.K. touch his penis with her
hands and then cover her eyes while he stuck it in her mouth.
Upon returning from the store, A.K. told her grandmother,
Davalyne Paden, what Skeins did to her, and upon being
confronted, Skeins denied the allegations. He testified at
trial and claimed that A.K. was lying.
Skeins was indicted in April of 2016 and charged with gross
sexual imposition, a third-degree felony, and rape, a
first-degree felony with two factual specifications, i.e.,
the victim was less than ten years old at the time of the
offense and the victim was compelled to submit by force or
the threat of force under R.C. 2971.03(B)(1)(b) and (c).
The jury found Skeins guilty of rape in violation of R.C.
2907.02(A)(1) and gross sexual imposition in violation of
R.C. 2907.05(A)(4) & (C)(2) and found the two factual
specifications were proven. Skeins was sentenced to 60 months
for the gross sexual imposition conviction and a mandatory 25
years to life for rape. The court ordered the sentences to
run concurrently and ordered him to register as a Tier III
Skeins raises two assignments of error that challenge his
convictions as not supported by sufficient evidence and his
sentence as too harsh.
Skeins' first assigned error asserts:
"The evidence presented at trial was legally
insufficient to support conviction of rape, gross sexual
imposition and unlawful sexual conduct with a minor."
Although presented as a challenge to the sufficiency of the
evidence, Skein's first assignment of error raises
manifest weight issues in light of his argument that the
victim made up the allegations against him. Thus, we consider
whether his convictions are supported by the manifest weight
of the evidence, which necessarily encompasses his
sufficiency claim as well. State v. Boyd, 6th Dist.
Ottawa No. OT-06-034, 2008-Ohio-1229, ¶24; State v.
McGowan, 7th Dist. Jefferson No. 14JE37, 2016-Ohio-48,
"'"[Sufficiency" is a term of art meaning
that legal standard which is applied to determine whether the
case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of
law.' Blacks Law Dictionary (6 Ed.1990) 1433. * * * In
essence, sufficiency is a test of adequacy. Whether the
evidence is legally sufficient to sustain a verdict is a
question of law. State v. Robinson (1955), 162 Ohio
St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a
conviction based on legally insufficient evidence constitutes
a denial of due process. Tibbs v. Florida (1982),
457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663,
citing Jackson v. Virginia (1979), 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560." State v.
Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541
"In reviewing a record for sufficiency, '[t]he
relevant inquiry is whether, after reviewing 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.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560." State v. Were, 118 Ohio St.3d 448, 2008
Ohio 2762, 890 N.E.2d 263, ¶132.
"Weight of the evidence concerns 'the inclination of
the greater amount of credible evidence, offered in
a trial, to support one side of the issue rather than the
other. It indicates clearly to the jury that the party having
the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the
issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in
inducing belief (Emphasis added.) Black's,
supra, at 1594.
"When a court of appeals reverses a judgment of a trial
court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a '
"thirteenth *** juror' and disagrees with the
factfinder's resolution of the conflicting testimony.
Tibbs [v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
2211.] See, also, State v. Martin (1983), 20 Ohio
App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721
(The court, reviewing the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in
the evidence, the jury clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. The discretionary power to
grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the
conviction.')" Thompkins, at 387.
If the trial court's judgment results from a jury trial,
it can only be reversed on manifest weight grounds by a
unanimous concurrence of all three judges on the appellate
panel reviewing the case. Id. at 389. The fact that
the evidence is susceptible to more than one interpretation
does not render a conviction against the manifest weight of
the evidence. State v. Ramey, 2d Dist. Clark No.
2014-CA-127, 2015-Ohio-5389, 55 N.E.3d 542, ¶50,
appeal not allowed,145 Ohio St.3d 1458,
2016-Ohio-2807. "Because the trier of fact sees and
hears the witnesses at trial, ...