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State v. Bedell

Court of Appeals of Ohio, First District, Hamilton

February 28, 2018

STATE OF OHIO, Plaintiff-Appellee,
CHRISTOPHER BEDELL, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1600504

         Judgment Appealed From Is: Affirmed in Part, Sentences Vacated, and Cause Remanded for Resentencing

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Roger W. Kirk, for Defendant-Appellant.


          Cunningham, Judge.

         {¶1} Defendant-appellant Christopher Bedell appeals his convictions for gross sexual imposition. Bedell challenges the sufficiency and weight of the evidence to support his convictions, raises claims of prosecutorial misconduct and ineffective assistance of trial counsel, and argues that his sentences were erroneous. Because Bedell demonstrated plain error resulting from the trial court's consideration of an incorrect sentencing range when determining his sentences, we vacate the sentences and remand for further proceedings. In all other respects we affirm.

         I. Background Facts and Procedure

         {¶2} On May 7, 2015, nine-year-old M.S. and her younger sister T.S. were living with Bedell, who was their legal custodian. Bedell's wife, Twayna, also lived with them. That morning, the girls were getting dressed for school after Twanya had left for work. M.S. asked Bedell for assistance "snapping" her bra, which closed in the back. Bedell put his hands down M.S.'s pants and inside her underwear, and rubbed her vagina. When M.S. told him that she needed to finish getting ready for school, he asked her if she wanted him to pick her up from school early so they "could have a little drinky drink and have some fun." M.S. told him "no" and reminded him that she had after-school choir practice that day.

         {¶3} M.S. and T.S. then walked to their neighborhood elementary school. Later that morning, M.S. appeared unusually "sad and quiet" during her weekly individual therapy session with Jamie Baxter, who had been assigned to provide M.S. with community-health school-based services for symptoms of Attention Deficit/Hyperactivity Disorder. When Baxter asked M.S. what was wrong, M.S. told her what had happened at home. M.S. also revealed to Baxter other instances when Bedell's hand had touched her "privates."

          {¶4} After Baxter contacted the relevant authorities, Megan Foley of the Mayerson Unit at the Hamilton County Department of Job and Family Services was assigned to investigate the allegations. Foley responded to M.S.'s school that same day and spoke with M.S. in Baxter's office about her home life. According to Foley, M.S. told her that Bedell had groped her "private parts" that morning while helping her put on her bra and had digitally penetrated her. M.S. also conveyed concern that Bedell was going to pick her up early from school and do it again. M.S. told of other instances when Bedell had had sexual contact with her, including when helping her with her bra and when she was laying on his bed watching a movie.

         {¶5} Foley took both M.S. and T.S. to be examined at Children's Hospital. At Children's, M.S. was interviewed by Beth Hutson, a social worker in the emergency department. Hutson recalled that M.S. was shaking during the interview. Among other things, M.S. told Hutson that in the morning Bedell had touched her all over, had put his hand or part of his hand into her vagina, and had licked and kissed her butt. M.S. said she did not want to return to his home and was concerned that Bedell wanted to "drink" with her and "do it" after school.

         {¶6} Later that same day, M.S. was examined by an emergency room physician and a pediatric sexual assault nurse examiner, who swabbed M.S.'s back when compiling a sexual assault evidence kit. M.S. and her sister did not return to Bedell's home and were placed with a foster family.

         {¶7} About three weeks later, Andrea Richey, a social worker with Children's Hospital, conducted a forensic interview with M.S. At that time, M.S. indicated that on May 7, when she had asked him to help her with her bra, Bedell had touched her all over her body with his hand, including touching her inside her "body part"-meaning her vagina. M.S. also recalled that Bedell had told her he was going to pick her up early from school that day so that they could "do it, " which to her meant the same type of conduct. M.S. accused Bedell of one time touching her "body part" with his "body part." She also described Bedell as "mean" because he hit her and her sister.

         {¶8} Cincinnati Police Detective Hollis Hudepohl interviewed Bedell with his attorney on June 18, 2015. While Bedell did not make any incriminating statements as to committing sexual acts, he confirmed that he had helped M.S. with her bra in the mornings and that he had given her malt liquor in the past "to let her taste it hoping she wouldn't like it." In response to the detective's inquiry about whether his DNA would be found on M.S.'s body, Bedell informed him that it was possible that his nose may have touched her on the morning of May 7 when he checked to make sure she was not "dirty or smelly." But ultimately Bedell's DNA was not found on M.S.'s body.

         {¶9} Later, Bedell was indicted on two counts of rape and two counts of gross sexual imposition involving M.S. The case proceeded to a bench trial. The trial court granted Bedell's Crim.R. 29 motion with respect to the rape charges after M.S. did not testify to any vaginal penetration. After the state rested, Bedell did not present any testimony, but he did move into evidence a note M.S. had written to Twanya, whom she addressed as "mom." In the note, M.S. apologized to Twanya for lying about taking a cookie, and told her that she "love[d]" her.

         {¶10} The trial court found Bedell guilty on both counts of gross sexual imposition and proceeded to sentence him without delay. Just before the court announced Bedell's sentences of concurrent 36-month prison terms, the prosecutor confirmed for the trial court that the sentencing range for the offense was "36 months to 60 months."

          II. Analysis

         {¶11} In his second assignment of error, which we address first, Bedell contends that his convictions were not supported by sufficient evidence. This court's inquiry when reviewing a claim of insufficient evidence "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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

         {¶12} Bedell was convicted on two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). To prove these charges, the state had to show Bedell had "sexual contact" with M.S. on at least two occasions when she was less than 13 years old. " 'Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttocks, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).

         {¶13} At trial, M.S. unequivocally explained how Bedell had put his hands inside her underwear and rubbed her vagina on the morning of May 7, 2015, when she was nine years old. She further indicated that he had engaged in similar conduct on previous occasions and had also previously rubbed her thighs and breasts. Despite the lack of any physical evidence to corroborate M.S.'s testimony, this testimony was sufficient evidence to demonstrate that Bedell had two separate and distinct sexual contacts with M.S. when she was under the age of 13, as charged by the state.

          {¶14} Next Bedell claims his convictions were against the weight of the evidence. Bedell argues that M.S. had a "total failure of credibility" because her testimony at trial conflicted in part with other witnesses' recollections of M.S.'s statements to them during the investigation. For example, Hutson testified that M.S. had told her that she had been "raped" by her mother's boyfriend when she was four and that Bedell was doing the same thing to her. And when Hutson asked M.S. about the incident on the morning of May 7, M.S. indicated she had been wearing a towel, which conflicted with M.S, 's testimony at trial that she had been wearing pants. Further, while M.S. did not testify to any vaginal penetration or penile-vaginal contact-just the "rubbing" of her vagina when his hands were inside her underwear-Foley, Hutson, and Richey all testified M.S. had told them that Bedell's hand or part of his hand had entered her vagina on May 7, and that on at least one occasion there had been penile-vaginal contact.

         {¶15} Bedell contends also that M.S. wanted to live with her grandparents, and this desire was strong proof she fabricated the instances of sexual abuse so she would be removed from Bedell's home. In support, Bedell cites M.S.'s testimony that she would like to live with her grandparents. He cites also Richey's testimony that M.S. had expressed a desire to live with her grandparents during the interview on May 26, 2015, which occurred after M.S. had been placed in a foster home.

         {¶16} In determining whether the judgment of conviction is against the manifest weight of the evidence, "th[is] court, reviews 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 [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin,20 Ohio ...

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