FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR-2016-01-0301
MICHAEL T. CALLAHAN, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, JUDGE.
Appellant, Edward M. McShaffrey, appeals from his conviction
for gross sexual imposition in the Summit County Court of
Common Pleas. This Court affirms.
In January of 2016, a 69-year-old woman suffering from
Parkinson's disease and dementia ("H.W ") was
residing on the assisted living floor of a senior facility in
Akron that specialized in caring for those individuals
suffering from Alzheimer's disease and dementia. Mr.
McShaffrey was employed as a nurse at the facility at that
time and worked on the assisted living floor. According to
another nurse at the facility ("Niki"), H.W.
required assistance with "pretty much everything[,
]" including eating, bathing, and walking down the hall.
H.W. had difficulties communicating verbally and could only
occasionally speak one or two nonsensical words.
At approximately 3:30 A.M. one morning, Niki was looking for
a co-worker on the assisted living floor to discuss an issue
not relevant to this case. She saw a supply cart parked
outside of H.W.'s room and thought that the co-worker
might be in the room. According to Niki, she entered the room
and, upon reaching the back bedroom, saw Mr. McShaffrey
kneeling on one knee while facing H.W., who was standing.
H.W.'s shirt was pulled up to her neck and Mr. McShaffrey
had his mouth pressed up against her left breast, covering
her left nipple. H.W. was only wearing her shirt and
underwear. Once Mr. McShaffrey noticed Niki's presence,
he attempted to pull H.W.'s shirt back down. Niki
immediately left the room and Mr. McShaffrey followed. She
immediately called the facility's health and wellness
director ("Nicholette") to report the incident.
Nicholette testified that she came to the facility and had
the security officer ("Bob") escort Mr. McShaffrey
off of the premises. She then asked Bob to call the police.
H.W. was transferred to a hospital and a sexual assault
examination kit was completed. The Ohio Bureau of Criminal
Identification and Investigation ("BCI") determined
that DNA swabs taken from H.W.'s breasts contained a
major DNA profile consistent with Mr. McShaffrey.
After a jury trial, Mr. McShaffrey was found guilty of gross
sexual imposition, a felony of the fourth degree. The trial
court ordered a presentence investigation report
("PSI") to be prepared by the probation department.
The trial court sentenced Mr. McShaffrey to 18 months in
prison and classified him as a Tier I sex offender.
Mr. McShaffrey now appeals from his conviction and raises
three assignments of error for this Court's review.
OF ERROR ONE
TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S CRIMR.
29 MOTION TO DISMISS BECAUSE THERE WAS INSUFFICIENT EVIDENCE
PRESENTED TO THE JURY TO FIND HIM GUILTY OF GROSS SEXUAL
IMPOSITION PER THE REQUIREMENTS SET FORTH BY R.C.
In his first assignment of error, Mr. McShaffrey argues that
the trial court erred in denying his Crim.R. 29 motion
because there was insufficient evidence to convict him of
gross sexual imposition, specifically a lack of evidence
demonstrating any sexual contact for the purpose of sexual
arousal or gratification, as required under R.C.
2907.05(A)(5). We disagree.
"We review a denial of a defendant's Crim.R. 29
motion for acquittal by assessing the sufficiency of the
State's evidence." State v. Frashuer, 9th
Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. "A
sufficiency challenge of a criminal conviction presents a
question of law, which we review de novo." State v.
Spear, 9th Dist. Summit No. 28181, 2017-Ohio-169, ¶
6, citing State v. Thompkins,78 Ohio St.3d 380, 386
(1997). "Sufficiency concerns the burden of production
and tests whether the prosecution presented adequate evidence
for the case to go to the jury." State v.
Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211,
¶ 25, citing Thompkins at 386. "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." Id., quoting
State v. Jenks,61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. ...