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State v. McShaffrey

Court of Appeals of Ohio, Ninth District, Summit

May 9, 2018

STATE OF OHIO Appellee
v.
EDWARD M. MCSHAFFREY Appellant

          APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, JUDGE.

         {¶1} Appellant, Edward M. McShaffrey, appeals from his conviction for gross sexual imposition in the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} Mr. McShaffrey now appeals from his conviction and raises three assignments of error for this Court's review.

         II.

         ASSIGNMENT OF ERROR ONE

         THE 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. 2907.05(A)(5).

         {¶6} 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.

         {¶7} "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. ...


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