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State v. McLoughlin

Court of Appeals of Ohio, Second District, Champaign

June 22, 2018

STATE OF OHIO Plaintiff-Appellee
JONATHAN P. MCLOUGHLIN Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-22

          JANE A. NAPIER, Atty. Reg. No. 0061426, Attorney for Plaintiff-Appellee

          REGINA R. RICHARDS, Atty. Reg. No. 0079457, Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} Jonathan Patrick McLoughlin was found guilty by a jury in the Champaign County Court of Common Pleas of six counts of unlawful sexual conduct with a minor and one count of attempted unlawful sexual conduct with a minor. Each count contained enhancements related to the age difference between McLoughlin and the victim (more than ten years) and McLoughlin's prior conviction for the same offense. McLoughlin was sentenced to a lengthy prison term and designated as a Tier III sex offender. He appeals from his convictions. For the following reasons, the judgment of the trial court will be affirmed.

         Procedural History

         {¶ 2} On January 23, 2017, McLoughlin was charged by complaint with 3 offenses of unlawful sexual conduct with a minor in the Champaign County Municipal Court. On February 2, 2017, McLoughlin was indicted on seven counts of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A). Each count also contained enhancements that McLoughlin was ten or more years older than the victim and had previously been convicted of unlawful sexual conduct with a minor, R.C. 2907.04(B)(3-4). Each count also contained a specification that McLoughlin had a previous felony conviction (robbery).

         {¶ 3} The matter was tried to a jury on June 26 and 27, 2017. At trial, the State moved to amend Count Seven from unlawful sexual conduct with a minor to attempted unlawful sexual conduct with a minor, and the trial court allowed this amendment without objection. The jury found McLoughlin guilty on all seven counts. The trial court sentenced McLoughlin to mandatory terms of 8 years on Count One and six years each on Counts Two through Six, to be served consecutively. The court also sentenced McLoughlin to a non-mandatory term of 24 months on Count Seven, to be served concurrently with the other sentences. His aggregate term of imprisonment was 38 years. McLoughlin was designated a Tier III sex offender and was ordered to pay court costs and legal fees and expenses.

         {¶ 4} On appeal, McLoughlin raises four assignments of error.

         Sufficiency and Weight of the Evidence

         {¶ 5} In his first and second assignments of error, McLoughlin contends that his convictions were supported by insufficient evidence and were against the manifest weight of the evidence. Specifically, he claims that there was no evidence that he knew of the victim's age prior to engaging in sexual conduct with her or acted recklessly in that regard, that the timeframe for the offenses contained in the indictment did not conform to the evidence, and that the overly-broad timeframe in the indictment confused the jurors and prejudiced the defense.

         {¶ 6} An argument based on the sufficiency of the evidence challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶ 7} In contrast, when reviewing an argument challenging the weight of the evidence," '[t]he 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 evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

         {¶ 8} Where an appellate court determines that a conviction is not against the manifest weight of the evidence, the conviction is necessarily based on legally sufficient evidence. State v. Million, 2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23; State v. Combs, 2d Dist. Montgomery No. 19853, 2004-Ohio-2419, ¶ 12.

         {¶ 9} The offense of unlawful sexual conduct with a minor is defined as follows:

No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard. R.C. 2907.04(A). Sexual conduct is defined as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(A).

         {¶ 10} "A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." R.C. 2901.22(B). A person acts recklessly with respect to circumstances when, "with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist." R.C. 2901.22(C).

         {¶ 11} The indictment alleged that the offenses occurred between December 1, 2016 and January 20, 2017.

         {¶ 12} The State called five witnesses at trial; the defense did not call any witnesses.

         {¶ 13} Sergeant Shawn Schmidt testified that he was dispatched to the upstairs apartment of a house in Urbana on January 20, 2017, in response to an anonymous report that there was a juvenile in the upstairs unit with a sex offender. The caller allegedly heard noises coming from the bedroom and was concerned about the juvenile's safety. When Sgt. Schmidt and his partner knocked on the apartment door, they got no answer for approximately eight minutes, although they could hear noises inside the apartment. The door was then opened by a woman in a robe with a towel on her head (T.C.), who was accompanied by her daughter (M.). The woman explained that she did not allow her daughter to open the door when she (T.C.) was showering. Schmidt testified that it did not look like T.C.'s hair was wet.

         {¶ 14} Schmidt asked T.C. "if there was any kind of domestic going on or disturbance within the residence." T.C. denied that there was any kind of domestic disturbance within the apartment, but she consented to a search. T.C. told Schmidt that she and her daughter, two other small children, and a man, Daniel, who was in one of the bedrooms, were the only people present.[1] Schmidt asked T.C. if there was a rear exit to the apartment, and T.C. directed him to a stairwell at the rear of the building. When Schmidt walked down the stairs, he found a man, McLoughlin, "hiding behind a water heater" in the unfinished basement.

         {¶ 15} McLoughlin told Sgt. Schmidt that he was T.C.'s fiancé and had been visiting her. When asked why he had been hiding in the basement, McLoughlin stated that he was on probation in another county and had been drinking, which he was not supposed to do. During the course of his investigation, Schmidt learned through the Law Enforcement Automated Database (LEADS) that McLoughlin had a prior conviction for unlawful sexual conduct with a minor. The prior conviction was further substantiated at trial by a parole officer and the Clerk of Courts of Union County (Ohio), who presented and authenticated a certified copy of McLoughlin's prior conviction.

         {¶ 16} M. testified that she was the oldest child in her family. In December 2016 and January 2017, M. was 14 years old and was living with her grandmother and one of her (M.'s) sisters in St. Paris, Ohio, while her other siblings were living with her mother, T.C, in Urbana. M. visited her mother's apartment on many weekends because she wanted to see her siblings.

         {¶ 17} M. first met McLoughlin in December 2016. McLoughlin was T.C.'s boyfriend. M. soon suspected that McLoughlin liked her (M.) "as more than maybe just a friend," because he kissed her with an open mouth using his tongue. M. testified that her mother, T.C., also told her that McLoughlin liked her as more than a friend, and "said it was okay that that kind of stuff happened." M. stated that she was "shocked" when McLoughlin kissed her, but did not say anything to him about it.

         {¶ 18} M.'s next physical contact with McLoughlin was at night when everyone else was asleep. M. was watching television on the couch in a common area. She testified that she was wearing one-piece "footie pajamas" depicting Eeyore from Winnie the Pooh, with a hood and a zipper down the front; she wore underwear and a bra underneath. McLoughlin came into the living room and starting kissing her without saying anything. He then laid her down on the couch on her back, unzipped the pajamas and took them off, pulled down her underwear, pushed her bra up, and "put his penis in [her] vagina." M. "just stayed quiet" and did not yell or scream. She stated that McLoughlin did not "wear any protection" and that he ejaculated inside her. When McLoughlin "got off of" her, she took her clothes to the bathroom to get dressed and went into her sister's room. M. went back to her grandmother's the next day.

         {¶ 19} M. subsequently talked with T.C. about the incident through text messages. T.C. told M. that she was not "mad" at M., and M. expressed concern that she might be pregnant. According to M., T.C. "said she was going to get her [M.] the day-after pill. But she never did," and it turned out that M. was not pregnant.

         {¶ 20} M. testified that, after she told her mom that she was not pregnant, T.C. would "talk to [M.] about [possibly getting together with McLoughlin again] over text messages kind of like casually." M. "wasn't okay with it," but she "knew ...

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