Court of Appeals of Ohio, Second District, Champaign
Criminal Appeal from Common Pleas Court Trial Court Case No.
A. NAPIER, Atty. Reg. No. 0061426, Attorney for
R. RICHARDS, Atty. Reg. No. 0079457, Attorney for
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.
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
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,
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. 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
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
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 ...