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State v. Spencer

Court of Appeals of Ohio, Twelfth District, Warren

June 3, 2019

STATE OF OHIO, Appellee,
DAVID L. SPENCER, Appellant.


          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, for appellee

          Kidd & Urling, LLC, Thomas W. Kidd, Jr., for appellant


          HENDRICKSON, P.J.

         {¶ 1} Appellant, David. L. Spencer, appeals from his conviction in the Warren County Court of Common Pleas for unlawful sexual conduct with a minor. For the reasons set forth below, we affirm appellant's conviction.

         {¶ 2} On July 31, 2017, appellant was indicted on one count of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), a felony of the third degree. The charge arose out of allegations that on June 3, 2017, at Kings Island amusement park in Mason, Ohio, appellant digitally penetrated a 15-year-old girl, E.B., while the two were in the park's wave pool. Appellant pled not guilty to the charge and a two-day jury trial was held in June 2018.

         {¶ 3} The state presented testimony from the victim, the victim's aunt, and the officer who investigated the incident. The victim's and aunt's testimony established that after E.B.'s mother's death in 2016, E.B. lived with her aunt. On Mother's Day in 2017, E.B. and her aunt went to Kings Island. While standing in line to ride a rollercoaster, E.B. and her aunt met appellant and appellant's niece. They discussed that E.B. and appellant's niece were both in school and that appellant's niece was 12 years old and E.B. was 15 years old.

         {¶ 4} After riding the rollercoaster, appellant mentioned to E.B. and her aunt that he received photographs for free with his park pass. Appellant offered to send E.B. and her aunt photographs of them on the ride. E.B. and her aunt connected with appellant on Facebook so that appellant could share the photographs. After appellant sent the photographs to E.B. and her aunt, appellant began to communicate with E.B. over Facebook. E.B.'s aunt did not know about this communication.

         {¶ 5} E.B. and her aunt testified that E.B. went through a difficult time after E.B.'s mother passed in 2016. E.B. stated she "started making a lot of bad decisions in [her] life and [she] kind of just lost track of where [she] was going." E.B. began cutting herself and attempted to commit suicide. She exchanged sexually explicit images and texts with her 14-year-old boyfriend, J.M. She also began sending sexually explicit images of herself to older men over the internet in exchange for money.

         {¶ 6} E.B. testified that after the May 2017 Kings Island visit, she video chatted with appellant. Appellant asked her to do sexually explicit things, like put a marker in her rear end, and she complied with his requests. Appellant and E.B. made arrangements to meet at Kings Island on June 3, 2017, around 10:00 or 11:00 a.m. E.B.'s boyfriend was also going to meet E.B. at Kings Island that day, although J.M. was not going to arrive until around 1:00 p.m. E.B. told J.M. that appellant was her uncle.

         {¶ 7} E.B.'s aunt dropped E.B. off at Kings Island around 10:00 a.m. on June 3, 2017. E.B.'s aunt did not know E.B. was meeting with appellant or J.M. but, rather, believed E.B. was meeting with friends at the amusement park.

         {¶ 8} Records from E.B.'s Kings Island pass indicated she entered the amusement park at 10:19 a.m. When appellant arrived, he texted her, and E.B. went to the parking lot to meet him. E.B. testified appellant was in his car, a dark blue passenger car with black sunshades on the back windows. Although E.B. was "[k]ind of scared" because it was the first time she was meeting a man she had talked with online in person, she nonetheless got into the back of appellant's vehicle with him. Once in the backseat, E.B. testified that appellant kissed her on the mouth. He also shared some cherries he had brought along with him to the park. Appellant made a comment about the cherries that E.B. understood to be a sexual reference to her virginity. He also stated, "15 will get you 15," which E.B. believed was a reference to "years in prison for [her] age."

         {¶ 9} E.B. and appellant entered Kings Island together at 11:28 a.m., had their photograph taken together at the entrance, and then went on rides together. E.B. testified that during some of the rides, appellant grabbed her upper thigh and breast. After appellant and E.B. ate lunch together, J.M. arrived at the park. The three rode a few rides before going to the water park together.

         {¶ 10} E.B. testified that she, appellant, and J.M. went into the wave pool. Appellant wore a life vest into the pool and E.B. wore a two-piece swimsuit. Appellant kept taking E.B. out into the deep end of the wave pool where she could not touch the bottom and where J.M. would not follow. Appellant carried E.B. "bridal style" in the pool, with her back against one arm and her legs over his other arm. Appellant also grabbed E.B. around the waist from behind and pressed himself against E.B.'s back. E.B. testified she felt appellant's erection on her back. Appellant then "went around * * * her bathing suit bottom" with his hand and put "an inch or two of his finger" inside her vagina. E.B. testified that although she tried to distance herself from ...

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