Court of Appeals of Ohio, Twelfth District, Warren
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, for appellee
& Urling, LLC, Thomas W. Kidd, Jr., for appellant
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
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 ...