FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE No. 2017 CRC-I 000222.
MATTHEW J. MALONE, Attorney at Law, for Appellant.
R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant
Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR JUDGE.
Appellant, Jared Byall, appeals the judgment of the Wayne
County Court of Common Pleas. This Court affirms.
In 2017, the Wayne County Grand Jury indicted Byall on a long
list of offenses including multiple counts of rape, sexual
battery, unlawful sexual conduct with a minor, and gross
sexual imposition. The alleged victims were Byall's
biological daughter, S.B., and his girlfriend's daughter,
K.H. Byall pleaded not guilty to the charges at arraignment.
The matter proceeded to a jury trial where Byall was found
guilty of two counts of rape in violation of R.C.
2907.02(A)(1)(b) and two counts of rape in violation of R.C.
2907.02(A)(2). The jury also found Byall guilty of four
counts of sexual battery, three counts of unlawful sexual
conduct with a minor, and six counts of gross sexual
imposition. The jury found Byall not guilty of two counts of
sexual battery and two counts of unlawful sexual conduct with
The trial court imposed a sentence of 25 years to life for
rape under count one of the indictment. With respect to the
counts of rape contained in the third and fourth counts of
the indictment, the trial court imposed a prison sentence of
11 years for each offense. The trial court imposed a
five-year prison sentence for sexual battery under count
eight of the indictment, as well as prison terms of 18 months
on each of the two counts of gross sexual imposition
contained in counts twenty and twenty-one of the indictment.
The trial court ordered that the sentences for counts one,
three, and four were to be served consecutively. The
sentences for counts eight, twenty, and twenty-one were to be
served concurrently. The trial court determined that the
remaining counts were allied offenses. Byall was classified
as a Tier III sex offender.
On appeal, Byall raises three assignments of error.
OF ERROR I
CONVICTION FOR COUNT ONE, RAPE, R.C. 2907.02(A)(1)(b), WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
In his first assignment of error, Byall contends that his
conviction for rape as contained in the first count of the
indictment was against the weight of the evidence. This Court
When a defendant argues that his conviction was contrary to
the weight of the evidence, this Court must review all of the
evidence before the trial court:
In determining whether a criminal conviction is against the
manifest weight of the evidence, an appellate court must
review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses
and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986). "When a court of appeals reverses a judgment
of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a
'thirteenth juror' and disagrees with the
fact[-]finder's resolution of the conflicting
testimony." State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), quoting Tibbs v. Florida, 457 U.S.
31, 42 (1982). An appellate court should exercise the power
to reverse a judgment as against the manifest weight of the
evidence only in exceptional cases. Otten at 340.
Byall was convicted of rape in violation of R.C.
2907.02(A)(1)(b). Count one of the indictment further
specified that Byall purposely compelled the victim to submit
by force or threat of force. R.C. 2907.02(A)(1)(b) states,
"No person shall engage in sexual conduct with another
who is not the spouse of the offender or who is the spouse of
the offender but is living separate and apart from the
offender when * * * [t]he other person is less than thirteen
years of age, whether or not the offender knows the age of
the other person." This Court has recognized that the
trial court shall impose a prison sentence of 25 years to
life if an offender is convicted of violating R.C.
2907.02(A)(1)(b) and, in so doing, compels the victim to
submit by force or the threat of force. State v.
Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶
27, citing R.C. 2907.02(B) and R.C. 2971.03(B)(1)(c).
"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).
On appeal, Byall contends that he "did not compel SB. to
submit at all but, if he did, it was not by force or the
threat of force." Byall points to S.B.'s testimony
at trial in support of his position that "even if this
sexual assault occurred, S.B. obviously did not feel she was
compelled to submit[.]" Though Byall acknowledges that
K.H. testified that he used force against S.B., Byall asserts
that K.H.'s testimony was not credible.
Byall lived with his girlfriend, L.H., in a trailer in
Orville, Ohio. Byall and L.H. had one daughter together,
S.B., who lived with them. L.H.'s daughter from a prior
relationship, K.H., as well as Byall's three sons from a
prior relationship also lived in the trailer.
At trial, K.H. testified regarding multiple incidents where
she was sexually assaulted by Byall. One incident occurred
inside the bathroom of the trailer when K.H. was 14 years
old. Though K.H. tried to resist, Byall pushed her down on
the toilet, pulled down her pants, and inserted his penis in
her vagina. S.B., who was ten years old, walked into the
bathroom as the incident was unfolding. K.H. explained that
when S.B. tried to run away, Byall stated "oh no, no,
come here" and then proceeded to "move her onto
the toilet." S.B. testified that after Byall seated her
on the toilet, he directed her to "relax and just lean
back." Byall proceeded to engage in vaginal intercourse
with S.B. S.B. testified that Byall was on his knees during
the incident and that he only stopped when she started
"kicking up and crying." Byall told S.B. not to
tell her mother what happened. Both S.B. and K.H. testified
that K.H. remained in the bathroom and was seated on the edge
of the bathtub when Byall assaulted S.B. Byall's hands
remained on S.B.'s stomach throughout the incident.
During her testimony, K.H. ...