COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60749 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH B. FORSYTH : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 4, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-253362 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES SANFORD I. ATKIN, ESQ. CUYAHOGA COUNTY PROSECUTOR 1050 Leader Building JOHN GALLAGHER, ASST. Cleveland, Ohio 44114 Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, P.J., Appellant, Joseph B. Forsyth, appeals from his convictions for felonious sexual penetration and gross sexual imposition. For the reasons set forth below, we affirm. I. Appellant was indicted by the Cuyahoga County Grand Jury for one count of felonious sexual penetration in violation of R.C. 2907.12, and one count of gross sexual imposition in violation of R.C. 2907.05. Appellant pled not guilty to the indictment and the matter proceeded to jury trial on August 29, 1990. For its case, the state presented the testimony of: the victim, Lisa Azzardi, Barb Azzardi, Robin Azzardi, and officer Charles Holly of the North Olmsted Police Department. At trial the victim testified that she is fourteen years of age, and resides with her aunt and uncle in North Olmsted, Ohio. The victim further testified that appellant, who is a friend of the victim's aunt and uncle, brought his family to North Olmsted for the weekend to attend a wedding, and stayed at a nearby hotel. The incident in question occurred on the evening of May 19, 1990, in the pool and hot tub area of that hotel. With regard to appellant's alleged criminal conduct, the victim testified that appellant, his wife and daughter, the victim, and her cousin, all went swimming at the hotel. Appellant's wife left the pool area after a short time leaving appellant to watch the three young girls. The victim's testimony - 3 - continued that, while engaging in horseplay with the girls, appellant repeatedly placed his hand near her private area. Appellant testified that this made her uncomfortable, so she left the pool and went over to the hot tub. According to the victim's testimony, appellant soon joined her in the hot tub. When the victim attempted to leave the hot tub, appellant grabbed her ankle, pulled her to his lap, and began to hold her like a baby. The victim testified that at this point, appellant asked her to give him mouth-to-mouth resuscitation. The victim's testimony continued that appellant placed his hand in her crotch area and began playing with her hair. Appellant then inserted his finger into her. The victim testified that at this point she said, "ouch, that hurts" to which appellant responded, "relax, enjoy yourself, I know what I am doing." After making this statement, appellant took the victim's arm behind her back, placed her hand on his groin, and forced her hand up and down in a petting motion. Appellant then let the victim go and she went into the big pool with the other girls. This incident was reported by the victim to appellant's wife while the girls were changing out of their swimsuits. The victim further testified that she reported it to Lisa Azzardi, her cousin, later that evening when all of the adults were out bowling. Finally, the victim and her cousin told the victim's aunt of the incident when the adults returned home from bowling. - 4 - The state's second witness was Lisa Azzardi, the seventeen year old cousin of the victim. Lisa testified that on the evening of May 19, 1990, she baby-sat the victim and other siblings while appellant, his wife, the victim's aunt and uncle, and other relatives went bowling. While she was baby-sitting it appeared to Lisa that the victim was nervous. In addition, Lisa testified that the victim went to use the bathroom an unusually large number of times. Lisa's testimony continued that she confronted the victim about what was bothering her. Lisa testified that the victim told her that appellant pulled her toward him in the hot tub, touched her private area, and forced her to touch his. Finally, Lisa testified that when the adults returned, she and the victim recounted the incident to the victim's aunts. The state's third witness was Barb Azzardi, aunt and foster- parent of the victim. Barb testified that early in the day of May 1990, appellant asked her for permission to take the victim swimming with the other girls. Barb approved. Further, Barb testified that she was bowling with appellant in the evening and he seemed quiet. Finally, Barb testified that the victim told her about the incident upon her return from bowling. The state's fourth witness, Robin Azzardi, is also an aunt of the victim. Robin observed appellant during the bowling outing, and stated that he was "quiet." In addition, Robin testified that she was with Barb and the victim when the victim - 5 - made her disclosure to Barb about the incidents in the hotel hot tub. The state's final witness on direct examination was Officer Charles Holly of the North Olmsted Police Department. Officer Holly interviewed the victim at the North Olmsted Police Station at 12:45 a.m., May 20, 1990. Officer Holly observed that the victim was crying and upset. Officer Holly took the victim's statement, along with those of Barb, Lisa, and Robin Azzardi. Officer Holly testified that he recommended that the victim go to the hospital, but did not request that tests be done to uncover evidence, because the victim told him she had already urinated several times. Finally, Officer Holly testified that he dispatched an officer to the hotel to obtain registration records, and to the victim's house to obtain her swim wear. At the close of the state's case, appellant moved for acquittal pursuant to Crim. R. 29. That motion was denied. Appellant took the witness stand on his own behalf. Appellant testified that on May 19, 1990, he and his family were in town for a wedding and that they took appellant and her cousin swimming at their hotel. Appellant admitted that he and the girls engaged in horseplay which involved his picking the girls up and throwing them into the water, but denied ever touching the victim's private areas. Appellant testified that he grew weary of this activity, and went to the hot tub to relax. Appellant's only other admitted contact with the victim was when - 6 - he caught her after sliding down a banister into the pool. Appellant testified that the victim lied about all of her allegations of misconduct, and about his touching her in the hot tub. The defense called two character witnesses, Joanne and Ralph Herod. Each testified that appellant has a reputation for truth and honesty in the community. The state called Danielle Phelps as a rebuttal witness. Danielle testified that she went swimming with appellant and the victim on May 19, 1990. Danielle saw the victim leave the pool area and enter the hot tub, followed shortly thereafter by appellant. Danielle saw appellant and the victim sitting close together, then observed the victim leave the hot tub and re- enter the pool. At the close of the case, appellant renewed his Crim. R. 29 motion for acquittal. That motion was denied and the matter was then presented to the jury. On September 24, 1990, the jury found appellant guilty on both counts as charged in the indictment. This appeal timely follows. II. For his first assignment of error appellant argues that the court erred in denying his Crim. R. 29(A) motion for acquittal. A motion for judgment of acquittal is governed by Crim. R. 29(A), which provides: "The court on motion of a defendant or on its own motion, after the evidence on either - 7 - side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." A court shall not order an entry of judgment of acquittal made pursuant to this rule if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. In addition, the trial court in ruling on a Crim. R. 29(A) motion for acquittal must view the probative evidence in a light most favorable to the state, and determine whether the state presented sufficient evidence on each of the essential elements of the offense charged. State v. Martin (1983), 20 Ohio App. 3d 172. Under this assignment of error appellant argues that the two offenses charged were so similar as to constitute only one crime, and that insufficient evidence was presented by the state as to that one crime. Appellant's argument that the two crimes merge into one is governed by R.C. 2941.25 which provides: "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts - 8 - for all such offenses, but the defendant may be convicted of only one. "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them." In reviewing this matter, we are mandated to follow the Supreme Court's recent decision in Newark v. Vazirani (1990), 48 Ohio St. 3d 81 which states that: "Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus of each crime, the defendant may be convicted of both offenses." Appellant was charged with felonious sexual penetration under R.C. 2907.12(A)(2) which provides: "(2) No person without privilege to do so shall insert any part of the body, or any instrument, apparatus, or other object into the vaginal or anal cavity of another when the offender purposely compels the other person to submit by force or threat of force." - 9 - Appellant was also charged with gross sexual imposition under R.C. 2907.05(A) which provides: "(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: "(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force." The state charged and presented evidence that appellant committed two separate acts upon the victim. First, appellant, without privilege to do so, inserted his finger into the vaginal cavity of the victim, by force. Were this the only act appellant was charged with committing, it would be difficult to find two separate offenses under the indictment. In committing the second act, however, appellant caused the victim, not his spouse, to have sexual contact with him, by force. Clearly two separate acts occurred. It is equally clear that under these facts, felonious sexual penetration and gross sexual imposition were not allied offenses under R.C. 2941.25. Furthermore, at the close of the state's case, the evidence presented was clearly sufficient to withstand appellant's Crim. R. 29 challenge. The state presented evidence that appellant grabbed the victim by the ankle, pulled her into the hot tub, held her in his arms, penetrated her vaginal cavity with his finger, and forced her to contact his groin area with her hand. - 10 - Each and every element of each offense is addressed by this evidence. Based upon the foregoing, we find that reasonable minds could have reached different conclusions as to whether each material element of each offense had been proven beyond a reasonable doubt. Appellant's first assignment of error is overruled. III. For his second assignment of error appellant argues that his conviction was against the manifest weight of the evidence. The primary task of weighing the evidence and judging the credibility of witnesses is left to the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Thus, a reviewing court will reverse on the weight of the evidence only in an exceptional case. State v. Woods (1985), 25 Ohio App. 3d 35, 38. A reviewing court will not reverse where there is substantial, competent, and credible evidence supporting the conclusion beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Syllabus. In the case sub judice, appellant's primary contention is that the testimony of the victim is not sufficient to support his conviction. Appellant would have this court find that his testimony is more credible, and reverse on that basis alone. The state has presented substantial, competent, and credible evidence that supports appellant's conviction beyond a reasonable - 11 - doubt. The victim's testimony clearly demonstrated that two separate and distinct acts occurred, one being a felonious sexual penetration and the other being a gross sexual imposition. The jury in this case, being the sole trier of fact, was well within its province to believe the victim, and to discount appellant's testimony. DeHass, supra. For the foregoing reasons we find that appellant's second assignment of error or is not well taken. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, J. and BLACKMON, J., CONCUR. JOHN F. CORRIGAN PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .