COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69937 CITY OF BEDFORD HEIGHTS : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARK NATHANSON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Bedford Municipal Court, No. 94-CRB-02122. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: James L. Oakar, Esq. 700 West St. Clair Avenue Suite 210 Cleveland, OH 44113 For Defendant-Appellant: Jerome Emoff, Esq. 620 Terminal Tower Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Mark Nathanson, defendant-appellant, appeals from his conviction in the City of Bedford Heights Municipal Court for the offense of sexual imposition. Defendant-appellant assigns three errors for this court's review. Mark Nathanson's, defendant-appellant's, appeal is not well taken. I. THE FACTS On Saturday, December 3, 1994, Rita Ellis met her son John Ellis at Bedford Heights Auto Service in order to pay for repairs to John Ellis' automobile. Bedford Heights Auto Service is owned and operated by Mark Nathanson, defendant-appellant. Mrs. Ellis alleged that when she entered the repair shop, Mark Nathanson, defendant-appellant, licked his tongue out around his mouth and lips. Mrs. Ellis testified that she was offended by defendant-appellant's actions. At this point, Mrs. Ellis informed Mark Nathanson, defendant- appellant, that she was there to pay for the repairs to her son's automobile. After Mrs. Ellis paid defendant-appellant, she alleged that defendant-appellant came out from behind the service counter, grabbed her buttock and pushed her body toward his until contact was made. Mrs. Ellis told defendant-appellant to stop and pushed him away. Disgusted by defendant-appellant's actions, Mrs. Ellis left the repair shop and walked outside with her son who witnessed the incident. As they were leaving, defendant-appellant allegedly threw firecrackers in an area near John Ellis' car. Mrs. Ellis' -3- daughter, who had been waiting in a separate vehicle, also witnessed the events. On Monday, December 5, 1994, Mrs. Ellis called Bedford Heights Auto Service to determine if her son's car had been fully repaired. She spoke with Mark Nathanson, defendant-appellant, who told her the car was not yet ready and then allegedly made further crude sexual remarks to Mrs. Ellis. After that, Mrs. Ellis had her son call AAA and tow the vehicle to a second repair shop. That same day, Mrs. Ellis contacted the Bedford Heights Police Department and filed a complaint against defendant-appellant. Mark Nathanson, defendant-appellant, maintained that he, in no way, touched Mrs. Ellis or made sexual advances toward her. Defendant-appellant further claimed that Mrs. Ellis fabricated the story because she was angry that the repair work had not been completed in a timely manner. On December 20, 1994, Mark Nathanson, defendant-appellant, was arraigned in the Bedford Municipal Court on one count of sexual imposition, in violation of R.C. 2907.06, a misdemeanor of the third degree. Defendant-appellant entered a plea of not guilty to the charge and requested a jury trial which was soon after scheduled for January 27, 1995. This trial date was continued at defendant-appellant's request so that additional discovery could be completed. On January 24, 1995, the trial court received a written waiver of speedy trial from defendant-appellant's counsel. Based upon defendant-appellant's motion for continuance and waiver of speedy trial, a new trial date was scheduled for April 27, 1995. -4- On April 24, 1995, defendant-appellant's counsel requested an additional continuance of trial. The trial court eventually granted defendant-appellant's request and rescheduled the trial for June 22, 1995. On June 20, 1995, the Bedford Heights City Prosecutor requested a continuance based upon the unavailability of Mrs. Ellis, the victim, who was about to undergo gallbladder surgery. The trial court granted the prosecutor's motion and continued the trial to September 28, 1995. On September 28, 1995, Mark Nathanson's, defendant-appellant's, counsel filed a motion to dismiss claiming that Ohio's speedy trial statute had been violated and the time for trial had expired. The trial court denied defendant-appellant's motion and the case proceeded to trial. On September 29, 1995, Mark Nathanson, defendant-appellant, was found guilty of sexual imposition. Defendant-appellant was then sentenced to ten days in jail and a $250 fine. The trial court suspended execution of defendant-appellant's sentence pending outcome on appeal and defendant-appellant was released on bond. On December 7, 1995, Mark Nathanson, defendant-appellant, filed a timely notice of appeal from his conviction in the trial court. II. FIRST ASSIGNMENT OF ERROR Mark Nathanson's, defendant-appellant's, first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING APPELLANT'S REQUEST FOR A JURY INSTRUCTION DEFINING PURPOSE, OR SPECIFIC -5- INTENT, PURSUANT TO 4 OJI 409.01, WHEN PURPOSE WAS AN ESSENTIAL ELEMENT OF THE OFFENSE CHARGED IN THE COMPLAINT. A. THE ISSUE RAISED: JURY INSTRUCTIONS. Defendant-appellant argues, through his first assignment of error, that the trial court erred in failing to instruct the jury on the definition of purpose as an element of the offense of sexual imposition. Defendant-appellant's first assignment of error is not well taken. B. R.C. 2907.06. R.C. 2907.06, which sets forth the elements of sexual imposition, states: (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 knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard. (2) The offender knows that the other person's, or one of the other person's, ability to appraise the nature of or control of the offender's or touching person's conduct is substantially impaired. (3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact. (4) The other person, or one of the other persons, is thirteen years of age or older but less than sixteen years of age, whether -6- or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person. (B) No person shall be convicted of a violation of this section solely upon the victim's testimony unsupported by other evidence. (C) Whoever violates this section is guilty of sexual imposition, a misdemeanor of the third degree. C. STANDARD OF REVIEW FOR JURY INSTRUCTIONS. When reviewing such an assignment of error, a single challenged jury instruction may not be reviewed piecemeal or in isolation but must be reviewed within the context of the entire charge. State v. Hardy (1971), 28 Ohio St.2d 89; State v. Price (1979), 60 Ohio St.2d 136; State v. Wise (Jan. 29, 1993), Wood Cty. App. No. 91 WC 113, unreported. Accordingly, the proper standard of review for an appellate court is whether the trial court's refusal to give a defendant's requested instruction constituted an abuse of discretion under the facts and circumstances of the case. State v. Wolons (1989), 44 Ohio St.3d 64. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. D. TRIAL COURT PROPERLY INSTRUCTED THE JURY. In the case sub judice, a review of the trial court's instruction to the jury regarding the offense of sexual -7- imposition demonstrates that a complete and proper instruction was given. The relevant portions of the instruction state: Now, ladies and gentlemen, to the subject matter. The Defendant has been charged with criminal activity involving Ohio Revised Code No. 2907.06 which is entitled Sexual Imposition. And that section of the law says as follows: No person shall have sexual contact with another not the spouse of the offender when the following applies: The offender knows that the sexual conduct is offensive to the other person or is reckless in that regard. What do you mean about this? What are all the elements of all this? As I've indicated, the Defendant is charged with this crime of sexual imposition. Before you can find the Defendant guilty of this crime, you must find beyond a reasonable doubt that on or about the 3rd day of December, 1994, in Cuyahoga County, Bedford Heights, Ohio, the Defendant has sexual contact with another not the spouse of the Defendant. In reference to that section the date is conceded, so you don't have to worry about the date that it happened. * * * Now, sexual contact -- We mean any touching of an erogenous zone of another. Including, without limitation, thigh, genitals, buttock, (inaudible) breast for the purpose of sexually arousing or gratifying either person. Now, we expect your cooperation, which is necessary. The law is that no person shall be convicted of sexual imposition solely upon the alleged victim's testimony unsupported by other testimony. The purpose for this rule is that sexual imposition is a type of offense which may be particularly susceptible to abuse in prosecution. Corroboration require[s] (inaudible) witness credibility by discouraging a fabrication of testimony by alleged victims including (inaudible). -8- * * * Now, sexual gratification is not equivocal or ambiguous; touching is sufficient in defining sexual gratification. Equivocal or ambiguous touching is insufficient to prove the Defendant had the purpose of sexual arousing or gratification. The existence or nonexistence of prurient motivations may be discerned from the type, nature, and circumstances of contact along with the personality of the Defendant. Sexual arousal or gratification includes any touching which a reasonable person would perceive as sexually stimulating or gratifying. (Tr. pp. 270-273.) It is well settled that a trial court need not give a proposed jury instruction in the precise language requested by its proponent, even if it properly states an applicable rule of law. The trial court retains discretion to use its own language to communicate the same legal principles. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690. The existence of a proposed jury instruction which correctly states the issues or law in question does not mandate that the court use the proposed jury instruction verbatim. The court need only include the substance of the proposed instruction. Echols v. Vernick (June 11, 1987), Cuyahoga App. No. 52101, unreported. Here, it is evident from a review of the transcript that the trial court set forth the legal principles necessary for the jury to determine defendant-appellant's culpability for the charged offense. Defendant-appellant has failed to demonstrate that he has been prejudiced by the trial court's failure to give the -9- expanded definition of purpose. Wilson v. Dixon (Mar. 29, 1990), Cuyahoga App. No. 56788, unreported. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Mark Nathanson's, defendant-appellant's, second assignment of error states: APPELLANT'S TRIAL WAS NOT COMMENCED WITHIN FORTY-FIVE DAYS IN VIOLATION OF R.C. 2945.71(B)(1) THEREBY MANDATING A DISCHARGE PURSUANT TO R.C. 2945.73(B). A. THE ISSUE RAISED: SPEEDY TRIAL. Defendant-appellant argues, through his second assignment of error, that he was not brought to trial within the statutorily required time period for a misdemeanor offense and should therefore be discharged. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR SPEEDY TRIAL. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. In addition to these constitutional speedy trial provisions, R.C. 2945.71(B)(1) provides that a defendant charged with a third or fourth degree misdemeanor must be brought to trial within forty-five days after arrest or service of summons. The Ohio legislature has enacted the speedy trial statutes as a "rational effort to enforce the -10- constitutional right to a public speedy trial," and the limitations imposed by the statutes are to be strictly enforced by the courts. State v. Pachey (1980), 64 Ohio St.2d 218 at syllabus; In re: Jerry Fuller (Dec. 14, 1994), Summit App. No. C93-08-3075/3076. However, a defendant may waive the right to a speedy trial provided that such waiver is knowingly and voluntarily made. State v. Adams (1989), 43 Ohio St.3d 67, 69. The Ohio Supreme Court recently held that, in order for a defendant's waiver of speedy trial to be valid, it must be expressed in writing or made in open court on the record. State v. King (1994), 70 Ohio St.3d 158 at syllabus. C. DEFENDANT-APPELLANT EXECUTED A VALID WRITTEN WAIVER OF SPEEDY TRIAL. In the present case, defendant-appellant's counsel executed a written waiver on behalf of defendant-appellant which stated: With reference to my request for a pretrial hearing in the above-captioned case, I hereby, on behalf of Mr. Nathanson, waive the Ohio statutory speedy trial requirements and consent to a continuance of the trial date. This waiver is entered for a reasonable period of time in order to obtain discovery from the prosecuting attorney and in order to properly prepare for trial. A review of the record fails to demonstrate any evidence to indicate that defendant-appellant's waiver was anything other than knowing and voluntary. Accordingly, defendant-appellant effectively waived his speedy trial rights and was not entitled to a speedy trial discharge. See, State v. McBreen (1978), 54 Ohio St.2d 315. In addition, defendant-appellant requested and -11- received two trial continuances which also tolled the time for speedy trial pursuant to R.C. 2945.72. For the foregoing reasons, defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Mark Nathanson's, defendant-appellant's, third and final assignment of error states: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND/OR THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: WEIGHT AND SUFFICIENCY OF THE EVIDENCE. Defendant-appellant argues, through his third and final assignment of error, that he was improperly convicted of sexual imposition. Specifically, defendant-appellant maintains that the city failed to produce sufficient, substantial and credible evidence at trial to support defendant-appellant's conviction for the offense charged. Defendant-appellant's third and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUFFICIENCY OF EVIDENCE. The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St.3d 259, reexamined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence and held that: 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 -12- 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. C. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised -13- with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442-64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. D. DEFENDANT-APPELLANT'S CONVICTION WAS SUFFICIENT AS A MATTER OF LAW AND WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -14- In the case sub judice, evidence was presented by way of the testimony of the victim, Mrs. Ellis, her son John and her daughter Jowan in an attempt to establish the elements of the offense of sexual imposition. The testimony of the three prosecution witnesses demonstrates that defendant-appellant groped the buttock of Mrs. Ellis causing offensive sexual contact with the offender to occur. Upon application of the standard of review for sufficiency of the evidence as established in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of sexual imposition proved beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307. In addition, defendant-appellant's conviction was supported by substantial credible evidence. Accordingly, defendant-appellant's third and final assignment of error are not well taken. Judgment of the trial court is affirmed. -15- It is ordered that appellee recover of appellant its 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 Bedford Municipal Court 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. SARA J. HARPER, P.J. and TIMOTHY E. McMONAGLE, J., CONCUR. DAVID T. MATIA 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 .