COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70338 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN E. MELCHOIR, JR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 23, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 326115 JUDGMENT: Affirmed in part and Reversed in part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. DONALD GREEN, ESQ. Cuyahoga County Prosecutor Assistant Public Defender 8th Floor Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, John Melchoir, Jr., appeals his conviction and sentence for gross sexual imposition, kidnapping, and abduction. Melchoir assigns the following error for our review: JOHN MELCHOIR'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF GROSS SEXUAL IMPOSITION AND WHEN HE WAS FOUND GUILTY OF THE AGGRAVATED FELONY AND VIOLENCE SPECIFICATIONS ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. Having reviewed the record and the arguments of the parties, we affirm in part and reverse in part the decision of the trial court. The apposite facts follow. Tiffany Stuckey first encountered John Melchoir, Jr. in the hallway of Budgetel Inn where she worked as a maid. She again encountered him when he entered the room where she was working. Before he entered the room, she had placed a beanbag against the door to keep the door opened. When Melchoir entered the room, he locked the door. Stuckey, upon seeing him, screamed. Melchoir crossed the room to Stuckey and put his hand over her mouth. She struggled and continued her efforts to scream. Melchoir attempted to push Stuckey onto the bed, but instead she fell against the wall and onto the floor. While on the floor, Melchoir positioned himself on top of Stuckey. Stuckey's knees were drawn to her chest. While on top of Stuckey, -3- Melchoir "wiggled" his lower body against Stuckey's. Stuckey scratched Melchoir, and he punched her in the mouth. Stuckey observed an object in Melchoir's hand, which she identified as a pen. As he moved the object close to her face, Stuckey removed his hand and screamed. She struggled during which time Melchoir got off of her. He unlocked the door and started to exit when Stuckey pushed past him. She proceeded to the front desk for help. Thereafter, Melchoir was arrested at a nearby RTA stop. There he told the police he had just purchased crack and had gone to the hotel to smoke it. He stated he didn't remember why he entered Room 104 and didn't remember locking the door. He then said he entered the room in order to hurt someone so he could go to jail and get off crack. He denied having a pen, but said he was holding a silver tipped lighter and his crack pipe. He told police he threw the crack pipe away while awaiting the arrival of the police. Melchoir was charged with attempted rape, kidnapping, and aggravated burglary, each with aggravated felony and violence specifications. At his bench trial, both Stuckey and Melchoir testified. Stuckey retold her story, and Melchoir denied restraining her. He claimed he covered her mouth to explain why he was in the room. He denied telling police he intended to hurt someone, and insisted he was only looking for a place to smoke some crack. The trial court found the state did not prove the attempted rape charge. However, Melchoir was convicted of the lesser included offenses of gross sexual imposition, breaking and -4- entering, and abduction. The court also found Melchoir guilty of the three prior offense specifications. During the presentation of the evidence for the specifica- tions, the prosecution did not present the usual certified journal entry. Instead the prosecutor sought to elicit the information from Melchoir during cross-examination. The following discourse took place: PROSECUTION: "You have a gross sexual imposition and attempted kidnapping." MELCHOIR: "And, I also did a sex offender program in Madison. I completed that." Upon hearing this testimony, the trial court held Melchoir guilty of the three prior offense specifications. Melchoir was sentenced to concurrent terms of three to five years for gross sexual imposition, three to five years for breaking and entering and six to ten years for abduction. This appeal followed. Melchoir argues the evidence in support of his conviction for gross sexual imposition was insufficient as a matter of law. He also challenges the sufficiency of the evidence in support of the aggravated felony and violence specifications. When evaluating the sufficiency of evidence in support of a conviction, we must examine the evidence and determine whether the evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 273. In count one of the indictment, Melchoir was charged with attempted rape. However, the trial court convicted him of gross -5- sexual imposition. R.C. 2907.05 defines gross sexual imposition as follows: No person shall have sexual contact with another, not the spouse of the offender *** when the offender purposely compels the other person *** to submit by force or threat of force. Melchoir argues the prosecution failed to present sufficient evidence of sexual contact. R.C. 2907.01 defines sexual contact as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. In view of these standards, we conclude a reasonable fact- finder could infer from the evidence that while Melchoir was on top of Stuckey his lower body came in contact with her thighs and genital area. A reasonable fact-finder could conclude this contact was for sexual gratification. Stuckey testified after Melchoir entered the hotel room, he locked the door behind him, which means he had to have removed the beanbag. He then pushed Stuckey hard against the bed. Because of the forcefulness of the push, Stuckey hit the wall and fell to the floor. Once she fell, Melchoir lay on top of her and held her down by her shoulders. He began "wiggling" the lower part of his body while lying on top of Stuckey. This evidence taken as a whole is sufficient to establish the element of sexual contact. Melchoir also argues the element of force was not sufficiently established. Stuckey testified Melchoir pushed her hard against -6- the bed. He punched her in the mouth. He held her down by her shoulders. These facts establish the element of force; consequently, this portion of Melchoir's assignment of error is overruled. In the second portion of his assignment of error, Melchoir argues the prosecution failed to establish with sufficient evidence the aggravated felony and violence specifications. We agree. To prove the prior offense specifications, the state customarily introduces certified journal entries, stipulations, or admissions. In this case, the prosecution relied solely on the following exchange: Prosecution: "You have a gross sexual imposition and attempted kidnapping." Melchoir: "And, I also did a sex offender program in Madison. I completed that." This exchange does not prove beyond a reasonable doubt that Melchoir was guilty of the prior offense specification of attempted kidnapping. During oral argument the prosecution admitted the record did not skillfully show that he had obtained the information he needed for a conviction. In fact, the record showed after this exchange, the prosecution did not specifically ask Melchoir if his response meant he had been convicted of attempted kidnapping. Therefore, we must conclude that the record is devoid of any facts that could lead a reasonable fact-finder to conclude beyond a reasonable doubt that Melchoir had been convicted of attempted kidnapping and thereby was guilty of the aggravated felony and violence specifications as set forth in the indictment. State v. -7- Jenks (1991), 61 Ohio St.3d 259, 273 (to support a conviction the evidence, if believed, must convince a reasonable person of the defendant's guilt beyond a reasonable doubt); State v. Gaines (1989), 46 Ohio St.3d 65 (the standard of proof required to support a conviction of a specification is proof of guilt beyond a reasonable doubt). Melchoir is hereby ordered to be resentenced. Judgment affirmed in part and reversed in part. -8- It is ordered that Appellant and Appellee share the 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .