State v. Euton, 2007 Ohio 6704 (Ohio App. 12/17/2007)
| Decision Date | 17 December 2007 |
| Docket Number | No. 2-06-35.,2-06-35. |
| Citation | 2007 Ohio 6704 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Loren E. Euton, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Rob C. Wiesenmayer, II, Attorney at Law, Reg. #0061184, 115 North Ohio Avenue, Suite 502, Sidney, Ohio 45365, for Appellant.
Edwin A. Pierce, Prosecuting Attorney, Amy Otley Fox, Asst. Prosecuting Attorney, Reg. #0059852, P. O. Box 1992, Wapakoneta, Ohio 45895, for Appellee.
{¶1} Defendant-Appellant, Loren Euton, appeals the judgment of the Auglaize County Court of Common pleas convicting him of one count of gross sexual imposition and classifying him as a sexual predator. On appeal, Euton asserts that the trial court violated his constitutional rights by setting bail at fifty-thousand dollars; that the trial court erred by finding that the act of lifting a blanket could constitute force under R.C. 2901.01; that he was denied effective assistance of counsel; and, that he was not afforded the right to a speedy trial. Finding that the trial court erred in finding that the act of lifting a blanket constituted the requisite force to obtain a conviction for gross sexual imposition, we reverse and remand to the trial court for further proceedings consistent with this opinion.
{¶2} On March 15, 2006, Euton was arrested and charged with gross sexual imposition. The next day, the Auglaize County Grand Jury indicted Euton for one count of gross sexual imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth degree. The indictment arose from an incident on March 15, 2006, whereby Euton allegedly fondled a fourteen-year old boy's genitals over his clothing. The trial court set bond at "FIFTY THOUSAND DOLLARS ($50,000.00) TEN PERCENT (10%) BOND POSTED IN THE NAME OF THE DEFENDANT, PLUS AN OWN RECOGNIZANCE BOND," with certain conditions. (Journal Entry on Bond, p. 1). Subsequently, Euton entered a plea of not guilty to the count in the indictment.
{¶3} On April 6, 2006, Euton moved for modification of his bond, requesting that his bond be modified to an own recognizance bond or, alternatively, that the bond amount be reduced to $5,000/10%. The trial court denied Euton's motion.
{¶4} On May 30, 2006, a two-day jury trial commenced, whereat the following testimony was presented.
{¶5} The victim, J.D., testified that, at the time of the incident, he lived in a residence with his father, his brother and sister, and his father's girlfriend, Annie, her three daughters, and her nephew, Michael; that, on March 15, 2006, his father, Annie, and Euton went to a local bar; that he and his brother, Kirk, stayed up playing videogames in the living room; that Euton returned from the bar alone and stumbled into the house; that he and his brother stopped playing videogames, went to their bedroom, closed the sliding pocket door, and laid down; and, that, after he and his brother went to bed, he heard someone open the sliding door and then Euton stumbled into the room and laid down beside him.
{¶6} J.D. then described the events as follows:
State: Okay. So you heard [the door sliding open] first?
J.D.: Yeah. Then [Euton] come stumbling in there and laid beside me and then he started rubbing me on the private parts and stuff.
State: Did you have blankets on?
J.D.: Yes, Ma'am. He went under the blankets.
State: Okay. Did you have pants on?
J.D.: Yes, Ma'am. I had sweats on.
State: And was he on top or underneath your sweats?
J.D.: On top.
State: And when you say private parts, are you talking about your penis?
J.D.: Yes Ma'am.
State: Okay. And what did you do as a result?
J.D.: I jumped up. I grabbed the phone and I ran upstairs to my ex-girl-friend's room * * *. We used to go out before her mom and my dad got hooked up. Well Annie and my dad got hooked up. I sat there and I woke her up and I didn't know what to do.
State: Okay. Did you say anything to [Euton] when he was touching you at first?
J.D.: I told him, — I didn't say nothing and I go, — I got up and when I got up I hit him in the face with my elbow, then I ran upstairs. That's all I said, I said I had to use the restroom.
***
State: And how did you feel at the time?
J.D.: Scared.
State: What were you afraid of?
J.D.: That he was gonna keep following me and doing it.
State: Doing what?
J.D.: Touching me.
{¶7} J.D. testified that he then heard Michael enter the residence; that he told Michael what happened and they called his father; that his father and Annie returned home; that Annie called the police; and, that he never heard Euton make any statements about touching him.
{¶8} On cross-examination, J.D. testified that his father, Annie, and Euton went to the bar around 11:00 p.m.; that he had met Euton two days before the incident; that Euton was visiting Annie; that Euton returned from the bar around 2:20 or 2:30 a.m.; that, after stumbling into the house, Euton tripped and fell in the living room where he and his brother were playing video games; that Euton was drunk; that, about five minutes later, he and his brother went to bed; that he and his brother slept on a mattress on the floor of the bedroom; that the mattress was diagonal to Michael's bed, which was on a bedframe against the wall; that the bedroom was dark; that, two minutes after he went to bed, he heard the door slide open; that Euton stumbled into the room and laid on the floor between the mattress and the other bed; that Euton laid on the floor for about ten minutes, but he did not pay any attention to Euton until Euton started touching him; that Euton did not speak after entering the bedroom; and, that he was lying on his back on the mattress. J.D. continued:
Euton's counsel: Alright. Did you say anything to your brother?
J.D.: Yeah. I go, "Kirk, he's touching me" and he goes, "I don't know what to do" and I go, "Well" and he goes, "Just get up". And I said I had to use the restroom. I got up, and when I went to get up off my knees, I fell back a little bit and I elbowed [Euton] in the face. Then I got up and I ran out of the room.
(Trial Tr., p. 158). J.D. stated that approximately ten minutes elapsed from the time he left the room and the time Michael arrived home and that, during that time, Euton had gotten up and went into Annie's bedroom.
{¶9} J.D.'s brother, Kirk, testified as follows:
State: Tell us what you know, what you saw, and what you heard about that.
Kirk: We were laying (sic.) in bed and J.D. said,
State: How did he say it. Was it like quiet like you just said it? Kirk: Yeah, he whispered it in my ear.
State: He whispered it?
Kirk: Yeah, in my ear.
State: And you were laying (sic.) close together?
Kirk: Yeah, we were laying (sic.) in the same bed.
State: Okay. Was he on his back or on his stomach?
Kirk: On his side.
State: Okay. And he whispered to you?
Kirk:
State: And what happened next?
Kirk: [J.D.] got up and ran upstairs and I ran up behind him.
State: And then what happened?
Kirk: Michael walked in the door and we told Michael.
{¶10} On cross-examination, Kirk testified that he was lying on his side with his back toward J.D. when Euton entered the bedroom; that J.D. was also lying on his side facing Kirk; but, that he did not feel Euton's hand between himself and J.D.
{¶11} Annie and J.D.'s father, James, both testified that Euton was the first person in the group to leave the bar on the night of the incident and that, when they arrived home, J.D. was crying, shaking, and upset.
{¶12} On cross-examination, Annie testified that she and Euton shared an entire twelve-pack of beer at her residence before going to the bar and that Euton had some mixed drinks at the bar.
{¶13} On cross-examination, Michael testified that he met up with James, Annie, and Euton at the bar after he got off of work; that Euton was drinking "quite heavily" at the bar (trial tr., p. 238); and, that Euton left the bar before he did and was "stumbling around" (trial tr., p. 241).
{¶14} Patrolman Andrew Liming of the City of St. Mary's police department testified that he was one of the responding officers on the night of the incident; that, when he arrived at the residence, Euton was outside in a corner behind the house with a blanket over his head; and, that Euton appeared intoxicated because he had bloodshot, glassy eyes and emanated a moderate odor of alcohol.
{¶15} At the close of the State's evidence, Euton moved for an acquittal under Crim.R. 29 on the grounds that the State failed to prove the element of "force or threat of force" as required under R.C. 2907.05. The trial court denied the motion, providing:
The Court concludes that a reasonable jury could conclude that such totality of the circumstances did result in sufficient fright; that the adult putting himself in that circumstance would know that that would scare and frighten a fifteen (15) year old. There is certainly sufficient evidence to show that immediately after it occurred that the boy was frightened. But in addition to immediately after it occurred that the boy was frightened, it's very clear that the boy had it experienced long enough that he was being compelled by that fear while he whispered to his brother, That demonstrates that the boy didn't just immediately upon being touched get up and leave, but instead that the boy was so frightened that he took sufficient time to tell his brother,
And it's reasonable that an adult molesting a boy in the boy's only bedroom the boy knows, in the house where he is the only adult, when confronted with a drunken adult male would anticipate and expect that's exactly the reaction he would get, no resistance. Thus compulsion...
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