State v. Skeins, CASE NO. 2017-T-0018

• Decision Date: 16 January 2018
• Docket Number: CASE NO. 2017-T-0018
• Citation: 2018 Ohio 134
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. GILBERT EUGENE SKEINS, JR., Defendant-Appellant.
• Court: Ohio Court of Appeals

2018 Ohio 134

STATE OF OHIO, Plaintiff-Appellee, v. GILBERT EUGENE SKEINS, JR., Defendant-Appellant.

CASE NO. 2017-T-0018

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

January 16, 2018

OPINION

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CR 00268

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

Kenneth J. Lewis, 1220 West 6th Street, Suite #502, Cleveland, OH 44113 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Gilbert Skeins, Jr., appeals his conviction for rape and gross sexual imposition involving a minor. We affirm.

{¶2} Skeins had one child with Joy Slusher and she was pregnant with their second child in February 2016. Skeins and Slusher resided with Slusher's mother and stepfather in Niles, Ohio. On February 14, 2016, Slusher went shopping with her parents and they left Skeins home alone with the children, which included Slusher's child from another relationship, Slusher's child with Skeins, and Slusher's niece, A.K., who was visiting and had slept over the night before with her cousins. A.K. was five years old at the time.

{¶3} While the kids were watching a movie, Skeins told A.K. to go to the bathroom, which she did. Skeins followed her in and closed the door. He then made A.K. touch his penis with her hands and then cover her eyes while he stuck it in her mouth.

{¶4} Upon returning from the store, A.K. told her grandmother, Davalyne Paden, what Skeins did to her, and upon being confronted, Skeins denied the allegations. He testified at trial and claimed that A.K. was lying.

{¶5} Skeins was indicted in April of 2016 and charged with gross sexual imposition, a third-degree felony, and rape, a first-degree felony with two factual specifications, i.e., the victim was less than ten years old at the time of the offense and the victim was compelled to submit by force or the threat of force under R.C. 2971.03(B)(1)(b) and (c).

{¶6} The jury found Skeins guilty of rape in violation of R.C. 2907.02(A)(1) and gross sexual imposition in violation of R.C. 2907.05(A)(4) & (C)(2) and found the two factual specifications were proven. Skeins was sentenced to 60 months for the gross sexual imposition conviction and a mandatory 25 years to life for rape. The court ordered the sentences to run concurrently and ordered him to register as a Tier III sex offender.

{¶7} Skeins raises two assignments of error that challenge his convictions as not supported by sufficient evidence and his sentence as too harsh.

{¶8} Skeins' first assigned error asserts:

{¶9} "The evidence presented at trial was legally insufficient to support conviction of rape, gross sexual imposition and unlawful sexual conduct with a minor."

{¶10} Although presented as a challenge to the sufficiency of the evidence, Skein's first assignment of error raises manifest weight issues in light of his argument that the victim made up the allegations against him. Thus, we consider whether his convictions are supported by the manifest weight of the evidence, which necessarily encompasses his sufficiency claim as well. State v. Boyd, 6th Dist. Ottawa No. OT-06-034, 2008-Ohio-1229, ¶24; State v. McGowan, 7th Dist. Jefferson No. 14JE37, 2016-Ohio-48, ¶4.

{¶11} "'"[S]ufficiency" is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.' Black's Law Dictionary (6 Ed.1990) 1433. * * * In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560." State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997).

{¶12} "In reviewing a record for sufficiency, '[t]he relevant inquiry is whether, after reviewing 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.' State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560." State v. Were, 118 Ohio St.3d 448, 2008 Ohio 2762, 890 N.E.2d 263, ¶132.

{¶13} "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.' (Emphasis added.) Black's, supra, at 1594.

{¶14} "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 factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211.] See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ('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. Thediscretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.')" Thompkins, at 387.

{¶15} If the trial court's judgment results from a jury trial, it can only be reversed on manifest weight grounds by a unanimous concurrence of all three judges on the appellate panel reviewing the case. Id. at 389. The fact that the evidence is susceptible to more than one interpretation does not render a conviction against the manifest weight of the evidence. State v. Ramey, 2d Dist. Clark No. 2014-CA-127, 2015-Ohio-5389, 55 N.E.3d 542, ¶50, appeal not allowed, 145 Ohio St.3d 1458, 2016-Ohio-2807. "Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses." Id. at ¶51.

{¶16} Skeins was convicted of rape in violation of R.C. 2907.02(A)(1)(b), which states:

{¶17} "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 any of the following applies:

{¶18} "* * *

{¶19} "(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person."

{¶20} "'Sexual conduct' means 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).

{¶21} Skeins was also convicted of gross sexual imposition in violation of R.C. 2907.05(A)(4) & (C)(2). Subsection (A)(4) states,

{¶22} "(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:

{¶23} "* * *

{¶24} "(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person."

{¶25} "'Sexual contact' means 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." R.C. 2907.01(B).

{¶26} The jury found the state proved both beyond a reasonable doubt. It also found the state proved the factual specifications: that the offense involved a victim under the age of ten and that he compelled her to comply via force or the threat of force.

{¶27} The victim, A.K., was the state's first witness. She was in first grade and six years old at the time of trial. She explained that Skeins was watching her and her cousins for the first time and they were watching a movie. Skeins told her to go into the bathroom, and she did. Skeins followed her in and closed the door. He made her cover her eyes and he put his penis in her mouth. He also told her not to tell anyone or hewould "whoop [her] ass." She also explained that he made her touch his penis with her hands. When she was asked what if felt like, she said "a pee pee."

{¶28} When A.K.'s grandparents and aunt returned from shopping, A.K. recalls telling her grandmother what Skeins did to her. She later told her father and her Aunt Joy as well. They took her to the police station and the hospital. She threw up in her dad's car on the way to the hospital.

{¶29} A.K. identified Skeins at trial and said she did not make this story up. She said she was telling the truth. Upon being asked about other allegations she allegedly made up about...