Opinion
23 CA 0967
07-10-2024
STATE OF OHIO, Plaintiff-Appellee, v. BRUCE A. VANFOSSEN, Defendant-Appellant.
Atty. Steven D. Barnett, Carroll County Prosecutor and Atty. Michael J. Roth, Assistant Prosecutor, for Plaintiff-Appellee Atty. Aaron Kovalchik, for Defendant-Appellant
Criminal Appeal from the Court of Common Pleas of Carroll County, Ohio Case No. 2021 CR 06572
Atty. Steven D. Barnett, Carroll County Prosecutor and Atty. Michael J. Roth, Assistant Prosecutor, for Plaintiff-Appellee
Atty. Aaron Kovalchik, for Defendant-Appellant
BEFORE: Cheryl L. Waite, Carol Ann Robb, Katelyn Dickey, Judges.
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} Appellant Bruce A. VanFossen appeals a May 22, 2023 Carroll County Court of Common Pleas judgment entry convicting him of four counts of gross sexual imposition. Appellant argues that both victims lacked credibility, thus his convictions are against the manifest weight of the evidence. For the following reasons, Appellant's arguments are without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} A brief description of the parties is necessary in order to understand this case. At the time of all relevant incidents, Appellant was married to Charlene VanFossen, also referred to as "Nikki" in the record. C.T., the first victim to come forward, is the daughter of Appellant's coworker, K.T., and the sister of H.T., a witness in the case. Two other coworkers attended the party where the incident occurred and are relevant to this appeal: Charlie Schrader and Daniel Hursey. The second victim, A.D., is Charlene's daughter and Appellant's stepdaughter.
{¶3} The incidents are addressed out of order here, as the earlier incident was not reported until after the second. This has some relevance to Appellant's arguments. The first reported incident occurred during a Memorial Day party in 2020 which was held at the Schrader family property. The property consists of several acres of land. It is owned by Charlie Schrader's parents, but it appears his own house may be built on part of the property.
{¶4} Significantly, all parties agree that heavy alcohol consumption and drug use occurred during the party. Appellant concedes that he purchased and supplied most, if not all, of the alcohol. Although Appellant initially denied drinking any alcohol during the event, he later conceded that he lied and that he did drink at the party. Appellant also made allegations that alcohol and drugs were being provided to minor children. Appellant initially accused C.T. of drinking and using drugs, a claim he later admitted was also false.
{¶5} Moving to the actual incident, the party guests engaged in an activity referred to as "mudding." In essence, partygoers drove vehicles on paths maintained in the acres of open field on the property. The goal was to drive through large ditches in the pathway that would fill with water during rain and create large mud holes. Each "mudding" round was described as lasting for approximately thirty minutes.
{¶6} During the party, two vehicles were on this course: a Jeep operated by Hursey, and a truck operated by Schrader. The incident occurred inside the Jeep operated by Hursey. Charlene sat in the front passenger seat, A.D. sat in the backseat behind Hursey, Appellant sat in the middle of the backseat bench, and C.T. was seated on Appellant's right.
{¶7} During the run, the Jeep got stuck in one of the ditches, requiring Schrader to tow it using his truck. As the passengers exited the vehicle, C.T. announced that she did not want to continue and intended to return to the house. Hursey became concerned, believing it was not normal for a child to want to leave the course and walk the far distance to the house instead of continuing the run.
{¶8} C.T.'s sister, H.T., accompanied her on the walk and observed behavior from C.T. that was of concern. According to H.T., C.T. was visibly upset, cried at times, and vomited. Although C.T. initially was not forthcoming to H.T. about the cause of her distress, she finally admitted that Appellant had touched her breasts several times during the run and also placed his hand on her thigh in a sexual manner, causing her to cross her legs to prevent his advances. C.T. told H.T. that she did not say anything while in the vehicle because she was shocked, scared, and feared that no one would believe her. H.T. convinced C.T. to disclose the conduct to their stepmother, who then informed C.T.'s father about the allegations.
{¶9} By the time the vehicles returned from the course, attendees who had not engaged in the "mudding" runs now knew of the allegations and waited for Appellant's return. When the vehicle approached the area, guests demanded that Appellant get out of the vehicle. The other riders were initially confused by their reception. Apparently, some guests violently confronted Appellant. Appellant initially claimed that he was seriously injured after this confrontation, but later conceded that he and his family were able to immediately leave relatively unscathed.
{¶10} Appellant told investigators during a subsequent interview that someone, apparently another guest, showed up at his house after the party with a gun and threatened him. Police arrived and the man left the property. Although Appellant denied that he also had a gun, he later conceded that he did.
{¶11} While investigators reviewed the initial allegations by C.T., A.D. confided in her counselor that Appellant had sexually abused her. It is unclear exactly what she told the counselor, but at trial she described three separate incidents. The first occurred during one of Appellant's child custody exchanges with the mother of his young child. Apparently, these exchanges regularly occurred at a Speedway gas station. During this exchange, Appellant had already returned the child to the mother and sat in his truck with A.D., his stepdaughter. As there was no backseat, A.D. sat next to Appellant. The carseat was on her other side. She stated that Appellant touched her and attempted to place his hands underneath her shorts. He became frustrated and drove off when she blocked his advances by crossing her legs.
{¶12} The other two incidents occurred at their home. On one occasion, she sat on a couch next to Appellant playing a game on his phone. "And I sat up, he tried to touch my chest, as I was playing and I didn't want to move or say anything due to anything being twisted and my mom just getting mad about it and yelling at me." (Trial Tr. Vol. II, p. 220.) The third, and final, incident occurred in Appellant and Charlene's bedroom. Charlene was sleeping at the time. As A.D. had trouble sleeping, she entered the room and laid down at the bottom of her mother's bed. She awoke to discover Appellant touching her breasts. She believes this conduct continued for about five minutes.
{¶13} Charlene testified that she began living with Appellant in May of 2018. Appellant has a child with another woman. He initially had only supervised visitation with this child but this was later changed to unsupervised visitation. Charlene admitted that domestic violence occurred within the home, saying that while Appellant initiated the violence, she responded with violence of her own. (Trial Tr. Vol II, p. 49.)
{¶14} At some point, Appellant was arrested and jailed based on the girls' allegations. A.D. disclosed to law enforcement that Charlene had been pressuring her to recant her allegations, and the court ordered all parties to cease communications with A.D. Several phone calls between Appellant and Charlene while he was jailed appear to confirm their attempts to force A.D. to recant. Sometime after these calls, A.D. elected to move in with her father and terminate visitation with her mother for a time.
{¶15} On January 6, 2021, Appellant was indicted on four counts of gross sexual imposition, felonies of the third degree in violation of R.C. 2907.05(A)(4), and one count of sexual imposition, a misdemeanor of the third degree in violation of R.C. 2907.06(A)(4).
{¶16} The matter proceeded to a bench trial where the trial court found Appellant guilty of all four counts of gross sexual imposition, but not guilty of sexual imposition. The court sentenced Appellant to twenty-four months of incarceration on each count, to run consecutively, for an aggregate total of ninety-six months in prison. The court advised Appellant that he would be subject to a five-year mandatory term of postrelease control and of his Tier II sex offender status.
{¶17} On direct appeal, we reversed the judgment of the trial court because the court failed to properly obtain Appellant's waiver of a jury trial. State v. VanFossen, 2022-Ohio-4022, 199 N.E.3d 716, ¶ 26 (7th Dist.). The matter was remanded for a new trial.
{¶18} On remand, the jury venire was near its completion when Appellant indicated that, once again, he wished to waive his right to a jury trial and sought to have the matter heard to the bench. The case did proceed to a second bench trial, which was heard by a visiting judge due to the fact that the initial judge had presided over Appellant and Charlene's divorce, which occurred after his first trial.
{¶19} Bench trial commenced on April 17, 2023 and was completed the next day. Appearing for the state were: Officer James Lamont (Carroll County Sheriffs Office), C.T. (second victim), H.T. (C.T.'s sister), A.D. (first victim and Appellant's former stepdaughter), Daniel Hursey (driver of the Jeep), and Richard Stauffer (Carroll County Prosecutor's Officer). While Charlene (mother of A.D., Appellant's now ex-wife) also testified, she was called as a witness of the court so that both sides could cross-examine her, due to the divorce. The defense called the following witnesses: Lori VanFossen (Appellant's mother), Miriam Huff (Appellant's sister), and Appellant.
{¶20} The court again found Appellant guilty of all gross sexual imposition charges. Because Appellant had already been acquitted of the sexual imposition charge during his first bench trial, that count was not at issue during the second trial.
{¶21} On May 22, 2023, the court sentenced Appellant to two years on each of the four counts, to run consecutively, for an aggregate total of eight years in prison. The court awarded him 481 days of credit. The court imposed a mandatory five-year postrelease control term and informed Appellant of his status as a Tier II sex offender. It is from this entry that Appellant timely appeals.
ASSIGNMENT OF ERROR
APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶22} Appellant was convicted of offenses against two victims: C.T. and A.D. Appellant's arguments regarding both victims are based almost entirely on credibility. While Appellant's arguments are similar as to both victims, we address these separately to avoid confusion.
General Law
{¶23} 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." (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). It is not a question of mathematics, but depends on the effect of the evidence in inducing belief. Id. Weight of the evidence involves the state's burden of persuasion. Id. at 390, 678 N.E.2d 541 (Cook, J. concurring). An appellate court reviews 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. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, at 387, 678 N.E.3d 541. This discretionary power of the appellate court to reverse a conviction is to be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id.
{¶24} "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to weigh the evidence and judge the witnesses' credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). A trier of fact is free to believe some, all, or none of each witness' testimony and they may separate the credible parts of the testimony from the incredible parts. State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). When there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, we will not choose which one is more credible. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶25} "A reviewing court should not reverse a judgment as against the manifest weight of the evidence in a bench trial where the trial court could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt." State v. Howell, 2017-Ohio-728, 86 N.E.3d 114, ¶ 16 (7th Dist.), citing State v. Andric, 7th Dist. No. 06 CO 28, 2007-Ohio-6701; State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988).
{¶26} In each instance, Appellant was convicted on counts of the same offense (gross sexual imposition) in violation of R.C. 2907.05(A)(5). That statute provides:
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: * * * 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.
{¶27} There does not appear to be any argument in this matter that either victim was over the age of thirteen at the time of the offense. Thus, the issue as to both victims is limited to whether the state proved Appellant had sexual contact with them. Because the evidence is different as to each victim, they will be separately addressed.
{¶28} As to C.T., Appellant argues that three other people were inside the Jeep at the time of the alleged conduct, yet no one was able to corroborate any of C.T.'s allegations. Appellant urges that C.T. did not tell anyone at the time, despite the presence inside the Jeep of multiple adults other than Appellant, and instead waited to make her disclosure until after Appellant allegedly expressed displeasure that other adults at the party had provided minors with drugs and alcohol. Appellant also takes issue with the fact that C.T. was not subject to a forensic interview.
{¶29} The state responds that neither eye witnesses nor corroborating evidence are a prerequisite to a GSI conviction. The state urges that Appellant's arguments are all based on credibility, and credibility determinations are largely left to the trier of fact. The state also contends that C.T. could not have been influenced by Appellant's alleged threat to report drug and alcohol use by minors because C.T. did not consume either alcohol or drugs at the party and her parents were not the persons Appellant apparently accused of providing contraband to minors.
{¶30} We begin with Appellant's attacks on C.T.'s credibility. While Appellant believes that if C.T.'s allegations were true, one of the other three occupants of the Jeep would have seen the alleged conduct taking place, the testimony of C.T., Hursey, and A.D. all negate this argument. C.T. described Appellant's action as discreet: he placed his arm around her in what could be interpreted as an attempt to protect her during the bumpy ride, since there were no seatbelts. According to C.T., while his arm was around her he tried to touch her, putting his hand through the armhole of her tank top to touch her chest. Hursey testified that the Jeep did not have mirrors that would have allowed him to see the passengers seated behind him. Even so, he testified that the rough terrain of the paths required all of his attention and focus, and he was not looking behind him at the backseat. A.D. testified that Appellant sat between her and C.T. Because Appellant is so much taller than the two girls, she testified that she would not have been able to see over him and observe anything happening on his far side. She also testified that she was preoccupied during the ride, as she played with a large ball of mud she had collected during one of the stops.
{¶31} As explained by the Third Circuit Court of Appeals, "[a]n eyewitness is not, however, a prerequisite for a conviction. We have recognized that 'inferences from established facts are accepted methods of proof when no direct evidence is available so long as there exists a logical and convincing connection between the facts established and the conclusion inferred.'" United States v. Perry, 144 Fed.Appx. 942, 945 (3rd Circuit.2005), citing United States v. Cartwright, 359 F.3d 281, 287 (3d Cir.2004).
{¶32} Appellant tried to deflect C.T.'s allegations by claiming that he held Charlene's hand during the ride. While Charlene corroborated this, she admitted that she did not hold his hand during the entire ride. Even if she had, it was Appellant's other arm that was allegedly placed around C.T.
{¶33} Appellant attacks C.T. by claiming she failed to "timely" disclose the allegations and by claiming her allegations were made in retaliation because he says he threatened to call police and report that other adults were providing drugs and alcohol to children.
{¶34} Appellant is correct that C.T. did not disclose the behavior as it occurred. However, she did confide in her sister minutes after exiting the vehicle. Thus, the record reflects her disclosure was made very close in time to the incident. Regardless, "it is not uncommon for victims of abuse, especially such young victims, to withhold disclosure of abuse, because they are not comfortable with the setting or interviewer, or both, or because they may feel fear, guilt, or some form of responsibility for withholding disclosure, or some combination of all of these things." United States v. Kellogg, N.D.Ohio No. 3:14-CR-00199, 2016 WL 737690, *3.
{¶35} C.T. testified that she did not speak up while inside the Jeep because she was afraid no one would believe her. Due to her young age and the fact that two of the other three passengers of the Jeep were related to Appellant (his wife and stepdaughter), her stated fear of not being believed does not appear unreasonable. There is no evidence in this record to support Appellant's assertion there was unreasonable delay in disclosure.
{¶36} Also, while C.T. did not immediately verbalize her allegations, her behavior at the time indicated that she was in some sort of distress. Hursey testified that he was concerned when C.T. said she wished to walk back to the house instead of continuing on the mudding run. He testified that he was "curious on why the hell she wanted to walk back to the house and, you know, and it's dark out and you know, we're all out there riding. And I was like, something that never happens that kids to get out the vehicles in the middle of a run just to go back home. That, that was not nothing, no." [sic] (Trial Tr. Vol. II, p. 122.)
{¶37} Appellant's claim that C.T. invented her allegations in retaliation for his alleged intent to report other adult partygoers to the police for serving drugs and alcohol to minors is completely unsupported by the record. Further, it is Appellant's credibility that appears in doubt, here. Appellant provided several different versions of the events at the party to the authorities. Although Appellant originally accused C.T. of being under the influence, he later admitted that he lied to investigators and that she had not consumed any alcohol or drugs. As Appellant did not accuse C.T.'s father or stepmother of providing illegal substances to minors, there is no reason C.T. would want or need to seek any kind of "retaliation" after he allegedly threatened to report wrongdoers to the police.
{¶38} Appellant told investigators that he supplied all the alcohol at the party. In fact, A.D. testified that Appellant had offered her a beverage in a cooler container, but she declined as she was unsure of its contents. There is no support for Appellant's contention there was any outside motivation for C.T. to make false accusations of sexual abuse against Appellant in this record.
{¶39} We note that the record does reflect that throughout the investigation, Appellant accused others of misconduct in order to redirect investigators away from him. During an interview with investigators, Appellant blamed three different groups of people for bringing alcohol to the party. When investigators reminded Appellant that he specifically told the investigators he was the one who supplied all the alcohol, his only comment was that "it was just a mess." (State's Exh. I, 32:20.) He also claimed that one of the party guests had just been released from prison. He alleged that this man, along with Hursey and K.T. (who were all his coworkers) were involved in a large drug ring. His explanation for failing to earlier report this to police was that "it always ends up bad for [him]." (State's Exh. I.)
{¶40} Appellant also alleged he saw marijuana plants growing near the grilling area on the Schrader property, something that police did not observe while at the scene. The investigator questioned why he would stay at the party with his stepdaughter if he knew the party was being held in a drug-friendly environment. Appellant responded, "I see where this is getting at." (State's Exh. I, 1:03.) The investigators asked Appellant why he never attempted to take photographs or obtain other evidence of drug distribution, since he allegedly made threats to report the behavior to authorities. Appellant had no response. During the investigation, Appellant claimed that Schrader took an hour to pick up a young girl who lived near the property during the party, insinuating that Schrader may have engaged in illicit behavior with the girl during that time. Appellant responded to a complaint made by a neighbor about him to investigators with an accusation that the neighbor was a drug dealer. Appellant also accused A.D.'s father and his girlfriend of inappropriate behavior. It is clear that Appellant's credibility, and not his victim's, was at issue in this case.
{¶41} Appellant also complains that C.T. was not subject to a forensic examination. We note that such examinations are not required under law. Insofar as Appellant seeks to use this failure as a cloud on C.T.'s credibility, we again note that determining the credibility of any given witness is solely a function of the trier of fact, who evidently did not find C.T.'s credibility problematic.
{¶42} This record is replete with evidence that, if believed, supports a conviction on one count of gross sexual imposition as to C.T.
{¶43} Turning to the convictions based on his actions with A.D., Appellant's arguments regarding her allegations are wide ranging, but again are based on credibility. Appellant again attacks the lack of corroborating evidence, and urges that even A.D.'s mother (Charlene) testified that she did not believe the allegations. Appellant contends A.D. previously made a false report concerning sexual abuse involving a neighborhood boy, implying that she has developed a pattern of false accusations of sexual abuse. Appellant raises issues with A.D.'s mental state, claiming she said she could "see" her unborn, deceased sister. Appellant urges that A.D. could not correctly identify the color of the truck in which she said he abused her on one occasion. Appellant also questions the timing of A.D.'s disclosure, as A.D. could not provide a concise date for the incidents and did not raise any of her allegations until after C.T. made her claims.
{¶44} The state responds that A.D.'s claims have been consistent from the time she disclosed the abuse to her counselor, throughout trial. While A.D. did mention "seeing" her unborn sister, the state points to her state of victimization and the general dysfunction within the family in explanation. As to claims that A.D. made prior unsubstantiated allegations of sexual abuse in the past, the state clarifies that A.D. did discuss with her mother that there was a boy who followed her around and that his attention was unwanted, but she never claimed that the boy touched her. The state notes that Appellant, himself, provided inconsistent testimony regarding his truck.
{¶45} As to his argument that Charlene (A.D.'s mother), did not believe her own daughter, this is irrelevant. Regardless, there is ample evidence on the record that she pressured A.D. to recant her allegations at the request of Appellant. We also note Charlene testified that "I've never not believed her. I can't believe something I have never fully heard, what exactly happened or the allegation. I've never been able to speak to her about the allegations." (Trial Tr. Vol. II, p. 42)
{¶46} At trial, A.D. and the prosecutor addressed the pressure Charlene placed on A.D. to recant her allegations:
Q Was there a point in time where your, your mother pressured you to change your story?
A Yes.
Q Uh…why…why did your mom ask you to change your story?
A She didn't want him to go to jail. She didn't want him to lose custody of [his natural child] either.
Q You didn't…how did she go about asking you?
A She yelled in my face. Told me that I was lying. Um…she pushed and pushed and pushed just to get me to change my story after I had tried to explain to her what had happened.(Trial Tr. Vol. I, p. 228.)
{¶47} This testimony is supported by the recorded jail calls between Appellant and Charlene. Although Appellant maintained his innocence throughout these phone calls, it is clear that he directed Charlene to pressure A.D. to change her story. In the first call, Appellant asked Charlene if she had spoken to A.D. yet. When Charlene responded that she had not, Appellant became upset. Stating that the case would come down to A.D., Appellant ordered Charlene to "talk some sense into her." (Exhibit A, 4:20.) He threatened that if A.D. did not recant, they would "send her back to her dad's." (Exhibit A, 4:40.) Believing that no charges as to either victim would have been filed absent A.D.'s reporting, he stated "I was already told this, that it would have been done and over with if she hadn't have pulled her bullshit." (Exhibit A, 8:31.)
{¶48} In a second call, Charlene informed Appellant that she had talked to A.D. "and this will be cleared up." (Exhibit B, 2:09.) Appellant asked her if she had recorded the conversation. She replied that she had not, on the advice of her attorney. Appellant became upset and Charlene assured him that she would get another conversation recorded. He responded, "well, you better because it's the only thing keeping me from (inaudible.") (Exhibit B, 2:57.) He stated that she needed to "do a better job. I love you, but, damn. You had it and you pissed it away." (Exhibit B, 3:31.) He later ordered her to obtain a recording of A.D. recanting by doing "whatever it takes." (Exhibit B, 4:27.) It is clear from this exchange that Appellant believed a recorded confession would result in the dismissal of all of his charges.
{¶49} In a third call, Charlene handed A.D. the phone. A.D. seemed surprised to find Appellant on the line. Appellant told her that he loved her and began crying. After a few seconds of silence, she said "we're going to get this all cleaned and fixed and hopefully you can come home." (Exhibit B, 10:27.) He responded, "as long as the judge believes it." (Exhibit B, 10:30.) It appears that the purpose of this call was for Appellant to have a recording of A.D. recanting using the jail phone, which Appellant knew to be recorded. A.D.'s end of the conversation, however, sounds uncomfortable and forced.
{¶50} It appears from this same call that Appellant and Charlene were attempting to keep information about Appellant's arrest and subsequent jailing from the mother of his child. The child had been visiting with Charlene. However, during a subsequent phone call, Charlene informed Appellant that the child's mother became aware of his arrest and she was forced to return the child to the mother.
{¶51} Collectively, the jail calls corroborate A.D.'s assertion that Charlene sought to force her to recant after Appellant's repeated requests, claiming that he feared he would lose visitation with his other child. In the first three calls, Appellant badgered Charlene about obtaining a recorded recantation. He expressed a belief that he would be released and not charged with any crime if A.D. would recant. Once A.D. joined the third call, Appellant cried and expressed his love for A.D. in order to cajole her into compliance, despite the anger towards A.D. he expressed to Charlene in the previous calls.
{¶52} Significantly, A.D. chose to leave her mother's home and to live with her father shortly after learning of these phone calls and specifically voiced her desire to cease visitation with her mother. She testified that the reason she no longer wanted to visit with her mother was the pressure to recant placed on her by her mother and Appellant. While Appellant seeks to undermine A.D.'s credibility with these exhibits, they actually appear to support her credibility.
{¶53} Appellant contends that, contrary to A.D.'s testimony, he did not own a GMC Sonoma truck. At trial, she testified that the incident of touching that occurred during a visitation exchange with the mother of Appellant's natural child took place in Appellant's red GMC Sonoma truck. As noted by the state, the divorce decree awarded Appellant "[a] 1998 GMC Sonoma, titled to Husband." (Defendant's Exh. 1.) Further, when asked about his vehicle in a recorded interview with investigators following A.D.'s allegations, he described his truck as a "GMC Sonoma." (State's Exh. 1, 1:30.)
{¶54} Appellant also attempts to attack A.D.'s credibility with a story about A.D. allegedly accusing a neighborhood boy of inappropriate touching. However, the record shows that A.D. testified that she never accused the boy of touching her. Instead, she told her mother that a neighborhood boy was following her around, and that she wanted him to stop. Again, we note that where two versions of a story appear equally plausible, it is the finder of fact's role to determine credibility and this will not be disturbed on appeal.
{¶55} Appellant also attacked A.D.'s mental health by asserting that she has visions of her unborn, deceased sister. This is an exaggeration and mischaracterization, at best. A.D. testified that she used to see "a line of light" when things were bad in her life but no longer sees this light, as her life is better now. She believed the light represented the spirit of her sister protecting her. She never claimed to have seen or interacted with some sort of "ghost."
{¶56} As with C.T., Appellant contends that A.D. lacked credibility and that the trial court should not have believed her. Thus, Appellant asserts his convictions on three counts of gross sexual imposition regarding A.D. were against the manifest weight of the evidence. This record reveals no cloud on the victims' credibility and the record here fully supports Appellant's convictions.
{¶57} Because the arguments relied on by Appellant regarding both victims are either directly contradicted by the record or raise issues of credibility for which the trier of fact's determination may not reasonably be second guessed, Appellant's sole assignment of error is without merit and is overruled.
Conclusion
{¶58} Appellant argues that both victims lacked credibility, thus his convictions are against the manifest weight of the evidence. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.
Robb, P.J. concurs.
Dickey, J. concurs.
For the reasons stated in the Opinion rendered herein, Appellant's assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Carroll County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.