State v. Vanpernis
Citation2022 Ohio 4563
Date Filed2022-12-15
Docket22CA3
JudgeHess
Cited1 times
StatusPublished
Syllabus
gross sexual imposition R.C. 2907.05 insufficient evidence
Full Opinion (html_with_citations)
[Cite as State v. Vanpernis,2022-Ohio-4563
.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
State of Ohio, : Case No. 22CA3
Plaintiff-Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Randall W. Vanpernis, : RELEASED 12/15/2022
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
W. Joseph Edwards, The Law Office of W. Joseph Edwards, Columbus, Ohio, for
appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Randall W. Vanpernis1 appeals the judgment of the Lawrence County Court
of Common Pleas convicting him of two counts of gross sexual imposition. In his sole
assignment of error, Vanpernis contends that the evidence was insufficient as a matter of
law to support the convictions because the state failed to offer sufficient evidence that he
actually touched an erogenous zone of the victim. After viewing the evidence in a light
most favorable to the prosecution, we conclude that any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.
Accordingly, we overrule the assignment of error and affirm the trial court’s judgment.
1 The record contains multiple instances of both spellings, “Vanpernis” and “VanPernis.”
Lawrence App. No. 22CA3 2
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Lawrence County grand jury indicted Vanpernis on two counts of gross
sexual imposition in violation of R.C. 2907.05(A)(4), a third-degree felony. He pleaded
not guilty, waived a jury trial, and the matter proceeded with a bench trial.
{¶3} The victim’s mother testified that in mid-December 2020, she became
aware through conversations with neighbors that Vanpernis may have been engaged in
inappropriate sexual activity with the victim, 11-year-old O.B. Law enforcement officials
were notified.
{¶4} Detective Sergeant Bollinger and Sergeant Chaffins conducted a video and
audiotaped interview of Vanpernis and it was introduced at trial. Initially, Vanpernis
admitted to “cuddling on the couch” with O.B. Then Vanpernis stated that O.B. physically
grabbed his penis while they were watching a movie and he pushed her off him and told
her to leave him alone. Vanpernis also stated that O.B. would be “rubbing around on me
big time” but he denied putting his hands in her pants. He denied touching O.B.’s vagina
skin-to-skin and stated that he did not touch it “with intention.” Vanpernis stated that O.B.
would stretch up, cuddle up, and try “to get my hand on her where she wants it.” He
admitted that O.B. was rubbing her vagina on his hand, but it was not skin-to-skin. When
asked, “So when you told [Detective Bollinger] about how, about how the most you’d ever
rubbed it [O.B.’s vagina] thru her clothes was for about a second or two, is that the truth?”
Vanpernis responded, “The whole truth.” Later in the interview, Detective Bollinger states,
“Okay, but you’re bullshitting us. You’re not telling us * * * everything that happened with
[O.B.].” Vanpernis responded, “I told you I rubbed her.” Vanpernis stated that he rubbed
O.B.’s vagina over her pajama shorts for “about a half of a second. And that’s as far as I
Lawrence App. No. 22CA3 3
ever went.” Vanpernis also admitted that O.B.’s pajama shorts were short and he was
rubbing skin-to-skin on her leg. Finally, Vanpernis admitted to rubbing O.B.’s vagina:
Bollinger: How many times did you rub her bare vagina?
Vanpernis: One time, not with my bare hands.
Bollinger: No, don’t tell me, you know that that’s bad.
Vanpernis: I should have waited until you finished your question.
Bollinger: Yeah, but, no, you did rub her bare vagina. But was it only once,
or was it a bunch of times?
Vanpernis: There was not much [sic] of times, no.
Bollinger: One time?
Vanpernis: One time, yeah.
{¶5} O.B. testified that Vanpernis taught her how to search for pornography on
the Internet and that he touched her inappropriately. She testified Vanpernis touched her
vagina with his hand and that this touching occurred on multiple occasions on the living
room couch, her room, and his room. She testified that Vanpernis touched her vagina
with his hand inside her pajamas. O.B. also testified that Vanpernis would force her to
touch his penis with her hand and move it back and forth, which was something that she
watched happen in videos.
{¶6} At the close of the state’s case, Vanpernis made a Crim.R. 29(A) motion for
a judgment of acquittal, which the trial court denied. Vanpernis testified in his own
defense and denied that he ever touched O.B. inappropriately. The judge found him guilty
as charged. The trial court sentenced him to a consecutive total of 108 months in prison
and ordered him to register as a Tier II Sexual Offender.
Lawrence App. No. 22CA3 4
II. ASSIGNMENT OF ERROR
{¶7} Vanpernis designates one assignment of error:
The evidence in this case was insufficient as a matter of law to support the
conviction of appellant and as such, appellant’s rights under the Fifth
Amendment of the United States Constitution and Article 1, Section 16 of
the Ohio Constitution were violated. (Record reference: Appellant pp. A1-
A6)
III. LAW AND ANALYSIS
{¶8} Vanpernis contends that the state failed to offer sufficient evidence of the
“sexual contact” element of gross sexual imposition. Vanpernis asserts the state failed
to introduce evidence that his “hand actually touched an erogenous zone” of O.B. and,
more specifically, the state “never adduced evidence that there was ‘skin-to-skin’ touching
nor did the State adduce evidence that the touching was done for purposes of sexual
gratification.”
{¶9} “A claim of insufficient evidence invokes a due process concern and raises
a question of whether the evidence is legally sufficient to support the verdict as a matter
of law.” State v. Halfhill, 4th Dist. Gallia No. 21CA4, 2022-Ohio-3242, ¶ 16, citing State v. Thompkins,78 Ohio St.3d 380, 386
,678 N.E.2d 541
(1997). In reviewing the sufficiency of the evidence for a conviction, “[t]he 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.” State v. Jenks,61 Ohio St.3d 259
,574 N.E.2d 492
(1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith,80 Ohio St.3d 89, 102
,684 N.E.2d 668
(1997), fn. 4, and following Jackson v. Virginia,443 U.S. 307
,99 S.Ct. 2781
,61 L.Ed.2d 560
(1979). “A sufficiency assignment Lawrence App. No. 22CA3 5 of error challenges the legal adequacy of the state’s prima facie case, not its rational persuasiveness.” State v. Anderson, 4th Dist. Highland No. 18CA14,2019-Ohio-395
, ¶ 13. “That limited review does not intrude on the jury’s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Musacchio v. United States,577 U.S. 237, 243
,136 S.Ct. 709
,193 L.Ed.2d 639
(2016), quotingJackson at 319
. “Therefore, our review is de novo.” State v. Groce,163 Ohio St.3d 387
,2020-Ohio-6671
,170 N.E.3d 813, ¶ 7
.
{¶10} Vanpernis was convicted of two counts of gross sexual imposition in
violation of R.C. 2907.05(A)(4), which states:
No person shall have sexual contact with another, not the spouse of the
offender * * * when any of the following applies:
(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.
{¶11} “ ‘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). Contrary to Vanpernis’s contention, we have long held that the touching does
not have to be “skin-to-skin” contact, but can include touching over clothing. State v.
Young, 4th Dist. Athens No. 96 CA 1780, 1997 WL 522808, *4 (Aug. 15, 1997) (“the definition of ‘sexual contact’ in R.C. 2907.01(B) should be interpreted to include touching of erogenous zones covered by clothing”); see also State v. Robertson, 3d Dist. Henry No. 7-14-16,2015-Ohio-1758
, ¶ 22 (compiling decisions from various Ohio appellate
districts holding that “sexual contact does not require that the offender have skin-to-skin
Lawrence App. No. 22CA3 6
contact with an erogenous zone of the victim; a touching of an erogenous zone covered
by the victim's clothing is sufficient”).
{¶12} After viewing the evidence in a light most favorable to the prosecution, we
conclude that any rational trier of fact could have found the essential elements of gross
sexual imposition proven beyond a reasonable doubt. There is evidence that Vanpernis
had sexual contact with O.B., who was not his spouse and was less than 13 years of age,
by touching her vagina. He admitted to rubbing her vagina at least one time during his
interview with law enforcement officials. Additionally, O.B. testified that he touched her
vagina with his hand under her pajamas on multiple occasions while the two were
cuddling or watching videos. Given these circumstances, any rational trier of fact could
have found that Vanpernis had sexual contact with O.B.
{¶13} Additionally, the evidence supports the trial court's finding that the touching
occurred for the purpose of sexual gratification. We explained the proof of sexual
gratification as follows:
Proof of sexual gratification generally must be accomplished by inference
rather than by direct evidence. See State v. Cobb (1991), 81 Ohio App.3d
179, 185,610 N.E.2d 1009, 1012
. In Cobb, the court noted that: “[T]he
proper method is to permit the trier of fact to infer from the evidence
presented at trial whether the purpose of the defendant was sexual arousal
or gratification by his contact with those areas of the body described in R.C.
2907.01. In making its decision the trier of fact may consider the type, nature
and circumstances of the contact, along with the personality of the
defendant. From these facts the trier of fact may infer what the defendant's
motivation was in making the physical contact with the victim. If the trier of
fact determines, that the defendant was motivated by desires of sexual
arousal or gratification, and that the contact occurred, then the trier of fact
may conclude that the object of the defendant's motivation was achieved.”
Id.See, also, In re Anderson (1996),116 Ohio App.3d 441
,688 N.E.2d 545
;
In re Salyers (June 10, 1998), Ross App. Nos. 97CA2312 and 2319 [1998
WL 321591]; In re Bloxson (Feb. 6, 1998), Geauga App. No. 97–G–2062
[1998 WL 172998] (stating that “[a] sexual purpose can be inferred from the
Lawrence App. No. 22CA3 7
nature of the act itself if a reasonable person would find that act sexually
stimulating to either the offender or the victim”).
(Brackets sic.) In re Higginbotham, 4th Dist. Lawrence No. 04CA26, 2004-Ohio-6004, ¶
18; In the Matter of R.C.,153 N.E.3d 538
,2020-Ohio-1486, ¶ 59
(4th Dist.).
{¶14} Here, the court determined that the touching was done for the purpose of
sexual arousal or gratification. Although there is no direct evidence of Vanpernis’s sexual
motivation, sufficient evidence exists from which the trial court reasonably could have
inferred that he committed the act for purposes of sexual arousal or gratification. A
reasonable person could conclude that Vanpernis’s touching of O.B.’s vagina constituted
contact for purposes of sexual gratification or arousal as it occurred during “cuddling” and
there is no innocent explanation for this behavior.
{¶15} For the foregoing reasons, we conclude that the state presented sufficient
evidence to support a conviction for gross sexual imposition. Accordingly, we overrule
his sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Lawrence App. No. 22CA3 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
LAWRENCE COUNTY COURT OF COMMON PLEAS to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.