State v. Horn , 108 N.E.3d 158 ( 2018 )

[Cite as State v. Horn, 2018-Ohio-779.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-16-053
Appellee Trial Court No. 2015CR0474
v.
Michael C. Horn DECISION AND JUDGMENT
Appellant Decided: March 2, 2018
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Neil S. McElroy, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common
Pleas which, following a jury trial, found appellant guilty of six counts of rape with
sexually violent predator specifications. For the reasons set forth below, this court
affirms the judgment of the trial court.
{¶ 2} Appellant, Michael C. Horn, was the 40 year old step-father and step-uncle
to the two victims, S.M. and J.M., respectively, who were 13 to 14 years old at the times
of the rapes. S.M. and J.M. are first cousins. On November 10, 2015, the Wood County
prosecutor filed six bills of information against appellant: (Count 1) rape of S.M., in
violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time period 1;
(Count 2) rape of S.M., in violation of R.C. 2907.02(A)(2) and (B), a first degree felony,
during time period 1; (Count 3) rape of S.M., in violation of R.C. 2907.02(A)(1)(c) and
(B), a first degree felony, during time period 2; (Count 4) rape of S.M., in violation of
R.C. 2907.02(A)(2) and (B), a first degree felony, during time period 2; (Count 5) rape of
J.M., in violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time
period 3; and (Count 6) rape of J.M., in violation of R.C. 2907.02(A)(2) and (B), a first
degree felony, during time period 3. Following the jury trial held March 7-10, 2016,
appellant was convicted on all six counts. The jury verdict judgment entry was
journalized March 15, 2016.
{¶ 3} Each of the six counts also carried a sexually violent predator specification
pursuant to R.C. 2941.148(A). Following a bench trial held July 26, 2016, appellant was
convicted on all six counts of the sexually violent predator specifications. The sexually
violent predator specification verdict judgment entry was journalized September 8, 2016.
{¶ 4} Subsequently on September 13, 2016, the trial court held the sentencing
hearing. Appellee stipulated to the merger of Count 2 into Count 1, Count 4 into Count
3, and Count 6 into Count 5. For each of the Counts 1, 3 and 5, the trial court sentenced
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appellant to serve a prison term of ten years to life to be served consecutively. The trial
court journalized the sentencing judgment entry on September 22, 2016 followed by a
nunc pro tunc judgment entry on September 28, 2016.
{¶ 5} It is from the trial court’s September 28, 2016, journalized judgment entry
which appellant filed his appeal on October 17, 2016.
{¶ 6} Appellant sets forth five assignments of error:
I. The admission of other-acts testimony violated Mr. Horn’s right
to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution, and Section 16, Article I of the Ohio
Constitution.
II. Application of the rape-shield law resulted in a deprivation of
Mr. Horn’s constitutional rights to confront and cross-examine witnesses,
his right to present a defense, and his right to a fair trial and due process of
law, in violation of the U.S. Constitution’s Fifth, Sixth, and Fourteenth
Amendments and Article I, Sections 10 and 16 of the Ohio Constitution.
III. Mr. Horn’s conviction under the Sexually Violent Predator
specification is against the manifest weight of the evidence.
IV. The trial court abused its discretion when it permitted a
counselor to testify regarding Asperger’s syndrome in violation of Evid.R.
401, 402, and 403 resulting in violation of Mr. Horn’s right to a fair trial, as
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guaranteed by the Fifth and Fourteenth Amendments to the United States
Constitution, and Section 16, Article I of the Ohio Constitution.
V. Mr. Horn’s convictions for violations of R.C. Sec.
2907.02(A)(1)(c) are not supported by legally sufficient evidence.
{¶ 7} Appellant’s first, second and fourth assignments of error question the
admissibility of evidence by the trial court and will be addressed together. We review a
trial court’s decision to admit or exclude evidence for abuse of discretion. State v.
Richardson, 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471, ¶ 66. Abuse of discretion
connotes the record shows the trial court’s decision was unreasonable, arbitrary or
unconscionable. Id. The abuse of discretion must also create a material prejudice. State
v. Teal, 6th Dist. Lucas Nos. L-15-1280, L-15-1281, 2017-Ohio-7202, ¶ 16.
{¶ 8} In order for the jury to find appellant guilty of rape in Counts 1, 3 and 5,
appellee must prove beyond a reasonable doubt that appellant violated R.C.
2907.02(A)(1)(c), which provides:
No person shall engage in sexual conduct with another who is not
the spouse of the offender * * * when * * * (c) The other person’s ability to
resist or consent is substantially impaired because of a mental or physical
condition or because of advanced age, and the offender knows or has
reasonable cause to believe that the other person’s ability to resist or
consent is substantially impaired because of a mental or physical condition
or because of advanced age.
4.
{¶ 9} In order for the jury to find appellant guilty of rape in Counts 2, 4 and 6,
appellee must prove beyond a reasonable doubt that: “No person shall engage in sexual
conduct with another when the offender purposely compels the other person to submit by
force or threat of force.” R.C. 2907.02(A)(2).
{¶ 10} For any rape crime, the victim need not prove physical resistance to the
offender. R.C. 2907.02(C).
{¶ 11} The lengthy jury instructions stipulated by the parties and read to the jury
contained all of the relevant definitions associated with the elements of these crimes.
Admissibility – “Other Acts” Evidence
{¶ 12} The focus of appellant’s first assignment of error are Counts 1 through 4
for the rapes of S.M. Appellant argues Evid.R. 404(B) prohibits the introduction of
“other acts” evidence of matters extrinsic to the operative facts of the underlying charges
in order to prove the offenses alleged, and his due process rights were violated because
these other acts were neither temporally related, nor circumstantially related, to the
operative facts of the offenses alleged. Appellant argues S.M.’s testimony was not
temporally related “regarding four other acts, some of which occurred at an unspecified
time prior to the alleged incidents, and others that occurred six months after the charged
offense in counts 1 and 2, and eight to nine months before the charged offense in counts 3
and 4.” Appellant further argues S.M.’s testimony was not circumstantially related
because “there was nothing so unusual or distinctive about spanking a bare bottom,
offering to assist in shaving pubic hair, performing cunnilingus, or putting her hand on
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[appellant’s] penis. And each of those instances was different from each other, and each
was different from the two charged incidents.”
{¶ 13} In response appellee argues the trial court did not abuse its discretion
because uncharged sex crimes against the same victim by the same defendant are not
subject to exclusion under Evid.R. 404(B) “for such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In
addition to identifying the perpetrator, the other acts testimony also showed appellant’s
grooming plan to create a trust relationship with S.M. to submit to his sexual conduct.
Appellee argues the other acts testimony was admissible because it was more probative
than any unfair prejudice to appellant.
{¶ 14} Evid.R. 404(B) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. In criminal cases, the proponent of evidence to be
offered under this rule shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
{¶ 15} Evidence of other acts may be used to show appellant is the actual
individual who committed those offenses to establish a behavioral fingerprint to identify
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him as the perpetrator through the characteristics of the acts rather than through his
character traits. Richardson, 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471, at ¶ 69.
The other acts evidence must also be temporally and circumstantially related to the
operative facts of the charged offense. Id. at ¶ 70.
{¶ 16} Consideration of other acts evidence is a three-step analysis: (1) pursuant to
Evid.R. 401 whether the other acts evidence is relevant to making any fact that is of
consequence to the determination of the action more or less probable than it would be
without the evidence; (2) whether the other acts evidence is presented solely to prove the
character of the accused in order to show activity in conformity therewith or whether the
other acts evidence is presented for a legitimate purpose; and (3) pursuant to Evid.R. 403
whether the probative value of the other acts evidence is substantially outweighed by the
danger of unfair prejudice. Teal, 6th Dist. Lucas Nos. L-15-1280, L-15-1281, 2017-
Ohio-7202, ¶ 18.
{¶ 17} The operative facts of the charged offenses begins our analysis. The record
shows the first two rape convictions (Counts 1 and 2) involved digital penetration of
S.M.’s vagina and stimulating her clitoris while she was asleep, when she was a ninth
grader. The third and fourth rape convictions (Counts 3 and 4), also when S.M. was a
ninth grader, involved digital penetration of her vagina and stimulating her clitoris
followed by the insertion and use of sex toys in her vagina and anus while awake. In
each instance S.M. was alone with the appellant at the home they shared and in a
situation where she felt helpless and could not stop the rape. After each rape S.M. felt
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ashamed and isolated from her family, friends and teachers because “no one believed”
her, and no one stopped appellant, even when she did tell adults. S.M. came to fear
appellant. S.M.’s mother testified she observed appellant yell at S.M., and on one
occasion it was “beyond normal dad behavior.”
{¶ 18} The record also shows testimony regarding the following other acts
evidence was discussed by S.M. and corroborated by one or more other witnesses.
{¶ 19} At trial S.M. testified to three separate events while an eighth grader: 1)
appellant ordered her to drop her pants and panties and spanked her bare bottom and
demanded she count the spanks and thank him for them; 2) appellant offered to shave her
pubic hair; and 3) appellant gave her a birds-and-bees talk that involved appellant using
his personal copy of the “Kama Sutra,” which she described as “the Indian book on sex
positions” with graphic pictures.
{¶ 20} At trial S.M. testified to two separate events while a ninth grader: 1)
appellant ordered her to drop her pants and panties and he examined her vagina and
clitoris with his tongue and fingers to make sure she’s “not ripped up” and then examined
her anus with his finger covered in Vaseline; and 2) while appellant wore boxer shorts
and had a partial erection, he grabbed her hand to put it over his penis to demonstrate “he
was too big for me and that if he would have raped me, it would have tore me up.”
{¶ 21} Grooming is the process by which appellant took deliberate actions to
expose S.M. to sexual material and to sexual behaviors to prepare S.M. for sexual
activity. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 21.
8.
The other acts testimony appeared to describe aspects of appellant’s grooming process
conditioning S.M. to submit to appellant’s sexual behaviors that occurred while she was
an eighth and ninth grader.
{¶ 22} The first step of other acts evidence analysis is pursuant to Evid.R. 401.
Relevant evidence is generally admissible, while irrelevant evidence is inadmissible.
Evid.R. 402. “’Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401. We find
the other acts evidence about the grooming process was relevant that the rapes stated in
Counts 1 through 4 were more probable than they would be without the evidence.
{¶ 23} The second step of other acts evidence analysis is pursuant to Evid.R.
404(B). We find the other acts evidence was presented for legitimate purposes other than
solely about appellant’s character, such as specifically identifying appellant as the
perpetrator of the rapes in the absence of mistake or accident and to identify his plan or
scheme or motive or intent to target the teenagers in the family and condition them to
submit to his sexual conduct. Evid.R. 404(B) did not prohibit the introduction of such
other acts evidence for those legitimate purposes.
{¶ 24} The third step of other acts evidence analysis is pursuant to Evid.R. 403,
which states:
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Exclusion mandatory. Although relevant, evidence is not admissible
if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.
Evid.R. 403(A). We find the probative value of the relevant other acts evidence
substantially outweighed any danger of unfair prejudice. We do not find the other acts
evidence resulted in material prejudice against appellant. The other acts evidence helped
appellee to prove appellant’s identity, motive, opportunity, preparation, and plan. The
record does not indicate the jury was confused or misled by such other acts evidence.
{¶ 25} We find the trial court did not act unreasonably, arbitrarily or
unconscionably and did not abuse its discretion regarding the admissibility of other acts
evidence. Appellant’s first assignment of error is not well-taken.
Admissibility – “Rape Shield” Evidence
{¶ 26} Appellant next argues Ohio’s rape-shield law must yield to his Sixth
Amendment right to confront the witnesses against him. The focus of appellant’s second
assignment of error are, again, Counts 1 through 4 for the rapes of S.M. Appellant argues
he should have been able to introduce evidence of S.M.’s sexual activity with her teenage
boyfriend to show that she had a reason to fabricate the allegations against appellant.
Appellant argues S.M’s reason to fabricate was in response to her mother and appellant
forbidding S.M. from seeing her boyfriend. S.M.’s parents were divorced and shared
custody of her. Appellant argues S.M. wanted to move in full-time with her biological
father for his “relaxed” parenting standards.
10.
{¶ 27} In response appellee argues the trial court did not abuse its discretion
because the purpose and spirit of the rape shield law is intended for precisely the facts in
this case.
{¶ 28} Ohio’s rape shield law states in part as follows:
Evidence of specific instances of the victim’s sexual activity,
opinion evidence of the victim’s sexual activity, and reputation evidence of
the victim’s sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim’s past sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue in the case and
that its inflammatory or prejudicial nature does not outweigh its probative
value.
R.C. 2907.02(D).
{¶ 29} We find the record shows appellant did not seek to introduce evidence of
specific instances of S.M.’s sexual activity, opinion evidence of S.M.’s sexual activity, or
reputation evidence of S.M.’s sexual activity for any allowable reason. Appellant did not
seek to introduce evidence of the origin of semen, pregnancy, or disease, or S.M.’s past
sexual activity with appellant, which are the limited allowances by statute. Appellant
sought to attack S.M.’s credibility by providing a reason to fabricate the allegations
against appellant. “Evidence of sexual activity offered merely to impeach the credibility
of the witness is not material to a fact at issue in the case and must be excluded.” State v.
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Ector, 6th Dist. Lucas No. L-07-1169, 2009-Ohio-515, ¶ 21. The record shows the jury
heard testimony from eight witnesses other than S.M., including forensic DNA evidence
and expert testimony regarding the alleged sex toys used in Counts 3 and 4. The jury, as
the trier of the facts, determined credibility of all the evidence, including the nine witness
testimonies. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶
165.
{¶ 30} We find the record confirms the jury heard appellant cross-examine S.M.
about her motives to fabricate her rape claims against appellant, including references to
S.M.’s boyfriend, and S.M. answered each question. Perhaps S.M.’s answers did not
support appellant’s defense theory, but the application of the rape shield law did not
deprive appellant of material evidence to a fact at issue nor deny testimony that was more
probative than prejudicial. State v. Coffey, 6th Dist. Lucas No. L-12-1047, 2013-Ohio-
3555, ¶ 24. We find the fact that appellant confronted S.M. through appropriate,
meaningful cross-examination confirmed there was no violation of the Confrontation
Clause. State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 81.
Appellant’s opportunities during cross-examination to expose S.M.’s motives to fabricate
her claims did not raise Sixth Amendment concerns. State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 172.
{¶ 31} Nor did the application of the rape shield law deprive appellant of the
meaningful cross-examination of S.M. and her biological parents regarding the alleged
motive of “relaxed” parenting standards. S.M. testified that in contrast to her step-father
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“my dad, he gives me – at some point he gives me a chance to express my opinion, tell
him yes or no, and he’ll actually listen to me.” S.M.’s dad testified S.M. “was pretty
honest with me because I always kind of had a really good relationship with that.”
S.M.’s mom testified she can think of nothing that would motivate both S.M. and J.M. to
fabricate the rape allegations against appellant.
{¶ 32} We find the trial court did not act unreasonably, arbitrarily or
unconscionably and did not abuse its discretion regarding the inadmissibility of evidence
under the rape shield law. Appellant’s second assignment of error is not well-taken.
Admissibility – “Asperger’s Syndrome” Evidence
{¶ 33} Appellant next argues the trial court abused its discretion by admitting
irrelevant testimony from J.M.’s school counselor about Asperger’s syndrome “for no
purpose other than to unfairly prejudice the defendant and mislead the jury.” Appellant
argues “there was no other evidence that the victim of counts 5 and 6 [J.M.] was suffering
any substantial impairment because of a mental or physical condition.” As a result,
appellant argues he did not receive a fair trial.
{¶ 34} In response appellee argues the trial court did not abuse its discretion
because the school counselor’s testimony was from her personal experience with her own
foster children diagnosed with Asperger’s syndrome, which was relevant evidence under
Evid.R. 401. Appellee further argues the school counselor’s testimony was not unduly
prejudicial to appellant because she had personally met with J.M. and had personal
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experience with and training in counseling students involved with sexual and physical
abuse. Appellee never sought the school counselor to be classified as an expert witness.
{¶ 35} Contrary to appellant’s assertion, there was relevant evidence that J.M.
suffered from a mental condition other than Asperger’s syndrome. The record shows that
J.M.’s mom testified J.M. was diagnosed at age three with ADHD and took the same
medications as appellant. It was appellant who explained to J.M.’s mom (his sister-in-
law) what effect the medicines had. There was also testimony from J.M. describing her
physics class in high school as, “Isn’t physics, like, gym or something?” The testimony
J.M. provided, both on direct and cross-examination, was sufficient to show that a
rational jury could reach its own conclusions as to J.M.’s mental condition referred to by
multiple witnesses as “low functioning” and whether that condition rendered her
“substantially impaired.”
{¶ 36} “Substantial impairment” is “a present reduction, diminution or decrease in
the victim’s ability, either to appraise the nature of his conduct or to control his conduct.”
State v. Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414 (1987). “Substantial
impairment does not have to be proven by expert medical testimony; rather, it can be
shown to exist by the testimony of people who have interacted with the victim, and by
allowing the trier of fact to do its own assessment of the person’s ability to appraise or
control his or her conduct.” State v. Brady, 8th Dist. Cuyahoga No. 87854, 2007-Ohio-
1453, ¶ 78; State v. Acosta, 6th Dist. Lucas No. L-09-1120, 2010-Ohio-5166, ¶ 22. The
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determination of substantial impairment is made on a case-by-case basis with “great
deference” to the trier of fact. State v. Brown, 5th Dist. Richland No. 2016 CA 0043,
2017-Ohio-1114, ¶ 47.
{¶ 37} J.M.’s school counselor testified she received specialized training as a
“counselor to identify the telltale signs of sexual abuse or physical abuse” in addition to
“extensive training” due to being a therapeutic foster parent to special needs children for
20 years. Some of her special needs foster children had Asperger’s syndrome, which she
described as a disorder where the person is socially awkward and does not know how to
evaluate a social situation. The school counselor did not provide an opinion about J.M.
and Asperger’s syndrome. The school counselor testified a teacher referred J.M. to her
because the teacher was concerned with J.M.’s grades dropping, poor hygiene, and her
transformation into a withdrawn and untalkative girl. J.M. eventually told the school
counselor about appellant forcing her to perform fellatio and “family members that were
angry that didn’t want her to tell.” The school counselor testified after J.M.’s disclosure
she did not see improvement in her grades, hygiene or stress “because this was an
ongoing situation * * * there wasn’t a resolution for her to have an end to it.”
{¶ 38} We find the trial court did not act unreasonably, arbitrarily or
unconscionably and did not abuse its discretion regarding the admissibility of J.M.’s
school counselor testimony. Appellant’s fourth assignment of error is not well-taken.
15.
Manifest Weight
{¶ 39} In support of his third assignment of error, appellant argues appellee failed
to meet its burden of proving beyond a reasonable doubt that appellant is a sexually
violent predator. Appellant argues the expert testimony was inconclusive for determining
recidivism with any certainty and at best was “very low.”
{¶ 40} In response appellee argues appellant argues there was no miscarriage of
justice by the trial court, and the trial court’s determination of the weight and credibility
of the evidence must be accorded due deference.
{¶ 41} “A challenge to the weight of the evidence questions whether the greater
amount of credible evidence was admitted to support the judgment than not.” Flowers v.
Siefer, 6th Dist. Lucas No. L-16-1002, 2017-Ohio-1310, ¶ 94. This court has repeatedly
stated that in determining whether a verdict is against the manifest weight of the
evidence, we review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether the trier of fact clearly
lost its way to create such a manifest miscarriage of justice as to require a new trial. State
v. Reynolds, 6th Dist. Lucas No. L-16-1021, 2017-Ohio-1478, ¶ 47. A conviction will be
overturned only in exceptional cases. Id. Every “reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the finding of facts.”
Flowers at ¶ 94.
{¶ 42} It is well established that the trier of fact has the sole duty to decide what
weight should be given to the testimony of any witness, including experts. Kokitka v.
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Ford Motor Co., 73 Ohio St.3d 89, 92, 652 N.E.2d 671 (1995); State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. We will not reverse
those decisions absent an abuse of discretion where the record shows the decision was
unreasonable, arbitrary or unconscionable. Flowers at ¶ 59; Kinn v. HCR ManorCare,
2013-Ohio-4086, 998 N.E.2d 852, ¶ 14 (6th Dist.). The trier of fact heard the testimony,
viewed witness demeanor, gestures and voice inflections and ultimately resolved any
conflicting evidence presented at the trial. State v. Schwamberger, 6th Dist. Lucas No. L-
13-1236, 2014-Ohio-4733, ¶ 21. A “conviction is not against the manifest weight of the
evidence simply because the fact finder believed the prosecution testimony.” Id.{¶ 43} Pursuant to R.C. 2971.02, appellant elected to have the trial court, instead
of a jury, determine the sexually violent predator specifications following his jury
convictions on the underlying rape charges.
{¶ 44} A “sexually violent predator” is defined as “a person who, on or after
January 1, 1997, commits a sexually violent offense and is likely to engage in the future
in one or more sexually violent offenses.” R.C. 2971.01(H)(1). A “sexually violent
offense” is essentially defined as “a violent sex offense.” R.C. 2971.01(G)(1). A
“violent sex offense” is defined, in part, as a “violation of section 2907.02 * * * of the
Revised Code.” R.C. 2971.01(L)(1).
{¶ 45} Appellant’s convictions for offenses pursuant to R.C. 2907.02(A)(1)(2) and
2907.02(A)(2) are by definition “sexually violent offenses.” Appellant’s offenses
occurred after January 1, 1997. The remaining issue for the trier of fact was the
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determination if appellant “is likely to engage in the future in one or more sexually
violent offenses.” That determination must be proven by appellee beyond a reasonable
doubt. State v. Williams, 88 Ohio St.3d 513, 532, 728 N.E.2d 342 (2000).
{¶ 46} The trial court, as the trier of fact, is presumed to have considered “only the
relevant, material, and competent evidence” in arriving at its sexually violent predator
judgments unless it affirmatively appears to the contrary. State v. Arnold, 147 Ohio St.3d
138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. Here there is no showing the presumption
should not apply.
{¶ 47} According to the plain language of the statute, the General Assembly offers
six factors to the trier of fact it “may” consider “as evidence tending to indicate that there
is a likelihood that a person will engage in the future in one or more sexually violent
offenses.” R.C. 2971.01(H)(2)(a)-(f). Significantly, there is a broad catch-all factor of
“any other relevant evidence.” R.C. 2971.01(H)(2)(f). While a trier of fact is not
required to consider any of those six factors, some appellate jurisdictions have concluded
that consideration of any one is appropriate. State v. Sopko, 8th Dist. Cuyahoga No.
90743, 2009-Ohio-140, ¶ 48; State v. Person, 9th Dist. Summit No. 27600, 2016-Ohio-
681, ¶ 24; State v. T.E.H., 10th Dist. Franklin Nos. 16AP-384, 16AP-385, 16AP-386,
2017-Ohio-4140, ¶ 72; State v. Cartwright, 12th Dist. Preble No. CA2012-03-003, 2013-
Ohio-2156, ¶ 27. We agree.
{¶ 48} The transcript of the sexually violent predator bench trial, and the trial
court’s subsequent journal entry, each confirm the trial court considered all of the
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evidence and also specifically considered the R.C. 2971.01(H)(2)(c) and (f) factors when
it determined appellee had proven beyond a reasonable doubt that appellant is guilty of
the sexually violent predator specifications. Competing expert testimony and reports
were among the record of evidence. The record also shows that despite his convictions,
the expert witnesses testified that appellant denied his culpability and lacked remorse for
the rapes against S.M. and J.M.
{¶ 49} The trial court ultimately reached its verdict and stated in the judgment
entry journalized September 8, 2016:
Specifically, the Court finds the facts of the current offenses – that
Defendant committed multiple sexually violent offenses over a period of
sixteen months, with two juvenile victims around the age of fourteen, both
with a familial relationship to the Defendant – demonstrate Defendant is
likely to engage in the future one or more sexually violent offenses.
{¶ 50} We reviewed the entire record in this case and do not find the trial court
lost its way or created a manifest miscarriage of justice in determining appellant’s guilt
beyond a reasonable doubt for each sexually violent predator specification. We will not
disturb the trial court’s findings.
{¶ 51} Appellant’s fourth assignment of error is not well-taken.
Sufficiency of Evidence
{¶ 52} In support of his fifth assignment of error, appellant argues appellee failed
to produce legally sufficient evidence to support the convictions. Appellant argues there
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was insufficient evidence that S.M. (in Counts 1 and 3) and J.M. (in Count 5) were
substantially impaired by a physical or mental condition pursuant to R.C.
2907.02(A)(1)(c). For Count 1, appellant argues that sleep is not uniformly recognized
by the district courts as a substantial impairment, as the cases appear to “involve the
abuse or overuse of drugs and or alcohol.” For Counts 3 and 5, appellant urges this court
to determine the evidence was insufficient to conclude the victims were impaired to the
requisite “substantial” degree.
{¶ 53} In response appellee argues there were three avenues of legally sufficient
evidence regarding substantial impairments of the victims and known by appellant: “In
one instance, the victim was asleep during the rape. In another rape, the victim was low
functioning. In another rape, the disparity of power in the familial relationship caused the
substantial impairment.” No expert testimony was required. Appellee argues the jury
was the trier of fact and rationally determined, after viewing the evidence in a light most
favorable to the prosecution, the essential elements of the crimes were proven beyond a
reasonable doubt.
{¶ 54} Our role in reviewing a challenge to the sufficiency of the evidence is
whether, after reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crimes beyond a
reasonable doubt. State v. Beasley, 2018-Ohio-493, ¶ 207 (slip opinion). It asks whether
the evidence was legally sufficient to support the guilty verdict as a matter of law,
irrespective of evaluating witness credibility. Id. “This standard is very narrow and tests
20.
only whether there was evidence presented which supports each element of the prima
facie case.” Flowers, 6th Dist. Lucas No. L-16-1002, 2017-Ohio-1310, at ¶ 83.
{¶ 55} The prima facie case for Counts 1, 3 and 5 pursuant to R.C.
2907.02(A)(1)(c) are: (1) sexual conduct, (2) with one not the offender’s spouse, (3)
when the other person’s ability to resist or consent is substantially impaired by a mental
or physical condition, and (4) the offender knows or has reasonable cause to believe the
other person is substantially impaired by such condition. In re J.J., 6th Dist. Erie No. E-
11-018, 2012-Ohio-2550, ¶ 21.
{¶ 56} With respect to Count 1, the record evidence shows S.M. testified she was
asleep, her body relaxed, following appellant’s massaging of her upper body around bed
time, and when she awoke appellant’s fingers were inside her vagina.
Q: When you were asleep, were you able to resist or consent with
what Mike was doing to you?
A: No.
Q: Again, that was why?
***
A: Because I was asleep at that point.
{¶ 57} Contrary to appellant’s assertions, this court has addressed the issue of
sleep as a “substantial impairment.” “A jury can reasonably conclude that the defendant
knew the victim was substantially impaired and unable to object to the defendant’s
conduct if there was evidence that the victim was in a state of deep sleep or drunkenness.
21.
State v. Anderson, 6th Dist. Wood No. WD-04-035, 2005-Ohio-534, ¶ 41. Here, there
was evidence S.M. was asleep at the time of the rape.
{¶ 58} The record includes evidence from which the jury can reach its own
determination as to S.M.’s ability to resist or consent and being substantially impaired
because of a mental or physical condition of which appellant knew or should have
known. Using the test of sufficiency, we find any rational trier of fact could have found
evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c)
for Count 1 beyond a reasonable doubt.
{¶ 59} With respect to Count 3, the record evidence shows S.M. repeatedly
testified how she felt helpless to stop the rape by her step-father. While Count 3 was
occurring, S.M. was afraid of appellant’s temper and was resigned to the helplessness of
a child who expected no adult would believe her about what her step-father did to her.
S.M.’s testimony included statements such as, “I felt if I didn’t do [what he commanded],
he was going to do it anyways,” and “[my step-father] gets these very stern looks on is
face every time that you challenge him. When he has that look, it does not go well. * * *
If I would disobey him, he would definitely start yelling [and I’d be afraid he would hurt
me or my mother].” S.M. further testified, “I figured nobody would end up believing me.
And if I told my mom she would have ended up asking him about it, he would have
denied it, and she wouldn’t believe me.” Upon further questioning, S.M. explained how
she coped.
22.
Q: What was going through your head as all of this was happening
[the Count 3 and 4 rapes]?
A: I tried to block everything that was going on out of my head.
Q: How did you manage that?
A: I ended up just staring off to the side.
Q: Did you find something to look at?
A: I ended up looking at my mother’s jewelry box.
{¶ 60} The record includes evidence from which the jury can reach its own
determination as to S.M.’s ability to resist or consent being substantially impaired
because of a mental or physical condition of which appellant knew or should have
known. Using the test of sufficiency, we find any rational trier of fact could have found
evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c)
for Count 3 beyond a reasonable doubt.
{¶ 61} With respect to Count 5, the record evidence shows J.M. testified that
“Uncle Mike” also gave her a birds-and-bees talk when she was either 13 or 14 years old
and showed her a video using his computer with “people doing anal sex.” J.M. was
uncomfortable having appellant give her that talk rather than her mother. Then soon after
J.M. turned 14 years old, she was at appellant’s house to spend the night, which was a
frequent, necessary occurrence due to transportation arrangements for her to get to
school. That night she was not yet asleep, and appellant came to her room. He told her
to come with him to another bedroom where they were alone. He removed his boxer
23.
shorts and guided her mouth to his penis for fellatio. She felt she had no choice but to
obey appellant “because he was family.” Many witnesses described J.M. as “low
functioning.” J.M. testified she was scared and tried to cope with the situation by
“shutting down.”
Q: What was going through your head when that happened?
A: At that time my brain was starting to shut down as I was getting
scared and creeped out. * * * I was really scared, and I really didn’t know
what to do.
{¶ 62} The record includes evidence from which the jury can reach its own
determination as to J.M.’s ability to resist or consent being substantially impaired because
of a mental or physical condition of which appellant knew or should have known. Using
the test of sufficiency, we find any rational trier of fact could have found evidence
supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c) for Count
5 beyond a reasonable doubt.
{¶ 63} Appellant’s fifth assignment of error is not well-taken.
{¶ 64} On consideration whereof, we find that substantial justice has been done in
this matter and the judgment of the trial court to be lawful. The judgment of the Wood
County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
24.
WD-16-053
State of v. Horn
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
25.