[Cite as In re T.N., 2016-Ohio-5774.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
IN RE: CASE NO. 9-15-36 T.N.,
ALLEGED UNRULY/ OPINION DELINQUENT CHILD
Appeal from Marion County Common Pleas Court Juvenile Division Trial Court No. 2015 DL00109
Judgment Affirmed
Date of Decision: September 12, 2016
APPEARANCES:
Todd A. Workman for Appellant
Jason M. Miller for Appellee Case No. 9-15-36
ROGERS, J.
{¶1} Defendant-Appellant, T.N., appeals the judgment of disposition entered
by the Court of Common Pleas of Marion County, Family Division, adjudicating
him a delinquent/unruly child for one count of rape, committing him to the Ohio
Department of Youth Services (“the Department”) for a minimum of one year up to
a maximum term up to his 21st birthday, and sentencing him to a period of four
years in prison. On appeal, T.N. argues that the trial court erred by entering a verdict
that was not supported by sufficient evidence; entering a verdict that was against the
manifest weight of the evidence; and admitting other acts evidence at trial. For the
reasons that follow, we affirm the judgment of the trial court.
{¶2} On May 27, 2014, a complaint was filed in the Court of Common Pleas
of Hardin County, Juvenile Division, alleging that T.N. was delinquent of one count
of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree if committed
by an adult; and one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony
of the first degree if committed by an adult.
{¶3} On May 27, 2014, the State filed a motion to transfer the case over to
the Court of Common Pleas of Hardin County, General Division, so that T.N. could
be prosecuted as an adult.
-2- Case No. 9-15-36
{¶4} On July 1, 2014, the State responded to T.N’s demand for discovery,
which had been filed previously. The State’s response included, among other
documents, several witness statements.
{¶5} A hearing was held on the State’s motion on October 10, 2014.
Ultimately, the trial court denied the State’s motion.
{¶6} On October 24, 2014, the Hardin County Grand Jury returned a two-
count indictment against T.N. alleging that he was delinquent of one count of rape
with a specification in violation of R.C. 2907.02(A)(2), 2152.02(F),
2152.11(D)(2)(b), and 2152.13, a felony of the first degree if committed by an adult;
and one count of rape with a specification in violation of R.C. 2907.02(A)(1)(c),
2152.02(F), 2152.11(D)(2)(b), and 2152.13, a felony of the first degree if committed
by an adult. T.N. entered denials and pleas of not guilty to both charges.
{¶7} The matter proceeded to a two-day jury trial on January 8 and January
9, 2015. T.L. was the first witness to testify on behalf of the State. She testified
that she and her friend, A.M., attended a party on March 8, 2014 and were
accompanied by two other friends, D.R. and C.H. T.L. stated that the party was
hosted by Cane Haney, a recent graduate of their high school. She explained that
she knew the others through school. She testified that she and A.M. brought a 12-
pack of Strawberitas and a bottle of vodka to share, both of which were alcoholic
beverages.
-3- Case No. 9-15-36
{¶8} T.L. stated that they arrived at Haney’s house sometime that evening.
She added that several other people were there, including T.H., Z.R., C.W., Haney,
and the defendant, T.N. She explained that she did not know T.N. personally, but
knew of him prior to the party. She added that she had never spoken to him, never
was romantically linked to him, nor married to him. She testified that she never
talked with T.N. during the party.
{¶9} T.L. stated that once they arrived at the party, they all began to drink
the alcoholic beverages they brought. T.L. explained that she could not remember
how much she had to drink because she was too intoxicated. As a result of her
condition that night, T.L. testified that she vomited over herself and a bed that she
was sleeping in at the time.
{¶10} T.L. explained that the house was a two-story home and that the party
was being held in the kitchen and living room on the first floor. She added that she
went to sleep in one of the bedrooms upstairs. She stated that she was wearing a
shirt and a pair of leggings when she went to sleep.
{¶11} T.L. testified that she remained asleep until she was awoken by T.N.,
who was attempting to take off her pants. She claimed that she was able to recognize
T.N. even though she was still heavily intoxicated. T.L. stated that T.N. was able
to take off her pants, although T.L. was yelling and telling T.N. to stop. She
explained that she was yelling because she did not want T.N. to do anything to her.
-4- Case No. 9-15-36
She testified that T.N. was holding her arms down while she was on her side and
telling her to be quiet. She added that she consistently told T.N. to stop, but T.N.
removed her underwear and penetrated her vagina with his penis. This continued
for approximately ten minutes, and T.L. explained that she continuously told T.N.
to stop and that T.N. would tell her to be quiet.
{¶12} When it was over, T.L. testified that T.N. got up and walked away
without saying anything. T.L. stated that she then ran out of the room and continued
to cry hysterically until A.M. and Haney came upstairs. She told them that
somebody just had sex with her, and Haney ran downstairs in an attempt to figure
out what happened to T.L. She explained that she was holding the area near her
vagina because she was hurting. T.L. could not remember if she told anyone that
night that it was T.N. that had sex with her.
{¶13} She testified that Haney gave her some of his clothes to wear home
and that she, A.M., and T.H. went back to A.M.’s house. She added that she spent
the night there with A.M. Either that night or the next morning, T.L. stated that she
told A.M.’s mother what happened at the party. On the morning after the party, T.L.
testified that she wore some of A.M.’s clothes, returned to Haney’s house to give
him back his clothes, went to Lima, and then went home. She explained that she
did not tell her parents what happened because she was afraid that they would be
upset with her for attending a party and drinking alcoholic beverages. T.L. testified
-5- Case No. 9-15-36
that A.M.’s mother drove her to a hospital in Lima to get checked out by medical
personnel. She added that they performed a rape kit on her at the hospital.
{¶14} T.L. explained that when she originally spoke to law enforcement she
lied about there being no alcoholic beverages at the party because she did not want
anyone to get into trouble since everyone was under the age of 21. She confirmed
that the next day she told the officers the truth. She added that she was too
intoxicated to know what was going on at the party.
{¶15} On cross-examination, T.L. admitted that she lied to A.M.’s mother
about what she and A.M. were going to do the night of the party. She affirmed that
she did not consume any alcoholic beverages before arriving at the party. T.L. could
not remember how much she drank but could recall that she drank very fast. She
added that she did not know how long she was upstairs asleep before the alleged
rape occurred.
{¶16} On re-direct-examination, T.L. testified that there was no doubt in her
mind that it was T.N. that had raped her.
{¶17} Haney was the next witness to testify on behalf of the State. Haney
stated that he was hanging out with two friends, K.H. and D.F. during the day on
March 8, 2014. He testified that C.H. called him up and Haney said that C.H. and
some other people could come over to hang out and drink some beers. He added
-6- Case No. 9-15-36
that when C.H. arrived, C.H. was accompanied by D.R., A.M., and T.L. The others,
including T.N., did not arrive until later.
{¶18} Haney testified that he observed T.L. drinking vodka at the party. At
one point during the party, Haney stated that he left to go to Alger and returned
approximately 20 to 25 minutes later. He explained that he stayed for another two
hours before leaving to go get food from McDonald’s. During this time, Haney
described T.L. as being “pretty well gone.” Trial Tr. Vol. I., p. 184. He elaborated
that he came home to find that she had vomited all over herself and on his bed. He
stated that he gave her some clothing to put on and stayed with her for about an hour
to make sure she was ok. During this time, he explained that T.L. was dry heaving.
She was also wearing only her bra and underwear on the bed. Haney added that he
wrapped T.L. in a blanket because she was cold.
{¶19} Haney testified that he, G.C., T.H., C.H., and A.B. all went to
McDonald’s together and were gone for about 30 minutes. He explained that D.R.,
A.M., T.L, and T.N. remained at the house while he and the rest went out for food.
Specifically, D.R. was sitting on one couch while T.N. and A.M. were on the other
couch, and T.L. was asleep upstairs in Haney’s bedroom.
{¶20} Once he returned from McDonald’s, Haney was alerted by D.R. that
something might be wrong with T.L. Haney testified that he went upstairs and found
T.L. crying on the mattress where he had left her. He stated that he asked T.L. what
-7- Case No. 9-15-36
was wrong and after learning what happened, went downstairs to figure out what
went on while he was gone. Haney explained that he asked T.N. if he had raped
T.L. and T.N. denied it. He added that T.N. repeatedly denied the allegations and
swore on Haney’s dead brother’s grave. After everyone else had left, Haney
testified that T.N. stayed at the house.
{¶21} On cross-examination, Haney testified that D.R. had gone upstairs first
and found T.L. crying. D.R. also told Haney that T.N. had told D.R. that T.N. was
going upstairs to check on T.L. He added that when he left for McDonald’s the only
people awake were D.R. and T.N. A.M. was asleep on the same couch as T.N. and
T.L. was upstairs asleep, however, A.M. awoke by the time he returned.
{¶22} Haney testified that it was pretty easy to hear things from his bedroom
to the living room. He admitted that T.L. never said she was raped. He added that
given the difference between when each person arrived that T.N. would only have
been present for about 15 to 20 minutes before T.L. went to bed. Haney stated that
T.N. was drinking Busch Lite and seemed like he “had a good buzz.” Id. at 212.
{¶23} On re-direct-examination, Haney clarified that T.N. was actually
pretty drunk that night. He testified that T.N. had consumed approximately 24 beers
that day.
{¶24} Kristy Jakeway was the next witness to testify on behalf of the State.
Jakeway testified that she was a registered nurse in the emergency room at Lima
-8- Case No. 9-15-36
Memorial Hospital. Although she stated that she was not certified as a Sexual
Assault Nurse Examiner, she explained that she had performed several rape kits in
the past.
{¶25} Jakeway testified that she was working on March 9, 2014. She stated
that she was in the room with T.L. and the doctor while the rape kit was being
performed. She explained that T.L. appeared agitated and was crying throughout
the exam.
{¶26} D.R. was the next witness to testify on behalf of the State. D.R.
testified that he drove C.H., A.M., and T.L. to Haney’s party on March 8, 2014. He
stated that T.L. became drunk after drinking at the party. He added that he did not
talk with T.L. much during the party.
{¶27} After nearly everyone had left to go get food, D.R. stated that he, A.M.,
T.L., and T.N. were the only people at the house. D.R. testified that he, along with
A.M. and T.N., checked on T.L. after people left and she was asleep. After they
checked on T.L., D.R. explained that he and A.M. returned downstairs while T.N.
stayed with T.L.
{¶28} D.R. testified that T.N. came downstairs approximately five to ten
minutes later and appeared to be smiling and laughing. Soon after T.N. returned,
D.R. stated that he thought he heard someone call his name, but thought nothing of
it until he heard it again. D.R. explained that he could hear T.L. crying out for him
-9- Case No. 9-15-36
and when he went upstairs he saw her crying and she told him what happened. He
continued and said that when Haney came home he told Haney that Haney needed
to go talk to T.L.
{¶29} On cross-examination, D.R. testified that T.L. was wearing a bra and
underwear when he checked on her condition while the others were getting food.
He admitted that he never heard any screaming while T.N. was upstairs with T.L.
{¶30} Z.R. was the next witness to testify on behalf of the State. Z.R.
testified that he attended Haney’s party on March 8, 2014. He stated that he arrived
at the party with T.H, C.H., and T.S. He said that T.L. appeared to be drunk because
she could not stand very well or talk very well. He added that he and T.H. helped
T.L. upstairs so that no one would mess with her because she was drunk.
{¶31} Z.R. testified that when they took T.L. upstairs she was wearing a shirt
and shorts. He stated that he witnessed T.L. vomit on herself and the bed where she
was lying. He explained that after he helped T.L. he went home. Z.R. added that it
was hard to determine if T.L. was comprehending his questions because her speech
was slurred.
{¶32} After Z.R.’s testimony, the trial was concluded for the day and the jury
was excused. After the jury left, a discussion was held on the record regarding the
State’s intention to use prior acts evidence to establish T.N.’s motive for committing
-10- Case No. 9-15-36
the alleged crimes. Both parties were ordered to prepare arguments for the
following morning.
{¶33} On January 9, 2015, before the trial resumed, T.N. filed a motion in
limine. In his motion, T.N. argued that the court should exclude all “other acts”
evidence as it pertains to plan or scheme. T.N. argued that the general rule was that
“other acts” evidence should be excluded and none of the exceptions to that rule
applied in this case. He also argued that the State failed to provide the requisite
notice under Evid.R. 404(B). The State opposed the motion. The court did not rule
on the motion at that time.
{¶34} Detective Matt Douglas of the Hardin County Sheriff’s Office was the
next witness to testify on behalf of the State. Detective Douglas testified that he
was working on March 9, 2014 when he received a call to locate T.N. as T.N. was
a suspect in the alleged rape of T.L. Detective Douglas then identified a flash drive
containing recorded interviews with T.N. that were conducted on March 10, 2014.
The interview was then played for the jury. Detective Douglas testified that T.N.
swore to the truth of his statements that he had given Detective Douglas under the
pains and penalties of perjury.
{¶35} Detective Douglas testified that T.N. was not truthful during the
interview. He stated that T.N. denied having sex with T.L. approximately ten times
during the interview. Detective Douglas explained that T.N. initially claimed that
-11- Case No. 9-15-36
he did not know T.L.’s name and referred to her as “that girl.” He continued that
T.N. spontaneously then named T.L. and tried to hide the fact that he knew her
name. He testified that T.N. denied ever being alone with T.L. He added that T.N.
submitted a DNA sample.
{¶36} Detective Douglas testified that there were several discrepancies with
T.N.’s account of the events. He stated that T.N. kept changing his story about what
T.L. was wearing when T.N. and the others checked on T.L.
{¶37} On cross-examination, Detective Douglas admitted that he did not find
T.L. to be completely honest with him about the events. However, he clarified that
the only parts she was not honest about were the parts involving alcoholic beverages
at the party and the people consuming the alcoholic beverages. He added that he
also spoke with several of the other people who attended the party.
{¶38} A.M. was the next witness to testify on behalf of the State. A.M.
testified that she attended Haney’s party on March 8, 2014 with T.L. and the others.
She stated that she and T.L. consumed at least four or five Strawberitas each as well
as some vodka that they had brought. She added that she, D.R., and T.N. checked
on T.L. after T.L. had been taken upstairs. A.M. explained that T.L. was wrapped
in a blanket on a mattress and was only wearing a bra and underwear. She stated
that she and D.R. went back downstairs, but T.N. stayed with T.L. on a couch next
to T.L.
-12- Case No. 9-15-36
{¶39} A.M. stated that prior to checking on T.L. she and T.N. were sitting
on a couch together downstairs. Counsel for T.N. objected to this testimony and
line of questioning, and a sidebar was held outside the hearing of the jury. At this
time, the court denied T.N.’s motion in limine and overruled the objection.
Questioning of A.M. resumed and she testified that T.N. tried to get into her pants
while the two were on the couch. Specifically, A.M. explained that T.N. tried to
unbutton her pants using his hands but stopped once A.M. told him to stop. She
added that this occurred approximately five minutes before she, D.R., and T.N. went
upstairs to check on T.L.
{¶40} On cross-examination, A.M. stated that she did not see much of T.L.
at the party and did not know exactly how much T.L. had to drink that night.
{¶41} Sergeant Melissa Davis of the Logan County Sheriff’s Office was the
final witness to testify on behalf of the State. Sergeant Davis testified that she
worked in the Juvenile Detention Center (“JDC”) in Logan County as a corrections
officer. She described an event that occurred involving T.N. on October 10, 2014,
while he was at the JDC. According to Sergeant Davis, T.N. told her that he had a
scheduled court hearing that day, but he was not taken to it. T.N. asked her if he
could call the judge to find out what went wrong, but the policy of the JDC is that
juveniles may only use written communication with the judge.
-13- Case No. 9-15-36
{¶42} Sergeant Davis then identified a letter written by T.N. and addressed
to the judge. In the letter, which was later admitted into evidence, T.N. admitted to
having sex with T.L., but claimed that it was consensual.
{¶43} At the conclusion of Sergeant Davis’s testimony, the State rested. In
addition to the recorded interview and the admission letter, the results of a DNA test
were admitted. The DNA, which was collected from T.L.’s vaginal swabs and
T.N.’s voluntary submission, supported the State’s theory that T.N. and T.L.
engaged in intercourse. Specifically, two DNA profiles were identified from T.L.’s
vaginal swab; semen was identified in T.L.’s vaginal swabs; and the other DNA
profile matched that of T.N. The defense stipulated to the results of the DNA test.
{¶44} The defense rested without presenting any witnesses. Then, after a
brief recess, the defense moved for an acquittal pursuant to Crim.R. 29, which was
denied.
{¶45} During closing arguments, the prosecutor stated the following:
Something’s going on on the couch between [T.N.] and [A.M.] She testified about that today. Didn’t get as far maybe as they could of and she tells him, ‘no, I don’t want you to put your hands there.’ So what does he do? He finds someone else who cannot say no. Who is not in a position to say no. Or straight up, can’t resist. And performs the task that he has in mind. Unfortunately, that happens upstairs and [T.L.] is on the receiving end of that.
Trial Tr. Vol. II, p. 108.
-14- Case No. 9-15-36
{¶46} After closing arguments, the jury was given instructions by the trial
court, including the following:
Evidence was received about the commission of acts other than the offenses with which the Defendant is charged in this trial. That evidence was received only for a limited purpose. It was not received and you may not consider it to prove the character of [T.N.] in order to show that he acted in conformity or accordance with that character. If you find that - - that evidence of other acts is true and that [T.N.] committed it, you may consider that evidence only for the purpose of deciding whether it proves his scheme, plan, or system in doing an act to commit the offense charged in this trial. That evidence cannot be considered for any other purpose.
Id. at 126.
{¶47} Before the jury was given the case, counsel for T.N. moved for a
mistrial based primarily on the “other acts” evidence. The trial court denied the
motion.
{¶48} After deliberating, the jury found T.N. not guilty as to count one (Rape
in violation of R.C. 2907.02(A)(2)) and guilty as to count two (Rape in violation of
R.C. 2907.02(A)(1)(a)). T.N.’s placement on house arrest pending disposition was
continued. The matter was set for a serious youthful offender (“SYO”) hearing at a
later date.
{¶49} On February 19, 2015, the State filed a motion to revoke the interim
release order because T.N. allegedly broke the terms of his house arrest. A hearing
was held on the State’s motion, and the trial court granted the motion on March 3,
2015. T.N. was ordered to be placed in the JDC until further notice from the court.
-15- Case No. 9-15-36
{¶50} On March 3, 2015, after the SYO hearing, the trial court designated
T.N. as a SYO. Further, the court ordered the matter be transferred to Marion
County for disposition, as Marion was the county of T.N.’s residence. The case was
transferred to the Court of Common Pleas of Marion County, Family Division, on
March 30, 2015.
{¶51} A dispositional hearing was held on September 3, 2015. At the
conclusion of the hearing, the court sentenced T.N. to a minimum commitment of
one year to the Department and a maximum term up to T.N.’s 21st birthday. T.N.
was also ordered to complete the Department’s sex offender treatment program.
This was memorialized by the court in an entry filed on September 17, 2015.
Additionally, T.N. was sentenced to a prison term of four years given his SYO
designation, which was stayed and would not be imposed so long as he met certain
requirements. The court also informed T.N. that he would be subject to a mandatory
period of five years of postrelease control if he ever serves any part of his prison
sentence.
{¶52} T.N. filed this timely appeal, presenting the following assignments of
error for our review.
Assignment of Error No. I
THE TRIAL COURT/JURY ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT IN ENTERING A GUILTY VERDICT TO THE OFFENSE OF RAPE AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.
-16- Case No. 9-15-36
Assignment of Error No. II
THE TRIAL COURT/JURY ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT IN ENTERING A GUILTY VERDICT TO THE OFFENSE OF RAPE AS THE VERDICTS ARE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. III
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANT WHEN IT ADMITTED, OVER APPELLANT’S OBJECTION, OTHER BAD ACTS EVIDENCE TO THE JURY.
{¶53} In his first assignment of error, T.N. argues that the trial court erred by
entering a guilty verdict that was not supported by sufficient evidence. We disagree.
{¶54} When an appellate court reviews the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. State v. Monroe,
105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, the question of whether the offered evidence is sufficient to sustain a
-17- Case No. 9-15-36
verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-
Ohio-2079, ¶ 4.
{¶55} T.N. was convicted of one count of rape in violation of R.C.
2907.02(A)(1)(c). Under this provision, a person is guilty of rape if he engages in
sexual conduct with another who is not his spouse when the other person’s ability
to either consent or resist is substantially impaired because of a physical condition,
and the offender either knows or has reasonable cause to believe that the other
person’s ability to consent or resist is substantially impaired due to that condition.
R.C. 2907.02(A)(1)(c). Sexual conduct is defined as “vaginal intercourse between
a male and female * * *. Penetration, however slight, is sufficient to complete
vaginal * * * intercourse.” R.C. 2907.01(A).
{¶56} Because “substantial impairment” is not defined in the Ohio Criminal
Code, the Supreme Court of Ohio has found that “substantial impairment” can be
established “by demonstrating 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 (1987); State v. Brown, 3d Dist.
Marion No. 9-09-15, 2009-Ohio-5428, ¶ 21. Further, 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
-18- Case No. 9-15-36
his or her conduct.” State v. Brady, 8th Dist. Cuyahoga No. 87854, 2007-Ohio-
1453, ¶ 78; Brown at ¶ 21. Finally, a determination of substantial impairment is
made “on a case-by-case basis, providing great deference to the fact-finder.” Brown
at ¶ 22.
{¶57} “Voluntary intoxication constitutes a ‘mental or physical condition’
that can cause substantial impartment under R.C. 2907.02(A)(1)(c).” State v.
Lasenby, 3d Dist. Allen No. 1-13-36, 2014-Ohio-1878, ¶ 28, citing State v.
Harmath, 3d Dist. Seneca No. 13-06-20, 2007-Ohio-2993, ¶ 14. “The consumption
of large amounts of alcohol in a short period of time is evidence that voluntary
intoxication caused substantial impairment.” Id., citing State v. Hatten, 186 Ohio
App.3d 286, 2010-Ohio-499, ¶ 22 (2d Dist.). It is also sufficient if the victim
testifies that she is unable to remember the events of the incident to establish
substantial impairment. Id., citing Harmath at ¶ 19. “[S]tumbling, falling, slurred
speech, passing out, [and] vomiting,” are evidence that an intoxicated person is
substantially impaired. Hatten at ¶ 24. However, “there can be a fine, fuzzy, and
subjective line between intoxication and impairment. Every alcohol consumption
does not lead to a substantial impairment. Additionally, the waters become even
murkier when reviewing whether the defendant knew, or should have known, that
someone was impaired rather than merely intoxicated.” State v. Doss, 8th Dist.
Cuyahoga No. 88443, 2008-Ohio-449, ¶ 18.
-19- Case No. 9-15-36
{¶58} T.N. does not dispute that he and T.L. engaged in sexual conduct.
Rather, he argues that the State failed to present any evidence that he knew or had
reasonable cause to believe that T.L. was substantially impaired and that T.L. was
substantially impaired at the time of the sexual conduct. We are not convinced.
{¶59} First, there was sufficient evidence to establish that T.L. was
substantially impaired as a result of voluntary intoxication. At trial, everyone at the
party who testified stated that T.L. was severely intoxicated that night. First and
foremost, T.L. testified that she barely remembered the party. She, along with
nearly everyone else, stated that she vomited over herself as a result of her drinking
too much alcohol in a short period of time. She also explained that she did not
consume any alcohol until she arrived at the party and that she did so very fast.
Specifically, evidence was presented to show that she consumed at least five
Strawberitas and drank some of the vodka that she and A.M. brought to the party.
Haney testified that T.L. was “pretty much gone” and stated that she was still dry
heaving when he was watching her to make sure she would be ok. Z.R. witnessed
T.L. vomit and helped her upstairs. He also testified that T.L.’s speech was slurred.
Finally, it appears that all of the events took part over only a few hours.
{¶60} Second, there was sufficient evidence to establish that T.N. knew or
had reasonable cause to believe that T.L. was substantially impaired. By his own
admission in the letter to the judge, he knew that T.L. was at a minimum intoxicated.
-20- Case No. 9-15-36
Although this alone may not meet the evidentiary requirement, other evidence
offered by the State was sufficient to support this element. No one testified that
they saw T.N. and T.L. talking with each other or hanging out, but everyone at the
party was able to testify as to T.L.’s level of intoxication. Everyone testified that
they knew that T.L. had vomited on herself. Several people testified that T.N. was
at the party while T.L. was there drinking. Further, A.M. and D.R. both testified
that T.N. accompanied them to check on T.L. In his interview, T.N. admitted that
he went with the others to check on T.L. who was passed out in Haney’s room.
{¶61} Therefore, upon review of the record, we find that any rational trier of
fact could have found that T.N. committed rape beyond a reasonable doubt. The
circumstances of the events described by all the witnesses support the conclusion
that T.N. knew or had reasonable cause to believe that T.L. was substantially
impaired due to a physical condition (voluntary intoxication). Moreover, testimony
was presented that T.N. and T.L. engaged in sexual conduct and that T.L. was not
T.N.’s spouse. Thus, after viewing the evidence in the light most favorable to the
prosecution, we find that any rational trier of fact could have found the essential
elements of rape beyond a reasonable doubt.
{¶62} Accordingly, we overrule T.N.’s first assignment of error.
-21- Case No. 9-15-36
{¶63} In his second assignment of error, T.N. argues that the trial court erred
by entering a verdict that was against the manifest weight of the evidence. We
disagree.
{¶64} When an appellate court analyzes a conviction under the manifest
weight standard, it “sits as the thirteenth juror.” Thompkins, 78 Ohio St.3d at 387.
Accordingly, it must review the entire record, weigh all of the evidence and its
reasonable inferences, consider the credibility of the witnesses, and determine
whether the fact finder “clearly lost its way” in resolving evidentiary conflicts and
“created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
When applying the manifest weight standard, a reviewing court should only reverse
a trial court’s judgment “in exceptional case[s]” when the evidence “weighs heavily
against the conviction.” Id. at paragraph three of the syllabus.
{¶65} Having disposed of T.N.’s sufficiency argument, we similarly reject
T.N.’s argument that the verdict is against the manifest weight of the evidence. T.N.
makes the same arguments here as he did above, but adds that the State’s only
material witness, T.L., was not credible. In support of his argument, T.N. argues
that there were several instances of T.L.’s testimony that were contradicted by
others. For instance, she claimed that T.N. removed her pants, but other witnesses
-22- Case No. 9-15-36
testified that she was wearing only a bra and underwear once she went to sleep.
Further, no one corroborated her testimony that she was screaming while T.N. was
raping her. T.N. also argues that T.L. should not have been seen as credible because
she admitted that she lied several times the day of the party and the day after.
Specifically, she lied to her parents and A.M.’s mother about the party and to police
about alcohol at the party. Therefore, T.N. argues that this lack of credibility renders
the verdict against the manifest weight of the evidence.
{¶66} “On the trial of a case, either civil or criminal, the weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of the
facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
Thus, a jury is free to find the State’s witnesses were credible. See State v. Brown,
3d Dist. Hardin No. 6-12-01, 2012-Ohio-3904, ¶ 15 (“To begin with, a reviewing
court must allow the trier of fact appropriate discretion on the credibility of
witnesses”); State v. Hoseclaw, 3d Dist. Allen No. 1-12-31, 2013-Ohio-3486, ¶ 24
(jury was free to believe the victim’s testimony regarding why she did not report the
rape until nine months after it happened).
{¶67} Although there were certainly some discrepancies between T.L.’s
testimony and that of the other partygoers, we cannot say that the jury clearly lost
its way by convicting T.N. There was no dispute that T.N. and T.L. engaged in
sexual conduct. Therefore, the only remaining issues were: was T.L. substantially
-23- Case No. 9-15-36
impaired; and did T.N. know or have reasonable cause to believe that T.L. was
substantially impaired. As we explained in more detail supra, there was a plethora
of testimony presented to establish T.L.’s state of substantial impairment. Although
T.N. did not interact with T.L. prior to the sexual conduct, the jury was free to
believe the testimony of the other witnesses to conclude that T.N. knew or had
reasonable cause to believe T.L. was substantially impaired.
{¶68} Accordingly, we overrule T.N.’s second assignment of error.
{¶69} In his third assignment of error, T.N. argues that the trial court erred
by admitting “other acts” evidence at trial. Specifically, T.N. argues that the State
should not have been allowed to have A.M. testify as to T.N.’s sexual advances
towards her at the party. We disagree.
{¶70} Generally, “Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in conformity
therewith.” Evid.R. 404(B). This rule derives from the long-standing principle that
“proof that the accused committed a crime other than the one for which he is on trial
is not admissible when its sole purpose is to show the accused’s propensity or
inclination to commit crime.” State v. Curry, 43 Ohio St.2d 66, 68 (1975). Evidence
of other crimes, wrongs, or acts is admissible, however, for other purposes,
including proof of motive, opportunity, intent, preparation, plan, knowledge,
-24- Case No. 9-15-36
identity, or absence of mistake or accident. Evid.R. 404(B). “In criminal cases, the
proponent of evidence to be offered under [404(B)] shall provide reasonable notice
in advance of trial * * * of the general nature of any such evidence it intends to
introduce at trial. Id. Additionally, R.C. 2945.59 states,
In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
{¶71} “In determining whether evidence of other crimes, wrongs, or acts of
the accused is admissible under Evid.R. 404(B), courts apply a three-step test.”
State v. Machuca, 3d Dist. Allen No. 1-15-01, 2016-Ohio-254, ¶ 40. “The first step
is to consider whether the other acts evidence is relevant in making any fact that is
of consequence to the determination of the action more or less probable than it
would be without the evidence.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-
5695, ¶ 20, reconsideration of other issues granted, 133 Ohio St.3d 1512, 2012-
Ohio-6209. Second, a court must “consider whether evidence of the other crimes,
wrongs, or acts is presented 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, such as those stated in Evid.R. 404(B).” Id. Finally, the court
-25- Case No. 9-15-36
must “consider whether the probative value of the other acts evidence is
substantially outweighed by the danger of unfair prejudice.” Id., citing Evid.R. 403.
{¶72} As with other evidentiary issues, “ ‘The admission of such [other-acts]
evidence lies within the broad discretion of the trial court, and a reviewing court
should not disturb evidentiary decisions in the absence of an abuse of discretion that
created material prejudice.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407,
¶ 14, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 66. A trial court
will be found to have abused its discretion when its decision is contrary to law,
unreasonable, not supported by the evidence, or grossly unsound. State v. Boles,
187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying the abuse
of discretion standard, a reviewing court may not simply substitute its judgment for
that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58, 2013-Ohio-
1939, ¶ 12.
{¶73} T.N. first argues that the State failed to provide adequate notice of its
intent to offer other acts evidence at trial. However, the State, in its response to
T.N.’s discovery demand, provided the written statements of everyone at the party
that would testify as to T.N.’s sexual advances on A.M. Further, the State listed
these people as potential witnesses they intended to call at trial. Therefore, the State
met its burden of providing reasonable notice to the defendant.
-26- Case No. 9-15-36
{¶74} T.N. next argues that the trial court abused its discretion by allowing
the evidence in because there was no legitimate basis supporting it. As to the first
step of the analysis, A.M.’s testimony was relevant because it tended to show T.N.’s
scheme, plan, or system for engaging in sexual conduct. If this testimony was
believed by the jury, then it could corroborate T.L.’s testimony that T.N. initiated
the sexual conduct with her. This also rebutted T.N.’s statement in the interview
that he preferred older girls. A.M. and T.L. were both the same age as T.N. at the
time of the alleged rape.
{¶75} As to the second step, the State did not offer this testimony to prove
that T.N. acted in accordance with his character. Per its instruction, the court let
A.M.’s statements regarding the incident on the couch for “the purpose of deciding
whether it proves [T.N.’s] scheme, plan, or system in doing an act to commit the
offense charged in this trial.” Trial Tr. Vol. II, p. 126. This court presumes that the
jury followed that instruction. See Williams, 2012-Ohio-5695 at ¶ 23, citing State
v. Garner, 74 Ohio St.3d 49, 59 (1995); Pang v. Minch, 53 Ohio St.3d 186, 195
(1990).
{¶76} Finally, A.M.’s testimony is not unduly prejudicial in this case because
of the trial court’s instruction that this evidence should not be considered to show
that T.N. acted in conformity with a character trait. See id. at ¶ 24. Again, this
-27- Case No. 9-15-36
instruction lessened the prejudicial effect of A.M.’s testimony and corroborated
T.L.’s testimony.
{¶77} Even if we were to assume, arguendo, that the trial court erred by
admitting the other acts evidence, T.N. has failed to present an argument as to how
he was prejudiced as a result. Therefore, any error would have been harmless.
{¶78} Thus, in this particular case, we cannot say that the trial court abused
its discretion in allowing A.M. to testify as to other acts committed by T.N. prior to
the alleged rape.
{¶79} Accordingly, we overrule T.N.’s third assignment of error.
{¶80} Having found no error prejudicial to the appellant, in the particulars
assigned and argued, we affirm the judgment of the trial court.
SHAW, P.J. and PRESTON, J., concur.
/jlr
-28-