[Cite as State v. Schwamberger, 2014-Ohio-4733.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1236
Appellee Trial Court No. CR0201301793
v.
Nick Schwamberger DECISION AND JUDGMENT
Appellant Decided: October 24, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas that found appellant guilty of one count each of rape, sexual battery and gross
sexual imposition following a jury trial. For the following reasons, we affirm. {¶ 2} On January 14, 2012, appellant, the victim, and their friends Chris Mildon
and Jordan Garcia gathered at appellant’s house to watch a football game. Thereafter,
Garcia drove the group to another friend’s house for a party. When the victim became
physically ill after drinking heavily, appellant, Mildon and Garcia decided to take her
back to appellant’s house. When they arrived at the house, appellant and Garcia helped
the victim inside, up the stairs and into bed. They kept an eye on the victim for a few
minutes and then went to the basement to play beer pong. A short while later, appellant
went upstairs. Garcia then went upstairs to check on the victim and saw appellant asleep
on the bed with her. When Garcia checked on her a third time, he saw appellant on top of
her and believed they were having intercourse. Garcia and Mildon told appellant to leave
her alone and appellant then got up and went downstairs. The following morning, Garcia
told the victim what he believed he had witnessed the night before in the bedroom. The
victim then called her mother and went to the hospital for a sexual assault examination.
{¶ 3} On May 20, 2013, appellant was indicted on one count of rape in violation
of R.C. 2907.02(A)(1)(c) and (B), two counts of sexual battery in violation of R.C.
2907.03(A)(2) and (B), and one count of gross sexual imposition in violation of R.C.
2907.05(A)(5) and (C). The case came to trial before a jury on September 23, 2013, and
on September 25, 2013, the jury found appellant guilty of one count of rape, one count of
sexual battery and one count of gross sexual imposition. For the charge of rape, appellant
was sentenced to term of three years imprisonment. For the charge of sexual battery, he
was sentenced to a term of 36 months and for the charge of gross sexual imposition to a
2. term of 12 months. The trial court ordered that each sentence be served concurrent with
the others for an aggregate term of three years. Appellant filed a timely notice of appeal.
{¶ 4} Appellant now sets forth the following two assignments of error:
First Assignment of Error
Appellant received ineffective assistance of counsel in violation of
his rights under the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, § 10 of the Constitution of the State of Ohio.
Second Assignment of Error
The Jury’s verdict was against the manifest weight of the evidence
introduced by the State at trial.
{¶ 5} In support of his first assignment of error, appellant asserts that trial counsel
was ineffective for several reasons. First, appellant asserts that counsel’s theory of the
case – that the victim consented to sexual conduct with appellant and that appellant did
not know or have reasonable cause to believe that she was substantially impaired -- was
“tenuous at best.” Appellant states that such a defense was ineffective because evidence
was presented at trial that the victim was so impaired after partying with appellant and
their other friends that she became physically ill. Appellant argues that such a theory was
offensive to the sensibilities of the jurors and failed to take into account the inability of an
intoxicated individual to offer voluntary consent.
{¶ 6} Appellant also asserts that counsel was ineffective by failing to properly
impeach Garcia with a prior statement to police. When trial counsel asked Garcia,
3. “When you told the officer it was between 1:30 and 2 that [the victim] threw up, you
didn’t really know the time?” Garcia responded, “I didn’t tell the officer anything.”
When trial counsel attempted to question Garcia further about his statement to police, the
state objected on grounds that Garcia had neither written nor adopted the report which
contained the statement. The trial court ruled that the document could be used only if it
was Garcia’s recorded or handwritten statement or if Garcia had reviewed the document,
stated it was accurate and signed it. None of those conditions applied. Significantly,
appellant does not assert that the trial court made an erroneous ruling. Rather, he appears
to assert that there would have been a proper method for counsel to use to impeach the
witness and that counsel’s manner of referring to the police report was ineffective.
{¶ 7} It is well-established that claims of ineffective assistance of counsel are
reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed. 2d 674 (1984). In order to prove ineffective assistance of counsel,
appellant must demonstrate both that counsel’s representation fell below an objective
standard of reasonableness and that, but for counsel’s perceived errors, the outcome
would have been different. Id. at 687.
{¶ 8} Applying Strickland to the record herein and the examples cited by
appellant, we are unable to find that counsel’s representation fell below a standard of
reasonableness or that, but for counsel’s perceived errors, appellant would not have been
convicted. Based on the foregoing, we find that appellant’s first assignment of error is
not well-taken.
4. {¶ 9} In his second assignment of error, appellant asserts that the jury’s verdict
was against the manifest weight of the evidence. In support, appellant argues that the
jury failed to take into account appellant’s testimony that the victim was not substantially
impaired and participated in, if not initiated, the sexual conduct.
{¶ 10} “A manifest weight challenge questions whether the state has met its
burden of persuasion.” State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-Ohio-1394,
¶ 17, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In
making this determination, the court of appeals sits as a “thirteenth juror” and, after
“reviewing the entire record, weights the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” Id. at 386.
{¶ 11} R.C. 2907.02, rape, states in pertinent part:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender * * * when any of the following applies:
***
(c) The other person’s ability to resist or consent is substantially
impaired because of a mental or physical condition * * * and the offender
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Schwamberger, 2014-Ohio-4733.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1236
Appellee Trial Court No. CR0201301793
v.
Nick Schwamberger DECISION AND JUDGMENT
Appellant Decided: October 24, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas that found appellant guilty of one count each of rape, sexual battery and gross
sexual imposition following a jury trial. For the following reasons, we affirm. {¶ 2} On January 14, 2012, appellant, the victim, and their friends Chris Mildon
and Jordan Garcia gathered at appellant’s house to watch a football game. Thereafter,
Garcia drove the group to another friend’s house for a party. When the victim became
physically ill after drinking heavily, appellant, Mildon and Garcia decided to take her
back to appellant’s house. When they arrived at the house, appellant and Garcia helped
the victim inside, up the stairs and into bed. They kept an eye on the victim for a few
minutes and then went to the basement to play beer pong. A short while later, appellant
went upstairs. Garcia then went upstairs to check on the victim and saw appellant asleep
on the bed with her. When Garcia checked on her a third time, he saw appellant on top of
her and believed they were having intercourse. Garcia and Mildon told appellant to leave
her alone and appellant then got up and went downstairs. The following morning, Garcia
told the victim what he believed he had witnessed the night before in the bedroom. The
victim then called her mother and went to the hospital for a sexual assault examination.
{¶ 3} On May 20, 2013, appellant was indicted on one count of rape in violation
of R.C. 2907.02(A)(1)(c) and (B), two counts of sexual battery in violation of R.C.
2907.03(A)(2) and (B), and one count of gross sexual imposition in violation of R.C.
2907.05(A)(5) and (C). The case came to trial before a jury on September 23, 2013, and
on September 25, 2013, the jury found appellant guilty of one count of rape, one count of
sexual battery and one count of gross sexual imposition. For the charge of rape, appellant
was sentenced to term of three years imprisonment. For the charge of sexual battery, he
was sentenced to a term of 36 months and for the charge of gross sexual imposition to a
2. term of 12 months. The trial court ordered that each sentence be served concurrent with
the others for an aggregate term of three years. Appellant filed a timely notice of appeal.
{¶ 4} Appellant now sets forth the following two assignments of error:
First Assignment of Error
Appellant received ineffective assistance of counsel in violation of
his rights under the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, § 10 of the Constitution of the State of Ohio.
Second Assignment of Error
The Jury’s verdict was against the manifest weight of the evidence
introduced by the State at trial.
{¶ 5} In support of his first assignment of error, appellant asserts that trial counsel
was ineffective for several reasons. First, appellant asserts that counsel’s theory of the
case – that the victim consented to sexual conduct with appellant and that appellant did
not know or have reasonable cause to believe that she was substantially impaired -- was
“tenuous at best.” Appellant states that such a defense was ineffective because evidence
was presented at trial that the victim was so impaired after partying with appellant and
their other friends that she became physically ill. Appellant argues that such a theory was
offensive to the sensibilities of the jurors and failed to take into account the inability of an
intoxicated individual to offer voluntary consent.
{¶ 6} Appellant also asserts that counsel was ineffective by failing to properly
impeach Garcia with a prior statement to police. When trial counsel asked Garcia,
3. “When you told the officer it was between 1:30 and 2 that [the victim] threw up, you
didn’t really know the time?” Garcia responded, “I didn’t tell the officer anything.”
When trial counsel attempted to question Garcia further about his statement to police, the
state objected on grounds that Garcia had neither written nor adopted the report which
contained the statement. The trial court ruled that the document could be used only if it
was Garcia’s recorded or handwritten statement or if Garcia had reviewed the document,
stated it was accurate and signed it. None of those conditions applied. Significantly,
appellant does not assert that the trial court made an erroneous ruling. Rather, he appears
to assert that there would have been a proper method for counsel to use to impeach the
witness and that counsel’s manner of referring to the police report was ineffective.
{¶ 7} It is well-established that claims of ineffective assistance of counsel are
reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed. 2d 674 (1984). In order to prove ineffective assistance of counsel,
appellant must demonstrate both that counsel’s representation fell below an objective
standard of reasonableness and that, but for counsel’s perceived errors, the outcome
would have been different. Id. at 687.
{¶ 8} Applying Strickland to the record herein and the examples cited by
appellant, we are unable to find that counsel’s representation fell below a standard of
reasonableness or that, but for counsel’s perceived errors, appellant would not have been
convicted. Based on the foregoing, we find that appellant’s first assignment of error is
not well-taken.
4. {¶ 9} In his second assignment of error, appellant asserts that the jury’s verdict
was against the manifest weight of the evidence. In support, appellant argues that the
jury failed to take into account appellant’s testimony that the victim was not substantially
impaired and participated in, if not initiated, the sexual conduct.
{¶ 10} “A manifest weight challenge questions whether the state has met its
burden of persuasion.” State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-Ohio-1394,
¶ 17, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In
making this determination, the court of appeals sits as a “thirteenth juror” and, after
“reviewing the entire record, weights the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” Id. at 386.
{¶ 11} R.C. 2907.02, rape, states in pertinent part:
(A)(1) No person shall engage in sexual conduct with another who is
not the spouse of the offender * * * when any of the following applies:
***
(c) The other person’s ability to resist or consent is substantially
impaired because of a mental or physical condition * * * 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 * * *.
5. {¶ 12} R.C. 2907.03, sexual battery, states in pertinent part:
(A) No person shall engage in sexual conduct with another, not the
spouse of the offender, when any of the following apply:
(2) The offender knows that the other person’s ability to appraise the
nature of or control of the other person’s own conduct is substantially
impaired.
{¶ 13} R.C. 2907.05, gross sexual imposition, states in pertinent part:
(A) No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the offender, to
have sexual contact with the offender * * * when any of the following
applies:
(5) The ability of the other person to resist or consent * * * is
substantially impaired because of a mental or physical condition * * * and
the offender knows or has reasonable cause to believe that the ability to
resist or consent of the other person * * * is substantially impaired because
of a mental or physical condition * * *.
{¶ 14} The victim testified as to the events of the night of January 14, 2012, when
she, appellant, and their friends Chris Mildon and Jordan Garcia went to a party for their
friend Kelsey Bekier. The victim testified that she has known appellant since both were
in the 5th grade and that appellant was “like a brother” to her. They never dated one
6. another and she was not interested in a sexual relationship with him because “[h]e was
my brother.” She testified that on the night in question she drank “quite a lot.” The
victim recalled dancing and having a good time before she started to feel ill. She recalled
vomiting on the front porch of her friend’s house and has no memories after that until she
awoke the following morning. She did not recall leaving the party, what time she left,
talking to Mildon, Garcia or appellant, or who drove her back to appellant’s house. The
victim did not recall engaging in sexual conduct with appellant or suggesting to appellant
that they do so.
{¶ 15} The state also presented the testimony of the Sexual Assault Nurse
Examiner at Toledo Hospital who examined the victim the following morning and several
forensic scientists with the Ohio Bureau of Criminal Investigation who analyzed various
specimens from the rape kit prepared at the hospital. Testimony revealed that a partial
DNA profile from a vaginal swab from the rape kit was consistent with the Y
chromosome DNA profile from appellant. A partial DNA profile from the victim’s
breast swab was consistent with appellant’s DNA profile.
{¶ 16} Detective Kevin Bigenho testified that he investigated the case and
interviewed appellant. A recording of the interview, in which appellant admitted
penetrating the victim’s vagina, was played for the jury.
{¶ 17} Jordan Garcia testified that when the victim became ill at the party, he,
Mildon and appellant decided to take her back to appellant’s house. Garcia and appellant
helped the victim to the car and put her in the back seat. He further testified that
7. appellant was not “nearly as drunk” as the victim, who “could not form a sentence or say
a word” and was “pretty much blacked out.” Chris Mildon testified that he became
concerned about the victim when she began vomiting. Mildon, Garcia and appellant
decided the victim should leave and helped her to the car. When they arrived at
appellant’s house, they helped her to bed in a room on the second floor and appellant
placed a trash can by the bed in case she became ill again. Mildon testified that the
victim was unresponsive at that time, “pretty much blacked out.” He stated that they
tried talking to her but she “couldn’t say anything.” Mildon, Garcia and appellant then
went downstairs. After playing “drinking games” for a while, appellant left the
basement. Mildon and Garcia went upstairs to check on the victim twice and saw her and
appellant sleeping. When they went up a third time they saw appellant “on top of [the
victim]” and told appellant to stop. The victim did not appear to be awake. When
appellant moved away from the victim, Garcia and Mildon told him to go downstairs
with them. Garcia returned upstairs and found the victim unable to talk.
{¶ 18} Appellant’s mother, Sue Bekier, testified as to her son’s friendship with the
victim since both were in 5th grade. Bekier did not recall hearing any “commotion” on
the night of January 14, 2012.
{¶ 19} Appellant testified that he, Garcia, Mildon and the victim each bought a 12-
pack of beer to take to the party. He estimated that he drank seven beers and three or four
Jello shots at the party, which caused him to be “tipsy.” Appellant did not notice the
victim’s alcohol consumption until she vomited. At that point, he, Garcia and Mildon
8. decided to take her back to appellant’s house to sleep. Appellant testified that the victim
“was not blacked out at all” when they arrived at his house and said she asked him to turn
on the T.V. in the bedroom. After a few minutes, he went upstairs to check on the victim
and saw that she was still watching a show. Appellant further testified that the victim
then asked him to stay with her until she fell asleep so he lay down on the bed beside her.
{¶ 20} Our review of the record reflects that the jury heard the testimony of the
victim as well as Garcia and Mildon, who witnessed the victim’s behavior and physical
condition at the party as well as afterward when they drove her to appellant’s house and
put her to bed. Both Garcia and Mildon testified that the victim appeared highly
intoxicated. In contrast, appellant testified that the victim willingly participated in sexual
conduct with him and that he did not observe how much she drank at the party.
Appellant’s testimony must be weighed against that of Garcia and Mildon, both of whom
said that the victim did not speak or move and was “passed out” on the bed when they left
her, as she was each time they checked on her.
{¶ 21} When conflicting evidence is presented at trial, a conviction is not against
the manifest weight of the evidence simply because the fact finder believed the
prosecution testimony. State v. Conner, 192 Ohio App.3d 166, 2011-Ohio-146, 948
N.E.2d 497 (6th Dist.). The trier of fact is best able “to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-
2202, 865 N.E.2d 1264, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
9. 77, 80-81, 461 N.E.2d 1273 (1984). We find no evidence that the fact finder lost its way
or created a manifest miscarriage of justice in this case despite conflicting testimony.
Accordingly, appellant’s second assignment of error is found not well-taken.
{¶ 22} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to
App.R. 24.
Judgment affirmed.
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 Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
10.