[Cite as State v. Torres, 2016-Ohio-3061.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103402
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANTONIO E. TORRES DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593549-A
BEFORE: Kilbane, P.J., Boyle, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: May 19, 2016 ATTORNEY FOR APPELLANT
Thomas A. Rein 820 West Superior Avenue - Suite 800 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Marcus A. Henry Timothy Troup Assistant County Prosecutors The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Antonio Torres (“Torres”), appeals from his sexual
battery conviction. For the reasons set forth below, we affirm.
{¶2} On March 12, 2015, Torres and his brother, Dontez Torres (“Dontez”),
were indicted for alleged sexual assaults upon two women, T.B. and B.G. With regard
to Torres, the indictment charged him with two counts of rape, in violation of R.C.
2907.02(A)(2) (Counts 1 and 4); two counts of rape, in violation of R.C.
2907.02(A)(1)(c) (Counts 2 and 5); and two counts of kidnapping with a sexual
motivation specification, in violation of R.C. 2905.01(A)(4) and 2941.l47(A) (Counts 3
and 6). Counts 1-3 list T.B. as the victim, and Counts 4-6 list B.G. as the victim.
{¶3} The trial court granted Torres’s motion for a separate trial. The matter
against Torres proceeded to a jury trial on June 10, 2015. The following evidence was
adduced at trial.
{¶4} B.G. testified that T.B. came to her Medina apartment for a visit on June 15,
2014. At around 9:00 p.m., T.B. invited B.G. to go out with Torres and Dontez.
B.G.’s father arrived to watch her children, and the men picked the women up around
11:00 p.m. Someone in the group decided to go to a strip club called “Secrets” in
Cleveland. B.G. testified that she did not feel comfortable there so she went outside and
called a friend to pick her up. B.G. was not able to get a ride. She went back inside
and had two drinks but was not intoxicated. {¶5} B.G. further testified that when Secrets closed, Torres and Dontez did not
want to drive the women back to Medina. Instead, they drove to an after-hours location
and purchased a bottle of liquor. B.G. had two more drinks but did not feel drunk. She
denied smoking marijuana and taking drugs. The group drove back to Dontez’s
apartment in North Olmsted. B.G. testified that there were no sexual overtones during
the evening, and she did not consent to have sex with anyone. She eventually fell asleep
on the floor in the living room and Dontez fell asleep nearby.
{¶6} B.G. next testified that when she awoke, Dontez was on top of her, and his
penis was inside her vagina. She seemed to be blacking out, and she was unable to
move or to speak. She quickly fell back to sleep. When she awoke a second time,
Torres was on top of her, and all of her clothes were off. Torres was also naked, and his
penis was inside her vagina. B.G. told Torres to stop, but he did not immediately do so.
She started to cry and had a panic attack. She went to the bedroom and saw T.B. face
down on the bed. T.B. was not moving, and all of her clothes were also off. B.G.
testified that Torres told her to calm down and told her that they had all agreed to have
sex. B.G. could not calm down. She tried unsuccessfully to wake T.B., then sat down
on the floor.
{¶7} B.G. stated that she fell asleep for a third time, and awoke for the third time
with Dontez again on top of her and engaging in sexual intercourse with her. B.G. had a
second panic attack. She was confused and felt like she could not breathe. When T.B.
woke up, B.G. informed her of what had happened to her during the night. The women gathered their clothes and began to argue. As they collected their things to leave the
apartment, B.G. grabbed a piece of mail containing Dontez’s name and address.
{¶8} B.G. called several friends to pick her up, but she could not reach anyone.
She and T.B. began to walk towards their home, then Torres and Dontez pulled over and
offered them a ride home. B.G. testified that she felt disgusted and was still crying, but
accepted the ride. After she arrived home, she contacted a friend to drive her and T.B.
to the hospital.
{¶9} B.G. spoke with a police officer at the hospital following her examination.
Several days later, she met with a detective from the North Olmsted Police Department.
She identified Torres and Dontez from photo arrays and also identified Torres in the
courtroom.
{¶10} B.G. denied that she had consensual sex with Torres. She did
acknowledged that her clothes were under the bed in his bedroom. She also denied
smoking marijuana, but toxicology tests showed that this drug was found in her system.
{¶11} Sarah Tokodi (“Tokodi”), a sexual assault nurse examiner (“S.A.N.E.
nurse”) at Summa Lake Medina Hospital, testified that she examined B.G. on June 16,
2014. B.G. reported that she and T.B. went out with two male acquaintances. They
had a few drinks, then went back to the home of one of the men. B.G. was going to go
to sleep in the living room, with Dontez nearby, and T.B. was going to sleep with
defendant in the bedroom. B.G. stated that after she fell asleep, she woke up to find
herself naked with Dontez on top of her and having sex with her. She fell back to sleep, and when she woke up again, Torres was on top of her, and his penis was in her vagina.
When she woke up for the third time, Dontez was on top of her. She then began
screaming and “freaking out” that she did not consent to sex. She got her friend and
they left the apartment.
{¶12} Tokodi collected evidence for a rape kit, including B.G.’s clothes, nail
scrapings, hair samples, cavity swabs, and a urine specimen. Tokodi observed new
bruising to her thigh, shin, and ankle. B.G. complained of neck pain but no neck injuries
were noted.
{¶13} T.B. failed to cooperate with the state and did not appear for trial.
{¶14} Deborah Hafliger (“Hafliger”), a S.A.N.E. nurse at Summa Lake Medina
Hospital, testified that she examined T.B. on June 16, 2014, after T.B. complained of
having been sexually assaulted. According to Hafliger, T.B. informed her that she and
her friend went to a “gentlemen’s club” with two men, then went back to an apartment
belonging to one of the men. T.B. reported that she “came to,” and found Torres on top
of her. She then “blacked out,” and when she “came to” a second time, Dontez was on
top of her. She “came to” a third time, and Torres was again on top of her. T.B.
reported that Torres had penetrated her with his penis and with his fingers. Hafliger
noted some bruising and a small abrasion. Hafliger collected evidence for the rape kit
and gave the kit to the North Olmsted Police.
{¶15} North Olmsted Police Officer Gordon Goodman (“Officer Goodman”)
testified that he responded to the Summa Lake Medina Hospital to speak with T.B. and B.G. He obtained statements from them, collected the rape kits, and learned the names
of two suspects, “Tony” and “Donny.”
{¶16} William Hampton (“Hampton”), father of B.G., testified that he agreed to
watch B.G.’s children on the night of June 15, 2014, after B.G. and T.B. made plans to go
out. The women returned the next day and appeared distraught and angry. The women
eventually indicated that they had been raped, so Hampton called B.G.’s mother for
assistance.
{¶17} Terry Pugh (“Pugh”), testified that he considers himself to be B.G.’s
stepfather. He testified that B.G. called him on June 16, 2014, asking for a ride to the
hospital. She was upset, crying, and frantic. He and B.G.’s mother drove her and T.B.
{¶18} Stacy Violi (“Violi”), a forensic scientist in the DNA section of the Ohio
Bureau of Criminal Investigation (“BCI”), testified that she analyzed the rape kits
collected for both B.G. and T.B. With regard to B.G., semen was identified in both the
vaginal and perianal samples, and B.G.’s underwear tested presumptively positive for the
presence of semen. The initial test results revealed that B.G. and two unknown males
were contributors to the semen in the vaginal sample. B.G. and one of the same
unknown males were the contributors to the semen in the perianal sample. B.G. and two
unknown males were also contributors to the sample from the underwear, but there was
insufficient material for DNA analysis. {¶19} Violi prepared a second report on November 8, 2014, after obtaining known
standards from Torres and Dontez. Violi identified Torres and Dontez as contributors to
the vaginal sample, with a frequency of the presence of that DNA as 1 in 1,246,000
individuals. Dontez was a contributor to the perianal sample, and Torres was excluded
as a contributor. On one of the samples from B.G.’s underwear, Dontez was a major
contributor and Torres was a minor contributor, with a frequency of the presence of that
DNA as 1 in 4,946,000 individuals.
{¶20} Violi testified with regard to T.B., that semen was initially identified in the
vaginal and perianal samples from her rape kit. Further testing conducted on November
8, 2014, indicated that Torres was the major contributor to the vaginal and perianal
samples, with an expected frequency of 1 in 196 quintillion individuals.
{¶21} Harold Schueler (“Schueler”), the chief toxicologist for the Cuyahoga
County Medical Examiner, testified that at the request of the North Olmsted Police
Department, he analyzed B.G.’s urine sample collected at approximately 7:00 p.m. on
June 16, 2014. No alcohol was detected. According to Schueler, however, this does
not conclusively demonstrate that B.G. did not consume alcohol because alcohol is
absorbed, broken down, and eliminated over time. The urinalysis was positive for
cannabinoids, but negative for various classes of drugs, including sedatives, opiates, and
other drugs. It was also negative for any known date rape drug or a drug that would
render someone unconscious, but these drugs are generally very fast acting and clear out
of the body very quickly. {¶22} North Olmsted Police Detective Kenneth Vagase (“Detective Vagase”),
testified that he began to investigate the matter on June 17, 2014. He compiled photo
arrays that included both Torres and Dontez. Both B.G. and T.B. identified Torres and
Dontez as the men they were with on the night of the incident. Detective Vagase
interviewed both women and obtained DNA samples from Torres and Dontez.
Detective Vagase forwarded the DNA samples to BCI. Torres and his counsel arrived
for a videotaped interview on January 19, 2015. Torres stated that the women wanted to
go to the strip club, and then wanted to go to Dontez’s apartment. When they arrived at
the apartment, Torres had consensual sex with T.B. in his bedroom, and Dontez had
consensual sex with B.G. in the living room. Torres denied engaging in sexual relations
with B.G. and also denied that Dontez had sex with T.B. Later during the interview,
after being confronted with the DNA results, Torres stated that he had briefly touched
B.G. and had extremely brief vaginal intercourse with her.
{¶23} Torres moved for acquittal of all charges. The trial court denied Torres’s
motion, and the defense elected not to present evidence. The trial court also agreed to
instruct the jury on the offense of sexual battery under R.C. 2907.03(A)(3) as a lesser
included offense of rape as charged in Counts 2 and 5.
{¶24} On June 16, 2015, the jury acquitted Torres of the charges contained in the
indictment, but found him guilty of sexual battery, in violation of R.C. 2907.03(A)(2), as
a lesser included offense of rape as alleged in Count 5, pertaining to B.G. The trial court
obtained a presentence investigation report and the matter proceeded to sentencing on August 3, 2015. The court sentenced Torres to 24 months in prison and 5 years
mandatory postrelease control. The court determined that Torres is a Tier 3 offender
who must register every 90 days for life.
{¶25} Torres now appeals, assigning two errors for our review.
Assignment of Error One
The trial court erred in denying Torres’s motion for acquittal as to the
charge when the State failed to present sufficient evidence to sustain a
conviction.
Assignment of Error Two
Torres’s conviction is against the manifest weight of the evidence.
Sufficiency of the Evidence
{¶26} In the first assignment of error, Torres argues that the trial court erred in
denying his motion for acquittal because there is insufficient evidence to support the
{¶27} Crim.R. 29(A) governs motions for acquittal and provides for a judgment of
acquittal if the evidence is insufficient to sustain a conviction. Pursuant to Crim.R. 29(A),
a defendant is entitled to acquittal on a charge against him “if the evidence is insufficient
to sustain a conviction[.]” See also State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d
184 (1978), syllabus: “Pursuant to Criminal Rule 29(A), a court shall not order an entry of
judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven by a
reasonable doubt.”
{¶28} An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial and
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541.
{¶29} Torres was convicted of sexual battery, in violation of R.C. 2907.03(A)(2),
which provides that “[n]o person shall engage in sexual conduct with another * * * when
* * * [t]he offender knows that the other person’s ability to appraise the nature of or
control the other person’s own conduct is substantially impaired.”
{¶30} In State v. Noernberg, 8th Dist. Cuyahoga No. 97126, 2012-Ohio-2062, ¶
10, this court noted:
In State v. Zeh, 31 Ohio St.3d 99, 103, 509 N.E.2d 414 (1987), the Ohio Supreme Court held that because the phrase “substantially impaired” is not defined in the Ohio Criminal Code, it “must be given the meaning generally understood in common usage.” The Zeh court also held that it is sufficient for the state to establish substantial impairment by offering evidence at trial establishing a reduction or decrease in the victim’s ability to act or think. Id. at 103-104. “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.” State v. Brady, 8th Dist. No. 87854, 2007-Ohio-1453, ¶ 78. {¶31} This court has also held that “sleep constitutes a mental or physical
condition that substantially impairs a person from resisting or consenting to sexual
conduct.” State v. Jones, 8th Dist. Cuyahoga No. 98151, 2012-Ohio-5737, ¶ 30, citing
State v. Clark, 8th Dist. Cuyahoga No. 90148, 2008-Ohio-3358, ¶ 21. Accord State v.
Felton, 8th Dist. Cuyahoga No. 92295, 2010-Ohio-4105, ¶ 26 (“a sleeping person also
cannot appraise the nature of or control his or her conduct.”); State v. Grant, 8th Dist.
Cuyahoga No. 86220, 2006-Ohio-177, ¶ 33 (“sleeping qualifies as substantial
impairment”).
{¶32} In this matter, the evidence presented by the state demonstrates that B.G.
consumed two drinks at the strip club and two more after the group bought liquor at the
after-hours location. B.G. and T.B. were then driven to Dontez’s apartment in North
Olmsted, and the men promised to drive them home in the morning. There were no
sexual overtones, and B.G. fell asleep in the living room of Dontez’s apartment, while
Torres and T.B. were in the bedroom. When B.G. woke up, Dontez was on top of her,
and his penis was inside her vagina. The state’s evidence demonstrated that B.G.
“seemed to be blacking out” and was unable to move or speak. When she woke up the
second time, she was naked and Torres, who was also naked, was on top of her. His
penis was inside her vagina. She told Torres to stop, but he did not immediately do so.
She started to cry and had a panic attack. When she fell asleep for the third time, she
again woke up with Dontez on top of her and having sex with her. B.G. consistently
described the attack to both the S.A.N.E. nurse and the police. DNA analysis of her vaginal swabs, perianal swabs, and underwear indicated a mixture of DNA from both
Torres and Dontez. The state’s evidence also indicated that Torres first denied having
sex with B.G., then admitted that he had briefly done so after he was presented with the
DNA analysis.
{¶33} Viewing this evidence in a light most favorable to the state, we find that the
record demonstrates, and a rational trier of fact could conclude beyond a reasonable
doubt, that Torres committed the offense of sexual battery. Specifically, given the
extensive testimony regarding her blacking out, and repeatedly falling asleep and her
inability to move or speak despite repeated attacks, we conclude that the record contains
sufficient evidence to show that B.G. was “substantially impaired” at the time of the
sexual conduct and that Torres was aware of her condition. The conviction is supported
by sufficient evidence.
{¶34} Therefore, the first assignment of error is overruled.
Manifest Weight of the Evidence
{¶35} In the second assignment of error, Torres argues that his conviction is
against the manifest weight of the evidence. Although a court of appeals may determine
that a judgment of a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the evidence.
Thompkins at 387. The Thompkins court stated:
Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the
burden of proof will be entitled to their verdict, if, on weighing the evidence
in their minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing belief.”
(Emphasis added.) Black’s [Law Dictionary] 1594 [6 Ed.1990].
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits
as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of the
conflicting testimony. [Quoting Tibbs v. Florida, 457 U.S. 31, 45, 102
S.Ct. 2211, 2220, 72 L.Ed.2d 652 (1982)]. See also State v. Martin
(1983), 20 Ohio App.3d 172, 175, * * *, 485 N.E.2d 717, 720-721 (“The
court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.”).
Id. {¶36} In this matter, the state’s evidence demonstrated that B.G. consumed two
drinks at the bar and also drank alcohol purchased at the after-hours location before being
driven back to Dontez’s apartment. She testified that there were no sexual overtones to
the evening. She did not consent to sexual intercourse with anyone, and she fell asleep
in the living room. She was later awakened by Dontez being on top of her and engaging
in sexual intercourse. She “seemed to be blacking out” and was unable to move or
speak. She awoke for a second time, and at that point, she was naked and Torres, who
was also naked, was on top of her. His penis was inside her vagina. B.G. told Torres
to stop, but he did not immediately do so. After she fell asleep for the third time, she
was again awakened by Dontez being on top of her and having sex with her. B.G.
consistently described the attack to both the S.A.N.E. nurse and the police, and DNA
analysis of vaginal swabs, perianal swabs, and underwear indicated a mixture of DNA
from both Torres and Dontez. The state’s evidence also indicated that during his
interview with Detective Vagase, Torres denied having sex with B.G., then, after being
informed of the DNA results, admitted that he had briefly done so. Viewing the record
as a whole, we cannot say that the jury lost its way in convicting Torres of sexual battery,
in violation of R.C. 2907.03(A)(2), and that he engaged in sexual conduct with B.G.
while knowing that her ability to appraise the nature of or control her conduct was
substantially impaired. The conviction is not against the manifest weight of the
evidence.
{¶37} Thus, the second assignment of error is overruled. {¶38} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MARY J. BOYLE, J., and ANITA LASTER MAYS, J., CONCUR