[Cite as State v. Oswald, 2018-Ohio-245.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.     28633

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
FRANK OSWALD                                          COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2016-04-1302

                                 DECISION AND JOURNAL ENTRY

Dated: January 24, 2018



        CALLAHAN, Judge.

        {¶1}     Defendant-Appellant, Frank Oswald, appeals from his conviction in the Summit

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     One Saturday evening, Mr. Oswald and his cousin attended a wedding reception

for a member of their family. Mr. Oswald’s cousin came with his girlfriend, the victim in this

matter, and she socialized with Mr. Oswald as the evening progressed. When the reception

ended, Mr. Oswald, the victim, and her boyfriend (Mr. Oswald’s cousin) drove together to a

nearby hotel where several family members had rented rooms for the evening. They then spent

the next few hours visiting with other cousins, drinking, and occasionally smoking marijuana.

        {¶3}     Eventually, all of the cousins returned to their own rooms, save for Mr. Oswald,

who needed a place to sleep. The victim’s boyfriend agreed that Mr. Oswald could stay in their

room, but a fight between the victim and her boyfriend led to her and Mr. Oswald being alone
                                                 2


together in the room. According to the victim, she and Mr. Oswald fell asleep in the hotel bed,

fully dressed and with only their hands touching. She then awoke some time later to find him

having vaginal intercourse with her. The victim immediately told Mr. Oswald to stop, and he

complied. Several days later, she spoke with the police about the incident, and they arrested Mr.

Oswald.

       {¶4}    A grand jury indicted Mr. Oswald on one count of rape and two counts of sexual

battery. The first sexual battery count alleged a violation of R.C. 2907.03(A)(2) while the

second count alleged a violation of R.C. 2907.03(A)(3). Following a bench trial, the court found

Mr. Oswald guilty of the latter sexual battery count and not guilty of his remaining counts. The

court sentenced him to serve two years in prison and classified him as a tier III sexual offender.

       {¶5}    Mr. Oswald now appeals from his conviction and raises three assignments of error

for this Court’s review.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN
       A CONVICTION UNDER R.C. § 2907.03(A)(3) IN VIOLATION OF [MR.]
       OSWALD’S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY
       ARTICLE I, SECTION 10 OF THE OHIO STATE CONSTITUTION AND THE
       FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

       {¶6}    In his first assignment of error, Mr. Oswald argues that his sexual battery

conviction is based on insufficient evidence. Specifically, he argues that there was no evidence

he knew the victim was asleep when he began having vaginal intercourse with her. This Court

disagrees.
                                                   3


          {¶7}   Whether the evidence in a case is legally sufficient to sustain a conviction is a

question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997).

          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 to
          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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “In essence, sufficiency

is a test of adequacy.” Thompkins at 386. Although the standard of review is de novo, the

appellate court does not resolve evidentiary conflicts or assess the credibility of witnesses,

because these functions belong to the trier of fact. State v. Tucker, 9th Dist. Medina No.

14CA0047-M, 2015-Ohio-3810, ¶ 7.

          {¶8}   “No person shall engage in sexual conduct with another, not the spouse of the

offender, when * * * [t]he offender knows that the other person submits because the other person

is unaware that the act is being committed.” R.C. 2907.03(A)(3).

          A person acts knowingly, regardless of purpose, when the person is aware that the
          person’s conduct will probably cause a certain result or will probably be of a
          certain nature. A person has knowledge of circumstances when the person is
          aware that such circumstances probably exist. When knowledge of the existence
          of a particular fact is an element of an offense, such knowledge is established if a
          person subjectively believes that there is a high probability of its existence and
          fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B). Whoever commits the foregoing offense is guilty of sexual battery. R.C.

2907.03(B).

          {¶9}   The victim testified that she resided in Columbus when these events transpired,

but drove north for the weekend to attend a wedding with her boyfriend, who was Mr. Oswald’s
                                                4


cousin. The victim had met Mr. Oswald once or twice before at family gatherings and sat at a

table with him during the reception. After the reception, the victim, her boyfriend, and Mr.

Oswald drove together to a nearby hotel where several members of the boyfriend’s family had

reserved rooms for the evening. The victim testified that she had consumed alcohol during the

wedding and, on the drive to the hotel, took an Adderall to help her stay awake longer.

Additionally, she gave Mr. Oswald an Adderall.

       {¶10} Once at the hotel, the victim changed into a t-shirt, sweatshirt, and a pair of

leggings. She and her boyfriend had reserved their own room that evening, but joined his

cousins in another room after changing clothes. Over the next few hours, the victim, her

boyfriend, and his cousins continued to drink and went outside a few times to smoke marijuana.

Eventually, the victim and her boyfriend returned to their room along with Mr. Oswald and

another cousin. The cousin departed not long after, leaving Mr. Oswald with the couple. The

victim testified that her boyfriend then agreed to let Mr. Oswald sleep on the floor in their room

because he needed a place to stay. There was testimony that, at that point, it was about 4:00 a.m.

       {¶11} Not long after Mr. Oswald lay down on the floor to sleep, the victim and her

boyfriend began arguing. The victim indicated that their argument was more intense than usual

because they were both intoxicated. The fight roused Mr. Oswald and also resulted in the

boyfriend leaving the hotel without the victim. Greatly upset, the victim sobbed and talked to

Mr. Oswald about her relationship with her boyfriend. She then went into the bathroom and took

a Xanax before lying down in bed. The victim testified that she and Mr. Oswald ultimately fell

asleep in the same bed, fully clothed, with only their hands touching.

       {¶12} At some later point, the victim awoke and felt Mr. Oswald pressing against her

from behind. Though she was confused, she quickly registered that her leggings and underwear
                                                5


had been pulled down and Mr. Oswald was having vaginal intercourse with her. She then said:

“I didn’t give you permission to do this.” According to the victim, Mr. Oswald stopped slowly

and acted “really casual,” as if he had not done anything wrong. She testified, however, that she

never invited Mr. Oswald to have sex with her, never signaled that it was acceptable for him to

do so, and never assisted him in pulling down her clothing.

       {¶13} Although the victim made several attempts to contact her boyfriend, she was

unsuccessful. She testified that she could not otherwise arrange a ride back to her car, so she had

to accept a ride from Mr. Oswald. Once she got back to her car, she returned to Columbus

without telling anyone what had happened. The victim described being confused, embarrassed,

and unsure of what to do.

       {¶14} Later that evening, the victim sent a text message to her boyfriend, indicating that

she was extremely upset because she had “woke[n] up to [Mr. Oswald] having sex with [her].”

Her boyfriend then called and, after they spoke, she agreed that he could report the incident to

the police. Meanwhile, that same evening, the victim received a text message from Mr. Oswald,

asking if she was doing alright. The victim did not initially respond to Mr. Oswald’s message,

but her boyfriend sent Mr. Oswald a text message, asking him, “How could you do that?” In

response, Mr. Oswald indicated that he was “freaking out,” described himself as having suicidal

thoughts, and wrote: “Please tell her I am so sorry and tell her once I realized what I was doing I

stopped[.]”

       {¶15} Over the course of the next two days, the victim went to the hospital for an exam

and returned to the Twinsburg area to meet with Detective Brian Donato. While speaking with

the detective, the victim responded to Mr. Oswald’s text message. The following text message

exchange then took place:
                                                 6


        [THE VICTIM]: I mean I trusted you in the room with me [] and I woke up to you
        having sex with me. I didn’t give you permission. Or even lead you on. You
        were comforting me and told me everything was going to be ok with me and [my
        boyfriend].

        [MR. OSWALD]: I know[.] And this is killing me[.] [I’ve] never done anything
        like this before and I am disgusted with what happened[.] Once you said that I
        realized what I was doing and * * * stopped[.]

When the victim wrote, “You hurt me by raping me in my sleep,” Mr. Oswald responded by

asking if he could call her. He also repeatedly apologized and wrote that it “was never [his]

intention to hurt [her] * * *.”

        {¶16} Detective Donato and another officer met with Mr. Oswald at his home the day

after the victim’s interview. The detective surreptitiously recorded the meeting, and the State

played portions of the recording at trial. Mr. Oswald informed the officers that he and the victim

fell asleep together, but he then awoke, pulled her pants down, and “forced [himself] on her * *

*.” Mr. Oswald stated that the victim was making noises, so he thought “maybe” she was

awake. When asked whether the victim had been “passed out when [he] started,” however, Mr.

Oswald responded, “yeah, * * * we were definitely both asleep.” He also acknowledged that,

while he was having sex with the victim, she attempted to turn and said, “I didn’t give you

permission to do this.”

        {¶17} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have concluded that, at the time he had sex with the victim, Mr. Oswald knew she was

submitting because she was unaware of what was happening. See Jenks, 61 Ohio St.3d 259 at

paragraph two of the syllabus; R.C. 2907.03(A)(3). The victim specifically testified that she fell

asleep next to Mr. Oswald fully clothed, but awoke to find her leggings and underwear pulled

down and Mr. Oswald having sex with her. See Summit v. Anderson, 9th Dist. Summit No.

27886, 2016-Ohio-7275, ¶ 19. She testified that she never invited him to engage in intercourse
                                                  7


with her or helped him pull down her clothing. Indeed, both she and Mr. Oswald agreed that, as

he was having sex with her, she stated: “I didn’t give you permission to do this.”

       {¶18} When text messaging with the victim, Mr. Oswald never attempted to deny

forcing himself on her. In fact, when confronted with her message, “I woke up to you having sex

with me * * *,” Mr. Oswald responded: “I know[.] And this is killing me[.]” He also admitted to

Detective Donato that he pulled down the victim’s leggings, that she was “passed out” when he

began, and that he “forced [himself]” on her. See State v. Smetana, 9th Dist. Lorain No.

12CA010252, 2013-Ohio-2376, ¶ 14. Although Mr. Oswald remarked at one point that he

thought “maybe” the victim was awake, he made no attempt to verify that fact. A rational trier

of fact, therefore, could have concluded that he believed there was a high probability that the

victim was asleep or otherwise unconscious, but failed to inquire or acted “with a conscious

purpose to avoid learning the fact.” R.C. 2901.22(B). As such, this Court rejects his argument

that his sexual battery conviction is based on insufficient evidence.           Mr. Oswald’s first

assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 2

       [MR.] OSWALD’S CONVICTION IS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶19} In his second assignment of error, Mr. Oswald argues that his conviction is

against the manifest weight of the evidence. This Court disagrees.

       {¶20} When a defendant argues that his conviction is against the weight of the evidence,

this court must review all of the evidence before the trial court.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
                                                 8


       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” Thompkins, 78 Ohio St.3d at 387, quoting Tibbs v. Florida, 457 U.S. 31,

42 (1982). An appellate court should exercise the power to reverse a judgment as against the

manifest weight of the evidence only in exceptional cases. Otten at 340.

       {¶21} At trial, Mr. Oswald testified in his own defense. Consistent with the victim’s

testimony, he described how a night of drinking and smoking marijuana led to him falling asleep

on the floor of the victim’s hotel room. Much like the victim, he testified that he awoke when

the victim and her boyfriend began fighting and the boyfriend left the hotel. At that point, the

victim was crying and invited Mr. Oswald to sit on the bed with her. He indicated that they

spoke for some time before nodding off. It was his testimony that they fell asleep “holding

hands and in the spooning position.”

       {¶22} According to Mr. Oswald, he woke up because the victim “was pressing her butt

against [his] penis” and was making “moaning noises.” Though neither of them spoke and he

could not see the victim’s face, he testified that the victim continued to move against him for

approximately thirty seconds before he began to pull down her leggings and underwear. Mr.

Oswald testified that the victim’s leggings were “skin tight,” but she assisted his efforts by

“wiggl[ing] her body to help [him] pull them down.” As the victim continued to move her body

against Mr. Oswald, he pulled down her underwear and began having vaginal intercourse with

her. Mr. Oswald testified that, based on the victim’s movements and the noises she was making,
                                                9


he believed she was awake and inviting him to have sex with her. He estimated that he had sex

with the victim for approximately ten seconds before she told him to stop and he complied.

       {¶23} Mr. Oswald indicated that he repeatedly expressed remorse for his actions, not

because he forced himself on the victim, but because he disrespected her relationship with his

cousin by having sex with her. He testified that, before he drove the victim back to her car that

morning, she said everything was fine and simply requested that he not tell her boyfriend what

had happened. According to Mr. Oswald, the victim acted normally during their entire car ride,

talking and laughing with him. He testified that, until he received her text messages a few days

later, he believed that the two had engaged in consensual sex. He indicated that he was nervous

when he spoke to the police and that some of his statements had been taken out of context.

According to Mr. Oswald, when he said he forced himself on the victim, he only meant that he

used some force to remove her clothing and “[m]athematically” used some force to put his penis

inside her.

       {¶24} Mr. Oswald argues that his conviction is against the manifest weight of the

evidence because the evidence tended to show that he and the victim engaged in consensual sex

that the victim later regretted. He notes that the victim’s leggings were skin tight, such that he

could not have removed them without her assistance. He further notes that the victim’s actions

were inconsistent with a sexual battery given that she remained with him after they had sex, later

asked him to drive her home, and never sought assistance from any of the other wedding guests

whom she knew to be staying in the same hotel. According to Mr. Oswald, his first indication

that the victim did not wish to have sex came when she told him to stop and he immediately

complied. He asserts that, at the time the sexual activity was occurring, he did not know that the

victim was asleep or otherwise unconscious.
                                               10


       {¶25} Having carefully reviewed the entire record, this Court cannot conclude that the

trier of fact lost its way when it found Mr. Oswald guilty of sexual battery. The victim clearly

testified that she was not awake when Mr. Oswald began having sex with her. Although Mr.

Oswald claimed that she suggestively moved against him and helped him pull down her

leggings, he made no mention of her alleged movements or assistance when speaking with the

police. Instead, he acknowledged to the officers that he awoke, pulled down her leggings, and

“forced [himself] on her * * *.” He also conceded that the victim was “passed out when [he]

started.” Mr. Oswald made no attempt to deny the victim’s accusations when she sent him text

messages, alleging that he had sex with her in her sleep and raped her. Though the victim

accepted a ride from Mr. Oswald that morning and kept quiet about the incident until much later

that evening, she explained that she did so because she was confused, embarrassed, and unable to

secure another ride to her car. Faced with two competing versions of the events, the trial court

was “in the best position to determine the credibility of witnesses and evaluate their testimony

accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. “A verdict

is not against the manifest weight of the evidence because the finder of fact chose to believe the

State’s witnesses rather than the defendant’s version of the events.” State v. Martinez, 9th Dist.

Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Because Mr. Oswald has not shown that this is

the exceptional case where the evidence weighs heavily against his conviction, this Court rejects

his manifest weight argument. His second assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT IMPROPERLY PERMITTED TESTIMONY
       REGARDING [MR.] OSWALD’S ALLEGED STATEMENT TO DETECTIVE
       DONATO, THEREBY DEPRIVING HIM OF HIS RIGHTS UNDER THE
       UNITED STATES AND OHIO CONSTITUTIONS.
                                                11


       {¶26} In his third assignment of error, Mr. Oswald argues that the trial court erred when

it allowed the State to question him about certain, unrecorded statements he allegedly made to

Detective Donato. For the following reasons, this Court rejects his argument.

       {¶27} The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court,

therefore, reviews the trial court’s decision regarding evidentiary matters under an abuse of

discretion standard of review.” State v. Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-

922, ¶ 6. An abuse of discretion indicates that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶28} When cross-examining Mr. Oswald, the prosecutor asked him about statements he

allegedly made to Detective Donato while in transit to the police station.          The following

exchange took place:

       [PROSECUTOR]: [D]uring those questions with the detectives in the car ride, * *
       * you admit that you have viewed pornography -- you tell them “I’ve viewed
       pornography involving incest and sex with sleeping people”; right?

       [MR. OSWALD]: That’s not true.

       [DEFENSE COUNSEL]: Objection.

       THE COURT: Overruled. Go ahead.

       [MR. OSWALD]: That’s not true.

       [PROSECUTOR]: And you also stated to the police officers that you’ve done
       searches on the internet related to sleeping porn and porn involving family?

       [MR. OSWALD]: That’s not true, either.

       [DEFENSE COUNSEL]: Objection.

       THE COURT: Overruled.

       [PROSECUTOR]: Okay. So, what the detectives wrote in there is something they
       made up?
                                               12


       [DEFENSE COUNSEL]: Objection. It’s not in evidence.

       [PROSECUTOR]: I’m asking if he believes that they just made that up, that
       they’re lying.

       [MR. OSWALD]: They were --

       THE COURT: Wait, wait, wait. The report is not in evidence.

       [PROSECUTOR]: Correct.

       THE COURT: Right. So, if -- okay, so you’re denying * * * that you said that?

       [MR. OSWALD]: Correct.

Defense counsel then once again objected on the basis that the prosecutor never asked Detective

Donato about the statements during his direct examination, and the detective’s report was

inadmissible.

       {¶29} Mr. Oswald argues that the unrecorded statements contained in Detective

Donato’s report were highly inflammatory because they implied “some sort of deviant sexual

and/or pornographic interest [that] would undoubtedly prejudice [the] trier of fact * * *.” He

argues that the court erred when it allowed the State to question him about the statements

because the report was not in evidence, and he never had the opportunity to cross-examine the

detective about the alleged statements.

       {¶30} Even assuming that the trial court erred by allowing the State to ask Mr. Oswald

about the statements contained in Detective Donato’s report, this Court cannot conclude that the

foregoing exchange affected his substantial rights. See Crim.R. 52(A) (errors that do not affect

substantial rights “shall be disregarded”). First, the State introduced other evidence that was at

least partially corroborative of the unrecorded statements contained in the report. During its

case-in-chief, the State played a recording of Mr. Oswald at the police station having a telephone

conversation with his mother. While on the phone, Mr. Oswald told his mother how he and the
                                                 13


police discussed the victim having been asleep when he had sex with her and the possibility that

this “could be a fetish or something.” Mr. Oswald then stated: “they were saying, like, when did

this start, and I was thinking like, it’s kinda like…this is kinda true, like I might have a problem.”

Accordingly, quite apart from his exchange with the prosecutor, the trial court heard Mr. Oswald

acknowledge the possibility that he harbored an interest in having sex with a sleeping individual.

Mr. Oswald has made no attempt to explain how the State’s line of questioning prejudiced him in

light of his statements on the recording. See App.R. 16(A)(7).

       {¶31} Second, because this was a bench trial, this Court presumes that the trial court

considered “only the relevant, material, and competent evidence in arriving at a decision.” State

v. Diaz, 9th Dist. Lorain No. 02CA008069, 2003-Ohio-1132, ¶ 39. Regardless of whether Mr.

Oswald ever viewed certain types of pornography, the issue before the trial court was whether,

when he engaged in sexual conduct with the victim, he knew that she was submitting because

she was unaware it was occurring. See R.C. 2907.03(A)(3). To that end, the court heard a

significant amount of circumstantial evidence tending to show that Mr. Oswald did, in fact, know

that the victim was either asleep or otherwise unconscious. Notably, in orally announcing the

guilty verdict, the court set forth the evidence upon which it relied and never referenced Mr.

Oswald’s unrecorded statements. Mr. Oswald has not shown that, but for the State’s line of

questioning about the unrecorded statements, the court would not have convicted him. See

Crim.R. 52(A). Accordingly, his third assignment of error is overruled.

                                                 III.

       {¶32} Mr. Oswald’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.
                                                14




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

ERIC C. NEMECEK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
