[Cite as State v. Daniels, 2011-Ohio-6414.]


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

STATE OF OHIO                                         C.A. No.       25808

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LEMAR D. DANIELS                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 10 07 1921

                                  DECISION AND JOURNAL ENTRY

Dated: December 14, 2011



        BELFANCE, Presiding Judge.

        {¶1}     Appellant, Lemar D. Daniels, appeals his convictions by the Summit County

Court of Common Pleas. This Court affirms, in part, and reverses, in part.

                                                 I.

        {¶2}     M.S. is a fifty-year-old resident of a group home in Akron. In addition to several

diagnoses of mental illness, M.S. has a mild level of mental retardation, with an IQ of 58. The

staff of the facility provides round-the-clock services to her in all of her daily living skills. She

has a guardian, and she also requires skilled nursing care. In 2010, after her husband’s death,

M.S. was placed in a skilled nursing facility, where Mr. Daniels worked as a nursing assistant on

the night shift. On the morning of May 3, 2010, M.S. told a custodial worker that she had been

raped and identified Mr. Daniels as the perpetrator. DNA collected from the semen on the sheets

taken from M.S.’s bed confirmed with statistical certainty that Mr. Daniels was the source of the

DNA.
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        {¶3}   Mr. Daniels was tried to a jury on three counts of rape under R.C. 2907.02(A)(2)

and three counts of rape under R.C. 2907.02(A)(1)(c). The jury found him guilty on all six

counts. The trial court merged the three convictions under R.C. 2907.02(A)(2) into the three

convictions under R.C. 2907.02(A)(1)(c) for purposes of sentencing and sentenced Mr. Daniels

to an aggregate prison term of twenty years. Mr. Daniels appealed, asserting three assignments

of error.

                                                 II.

                                    ASSIGNMENT OF ERROR I

    “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
    OVERRULED DANIELS’ CRIM.R. 29(A) MOTION FOR JUDGMENT OF
    ACQUITTAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
    THE CONVICTONS FOR RAPE.”

        {¶4}   Mr. Daniels’ first assignment of error is that his rape convictions under R.C.

2907.02(A)(1)(c) are based on insufficient evidence because the State failed to prove that M.S.

was “substantially impaired” within the meaning of the statute and, if so, that he was aware of

her substantial impairment. We disagree.

        {¶5}   “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at

¶18, citing State v. Thompkins (1997), 78 Ohio St.3d 380, 386. The relevant inquiry is whether

the prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). In reviewing the evidence,

we do not evaluate credibility, and we make all reasonable inferences in favor of the State. State

v. Jenks (1991), 61 Ohio St.3d 259, 273. The State’s evidence is sufficient if it allows the trier of

fact to reasonably conclude that the essential elements of the crime were proven beyond a

reasonable doubt. Id.
                                                 3


       {¶6}    The jury found Mr. Daniels guilty of violating R.C. 2907.02(A)(1)(c), which

provides:

       “No person shall engage in sexual conduct with another who is not the spouse of
       the offender * * * when * * * [t]he other person’s ability to resist or consent is
       substantially impaired because of a mental or physical condition or because of
       advanced age, and the offender knows or has reasonable cause to believe that the
       other person’s ability to resist or consent is substantially impaired because of a
       mental or physical condition or because of advanced age.”

Substantial impairment is not defined for purposes of this statute, nor has the Ohio Supreme

Court ever defined the term for purposes of addressing the sufficiency of evidence. In a case that

raised a different question, however, the Court noted that:

       “The phrase ‘substantially impaired’ * * * must be given the meaning generally
       understood in common usage. * * * [It] must 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. This is distinguishable from a
       general deficit in ability to cope[.]”

State v. Zeh (1987), 31 Ohio St.3d 99, 103-104. Many other courts have applied this language in

analyzing whether convictions are supported by sufficient evidence, however, and we turn to

those cases for guidance. Expert testimony is not required. State v. Ahmed, 8th Dist. No. 84220,

2005-Ohio-2999, at ¶42, citing State v. Tate (Oct. 26, 2000), 8th Dist. No. 77462, at *3. Instead,

a substantial impairment may be proven by the victim’s own testimony, allowing the trier of fact

to observe and evaluate the victim’s ability to perceive the nature of or to control her conduct,

and by the testimony of others who have interacted with the victim. Tate at *3. The existence of

substantial impairment in this context requires a case-by-case determination. State v. Brown, 3rd

Dist. No. 9-09-15, 2009-Ohio-5428, at ¶22 (summarizing circumstances under which courts have

found sufficient evidence of substantial impairment under R.C. 2907.02(A)(1)).

       {¶7}    In this case, the State presented the testimony of Donna Ruck, who coordinates

services for M.S. through the Summit County Developmental Disabilities Board. Ms. Ruck
                                                4


testified that when she became involved with M.S. as an adult, she had a pre-existing diagnosis

of mild mental retardation with an IQ of 58, as well as several mental health diagnoses.

According to Ms. Ruck, M.S. has a guardian because she cannot protect her own health and

safety and is unable to provide informed consent – in other words, M.S. cannot “process the

information and * * * come to a reasonable conclusion[.]” As an example, Ms. Ruck noted that

during her marriage to her late husband, M.S. could not comprehend the necessity of a clean,

safe living environment.    Ms. Ruck testified that M.S. requires around-the-clock services,

including assistance with all of her daily living skills – “anything that she would need to

function.” Although M.S. works at the Weaver Workshop, an affiliate of Summit County DD,

she does so under constant supervision and, according to Ms. Ruck’s assessment, could not work

a job in the community by herself.

       {¶8}    Melissa Helton, the administrator of the facility where M.S. lived at the time of

the assault, testified that Mr. Daniels was the STNA assigned to M.S.’s room on the night in

question. Mr. Daniels had been employed by the facility throughout M.S.’s stay, and was

responsible for checking on her in fifteen-minute intervals and for providing assistance to her as

necessary.

       {¶9}    Viewing these facts in the light most favorable to the State, a reasonable jury

could conclude that M.S. was substantially impaired at the time of the assault. In this respect, we

also note that M.S. testified, affording the trial court the opportunity to “obtain its own

assessment of the victim’s ability to either appraise or control her conduct.” Tate at *3, citing

State v. Ferguson (May 25, 2000), 10th Dist. No. 99AP-819. The evidence at trial was such that

a reasonable jury could also conclude that Mr. Daniels, who was one of M.S.’s caregivers, was

aware of her substantial impairment. His first assignment of error is overruled.
                                                 5


                                   ASSIGNMENT OF ERROR II

   “DANIELS’ CONVICTIONS FOR RAPE WERE AGAINST THE MANIFEST
   WEIGHT OF THE EVIDENCE.”

       {¶10} Although Mr. Daniels’ second assignment of error states that he is also

challenging the weight of the evidence in support of his convictions, his argument, which is

combined with his discussion of his first assignment of error, does not address manifest weight.

We decline to do so as well. See, generally, Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist.

No. 25281, 2011-Ohio-435, ¶7 (“It is not, however, our duty to create an argument where none is

made.”). Mr. Daniels’ second assignment of error is overruled.

                                   ASSIGNMENT OF ERROR III

   “THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
   FAILING TO MERGE ALL OF THE COUNTS FOR SENTENCING PURPOSES.”

       {¶11} Mr. Daniels’ third assignment of error is that the trial court erred by sentencing

him for allied offenses of similar import. Specifically, Mr. Daniels has argued that all of the rape

convictions should have merged for purposes of sentencing.

       {¶12} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, the Ohio Supreme

Court held that “[w]hen determining whether two offenses are allied offenses of similar import

subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. at

syllabus. Since then, this Court has consistently remanded cases for further proceedings in the

trial court to apply Johnson for the first time. See, e.g., State v. Creel, 9th Dist. No. 25476,

2011-Ohio-5893, at ¶4.

       {¶13} In this case, the trial court merged counts one, two, and three with counts four,

five, and six for purposes of sentencing, but sentenced Mr. Daniels to separate prison terms for

each of the merged counts. Counsel argued the issue of merger at the sentencing hearing, but it
                                                 6


appears that it was not considered in light of Johnson. In light of our precedent, it is appropriate

to remand this case so that the trial court can apply Johnson in the first instance. Mr. Daniels’

third assignment of error is sustained.

                                                IV.

       {¶14} Mr. Daniels’ first and second assignments of error are overruled.            His third

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas

is affirmed in part and reversed in part, and this case is remanded to the trial court for

consideration of the issue raised in Mr. Daniels’ third assignment of error.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       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(E). 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.
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      Costs taxed equally to both parties.




                                                 EVE V. BELFANCE
                                                 FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
