[Cite as State v. Smith, 2011-Ohio-3943.]


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

STATE OF OHIO                                         C.A. No.      25305

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
GENO R. SMITH                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 09 08 2584

                                 DECISION AND JOURNAL ENTRY

Dated: August 10, 2011



        CARR, Judge.

        {¶1}     Appellant, Geno Smith, appeals his conviction out of the Summit County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     This case stems from an incident that occurred on July 5, 2009, that led to the

arrest of Smith. Smith was indicted by the Summit County Grand Jury on one count of sexual

battery in violation of R.C. 2907.03(A)(2), a felony of the third degree. Smith pleaded not guilty

to the charge.

        {¶3}     The matter proceeded to trial before the jury in February 2010. At the conclusion

of the State’s evidence, Smith made an oral motion for acquittal. The trial court denied the

motion. Smith did not put on a defense. Smith renewed his motion. The trial court denied the

motion again. The jury returned a verdict of guilty on the charge of sexual battery. The trial

court sentenced Smith to five years in prison, a mandatory period of five years of post-release
                                                   2


control, and ordered him to register as a TIER III sex offender. Smith filed a notice of appeal.

He raises three assignments of error for review.

                                                   II.

                                  ASSIGNMENT OF ERROR I

       "THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER OF
       LAW TO SUPPORT A CONVICTION OF SEXUAL BATTERY, PURSUANT
       TO O.R.C. §2907.03(A)(2) AS INDICATED, AND AS A RESULT THE
       APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I, SECTION 16 OF
       THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED
       STATES CONSTITUTION WERE VIOLATED AND THE COURT ERRED IN
       NOT GRANTING THE DEFENDANT’S MOTION FOR ACQUITTAL AFTER
       THE CLOSE OF THE STATE’S CASE AND/OR AFTER THE CLOSE OF
       EVIDENCE.”

       {¶4}    Smith argues that his conviction for sexual battery was not supported by sufficient

evidence. This Court disagrees.

       {¶5}    When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks (1991), 61 Ohio St.3d 259,

279.

       “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.” Id. at paragraph two of the syllabus.

       {¶6}    Smith was charged with one count of sexual battery in violation of R.C.

2907.03(A)(2), which states, in relevant part:

       “No person shall engage in sexual conduct with another, not the spouse of the
       offender, 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.”
                                                 3


       {¶7}    R.C. 2901.22(B) states:

       “A person acts knowingly, regardless of his purpose, when he is aware that his
       conduct will probably cause a certain result or will probably be of a certain
       nature. A person has knowledge of circumstances when he is aware that such
       circumstances probably exist.”


       {¶8}    R.C. 2907.01(A) defines “sexual conduct” as:

       “vaginal intercourse between a male and female; anal intercourse, fellatio, and
       cunnilingus between persons regardless of sex; and, without privilege to do so, the
       insertion, however slight, of any part of the body or any instrument, apparatus, or
       other object into the vaginal or anal opening of another.”

       {¶9}    Since “substantially impaired” is not defined in the Ohio Criminal Code,

the Ohio Supreme Court has 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.” State v. Doss, 8th Dist. No. 88443, 2008-Ohio-449, at

¶13, citing State v. Zeh (1987), 31 Ohio St.3d 99, 103-04.

       {¶10} Smith argues that there was insufficient evidence to establish that the victim was

substantially impaired and that even if the State proved she was substantially impaired, there was

insufficient evidence to prove that Smith knew she was substantially impaired. Because he

limits his argument to this element, we will focus our discussion there.

       {¶11} On July 4, 2009, an all-day get-together was held at Ms. Shatoya Fleming’s

house. Guests included Ashley Clark, Lynette Fleming, Laniece Bitting, Smith (also known as

“Nardi”), and the victim. Smith was dating Shatoya at the time. The victim was friends with

Shatoya and the other witnesses. At the date of the incident, the victim was seventeen years old

and Smith was in his late twenties.

       {¶12} Most people at the party were drinking. The victim arrived at Shatoya’s in the

early afternoon and started taking shots of liquor. She left the party a couple hours later with her
                                                 4


dad for a family party, but returned around 5:00 p.m. or 6:00 p.m. She then started drinking a lot

of liquor, including drinking straight out of the bottle. Multiple witnesses testified that they

witnessed the victim drinking liquor heavily throughout the day. Smith also admitted to an

investigating officer that he thought the victim had been drinking.

       {¶13} The victim left to go see fireworks at an apartment complex a block away around

9:00 p.m. or 10:00 p.m. The victim testified she was intoxicated at this time and was staggering

and dizzy. After the fireworks, she returned to Shatoya’s for a little bit, but then left again and

returned to the apartment complex, where she continued drinking vodka. The victim then called

a friend to take her to a gas station for food around midnight before returning to Shatoya’s.

When questioned how intoxicated she was at this point, the victim responded, “Very, to where

I’m just ready to go to sleep.” Rather than sleep at Laniece’s as she originally planned, the

victim decided to sleep at Shatoya’s because she was “too drunk to even do anything or call

another ride.”

       {¶14} Witnesses, who were outside at the time, observed the victim stumbling when she

returned to Shatoya’s house at the end of the night. Smith was also outside at this time. The

victim went inside the house and passed out on an L-shaped couch in the living room. Lynette

slept on the other half of the couch with her feet touching the victim’s feet. Ashley slept on the

loveseat a few feet away from the couch and a group of children slept on the floor. Smith and

Shatoya went upstairs to bed around 3:00 a.m.

       {¶15} Around 4:00 a.m., Smith came downstairs. Lynette testified that the victim was

sleeping when Smith came downstairs and sat on the couch. Both Ashley and Lynette, who were

awakened, testified that they saw Smith touching the victim. Lynette testified that Smith was

grinding on the victim and it appeared they were having sex. Ashley also stated that she thought
                                                 5


she saw Smith put his penis inside the victim’s private area. At one point, the victim was laying

on Lynette with Smith in front of her. The victim never said anything to Lynette when this

occurred and Lynette told the victim to get off. Ashley testified that Smith would stop the sexual

acts whenever someone woke up, but then continue after the person went back to sleep. After

the sexual act was over, Smith went back upstairs. Both Ashley and Lynette testified that they

never heard the victim say anything to Smith during the incident. The victim woke up at 5:00

a.m. and went to the bathroom. The victim testified that she staggered up the stairs to the

bathroom and was still drunk.

       {¶16} Laniece picked the victim up from Shatoya’s house later that morning. She

testified that the victim appeared scared and nervous. She added that the victim “wasn’t acting

like herself” and was shaking. She testified that the victim told her “it felt like she was having

sex” but that she did not remember having sex.

       {¶17} The victim started to feel vaginal pain at Laniece’s. She called Lynette and

learned that a sexual act had occurred. The victim then called Shatoya and asked her to ask

Smith about the sexual act. Smith then called the victim. The victim asked Smith if they had sex

and he replied “maybe.” The victim went back to Shatoya’s where she confronted Smith and

again asked if they had sex. The victim testified that Smith laughed and still said “maybe.” She

stated that everyone was laughing, because they thought it was a joke. After everyone was done

laughing, Smith said, “I guess we did.” The victim testified that she had no recollection of

having sex nor did she consent to any kind of sexual conduct with Smith.

       {¶18} The victim went home and told her mother what happened. The victim’s mother

then took her to the ER at Akron Children’s Hospital. Ms. Kimberly Bach conducted a sex
                                                6


abuse interview and then had a rape kit performed at the hospital. Ms. Bach testified that it was

not surprising that the victim did not remember having sex because of her intoxication.

       {¶19} A few days later, the victim met with Detective Guy Sheffield of the Akron Police

Department. The victim and Detective Sheffield conducted a one party consent call to see if

Smith would admit to what he had done, but Smith told the victim they did not have sex.

Detective Sheffield then met with Smith. Smith told Detective Sheffield that he and the victim

had sex after everyone went to bed and that “she put herself on me.” He admitted he thought the

victim had been drinking. He stated that he and the victim had stayed up talking. He also stated

he could not think of any reason why Ashley or Lynette would have a problem with him or

would make up a story about him.

       {¶20} The victim testified that she spent the night at Shatoya’s a lot, including nights

when Smith also spent the night. She testified that she drank at Shatoya’s many times and that

Smith had seen her intoxicated before. She testified that one night in early summer when she

was drunk and sleeping at Shatoya’s, she woke up to Smith kissing her neck and she told him to

move. She stated that despite this incident, she thought she would be safe at Shatoya’s since she

had spent the night so many times before.

       {¶21} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of the charge of

sexual battery were proved beyond a reasonable doubt. See Jenks at paragraph two of the

syllabus. Smith admitted to having sex with the victim, who was not his spouse. Smith also

admitted he thought the victim had been drinking. Multiple eyewitnesses confirmed his belief as

they testified that they saw the victim drinking heavily throughout the day and night. The victim

testified that she had “[o]ver 15 or 20 shots” of liquor that day and was very intoxicated. Smith
                                                7


was outside when the victim came stumbling up to the house at the end of the night.

Additionally, the State presented the eyewitness testimony of people who were near the victim

during the sexual act and never heard the victim say or do anything during the act, further

suggesting the victim was substantially impaired.

       {¶22} Based on the foregoing, the State presented sufficient evidence to establish that

the victim was substantially impaired and that Smith knew she was substantially impaired when

he engaged in sexual conduct with her. Smith’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       "THE COURT’S VERDICT IN THIS CASE FINDING GENO SMITH GUILTY
       OF SEXUAL ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE AND AS A RESULT, APPELLANT’S RIGHTS AS PROTECTED
       BY ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND FIFTH
       AMENDMENT OF THE UNITED STATES CONSTITUTION WERE
       VIOLATED.”

       {¶23} In his second assignment of error, Smith argues his conviction is against the

manifest weight of the evidence. We do not agree.

       {¶24} A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley (Mar.

15, 2000), 9th Dist. No. 19600. “While the test for sufficiency requires a determination of

whether the state has met its burden of production at trial, a manifest weight challenge questions

whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78

Ohio.St.3d 380, 390 (Cook J., concurring). A determination of whether a conviction is against

the manifest weight of the evidence, however, does not permit this Court to view the evidence in

the light most favorable to the State to determine whether the State has met its burden of

persuasion. State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, at ¶11. Rather,
                                                 8


       “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
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339,
       340.

       “Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
       juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio

St.3d at 387.

       {¶25} Smith again focuses his argument on the substantially impaired element. He

argues that there is no evidence that he knew the victim was substantially impaired and attempts

to cast doubt on other witnesses’ credibility.

       {¶26} The defendant admitted that he thought the victim had been drinking. The victim

testified that she was drinking heavily at the party at Shatoya’s. Several witnesses saw the

victim drinking a great amount of liquor at the party. By the end of the night, the victim was

stumbling and could not even call someone for a ride to Laniece’s house. The victim testified

that she passed out on the couch and did not wake up until she had to use the bathroom at 5:00

a.m. The victim testified that she had no recollection of ever having sex that night.

       {¶27} Smith tries to cast doubt on Lynette and Ashley’s credibility by arguing that they

were not awake for the entire sexual act. However, they testified consistently with one another.

They testified that they had witnessed the victim drinking heavily throughout the day and pass

out on the couch. They were lying within close proximity to the victim when the sexual act
                                                9


occurred. Both witnesses testified that the victim had been sleeping and did not speak during the

act. Furthermore, whether the witness was awake for the entire incident is just one factor a jury

can weigh when making a determination of the witness’ credibility. See State v. DeHass (1967),

10 Ohio St.2d 230, 231.

       {¶28} At the same time, Smith’s denials about having sex with the victim cast doubt on

his own credibility. When initially confronted by the victim at Shatoya’s house, Smith would

not outwardly admit that they had sex. During the one party consent call, Smith told the victim

that they did not have sex. The victim lied to Smith saying she was pregnant and asked if he

wanted a DNA test and he said, “Why not?” The victim repeatedly asked Smith whether they

had sex and he kept responding “I don’t know” and “I don’t think we did.” At the end of the

phone call, Smith told the victim, “I apologize if I touched you.” Smith did not fully admit to

having sex with the victim until he met with Detective Sheffield. At that meeting, Smith

admitted that he thought the victim had been drinking alcohol and that he had sex with her.

       {¶29} This Court will not overturn the trial court’s verdict on a manifest weight of the

evidence challenge only because the trier of fact chose to believe certain witness’ testimony over

the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, at ¶22. A

thorough review of the record indicates that this is not the exceptional case, where the evidence

weighs heavily in favor of Smith, and there is no indication that the trial court lost its way and

committed a manifest miscarriage of justice in convicting Smith of sexual battery.

       {¶30} In his argument, Smith focused solely on whether the State proved he knew the

victim was substantially impaired, and we conclude the State proved this element. The weight of

the evidence supports the conclusion that the victim was substantially impaired and anyone

observing her that evening, including Smith, would have realized this. See, e.g., In re G.E.S., 9th
                                                 10


Dist. No. 23963, 2008-Ohio-2671, at ¶ 43. The victim drank an extensive amount of liquor

throughout the day. Smith admitted he thought the victim had been drinking. Smith was outside

when other witnesses observed the victim stumbling towards the house. The victim passed out

on a couch at Shatoya’s, because she was too drunk to call for a ride. Accordingly, the evidence

establishes that the victim was substantially impaired, as she had a reduced ability to act and

think, and Smith knew this.

       {¶31} Furthermore, two eyewitnesses to the sexual act testified that the victim had been

sleeping and that they did not hear either the victim or Smith speak during the sexual act. The

victim stated that she was passed out, did not wake until 5:00 a.m., and had no memory of having

sex. This evidence is contrary to Smith’s assertion that the victim instigated the sexual conduct

and that they had stayed up talking. Smith’s credibility was further undermined given that he

lied to the victim when he told her they did not have sex, but then admitted that he had sex with

the victim when he met with a police detective. Accordingly, Smith’s conviction for sexual

battery is not against the manifest weight of the evidence. Smith’s second assignment of error is

overruled.

                                  ASSIGNMENT OF ERROR III

       "THE COURT ABUSED ITS DISCRETION IN READING PORTIONS OF
       THE TRANSCRIPT TO THE JURY WHEN IT WAS APPARENT THAT THE
       INFORMATION SOUGHT WOULD PREJUDICE THE DEFENDANT AND
       RESULT IN HIS CONVICTION.”

       {¶32} After indicating they were having difficulty in reaching a unanimous verdict, the

jury requested a portion of the transcript of the victim’s testimony regarding a previous incident

involving the victim waking up to Smith kissing her. The trial court read the specific portions of

the transcript requested after concluding that it was necessary to do so “if there’s any hope of this

jury coming up with a verdict.”
                                                 11


       {¶33} Smith argues that the trial court abused its discretion in reading the requested

portion of the transcript after the jurors had begun deliberations. Smith contends that he was

prejudiced because the Court puts emphasis on the testimony just by reading it and the portions

of the transcript that were read were taken out of context.

       {¶34} “After jurors retire to deliberate, upon request from the jury, a court in the

exercise of sound discretion may cause to be read all or part of the testimony of any witness, in

the presence of or after reasonable notice to the parties or their counsel.” State v. Berry (1971),

25 Ohio St.2d 255, 263. A trial court’s decision to provide or read transcripts to the jury during

deliberations has been accepted as properly within the court’s discretion. Id. at 257; See also,

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, at ¶123; State v. Carter (1995), 72 Ohio

St.3d 545, 560; State v. Cox, 12th Dist. No. CA2005-12-513, 2006-Ohio-6075, at ¶19.

       {¶35} An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.               An abuse of discretion demonstrates

“perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State

Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. When applying the abuse of

discretion standard, this Court may not substitute its judgment for that of the trial court. Id.

       {¶36} This Court finds that the trial court did not abuse its discretion in reading portions

of the transcript to the jury. In State v. Leonard, the trial court read to the jury specific portions

of two witnesses’ testimony that they had requested. Leonard at ¶122. After holding that the

trial court “has broad discretion in this regard[,]” the Supreme Court stated that the defendant

only offered a “purely speculative claim of prejudice” rather than show that the trial court abused

its discretion. Id. Likewise in this case, it was within the trial court’s discretion to read portions
                                                     12


of the victim’s testimony to the jury.        Smith did not demonstrate how the reading of the

testimony prejudiced him. Accordingly, the trial court did not abuse its discretion in choosing to

read the testimony that the jury requested.

       {¶37} Furthermore, the trial court did not place any undue emphasis on the testimony

simply by reading it to the jury. Rather, the Court protected against this by instructing the jury,

“You are to take this testimony and consider it in context with all the other testimony that you

heard as a part of this trial and that you’re not to give any special emphasis to this testimony

because it is singled out and read to you specifically, okay.” This limiting instruction cautioned

the jury against placing emphasis on the testimony or taking it out of context.

       {¶38} Smith also argues that the requested testimony should not have been read to the

jurors as it “did not go to any of the necessary elements of the offense of sexual battery.”

However, there were no objections when this testimony was given at trial.            Some of the

testimony re-read was actually from defense’s cross-examination of the victim. Therefore, any

such objection was forfeited and we need not consider such argument on appeal.

       {¶39} It was within the trial court’s discretion to read the testimony of a witness upon

request by the jury. The trial court advised both parties’ counsel of the jury’s request before

deciding to read the testimony to the jury. The limiting instruction cautioned the jury against

placing emphasis on the testimony. As such, the trial court’s decision to read the specific

portions of the transcript to the jury was not unreasonable, arbitrary, or unconscionable.

Accordingly, Smith’s third assignment of error is overruled.

                                              III.

       {¶40} Smith’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.
                                                13


                                                                              Judgment affirmed.




       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.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT


BELFANCE, P. J.
MOORE, J.
CONCUR

APPEARANCES:

RONALD T. GATTS, Attorney at Law, for Appellant.

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