[Cite as State v. Shaffer, 2018-Ohio-4976.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               HOCKING COUNTY

STATE OF OHIO,                  :
                                :   Case No. 18CA5
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
MATTHEW A. SHAFFER,             :
                                :
     Defendant-Appellant.       :   Released: 12/04/18
______________________________________________________
                          APPEARANCES:

Scott P. Wood, Conrad/Wood, Lancaster, Ohio, for Appellant.

Benjamin E. Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Matthew A. Shaffer appeals from a judgment filed in the

Hocking County Court of Common Pleas convicting him of one count of

attempted unlawful sexual conduct with a minor, being ten or more years

older than the victim, a fourth-degree felony in violation of R.C.

2907.04(A), and one count of sexual battery, a third-degree felony in

violation of R.C. 2907.03(A)(3). On appeal, Appellant contends that 1) the

jury returned inconsistent verdicts on allied offenses of similar import, in

violation of the double jeopardy clause of the United States and Ohio

Constitutions; and 2) there was insufficient evidence to support a conviction
Hocking App. No. 18CA5                                                           2

for sexual battery and the jury verdict of guilty on the sexual battery charge

was against the manifest weight of the evidence.

      {¶2} Because case law is clear that consistency between two jury

verdicts in a multi-count indictment is not necessary, and because double

jeopardy does not apply to cases with inconsistent verdicts, we find no merit

to Appellant’s first assignment of error. Thus, it is overruled. Further,

because we have concluded Appellant’s conviction for sexual battery was

supported by sufficient evidence and was not against the manifest weight of

the evidence, we find no merit to Appellant’s second assignment of error. It

is also overruled. Having found no merit to either of the assignments of

error raised by Appellant, the judgment of the trial court is affirmed.

                                   FACTS

      {¶3} Appellant, Matthew Shaffer, was indicted July 3, 2017 on one

count of unlawful sexual conduct with a minor, a third-degree felony in

violation of R.C. 2907.04(A), and one count of sexual battery, a third-degree

felony in violation of R.C. 2907.03(A)(3). The indictment stemmed from an

incident that occurred on June 25, 2017 when Appellant was on vacation in

Hocking County, Ohio, with his father, step-mother and fourteen-year-old

step-sister. Appellant was twenty-six years old at the time. The incident at

issue involved the victim, Appellant’s fourteen-year-old step-sister, waking
Hocking App. No. 18CA5                                                          3

up to find Appellant next to her with his hand in between her legs reaching

underneath her shorts. The victim pretended to be asleep and rolled over in

an attempt to get Appellant to stop but Appellant continued and, according

to the victim’s testimony, he inserted his finger into her vagina.

      {¶4} When Appellant returned to his room, the victim quietly woke

her mother and step-father, told them what happened, and they quickly

exited their cabin through a side door, without even taking time to put on

shoes, and drove directly to the sheriff’s department to make a report. The

victim was then sent to Nationwide Children’s Hospital where a physical

examination took place and rape kit was performed. The medical

examination revealed an abrasion to the posterior fourchette, or the entry to

the vagina. According to medical testimony introduced at trial, the injury

was consistent with the history provided by the victim.

      {¶5} After receiving the initial report, law enforcement went to the

cabin where Appellant was sleeping, woke him and brought him to the

station for questioning. Although he initially denied any wrongdoing,

Appellant eventually admitted that he had touched the victim

inappropriately, but he denied that he penetrated the victim. Appellant

pleaded not guilty to the charges he was subsequently indicted for, and the

matter proceeded to a jury trial.
Hocking App. No. 18CA5                                                           4

      {¶6} The State introduced several witnesses at trial, including law

enforcement officers involved in the investigation and medical personnel

involved in the examination of the victim. The victim, her mother and her

step-father also testified for the State. The testimony pertinent to this appeal

will be set forth and discussed below. However, prior to the conclusion of

the trial, the State requested the jury be instructed on attempt as to both of

the charged offenses. The jury ultimately acquitted Appellant on the

unlawful sexual conduct with a minor charge, but it convicted him of

attempted unlawful sexual conduct with a minor and sexual battery.

Appellant now appeals his convictions, setting forth two assignments of

error for our review.

                        ASSIGNMENTS OF ERROR

“I.   THE JURY RETURNED INCONSISTENT VERDICTS ON
      ALLIED OFFENSES OF SIMILAR IMPORT, IN VIOLATION OF
      THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES
      AHD [SIC] OHIO CONSTITUTIONS.

II.   THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A
      CONVICTION FOR SEXUAL BATTERY AND THE JURY
      VERDICT OF GUILTY ON THE SEXUAL BATTERY CHARGE
      WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                        ASSIGNMENT OF ERROR I

      {¶7} In his first assignment of error, Appellant contends that the jury

returned inconsistent verdicts on allied offenses of similar import, in
Hocking App. No. 18CA5                                                          5

violation of the Double Jeopardy clause of the United States and Ohio

Constitutions. Appellant asserts that because the jury returned inconsistent

verdicts, finding him guilty of attempted unlawful sexual conduct with a

minor and also guilty of sexual battery, which the trial court found were

allied offenses of similar import, the inconsistent jury verdicts were in

violation of his constitutional double jeopardy rights. The State contends

that inconsistent verdicts on different counts of a multi-count indictment do

not justify overturning a verdict, and that double jeopardy does not apply to

cases involving inconsistent verdicts. For the following reasons, we agree

with the State.

      {¶8} As pointed out by the State, we initially note that

“ ‘[i]nconsistent verdicts on different counts of a multi-count indictment do

not justify overturning a verdict * * *.’ ” State v. Gapen, 104 Ohio St.3d

358, 2004–Ohio–6548, 819 N.E.2d 1047, ¶ 138; quoting State v. Hicks, 43

Ohio St.3d 72, 78, 538 N.E.2d 1030 (1989); see also State v. Gilliam, 4th

Dist. Pickaway Nos. 15CA19, 15CA20, 2016-Ohio-2950, ¶ 37. “ ‘The

several counts of an indictment containing more than one count are not

interdependent and an inconsistency in a verdict does not arise out of

inconsistent responses to different counts, but only arises out of inconsistent

responses to the same count.’ ” Id.; quoting State v. Adams, 53 Ohio St.2d
Hocking App. No. 18CA5                                                        6

223, 374 N.E.2d 137, paragraph two of the syllabus (1978), vacated on other

grounds 439 U.S. 811, 99 S.Ct. 69 (1978). “Thus, a verdict will not be set

aside merely because the findings necessary to support the conviction are

inconsistent with the findings necessary to acquit the defendant of another

charge.” State v. Reine, 4th Dist. Scioto No. 06CA3102, 2007–Ohio–7221,

¶ 68; citing Browning v. State, 120 Ohio St. 62, 71, 165 N.E. 566 (1929).

“[T]he sanctity of the jury verdict should be preserved and could not be

upset by speculation or inquiry into such matters to resolve the

inconsistency.” State v. Lovejoy, 79 Ohio St.3d 440, 444, 683 N.E.2d 1112

(1997).

      {¶9} This Court considered an argument challenging inconsistent

verdicts in State v. Stanley, 4th Dist. Ross No. 1569, 1991 WL 13785. In

Stanley, we observed as follows:

      “[T]here is no reason to vacate respondent's conviction merely
      because the verdicts cannot rationally be reconciled.
      Respondent is given the benefit of her acquittal on the counts
      on which she was acquitted, and it is neither irrational nor
      illogical to require her to accept the burden of conviction on the
      counts on which the jury convicted.” Id. at *2; quoting United
      States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471 (1984).

We further noted that the United States Supreme Court has also stated, in

Powell, that:

      “ ‘[R]espondent's argument that an acquittal on a predicate
      offense necessitates a finding of insufficient evidence on a
Hocking App. No. 18CA5                                                         7

      compound felony count simply misunderstands the nature of
      the inconsistent verdict problem. Whether presented as an
      insufficient evidence argument, or as an argument that the
      acquittal on the predicate offense should collaterally estop the
      Government on the compound offense, the argument
      necessarily assumes that the acquittal on the predicate offense
      was proper-the one the jury “really meant.” This, of course, is
      not necessarily correct; all we know is that the verdicts are
      inconsistent. The Government could just as easily-and
      erroneously-argue that since the jury convicted on the
      compound offense the evidence on the predicate offense must
      have been sufficient.’ ” Stanley at *2; quoting Powell at 68.

      {¶10} Here, Appellant was charged with unlawful sexual conduct

with a minor and sexual battery, for engaging in a single act with his step-

sister, who was more than ten years younger than him. R.C. 2907.04 defines

unlawful sexual conduct with a minor and provides, in pertinent part, as

follows:

      “(A) No person who is eighteen years of age or older shall
      engage in sexual conduct with another, who is not the spouse of
      the offender, when the offender knows the other person is
      thirteen years of age or older but less than sixteen years of age,
      of the offender is reckless in that regard.

      (B) Whoever violates this section is guilty of unlawful sexual
      conduct with a minor.
      ***
      (3) Except as otherwise provided in division (B)(4) of this
      section, if the offender is ten or more years older than the other
      person, unlawful sexual conduct with a minor is a felony of the
      third degree.”

R.C. 2907.01 defines “sexual conduct” as follows:
Hocking App. No. 18CA5                                                          8

      “ ‘Sexual conduct’ means 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. Penetration, however slight, is sufficient to
      complete vaginal or anal intercourse.”

Further, R.C. 2907.03 defines sexual battery and provides, in pertinent part,

as follows:

      “(A) No person shall engage in sexual conduct with another,
      not the spouse of the offender, when any of the following
      apply:
      ***
      (3) The offender knows that the other person submits
      because the other person is unaware that the act is being
      committed.”

      {¶11} Before the trial concluded, the State requested the jury be

instructed on attempt with respect to both charges. As set forth above, the

jury acquitted Appellant on the unlawful sexual conduct with a minor

charge, but convicted him of attempted unlawful sexual conduct with a

minor, as well as sexual battery. Because the jury only found him guilty of

attempted sexual conduct with a minor, and because “sexual conduct” is an

element of sexual battery, Appellant contends the verdicts were inconsistent.

However, as this Court recently noted in Gilliam, supra, “[t]he cases are

clear that consistency between two jury verdicts in a multi-count indictment

is not necessary.” Gilliam at ¶ 38.
Hocking App. No. 18CA5                                                          9

      {¶12} Appellant further notes that the trial court found the offenses of

attempted sexual conduct with a minor and sexual battery were allied

offenses of similar import, and argues that because both charges stemmed

from a “single act of conduct, with one victim, causing one, distinct harm,

they are essentially the same count and, therefore, the inconsistent verdicts

require that the case be remanded back to the trial court for a new trial.”

However, Appellant cites no case law in support of his argument and this

Court is unaware of any authority which requires remand for retrial when a

jury returns inconsistent verdicts on allied offenses of similar import. As

such, we summarily reject this portion of Appellant’s argument.

      {¶13} Finally, Appellant contends that the inconsistency between the

verdicts violates his constitutional double jeopardy rights. However, the

United States Supreme Court has held that “ ‘double jeopardy does not apply

to cases involving inconsistent verdicts and, by implication, hung juries.’ ”

State v. Mitchell, 5th Dist. Muskingum No. CT2006-0090, 2009-Ohio-5251,

¶ 24-25; quoting State v. Lovejoy, supra, at 444; quoting Steckler v. United

States (C.A.2, 1925), 7 F.2d 59, 60. As further set forth in Mitchell:

      “ ‘In Dunn v. United States (1932), 284 U.S. 390, 393, 52 S.Ct.
      189, 190, 76 L.Ed. 356, 358-359, the United States Supreme
      Court found that consistency in a verdict was not required and
      that where offenses were separately charged in counts of a
      single indictment, even though the evidence was the same in
      support of each, an acquittal on one count could not be pleaded
Hocking App. No. 18CA5                                                       10

      as res judicata as to the other. The court found that the sanctity
      of the jury verdict should be preserved and could not be upset
      by speculation or inquiry into such matters to resolve the
      inconsistency. The court stated: “ ‘The most that can be said in
      such cases is that the verdict shows that either in the acquittal or
      the conviction the jury did not speak their real conclusions, but
      that does not show that they were not convinced of the
      defendant's guilt. We interpret the acquittal as no more than
      their assumption of a power which they had no right to
      exercise, but to which they were disposed through lenity.’ Id.,
      quoting Steckler v. United States (C.A.2, 1925), 7 F.2d 59, 60.”
      Mitchell at ¶ 25.

      {¶14} Thus, in light of the foregoing, we find no merit to Appellant’s

arguments that inconsistent verdicts returned by the jury necessitate reversal,

remand or retrial, or that they violate Appellant’s constitutional double

jeopardy rights. Accordingly, Appellant’s first assignment of error is

overruled.

                       ASSIGNMENT OF ERROR II

      {¶15} In his second assignment of error, Appellant contends that

there was insufficient evidence to support a conviction for sexual battery and

the jury verdict of guilty on the sexual battery charge was against the

manifest weight of the evidence. “When a court reviews a record for

sufficiency, ‘[t]he 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. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d
Hocking App. No. 18CA5                                                          11

930, ¶ 146; quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781 (1979). “The court must defer to the trier of fact on questions of

credibility and the weight assigned to the evidence.” State v. Dillard, 4th

Dist. Meigs No. 13CA9, 2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140

Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.

      {¶16} 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 and created such a manifest

miscarriage of justice that the conviction must be reversed. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

      {¶17} “Although a court of appeals may determine that a judgment is

sustained by sufficient evidence, that court may nevertheless conclude that

the judgment is against the weight of the evidence.” Thompkins at 387. But

the weight and credibility of evidence are to be determined by the trier of

fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of

the testimony of any witness, and we defer to the trier of fact on evidentiary
Hocking App. No. 18CA5                                                          12

weight and credibility issues because it is in the best position to gauge the

witnesses' demeanor, gestures, and voice inflections, and to use these

observations to weigh their credibility. Dillard at ¶ 28; citing State v. West,

4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.

      {¶18} Again, as set forth above, Appellant was convicted of sexual

battery in violation of R.C. 2907.03(A)(3), which provides that:

      “(A) No person shall engage in sexual conduct with another,
      not the spouse of the offender, when any of the following
      apply:
      ***
      (3) The offender knows that the other person submits
      because the other person is unaware that the act is being
      committed.”

As set forth above, Appellant admitted to authorities that he touched the

victim inappropriately, but denied that he penetrated her. However, on

appeal, Appellant’s argument is limited to the contention “that there was not

any evidence presented at trial that the victim was ‘unaware’ that the sexual

conduct was being committed and, therefore, [there was] insufficient

evidence to support the verdict of guilty on the sexual battery count.”

Appellant argues his conviction was against the manifest weight of the

evidence for the same reasons. Thus, Appellant’s argument on appeal

appears to be limited to the element of the offense regarding the knowledge

of the offender regarding the reason for the victim’s submission to the
Hocking App. No. 18CA5                                                             13

offense, and whether the victim was aware or unaware of what was

happening to her.

      {¶19} In support of his argument, Appellant cites testimony by the

victim introduced at trial which suggests the victim was initially asleep when

Appellant’s conduct began, but then woke up and pretended to be asleep

once she realized what was happening. Appellant argues that the victim’s

testimony at trial established that “at the time the sexual act took place, [the

victim] was aware of what was happening.” Appellant essentially contends

that the victim’s testimony establishes that Appellant’s hand was outside her

pants, in the process of reaching in, when the victim awoke, and that when

the victim was only pretending to be asleep, Appellant’s hand moved into

her vaginal area. It is this testimony which Appellant bases his argument

that “there was not any evidence presented at trial that the victim was

‘unaware’ that the sexual conduct was being committed.”

      {¶20} The State represents that it “could find no binding cases that

are on point to this issue[,]” but directs this Court to the holding in State v.

Antoline, 9th Dist. Loraine No. 02CA008100, 2003-Ohio-1130. In State v.

Antoline, the victim was inappropriately touched by Antoline while she

“pretended to be asleep” while lying on the couch. Id. at ¶ 45. The victim in

that case testified that she pretended to be asleep because she was afraid. Id.
Hocking App. No. 18CA5                                                          14

She further testified that in an effort to stop what was occurring, she

“pretended to turn over[,]” but Antoline continued. Id. Antoline started with

rubbing the victim’s feet and proceeded to pulling aside her shorts and

rubbing her vaginal area. Id. Antoline then progressed to repositioning the

victim’s legs after she “pretended to turn over” and placing his lips on her

vagina. Id. All the while, the victim pretended to be asleep out of fear. Id.

      {¶21} Antoline’s conviction for sexual battery, based upon that fact

pattern, was affirmed on appeal. Id. at ¶ 56. In affirming Antoline’s

conviction, the Ninth District Court of Appeals rejected Antoline’s argument

that “the victim’s unawareness is an essential element of R.C.

2907.03(A)(3).” Id. at ¶ 51. Instead, the court reasoned that Antoline’s

argument failed “to give effect to [the] statute’s focus on what ‘[t]he

offender knows’ concerning the victim’s submission because of

unawareness.” Id. at ¶ 52. The Antoline court further reasoned as follows:

      “We appreciate that, in many prosecutions under R.C.
      2907.03(A)(3), the testimony establishes that the victim was
      either asleep or unconscious, and awakened to discover the
      offender engaging in sexual conduct with him or her. See, e.g.,
      State v. Green, 5th Dist. No. 01CA–A–12–067, 2002–Ohio–
      3949, ¶ 28–29; State v. Macht (June 11, 1999), 1st Dist. No. C–
      980676, 1999 Ohio App. LEXIS 2656, at *4–5, appeal not
      allowed (1999), 87 Ohio St .3d 1418; State v. Collins (Sept. 22,
      1995), 4th Dist. No. 94CA1639, 1995 Ohio App. LEXIS 4409,
      at *17, appeal not allowed (1996), 74 Ohio St.3d 1510. In such
      cases, the offender's knowledge that the victim submits because
      of his or her unawareness is inferred from the victim's
Hocking App. No. 18CA5                                                         15

      testimony that, initially, he or she was subjectively in a state of
      unawareness (e.g., sleep or unconsciousness), during which the
      offender initiated and engaged in sexual conduct. However, the
      offender's requisite mental state can also be established through
      other evidence that the offender was aware of the probability
      that the victim was submitting because of unawareness—
      including the victim's testimony that he or she pretended to be,
      rather than actually was, asleep while the sexual conduct was
      occurring. In such a case, the fact that the offender may
      ultimately have been wrong about the victim's state of
      awareness does not preclude prosecution under R.C.
      2907.03(A)(3).” Id. at ¶ 55.

      {¶22} Here, the victim testified that she was asleep on the couch in

her family’s vacation cabin and awoke to realize Appellant was beside her

and had his hand in between her legs, on the outside of her clothing, but

“reaching into the inside.” Like the victim in Antoline, the victim herein

pretended to be asleep. She also, while still pretending to be asleep, tried to

roll over in an effort to get Appellant to stop what he was doing without

knowing she was awake. Unfortunately, Appellant continued and according

to the victim’s testimony he then inserted his finger into her vagina before

concluding the encounter.

      {¶23} An interview between law enforcement and Appellant was

played for the jury at trial and reveals the following exchange regarding

Appellant’s knowledge as to why the victim submitted:

      “Detective DeWeese: I’m just trying to make sure I got it
      straight in my own mind. Correct me if I make a mistake.
      What was she wearing?
Hocking App. No. 18CA5                                                       16

      Mr. Shaffer: Shorts and a shirt.

      Detective DeWeese: Okay. So you reached inside the shorts?

      Mr. Shaffer: No, kind of – yeah, it wasn’t like this way, it was
      kind of like in between.

      Detective DeWeese: Underneath the fabric through the leg
      openings or –

      Mr. Shaffer: A – yeah.

      Detective DeWeese: Okay. So you reached through the leg
      opening of the shorts and touched her vagina –

      Mr. Shaffer: Uh.

      Detective DeWeese: And then she rolled over and that was the
      end of it?

      Mr. Shaffer: Yeah.

      Detective DeWeese: Okay.

      Lieutenant Robinson: Did she wake up that you know of?

      Mr. Shaffer: Not that I know of.”

The victim testified as follows as to the events of the night in question:

      “I remember I was sleeping on the couch, my head facing the

      back of the couch where your back would be and I remembered

      feeling his hands start to go up my shorts is when I woke up to

      it and I froze. I couldn’t do anything like – and I didn’t know

      what to do. I just laid there thinking – thoughts running
Hocking App. No. 18CA5                                                        17

      through my head and when I finally could put myself together, I

      decided to act like I was waking up so he would stop. So I

      started to turn and he did not stop. He did not remove his hand.

      And so I tried to completely turn on my back and then he

      finally took his hand out and I just sat there. I didn’t want to

      move. I didn’t want him to know that I was awake. And when

      I could finally open up my eyes, he was at the end of the

      staircase heading back up.”

The victim further testified as follows:

      “Q: And when you described that this [sic] hand went up
      your shorts, what exactly do you recall happening?

      A:     I could feel him trying to find his way underneath my
      shorts and my underwear and reaching up towards the front.

      Q:     Okay. And did you – how – what did you feel during
      this time?

      A:     I felt him touching around and then he inserted his finger
      in me.

      Q:     And when you say he inserted his finger in you, where
      specifically did he insert it?

      A:     In my vagina.”

      {¶24} Although the victim was not specifically questioned about why

she pretended to be asleep, Appellant’s father, Brian Shaffer, testified as

follows regarding his memory of night in question:
Hocking App. No. 18CA5                                                       18

      “Q: You indicated that you left because your wife and [the
      victim] were scared that he [Appellant] might do something.
      That’s what you said.

      A:     Yes.

      Q:     Did he make any threats?

      A:     No.

      Q:     Was he acting violently?

      A:     No.

      Q:    Do you know what their fear was based on based on what
      you heard?

      A:    He had a pistol and they were afraid he had it with him,
      buy they didn’t know and they wanted to get out of there as
      soon as they could.”

Further, the victim’s mother testified as follows regarding the victim’s

demeanor right after the incident, when she woke her mother up to tell her

what had just happened:

      “Q: * * * Once – without going – how would you describe
      her demeanor?

      A:     She was scared.

      Q:     Scared. Okay.

      A:     She was shaking.

      ***

      Q:     What did you do as a result of what she told you?
Hocking App. No. 18CA5                                                        19

      A:     I went in and told Brian and told him that we needed to
      leave because [the victim] was afraid and [the victim] was
      afraid and good reason that she was afraid that he might have
      his gun so we just all left and we went – we just got in the car
      and left and went to the sheriff’s station.”

The record further reflects that the victim, her mother and step-father exited

the cabin through a side door so as not to wake Appellant, and quickly left

without even putting shoes on.

      {¶25} Consideration of the foregoing reveals a fact pattern very close,

if not identical, to the fact pattern contained in State v. Antoline. Although

Antoline constitutes non-binding authority upon this Court, we nevertheless

find it to be very persuasive authority which provides helpful guidance on

this particular question. As such, we adopt the reasoning and rationale

contained therein, which, applied to this case leads this Court to an

affirmance of Appellant’s conviction for sexual battery, based upon the

specific facts presently before us. Similarly, in State Anderson, a victim

awoke in the morning to the realization that her pants and underwear were

down and Anderson was lying next to her with his penis in her vagina. State

v. Anderson, 6th Dist. Wood No. WD-04-035, 2005-Ohio-534, ¶ 13. The

Anderson court noted in its decision that:

      “A jury can reasonably conclude that the defendant knew the
      victim was substantially impaired and unable to object to the
      defendant’s conduct if there was evidence that the victim was in
      a state of deep sleep or drunkenness.” Anderson at ¶ 41; citing
Hocking App. No. 18CA5                                                       20

      State v. Branch, 10th Dist. Franklin No. 00AP-1219, 2001 WL
      548630, *2 (May 24, 2001).

The Anderson court further noted that “[o]nly appellant knows exactly what

occurred prior to the victim waking up that morning and he had a motive to

lie about what happened.” Id. at ¶ 43.

      {¶26} Further, in State v. Henry, 3rd Dist. Seneca No. 13-08-10,

2009-Ohio-3535, ¶ 5, the court was provided a fact pattern in which a

sleeping victim awoke to find a man lying right behind her with his hand

underneath her shorts in her pubic area. Thinking it was her boyfriend, the

victim removed his hand and said “no.” Id. This happened a few more times

until eventually the man put his hand back into her shorts and penetrated her

vagina with his finger. Id. She again told him “no.” Id. When he again put

his hand into her shorts, the victim “ ‘woke completely up’ and realized that

the man was not her boyfriend[,] and she pushed the man off of her bed and

onto the floor.” Id. Reversing Henry’s conviction for gross sexual

imposition based upon those facts, the Henry court noted that “such a

perpetrator may properly be charged with any number of offenses not

requiring force, such as sexual battery in violation of R.C. 2907.03(A)(3)

* * *.” Id. at ¶ 33; citing State v. Lindsay, 3rd Dist. Logan No. 8-06-24,

2007-Ohio-4490; State v. Antoline, supra; State v. Wright, 9th Dist. Medina

No. 03CA0057–M, 2004–Ohio–603; State v. Byrd, 8th Dist. Cuyahoga No.
Hocking App. No. 18CA5                                                         21

82145, 2003–Ohio–3958, ¶ 23 (finding that “perpetrators who engage in

sexual conduct with another who is asleep or otherwise unable to appraise or

control the nature of his or her conduct are typically prosecuted for sexual

battery in violation of R.C. 2907.03(A)(2) or (3)”).

      {¶27} In light of the foregoing, we cannot conclude that Appellant’s

conviction for sexual battery is against the manifest weight of the evidence.

Moreover, “[w]hen an appellate court concludes that the weight of the

evidence supports a defendant's conviction, this conclusion necessarily also

includes a finding that sufficient evidence supports the conviction.” State v.

Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 27. Having

already determined that Appellant’s sexual battery conviction is not against

the manifest weight of the evidence, we necessarily reject Appellant’s

additional claim that this conviction is not supported by sufficient evidence.

Thus, we reject both the manifest weight and sufficiency portions of

Appellant’s argument and overruled Appellant second assignment of error.

      {¶28} Based on the foregoing, and having found no merit to the

assignments of error raised by Appellant, the judgment of the trial court is

affirmed.

                                                 JUDGMENT AFFIRMED.
Hocking App. No. 18CA5                                                         22

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Hocking County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Harsha, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
