[Cite as State v. Ford, 2019-Ohio-2570.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                           No. 107541
                 v.                              :

JEREMIAH FORD,                                   :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 27, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-620606-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Hannah Smith, Assistant Prosecuting
                 Attorney, for appellee.

                 Paul W. Flowers Co., L.P.A., and Louis E. Grube, for
                 appellant.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant, Jeremiah Ford (“appellant”), brings the instant

appeal challenging his convictions for sexual battery. Appellant argues that his
convictions are against the manifest weight of the evidence. After a thorough review

of the record and law, this court affirms.

                      I. Factual and Procedural History

             The instant appeal arose from an incident that occurred between

appellant and the victim, F.C., on July 30, 2017. Appellant and F.C. attended middle

school and high school together and were friends at school. They did not stay in

touch after high school, and had not been in contact with one another for

approximately ten years prior to July 2017.

             The victim posted a message on Facebook regarding how nice the

weather was and asking if any of her friends wanted to hang out. Appellant

responded to the victim’s post, and they decided to go to a park. The victim’s

daughter accompanied the victim and appellant to the park.

             At some point, the victim, her daughter, and appellant left the park, got

ice cream, and returned to the park. Later in the evening, they got dinner together.

After dinner, they went to a Wal-Mart store to purchase movies to watch. The victim

invited appellant to watch the movies at her apartment.

             As they were watching a movie, and after the victim’s daughter fell

asleep, appellant engaged in sexual conduct with the victim. The parties disputed

whether or not the sexual conduct was consensual.          According to the victim,

appellant engaged in sexual acts — digital penetration, oral sex, and vaginal

intercourse — against her will. Appellant, on the other hand, asserted that the victim

initiated the sexual conduct and that the sexual encounter was consensual.
             The following day, July 31, 2017, the victim felt “violated” and spoke

with a friend about what transpired the prior evening with appellant. The victim’s

friend, C.F., opined that appellant’s conduct constituted rape. Thereafter, the victim

filed a police report and was treated at Fairview Hospital where a rape-kit

examination was conducted.

            In Cuyahoga C.P. No. CR-17-620606-A, the Cuyahoga County Grand

Jury returned a four-count indictment on August 28, 2017, charging appellant with

three counts of rape, with notice of prior conviction and repeat violent offender

specifications, and one count of kidnapping, with sexual motivation, notice of prior

conviction, and repeat violent offender specifications. Appellant was arraigned on

August 31, 2017. He pled not guilty to the indictment.

             On September 18, 2017, the trial court referred appellant to the court

psychiatric clinic for an evaluation pursuant to R.C. 2945.371 for competency to

stand trial and sanity at the time of the incident. The court psychiatric clinic

determined that appellant was competent to stand trial. The parties stipulated to

the court psychiatric clinic’s report during a pretrial hearing on October 23, 2017.

             On June 6, 2018, appellant waived his right to a jury trial and elected

to try the case to the bench. A bench trial commenced on June 6, 2018.

              After the state rested, defense counsel moved for a Crim.R. 29

judgment of acquittal. Regarding the rape offenses charged in Counts 1, 2, and 3 of

the indictment, the state requested that the trial court also consider the lesser-

included offense of sexual battery, third-degree felony violations of R.C.
2907.03(A)(1). The trial court permitted the state to proceed on Counts 1, 2, and 3

with the offenses of sexual battery. Defense counsel argued that Count 4 should

proceed as the lesser-included offense of abduction rather than the kidnapping

offense charged in the indictment. The trial court agreed. (Tr. 192-193.)

             The trial court returned its verdict on June 11, 2018. On Counts 1 and

3, the trial court found appellant guilty of the lesser-included offense of sexual

battery. The trial court found appellant not guilty on the underlying notice of prior

conviction and repeat violent offender specifications.        The trial court found

appellant not guilty on Counts 2 and 4.

              The trial court held a sentencing hearing on July 18, 2018. The trial

court sentenced appellant to community control sanctions for a term of two years

on each count, under the probation department’s “mental health/developmental

disabilities unit.” The trial court ordered appellant to have no contact with the

victim. Finally, the trial court determined that appellant was a Tier III sex offender.

              On August 14, 2018, appellant filed the instant appeal challenging the

trial court’s judgment. He assigns one error for review:

      I. The trial court’s verdict is against the manifest weight of the
      evidence.

                              II. Law and Analysis

              In his sole assignment of error, appellant argues that his convictions

for sexual battery are against the manifest weight of the evidence.
              Initially, we note that appellant’s sole assignment of error combines

and confuses the issues of sufficiency of the evidence and manifest weight of the

evidence. See State v. Adhikari, 2017-Ohio-460, 84 N.E.3d 282, ¶ 10 (8th Dist.).

For instance, appellant argues that the “inconsistencies [in the victim’s testimony]

make it impossible for a finder of fact to accept her story as true, finding that

[appellant] knowingly coerced her to engage in sexual conduct, without any

reasonable doubts. R.C. 2907.03(A)(1).” Appellant’s brief at 12.

              “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins,

78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.

“Sufficiency of the evidence is a test of adequacy as to whether the evidence is legally

sufficient to support a verdict as a matter of law, but weight of the evidence

addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387.

      Sufficiency asks whether, when “viewed in a light most favorable to the
      prosecution,” “a rational trier of fact” could find that the state met its
      burden of production on each element of the offense with the evidence
      admitted at trial? A manifest weight challenge asks whether, viewed
      from the perspective of a “thirteenth juror,” it is apparent that the jury
      has clearly “lost its way” due to “misrepresentation or misapplication
      of the evidence.”

(Citations omitted.) State v. Curry, 8th Dist. Cuyahoga No. 105203, 2018-Ohio-

4771, ¶ 21.

              Appellant does not raise separate assignments of error challenging the

sufficiency of the evidence and the manifest weight of the evidence, as required by
App.R. 16(A)(7). See Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-

2698, ¶ 14, citing App.R. 16(A)(7) (pursuant to App.R. 16(A)(7), this court overruled

an appellant’s assignment of error relating to a sufficiency challenge because the

appellant did not make a specific argument regarding why the convictions were not

supported by sufficient evidence and only addressed the issues relating to the

manifest weight challenge).

              Nevertheless, appellant’s sole assignment of error primarily focuses

on whether his convictions were against the manifest weight of the evidence.

Although sufficiency and manifest weight are different legal concepts, “manifest

weight may subsume sufficiency in conducting the analysis; that is, a finding that a

conviction is supported by the manifest weight of the evidence necessarily includes

a finding of sufficiency.” State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-

Ohio-3161, ¶ 11, citing State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-

Ohio-2198, ¶ 15. Accordingly, a determination that a conviction is supported by the

weight of the evidence is dispositive of, and will subsume the issue of sufficiency.

Braxton at id.; State v. Mock, 2018-Ohio-268, 106 N.E.3d 154, ¶ 44 (8th Dist.).

                                    A. Coercion

              Appellant argues that “[t]he strong weight of the evidence suggests

that [appellant] did not knowingly coerce [the victim] to engage in manual and oral

sexual conduct.” (Emphasis sic.) Appellant’s brief at 10. Appellant does not dispute

that he engaged in sexual conduct with the victim. However, appellant argues that

he believed the sexual conduct was “entirely consensual.” Appellant’s reply brief
at 1. Appellant explains that “there had been no reason for [him] to believe during

sex with [the victim] that he was coercing her to do anything at all.” Appellant’s

reply brief at 5. Finally, appellant contends that “[t]he evidence admitted at trial

strongly suggests that [the victim] did not share any sexual reservations with [him]

until almost one full day had passed after the sexual conduct occurred.” Appellant’s

brief at 11. After reviewing the record, we find that appellant’s arguments are

misplaced and unsupported by the record.

               Appellant was convicted of sexual battery in violation of R.C.

2907.03(A)(1), which prohibits a person from engaging in sexual conduct with

another when the offender knowingly coerces the other to submit by any means that

would prevent resistance by a person of ordinary resolution.         “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.” R.C. 2901.22(B).

               The Revised Code does not define “coercion.” The commentary to R.C.

2907.03, however, provides that sexual conduct by coercion is somewhat broader

than sexual conduct by force. State v. Ndoji, 8th Dist. Cuyahoga No. 90181, 2008-

Ohio-3551, ¶ 15; State v. Wilkins, 64 Ohio St.2d 382, 386, 415 N.E.2d 303 (1980)

(“coercion for purposes of sexual battery is broader than the force required to prove

rape and necessarily includes all uses of force. Force is not required to prove

coercion.”).
              In State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), the

Ohio Supreme Court described the term “coercion” as follows:

      “Coercion” may include a compulsion brought about by moral force or
      in some other manner with or without physical force. * * *

      These judicial definitions of coercion correspond to the common use of
      the word. Webster’s Third New International Dictionary defines
      coercion as “the act of coercing: use of physical or moral force to compel
      to act or assent,” and to coerce as “to restrain, control or dominate,
      nullifying individual will or desire (as by force, power, violence, or
      intimidation).”

      The essential characteristic of coercion which emerges from these
      definitions is that force, threat of force, strong persuasion or
      domination by another, necessitous circumstances, or some
      combination of those, has overcome the mind or volition of the [victim]
      so that [s]he acted other than [s]he ordinarily would have acted in the
      absence of those influences.

Id. at 136-137.

              Additionally, in State v. Brooks, 8th Dist. Cuyahoga No. 96552, 2011-

Ohio-6643, this court reiterated the Twelfth District’s explanation of the element of

coercion:

      “Coercion for purposes of sexual battery has been defined as ‘to compel
      by pressure.’ See In re Jordan, [9th Dist. Lorain No. 01 CA007804,
      2001 Ohio App. LEXIS 4013 (Sept. 12, 2001)]. Webster’s Third New
      International Dictionary (1993) defines ‘to coerce’ in relevant part as
      ‘to restrain, control, or dominate, nullifying the individual will or
      desire,’ ‘to compel to an act of force, threat, or other pressure,’ and ‘to
      bring about * * * by force, threat, or other pressure.’ Id. at 439. Black’s
      Law Dictionary (5th Ed.1979), in turn states that coercion ‘may be
      actual, direct, or positive, as where physical force is used to compel
      act[s] against one’s will, or implied, legal, or constructive, as an where
      one party is constrained by subjugation to [an]other to do what his free
      will would refuse.’ Id. at 234.”
Brooks at ¶ 34, quoting In re J.A.S., 12th Dist. Warren No. CA2007-04-046, 2007-

Ohio-6746, ¶ 19.

              In Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303, the Ohio Supreme

Court held that sexual battery, as defined in R.C. 2907.03(A)(1), may be a lesser-

included offense of rape, as defined in R.C. 2907.02(A)(1). Id. at syllabus. The court

explained,

       it is possible for a person to compel another to engage in sexual conduct
       by force or threat of force knowingly but not purposely. A person could
       subjectively believe that there is consent where there is none, and in
       using his strength could coerce another to submit by force. In such a
       case he would not intend to do the prohibited act. However, if he is
       aware of the circumstances that probably exist and that under such
       circumstances there probably is no consent he would have knowingly
       coerced another to engage in sexual conduct by force. Consequently,
       sexual battery as defined in R. C. 2907.03(A)(1) may be a lesser
       included offense of rape as defined in R. C. 2907.02(A)(1) where force
       is present.

Id. at 386-387.

              In State v. Frigic, 8th Dist. Cuyahoga No. 61509, 1992 Ohio App.

LEXIS 6598, 11 (Dec. 31, 1992), this court explained,

       sexual battery is properly considered as a lesser offense of rape when
       the evidence demonstrates either that the defendant knowingly coerced
       another to engage in sexual conduct by force, or that the defendant
       misunderstood a refusal to consent. Sexual battery is not properly
       considered when the state’s evidence demonstrates that the victim gave
       absolutely no indication of valid consent, and the defendant wholly
       denies that any sexual conduct occurred.

Id. at 14.

              In the instant matter, appellant does not deny that sexual conduct

occurred with the victim. Furthermore, the evidence — the victim’s testimony —
demonstrates that appellant knowingly coerced the victim to engage in sexual

conduct by force. Accordingly, the trial court properly considered the lesser offense

of sexual battery.

              As noted above, the victim testified that appellant digitally penetrated

her with his fingers, performed oral sex, and had vaginal intercourse with her

against her will. The victim testified that appellant got on top of her, forced his

hands down her pants, and forced his fingers into her vagina. When appellant got

on top of her and forced his hands down her pants, she said “no,” told appellant

“stop” and “get off,” and tried to pull his hands away approximately five times.

(Tr. 35-36.) She explained that she was unable to push him off of her because “he

was forcing [his hands down her pants] and he wouldn’t stop.” (Tr. 36.) The victim

testified that she is 5’2” and weighs 125 pounds. (Tr. 34.) She explained that

appellant was “much bigger” than her.

              After forcing his fingers into her vagina, appellant forced his mouth

onto her vagina and performed oral sex. She continued to tell appellant “no” and

also asserted that she was on her period. She did not want him to perform oral sex.

(Tr. 52.)

              The victim was fearful of appellant based on what he said earlier in

the day and also because “how [appellant] was so forceful on [her] when [she] kept

telling him to stop and he wouldn’t stop. [The victim] was thinking about that.”

(Tr. 83.)
                In Frigic, 8th Dist. Cuyahoga No. 61509, 1992 Ohio App. LEXIS 6598,

the state’s evidence demonstrated that

       the victim voluntarily went on a date with defendant, did not object to
       defendant kissing her on three separate occasions preceding the sexual
       conduct, but objected only when there were too many people around,
       and that [the victim] willingly went into the cabin of the boat with
       defendant and allowed him to kiss her, before defendant attacked her.
       Further, defendant acknowledged that sexual conduct had occurred,
       but he claimed that it was consensual. Accordingly, the evidence
       reasonably supports alternative conclusions that defendant knowingly,
       rather than purposely, coerced [the victim] to engage in sexual conduct
       by force, and that defendant was mistaken as to whether there was
       consent. Therefore, the trial court did not err in convicting defendant
       of sexual battery as a lesser included offense of rape.

Id. at 15-16.

                In the instant matter, the state’s evidence demonstrated that the

victim voluntarily spent the day with appellant, invited appellant to her apartment,

and even agreed to let appellant give her a massage. However, when appellant got

on top of her and forced his hands down her pants, the victim said “no” and told

appellant to stop. The victim also said “no” when appellant started performing oral

sex and she tried to push his head away from her vagina. (Tr. 95.) Appellant, on the

other hand, acknowledged that the sexual conduct occurred, but he maintained that

it was consensual.     Accordingly, like Frigic, the evidence reasonably supports

alternative conclusions that appellant (1) knowingly, rather than purposely, coerced

the victim to engage in sexual conduct by force, and (2) appellant was mistaken as

to whether there was consent. Therefore, the trial court did not err in considering

or finding appellant guilty of sexual battery as a lesser included offense of rape.
              The victim’s testimony, if believed, demonstrates that appellant

compelled and/or coerced her to engage in sexual conduct by (1) actual physical

force — getting on top of the victim, forcing his hands down her pants, forcing his

fingers inside her vagina, and forcing his mouth onto her vagina, despite the fact

that the victim said “no,” “stop,” and tried to resist appellant’s actions — and (2)

coercion through means other than force — the victim feared for her safety and the

safety of her daughter based on appellant’s statements about his criminal history,

appellant’s forceful actions, and his refusal to stop when she told him to do so several

times.

              In State v. Shank, 9th Dist. Medina No. 14CA0090-M, 2016-Ohio-

7819, the defendant-appellant was convicted of several lesser-included offenses of

sexual battery. The victim testified that she did not engage voluntarily in sexual

conduct with the defendant, and that she was scared of the defendant’s size

compared to her own. Id. at ¶ 14. On appeal, the Ninth District held that the

defendant’s sexual battery convictions, violations of R.C. 2907.03(A)(1), were

supported by sufficient evidence. Id., citing State v. Ortiz, 185 Ohio App.3d 733,

2010-Ohio-38, 925 N.E.2d 662, ¶ 15 (9th Dist.) (while rape under R.C.

2907.02(A)(2) requires a mens rea of purposely and proof of force, sexual battery

under R.C. 2907.03(A)(1) requires a mens rea of knowingly and proof of coercion).

              In the instant matter, like Shank, the victim testified that she did not

engage voluntarily in the sexual conduct with appellant, and that she was scared for

the safety of her daughter and herself based on appellant’s background and criminal
history, his forceful actions, and the fact that he refused to stop. As noted above, the

victim testified that appellant is much bigger than she is. When appellant got on top

of her and forced his hands down her pants, and when appellant forced his mouth

onto her vagina, the victim repeatedly said “no.” The victim also attempted to

physically resist appellant by pulling his hands away and pushing his head away

from her vagina. However, she was unsuccessful in doing so.

              For all of the foregoing reasons, we find that the weight of the evidence

supports the trial court’s determination that appellant knowingly coerced the victim

into digital penetration on Count 1 and oral sex on Count 3.

                                 B. Manifest Weight

              In contrast to a sufficiency argument, a manifest weight challenge

questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12.            A reviewing court “‘weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). A conviction should be reversed as against the manifest weight of the

evidence only in the most “exceptional case in which the evidence weighs heavily

against the conviction.” Id.
              Although we review credibility when considering the manifest weight

of the evidence, we are cognizant that determinations regarding the credibility of

witnesses and the weight of the testimony are primarily for the trier of fact. State v.

Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to

view the witnesses and observe their demeanor, gestures, and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.” State

v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury

may take note of any inconsistencies and resolve them accordingly, “believ[ing] all,

part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No.

02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964).

              In support of his manifest weight challenge, appellant argues that the

victim’s testimony regarding the events that transpired on July 30 and 31, 2017, was

inconsistent and contradictory, and inconsistent with the statements she made to

the police and SANE Nurse Laura Gaertner. Specifically, appellant contends that

the victim provided inconsistent and contradictory testimony regarding the timing

of her conversation with her friend, C.F., following the incident, and the statements

she made to the police when she filed a police report.

              First, regarding the victim’s testimony about her conversation with

C.F., the victim initially testified that at some point after appellant returned her

apartment keys and left the apartment the following morning, she contacted her best
friend, C.F., via telephone and told her what transpired with appellant. (Tr. 41.)

After speaking with C.F., the victim took a shower and went to C.F.’s house. She met

with C.F. around 6:00 p.m. on July 31, 2017.

               The victim also spoke with appellant on July 31, 2017.             They

communicated via text message and also over the phone. Appellant and the victim

exchanged more text messages and phone calls that evening.                    Her last

communication with appellant occurred at 10:33 p.m. on July 31. The victim

testified that she was not with C.F. at this time, she had not gone to C.F.’s house, and

she had not spoken with C.F. at the time she exchanged the text messages and phone

calls with appellant. (Tr. 54.)

              Regarding the timing of her communications with C.F., the victim

explained that the incident with appellant happened in the early morning hours on

July 31, 2017. Later in the day, she communicated with appellant via text and phone

calls. The victim testified that she went over to C.F.’s house the next day, Tuesday,

August 1, 2017.

              On cross-examination, the victim testified that she called C.F. “a few

hours” after appellant returned her keys.         (Tr. 87.)   She confirmed that the

communications with appellant on the evening of July 31, 2017, took place after she

spoke with C.F. (Tr. 89.) C.F. opined that what had transpired between appellant

and the victim was “definitely rape.” (Tr. 87.)

              C.F. testified that on July 31, 2017, she spoke with the victim on the

phone. C.F. explained that the victim called her at a time that C.F. considered to be
“early.” C.F. typically wakes up no earlier than 10:00 a.m. C.F. opined that the

victim called her sometime between 7:00 and 10:00 a.m. on July 31. C.F. confirmed

that at the time that the victim called her, appellant had left the victim’s apartment.1

Based on her conversation with the victim, C.F. advised the victim to file a police

report. C.F. drove to the victim’s apartment, picked her up, and drove her to the

police station.

                  On cross-examination, the victim testified that a few hours after

appellant returned her keys, she called her friend C.F. (Tr. 87.) C.F. told her what

occurred with appellant was definitely rape.

              Second, appellant argues that the victim’s trial testimony contradicted

the statements she initially made to the police when she filed a police report.

Appellant contends that although the victim told the police that she did not want to

“rush” things with appellant, the victim was unable to recall whether she made this

statement at trial. Appellant emphasizes that the statement about not wanting to

“rush” things “bolstered elements of [appellant’s] story” and was “consistent with

[appellant’s] initial belief * * * that [the victim] was hurt because she regretted

moving so quickly with him.” Appellant’s brief at 13.

                  The victim testified on cross-examination that she recalled telling the

police on August 2, 2017, that she told appellant “I would like to get to know you

better.” (Tr. 80.) She did not recall telling police, however, that she told appellant



      1It is unclear whether C.F. was referring to appellant leaving the victim’s
apartment after waking up or after returning her apartment keys.
“don’t rush it.” On redirect examination, the victim explained that she did not recall

saying that she did not want to rush things with appellant. (Tr. 93.) Appellant

testified on cross-examination that the victim told him she felt like they were rushing

things and she did not want things to go any farther. (Tr. 231.)

              Appellant also argues that the victim’s trial testimony contradicted the

statements she initially made to the police regarding whether or not she told

appellant to perform and/or permitted appellant to perform oral sex. The record

reflects that the following exchange took place between defense counsel and the

victim on cross-examination:

      [DEFENSE COUNSEL]: Do your recall saying to the police: “I let him
      give me oral sex? I let him give me oral sex”?

      [VICTIM]: Yeah — no, I don’t — yeah.

      [DEFENSE COUNSEL]: Right? So, “I let him give me oral sex.”
      Correct? How long would you say that that lasted?

      [VICTIM]: Maybe like a few minutes.

      [DEFENSE COUNSEL]: Okay, and then do you recall saying to the
      police, “I let him take me in the bedroom?”

      [VICTIM]: Correct.

      [DEFENSE COUNSEL]: Okay.            So, “I let him give me oral sex.”
      Correct?

      [VICTIM]: Correct.

      [DEFENSE COUNSEL]: And that was without yelling or screaming.
      Correct?

      [VICTIM]: Correct.

      [DEFENSE COUNSEL]: Without saying, “No,” at that point. Correct?
      [VICTIM]: Correct.

      [DEFENSE COUNSEL]: So without yelling, screaming or saying, “No,”
      at that point you indicated to the police you let him give you oral sex.
      Correct?

      [VICTIM]: Correct.

(Tr. 83-84.)

               Defense counsel continued on cross-examination,

      [DEFENSE COUNSEL]: * * * you walked up to the police and you said,
      “Hey, I let him have oral sex with me.[”] * * *

      [VICTIM]: Yeah.

(Tr. 87-88.)

               Subsequently, on redirect examination, the victim testified that she

told appellant “no” and attempted to push his head away when he was performing

oral sex. The following exchange occurred between the prosecution and the victim

on redirect examination:

      [PROSECUTOR]: * * * after he forced his hands down your pants and
      digitally penetrated you and you felt violated, the defense kept saying,
      you know, you let him perform oral sex on you. When you say, “let
      him,” did you punch him?

      [VICTIM]: No, that’s — he was like forcing his head and I just kept
      saying, “No,” pushing him away saying, “I’m on my period. No, I’m on
      my period.”

(Tr. 93-94.)

               The victim acknowledged that she agreed to let appellant give her a

massage. However, she confirmed that when appellant put his hands down her

pants and got on top of her, the victim said “no.” (Tr. 95.) The victim also said “no”
when appellant started performing oral sex and she tried to push his head away from

her vagina.

              Appellant testified on cross-examination that he performed oral sex to

the victim. He asserted that he was not aware that she was on her period. According

to appellant, the oral sex occurred in the bedroom, not on the couch in the living

room as the victim testified. Appellant stated that the victim’s hands were on his

head when he performed oral sex.

              In addition to the victim’s purportedly inconsistent and contradictory

testimony, appellant argues that the victim’s testimony about feeling coerced to

engage in sexual conduct with appellant was “starkly contradicted by the other

events of the day” and “inconsistent with the remarkable trust that she showed

toward [appellant] throughout the day.” Appellant’s brief at 14.

              The victim testified that when she was at the park with appellant,

appellant spoke about his criminal history and things he had done in the past that

she found to be disturbing. She explained that appellant “explained a lot of his past

and things that he has done or what he’s still doing and stuff like that[.]” (Tr. 57.)

The information about appellant’s past and criminal history caused the victim to

think and worry about the safety of her daughter. After learning this information,

the victim feared appellant and was unsure about what he was capable of.

              On cross-examination, the victim asserted that when they were at the

park, she asked appellant what he had been up to and what had been going on since

high school. In response, appellant stated, “he was just telling me how he was a
bigtime drug dealer; sold some drugs. He got into a lot of trouble with drugs. And

then he was telling me how he had an altercation with someone where he wanted to

get somebody killed before, but by the grace of God he chose not to get the person

killed and that didn’t happen.” (Tr. 66-67.)

              In this appeal, appellant argues that the victim’s testimony that she

felt coerced to engage in the sexual conduct with appellant based on (1) appellant’s

criminal history, and (2) the alleged risk that appellant posed to the safety of the

victim and her daughter is inconsistent with and contradicted by the victim’s actions

and the events that transpired throughout the course of the day. Regarding the

victim’s assertion that she felt coerced based on appellant’s criminal history,

appellant emphasizes that he told the victim at the park that he had been recently

released from prison for selling drugs, and after learning this information, the victim

still spent the rest of the day with him. Regarding the victim’s assertion that she felt

coerced based on the risk or threat appellant posed to her and her daughter,

appellant emphasizes that the victim let appellant drive her and her daughter

around — without a car seat for the daughter and even after appellant consumed

alcohol at dinner — the victim and her daughter ate dinner with appellant, and the

victim invited appellant to her house.

              The victim acknowledged that after appellant told her about his

criminal history and things he had done in the past, she did not ask somebody else

for a ride home from the park, nor did she use her cell phone to call a friend.

Similarly, the victim acknowledged that she did not ask anyone for help at the
restaurant or Wal-Mart. Rather, the victim continued to spend time with appellant.

(Tr. 69.) The victim went as far as stating that she and appellant were having fun

picking out movies. Nevertheless, she explained that appellant’s statements about

his past were still in the back of her mind. (Tr. 73.)

              Although the victim found appellant’s statements about his past and

criminal history to be disturbing, and kept these statements in the back of her mind,

the victim testified that she was not in fear of appellant at the park, at the ice cream

shop, at the restaurant, or at Wal-Mart. On redirect examination, the victim testified

that she felt safe and comfortable with appellant at the park, at the restaurant, at

Wal-Mart, and even at the time when they arrived at her apartment. (Tr. 96-97.)

The victim testified that other than referencing his past and criminal history,

appellant had not given her any indication or reason to be fearful of him. (Tr. 97.)

              She started to become fearful of appellant “when I seen how he wasn’t

stopping and like when he was getting on top of me and wasn’t stopping that’s when

he began to feel fearful.” (Tr. 97.) She felt comfortable with appellant during the

day; it was not until appellant started touching her and kept going when she said no

that she began to feel uncomfortable.

              The victim asserted that the entire time that appellant was performing

the sexual acts — not the entire time they were together during the day — she was

fearful for her daughter and was “mainly thinking about my daughter since she was

in the house.” (Tr. 100.)
               Appellant testified on cross-examination that he talked about his

criminal history at the park and notified the victim that he had just been released

from jail. The victim did not seem scared when he told her about his criminal

history, nor did the victim appear to be afraid of him when they were picking out

movies at Wal-Mart.

              In support of his manifest weight challenge, appellant directs this

court’s attention to State v. Moore, 2018-Ohio-1825, 112 N.E.3d 76 (8th Dist.). In

Moore, the defendant-appellant challenged his sexual battery conviction on both

sufficiency and manifest weight grounds. The defendant-appellant argued, in a

sufficiency context, that the state failed to prove the elements of “knowingly coerce.”

               On appeal, this court held that the defendant-appellant’s conviction

for sexual battery was against the manifest weight of the evidence. In reaching this

conclusion, this court explained that (1) the victim proffered inconsistent and

contradictory testimony regarding the events that transpired throughout the course

of the entire evening, (2) the victim provided conflicting testimony regarding “when

and where oral sex was offered and performed,” (3) the victim’s trial testimony was

vastly different than the statement she provided to the SANE nurse the day after the

alleged rape, (4) the victim was unable to remember the nature of events

surrounding the sexual assault, (5) although the victim was unable to remember

simple details regarding the sexual assault or the sequence of events, she “was able

to vividly, clearly, and concisely recall and testify to the exact words and phrases [the

defendant] used the entire evening,” and (6) there was no DNA evidence
corroborating the victim’s testimony or linking the defendant to the alleged offenses.

Id. at ¶ 43-46.

              In the instant matter, appellant argues that the victim, like the victim

in Moore, provided inconsistent and contradictory statements to the police and

testimony at trial regarding (1) whether she let appellant perform oral sex, (2) when

she spoke with her friend, C.F., after the encounter with appellant, and (3) whether

she sent an accusatory text message to appellant before or after speaking with C.F.

and being falsely told that appellant had a prior conviction for rape.2 The state, on

the other hand, argues that Moore is distinguishable from this case because in

Moore, the victim’s testimony was conflicting and “vastly different” than the

testimony of other witnesses, and there was no DNA evidence establishing that the

defendant was present at the scene, much less that he engaged in sexual conduct

with the victim. The state contends that in this case, the victim’s testimony was

corroborated by DNA evidence, the testimony of the SANE nurse, and appellant’s

text messages to the victim.

                  After reviewing the record, we find this case to be distinguishable from

Moore, 2018-Ohio-1825, 112 N.E.3d 76. In Moore, this court noted that the victim’s

trial testimony was “vastly different” than the narrative the victim provided to the

SANE nurse. Id. at ¶ 44. In this case, the victim’s testimony at trial was largely



      2  In the narrative the victim provided to the SANE nurse, the victim asserted that
the police told her that appellant “has a record including rape.” State’s exhibit No. 14,
page 12. Cleveland Police Detective Marcus Cloud confirmed at trial that appellant does
not have a rape conviction on his record. (Tr. 175.)
consistent with the narrative she provided to Gaertner on August 3, 2017. The victim

provided consistent testimony about when, where, and how the sexual acts

occurred. Finally, unlike Moore, the DNA evidence was not inconsistent with the

victim’s testimony. Appellant’s DNA was matched to a DNA profile recovered from

“inside the crotch area” of the victim’s underwear. (Tr. 127-128.)

              After reviewing the record, we are unable to conclude that the trial

court lost its way in weighing the evidence and concluding that appellant was guilty

of the sexual battery offenses on Counts 1 and 3. We acknowledge that some aspects

of the victim’s testimony, including the timing of her conversation with C.F., were

inconsistent and contradicted by other evidence.       Nevertheless, the important

aspects of the victim’s testimony regarding the events surrounding the sexual

encounter remained largely consistent over time.

              Appellant essentially argues that the victim did not question the

encounter with appellant nor believe that she had been raped until she spoke with

C.F. This argument is unsupported by the record.

              The victim testified that she “questioned” the events that occurred

with appellant before speaking or meeting with C.F. (Tr. 55.) She explained why

she questioned the events that transpired: “I told [C.F.] it wasn’t like what you see

in the movies like I get punched and choked out and got raped, it happened in a

different way so I told her I wasn’t even sure if it is rape or not I just know I felt

violated by it. And then that’s when she told me at the time that was definitely rape

based on what I told her.” (Tr. 55.)
              Although she was unsure whether appellant raped her before

speaking with C.F., the victim confirmed that she told appellant “no” when he put

his hands down her pants. (Tr. 56.) Regarding her assertion that she was not sure

whether appellant raped her, the victim explained, “at the time I didn’t feel like — at

the time I was thinking I didn’t know if it was rape because it wasn’t like you

normally see like a woman really getting hurt and beat up and then forced that way.

But I knew I was violated so [C.F.] told me, ‘Well, it’s still rape based on what

happened to you because you told him “No,” and he wouldn’t stop.’” (Tr. 56.)

              Accordingly, any inconsistencies in the victim’s testimony regarding

her conversations with C.F. or the time these conversations took place do not cast

serious doubt on appellant’s role in engaging in sexual conduct against the victim’s

will.

              We are also unable to conclude that appellant’s convictions are against

the manifest weight of the evidence based on the victim’s testimony about whether

or not she told police that she consented to the oral sex. As an initial matter,

appellant assumes that by “letting” him perform oral sex, the victim gave him

permission to do so, consented to him doing so, and/or wanted him to do so. This

assumption is unsupported by the record.

              The victim consistently testified that she repeatedly told appellant “no”

as he forced his hands down her pants, inserted his fingers into her vagina, and

performed oral sex. The victim acknowledged that although she said “no” multiple

times in the living room, she did not scream or yell during the encounter with
appellant. Nor did she try to call 911 or a friend. The victim also acknowledged that

at some point during the encounter, she stopped telling appellant “no.” When

appellant moved her from the living room into the bedroom, she did not continue to

tell appellant “no.” The victim explained that she was thinking about what appellant

had said earlier about his criminal background and things he had done in the past.

Based on this information, and the fact that appellant kept going and refused to stop

when she said “no” multiple times, the victim testified that she feared for herself and

her daughter, she did not know what would happen if she continued to resist, and

she was in fear not knowing what appellant was capable of.

              The victim’s testimony demonstrates that she did not want appellant

to perform oral sex, she said “no” when he began to do so, and she unsuccessfully

attempted to push his head away from her vagina. The evidence does not indicate

that she consented to the oral sex merely because she was unable to overpower

appellant or because she did not yell, scream, or physically attack appellant when he

began to do so. Finally, the victim’s testimony that she did not want appellant to

perform oral sex is consistent with the narrative she provided to the SANE nurse.

This narrative provides, in relevant part, “[appellant] got my pants off. He forced

his face down there in my [vaginal] area, and I told him that I had started my period.

He didn’t care. He stayed down there.” (Tr. 142.)

              We also must note that not every aspect of appellant’s testimony was

consistent, believable, or supported by other evidence. For instance, appellant

testified that the victim never mentioned that she was on her period. The victim, on
the other hand, testified that she told appellant she was on her period when he

digitally penetrated her and performed oral sex.

                The victim’s testimony about being on her period is supported by the

SANE nurse’s report. Gaertner’s report provides, in relevant part,

         AT THE TIME OF THE ASSAULT/ABUSE:
         Patient Menstruating: Yes
         Tampon/Sanitary Pad Present: Yes, where it is now: garbage

         ***

         AT TIME OF EXAM:
         Patient was Menstruating: Yes
         Tampon/Sanitary pad present: No.

State’s exhibit No. 14, page 13.

               The victim’s testimony in this regard is also supported by the

testimony and report of DNA Analyst Marissa Esterline. Esterline tested the victim’s

rape kit and the evidence recovered at the scene. Esterline testified that the vaginal

swabs from the victim’s rape kit tested positive for blood, and that no foreign DNA

profile was obtained from the epithelial fraction of the victim’s vaginal swabs.

(Tr. 125.) Esterline stated that blood was present on the victim’s underpants and

jeans.

                The trial court concluded that the victim’s testimony regarding the

digital penetration and oral sex was credible and consistent with other known facts,

including the fact that the victim “was indeed menstruating on that particular day[.]”

(Tr. 268.) The trial court concluded that the victim’s testimony was consistent with

the text messages: “If you were to believe [appellant’s] version of what took place,
your responses to someone who made these allegations literally hours after the

alleged conduct took place don’t make sense.” (Tr. 268.) The trial court was

presumably referencing the text messages appellant sent to the victim in which he

apologized to the victim.

              For all of the foregoing reasons, and after our thorough and

independent review of the record, we cannot say that this is “an exceptional case” in

which the trial court clearly lost its way and created such a manifest miscarriage of

justice that appellant’s convictions were against the manifest weight of the evidence.

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. The trial court was in the best

position to view the witnesses and observe their demeanor, gestures, and voice

inflections that are critical observations in determining the credibility of a witness

and his or her testimony. State v. Clark, 8th Dist. Cuyahoga No. 94050, 2010-Ohio-

4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996), and

Antill, 176 Ohio St. at 66, 197 N.E.2d 548. The trial court, as the trier of fact, heard

all of the testimony in this case, as well as the inconsistencies in the victim’s version

of the events and appellant’s version of the events, and ultimately chose to believe

the victim over appellant. The trial court had sufficient information to judge the

credibility of each witness, and the court “was free to believe all, part, or none of the

testimony of each witness.” State v. Colvin, 10th Dist. Franklin No. 04AP-421,

2005-Ohio-1448, ¶ 34; State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-

4006, ¶ 16.
               The defense’s theory of the case was that the sexual conduct between

appellant and the victim was consensual, the victim regretted the sexual encounter

after-the-fact, and that the victim only alleged that she had been raped by appellant

after being “coached” by her friend C.F., two police officers, and the SANE nurse.

On the other hand, the state’s theory of the case was that appellant forcibly engaged

in sexual conduct with the victim and/or coerced her into doing so.

               “When there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not [this court’s]

province to choose which [version] we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002 Ohio App. LEXIS 1197, 6 (Mar. 13, 2002), citing State v. Gore,

131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). Appellant’s convictions

are not against the manifest weight of the evidence merely because the trial court,

as the trier of fact, rejected the defense’s theory and found the state’s version of the

events to be more believable. As noted above, the trial court found the victim’s

testimony pertaining to Counts 1 and 3 to be credible and “consistent with other

known facts in the case[,]” and concluded that appellant’s version of the events did

not make sense. (Tr. 268.)

               For all of these reasons, we cannot conclude that the trial court lost its

way in finding appellant guilty of sexual battery on Counts 1 and 3. Appellant’s

convictions are not against the manifest weight of the evidence. Accordingly,

appellant’s sole assignment of error is overruled.

              Judgment affirmed.
      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions

having been affirmed, any bail pending is terminated. Case remanded to the trial

court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., CONCURS IN JUDGMENT ONLY;
EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION


EILEEN A. GALLAGHER, J., DISSENTING:

              I respectfully dissent. I would reverse appellant’s convictions for

sexual battery because I believe the trial court improperly convicted him of

“compromise offenses” that were not supported by the evidence presented at trial.

              At the conclusion of its case-in-chief, the state requested that the trial

court consider sexual battery by coercion in violation of R.C. 2907.03(A)(1) “in the

alternative” as a lesser included offense for the three counts of forcible rape in

violation of R.C. 2907.02(A)(2) with which appellant had been charged. After

hearing all the evidence, the trial court found appellant guilty of two counts of sexual

battery by coercion in violation of R.C. 2907.03(A)(1) — one count of sexual battery
based on digital penetration and one count of sexual battery based on oral sex. The

trial court found appellant not guilty of the third count of forcible rape based on

vaginal intercourse.

              R.C. 2907.02(A)(2) states: “No person shall engage in sexual conduct

with another when the offender purposely compels the other person to submit by

force or threat of force.” R.C. 2907.03(A)(1) states: “No person shall engage in

sexual conduct with another, not the spouse of the offender, when * * * [t]he offender

knowingly coerces the other person to submit by any means that would prevent

resistance by a person of ordinary resolution.”

              Whether a particular offense should be submitted to, or considered

by, the finder of fact as a lesser included offense involves a “two-tiered analysis.”

“The first tier, also called the ‘statutory-elements step,’ is a purely legal question,

wherein [the court] determine[s] whether one offense is generally a lesser included

offense of the charged offense.” State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-

1722, 989 N.E.2d 986, ¶ 6, quoting State v. Kidder, 32 Ohio St.3d 279, 281, 513

N.E.2d 311 (1987). An offense is “generally a lesser included offense” of another

where (1) one offense carries a greater penalty than the other, (2) some element of

the greater offense is not required to prove commission of the lesser offense and (3)

the greater offense as statutorily defined cannot be committed without the lesser

offense as statutorily defined also being committed. State v. Evans, 122 Ohio St.3d

381, 2009-Ohio-2974, 911 N.E.2d 889, paragraph two of the syllabus, clarifying

State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).
               The Ohio Supreme Court has held that sexual battery as defined in

R.C. 2907.03(A)(1) can be a lesser included offense of forcible rape as defined in R.C.

2907.02(A)(2). See State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858

N.E.2d 1144, ¶ 268; State v. Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303 (1980),

syllabus; see also State v. Brisbon, 8th Dist. Cuyahoga No. 105591, 2018-Ohio-2303,

¶ 22 (“The law is well settled that * * * sexual battery by coercion * * * could be [a]

lesser included offense[] of forcible rape.”).

              However, the mere fact that one offense can be a lesser included

offense of another offense does not mean that a fact finder should consider the lesser

included offense whenever the greater offense is charged. If the first tier is satisfied,

under the “second tier,” the court

      looks to the evidence in a particular case and determines whether ‘“[the
      fact finder] could reasonably find the defendant not guilty of the
      charged offense, but could convict the defendant of the lesser included
      offense.’” Evans at ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d
      329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11.

Deanda at ¶ 6. Thus, only where the evidence presented at trial could reasonably

support both (1) an acquittal on the crime charged and (2) a conviction on the lesser

included offense, may a lesser included offense be submitted to, or considered by,

the trier of fact. Id.; see also State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948,

18 N.E.3d 1207, ¶ 34 (consideration of a lesser included offense is proper, ‘“if under

any reasonable view of the evidence it is possible for the trier of fact to find the

defendant not guilty of the greater offense and guilty of the lesser offense’”); Wilkins

at 388 (“If the evidence adduced on behalf of the defense is such that if accepted by
the trier of fact it would constitute a complete defense to all substantive elements of

the crime charged, the trier of fact will not be permitted to consider a lesser included

offense unless the trier of fact could reasonably find against the state and for the

accused upon one or more of the elements of the crime charged, and for the state

and against the accused on the remaining elements, which, by themselves, would

sustain a conviction upon a lesser included offense.”).

               As the Ohio Supreme Court explained in Wilkins, this rule protects

against convictions for “compromise offenses”:

      [Fact finders] [a]re not to be presented with compromise offenses
      which could not possibly be sustained by the adduced facts. Such
      unreasonable compromises are detrimental to both the state and the
      defendant. These compromises can allow [fact finders] to lessen
      punishment at their unlimited discretion, even when they find the
      defendant guilty of the greater offense beyond a reasonable doubt.
      Further, they can allow [fact finders] to convict a defendant of a crime
      of which he is not guilty beyond a reasonable doubt with a clearer
      conscience than if only the greater offense were charged.

Id. at 387; see also Wine at ¶ 22 (“[A] defendant’s ‘liberty should not be dickered

away by a compromised verdict upon another crime.’”), quoting State v. Loudermill,

2 Ohio St.2d 79, 81, 206 N.E.2d 198 (1965). Compromise verdicts are most likely in

cases in which a defendant presents an “all-or-nothing” defense to the charged

offense. State v. Solomon, 66 Ohio St.2d 214, 220, 421 N.E.2d 139 (1981) (“There is

great potential for unreasonable compromises where the evidence adduced by a

defendant constitutes a complete defense to the substantive elements of the crime

charged.”).
              Rape in violation of R.C. 2907.02(A)(2) and sexual battery in violation

of R.C. 2907.03(A)(1) differ (1) in the degree of compulsion applied to the victim —

force or threat of force for forcible rape and coercion for sexual battery — and (2)

mens rea — purposely for forcible rape and knowingly for sexual battery by coercion.

As the majority points out, sexual conduct by “coercion” under R.C. 2907.03(A)(1)

is “broader” than “force or threat of force” under R.C. 2907.02(A)(2). Thus, sexual

conduct by force can satisfy both the “force” element of R.C. 2907.02(A)(2) and the

“coercion” element of R.C. 2907.03(A)(1). See, e.g., Johnson, 112 Ohio St.3d 210,

2006-Ohio-6404, 858 N.E.2d 1144, ¶ 268 (“force or threat of force always

constitutes coercion”), quoting Wilkins at 386.

              With respect to the differences in the mens rea for the offenses, “[a]

person acts purposefully when it is the person’s specific intention to cause a certain

result, or, when the gist of the offense is a prohibition against conduct of a certain

nature, regardless of what the offender intends to accomplish thereby, it is the

offender’s specific intention to engage in conduct of that nature.” R.C. 2901.22(A).

“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.” R.C. 2901.22(B). In Wilkins, the court explained the difference between

these two mental states as they relate to the offenses of forcible rape and sexual

battery as follows:

      It is possible for a person to compel another to engage in sexual conduct
      by force or threat of force knowingly but not purposely. A person could
      subjectively believe that there is consent where there is none, and in
      using his strength could coerce another to submit by force. In such a
      case he would not intend to do the prohibited act. However, if he is
      aware of the circumstances that probably exist and that under such
      circumstances there probably is no consent he would have knowingly
      coerced another to engage in sexual conduct by force. Consequently,
      sexual battery as defined in R.C. 2907.03(A)(1) may be a lesser
      included offense of rape as defined in R.C. 2907.02(A)(1) where force
      is present.

Wilkins, 64 Ohio St.2d at 386-387, 415 N.E.2d 303.

              In Wilkins, the defendant was charged with, and found guilty of,

forcible rape. Id. at 382-384. At trial, the victim testified that she and the defendant

had been walking home when the defendant forced himself on her and, despite her

protestations, engaged in sexual conduct with her. Id. at 382. The state’s witnesses

testified that they heard the defendant forcing himself upon the victim and heard

her pleading for him to stop. Id. at 382-383. The defendant testified that he had

engaged in consensual sexual conduct with the victim. Id. at 383. On appeal, the

defendant claimed that the trial court had erred in failing to instruct the jury on

sexual battery as a lesser included offense of forcible rape. Id. at 384. This court

agreed. Id. The state appealed, and the Ohio Supreme Court reversed, concluding

that the trial court did not err in failing to instruct the jury regarding the crime of

sexual battery because the evidence, “even when considered most favorably to the

defendant,” did not “present any fact pattern upon which the trier of fact could both

acquit the defendant of the charge of [forcible] rape * * * and find him guilty of sexual

battery under R.C. 2907.03(A)(1).” Id. at 384, 388-389. The court explained:

      Two completely divergent stories were presented to the jury herein. In
      defendant’s version coercion was not involved. In the prosecution’s
      version force was clearly involved. No evidence was presented which
      would allow the jury to find that coercion other than force was used.

             Defendant testified that [the victim] initiated the sexual conduct.
      The prosecution’s witnesses testified that they heard defendant forcing
      himself upon [the victim] and heard her pleading for him to stop. Even
      in closing argument, defendant’s counsel, although varying somewhat
      from defendant’s testimony, contended that [the victim] had
      consented. No evidence was presented which could reasonably have
      allowed the jury to find that defendant had misunderstood a refusal to
      consent. The jury could not have found that defendant had acted
      knowingly but not purposely; it had to choose between a complete
      defense, and therefore acquittal, or the commission of the crime of
      rape. Under these facts the trial court did not err in failing to charge
      the jury on the crime of sexual battery.

Id. at 388-389.

               In my view, a similar conclusion is warranted in this case. Based on

the evidence presented at trial, I do not believe it is possible, “under any reasonable

view of the evidence,” to find appellant not guilty of forcible rape and guilty of sexual

battery on the counts at issue. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18

N.E.3d 1207, at ¶ 34.

              In this case, the alleged victim, F.C., testified that while she and

appellant were sitting on the couch in her living room, appellant got on top of her,

forced his hands down her pants and forced his fingers into her vagina. She testified

that she said “no,” “stop,” “get off” and that she was “on [her] period” and that she

“grabb[ed] him by his arm” and “tr[ied] to push his fingers out, like push his hand

out” but that “he wouldn’t stop, he just kept going.” F.C. testified that appellant then

pulled her pants down, forced his mouth onto her vagina and performed oral sex.

She testified that although she kept telling appellant “no” and that she was “on [her]
period” and tried to push his head away, appellant refused to stop. F.C. testified that

appellant then carried her to her bedroom, laid her on the bed and proceeded to

have vaginal intercourse with her. F.C. testified that she asked appellant to use a

condom because she “didn’t want him to penetrate me without anything. Since I

already knew he was already violating me I didn’t want it to be unprotected.” She

testified that she did not continue to say “no” once they were in the bedroom and

was “just going with it” at that point because she was “feeling very shocked about

everything,” was fearful for her two-and-one-half-year-old daughter asleep in the

next room and “didn’t know what he was capable of.” Appellant testified that this

sexual conduct occurred but claimed that it was all consensual.

              In this case, as in Wilkins, there was no evidence of coercion other

than coercion by force with respect to the allegations of digital penetration and oral

sex — the two counts on which the trial court found appellant guilty of sexual battery

by coercion. Likewise, there was no evidence that from which it could be reasonably

found that appellant had “misunderstood a refusal to consent” or had otherwise

“subjectively believed that there [was] consent where there [was] none,” i.e., that

appellant acted “knowingly” but not “purposely,” with respect to those offenses.

              Either the trial court believed F.C. that she told appellant “no,” “stop”

and “get off” when he digitally penetrated and performed oral sex on her and that

appellant nevertheless continued — in which case appellant should have been

convicted of forcible rape — or the trial court did not believe F.C. and believed

appellant — in which case appellant should have been acquitted of the charges. The
trial court “had to choose between a complete defense, and therefore acquittal, or

the commission of the crime of rape.” Wilkins, 64 Ohio St.2d at 389, 415 N.E.2d

303; compare Brisbon, 2018-Ohio-2303, at ¶ 21-25 (trial court did not abuse its

discretion in denying defendant’s request for a lesser included offense jury

instruction where evidence did not, even when considered in the light most

favorable to the appellant, present a fact pattern upon which the jury could have

reasonably found defendant not guilty of rape, and only guilty of gross sexual

imposition or sexual battery); State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-

Ohio-169, ¶ 46-48 (trial court did not err in declining to instruct jury on sexual

battery as a lesser included offense of rape where victim testified that defendant

compelled her to engage in sexual conduct by force and threat of force and no

evidence was presented to suggest that defendant compelled victim to submit to

sexual conduct by coercion other than force); State v. Cooper, 2d Dist. Montgomery

No. 23143, 2010-Ohio-5517, ¶ 14-17 (where defendant claimed that complainant

victim consented to sexual conduct — a “complete defense” to the rape charge, no

instruction on the lesser included offense of sexual battery was warranted; the jury

had to choose between the complete defense and acquittal or the commission of the

crime of rape). Although F.C. testified that once appellant carried her to her

bedroom she stopped protesting and was “just going with it,” this occurred after

appellant had allegedly digitally penetrated and performed oral sex on F.C. against

her will.   Accordingly, this testimony could have, at most, impacted the

determination of whether the vaginal intercourse between F.C. and appellant was
consensual or coerced by some means other than force. The trial court, however,

acquitted appellant of the rape count relating to the allegations of vaginal

intercourse.

               Because there is no evidentiary basis in the record for appellant’s

convictions for sexual battery by coercion as a lesser included offense of forcible

rape, I would reverse appellant’s sexual battery convictions as being against the

manifest weight of the evidence.
