[Cite as State v. Aramouni, 2020-Ohio-2918.]


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

STATE OF OHIO                                        C.A. No.       29255

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ANTOINE ARAMOUNI                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 18 01 0168

                                DECISION AND JOURNAL ENTRY

Dated: May 13, 2020



        HENSAL, Presiding Judge.

        {¶1}    Antoine Aramouni appeals his conviction for gross sexual imposition from the

Summit County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}    Certain facts underlying this appeal are not in dispute. Mr. Aramouni, a 64-year-

old male at the time of the incident, worked part-time at a cigar and wine shop. The victim, an 18-

year-old male at the time of the incident, went to the shop to buy a corncob pipe. While there, the

two men met and discussed the various products in the shop, and the victim expressed an interest

in smoking tobacco from a hookah. The men also discussed the relationship and family issues the

victim was experiencing at the time. Mr. Aramouni eventually invited the victim to his house to

smoke tobacco from a hookah, and the victim accepted because he was looking for someone to

talk to about his personal issues.
                                                2


       {¶3}    The men exchanged cell phone numbers and arranged to meet a few days later.

According to the victim, the men ended up meeting later that evening. According to Mr.

Aramouni, the men ended up meeting the following evening. Regardless, there was no dispute

that the victim went to Mr. Aramouni’s house, and that Mr. Aramouni prepared tobacco for the

men to smoke, which they both smoked from the hookah at the kitchen table.

       {¶4}    According to the victim, he began to feel an “out of body” experience soon after

smoking. He began to cough and asked for a glass of water. Mr. Aramouni offered him two

drinks: a glass of orange juice, and a glass of red wine. The victim drank most of the orange juice

and a few sips of wine. The victim also acknowledged that he drank some vodka, which he had

brought with him. After smoking some more, the victim testified that he started to feel lethargic

and passed out. He awoke on Mr. Aramouni’s couch. The victim’s pants and underwear had been

pulled down, Mr. Aramouni was touching the victim’s genitals, and the victim’s hand was on Mr.

Aramouni’s genitals. The victim testified that he did not place his hand on Mr. Aramouni’s

genitals, and surmised that Mr. Aramouni must have placed his (the victim’s) hand on them. On

cross-examination, the victim acknowledged that he did not see Mr. Aramouni place his (the

victim’s) hand on Mr. Aramouni’s genitals because he was passed out.

       {¶5}    The victim testified that he immediately got up and started to leave, but that Mr.

Aramouni told him he had a gun and would shoot him if he left. The victim assured Mr. Aramouni

that he would be back, and Mr. Aramouni let him go. The victim testified that he immediately

drove to the closest public place, which was a Domino’s Pizza. He called the police who, upon

arriving, contacted EMS. The victim described the above events to the responding officer, who

observed that the victim was excited and talking very fast, which he considered to be consistent

with someone who had undergone a traumatic event. EMS evaluated the victim at the scene, but
                                                   3


the victim declined further medical treatment that evening. The victim testified that after he left

Domino’s, the police pulled him over for going 100 m.p.h. on the highway, and – after the police

let him go – he attempted to commit suicide by shooting himself, but the gun did not fire.

        {¶6}    The following day, the victim went to the hospital and a SANE nurse administered

a rape kit. A DNA analyst with the Bureau of Criminal Investigation later determined that a DNA

profile consistent with Mr. Aramouni’s DNA was present on the waistband of the victim’s

underwear. Additionally, a toxicologist with the Summit County Medical Examiner’s office

examined a urine sample taken from the victim the day after the incident, which testified positive

for ethyl sulfate (a metabolite of alcohol), THC (the primary metabolite for marijuana), and

Ambien (a sedative hypnotic). The victim acknowledged that he consumed alcohol, but testified

that he never knowingly ingested marijuana or Ambien.

        {¶7}    A grand jury indicted Mr. Aramouni on one count of corrupting another with drugs

(i.e., Ambien) in violation of Revised Code Section 2925.02(A)(1), one count of gross sexual

imposition in violation of Section 2907.05(A)(2), and one count of gross sexual imposition in

violation of Section 2907.05(A)(5). Mr. Aramouni pleaded not guilty and the matter proceeded to

a jury trial.

        {¶8}    The victim testified at trial as to the events described above. Mr. Aramouni testified

on his own behalf. Mr. Aramouni acknowledged that he and the victim smoked tobacco from a

hookah together, but testified that he offered the victim cranberry juice to drink, not orange juice

or wine. He testified that he did not mix drugs or anything else in the tobacco or cranberry juice.

He also testified that no sexual contact occurred, and that he never threatened to shoot the victim.

Rather, he testified, the victim left his house to meet a friend.
                                                  4


       {¶9}     The jury returned a verdict of not guilty on the counts for corrupting another with

drugs, and gross sexual imposition under Section 2907.05(A)(2). The jury found Mr. Aramouni

guilty of gross sexual imposition under Section 2907.05(A)(5). He now appeals his conviction,

raising two assignments of error for this Court’s review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

       APPELLANT’S CONVICTION FOR GROSS SEXUAL IMPOSITION UNDER
       R.C.[]2907.05(A)(5) WAS BASED UPON INSUFFICIENT EVIDENCE AS A
       MATTER OF LAW, AND WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶10} In his first assignment of error, Mr. Aramouni challenges both the sufficiency and

manifest weight of the evidence presented at trial. It is well established, however, that “a review

of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate

and legally distinct determinations.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705,

2010-Ohio-6242, ¶ 18. Accordingly, “it is not appropriate to combine a sufficiency argument and

a manifest weight argument within a single assignment of error.” State v. Mukha, 9th Dist. Wayne

No. 18AP0019, 2018-Ohio-4918, ¶ 11; see Loc.R. 7(B)(7) of the Ninth District Court of Appeals

(“Each assignment of error shall be separately discussed * * *.”); App.R. 12(A)(2) (“The court

may disregard an assignment of error presented for review if the party raising it fails to * * * argue

the assignment separately in the brief[.]”). Nonetheless, we exercise our discretion to consider the

merits of Mr. Aramouni’s combined assignment of error.

       {¶11} Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this

review, our “function * * * is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
                                                  5


reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id.

        {¶12} On the other hand, when considering a challenge to the manifest weight of the

evidence, this Court is required to consider the entire record, “weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten,

33 Ohio App.3d 339, 340 (9th Dist.1986). “A reversal on this basis is reserved for the exceptional

case in which the evidence weighs heavily against the conviction.” State v. Croghan, 9th Dist.

Summit No. 29290, 2019-Ohio-3970, ¶ 26.

        {¶13} As previously noted, the jury found Mr. Aramouni guilty of gross sexual imposition

under Section 2907.05(A)(5), which provides, in part, that:

        [n]o person shall have sexual contact with another, not the spouse of the offender;
        [or] cause another, not the spouse of the offender, to have sexual contact with the
        offender * * * when * * * [t]he ability of the other person to resist or consent * * *
        is substantially impaired because of a mental or physical condition * * *, and the
        offender knows or has reasonable cause to believe that the ability to resist or
        consent of the other person * * * is substantially impaired because of a mental or
        physical condition * * *.

The jury found him not guilty of gross sexual imposition under Section 2907.05(A)(2), which

provides, in part, that:

        [n]o person shall have sexual contact with another, not the spouse of the offender;
        [or] cause another, not the spouse of the offender, to have sexual contact with the
        offender * * * when * * * [f]or the purpose of preventing resistance, the offender
        substantially impairs the judgment or control of the other person * * * by
        administering any drug, intoxicant, or controlled substance to the other person
        surreptitiously or by force, threat of force, or deception.
                                                 6



Mr. Aramouni argues that the State’s entire theory of the case was that Mr. Aramouni administered

impairing substances to the victim, and then sexually assaulted him while he was unconscious.

Mr. Aramouni argues that, because the jury found him not guilty of gross sexual imposition under

Section 2907.05(A)(2) – thereby rejecting the State’s theory that he administered impairing

substances to the victim – his conviction under Section 2907.05(A)(5) necessarily fails as being

unsupported by sufficient evidence. He insists that the jury must have relied upon speculation or

conjecture in order to find him guilty under Section 2907.05(A)(5), or that it reached a

“compromise verdict” whereby it found him guilty of a lesser offense in order to avoid acquitting

him altogether.

       {¶14} As previously noted, Section 2907.05(A)(5) prohibits sexual contact with another

when that person’s ability to resist or consent is substantially impaired, and the offender knows or

has reasonable cause to believe that the victim’s ability to resist or consent to sexual contact is

substantially impaired. Here, by virtue of its finding Mr. Aramouni not guilty under Section

2907.05(A)(2), the jury did not find beyond a reasonable doubt that Mr. Aramouni administered

drugs to the victim surreptitiously, by force, threat of force, or deception. See R.C. 2907.05(A)(2).

That determination, however, in no way precluded the jury from otherwise finding that Mr.

Aramouni knew or should have known that the victim’s ability to resist or consent to sexual contact

was substantially impaired. Nor did it require the jury to resort to speculation or conjecture to

reach that decision. In other words, nothing prohibited the jury from determining that the State

did not establish beyond a reasonable doubt that Mr. Aramouni drugged the victim, yet still

determining that the State established beyond a reasonable doubt that the victim’s ability to resist

or consent to sexual contact was substantially impaired, that Mr. Aramouni knew or had reasonable

cause to believe that the victim’s ability to resist or consent to sexual contact was substantially
                                                  7


impaired, and that Mr. Aramouni had sexual contact with the victim. Simply put, the jury could

have determined that – although Mr. Aramouni did not drug the victim – he still had sexual contact

with the victim while he was passed out, or was otherwise unable to resist or consent to sexual

contact. See, e.g., State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, ¶ 50 (noting

that “an offender may * * * be convicted of committing gross sexual imposition against a sleeping

victim under R.C. 2907.05(A)(5).”). We, therefore, reject Mr. Aramouni’s challenge to the

sufficiency of the evidence.

       {¶15} In his challenge to the manifest weight of the evidence, Mr. Aramouni argues that

the victim lacked credibility. Specifically, he points to the fact that: (1) the victim claimed he was

rendered unconscious, yet shortly thereafter drove to Domino’s where he presented to the police

officers as hyperactive, and – after leaving Domino’s – was pulled over for driving 100 m.p.h. on

the highway; (2) there was no evidence that he (Mr. Aramouni) possessed a gun, and the victim’s

testimony that he (Mr. Aramouni) let him leave his house after the victim assured him that he

would return was “preposterous”; (3) the victim never told the police or SANE nurse about the

suicide attempt he made after leaving Domino’s; (4) the victim did not mention during his direct

examination that, when he awoke, his hand was on Mr. Aramouni’s genitals; and (5) the victim

testified that he did not put his hand on Mr. Aramouni’s genitals, yet claimed to have no memory

of anything that occurred while he was passed out.

       {¶16} As the Ohio Supreme Court has stated, “the weight to be given the evidence and

the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. This is because “the jury ‘is best able to view

witnesses and observe their demeanor, gestures and voice inflections, and use these observations

in weighing the credibility of the proffered testimony.’” State v. Taylor, 9th Dist. Summit No.
                                                  8


25490, 2011-Ohio-5009, ¶ 26, quoting State v. Cook, 9th Dist. Summit No. 21185, 2003-Ohio-

727, ¶ 30. “[I]n reaching its verdict, the jury is free to believe all, part, or none of the testimony

of each witness.” Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35.

“This Court will not overturn the trial court’s verdict on a manifest weight of the evidence

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

testimony of others.” State v. Hill, 9th Dist. Summit No. 26519, 2013-Ohio-4022, ¶ 15.

       {¶17} In reaching its verdict, the jury chose to believe at least part of the victim’s

testimony, which it was free to do. The fact that it chose to believe the State’s version of the events

is not a basis for reversal under the manifest-weight standard. Having reviewed the record, this

Court cannot say that this is the exceptional case in which the evidence weighs heavily against the

conviction. We, therefore, reject Mr. Aramouni’s challenge to the manifest weight of the evidence.

In light of the foregoing, Mr. Aramouni’s first assignment of error is overruled.

                                   ASSIGNMENT OF ERROR II

       APPELLANT ARAMOUNI’S CONVICTION FOR GROSS SEXUAL
       IMPOSITION UNDER R.C.[]2907.05(A)(5) MUST BE VACATED, AS THAT
       STATUTORY SECTION IS UNCONSTITUTIONALLY VOID FOR
       VAGUENESS.

       {¶18} In his second assignment of error, Mr. Aramouni argues that Section 2907.05(A)(5)

is unconstitutionally vague and, therefore, his conviction thereunder should be vacated. For the

reasons that follow, this Court declines to address the merits this argument.

       {¶19} “The failure to raise a constitutional issue at the trial level forfeits the right to make

a constitutional argument on appeal.” State v. McCraw, 9th Dist. Medina No. 14CA0009-M, 2015-

Ohio-3809, ¶ 5, citing State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. “While a defendant who

forfeits such an argument still may argue plain error on appeal, this court will not sua sponte

undertake a plain-error analysis if a defendant fails to do so.” Id. As the State points out, Mr.
                                                 9


Aramouni did not challenge the constitutionality of Section 2907.05(A)(5) at the trial level, nor

has he presented a plain-error argument on appeal. This Court will not construct such an argument

on his behalf. Id. Accordingly, Mr. Aramouni’s second assignment of error is overruled.

                                                III.

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

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                        10


SCHAFER, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MICHAEL T. CALLAHAN, Attorney at Law, for Appellant.

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