[Cite as Doss v. State, 2017-Ohio-1286.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 104867



                                           IRAN DOSS
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                       STATE OF OHIO
                                                    DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-08-665993


        BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: April 6, 2017
ATTORNEY FOR APPELLANT

Paul A. Mancino, Jr.
Mancino, Mancino & Mancino
75 Public Square Bldg., Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Brian R. Gutkoski
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Iran Doss (“Doss”), appeals from the judgment of the

Cuyahoga County Court of Common Pleas, in which that court, following a bench trial,

entered judgment in favor of defendant-appellee, state of Ohio (the “state”), on Doss’s

claim for statutory wrongful imprisonment. Doss raises the following assignments of

error for our review:

       1. Plaintiff was denied due process of law as the judgment of the court is
       contrary to law and the court’s prior ruling in the same case.

       2. Plaintiff was denied due process of law as the ruling by the court is not
       only against the manifest weight of the evidence but is also contrary to law.

       {¶2} After careful review of the record and relevant case law, we affirm the trial

court’s judgment.

                                  I. Procedural History

       {¶3} In April 2005, Doss was named in a three-count indictment, charging him

with two counts of rape in violation of R.C. 2907.02 and a single count of kidnapping in

violation of R.C. 2905.01, with a sexual motivation specification.

       {¶4} Following a jury trial, Doss was convicted of rape, as charged in Count 2 of

the indictment, and the single count of kidnapping.         At sentencing, the trial court

imposed concurrent four-year sentences on each count. Doss was also found to be a

sexually oriented offender subject to registration.

       {¶5} On appeal, Doss challenged his rape and kidnapping convictions on several

grounds, including a challenge to the evidence supporting his convictions. Doss argued

that the state failed to present sufficient evidence that the victim, J.P., was substantially
impaired due to a mental or physical condition and that Doss knew of that substantial

impairment. This court, in a two-to-one decision, concluded that there was sufficient

evidence to support a finding that J.P.’s capacity to consent was substantially impaired

and that Doss knew or had reason to know of the substantial impairment. State v. Doss,

8th Dist. Cuyahoga No. 88443, 2007-Ohio-6483 (“Doss I”).

       {¶6} Upon reconsideration, a split panel vacated both the kidnapping and the rape

convictions. State v. Doss, 8th Dist. Cuyahoga No. 88443, 2008-Ohio-449 (“Doss II”).

The Doss II majority held that the state failed to present sufficient evidence showing that

Doss knew or had reason to know that J.P.’s ability to consent was substantially impaired.

 Id. at ¶ 21-23. This court vacated the convictions and ordered Doss discharged from

prison. The state appealed the vacation of the rape conviction, but the Ohio Supreme

Court declined review.        State v. Doss, 118 Ohio St.3d 1507, 2008-Ohio-3369, 889

N.E.2d 1025.

       {¶7} After his release, Doss filed an action for declaratory judgment pursuant to

R.C. 2743.48, seeking compensation from the state for wrongful imprisonment. In July

2010, Doss filed a motion for summary judgment, citing our decision in Doss II. The

motion, which contained no attachments or exhibits, relied exclusively on Doss II. The

state opposed the motion for summary judgment, offering the transcripts from the

criminal trial to show that there were issues of fact and arguing that Doss had failed to

establish his innocence by a preponderance of the evidence.

       {¶8} In January 2011, the trial court granted Doss’s motion for summary judgment,

stating, in pertinent part:
               The court of appeals’ decision to reverse and vacate plaintiff Doss’s
       conviction and order his immediate release can only be interpreted to mean
       that either plaintiff Doss was innocent of the charges upon which he was
       convicted, or that no crime was committed by plaintiff Doss, or both.

       {¶9} This court affirmed the grant of summary judgment in a two-to-one decision.

Doss v. State, 8th Dist. Cuyahoga No. 96452, 2011-Ohio-6429 (“Doss III”).              The

majority reiterated that its review of the record in Doss II had revealed that Doss’s

statement was the only evidence of J.P.’s mental condition and that the state had

presented no evidence that Doss knew, or should have known, that J.P.’s ability to resist

or consent was substantially impaired because of voluntary intoxication. Id. at ¶ 15.

Accordingly, this court found no genuine issue of fact and no error in the trial court’s

entry of summary judgment. Id. at ¶ 17.

       {¶10} The dissenting judge stated:

      Our holding in [Doss II] does not mean that Doss is innocent—merely that, based
upon the evidence the state presented, Doss’s guilt could not be established beyond a
reasonable doubt. The same cannot automatically be said of whether Doss can show by
a preponderance of the evidence that he did not know or reasonably should not have
known of the victim’s incapacity.

Id. at ¶ 21 (Celebrezze, J., dissenting).

       {¶11} In Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229

(“Doss IV”), the Ohio Supreme Court reversed this court’s judgment in Doss III, stating,

in pertinent part:

      The record shows that Doss filed his motion for summary judgment relying solely
on the Eighth District’s decision in Doss II. And the trial court granted summary
judgment on that basis alone. Specifically, the trial court stated:

       The court of appeals’ decision to reverse and vacate plaintiff Doss’s
       conviction and order his immediate release can only be interpreted to mean
       that either plaintiff Doss was innocent of the charges upon which he was
       convicted, or that no crime was committed by plaintiff Doss, or both.

(Emphasis sic.)

        This conclusion was incorrect. The trial court relied solely on the court of
appeals’ reversal and vacation of the conviction to hold that Doss was entitled to
judgment as a matter of law. It did not require a hearing or additional evidence. It
simply cited the court of appeals’ holding that the state had not offered sufficient
evidence to prove Doss’s convictions. And in affirming the trial court’s grant of
summary judgment, the Eighth District correctly acknowledged Walden’s [47 Ohio St.3d
547, N.E.2d 962 (1989)] rule that an acquittal does not necessarily establish actual
innocence, but then applied the rule incorrectly. Despite the jury’s verdict of guilt and
without any evidence from Doss, the majority held that the record showed insufficient
evidence of the alleged victim’s substantial impairment. Thus, the judgment of the trial
court that found Doss to be eligible for compensation and the appellate court’s judgment
affirming that finding were not based upon an affirmative showing of actual innocence.
 They were based on a dearth of evidence of guilt. Both courts relieved Doss of his
statutory obligation to prove by a preponderance of the evidence that he did not commit
the charged offense, including all lesser included offenses, an obligation that must be
fulfilled before he is allowed to claim the status of one who was “wrongfully
imprisoned.”

       To show actual innocence under the wrongful-imprisonment statute, Doss must
prove that “the charged offense, including all lesser-included offenses, either was not
committed by [him] or was not committed by any person.” R.C. 2743.48(A)(5). This
court has emphasized that this standard is not satisfied by an acquittal or a finding of legal
insufficiency of the evidence. Walden, 47 Ohio St.3d at 52, 547 N.E.2d 962. The
General Assembly requires a showing of innocence to be made affirmatively and
adjudicated de novo before a claimant can be found to be eligible for compensation in a
wrongful-imprisonment action.

***

        Not every person who is released from prison because of a successful appeal is
entitled to compensation. The legislature set forth a procedure for claimants like Doss to
follow in R.C. 2743.48, so that the common pleas court could actively separate
demonstrably innocent persons who have been wrongfully imprisoned from persons who
have merely avoided criminal liability. We hold that one who claims to be a “wrongfully
imprisoned individual” under R.C. 2743.48 must prove all of the factors in R.C.
2743.48(A) by a preponderance of the evidence before seeking compensation from the
state for wrongful imprisonment. We also hold that a trial court adjudicating proof of
innocence pursuant to R.C. 2743.48(A)(5) may not find that a claimant has been
wrongfully imprisoned based solely on an appellate court judgment vacating a felony
conviction due to insufficient evidence and discharging the prisoner without a remand for
a new trial. We therefore reverse the judgment of the court of appeals and remand this
matter to the trial court for further proceedings.

Doss IV at ¶ 19-22.

       {¶12} On remand, the matter proceeded to a civil bench trial in August 2013.

Prior to trial, the parties stipulated to the submission of the entire transcript from Doss’s

criminal trial, where the following evidence was adduced:

              On the night of December 31, 2004, 23-year-old J.P. celebrated New
       Year’s Eve with friends at Club Moda near downtown Cleveland. It is
       undisputed that J.P. consumed alcohol during the course of the evening.
       J.P. remembers being on the dance floor shortly after midnight, when what
       she describes as a “black curtain” came down over her. J.P. does not
       recall what happened from that time until approximately 8:00 a.m. the next
       morning, when a woman she did not know shook her awake. J.P. was in a
       strange bed, and she was not wearing her own clothing. She was also
       nauseous, disoriented, and bruised.

              J.P. noticed a man in the room, who she later identified as [Doss].
       The man and woman told J.P. to clean herself up, then drove her home.
       During the drive, the woman told J.P. that she and Doss had found her
       intoxicated at the bar, that J.P. did not know where her friends were, and
       that they had taken J.P. home with them to be good Samaritans. The
       woman also mentioned a man named Tyson, whom J.P. did not know.
       The woman gave J.P. a napkin with the name Eileen and a telephone
       number on it, stating that J.P. should call her sometime. According to J.P.,
       [Doss] did not say anything to her.

               After she was dropped off, J.P. continuously vomited, and when she
       urinated, she experienced pain in her vaginal area. J.P. called a friend,
       who took her to the hospital. J.P. was given a rape kit, and the police
       arrived to question her. No drugs were found in her system, and DNA
       tests later revealed that semen found on J.P.’s underwear belonged to Tyson
       Simpkins (Simpkins), a bouncer at Club Moda who was working that night.
        Simpkins pled guilty to abduction and sexual battery.

             Using the napkin given to J.P. with the name and number on it, the
       Bedford Police subsequently located Eileen Wiles (“Wiles”) and her
boyfriend, [Doss], both of whom J.P. identified from photographs as the
man and woman in whose apartment she awoke and who drove her home.

       On January 20, 2005, [Doss] gave a written statement to the police
regarding the incident. In the statement, [Doss] recalled that as he and
Wiles were getting ready to leave Club Moda around 2:00 a.m., they
noticed that J.P. was there, apparently intoxicated and without a ride home.
She was unable to give directions to her home, so [Doss] and Wiles decided
to take J.P. to their place to sleep and then drive her home later that
morning. Specifically, the pertinent parts of [Doss]’s statement are as
follows:

        So I told the girl that we would take her home in the morning. She
said ok. So we went to our apartment and as we were walking upstairs the
girl kept hugging me so I pushed her away because my girlfriend was their
[sic]. When we got into the apartment we made coffee and gave some to
the girl and she said thanks and thanks for taking me home. So we said we
would take her home the next morning. So [Wiles] gave her some PJs and
we all went to bed and the girl kept hugging on me so I thought she wanted
me but my girlfriend was there. So we went to sleep and the girl woke me
up by hugging me so we were forplaying [sic] under the blankets, so we
went into the living room so we wouldn’t wake [Wiles] up. We were still
forplaying [sic] in the living room and I was kissing her and she took of
[sic] my shirt and I pushed her shirt up and started kissing her bress [sic]
and she started filling [sic] on my penis and I was filling [sic] on her vagina.
  She started [sic] pulling her pants down and I was rubbing her vagina and
then I pulled my pants down and she got on top of me while I was sitting on
the sofa. We had sex for about five minutes, then she pulled me to the
floor, and we had sex there, for about 10 more minutes. After we were
done, I was getting up, and she pushed my head down, towards her vagina,
and I started to give her oral sex, for about one to two minutes. After that,
we both put our PJs on, and went back to bed. [Wiles] was still sleeping
and me and the girl cuddled a little and fell asleep. The next morning we
woke up around 8:30 am and she said thanks for taking care of her * * *.

       Additionally, when asked whether [Doss] thought J.P. seemed
intoxicated, he said, “Yes, she was hugging me and she didn’t know me and
she said she loved me.” When asked if anyone else said J.P. was
intoxicated, [Doss] replied, “Yes, the bartender and the bouncer.” Finally,
the following question and answer are found in [Doss]’s written statement:
“Q: Before you left your bedroom with this girl what did you say to her?”
A: “After we were fondling each other I said do you want to go in the living
room and she said yes.”
Doss II, 8th Dist. Cuyahoga No. 88443, 2008-Ohio-449, at ¶ 2-7.

          {¶13} Doss did not testify at his criminal trial. At the civil trial, however, Doss

offered testimony in support of his wrongful imprisonment action against the state.

Doss testified that J.P. first came to his attention through his then girlfriend, Wiles. He

stated:

                 I was out dancing salsa by myself. [Wiles] came up and told me, “honey,
          look. There’s two men and a guy — two men and a girl going out the back
          door.” I said to her, “So?” Meaning I didn’t care. I was just there to have fun
          with her and enjoy the New Year’s. Then she came back and told me again.
          Then she walked over to where the young lady and the bouncer and security guard
          was. They brought her inside. Sat her down on the sofa. So I walked over
          there.

Doss further stated:

          After 2:00 a.m. when I went over there, the young lady was sitting down with a
          group of people, the bouncer, and I guess it was a security guard or the bartender
          came over there. * * * We were just chitchatting. I was telling [Wiles] its
          time to go. Then the young lady stood up and she hugged me all of a sudden.
          Then I kind of pushed her back because [Wiles] was standing there and I didn’t,
          you know, I felt that was wrong, so I just pushed her down. * * * Then she got
          back up and hugged me again.
          {¶14} Doss testified that Wiles asked J.P. if she needed a ride home. According to

Doss, J.P. accepted the invitation.      However, Doss refused to drive J.P. home that

evening because it was too late.     Instead, Doss recommended that J.P. sleep over at the

apartment he shared with Wiles. Doss stated that J.P. agreed and willingly drove home

with them. Doss described J.P. as “happy” and “normal.”             He stated that she was

coherent and was able to carry on a conversation.

          {¶15} Upon arriving at the apartment complex, Doss testified that J.P. was able to

walk up the stairs to his apartment while Wiles held her hand. Doss testified that he did
not assist J.P. in climbing up the apartment stairs. Once inside the apartment, Wiles

made coffee and he, Wiles, and J.P. talked for a while before going to bed.

      {¶16} Regarding sleeping arrangements, Doss testified that the three of them

simply climbed into the same bed together. Doss stated that when Wiles fell asleep, J.P.

began to fondle him. According to Doss, he and J.P. then went to the living room and

engaged in consensual sex.      Doss testified that everything seemed normal the next

morning. Doss stated that “everybody was fine” and woke up “perky.” Doss testified

that he, Wiles, and J.P. “chitchatted” and drank coffee before Wiles drove J.P. home.

      {¶17} Wiles testified at the civil trial on behalf of the state. Wiles did not testify

at Doss’s criminal trial.   Wiles testified that she and Doss went to Club Moda to

celebrate New Year’s Eve on the night of the incident.        Wiles and Doss danced and

consumed alcohol throughout the evening. At some point, Wiles lost contact with Doss

and went to the second floor of the club to sit by herself. Wiles testified that she has no

knowledge of what Doss was doing in the club during that period of time.

       {¶18} Wiles testified that she first encountered J.P. when she and Doss were

leaving the club. She stated:

       [I] only learned of her when I ran across her when I seen her outside of the
       door where there was a back door of the club where it looked like some —
       two men or however many men was kind of manhandling her. Then when
       they brought her in, all I can recall is I asked her permission is who was she
       here with? Did she have an ID or anything? She said she had an ID and
       her phone was in her purse. Her phone was completely dead. She said
       she had money. I told her — and I even gave her purse to her so she could
       look herself. Nothing in her purse but her ID and her phone.
        {¶19} Wiles testified that it was Doss who insisted on taking J.P. to their

apartment. Contrary to Doss’s testimony, Wiles strongly denied offering J.P. a ride

home. She stated that she wanted to take J.P. to the hospital, but that Doss insisted on

taking her home with them because it was “too late.”        Wiles stated that she “felt very

negative towards the whole thing” and did not approve of Doss’s decision to take J.P.

home.

        {¶20} Wiles testified that J.P. was “really, really drunk” and appeared to be “in bad

shape.”    She stated that “her knees was [sic] bloody red, not bruised knees.       Bloody

red.” Wiles testified that J.P. was so intoxicated that she could not get into Doss’s

vehicle without assistance.    Further, when they arrived at the apartment complex, J.P.

was too intoxicated to walk up the stairs by herself and had to be physically carried up the

stairs by Doss. Wiles testified that “as soon as we got up and opened the door, she had

to throw up. She was sick.”

        {¶21} Wiles testified that J.P. was supposed to sleep on the pull-out couch.

However, when she woke up, Wiles was surprised to find J.P. in her bed. Wiles denied

approving or even knowing how J.P. got into her bed. She testified that “[she] would

never do something [as] stupid” as allowing a strange woman to sleep in her bed with her

boyfriend.   Wiles further stated that she did not observe any sexual conduct between

Doss and J.P. that evening. However, Wiles testified that Doss later admitted to her that

he had engaged in sexual conduct with J.P. Wiles testified that she was disgusted and

ended their relationship.
       {¶22} J.P. testified at the civil trial and reiterated her previous testimony

concerning her memory loss on the night of the incident. She explained that while she

was dancing at the club, something like a black curtain came over her, and the next thing

she remembered was waking up in the middle of a bed with a woman she did not know

standing over her. J.P. stated that she was disoriented and felt as if she was “coming

away from anesthesia after surgery.”     She testified that she was immediately aware that

she had been sexually assaulted. J.P. was frightened and demanded to be taken home.

J.P. testified that it was only during the ride home that Wiles returned her cell phone to

her.   J.P. stated that as the vehicle approached her apartment, she jumped out of the

vehicle as it was slowing down and ran into the open garage door to her unit and locked

every door behind her.   J.P. then contacted her friend and was taken to a nearby hospital

for examination.

       {¶23} In July 2016, the trial court issued an opinion and order entering judgment in

favor of the state and against Doss on his claim for wrongful imprisonment. The trial

court found that Doss failed to establish by a preponderance of evidence that he was

innocent of criminal behavior, stating

               It is abundantly clear under the circumstances of this case — as
       augmented by the testimony of both Doss and Eileen Wiles during the civil
       trial — that any reasonable trier of fact would be able to find that any sexual
       activity * * * on January 1, 2005 was not consensual on J.P.’s part.

              The rape charge further alleged and required a finding that “Iran
       Doss knew or had a reasonable cause to believe that [J.P.’s] ability to resist
       or consent was substantially impaired because of a mental or physical
       condition.” The record of the case as set forth in the combined criminal
       and civil trials, and as comprehensively discussed above, would also
       support a finding by a trier of fact that Doss was aware of J.P.’s vulnerable
       state. Thus, it is likely that a verdict finding Doss guilty of rape would
       have been returned against him.

               It is likely that the offense of kidnapping would also be accepted by a
       jury. The offense of kidnapping could be satisfied if a trier of fact found
       that “by deception [J.P. was] removed from the place where she was found
       or restrained of her liberty for the purpose of * * * engaging in sexual
       activity * * * with [J.P.] against her will.”

       {¶24} Doss now appeals from the trial court’s judgment.

                                  II. Law and Analysis

                            A. Application of Res Judicata

       {¶25} In his first assignment of error, Doss argues he was denied due process of

law “as the judgment of the court is contrary to law and is inconsistent with the court’s

prior rulings in the same case.” Doss contends that because both the trial court and this

court have previously found merit to Doss’s arguments under R.C. 2743.48(A), “the

ruling that no crime was committed should, at a minimum, be considered res judicata.”

       {¶26} The doctrine of res judicata bars a defendant “from raising and litigating in

any proceeding except an appeal from [a final] judgment, any defense or any claimed lack

of due process that was raised or could have been raised by the defendant at the trial * * *

or on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 180, 226

N.E.2d 104 (1967).

       {¶27} Doss’s reliance on the doctrine of res judicata is without merit. Although

Doss correctly notes that this court previously affirmed the trial court’s judgment granting

Doss summary judgment on his wrongful imprisonment claim in Doss III, 8th Dist.

Cuyahoga No. 96452, 2011-Ohio-6429, the decision was reversed by the Ohio Supreme
Court.      Accordingly, the doctrine of res judicata is inapplicable to the circumstances

presented in this case.

         {¶28} Doss’s first assignment of error is overruled.



                            B. Manifest Weight of the Evidence

         {¶29} In his second assignment of error, Doss argues the trial court’s judgment is

against the manifest weight of the evidence and is contrary to law.

         {¶30} When reviewing a civil appeal from a bench trial, we apply a manifest

weight standard of review. Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal

Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 5 (8th Dist.), citing

App.R. 12(C) and Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).

 A verdict supported by some competent, credible evidence going to all the essential

elements of the case must not be reversed as being against the manifest weight of the

evidence. Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶

6; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978),

syllabus.

         {¶31} As the Ohio Supreme Court explained in Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517:

         “Weight of the evidence concerns ‘the inclination of the greater amount of
         credible evidence, offered in a trial, to support one side of the issue rather
         than the other. It indicates clearly to the [trier of fact] that the party having
         the burden of proof will be entitled to their verdict, if, on weighing the
         evidence in their minds, they shall find the greater amount of credible
         evidence sustains the issue which is to be established before them. Weight
       is not a question of mathematics, but depends on its effect in inducing
       belief.’”

Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting Black’s Law Dictionary 1594 (6th Ed.1990).

       {¶32} In assessing whether a verdict is against the manifest weight of the

evidence, we examine the entire record, weigh the evidence and all reasonable inferences,

consider the witnesses’ credibility, 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 verdict must be overturned and a new trial ordered. State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶33} In weighing the evidence, we are guided by a presumption that the findings

of the trier of fact are correct. Seasons Coal at 80.    This presumption arises because

the trier of fact had an opportunity “to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.”   Id.   Thus, “to the extent that the evidence is susceptible to

more than one interpretation,” we will “construe it consistently with the * * * verdict.”

Berry v. Lupica, 196 Ohio App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318, ¶ 22 (8th

Dist.), citing Ross v. Ross, 64 Ohio St.2d 203, 414 N.E.2d 426 (1980).

       {¶34} A “wrongfully imprisoned individual” is defined in R.C. 2743.48(A) as an

individual who satisfies each of the following requirements:

       (1) The individual was charged with a violation of a section of the Revised
       Code by an indictment or information, and the violation charged was an
       aggravated felony or felony.
      (2) The individual was found guilty of, but did not plead guilty to, the
      particular charge or a lesser-included offense by the court or jury involved,
      and the offense of which the individual was found guilty was an aggravated
      felony or felony.

      (3) The individual was sentenced to an indefinite or definite term of
      imprisonment in a state correctional institution for the offense of which the
      individual was found guilty.

      (4) The individual’s conviction was vacated or was dismissed, or reversed
      on appeal, the prosecuting attorney in the case cannot or will not seek any
      further appeal of right or upon leave of court, and no criminal proceeding is
      pending, can be brought, or will be brought by any prosecuting attorney,
      city director of law, village solicitor, or other chief legal officer of a
      municipal corporation against the individual for any act associated with that
      conviction.

      (5) Subsequent to sentencing and during or subsequent to imprisonment, an
      error in procedure resulted in the individual’s release, or it was determined
      by a court of common pleas that the offense of which the individual was
      found guilty, including all lesser-included offenses, either was not
      committed by the individual or was not committed by any person.

      {¶35} In this case, the parties do not dispute that Doss has satisfied the

requirements set forth in R.C. 2743.48(A)(1)-(4). Thus, our analysis is limited to the

application of R.C. 2743.48(A)(5).

      {¶36} Pursuant to R.C. 2743.48(A)(5), the claimant bears the burden of proving by

a preponderance of the evidence his innocence of the crimes for which he was convicted

and all lesser included offenses.    Walden v. State, 47 Ohio St.3d 47, 547 N.E.2d 962

(1989), syllabus.   The claimant must demonstrate that the “‘offense of which he was

found guilty, including all lesser-included offenses, either was not committed by him or

was not committed by any person.’”     Ellis v. State, 64 Ohio St.3d 391, 393, 596 N.E.2d

428 (1992), quoting R.C. 2743.48(A)(5).          Only after the trial court makes a
determination that the claimant satisfied his burden will the claimant then qualify as a

wrongfully imprisoned person under the statute.        Rodriguez v. Petro, 8th Dist. Cuyahoga

No. 87548, 2006-Ohio-5572, ¶ 6.

       {¶37} The wrongful imprisonment statutes were intended to compensate the

innocent for wrongful imprisonment.         The Ohio Supreme Court explained the rationale

for this approach in cases where wrongful imprisonment is alleged, stating:

       The requirement that “no criminal proceeding * * * can be brought * * *
       against the individual for any act associated with that conviction” is of
       critical importance. This statutory language is intended to filter out those
       claimants who have had their convictions reversed, but were committing a
       different offense at the time that they were engaging in the activity for
       which they were initially charged. When the General Assembly enacted
       Ohio’s wrongful imprisonment legislation, it “intended that the court of
       common pleas actively separate those who were wrongfully imprisoned
       from those who have merely avoided criminal liability.”

Gover v. State, 67 Ohio St.3d 93, 95, 616 N.E.2d 207 (1993).

       {¶38} In this case, Doss was originally convicted of violating R.C.

2907.02(A)(1)(c), which defines rape as “[n]o person shall engage in sexual conduct with

another * * * when * * * [t]he other person’s ability to resist or consent is substantially

impaired1 because of a mental or physical condition * * * and the offender knows or has


          Substantial impairment may be shown by proffering evidence that demonstrates the victim’s
       1


diminished ability to act or think. State v. Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414 (1987).
Voluntary intoxication is a mental or physical condition that could cause substantial impairment.
State v. Doss, 8th Dist. Cuyahoga No. 88443, 2008-Ohio-449, ¶ 13, citing In re King, 8th Dist.
Cuyahoga Nos. 79830 and 79755, 2002-Ohio-2313. Sexual conduct with an intoxicated person
under the Revised Code becomes criminal when the victim’s “ability to resist or consent is
substantially impaired by reason of voluntary intoxication.” In re King at ¶ 22, citing State v.
Martin, 12th Dist. Brown No. CA99-09-026, 2000 Ohio App. LEXIS 3649 (Aug. 14, 2000).
Substantial impairment can be demonstrated by the testimony of those who have interacted with the
victim. State v. Brady, 8th Dist. Cuyahoga No. 87854, 2007-Ohio-1453, ¶ 78. Additionally,
      reasonable cause to believe that the other person’s ability to resist or consent is

      substantially impaired * * *.”       Additionally, Doss was convicted of violating R.C.

      2905.01(A)(2) and (4), which defines kidnapping as “[n]o person, by force, threat, or

      deception * * * shall remove another from the place where the other person is found or

      restrain the liberty of the other person, * * * [t]o facilitate the commission of any felony *

      * *; [or] [t]o engage in sexual activity * * * with the victim against the victim’s will.”

             {¶39} On appeal, Doss argues that he satisfied his burden to affirmatively establish

      his innocence under R.C. 2743.48(A)(5). Contrary to the findings expressed in the trial

      court’s detailed 26-page opinion, Doss contends that “there is no evidence that [he] knew,

      or should have known, that [J.P.]’s ability to resist or consent was substantially impaired

      because of her voluntary intoxication.” In support of his position, Doss relies on the

      following statement in Doss III:

             [In Doss II], [w]e noted that “[t]he only evidence in the record of events happening
      between 2:30 and 8:00 a.m. on New Year’s Day is [Doss’s] statement.” After reviewing
      the evidence in the record, this court stated, “[t]he only evidence about [J.P.’s] mental
      condition at the time of the alleged rape is found in [Doss’s] statement. A careful
      review of this statement reveals no evidence that [Doss] knew, or should have known,
      that J.P.’s ‘ability to resist or consent is substantially impaired because of voluntary
      intoxication.’” We noted that “the state presented no evidence in opposition to [Doss’s]
      statement.”

Doss III, 8th Dist. Cuyahoga No. 96452, 2011-Ohio-6429, at ¶ 15.

             {¶40} After careful review, we find no merit to Doss’s position. As stated,

      Doss’s challenge to the weight of the evidence relies extensively on our holding in Doss


      whether an offender knew or had reasonable cause to believe a victim was impaired may be
      reasonably inferred from a combination of the victim’s demeanor and others’ interactions with the
      victim. State v. Novak, 11th Dist. Lake No. 2003-L-077, 2005-Ohio-563, ¶ 25.
III. However, the Ohio Supreme Court reversed our judgment, finding that this court

incorrectly applied “Walden’s rule that an acquittal does not necessarily establish actual

innocence.” Doss IV, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, at ¶ 20.

As noted by the Ohio Supreme Court, our opinion in Doss III improperly relied on the

“dearth of evidence of guilt” in Doss’s criminal case and not on “an affirmative showing

of actual innocence.” Id.    The Ohio Supreme Court explained that our analysis failed

to answer the civil question of “whether Doss can show by a preponderance of the

evidence that he did not know, or could not reasonably have known, of the alleged

victim’s incapacity.” Doss IV at ¶ 17, citing Ratcliff v. State, 94 Ohio App.3d 179, 184,

640 N.E.2d 560 (4th Dist.1994) (evidence insufficient to prove guilt beyond a reasonable

doubt does not necessarily prove innocence by a preponderance of the evidence).

Pursuant to the Ohio Supreme Court’s judgment in Doss IV, we find Doss’s reliance on

certain statements rendered by this court in Doss III to be unpersuasive.

       {¶41} With respect to Doss’s burden of proof under R.C. 2743.48(A)(5), we note

that Doss’s civil trial produced significant testimony that was not adduced at Doss’s

criminal trial, and therefore, was not available to this court at the time Doss II and Doss

III were rendered. As stated, Wiles did not testify at Doss’s criminal trial. At Doss’s

civil trial, however, Wiles testified at length concerning the nature of J.P.’s intoxication

and Doss’s interactions with J.P. on the night of the incident. Wiles testified that J.P.

was very intoxicated. Wiles stated that J.P. had to be assisted into Doss’s vehicle as they

left Club Moda, and had to be physically carried up the apartment stairs by Doss because
she was too unstable to traverse them herself. Wiles further testified that upon arriving

inside the apartment, J.P. “violently threw up.”

       {¶42} On this record, we agree with the trial court’s statement that “[i]t is highly

questionable that someone in J.P.’s condition as described throughout Wiles’s testimony

at trial would have the capacity to initiate the sexual conduct and activity as alleged by

Doss.” In our view, the testimony presented at the civil trial demonstrated that Doss

knew or had reasonable cause to believe J.P. was substantially impaired because of her

voluntary intoxication, and thereby, unable to resist or consent to the sexual activity.

Under these circumstances, Doss failed to demonstrate by a preponderance of evidence

that he was innocent of criminal behavior.         Accordingly, we find the trial court’s

judgment in this case is supported by competent, credible evidence.

       {¶43} We recognize that Doss challenges Wiles’s credibility and argues that her

civil trial testimony was inconsistent with her 2005 written police statement. However,

our review of the record, and the trial court’s 26-page opinion reflects that the trial court

carefully considered Wiles’s testimony in conjunction with her written police statement.

Deferring to the trial court’s resolution of any perceived inconsistencies, we are unable to

conclude that the trial court’s judgment was against the manifest weight of the evidence.



       {¶44} Doss’s second assignment of error is overruled.

       {¶45} 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 be sent to the common pleas court to carry this

judgment into execution.

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

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR
