[Cite as State v. Horn, 2018-Ohio-779.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-16-053

        Appellee                                 Trial Court No. 2015CR0474

v.

Michael C. Horn                                  DECISION AND JUDGMENT

        Appellant                                Decided: March 2, 2018

                                           *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Neil S. McElroy, for appellant.

                                           *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Wood County Court of Common

Pleas which, following a jury trial, found appellant guilty of six counts of rape with

sexually violent predator specifications. For the reasons set forth below, this court

affirms the judgment of the trial court.
       {¶ 2} Appellant, Michael C. Horn, was the 40 year old step-father and step-uncle

to the two victims, S.M. and J.M., respectively, who were 13 to 14 years old at the times

of the rapes. S.M. and J.M. are first cousins. On November 10, 2015, the Wood County

prosecutor filed six bills of information against appellant: (Count 1) rape of S.M., in

violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time period 1;

(Count 2) rape of S.M., in violation of R.C. 2907.02(A)(2) and (B), a first degree felony,

during time period 1; (Count 3) rape of S.M., in violation of R.C. 2907.02(A)(1)(c) and

(B), a first degree felony, during time period 2; (Count 4) rape of S.M., in violation of

R.C. 2907.02(A)(2) and (B), a first degree felony, during time period 2; (Count 5) rape of

J.M., in violation of R.C. 2907.02(A)(1)(c) and (B), a first degree felony, during time

period 3; and (Count 6) rape of J.M., in violation of R.C. 2907.02(A)(2) and (B), a first

degree felony, during time period 3. Following the jury trial held March 7-10, 2016,

appellant was convicted on all six counts. The jury verdict judgment entry was

journalized March 15, 2016.

       {¶ 3} Each of the six counts also carried a sexually violent predator specification

pursuant to R.C. 2941.148(A). Following a bench trial held July 26, 2016, appellant was

convicted on all six counts of the sexually violent predator specifications. The sexually

violent predator specification verdict judgment entry was journalized September 8, 2016.

       {¶ 4} Subsequently on September 13, 2016, the trial court held the sentencing

hearing. Appellee stipulated to the merger of Count 2 into Count 1, Count 4 into Count

3, and Count 6 into Count 5. For each of the Counts 1, 3 and 5, the trial court sentenced



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appellant to serve a prison term of ten years to life to be served consecutively. The trial

court journalized the sentencing judgment entry on September 22, 2016 followed by a

nunc pro tunc judgment entry on September 28, 2016.

       {¶ 5} It is from the trial court’s September 28, 2016, journalized judgment entry

which appellant filed his appeal on October 17, 2016.

       {¶ 6} Appellant sets forth five assignments of error:

              I. The admission of other-acts testimony violated Mr. Horn’s right

       to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the

       United States Constitution, and Section 16, Article I of the Ohio

       Constitution.

              II. Application of the rape-shield law resulted in a deprivation of

       Mr. Horn’s constitutional rights to confront and cross-examine witnesses,

       his right to present a defense, and his right to a fair trial and due process of

       law, in violation of the U.S. Constitution’s Fifth, Sixth, and Fourteenth

       Amendments and Article I, Sections 10 and 16 of the Ohio Constitution.

              III. Mr. Horn’s conviction under the Sexually Violent Predator

       specification is against the manifest weight of the evidence.

              IV. The trial court abused its discretion when it permitted a

       counselor to testify regarding Asperger’s syndrome in violation of Evid.R.

       401, 402, and 403 resulting in violation of Mr. Horn’s right to a fair trial, as




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       guaranteed by the Fifth and Fourteenth Amendments to the United States

       Constitution, and Section 16, Article I of the Ohio Constitution.

              V. Mr. Horn’s convictions for violations of R.C. Sec.

       2907.02(A)(1)(c) are not supported by legally sufficient evidence.

       {¶ 7} Appellant’s first, second and fourth assignments of error question the

admissibility of evidence by the trial court and will be addressed together. We review a

trial court’s decision to admit or exclude evidence for abuse of discretion. State v.

Richardson, 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471, ¶ 66. Abuse of discretion

connotes the record shows the trial court’s decision was unreasonable, arbitrary or

unconscionable. Id. The abuse of discretion must also create a material prejudice. State

v. Teal, 6th Dist. Lucas Nos. L-15-1280, L-15-1281, 2017-Ohio-7202, ¶ 16.

       {¶ 8} In order for the jury to find appellant guilty of rape in Counts 1, 3 and 5,

appellee must prove beyond a reasonable doubt that appellant violated R.C.

2907.02(A)(1)(c), which provides:

              No person shall engage in sexual conduct with another who is not

       the spouse of the offender * * * when * * * (c) The other person’s ability to

       resist or consent is substantially impaired because of a mental or physical

       condition or because of advanced age, and the offender knows or has

       reasonable cause to believe that the other person’s ability to resist or

       consent is substantially impaired because of a mental or physical condition

       or because of advanced age.



4.
       {¶ 9} In order for the jury to find appellant guilty of rape in Counts 2, 4 and 6,

appellee must prove beyond a reasonable doubt that: “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. 2907.02(A)(2).

       {¶ 10} For any rape crime, the victim need not prove physical resistance to the

offender. R.C. 2907.02(C).

       {¶ 11} The lengthy jury instructions stipulated by the parties and read to the jury

contained all of the relevant definitions associated with the elements of these crimes.

                         Admissibility – “Other Acts” Evidence

       {¶ 12} The focus of appellant’s first assignment of error are Counts 1 through 4

for the rapes of S.M. Appellant argues Evid.R. 404(B) prohibits the introduction of

“other acts” evidence of matters extrinsic to the operative facts of the underlying charges

in order to prove the offenses alleged, and his due process rights were violated because

these other acts were neither temporally related, nor circumstantially related, to the

operative facts of the offenses alleged. Appellant argues S.M.’s testimony was not

temporally related “regarding four other acts, some of which occurred at an unspecified

time prior to the alleged incidents, and others that occurred six months after the charged

offense in counts 1 and 2, and eight to nine months before the charged offense in counts 3

and 4.” Appellant further argues S.M.’s testimony was not circumstantially related

because “there was nothing so unusual or distinctive about spanking a bare bottom,

offering to assist in shaving pubic hair, performing cunnilingus, or putting her hand on



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[appellant’s] penis. And each of those instances was different from each other, and each

was different from the two charged incidents.”

       {¶ 13} In response appellee argues the trial court did not abuse its discretion

because uncharged sex crimes against the same victim by the same defendant are not

subject to exclusion under Evid.R. 404(B) “for such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In

addition to identifying the perpetrator, the other acts testimony also showed appellant’s

grooming plan to create a trust relationship with S.M. to submit to his sexual conduct.

Appellee argues the other acts testimony was admissible because it was more probative

than any unfair prejudice to appellant.

       {¶ 14} Evid.R. 404(B) states:

              Evidence of other crimes, wrongs, or acts is not admissible to prove

       the character of a person in order to show action in conformity therewith. It

       may, however, be admissible for other purposes, such as proof of motive,

       opportunity, intent, preparation, plan, knowledge, identity, or absence of

       mistake or accident. In criminal cases, the proponent of evidence to be

       offered under this rule shall provide reasonable notice in advance of trial, or

       during trial if the court excuses pretrial notice on good cause shown, of the

       general nature of any such evidence it intends to introduce at trial.

       {¶ 15} Evidence of other acts may be used to show appellant is the actual

individual who committed those offenses to establish a behavioral fingerprint to identify



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him as the perpetrator through the characteristics of the acts rather than through his

character traits. Richardson, 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471, at ¶ 69.

The other acts evidence must also be temporally and circumstantially related to the

operative facts of the charged offense. Id. at ¶ 70.

       {¶ 16} Consideration of other acts evidence is a three-step analysis: (1) pursuant to

Evid.R. 401 whether the other acts evidence is relevant to making any fact that is of

consequence to the determination of the action more or less probable than it would be

without the evidence; (2) whether the other acts evidence is presented solely to prove the

character of the accused in order to show activity in conformity therewith or whether the

other acts evidence is presented for a legitimate purpose; and (3) pursuant to Evid.R. 403

whether the probative value of the other acts evidence is substantially outweighed by the

danger of unfair prejudice. Teal, 6th Dist. Lucas Nos. L-15-1280, L-15-1281, 2017-

Ohio-7202, ¶ 18.

       {¶ 17} The operative facts of the charged offenses begins our analysis. The record

shows the first two rape convictions (Counts 1 and 2) involved digital penetration of

S.M.’s vagina and stimulating her clitoris while she was asleep, when she was a ninth

grader. The third and fourth rape convictions (Counts 3 and 4), also when S.M. was a

ninth grader, involved digital penetration of her vagina and stimulating her clitoris

followed by the insertion and use of sex toys in her vagina and anus while awake. In

each instance S.M. was alone with the appellant at the home they shared and in a

situation where she felt helpless and could not stop the rape. After each rape S.M. felt



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ashamed and isolated from her family, friends and teachers because “no one believed”

her, and no one stopped appellant, even when she did tell adults. S.M. came to fear

appellant. S.M.’s mother testified she observed appellant yell at S.M., and on one

occasion it was “beyond normal dad behavior.”

       {¶ 18} The record also shows testimony regarding the following other acts

evidence was discussed by S.M. and corroborated by one or more other witnesses.

       {¶ 19} At trial S.M. testified to three separate events while an eighth grader: 1)

appellant ordered her to drop her pants and panties and spanked her bare bottom and

demanded she count the spanks and thank him for them; 2) appellant offered to shave her

pubic hair; and 3) appellant gave her a birds-and-bees talk that involved appellant using

his personal copy of the “Kama Sutra,” which she described as “the Indian book on sex

positions” with graphic pictures.

       {¶ 20} At trial S.M. testified to two separate events while a ninth grader: 1)

appellant ordered her to drop her pants and panties and he examined her vagina and

clitoris with his tongue and fingers to make sure she’s “not ripped up” and then examined

her anus with his finger covered in Vaseline; and 2) while appellant wore boxer shorts

and had a partial erection, he grabbed her hand to put it over his penis to demonstrate “he

was too big for me and that if he would have raped me, it would have tore me up.”

       {¶ 21} Grooming is the process by which appellant took deliberate actions to

expose S.M. to sexual material and to sexual behaviors to prepare S.M. for sexual

activity. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 21.



8.
The other acts testimony appeared to describe aspects of appellant’s grooming process

conditioning S.M. to submit to appellant’s sexual behaviors that occurred while she was

an eighth and ninth grader.

       {¶ 22} The first step of other acts evidence analysis is pursuant to Evid.R. 401.

Relevant evidence is generally admissible, while irrelevant evidence is inadmissible.

Evid.R. 402. “’Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Evid.R. 401. We find

the other acts evidence about the grooming process was relevant that the rapes stated in

Counts 1 through 4 were more probable than they would be without the evidence.

       {¶ 23} The second step of other acts evidence analysis is pursuant to Evid.R.

404(B). We find the other acts evidence was presented for legitimate purposes other than

solely about appellant’s character, such as specifically identifying appellant as the

perpetrator of the rapes in the absence of mistake or accident and to identify his plan or

scheme or motive or intent to target the teenagers in the family and condition them to

submit to his sexual conduct. Evid.R. 404(B) did not prohibit the introduction of such

other acts evidence for those legitimate purposes.

       {¶ 24} The third step of other acts evidence analysis is pursuant to Evid.R. 403,

which states:




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              Exclusion mandatory. Although relevant, evidence is not admissible

       if its probative value is substantially outweighed by the danger of unfair

       prejudice, of confusion of the issues, or of misleading the jury.

Evid.R. 403(A). We find the probative value of the relevant other acts evidence

substantially outweighed any danger of unfair prejudice. We do not find the other acts

evidence resulted in material prejudice against appellant. The other acts evidence helped

appellee to prove appellant’s identity, motive, opportunity, preparation, and plan. The

record does not indicate the jury was confused or misled by such other acts evidence.

       {¶ 25} We find the trial court did not act unreasonably, arbitrarily or

unconscionably and did not abuse its discretion regarding the admissibility of other acts

evidence. Appellant’s first assignment of error is not well-taken.

                        Admissibility – “Rape Shield” Evidence

       {¶ 26} Appellant next argues Ohio’s rape-shield law must yield to his Sixth

Amendment right to confront the witnesses against him. The focus of appellant’s second

assignment of error are, again, Counts 1 through 4 for the rapes of S.M. Appellant argues

he should have been able to introduce evidence of S.M.’s sexual activity with her teenage

boyfriend to show that she had a reason to fabricate the allegations against appellant.

Appellant argues S.M’s reason to fabricate was in response to her mother and appellant

forbidding S.M. from seeing her boyfriend. S.M.’s parents were divorced and shared

custody of her. Appellant argues S.M. wanted to move in full-time with her biological

father for his “relaxed” parenting standards.



10.
       {¶ 27} In response appellee argues the trial court did not abuse its discretion

because the purpose and spirit of the rape shield law is intended for precisely the facts in

this case.

       {¶ 28} Ohio’s rape shield law states in part as follows:

                Evidence of specific instances of the victim’s sexual activity,

       opinion evidence of the victim’s sexual activity, and reputation evidence of

       the victim’s sexual activity shall not be admitted under this section unless it

       involves evidence of the origin of semen, pregnancy, or disease, or the

       victim’s past sexual activity with the offender, and only to the extent that

       the court finds that the evidence is material to a fact at issue in the case and

       that its inflammatory or prejudicial nature does not outweigh its probative

       value.

R.C. 2907.02(D).

       {¶ 29} We find the record shows appellant did not seek to introduce evidence of

specific instances of S.M.’s sexual activity, opinion evidence of S.M.’s sexual activity, or

reputation evidence of S.M.’s sexual activity for any allowable reason. Appellant did not

seek to introduce evidence of the origin of semen, pregnancy, or disease, or S.M.’s past

sexual activity with appellant, which are the limited allowances by statute. Appellant

sought to attack S.M.’s credibility by providing a reason to fabricate the allegations

against appellant. “Evidence of sexual activity offered merely to impeach the credibility

of the witness is not material to a fact at issue in the case and must be excluded.” State v.



11.
Ector, 6th Dist. Lucas No. L-07-1169, 2009-Ohio-515, ¶ 21. The record shows the jury

heard testimony from eight witnesses other than S.M., including forensic DNA evidence

and expert testimony regarding the alleged sex toys used in Counts 3 and 4. The jury, as

the trier of the facts, determined credibility of all the evidence, including the nine witness

testimonies. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶

165.

       {¶ 30} We find the record confirms the jury heard appellant cross-examine S.M.

about her motives to fabricate her rape claims against appellant, including references to

S.M.’s boyfriend, and S.M. answered each question. Perhaps S.M.’s answers did not

support appellant’s defense theory, but the application of the rape shield law did not

deprive appellant of material evidence to a fact at issue nor deny testimony that was more

probative than prejudicial. State v. Coffey, 6th Dist. Lucas No. L-12-1047, 2013-Ohio-

3555, ¶ 24. We find the fact that appellant confronted S.M. through appropriate,

meaningful cross-examination confirmed there was no violation of the Confrontation

Clause. State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 81.

Appellant’s opportunities during cross-examination to expose S.M.’s motives to fabricate

her claims did not raise Sixth Amendment concerns. State v. McKelton, 148 Ohio St.3d

261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 172.

       {¶ 31} Nor did the application of the rape shield law deprive appellant of the

meaningful cross-examination of S.M. and her biological parents regarding the alleged

motive of “relaxed” parenting standards. S.M. testified that in contrast to her step-father



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“my dad, he gives me – at some point he gives me a chance to express my opinion, tell

him yes or no, and he’ll actually listen to me.” S.M.’s dad testified S.M. “was pretty

honest with me because I always kind of had a really good relationship with that.”

S.M.’s mom testified she can think of nothing that would motivate both S.M. and J.M. to

fabricate the rape allegations against appellant.

       {¶ 32} We find the trial court did not act unreasonably, arbitrarily or

unconscionably and did not abuse its discretion regarding the inadmissibility of evidence

under the rape shield law. Appellant’s second assignment of error is not well-taken.

                   Admissibility – “Asperger’s Syndrome” Evidence

       {¶ 33} Appellant next argues the trial court abused its discretion by admitting

irrelevant testimony from J.M.’s school counselor about Asperger’s syndrome “for no

purpose other than to unfairly prejudice the defendant and mislead the jury.” Appellant

argues “there was no other evidence that the victim of counts 5 and 6 [J.M.] was suffering

any substantial impairment because of a mental or physical condition.” As a result,

appellant argues he did not receive a fair trial.

       {¶ 34} In response appellee argues the trial court did not abuse its discretion

because the school counselor’s testimony was from her personal experience with her own

foster children diagnosed with Asperger’s syndrome, which was relevant evidence under

Evid.R. 401. Appellee further argues the school counselor’s testimony was not unduly

prejudicial to appellant because she had personally met with J.M. and had personal




13.
experience with and training in counseling students involved with sexual and physical

abuse. Appellee never sought the school counselor to be classified as an expert witness.

       {¶ 35} Contrary to appellant’s assertion, there was relevant evidence that J.M.

suffered from a mental condition other than Asperger’s syndrome. The record shows that

J.M.’s mom testified J.M. was diagnosed at age three with ADHD and took the same

medications as appellant. It was appellant who explained to J.M.’s mom (his sister-in-

law) what effect the medicines had. There was also testimony from J.M. describing her

physics class in high school as, “Isn’t physics, like, gym or something?” The testimony

J.M. provided, both on direct and cross-examination, was sufficient to show that a

rational jury could reach its own conclusions as to J.M.’s mental condition referred to by

multiple witnesses as “low functioning” and whether that condition rendered her

“substantially impaired.”

       {¶ 36} “Substantial impairment” is “a present reduction, diminution or decrease in

the victim’s ability, either to appraise the nature of his conduct or to control his conduct.”

State v. Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414 (1987). “Substantial

impairment does not have to be proven by expert medical testimony; rather, it can be

shown to exist by the testimony of people who have interacted with the victim, and by

allowing the trier of fact to do its own assessment of the person’s ability to appraise or

control his or her conduct.” State v. Brady, 8th Dist. Cuyahoga No. 87854, 2007-Ohio-

1453, ¶ 78; State v. Acosta, 6th Dist. Lucas No. L-09-1120, 2010-Ohio-5166, ¶ 22. The




14.
determination of substantial impairment is made on a case-by-case basis with “great

deference” to the trier of fact. State v. Brown, 5th Dist. Richland No. 2016 CA 0043,

2017-Ohio-1114, ¶ 47.

       {¶ 37} J.M.’s school counselor testified she received specialized training as a

“counselor to identify the telltale signs of sexual abuse or physical abuse” in addition to

“extensive training” due to being a therapeutic foster parent to special needs children for

20 years. Some of her special needs foster children had Asperger’s syndrome, which she

described as a disorder where the person is socially awkward and does not know how to

evaluate a social situation. The school counselor did not provide an opinion about J.M.

and Asperger’s syndrome. The school counselor testified a teacher referred J.M. to her

because the teacher was concerned with J.M.’s grades dropping, poor hygiene, and her

transformation into a withdrawn and untalkative girl. J.M. eventually told the school

counselor about appellant forcing her to perform fellatio and “family members that were

angry that didn’t want her to tell.” The school counselor testified after J.M.’s disclosure

she did not see improvement in her grades, hygiene or stress “because this was an

ongoing situation * * * there wasn’t a resolution for her to have an end to it.”

       {¶ 38} We find the trial court did not act unreasonably, arbitrarily or

unconscionably and did not abuse its discretion regarding the admissibility of J.M.’s

school counselor testimony. Appellant’s fourth assignment of error is not well-taken.




15.
                                      Manifest Weight

       {¶ 39} In support of his third assignment of error, appellant argues appellee failed

to meet its burden of proving beyond a reasonable doubt that appellant is a sexually

violent predator. Appellant argues the expert testimony was inconclusive for determining

recidivism with any certainty and at best was “very low.”

       {¶ 40} In response appellee argues appellant argues there was no miscarriage of

justice by the trial court, and the trial court’s determination of the weight and credibility

of the evidence must be accorded due deference.

       {¶ 41} “A challenge to the weight of the evidence questions whether the greater

amount of credible evidence was admitted to support the judgment than not.” Flowers v.

Siefer, 6th Dist. Lucas No. L-16-1002, 2017-Ohio-1310, ¶ 94. This court has repeatedly

stated that in determining whether a verdict is against the manifest weight of the

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

consider the credibility of the witnesses, and determine whether the trier of fact clearly

lost its way to create such a manifest miscarriage of justice as to require a new trial. State

v. Reynolds, 6th Dist. Lucas No. L-16-1021, 2017-Ohio-1478, ¶ 47. A conviction will be

overturned only in exceptional cases. Id. Every “reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the finding of facts.”

Flowers at ¶ 94.

       {¶ 42} It is well established that the trier of fact has the sole duty to decide what

weight should be given to the testimony of any witness, including experts. Kokitka v.



16.
Ford Motor Co., 73 Ohio St.3d 89, 92, 652 N.E.2d 671 (1995); State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. We will not reverse

those decisions absent an abuse of discretion where the record shows the decision was

unreasonable, arbitrary or unconscionable. Flowers at ¶ 59; Kinn v. HCR ManorCare,

2013-Ohio-4086, 998 N.E.2d 852, ¶ 14 (6th Dist.). The trier of fact heard the testimony,

viewed witness demeanor, gestures and voice inflections and ultimately resolved any

conflicting evidence presented at the trial. State v. Schwamberger, 6th Dist. Lucas No. L-

13-1236, 2014-Ohio-4733, ¶ 21. A “conviction is not against the manifest weight of the

evidence simply because the fact finder believed the prosecution testimony.” Id.

       {¶ 43} Pursuant to R.C. 2971.02, appellant elected to have the trial court, instead

of a jury, determine the sexually violent predator specifications following his jury

convictions on the underlying rape charges.

       {¶ 44} A “sexually violent predator” is defined as “a person who, on or after

January 1, 1997, commits a sexually violent offense and is likely to engage in the future

in one or more sexually violent offenses.” R.C. 2971.01(H)(1). A “sexually violent

offense” is essentially defined as “a violent sex offense.” R.C. 2971.01(G)(1). A

“violent sex offense” is defined, in part, as a “violation of section 2907.02 * * * of the

Revised Code.” R.C. 2971.01(L)(1).

       {¶ 45} Appellant’s convictions for offenses pursuant to R.C. 2907.02(A)(1)(2) and

2907.02(A)(2) are by definition “sexually violent offenses.” Appellant’s offenses

occurred after January 1, 1997. The remaining issue for the trier of fact was the



17.
determination if appellant “is likely to engage in the future in one or more sexually

violent offenses.” That determination must be proven by appellee beyond a reasonable

doubt. State v. Williams, 88 Ohio St.3d 513, 532, 728 N.E.2d 342 (2000).

       {¶ 46} The trial court, as the trier of fact, is presumed to have considered “only the

relevant, material, and competent evidence” in arriving at its sexually violent predator

judgments unless it affirmatively appears to the contrary. State v. Arnold, 147 Ohio St.3d

138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. Here there is no showing the presumption

should not apply.

       {¶ 47} According to the plain language of the statute, the General Assembly offers

six factors to the trier of fact it “may” consider “as evidence tending to indicate that there

is a likelihood that a person will engage in the future in one or more sexually violent

offenses.” R.C. 2971.01(H)(2)(a)-(f). Significantly, there is a broad catch-all factor of

“any other relevant evidence.” R.C. 2971.01(H)(2)(f). While a trier of fact is not

required to consider any of those six factors, some appellate jurisdictions have concluded

that consideration of any one is appropriate. State v. Sopko, 8th Dist. Cuyahoga No.

90743, 2009-Ohio-140, ¶ 48; State v. Person, 9th Dist. Summit No. 27600, 2016-Ohio-

681, ¶ 24; State v. T.E.H., 10th Dist. Franklin Nos. 16AP-384, 16AP-385, 16AP-386,

2017-Ohio-4140, ¶ 72; State v. Cartwright, 12th Dist. Preble No. CA2012-03-003, 2013-

Ohio-2156, ¶ 27. We agree.

       {¶ 48} The transcript of the sexually violent predator bench trial, and the trial

court’s subsequent journal entry, each confirm the trial court considered all of the



18.
evidence and also specifically considered the R.C. 2971.01(H)(2)(c) and (f) factors when

it determined appellee had proven beyond a reasonable doubt that appellant is guilty of

the sexually violent predator specifications. Competing expert testimony and reports

were among the record of evidence. The record also shows that despite his convictions,

the expert witnesses testified that appellant denied his culpability and lacked remorse for

the rapes against S.M. and J.M.

       {¶ 49} The trial court ultimately reached its verdict and stated in the judgment

entry journalized September 8, 2016:

               Specifically, the Court finds the facts of the current offenses – that

       Defendant committed multiple sexually violent offenses over a period of

       sixteen months, with two juvenile victims around the age of fourteen, both

       with a familial relationship to the Defendant – demonstrate Defendant is

       likely to engage in the future one or more sexually violent offenses.

       {¶ 50} We reviewed the entire record in this case and do not find the trial court

lost its way or created a manifest miscarriage of justice in determining appellant’s guilt

beyond a reasonable doubt for each sexually violent predator specification. We will not

disturb the trial court’s findings.

       {¶ 51} Appellant’s fourth assignment of error is not well-taken.

                                      Sufficiency of Evidence

       {¶ 52} In support of his fifth assignment of error, appellant argues appellee failed

to produce legally sufficient evidence to support the convictions. Appellant argues there



19.
was insufficient evidence that S.M. (in Counts 1 and 3) and J.M. (in Count 5) were

substantially impaired by a physical or mental condition pursuant to R.C.

2907.02(A)(1)(c). For Count 1, appellant argues that sleep is not uniformly recognized

by the district courts as a substantial impairment, as the cases appear to “involve the

abuse or overuse of drugs and or alcohol.” For Counts 3 and 5, appellant urges this court

to determine the evidence was insufficient to conclude the victims were impaired to the

requisite “substantial” degree.

       {¶ 53} In response appellee argues there were three avenues of legally sufficient

evidence regarding substantial impairments of the victims and known by appellant: “In

one instance, the victim was asleep during the rape. In another rape, the victim was low

functioning. In another rape, the disparity of power in the familial relationship caused the

substantial impairment.” No expert testimony was required. Appellee argues the jury

was the trier of fact and rationally determined, after viewing the evidence in a light most

favorable to the prosecution, the essential elements of the crimes were proven beyond a

reasonable doubt.

       {¶ 54} Our role in reviewing a challenge to the sufficiency of the evidence is

whether, after reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crimes beyond a

reasonable doubt. State v. Beasley, 2018-Ohio-493, ¶ 207 (slip opinion). It asks whether

the evidence was legally sufficient to support the guilty verdict as a matter of law,

irrespective of evaluating witness credibility. Id. “This standard is very narrow and tests



20.
only whether there was evidence presented which supports each element of the prima

facie case.” Flowers, 6th Dist. Lucas No. L-16-1002, 2017-Ohio-1310, at ¶ 83.

       {¶ 55} The prima facie case for Counts 1, 3 and 5 pursuant to R.C.

2907.02(A)(1)(c) are: (1) sexual conduct, (2) with one not the offender’s spouse, (3)

when the other person’s ability to resist or consent is substantially impaired by a mental

or physical condition, and (4) the offender knows or has reasonable cause to believe the

other person is substantially impaired by such condition. In re J.J., 6th Dist. Erie No. E-

11-018, 2012-Ohio-2550, ¶ 21.

       {¶ 56} With respect to Count 1, the record evidence shows S.M. testified she was

asleep, her body relaxed, following appellant’s massaging of her upper body around bed

time, and when she awoke appellant’s fingers were inside her vagina.

              Q: When you were asleep, were you able to resist or consent with

       what Mike was doing to you?

              A: No.

              Q: Again, that was why?

              ***

              A: Because I was asleep at that point.

       {¶ 57} Contrary to appellant’s assertions, this court has addressed the issue of

sleep as a “substantial impairment.” “A jury can reasonably conclude that the defendant

knew the victim was substantially impaired and unable to object to the defendant’s

conduct if there was evidence that the victim was in a state of deep sleep or drunkenness.



21.
State v. Anderson, 6th Dist. Wood No. WD-04-035, 2005-Ohio-534, ¶ 41. Here, there

was evidence S.M. was asleep at the time of the rape.

       {¶ 58} The record includes evidence from which the jury can reach its own

determination as to S.M.’s ability to resist or consent and being substantially impaired

because of a mental or physical condition of which appellant knew or should have

known. Using the test of sufficiency, we find any rational trier of fact could have found

evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c)

for Count 1 beyond a reasonable doubt.

       {¶ 59} With respect to Count 3, the record evidence shows S.M. repeatedly

testified how she felt helpless to stop the rape by her step-father. While Count 3 was

occurring, S.M. was afraid of appellant’s temper and was resigned to the helplessness of

a child who expected no adult would believe her about what her step-father did to her.

S.M.’s testimony included statements such as, “I felt if I didn’t do [what he commanded],

he was going to do it anyways,” and “[my step-father] gets these very stern looks on is

face every time that you challenge him. When he has that look, it does not go well. * * *

If I would disobey him, he would definitely start yelling [and I’d be afraid he would hurt

me or my mother].” S.M. further testified, “I figured nobody would end up believing me.

And if I told my mom she would have ended up asking him about it, he would have

denied it, and she wouldn’t believe me.” Upon further questioning, S.M. explained how

she coped.




22.
              Q: What was going through your head as all of this was happening

       [the Count 3 and 4 rapes]?

              A: I tried to block everything that was going on out of my head.

              Q: How did you manage that?

              A: I ended up just staring off to the side.

              Q: Did you find something to look at?

              A: I ended up looking at my mother’s jewelry box.

       {¶ 60} The record includes evidence from which the jury can reach its own

determination as to S.M.’s ability to resist or consent being substantially impaired

because of a mental or physical condition of which appellant knew or should have

known. Using the test of sufficiency, we find any rational trier of fact could have found

evidence supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c)

for Count 3 beyond a reasonable doubt.

       {¶ 61} With respect to Count 5, the record evidence shows J.M. testified that

“Uncle Mike” also gave her a birds-and-bees talk when she was either 13 or 14 years old

and showed her a video using his computer with “people doing anal sex.” J.M. was

uncomfortable having appellant give her that talk rather than her mother. Then soon after

J.M. turned 14 years old, she was at appellant’s house to spend the night, which was a

frequent, necessary occurrence due to transportation arrangements for her to get to

school. That night she was not yet asleep, and appellant came to her room. He told her

to come with him to another bedroom where they were alone. He removed his boxer



23.
shorts and guided her mouth to his penis for fellatio. She felt she had no choice but to

obey appellant “because he was family.” Many witnesses described J.M. as “low

functioning.” J.M. testified she was scared and tried to cope with the situation by

“shutting down.”

              Q: What was going through your head when that happened?

              A: At that time my brain was starting to shut down as I was getting

       scared and creeped out. * * * I was really scared, and I really didn’t know

       what to do.

       {¶ 62} The record includes evidence from which the jury can reach its own

determination as to J.M.’s ability to resist or consent being substantially impaired because

of a mental or physical condition of which appellant knew or should have known. Using

the test of sufficiency, we find any rational trier of fact could have found evidence

supporting the four essential elements of the violation of R.C. 2907.02(A)(1)(c) for Count

5 beyond a reasonable doubt.

       {¶ 63} Appellant’s fifth assignment of error is not well-taken.

       {¶ 64} On consideration whereof, we find that substantial justice has been done in

this matter and the judgment of the trial court to be lawful. The judgment of the Wood

County Court of Common Pleas is affirmed. Appellant is ordered to pay costs of this

appeal pursuant to App.R. 24.

                                                                         Judgment affirmed.




24.
                                                                             WD-16-053
                                                                             State of v. Horn




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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