[Cite as State v. Swisher, 2017-Ohio-2921.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-16-35

        v.

JASON G. SWISHER,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                             Trial Court No. 16CR0044

                                      Judgment Affirmed

                              Date of Decision: May 22, 2017




APPEARANCES:

        W. Alex Smith for Appellant

        Angela M. Boes for Appellee
Case No. 13-16-35



SHAW, J.

           {¶1} Defendant-appellant, Jason Swisher (“Swisher), brings this appeal from

the November 9, 2016, judgment of the Seneca County Common Pleas Court

sentencing Swisher to a 10-year prison term after Swisher was convicted in a jury

trial of Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree. On

appeal, Swisher argues that the trial court erred in denying his request that a jury

instruction be given on the lesser-included offense of Sexual Battery, and that his

conviction was against the manifest weight of the evidence.

                               Relevant Facts and Procedural History

           {¶2} On March 2, 2016, Swisher was indicted for Rape in violation of R.C.

2907.02(A)(2), a felony of the first degree. Swisher pled not guilty to the charge

and his case proceeded to a jury trial, which was held November 7-8, 2016.

           {¶3} At trial, the State presented the testimony of nine witnesses including

the alleged victim, S.B., who was 14 years old when the sexual assault occurred.

S.B. testified that Swisher was a cousin through marriage and that she had known

him since she was approximately 6 years old.1

           {¶4} S.B. testified that in the late evening hours of December 3, 2015,

Swisher came to S.B.’s mother’s residence while S.B.’s mother was at work. S.B.




1
    Testimony indicated that Swisher was 38 at the time of the alleged sexual assault.

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testified that Swisher was not expected, but he was invited inside. At the time, S.B.

testified and that her older sister Kimmie was present at the residence, as was S.B.’s

brother and S.B.’s little sister. S.B. testified that they were watching a movie

together in the living room.

       {¶5} S.B. testified that Swisher stayed as they watched television and that he

eventually fell asleep on the couch. S.B. testified that she fell asleep on a separate

love seat and that her sister Kimmie apparently turned off the television and went

to bed in her room. S.B. testified that she awoke at one point when Swisher got up

and stepped on the dog, but she quickly fell back to sleep. Later, S.B. testified that

she was awakened when Swisher placed one hand on her leg and one hand down

her shirt under her bra.

       {¶6} S.B. testified that Swisher grabbed both of her hands in one of his and

held them above her head and covered her mouth with his other hand. S.B. testified

that she tried to move her hands but Swisher squeezed them tighter. S.B. testified

that Swisher rubbed her chest and put his mouth on her chest, leaving a hickey.

       {¶7} S.B. testified that Swisher then removed her shorts with the hand that

had been covering her mouth, but she did not scream because she was too scared to

make any noise. S.B. testified that Swisher pulled her shorts to her ankles and then

put his penis inside her vagina. S.B. testified that it hurt and burned and that she

was crying during the act.


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       {¶8} S.B. testified that she tried to physically resist, to move her hands and

legs, but Swisher put his legs on top of hers. S.B. testified specifically that she did

not consent to the act. S.B. testified that she was too afraid to say anything, that she

was scared and shocked that it was happening. She testified that she was not sure

whether Swisher ejaculated.

       {¶9} S.B. testified that shortly after the incident she went to the room she

shared with her sister Kimmie, then upstairs to her other sibling’s bedroom to try

and sleep in her little sister’s bed. S.B. testified that she told Kimmie what happened

to her the next day after school and that Kimmie encouraged her to tell S.B.’s aunt.

Afterward, they told S.B.’s mother, and then S.B.’s father was informed, who called

the police.

       {¶10} S.B. was then interviewed by the police and taken to the hospital where

a Sexual Assault Nurse Examiner (“SANE”) examined her.                   During S.B.’s

examination, the SANE noted suction injuries on S.B.’s breasts and a bruise on

S.B.’s knee that S.B. claimed was from Swisher grabbing her; however, the SANE

did not report any injuries to S.B.’s hands or wrists, which S.B. testified at trial were

bruised as a result of the incident. The SANE indicated that S.B. did not sustain any

genital injuries, but the SANE testified that was not uncommon. The SANE testified

that 80-90 percent of sexual assault cases do not show “genital injuries.” (Trial Tr.

at 299). The SANE ultimately testified that S.B.’s injuries were consistent with her


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story. Finally, as part of the SANE’s examination of S.B., a swab from S.B.’s vagina

was taken and it was later compared to Swisher’s DNA. A forensic scientist testified

at trial that the swab contained DNA from S.B. and DNA that was consistent with

Swisher’s.2

        {¶11} Swisher cross-examined the majority of the State’s witnesses but he

did not present any evidence. Swisher implied through his cross-examination that

the sexual act was consensual rather than forced; however, S.B. explicitly denied

this claim. In an attempt to discredit S.B., Swisher’s counsel also pointed to minor

inconsistencies in S.B.’s story from her initial disclosure through trial.

        {¶12} Prior to the case being submitted to the jury, Swisher requested that

the trial court instruct the jury on lesser included offenses in addition the Rape

instructions. The trial court denied Swisher’s request after briefly citing cases on

the record.

        {¶13} Ultimately the jury found Swisher guilty of Rape as indicted. The case

proceeded immediately to sentencing and Swisher was sentenced to serve 10 years

in prison.      A judgment entry memorializing Swisher’s conviction was filed

November 9, 2016. It is from this judgment that Swisher appeals, asserting the

following assignments of error for our review.



2
 The State presented the testimony of a number of officers involved in the investigation and involved in
handling the evidence. The State also presented the testimony of two forensic scientists and the SANE.
Reports from the SANE and the forensic scientists were introduced into evidence.

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                             Assignment of Error No. 1
         Appellant’s Sixth and Fourteenth Amendment right[s] to due
         process were violated when he was denied jury instructions on
         lesser included offenses.

                           Assignment of Error No. 2
         Appellant’s conviction was against the manifest weight of the
         evidence.

                                       First Assignment of Error

         {¶14} In his first assignment of error, Swisher argues that the trial court erred

by “not allowing jury instructions for lesser included offenses[,] * * * [s]pecifically,

[S]exual [B]attery.” (Appt.’s Br. at 5). Swisher claims that the evidence presented

in this case warranted an instruction on Sexual Battery.3

         {¶15} At the outset, we note that “[a] lesser-included-offense instruction is

not warranted every time ‘some evidence’ is offered to support the lesser offense.”

State v. Bolden, 11th Dist. Lake No. 2014-L-121, 2016-Ohio-4727, ¶ 51, quoting

State v. Shane, 63 Ohio St.3d 630, 632 (1992). Rather, there must be “sufficient

evidence” to allow the jury to acquit the defendant on the indicted offense and to

find him guilty on the lesser included offense. Id., quoting Shane at 632–633; see

also R.C. 2945.74; Crim.R. 31(C).



3
  At the trial court level, in addition to arguing that the trial court should have given an instruction on Sexual
Battery, Swisher argued that the trial court should have instructed the jury on the lesser-included offense of
Unlawful Sexual Conduct with a Minor. Swisher only renews his argument on appeal with respect to the
instruction on Sexual Battery. He makes no argument whatsoever regarding an instruction for Unlawful
Sexual Conduct with a Minor, thus we will not address it.

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       {¶16} In this case, the State charged Swisher with Rape pursuant to R.C.

2907.02(A)(2), which reads, “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.” Swisher requested a jury instruction on the lesser-included

offense of Sexual Battery pursuant to R.C. 2907.03(A)(1), which reads, “No person

shall engage in sexual conduct with another, not the spouse of the offender, when *

* * [t]he offender knowingly coerces the other person to submit by any means that

would prevent resistance by a person of ordinary resolution.”

       {¶17} Based on the statutory elements of the cited sections, Rape requires

the use of “force or threat of force” to compel the victim’s submission, while Sexual

Battery only requires coercion. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-

6404, ¶ 268. “Because ‘force or threat of force always constitutes coercion,’ an

offender cannot commit [R]ape under R.C. 2907.02(A)(2) without also committing

[S]exual [B]attery under R.C. 2907.03(A)(1).” Id. quoting State v. Wilkins, 64 Ohio

St.2d 382, 386 (1980). “However, the State need not prove force or the threat of

force in order to prove [S]exual [B]attery.” Johnson at ¶ 268. Therefore, according

to the Supreme Court of Ohio, Sexual Battery as defined by R.C. 2907.03(A)(1),

constitutes a lesser included offense of Rape as defined by R.C. 2907.02(A)(2). Id.

       {¶18} Nevertheless, as noted previously, an instruction regarding a lesser

included offense must be given “ ‘only where the evidence presented at trial would


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reasonably support both an acquittal on the crime charged and a conviction upon the

lesser included offense.’ ” Johnson, supra, at ¶ 269, quoting State v. Thomas, 40

Ohio St.3d 213, 216 (1998). Thus, the failure to instruct on the offense of Sexual

Battery constitutes error only if the jury could reasonably have found that Swisher

compelled S.B. to submit by coercion, but not by force or the threat of force.

Johnson at ¶ 269, citing State v. Keenan, 81 Ohio St.3d 133, 139–140, 1998-Ohio-

459.

         {¶19} Here, there was no “coercion” alleged other than force. S.B. did not

claim, and the State did not argue, that S.B. was coerced into the sexual act through

means other than force; rather it was claimed that Swisher held her hands together

over her head and forcibly raped her. Based on the evidence presented there is no

reasonable probability that a jury could find Swisher not guilty of Rape by force or

threat of force but find him guilty of Sexual Battery based on coercion where the

only coercion alleged was force.4 Thus we cannot find that the trial court erred by

declining to instruct the jury on the lesser-included offense of Sexual Battery.

Therefore, Swisher’s first assignment of error is overruled.

                                    Second Assignment of Error

         {¶20} In Swisher’s second assignment of error, he argues that his conviction

was against the manifest weight of the evidence.


4
  We do not dispute that there could be situations where coercion is present but force is not, but that is not
the circumstance before us in this case.

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       {¶21} Despite listing “manifest weight” as an assignment of error in his brief,

Swisher makes absolutely no argument in support of this assignment of error. He

does not cite to the record, does not cite any supporting legal authority, and he does

not even bother to cite the boilerplate standard of review regarding manifest weight

of the evidence. For these reasons alone we could overrule Swisher’s second

assignment of error. App.R. 12(A)(2). Nevertheless, in the interest of justice, we

will address his assignment of error, though we will not manufacture his argument

for him.

       {¶22} In reviewing whether a defendant’s conviction was against the

manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and

examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387

(1997). In doing so, this Court must review the entire record, weigh the evidence

and all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “clearly lost

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

be reversed and a new trial ordered.” Thompkins at 387. Furthermore, “[t]o reverse

a judgment of a trial court on the weight of the evidence, when the judgment results

from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins at paragraph 4 of the

syllabus; Ohio Constitution, Article IV, Section (B)(3).


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       {¶23} In this case Swisher was convicted of Rape in violation of R.C.

2907.02(A)(2), which reads, “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.”

       {¶24} In this case, at the trial court level Swisher contended through his

cross-examination of various witnesses, especially the victim, that S.B. consented

to having sex with him. Contrary to Swisher’s contention, S.B. clearly testified at

trial that she did not consent to sexual intercourse with Swisher and she detailed

how he held her down, bruised her, and prevented her from getting up. S.B. testified

that she was afraid Swisher would hurt her worse, so she did not scream. Although

Swisher argued that S.B. was not credible, the jury was in a far better position to

judge S.B.’s credibility and we cannot find that the factfinder clearly lost its way in

this instance or that there was a manifest miscarriage of justice. Thus Swisher’s

second assignment of error is overruled.

                                     Conclusion

       {¶25} For the foregoing reasons Swisher’s assignments of error are overruled

and the judgment of the Seneca County Common Pleas Court is affirmed.

                                                                 Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/jlr


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