[Cite as State v. Schwamberger, 2014-Ohio-4733.]




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


State of Ohio                                          Court of Appeals No. L-13-1236

        Appellee                                       Trial Court No. CR0201301793

v.

Nick Schwamberger                                      DECISION AND JUDGMENT

        Appellant                                      Decided: October 24, 2014


                                                   *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                                   *****


        OSOWIK, J.

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

Pleas that found appellant guilty of one count each of rape, sexual battery and gross

sexual imposition following a jury trial. For the following reasons, we affirm.
       {¶ 2} On January 14, 2012, appellant, the victim, and their friends Chris Mildon

and Jordan Garcia gathered at appellant’s house to watch a football game. Thereafter,

Garcia drove the group to another friend’s house for a party. When the victim became

physically ill after drinking heavily, appellant, Mildon and Garcia decided to take her

back to appellant’s house. When they arrived at the house, appellant and Garcia helped

the victim inside, up the stairs and into bed. They kept an eye on the victim for a few

minutes and then went to the basement to play beer pong. A short while later, appellant

went upstairs. Garcia then went upstairs to check on the victim and saw appellant asleep

on the bed with her. When Garcia checked on her a third time, he saw appellant on top of

her and believed they were having intercourse. Garcia and Mildon told appellant to leave

her alone and appellant then got up and went downstairs. The following morning, Garcia

told the victim what he believed he had witnessed the night before in the bedroom. The

victim then called her mother and went to the hospital for a sexual assault examination.

       {¶ 3} On May 20, 2013, appellant was indicted on one count of rape in violation

of R.C. 2907.02(A)(1)(c) and (B), two counts of sexual battery in violation of R.C.

2907.03(A)(2) and (B), and one count of gross sexual imposition in violation of R.C.

2907.05(A)(5) and (C). The case came to trial before a jury on September 23, 2013, and

on September 25, 2013, the jury found appellant guilty of one count of rape, one count of

sexual battery and one count of gross sexual imposition. For the charge of rape, appellant

was sentenced to term of three years imprisonment. For the charge of sexual battery, he

was sentenced to a term of 36 months and for the charge of gross sexual imposition to a



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term of 12 months. The trial court ordered that each sentence be served concurrent with

the others for an aggregate term of three years. Appellant filed a timely notice of appeal.

       {¶ 4} Appellant now sets forth the following two assignments of error:

              First Assignment of Error

              Appellant received ineffective assistance of counsel in violation of

       his rights under the Sixth and Fourteenth Amendments to the United States

       Constitution and Article I, § 10 of the Constitution of the State of Ohio.

              Second Assignment of Error

              The Jury’s verdict was against the manifest weight of the evidence

       introduced by the State at trial.

       {¶ 5} In support of his first assignment of error, appellant asserts that trial counsel

was ineffective for several reasons. First, appellant asserts that counsel’s theory of the

case – that the victim consented to sexual conduct with appellant and that appellant did

not know or have reasonable cause to believe that she was substantially impaired -- was

“tenuous at best.” Appellant states that such a defense was ineffective because evidence

was presented at trial that the victim was so impaired after partying with appellant and

their other friends that she became physically ill. Appellant argues that such a theory was

offensive to the sensibilities of the jurors and failed to take into account the inability of an

intoxicated individual to offer voluntary consent.

       {¶ 6} Appellant also asserts that counsel was ineffective by failing to properly

impeach Garcia with a prior statement to police. When trial counsel asked Garcia,



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“When you told the officer it was between 1:30 and 2 that [the victim] threw up, you

didn’t really know the time?” Garcia responded, “I didn’t tell the officer anything.”

When trial counsel attempted to question Garcia further about his statement to police, the

state objected on grounds that Garcia had neither written nor adopted the report which

contained the statement. The trial court ruled that the document could be used only if it

was Garcia’s recorded or handwritten statement or if Garcia had reviewed the document,

stated it was accurate and signed it. None of those conditions applied. Significantly,

appellant does not assert that the trial court made an erroneous ruling. Rather, he appears

to assert that there would have been a proper method for counsel to use to impeach the

witness and that counsel’s manner of referring to the police report was ineffective.

       {¶ 7} It is well-established that claims of ineffective assistance of counsel are

reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed. 2d 674 (1984). In order to prove ineffective assistance of counsel,

appellant must demonstrate both that counsel’s representation fell below an objective

standard of reasonableness and that, but for counsel’s perceived errors, the outcome

would have been different. Id. at 687.

       {¶ 8} Applying Strickland to the record herein and the examples cited by

appellant, we are unable to find that counsel’s representation fell below a standard of

reasonableness or that, but for counsel’s perceived errors, appellant would not have been

convicted. Based on the foregoing, we find that appellant’s first assignment of error is

not well-taken.



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       {¶ 9} In his second assignment of error, appellant asserts that the jury’s verdict

was against the manifest weight of the evidence. In support, appellant argues that the

jury failed to take into account appellant’s testimony that the victim was not substantially

impaired and participated in, if not initiated, the sexual conduct.

       {¶ 10} “A manifest weight challenge questions whether the state has met its

burden of persuasion.” State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-Ohio-1394,

¶ 17, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In

making this determination, the court of appeals sits as a “thirteenth juror” and, after

“reviewing the entire record, weights the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” Id. at 386.

       {¶ 11} R.C. 2907.02, rape, states in pertinent part:

              (A)(1) No person shall engage in sexual conduct with another who is

       not the spouse of the offender * * * when any of the following applies:

              ***

              (c) The other person’s ability to resist or consent is substantially

       impaired because of a mental or physical condition * * * and the offender

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

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

       condition * * *.



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       {¶ 12} R.C. 2907.03, sexual battery, states in pertinent part:

              (A) No person shall engage in sexual conduct with another, not the

       spouse of the offender, when any of the following apply:

              (2) The offender knows that the other person’s ability to appraise the

       nature of or control of the other person’s own conduct is substantially

       impaired.

       {¶ 13} R.C. 2907.05, gross sexual imposition, states in pertinent part:

              (A) No person shall have sexual contact with another, not the

       spouse of the offender; cause another, not the spouse of the offender, to

       have sexual contact with the offender * * * when any of the following

       applies:

              ***

              (5) The ability of the other person to resist or consent * * * is

       substantially impaired because of a mental or physical condition * * * and

       the offender knows or has reasonable cause to believe that the ability to

       resist or consent of the other person * * * is substantially impaired because

       of a mental or physical condition * * *.

       {¶ 14} The victim testified as to the events of the night of January 14, 2012, when

she, appellant, and their friends Chris Mildon and Jordan Garcia went to a party for their

friend Kelsey Bekier. The victim testified that she has known appellant since both were

in the 5th grade and that appellant was “like a brother” to her. They never dated one



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another and she was not interested in a sexual relationship with him because “[h]e was

my brother.” She testified that on the night in question she drank “quite a lot.” The

victim recalled dancing and having a good time before she started to feel ill. She recalled

vomiting on the front porch of her friend’s house and has no memories after that until she

awoke the following morning. She did not recall leaving the party, what time she left,

talking to Mildon, Garcia or appellant, or who drove her back to appellant’s house. The

victim did not recall engaging in sexual conduct with appellant or suggesting to appellant

that they do so.

       {¶ 15} The state also presented the testimony of the Sexual Assault Nurse

Examiner at Toledo Hospital who examined the victim the following morning and several

forensic scientists with the Ohio Bureau of Criminal Investigation who analyzed various

specimens from the rape kit prepared at the hospital. Testimony revealed that a partial

DNA profile from a vaginal swab from the rape kit was consistent with the Y

chromosome DNA profile from appellant. A partial DNA profile from the victim’s

breast swab was consistent with appellant’s DNA profile.

       {¶ 16} Detective Kevin Bigenho testified that he investigated the case and

interviewed appellant. A recording of the interview, in which appellant admitted

penetrating the victim’s vagina, was played for the jury.

       {¶ 17} Jordan Garcia testified that when the victim became ill at the party, he,

Mildon and appellant decided to take her back to appellant’s house. Garcia and appellant

helped the victim to the car and put her in the back seat. He further testified that



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appellant was not “nearly as drunk” as the victim, who “could not form a sentence or say

a word” and was “pretty much blacked out.” Chris Mildon testified that he became

concerned about the victim when she began vomiting. Mildon, Garcia and appellant

decided the victim should leave and helped her to the car. When they arrived at

appellant’s house, they helped her to bed in a room on the second floor and appellant

placed a trash can by the bed in case she became ill again. Mildon testified that the

victim was unresponsive at that time, “pretty much blacked out.” He stated that they

tried talking to her but she “couldn’t say anything.” Mildon, Garcia and appellant then

went downstairs. After playing “drinking games” for a while, appellant left the

basement. Mildon and Garcia went upstairs to check on the victim twice and saw her and

appellant sleeping. When they went up a third time they saw appellant “on top of [the

victim]” and told appellant to stop. The victim did not appear to be awake. When

appellant moved away from the victim, Garcia and Mildon told him to go downstairs

with them. Garcia returned upstairs and found the victim unable to talk.

       {¶ 18} Appellant’s mother, Sue Bekier, testified as to her son’s friendship with the

victim since both were in 5th grade. Bekier did not recall hearing any “commotion” on

the night of January 14, 2012.

       {¶ 19} Appellant testified that he, Garcia, Mildon and the victim each bought a 12-

pack of beer to take to the party. He estimated that he drank seven beers and three or four

Jello shots at the party, which caused him to be “tipsy.” Appellant did not notice the

victim’s alcohol consumption until she vomited. At that point, he, Garcia and Mildon



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decided to take her back to appellant’s house to sleep. Appellant testified that the victim

“was not blacked out at all” when they arrived at his house and said she asked him to turn

on the T.V. in the bedroom. After a few minutes, he went upstairs to check on the victim

and saw that she was still watching a show. Appellant further testified that the victim

then asked him to stay with her until she fell asleep so he lay down on the bed beside her.

       {¶ 20} Our review of the record reflects that the jury heard the testimony of the

victim as well as Garcia and Mildon, who witnessed the victim’s behavior and physical

condition at the party as well as afterward when they drove her to appellant’s house and

put her to bed. Both Garcia and Mildon testified that the victim appeared highly

intoxicated. In contrast, appellant testified that the victim willingly participated in sexual

conduct with him and that he did not observe how much she drank at the party.

Appellant’s testimony must be weighed against that of Garcia and Mildon, both of whom

said that the victim did not speak or move and was “passed out” on the bed when they left

her, as she was each time they checked on her.

       {¶ 21} When conflicting evidence is presented at trial, a conviction is not against

the manifest weight of the evidence simply because the fact finder believed the

prosecution testimony. State v. Conner, 192 Ohio App.3d 166, 2011-Ohio-146, 948

N.E.2d 497 (6th Dist.). The trier of fact is best able “to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-

2202, 865 N.E.2d 1264, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d



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77, 80-81, 461 N.E.2d 1273 (1984). We find no evidence that the fact finder lost its way

or created a manifest miscarriage of justice in this case despite conflicting testimony.

Accordingly, appellant’s second assignment of error is found not well-taken.

       {¶ 22} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.

                                                                       Judgment affirmed.




       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
Thomas J. Osowik, J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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