[Cite as State v. Davis, 2018-Ohio-841.]



                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105256



                                           STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                           HAROLD V. DAVIS

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-588653-A

        BEFORE: Laster Mays, J., Blackmon, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                  March 8, 2018
                                                 -i-
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Marcus A. Henry
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




ANITA LASTER MAYS, J.:

       {¶1}    Appellant Harold V. Davis appeals his jury trial conviction for the rape of K.G.

pursuant to R.C. 2907.02(A)(1)(c), a first-degree felony. We affirm the conviction.

       I.      Background and Facts

       {¶2} Davis was indicted on May 11, 2016, for crimes allegedly committed on August

27, 2000. The state filed three criminal counts: (1) rape, in violation of R.C. 2907.02(A)(1)(c),

a felony of the first degree; (2) rape, in violation of R.C. 2907.02(A)(2), a felony of the first

degree; and, (3) kidnapping, in violation of R.C. 2905.01(A)(4), a felony of the first degree.

       A.      Preindictment Delay and Continuance

       {¶3}    Prior to trial, Davis filed a motion for preindictment delay. Davis argued that

witnesses could not testify based on recollection and that a key witness, K.G.’s mother, passed
away the year prior to the indictment. Davis offered that K.G. told her mother that she had not

been raped and the mother could testify to that fact as an admission against interest if the

indictment had not been delayed. The mother was present and familiar with the circumstances

surrounding the incident.

          {¶4}     Davis also requested a brief continuance on the ground that Davis had just

informed his counsel that A.S., a friend of K.G.’s mother who lived next door to K.G. at the time

and currently resided in Detroit, was present the night of the incident and was willing to testify.

Davis’s mother provided the information regarding A.S. Counsel spoke with A.S. the morning

of trial. The trial court denied both motions.

          B.       The Trial1

          {¶5} K.G. testified that on August 27, 2000, she was 20 years of age.2 Davis and K.G.

lived on the same Cleveland street and talked several times on the telephone. K.G. resided with

several family members including her mother. Davis called her between midnight and 2:00 a.m.

and invited K.G. to come to his house. She agreed to sit in Davis’s car in front of her house.

          {¶6} K.G. sat in the passenger’s seat and Davis in the driver’s seat. They were talking

and were not drinking alcohol. K.G. fell asleep in the car, and awakened to find Davis on top of

her, between her legs, and her pants3 were down. “There’s other stuff that’s a blur, that I can’t

remember, stuff that was said.” She told him to stop and Davis “kept saying he was sorry. I

don’t know how it happened.” (Tr. 315.) K.G. told Davis that she was going to the restroom

and exited the vehicle. She entered her house and told her mother what happened. Her mother


1
   The 2000 police reports, incident report, K.G.’s refusal to prosecute form, and the 2014-2016 investigator’s
report(s) are not part of the record because they were not introduced into evidence.

2
    Davis was 21 years of age at the time.

3
    It was subsequently established by the hospital records that K.G. was wearing a miniskirt, not pants.
called the police and allegedly told K.G. to return to Davis’s car until the police arrived, which

was approximately 10 to 15 minutes later.           Davis continued to apologize and ask for

forgiveness, and told K.G. that he would admit to his actions if K.G. had called the police.

       {¶7} According to K.G., she was present when Davis admitted to the police that he had

sexually assaulted her and Davis was arrested. K.G. was examined at Huron Road Hospital and

DNA specimens were collected. At the police station, K.G. signed a statement declining to

prosecute Davis for sexual battery.

       {¶8} K.G. testified to receiving a telephone call from an unidentified male who she

thought was Davis’s attorney and that Davis was also on the line. She was offered cash by the

male but stated the cash was not the reason that she decided not to testify.

       I also didn’t want to prosecute him because I didn’t want to go through the
       process, the headache, the embarrassment. I didn’t want to have to sit up here in
       this courtroom, and I didn’t — also didn’t want to, since he admitted to it and was
       honest about it, I didn’t want to mess up his life.

(Tr. 323.) She rejected the money and never received, or requested, payment for her decision.

       K.G.:           I never even thought I was going to get it. I never called him and
                       asked him about it. We never even did none of that because we
                       didn’t care about it —

       Counsel:        Who is we?

       K.G.: Me or my mother.

(Tr. 344.) After K.G. declined to move forward with prosecution, there was no further activity

regarding the incident until K.G. was approached by investigator Ken Riolo in 2014.

       {¶9} Dale W. Pignolet, M.D. (“Dr. Pignolet”) testified via Skype as a witness for the

state. Dr. Pignolet shared his education and experience, and the general protocol for emergency

room examinations of rape victims.      Dr. Pignolet examined K.G. at the hospital and testified

based on the medical records, admitting that he had no recollection of the case.
       {¶10}     The medical records documented K.G.’s arrival at 6:25 a.m. K.G.’s

       statement according to the hospital records is that she fell asleep sitting in a car:

              She then woke and he was on top of me. He kept going until he got his
       thing in me. I opened the door and I got out. Then she denied any physical
       trauma or any trauma. States there was no ejaculation. States there was vaginal
       penetration only but no oral penetration, or no oral intercourse.

(Tr. 250.)

       {¶11} No vaginal trauma or injuries were observed; however, Dr. Pignolet stated that

the absence of physical trauma is not determinative of whether a sexual assault occurred. K.G.’s

clothing was also collected, including a t-shirt, denim miniskirt and bra, the items that K.G. told

the doctor she was wearing at the time of the incident. A rape kit was administered and swabs

collected.

       {¶12}    Michelle Matozel (“Matozel”), a forensic scientist in the DNA section of the

Ohio Bureau of Criminal Investigation (“BCI”), generated the DNA report based on the rape kit

test administered to K.G. The rape kit was submitted to BCI on December 4, 2013. On July 13,

2016, two months after the indictment, investigator Ken Riolo (“Riolo”) submitted a DNA

sample from Davis. The swabs taken during the rape kit examination were tested. A single

swab from the vaginal area contained a DNA profile consistent with Davis.

       {¶13} Sergeant Eugene Young (“Sgt. Young”) testified that he was a patrol officer in

2000. He and his partner responded to a radio dispatch for a sexual assault. Sgt. Young talked

with K.G. at the scene who explained she fell asleep in Davis’s car and awakened to find him on

top of her having sexual intercourse. K.G. told him to stop, Davis jumped up and they both left

the vehicle.

       {¶14}     Davis emerged from his residence several houses away from K.G.’s. Davis

talked with Sgt. Young voluntarily, saying he wanted to explain his side of the story that was
similar to K.G.’s statement. Reportedly, Davis was Mirandized4 but not in writing. Davis stated

he and K.G. were sitting in the car talking and drinking. K.G. fell asleep and Davis said that he

“wanted to try his luck.” Davis “lifted her mini-skirt, moved her panties to the side, and

penetrated her.” (Tr. 366.)

         {¶15}      During cross-examination, Sgt. Young stated:

         Counsel:          And did Mr. Davis indicate whether K.G. was asleep when he did
                           this?

         Sgt. Young:        Yes, he did say she was asleep. She — I don’t recall if she was
                           asleep or not, but she was moaning for a couple seconds and she
                           opened up her eyes and she said no, and that’s when he jumped up.

(Emphasis added.) (Tr. 366.) Davis was arrested and his vehicle towed. Additional evidence

was collected and forwarded to the sex crimes unit.

         {¶16} Sgt. Young testified that K.G. did not tell police that she entered her home and

returned to the vehicle, or that Davis restrained her. Davis would have been permitted to make a

call after his arrest but calls were monitored. Sgt. Young was not aware that K.G. subsequently

signed a refusal to prosecute form.

         {¶17}      Investigator Riolo served 30 years as an FBI investigator and 2 years with the

Cuyahoga County prosecutor’s office as an investigator as of the trial date. Riolo works with

the Cuyahoga County Sexual Assault Kit task force comprised of Cleveland police detectives,

BCI agents, and members of the Cuyahoga County sheriff’s office. The task force checks for

rape kit adjudications and pursues those that have not moved forward. Most of the cases involve

unidentified assailants known as “John Doe” cases.




4
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
       {¶18} Riolo was assigned K.G.’s case and approached K.G. with another investigator in

August 2014. He asked her several questions about the incident and “might have read some

excerpts [from the case file] to see if she recalled some things.” (Tr. 392.)

       {¶19} Riolo continued to investigate and obtained case records including police reports

and photographs. He secured copies of the Huron Road Hospital records with K.G.’s written

authorization and a subpoena. Riolo did not obtain written statements from Davis or K.G., but

did review statements from August 2000 and K.G.’s refusal to prosecute form. Riolo confirmed

that everything that he examined relating to the current indictment was available for prosecution

activity in 2000.

       {¶20}    The state rested and the trial court denied Davis’s Crim.R. 29 motion for

judgment of acquittal. The jury found Davis guilty of rape pursuant to R.C. 2907.02(A)(1)(c).

Davis was sentenced to four years of incarceration, with mandatory postrelease control of five

years and registration under Megan’s law as a sexually oriented offender. Davis appeals.

II.    Law and Analysis

       {¶21} Davis proffers four assigned errors. The first two assigned errors challenge the

sufficiency and weight of the evidence supporting Davis’s conviction, the third assigned error

asserts that the term “substantial impairment” in R.C. 2907.02(A)(1)(c) is void for vagueness,

and finally, Davis argues that the trial court erred in failing to dismiss the indictment for

preindictment delay. We elect to address the assigned errors out of order, beginning with

preindictment delay.
        A.       Preindictment Delay

        {¶22} Davis argues that he was prejudiced by the 16-year delay in moving forward with

this case. The witness who could arguably provide exculpatory evidence, the mother of K.G.,

passed away in 2015. Davis asserts the mother would have testified that the encounter was

consensual. “We review a trial court’s decision on a motion to dismiss for preindictment delay

de novo as to the legal issues, but afford great deference to the court’s findings of fact.” State v.

Crymes, 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, ¶ 12, citing State v. Dixon,

2015-Ohio-3144, 40 N.E.3d 601, ¶ 19 (8th Dist.).

        {¶23} Even where the state issues an indictment prior to expiration of the statute of

limitations, an unjustifiable delay in issuing the indictment may raise Due Process Clause

concerns. Crymes at ¶ 13, citing State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69

N.E.3d 688, ¶ 11 (“Jones II”),5 citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct.

2044, 52 L.Ed.2d 752 (1977). Due process rights may be violated where the “delay causes

actual prejudice to a defendant’s right to a fair trial.” Id.

        {¶24} The rape indictment in Jones II was handed down one day prior to the expiration

of the 20-year statute of limitations. Jones II at ¶ 7. Jones asserted that he was prejudiced by

the preindictment delay because his mother, who was at the home at the time of the alleged

incident, had passed away. Id. at ¶ 8.

        {¶25} The Jones II court clarified the burden-shifting analysis for preindictment delays.

“Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce

evidence of a justifiable reason for the delay.” Jones II at ¶ 13, citing State v. Whiting, 84 Ohio



5
   Jones II reversed and remanded this court’s en banc decision in State v. Jones, 2015-Ohio-2853, 35 N.E.3d 606
(8th Dist.) (“Jones I”).
St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127, ¶ 99.

       {¶26} Jones II rejected the “state’s suggestion that any claim of actual prejudice based on

the death of a potential witness is too speculative to succeed unless the defendant can establish

precisely what the witness would testify to and that the testimony would be directly exculpatory.”

 Id. at ¶ 27. The court further warned that the “determination of actual prejudice involves “‘a

delicate judgment’” and a “case-by-case consideration of the particular circumstances.” Id. at ¶

20.

       {¶27} “Actual prejudice” may be found to exist where “missing evidence or unavailable

testimony, identified by the defendant and relevant to the defense, would minimize or eliminate

the impact of the state’s evidence and bolster the defense.” Id. at ¶ 28, citing State v. Luck, 15

Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984) (balancing the loss of evidence caused by the

delay against the evidence available at the time of indictment).

       {¶28} The Jones II court declined to determine whether defense counsel’s proffer of

“what exculpatory testimony [the witness] might have offered,” was sufficient to demonstrate

actual prejudice. Id., citing Adams at ¶ 103. Instead, the court remanded the case for this

court’s application of the proper standard. Jones II at ¶ 30.

       {¶29}    On remand, we determined that Jones did not demonstrate actual prejudice

because the deceased witness, Jones’s mother, was not the only witness to the incident. State v.

Jones, 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176, ¶ 8 (“Jones III”). The victim alleged

that Jones’s brother was also present. Though the brother had not been located, Jones did not

demonstrate that the brother would not be available at the time of trial. Id. at ¶ 8. Thus, the
decedent’s testimony conceivably “would have been cumulative to other evidence available at

the time of the indictment.” Id.

       {¶30} In the current case, there was no question that the act occurred. The only issue is

whether K.G. was asleep at the time that penetration took place, therefore, rendering K.G. unable

to consent. In other words, was the act consensual. The trial court below, citing Jones II,

determined:

       [E]ven if the statement of the victim’s deceased mother were not considered
       hearsay, it does not rise to the level of actual prejudice. We just have an allegation
       of prejudice. We have not established actual harm of prejudice to Harold Davis.

       Further, these issues can be flushed out on cross-examination of the victim, whom

       I’m assuming will testify here in this trial.

(Tr. 14-15.) We reiterate that Jones II rejected the argument that a defendant would have to

establish precisely what the witness’s testimony would be to support actual prejudice, urging a

case-by-case analysis. Id. at ¶ 20, 27.

       {¶31} According to counsel, Davis asserts that K.G.’s mother told K.G. on the night of

the encounter, while the police were on site investigating, “[you] need to stop lying, you didn’t

get raped, you need to go down there and tell them you didn’t get raped.” (Tr. 6.) It is also

offered that the mother could also have testified to: (1) what transpired when K.G. entered the

house, and subsequently returned to Davis’s car, and (2) whether K.G. refused to prosecute

because the act was consensual. “I [K.G.] didn’t want to prosecute because [of] a lot of different

reasons. Me and my mother had spoke.” (Tr. 322.) (Emphasis added.) Testimony that is

unavailable and would eliminate or minimize “the impact of the state’s evidence and bolster the

defense” is indicative of “actual prejudice.” Id. at ¶ 28.
       {¶32} There is also the factor of fading memories of the trial witnesses, who testified that

they relied on the written records because they had no recollection of what transpired in 2000.

In fact, K.G. exhibited memory issues such as whether penetration occurred:

       Prosecutor:     Do you recall whether he penetrated you?

       K.G.:              I don’t recall.

       Prosecutor:     Would you have recalled back then?

       K.G.:              Yeah.

(Tr. 314.)

       {¶33}     There were a number of inconsistencies in K.G.’s testimony, such as:            (1)

Davis’s removal of her pants though she was wearing a denim mini-skirt; (2) whether she was in

the car when police arrived and how she heard Davis’s conversation with police; and (3) whether

she was convicted of felony forgery in 2007.

       {¶34} The burden shifting analysis in Jones II requires balancing the lost evidence

arising from the delay versus the evidence available to the state at the time of the indictment. Id.

at ¶ 28, citing Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984).               The state’s

evidence that existed at the time of the alleged crime is the same evidence introduced at trial,

except for the variations in recollection, the rape kit tested in December 2013, and the DNA

sample secured from Davis two months after the indictment providing DNA support for an act

already admitted. The only changes in the past 16 years are faded memories and the death of

K.G.’s mother.
         {¶35} Investigator Riolo testified that he did not see any written statements by Davis or

K.G. in the August 2000 records6 that he reviewed, though he did see the refusal to prosecute

form.

         Counsel:         You said you believe you did — you believe he [Davis] had a
                          written statement?

         Riolo: I believed it, yes. I believed that there may have been statements taken,
                        because there was quite an investigation at the time at 8/27.
                        Sometimes we don’t get all those forms, so we have to go over to
                        the Cleveland Police and look at the old — you know, old
                        documents in the archives and stuff.

         Counsel:          So you just thought that; you didn’t actually see a written
                           statement?

         Riolo: No, I never did see one.

         Counsel:         So if you had said that to him, that would have been incorrect?

         Riolo: Yes.

         *        *        *

         Counsel:         Okay. I want to make sure that I’m clear. What you gathered in
                          your reports were the pictures, the police report that was taken in
                          2000, the medical records, the statements that were given in 2000
                          or alleged to have been given in 2000, correct?

         Riolo: Correct.

(Tr. 404, 406.) Riolo confirmed that, other than the follow-up conversation with K.G. in 2014,

which K.G. testified was in 2016, all of the evidence that he reviewed was available in 2000.

There is no reference to an attempt to interview K.G.’s mother as part of that investigation.




6
   It is unclear whether the statements were not reviewed because they could not be located because they are not part
of the record.
        {¶36} Finally, the state argues that Davis did not suffer actual prejudice because Davis’s

mother had recently identified another potential witness, A.S., a resident of Detroit, but Davis

failed to produce A.S. at trial. A.S. lived next door to K.G.’s family in August 2000.

        {¶37} The morning of the trial, Davis informed his counsel that his mother recently

recalled that A.S. was a neighbor of K.G.’s in August 2000. A.S. talked with Davis’s counsel by

telephone and said she would be willing to testify at Davis’s trial. Davis requested a “brief

continuance to allow [A.S.] to come and corroborate the defendant’s argument” that there was no

rape.

        {¶38}    We cannot say that the trial court abused its discretion in denying the last-minute

request. How a trial court manages its docket is wholly within the court’s discretion, and a

reviewing court will not seek to overturn a trial court’s decision unless there has been an abuse of

discretion. 6750 BMS, L.L.C., 2016-Ohio-1385, 62 N.E.3d 928, ¶ 18 (8th Dist.), citing State ex

rel. v. Cos. V. Marshall Cty. Aud., 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998).

        {¶39} We also consider that the witnesses’ testimony about what she heard K.G.’s

mother say constitutes inadmissible hearsay:

        The hearsay rule is a rule of evidence. Basically, the rule renders inadmissible
        out-of-court declarations which are offered at trial to prove the truth of the matter
        asserted therein. Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955).
        The premise of the rule is that such evidence is unreliable because the declarant is
        not present at trial, not under oath, and not subject to cross-examination.
        McCormick, Evidence § 245 (2d Ed. 1972).

State v. Kilbane, 8th Dist. Cuyahoga Nos. 38428, 38383, and 38433, 1979 Ohio App. LEXIS

10550, *22 (July 3, 1979). There also appears to be no applicable exception under Evid.R. 803.

 There were only two witnesses to the alleged rape: K.G. and Davis. Also, the state denied

knowing anything about the witness, and Davis admitted that K.G. was sleeping according to the
typewritten police report that was not introduced into evidence at the trial that Sgt. Young relied

on for his testimony.

       {¶40}    Under the cited facts and circumstances of this case, we do not find that Davis

has demonstrated actual prejudice. The assigned error is deemed to be without merit.

       B.      Sufficiency and Manifest Weight of the Evidence.

               1.       Standard of Review

       {¶41} The Ohio Supreme Court has explained that, “[t]he legal concepts of sufficiency

of the evidence and weight of the evidence are both quantitatively and qualitatively different.”

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Sufficiency of the

evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict

as a matter of law, but weight of the evidence addresses the evidence’s effect of inducing belief.”

 State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins

at 386-387. An appellate court, “may determine that a judgment of a trial court is sustained by

sufficient evidence, that court may nevertheless conclude that the judgment is against the weight

of the evidence.” Thompkins at 387.

       {¶42} The question of “whether the evidence is legally sufficient to sustain a verdict is a

question of law.” State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955); Thompkins at

386. It is “an inquiry about due process, * * * the resolution of which does not allow the court

to weigh the evidence.”     State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶43} In a sufficiency inquiry, an appellate court does not assess whether the state’s

evidence is to be believed but whether, if believed, the evidence admitted at trial supported the
conviction.   State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing

Thompkins at 387.

       “[T]he relevant inquiry is whether, after viewing the evidence in a light most
       favorable to the prosecution, any rational trier of fact could have found the
       essential elements of the crime proven beyond a reasonable doubt.” State v.
       Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus,
       following Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
       (1979).

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77. The weight to be

given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v.

Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.

       {¶44} After consideration of whether the evidence is sufficient as a matter of law, a

manifest weight inquiry looks at whether the evidence was substantial enough for a jury to

reasonably conclude that all of the elements of the alleged crime have been proved beyond a

reasonable doubt. We sit “as a ‘thirteenth juror.’” Thompkins at 387, quoting Tibbs v. Florida,

457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). We review the entire record, consider the

credibility of the witnesses, weigh the evidence and all reasonable inferences, and determine

whether 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. Martin at 175; Leonard at 68.

       {¶45} 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 jury 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.” (Emphasis added.) Black’s [Law Dictionary] 1594
       [6 Ed.1990].

Thompkins at id.
               2.     Discussion

       {¶46}    Davis was convicted of R.C. 2907.02(A)(1)(c), which provides:

       (1) No person shall engage in sexual conduct with another who is not the spouse
       of the offender or who is the spouse of the offender but is living separate and apart
       from 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 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.

       {¶47}    There is no question here that intercourse occurred. The question is solely

whether K.G. was asleep at the time and, as a result, unable to consent. Both parties stated K.G.

was asleep at the moment of penetration.

       {¶48} The case law is clear that “‘sleep constitutes a mental or physical condition that

substantially impairs a person from resisting or consenting to sexual conduct.’” State v. McCall,

8th Dist. Cuyahoga No. 104479, 2017-Ohio-296, ¶ 6, citing State v. Jones, 8th Dist. Cuyahoga

No. 98151, 2012-Ohio-5737, ¶ 30, citing State v. Clark, 8th Dist. Cuyahoga No. 90148,

2008-Ohio-3358, ¶ 21.

       {¶49} We therefore find that the evidence “is legally sufficient to support a verdict as a

matter of law.” Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing

Thompkins, 78 Ohio St.3d at 386, 387, 678 N.E.2d 541. We further find that “the state has

appropriately carried its burden of persuasion.”      Thompkins, at 390. The first and second

assigned errors are without merit.

       C.      R.C. 2907.02(A)(1)(c) and Substantial Impairment.
       {¶50} R.C. 2907.02(A)(1)(c) provides that a person is not to engage in sexual conduct

with another who “is substantially impaired because of a mental or physical condition,” and

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

consent is substantially impaired” due to the mental or physical condition. Davis argues that the

statute authorizes and encourages discriminatory and arbitrary enforcement, and fails to meet the

fair warning requirement of United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d

432 (1997), because a person would not have notice of the nature of the behavior prohibited.

       {¶51}     A statute that is properly enacted is presumptively constitutional.     State v.

Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991). The challenger bears the burden of

proving unconstitutionality beyond a reasonable doubt. Id.

       {¶52} Vague statutes abridge due process considerations of notice and fairness:

       Three “values” rationales are advanced to support the “void for vagueness”
       doctrine. * * * These values are first, to provide fair warning to the ordinary
       citizen so behavior may comport with the dictates of the statute; second, to
       preclude arbitrary, capricious and generally discriminatory enforcement by
       officials given too much authority and too few constraints; and third, to ensure
       that fundamental constitutionally protected freedoms are not unreasonably
       impinged or inhibited. State v. Tanner, 14 Ohio St.3d 1, 3, 472 N.E.2d 689
       (1984).

State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 33.

       {¶53}    As stated in our response to the first and second assigned errors, “sleep

constitutes a mental or physical condition that substantially impairs a person from resisting or

consenting to sexual conduct. When a person is asleep, he or she is not in a mental condition to

resist or consent to the sexual conduct.”

State v. Clark, 8th Dist. Cuyahoga No. 90148, 2008-Ohio-3358, ¶ 21, citing State v. Graves, 8th

Dist. Cuyahoga No. 88845, 2007-Ohio-5430 and State v. Younger, 8th Dist. Cuyahoga No.
86235, 2006-Ohio-296. An ordinary person would “know or have reasonable cause to believe”

that a person who is sleeping is unable to resist or consent. See R.C. 2907.02(A)(1)(c).

       {¶54} The Sixth District Court of Appeals responded to a void-for-vagueness challenge

to R.C. 2907.02(A)(1)(c). We agree with the court’s determination that the statute satisfies the

three-prong test to overcome vagueness. The statute “contains ascertainable standards of guilt,

provides sufficient notice of the conduct proscribed and contains sufficient guidelines to avoid

arbitrary or discriminatory enforcement.”          In re J.J., 6th Dist. Erie No. E-11-018,

2012-Ohio-2550, ¶ 17.

       {¶55} The third assigned error is without merit.

III.   Conclusion

       {¶56} The trial court’s findings are affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.

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

Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, P.J., and
LARRY A. JONES, SR., J., CONCUR
