[Cite as State v. Jones, 2012-Ohio-5737.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 98151




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   DARNELL JONES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-554197

        BEFORE:            Rocco, J., Sweeney, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 6, 2012

                                               -i-
ATTORNEY FOR APPELLANT

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

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Kevin R. Filiatraut
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶1} Defendant-appellant Darnell Jones appeals from his convictions

after the trial court found him guilty of two counts of rape and two counts of

sexual battery.

      {¶2} Jones presents five assignments of error. In his first, second, and

third assignments of error, Jones argues that his convictions are not

supported by either sufficient evidence or the manifest weight of the evidence;

he contends the evidence established neither that the victim was

“substantially impaired” nor that one of the crimes was committed with force.

  He further argues that the indictment upon which his convictions were
based was defective.    Finally, he argues that his trial counsel rendered

ineffective assistance in advising him both to try his case to the bench and to

refrain from testifying on his own behalf, and also for failing to object to

certain testimony.

      {¶3} Upon a review of the record, this court cannot agree with Jones’s

arguments. Consequently, his assignments of error are overruled, and his

convictions are affirmed.

      {¶4} The incident that led to Jones’s convictions occurred on December

17, 2010.     The state’s witnesses provided the following account of the

circumstances surrounding the incident.

      { ¶ 5} Jones and the female victim both attended Cleveland State

University.   They had been acquainted for approximately two years, had

friends in common, and a month or two previously, had been intimate on one

occasion.   According to the victim, after that occasion, she was no longer

interested in having a sexual relationship with Jones.

      { ¶ 6} One of the friends Jones and the victim had in common was

Patrick Cooper. Jones lived in the same apartment building as Cooper. The

victim, who originally was from Buffalo, New York, considered Cooper to be

the closest person that she knew in Cleveland.
      {¶7} Cooper instituted a weekly tradition of having a Thursday evening

party at the campus tavern. The victim often attended. On the night of the

incident, the victim spent “three to four hours” at the party with Jones,

Cooper, and Cooper’s girlfriend, Danielle Ames. Jones purchased “at least

four” vodka drinks for the victim, and Cooper also “bought [her] a couple

drinks.”   Ames noticed the victim “had several different shots of liquor.”

The victim became intoxicated.

      { ¶ 8} During the time the victim was at the party, she sent text

messages to her friend Shanelle Moon, who could not attend.           In these

messages, the victim described her inebriated condition and expressed some

giddiness. Upon observing these messages, Moon became concerned enough

to call Cooper, seeking reassurance that he would look after the victim.

      {¶9} When it came time to leave, the victim “wasn’t walking straight”

and was “a little confused.” She got into Jones’s car with Cooper and Ames,

and the four friends proceeded to Cooper’s apartment, which was located

“only five minutes away.”        They continued drinking and also “smoked

marijuana” to the point that the victim “could barely move.”

      {¶10} After about an hour, Cooper and Ames indicated that they wanted

to be alone.   They aided the victim into her shoes and coat, and Jones

assisted her to his apartment.
      {¶11} As soon as the victim entered Jones’s apartment, she “collapsed

onto the couch,” where she intended to sleep.       However, she quickly felt

nauseated, so she staggered into the bathroom, where she knelt in front of the

toilet for a period of time. Jones followed the victim and began “rubbing

[her] back and asking [her] if [she] was okay.” The victim could only shake

her head negatively.

      {¶12} Eventually, Jones “helped [her] off the floor” and “put [her] in his

bed.” The victim felt her pants being removed before she passed out. The

“next thing that [she] remember[ed], * * * [she] felt [Jones’s] penis thrusting

in [her] vagina.” The victim opened her eyes to find Jones’s face over hers.

She pushed at his face and told him to “get off” her before she passed out

again.

      {¶13} The victim awoke the following morning in Jones’s bed.          She

found her pants with her underwear still inside at the foot of the bed and saw

Jones in the living room.    When Jones noticed the victim was awake, he

returned to the bedroom. The victim asked him, “what happened?” Jones

responded that the victim was drunk and that they “did the hanky panky.”

Jones tried to repeat the experience “by put[ting] his hands on [her] thigh, on

[her] stomach,” but the victim refused; she got up, went into the bathroom,

and dressed.   When she emerged, Jones offered to drive her home.           The

victim told him she would walk, and then left.
      {¶14} The victim proceeded to Cooper’s apartment.           She started to

explain to Cooper what had occurred before she actually realized the

situation; at that point, she “broke down crying.” Ames could not hear what

the victim was confiding, but Ames had never seen her “upset” before. Ames

described the victim as “crying like hysterically,” which was completely out of

character.

      {¶15} The victim spent most of the day in Cooper’s apartment. Cooper

asked Moon to meet them when he escorted the victim to her dormitory room.

 The victim told Moon about her experience, once again becoming extremely

emotional, but expressed some hesitation about how to handle the situation.

The following day, the victim went to her home in New York, where she

sought out her oldest friend.     The victim could not describe the incident

without crying.    She allowed herself to be persuaded to seek medical

attention.

      {¶16} Upon returning to Cleveland, the victim sought psychological

counseling. A few months later, she reported the incident to the Cleveland

police.

      {¶17} Jones was indicted in this case on four counts. Count 1 charged

him with rape in violation of R.C. 2907.02(A)(2), Count 2 charged him with

rape in violation of R.C. 2907.02(A)(1)(c), and Counts 3 and 4 charged him

with sexual battery in violation of R.C. 2907.03(A)(2) and (3).
      {¶18} Jones retained counsel to represent him and later executed a jury

waiver. At trial, the state presented the testimony of the victim and three of

her female friends, along with the testimony of two police officers who

investigated the case.       After the trial court denied Jones’s motion for

acquittal of the charges, Jones elected to present no evidence.

      {¶19} The trial court ultimately found Jones guilty on all counts. At

sentencing, the state conceded that the crimes were allied offenses pursuant

to R.C. 2941.25(A) and elected that the other three counts merge into Count

2.   The trial court imposed a sentence on Jones of three years for his

convictions.

      {¶20} Jones presents the following assignments of error.

               I.    Defendant was denied due process of law when

      the court found defendant guilty of the substantial

      impairment counts of the indictment.

               II.   Defendant was denied due process of law when

      he was convicted of forcible rape.

            III. Defendant would be denied due process of law
      if he is not granted a new trial when the verdict is against
      the manifest weight of the evidence.


      IV. Defendant was denied due process of law when he was
convicted of offenses for which no culpable mental state was alleged
in the indictment.
            V.   Defendant was denied effective assistance of counsel.

      {¶21} Because they present interrelated issues, Jones’s first, second, and third

assignments of error will be addressed together. In them, he argues that his convictions

on Counts 1, 2, and 3 for violating R.C. 2907.02(A)(1)(c), R.C. 2907.02(A)(2), and R.C.

2907.03(A)(2) were based upon insufficient evidence. He further argues that none of his

convictions was supported by the manifest weight of the evidence.

      { ¶ 22} When reviewing sufficiency of the evidence, an appellate court must

determine “[w]hether, 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, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

      {¶23} If the evidence is sufficient to support the conviction as a matter of law, the

appellate court considers the claim that the judgment was against the manifest weight of

the evidence. This test is much broader.

            The court, reviewing the entire record, weighs the evidence and all
      reasonable inferences, considers the credibility of witnesses and determines
      whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its
      way and created such a manifest miscarriage of justice that the conviction
      must be reversed and a new trial ordered. The discretionary power to grant
      a new trial should be exercised only in the exceptional case in which the
      evidence weighs heavily against the conviction. (Citations omitted). State
      v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

      {¶24} Moreover, in reviewing the manifest weight of the evidence, this court must

remain mindful that issues of credibility and weight are matters primarily for the trier of
fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one

of the syllabus.

      {¶25} In Counts 1, 2, and 3, Jones was convicted of two counts of rape and one count

of sexual battery. Pursuant to R.C. 2907.02(A)(2), “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.” Pursuant to R.C. 2907.02(A)(1)(c),

             No person shall engage in sexual conduct with another * * * when * * *
      [t]he 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 * * * .

      {¶26} Similarly, pursuant to R.C. 2907.03(A)(2), “No person shall engage in sexual

conduct with another, * * * when * * * [t]he offender knows that the other person’s ability

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

impaired.”

             {¶27} Jones argues that, as to Count 1, there was no evidence of force

      and, as to Counts 2 and 3, there was no evidence of substantial impairment.

      “Force” is defined in R.C. 2901.01(A)(1) as “any violence, compulsion, or

      constraint physically exerted by any means upon or against a person or

      thing.”   This court has consistently held that in situations in which “the

      victim is sleeping and thus not aware of the defendant’s intentions, only

      minimal force is necessary to facilitate the act of rape.” State v. Fortson,
8th Dist. No. 92337, 2010-Ohio-2337, ¶ 74, citing State v. Clark, 8th Dist.

No. 90148, 2008-Ohio-3358, ¶ 17.

      {¶28} In Clark, the defendant was found guilty of rape in violation of

R.C. 2907.02(A)(2) when, after moving the victim’s nightgown and underwear

while she was sleeping, he inserted his finger into the victim’s vagina. Id. at

¶ 6; see also State v. Graves, 8th Dist. No. 88845, 2007-Ohio-5430.         The

victim in this case testified that she felt Jones removing her pants, passed

out, woke to find Jones on top of her, penetrating her vagina with his penis,

and tried to push him away before she passed out again.

      {¶29} Based on the victim’s testimony, a rational trier of fact could have

inferred that Jones used force to facilitate sexual conduct with the

unconscious victim. This evidence is sufficient to prove rape in violation of

R.C. 2907.02(A)(2).

      {¶30} Likewise, “[t]his court has held that sleep constitutes a mental or

physical condition that substantially impairs a person from resisting or

consenting to sexual conduct.” Clark, ¶ 21, citing Graves.      When a person

is unconscious, she is not in a mental condition to resist or consent to the

sexual conduct.

      {¶31} In State v. Noernberg, 8th Dist. No. 97126, 2012-Ohio-2062, ¶

8-12, this court further noted:
                 [Noernberg] argues that the state failed to offer sufficient
           evidence either that the victim was substantially impaired or that
           he knew, or had reasonable cause to believe, that she was
           substantially impaired.

                  In State v. Zeh, 31 Ohio St.3d 99, 103, 31 Ohio B. 263, 509
           N.E.2d 414 (1987), the Ohio Supreme Court held that because the
           phrase “substantially impaired” is not defined in the Ohio
           Criminal Code, it “must be given the meaning generally
           understood in common usage.” The Zeh court also held that it is
           sufficient for the state to establish substantial impairment by
           offering evidence at trial establishing a reduction or decrease in
           the victim’s ability to act or think. Id. at 103-104. “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.” State v. Brady, 8th
           Dist. No. 87854, 2007-Ohio-1453, ¶ 78.

                 In In re King, 8th Dist. Nos. 79830 and 79755,
           2002-Ohio-2313, this court held that a person who engages in
           sexual conduct with another when that person’s ability to resist
           or consent is substantially impaired by reason of voluntary
           intoxication is culpable for rape. Id. at ¶ 22, citing State v.
           Martin, 12th Dist. No. CA99-09-026, 2000 Ohio App. LEXIS 3649,
           2000 WL 1145465 (Aug. 12, 2000). But we made clear that not
           “all persons who engage in sexual conduct with a voluntarily
           intoxicated person are culpable under R.C. 2907.02(A)(1).” Id.
           A person’s conduct becomes criminal under this section only when
           “the individual knows or has reasonable cause to believe that the
           victim’s ability to resist or consent is substantially impaired
           because of voluntary intoxication.” Id.

           Furthermore, R.C. 2901.22(B) defines “knowledge” as follows: “A person
     acts knowingly, regardless of his purpose, when he is aware that his conduct
     will probably cause a certain result or will probably be of a certain nature. A
     person has knowledge of circumstances when he is aware that such
     circumstances probably exist.”

     {¶32} In this case, the victim testified that by the time she left Cooper’s apartment,

she was so inebriated that she could “barely move.” She further testified that while she
was inside Jones’s apartment, she “passed out” more than once. Ames testified that,

upon leaving Cooper’s apartment, the victim required help to put on her shoes and coat

and needed Jones’s assistance to walk.

      {¶33} Both the victim and Ames testified that the victim’s state of drunkenness was

obvious and that Jones was in the victim’s vicinity the entire evening. Based upon their

testimony, sufficient evidence was presented to prove both that the victim was

“substantially impaired” and that Jones was aware of her condition, thus providing

sufficient evidence to establish Jones’s guilt on Counts 2 and 3 for violating R.C.

2907.02(A)(1)(c) and R.C. 2907.03(A)(2).       State v.    Felton, 8th Dist. No.      92295,

2010-Ohio-4105.

      {¶34} Jones’s convictions also find support in the manifest weight of the evidence.

The victim’s testimony was both consistent and corroborated by the testimony of the other

three women, and the record reflects that the trial court based its ultimate decision on

this fact.

             { ¶ 35} Moreover, in analyzing the evidence, the court described the

      victim’s affect, i.e., during her testimony, the victim expended effort in

      maintaining her composure.         According to the trial court, the victim

      appeared to “toss her head back and swallow” and rapidly tapped her foot “to

      alleviate [the] stress” of reliving the incident. This court cannot find on this

      record that the trial court lost its way in finding Jones guilty of the offenses.
           {¶36} Accordingly, Jones’s first, second, and third assignments of error

     are overruled.

           {¶37} In his fourth assignment of error, Jones argues that he was

     denied due process of law because the indictment failed to specify the

     required mens rea for the crimes of rape and sexual battery. Specifically, he

     argues that each count required a stated mens rea for engaging in “sexual

     conduct.” This court, however, rejected the identical argument Jones raises

     in State v. Jackson, 8th Dist.    No.   92531, 2010-Ohio-3080, ¶ 36-38, as

     follows:

                First, * * * [Jackson] never raised this argument below * *
           *.   We accordingly review this argument under a plain error
           analysis.    See State v. Colon, 119 Ohio St. 3d 204,
           2008-Ohio-3749, 893 N.E.2d 169, ¶ 7.

           * * * Regarding the rape count, this court has recently addressed the
     exact argument raised by Jackson and rejected it. See State v. Rodriquez,
     8th Dist. No. 92231, 2009-Ohio-6101. In Rodriquez, we recognized that the
     requisite mens rea for rape is “purposely” and that the use of the statutory
     language in the indictment adequately apprises the defendant of the culpable
     mental state. Id. at ¶ 28. See, also, State v. Ralston, 9th Dist. No.
     08CA009384, 2008-Ohio-6347; State v. Solether, 6th Dist. No. WD-07-053,
     2008-Ohio-4738; Starcher v. Eberlin, 7th Dist. No. 08BE19, 2008-Ohio-5042
     (recognizing that the indictments for rape, which mirrored the language of
     R.C. 2907.02(A), were not defective; the mens rea included in the statutory
     language, namely, “purposely,” applies to the conduct and the result).

Accord State v. Notestine, 6th Dist. No. OT-08-038, 2009-Ohio-3220, ¶ 53 (“a particular

mental state is not required for engaging in the acts that constitute ‘sexual conduct’
pursuant to R.C. 2907.02(A)(1)”), citing State v. O’Dell, 2d Dist. No. 22691,

2009-Ohio-1040.

      {¶38} Accordingly, Jones’s indictment was not defective for failing to specify a mens

rea for engaging in “sexual conduct” as to the two counts of rape under R.C. 2907.02(A)(2)

and R.C. 2907.02(A)(1)(c).

      {¶39} Jones additionally argues that the indictment was defective as to the two

counts of sexual battery under R.C. 2907.03(A)(2) and (3) because they, too, contained no

mens rea as to engaging in “sexual conduct.” This court previously has recognized that

no mens rea is necessary as to this element of the offense; it is a strict liability element.

State v. Fortson, 8th Dist. No. 92337, 2010-Ohio-2337, ¶ 13, citing State v. Singleton,

11th Dist. No. 2002-L-077, 2004-Ohio-1517, ¶ 56.

            {¶40} R.C. 2907.03(A)(2) and (3) do not require the state to prove the

      offender’s mental state for engaging in sexual conduct. Rather, they require

      the offender to engage in the sexual conduct “knowing” that the victim’s

      mental or physical incapacity prevents her from controlling or being aware of

      the activity. Counts 3 and 4 of Jones’s indictment mirrored the statutory

      language of R.C. 2907.03(A). An indictment is not defective as long as it

      “parrots” the statute. Fortson, ¶ 14.

            { ¶ 41} Based upon this analysis, this court finds no error, plain or

      otherwise. Jones’s fourth assignment of error is overruled.
           {¶42} In his fifth assignment of error, Jones complains that his retained

     counsel provided such ineffective assistance that it deprived him of his

     constitutional rights.   The relevant standard of review of such a claim

     recently was set forth in State v.     Moore, 11th Dist.     No. 2011-G-3027,

     2012-Ohio-3885, ¶ 69-70, as follows:

                  In order to prevail on an ineffective assistance of counsel
           claim, appellant must demonstrate that trial counsel’s
           performance fell below an objective standard of reasonable
           representation, and there is a reasonable probability that, but for
           counsel’s error, the result of the proceeding would have been
           different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
           (1989), paragraph two of the syllabus, adopting the test set forth
           in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
           Ed. 2d 674 (1984). If a claim can be disposed of by showing a
           lack of sufficient prejudice, there is no need to consider the first
           prong, i.e., whether trial counsel’s performance was deficient.
           Id. at 142, citing Strickland at 695-696. There is a general
           presumption that trial counsel’s conduct is within the broad
           range of professional assistance. Id. at 142-143.

           Furthermore, decisions on strategy and trial tactics are generally
     granted a wide latitude of professional judgment, and it is not the duty of a
     reviewing court to analyze the trial counsel’s legal tactics and maneuvers.
     State v. Gau, 11th Dist. No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing
     Strickland at 689. Debatable trial tactics and strategies do not constitute
     ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85,
     1995-Ohio-171, 656 N.E.2d 643 (1995).

     { ¶ 43} Jones argues that his trial counsel fell below an objective standard of

reasonable representation in the following particulars: advising Jones to waive a jury,

advising Jones not to testify in his own behalf, failing to object to the reading of the

victim’s written statements, failing to object to testimony by other witnesses regarding
what the victim told them, and failing to object to opinion testimony. These arguments

are baseless.

      {¶44} Matters pertaining to discussions Jones had with his trial attorney are not

properly raised in a direct appeal because they are not part of the record. See, e.g., State

v. Rowe, 3d Dist. No. 13-10-14, 2011-Ohio-5739, ¶ 20-27; State v. Vess, 6th Dist. No.

OT-10-038, 2011-Ohio-3118, ¶ 21.

      {¶45} The remaining issues Jones raises with respect to his trial counsel’s actions

constitute matters of trial strategy.       Jones’s trial counsel elicited testimony that

permitted examination about the victim’s prior statements. Counsel likely determined

that cross-examining the victim with her prior statements would impeach her direct

testimony, and that the witnesses’ opinion testimony constituted admissible evidence.

Evid.R. 611(B), 613(B), and 701; State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780

N.E.2d 186, ¶ 151 (courts owe deference to trial counsel’s strategic determinations, even if

they are questionable in hindsight).

            {¶46} As the Ohio Supreme Court explained in State v. Johnson, 112

      Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 139-140, such tactical

      decisions do not give rise to a claim for ineffective assistance:

                   “[F]ailure to object to error, alone, is not enough to sustain
            a claim of ineffective assistance of counsel. To prevail on such a
            claim, a defendant must first show that there was a substantial
            violation of any of defense counsel’s essential duties to his client
            and, second, that he was materially prejudiced by counsel’s
            ineffectiveness.” State v. Holloway (1988), 38 Ohio St.3d 239,
            244, 527 N.E.2d 831. * * *
            “[E]xperienced trial counsel learn that objections to each
      potentially objectionable event could actually act to their party’s
      detriment. * * * In light of this, any single failure to object
      usually cannot be said to have been error unless the evidence
      sought is so prejudicial * * * that failure to object essentially
      defaults the case to the state. Otherwise, defense counsel must
      so consistently fail to use objections, despite numerous and clear
      reasons for doing so, that counsel’s failure cannot reasonably
      have been said to have been part of a trial strategy or tactical
      choice.” Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 754, 774.
      Accord State v. Campbell (1994), 69 Ohio St.3d 38, 52-53,
      1994-Ohio-492, 630 N.E.2d 339.

      {¶47} The record reveals no such failure by Jones’s trial counsel. Jones

has not demonstrated that his trial counsel’s performance fell below objective

 standards of reasonable representation or that he was prejudiced as a result.

      {¶48} Therefore, Jones’s fifth assignment of error is overruled.

      {¶49} Judgment affirmed.

          It is ordered that appellee recover from appellant costs herein

taxed.

      The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentences.

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

Rule 27 of the Rules of Appellate Procedure.
___________________________________
KENNETH A. ROCCO, JUDGE

JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
