       [Cite as State v. Dorsey, 2012-Ohio-611.]


                                           COURT OF APPEALS
                                         LICKING COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


STATE OF OHIO                                               JUDGES:
                                                            Hon. W. Scott Gwin, P. J.
               Plaintiff-Appellee                           Hon. John W. Wise, J.
                                                            Hon. Patricia A. Delaney, J.
       -vs-
                                                            Case No. 11 CA 39
RICHARD DORSEY

               Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                           Criminal Appeal from the Court of Common
                                                   Pleas, Case No. 06 CR 763


JUDGMENT:                                          Affirmed in Part; Reversed in Part and
                                                   Remanded


DATE OF JUDGMENT ENTRY:                            February 17, 2012



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KENNETH W. OSWALT                                  ROBERT D. ESSEX
PROSECUTING ATTORNEY                               604 East Rich Street
20 South Second Street, Fourth Floor               Columbus, Ohio 43215
Newark, Ohio 43055
Licking County, Case No. 11 CA 39                                                       2

Wise, J.

      {¶1}   Appellant Richard Dorsey appeals from his felony convictions for rape and

gross sexual imposition in the Licking County Court of Common Pleas. Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

      {¶2}   On February 25, 2006, a Pataskala police officer responded to an

allegation of sexual assault reported by Pamela Parker on behalf of her mother, Bonnie

Parker, age seventy-nine at the time. Prior to February 2006, Bonnie had lived

independently; Bertha Dorsey, her daughter, and appellant, Bertha's husband, helped

provide her with needed care and assistance, including delivery of prescription

medicine and meals.

      {¶3}   The report was turned over to Pataskala Detective Andy Waugh for

investigation. After the detective interviewed Bonnie Parker, she was taken to Grant

Hospital in Columbus for a forensic rape examination. In the meantime, detectives

collected evidence from her apartment.

      {¶4}   After additional police investigation, the Licking County grand jury returned

an indictment in December 2006 charging appellant with three identically-worded

counts of rape and three identically-worded counts of gross sexual imposition (“GSI”).

Each count identified Bonnie Parker as the alleged victim and averred that the offense

occurred “between the dates of February 2005 through February 22, 2006.” Each count

alleged that each offense was committed by force or threat of force “and/or” while

Bonnie’s ability to consent to, or resist, sexual relations was substantially impaired due

to her mental or physical condition, or advanced age.
Licking County, Case No. 11 CA 39                                                         3


      {¶5}     The case first went to trial on June 14, 2007. Bonnie Parker did not testify

in the jury trial. The parties agreed before trial that she was incompetent to testify.

      {¶6}     At the conclusion of the State's case, the trial court directed an acquittal

on two of the rape counts. The jury returned verdicts of guilty on the remaining counts,

and rendered special findings stating that the State had failed to prove that appellant

compelled his mother-in-law to submit to sexual conduct or sexual contact by force or

threat of force. The court thereafter sentenced appellant to a maximum ten-year prison

term on the rape conviction and concurrent one-year prison terms on the GSI

convictions.

      {¶7}     Appellant thereupon filed a notice of appeal to this Court. He therein

raised a number of issues, including sufficiency of the evidence, manifest weight of the

evidence, and ineffective assistance of trial counsel. However, on May 23, 2008, this

Court affirmed appellant’s convictions and sentence. See State v. Dorsey, Licking

App.No. 2007-CA-091, 2008-Ohio-2515 (“Dorsey I”).

      {¶8}     The Ohio Supreme Court refused to accept appellant’s subsequent

appeal. See State v. Dorsey, 119 Ohio St.3d 1487, 2008-Ohio-5273.

      {¶9}     Appellant thereafter filed a federal habeas corpus action in the United

States District Court for the Southern District of Ohio. The federal court determined that

as a result of a faulty jury instruction, appellant's case should be remanded to the

Licking County Common Pleas Court for a new trial. See Dorsey v. Banks (S.D. Ohio

2010), 749 F.Supp.2d 715

      {¶10} The second jury trial commenced on January 24, 2011, as further

analyzed infra. The State again relied on Bonnie’s forensic interview at the hospital as
Licking County, Case No. 11 CA 39                                                      4


part of its evidence of a specific incident of sexual intercourse between her and the

appellant.

      {¶11} The jury ultimately returned guilty verdicts on the Rape and GSI counts.

Appellant was again sentenced to a total of ten years of incarceration. In addition, over

trial counsel's objection, appellant was labeled a Tier Ill sex offender.

      {¶12} On March 29, 2011, appellant filed a notice of appeal. He herein raises the

following five Assignments of Error:

      {¶13} “I.     THE TRIAL COURT VIOLATED APPELLANT'S RIGHT OF

CONFRONTATION AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE

PROVISIONS OF THE OHIO CONSTITUTION BY IMPROPERLY ADMITTING

HEARSAY STATEMENTS OF THE ALLEGED VICTIM.

      {¶14} “II. THE DOCTRINE OF COLLATERAL ESTOPPEL BARRED THE

ADMISSION OF EVIDENCE OF THE USE OF FORCE WHEN APPELLANT HAD

BEEN PREVIOUSLY BEEN (SIC) ACQUITTED OF THAT CONDUCT. ADMISSION

OF THIS EVIDENCE AND FAILURE TO GIVE A LIMITING INSTRUCTION

CONSTITUTED DOUBLE JEOPARDY AND VIOLATED APPELLANT'S RIGHT TO A

FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED

STATES CONSTITUTION AS WELL (SIC) THE OHIO CONSTITUTION.

      {¶15} “III. THE ADMISSION OF OTHER ACTS EVIDENCE VIOLATED

APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS. IN ADDITION, THE

TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE PROPER
Licking County, Case No. 11 CA 39                                                       5


LIMITATIONS OF OTHER ACTS EVIDENCE THEREBY VIOLATING APPELLANT'S

RIGHT TO A FAIR TRIAL AND DUE PROCESS.

      {¶16} “IV. APPELLANT'S CONVICTIONS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

      {¶17} “V. RETROACTIVE APPLICATION OF THE PROVISIONS OF SENATE

BILL 10 TO APPELLANT VIOLATES THE BAN ON RETROACTIVE LAWS SET

FORTH IN ARTICLE II, SECTION 28 OF THE OHIO CONSTITUTION AS DECIDED

IN STATE V. WILLIAMS, SLIP OPINION NO. 2011-OHIO-3374 AND THE BAN ON EX

POST FACTO LAWS CONTAINED (SIC) THE U.S. CONSTITUTION.”

                                                I.

      {¶18} In his First Assignment of Error, appellant argues the trial court violated

his constitutional right to confrontation by allowing the introduction at trial of out-of-

court statements by the victim.1 We disagree.

      {¶19} “[Q]uestions of the scope and effect of constitutional protections, such as

the Sixth Amendment, are matters of law and therefore reviewed de novo.” State v.

Dunivant, Stark App.No. 2003CA00175, 2005-Ohio-1497, ¶ 7, citing United States v.

Wilmore (C.A.9, 2004), 381 F.3d 868, 871.

      {¶20} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177, the United States Supreme Court held that under the Confrontation

Clause, “testimonial” statements of a witness who does not appear at trial may not be




      1
           Appellant herein has limited his assigned error to issues of right to
confrontation. We therefore need not address the issue of hearsay evidence per se.
Licking County, Case No. 11 CA 39                                                       6


admitted or used against a criminal defendant unless the declarant is unavailable to

testify and the defendant has had a prior opportunity for cross-examination.

      {¶21} About two years after Crawford was decided, the Ohio Supreme Court, in

State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, considered whether an adult rape

victim had made testimonial statements to a nurse practitioner during a medical

examination at a hospital “DOVE” unit specializing in health care for victims of rape.

Regarding statements made to a medical professional, the Court adopted the

objective-witness test from Crawford: “For Confrontation Clause purposes, a

testimonial statement includes one made ‘under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use at

a later trial.’ ” Id. at paragraph one of the syllabus, quoting Crawford at 52. The Court

also held: “In determining whether a statement is testimonial for Confrontation Clause

purposes, courts should focus on the expectation of the declarant at the time of making

the statement; the intent of a questioner is relevant only if it could affect a reasonable

declarant's expectations.” Id. at paragraph two of the syllabus.

      {¶22} Appellant herein further directs us to State v. Arnold, 126 Ohio St.3d 290,

2010-Ohio-2742, wherein the Ohio Supreme Court held: “Statements made to

interviewers at child-advocacy centers that serve primarily a forensic or investigative

purpose are testimonial and are inadmissible pursuant to the Confrontation Clause

when the declarant is unavailable for cross-examination. *** Statements made to

interviewers at child-advocacy centers that are made for medical diagnosis and

treatment are nontestimonial and are admissible without offending the Confrontation

Clause.” Id. at paragraphs one and two of the syllabus.
Licking County, Case No. 11 CA 39                                                         7

       {¶23} The Court in Arnold thus reaffirmed the “primary-purpose test” set forth in

State v. Siler, 116 Ohio St.3d 39, 876 N.E.2d 534, 2007-Ohio-5637, which addressed,

in light of Crawford, a child declarant's statements made in the course of a police

interrogation.2

       {¶24} In the case sub judice, it is undisputed that Bonnie Parker was

incompetent at the time of the first trial and was not able to testify. By the time of the

second trial, she had passed away. Appellant specifically contends that Bonnie’s

statement to Kailey Mahan, a forensic nurse and coordinator of the sexual assault

nurse examiner (“S.A.N.E.”) program, identifying appellant as her assailant is

testimonial in nature under Crawford and is inadmissible pursuant to the Sixth

Amendment. In particular, appellant challenges the following statements made by

Bonnie to Nurse Mahan as part of a sexual assault evaluation, which Mahan repeated

at trial:

       {¶25} "He [Appellant] grabbed me[,] hugged me and grabbed my boob and my

pussy. He got on top of me and put his dick in my pussy and I fought him. He's been

doing it to me for a while. If I’m not at home he does it to Pam." Tr. at 185.

       {¶26} At the point in time Bonnie made these statements to Nurse Mahan, she

had already identified appellant as her assailant to the police. Mahan stated there is

usually a victim's advocate present during the examination. Tr. at 170-172. She also

stated that she completed a Sexual Assault Forensic Exam form. Tr. at 173. As part of



       2
          This may create the question of what test to apply now (“primary purpose”
versus “objective witness”) if the questioner of the declarant is not a law enforcement
officer or agent thereof, but is acting in somewhat of a dual role of medical professional
and investigator. However, we find this distinction, in light of Arnold, does not affect our
decision under the circumstances of the case sub judice.
Licking County, Case No. 11 CA 39                                                         8


the exam, she collected biographical information, medical history and information

related to the assault. Mahan also noted that the consent form Bonnie signed

authorized her to provide any evidence, photographs, records, and other information to

Licking County law enforcement officials or the Prosecutor's Office for criminal

investigation and prosecution. Tr. at 196.

      {¶27} Upon review, we find that Bonnie’s statements, in toto, describing forms of

sexual activity that would cause a medical professional to be concerned about the

possibility of injuries and sexually transmitted diseases, are primarily statements for

medical diagnosis and treatment. See, e.g., Arnold at ¶39. We further find Bonnie's

objective motivation in making these statements under the circumstances was to assist

her medical providers.

      {¶28} Accordingly, upon review, we hold Bonnie Parker's statements (Tr. at 185)

to Nurse Mahan were not testimonial and were properly admitted into evidence by the

trial court pursuant to the rule of law set forth in Crawford.

      {¶29} Appellant's First Assignment of Error is therefore overruled.

                                                 II.

      {¶30} In his Second Assignment of Error appellant argues the trial court’s

allowance of “use of force” evidence violated the doctrine of collateral estoppel and

denied him of his constitutional right to a fair trial and due process of law. We disagree.

      {¶31} The doctrine of collateral estoppel “holds that a fact or a point that was

actually and directly at issue in a previous action, and was passed upon and

determined by a court of competent jurisdiction, may not be drawn into question in a

subsequent action between the same parties or their privies, whether the cause of
Licking County, Case No. 11 CA 39                                                          9

action in the two actions be identical or different.” Pisani v. Pisani, Cuyahoga App.No.

78744, 2001 WL 280076, citing Teachers Assn. v. SERB (1998), 81 Ohio St.3d 392,

395, 692 N.E.2d 140 (additional citations omitted).

      {¶32} The double jeopardy clause of the Fifth Amendment to the U.S.

Constitution incorporates the doctrine of collateral estoppel in criminal proceedings.

See Schiro v. Farley (1994), 510 U.S. 222, 232; Ashe v. Swenson (1970), 397 U.S.

436, 445.

      {¶33} Appellant notes that he was originally charged with Rape in violation of

O.R.C. 2907.02 and Gross Sexual Imposition in violation of O.R.C. 2907.05. The

original verdict forms contained specific findings on the issue of force. In the first trial,

the jury found that appellant did not use force or threat of force to facilitate the rape or

the gross sexual impositions.

      {¶34} Nonetheless, in the present case, the trial court arguably permitted

evidence regarding the use of force in the form of the testimony of S.A.N.E. Nurse

Mahan testimony regarding bruising and tearing and that Bonnie had stated she fought

appellant during the incident in question. Additionally, appellant maintains, evidence of

the other two rape charges for which appellant was formerly acquitted was introduced

when Nurse Mahan testified that Bonnie Parker told her appellant had been "doing it to

me for awhile" (Tr. at 185) as well as appellant's testimony from the previous trial of

other sexual acts with Bonnie. Appellant contends this evidence was violative of the

doctrine of collateral estoppel.

      {¶35} However, we note the original charges against appellant included

allegations of rape under R.C. 2907.02(A)(2) and gross sexual imposition under R.C.
Licking County, Case No. 11 CA 39                                                        10

2907.05(A)(1), which contain the “force or threat of force” element, as well as

allegations of rape under R.C. 2907.02(A)(1)(c) and gross sexual imposition under

R.C. 2907.05(A)(5), which contain the requirement for the State to prove that the

victim’s “ability to resist or consent is substantially impaired because of a mental or

physical condition or because of advanced age.” The rape count utilized “and/or”

language within the original indictment, as did the gross sexual imposition count.

      {¶36} As the State properly observes in its brief, while appellant is correct in

observing that the jury in his initial trial, via completion of a special finding, acquitted

him of the allegations that he purposely compelled Bonnie to submit to the sexual acts

"by force, or threat of force" (R.C. 2907.02(A)(2) and R.C. 2907.05(A)(1)), he was

never acquitted of engaging in sexual conduct/contact with Bonnie while "knowing or

having reasonable cause to believe that her ability to resist or consent was

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

advanced age” (R.C. 2907.02(A)(1)(c) and R.C. 2907.05(A)(5)). As such, appellant’s

claim of a double jeopardy violation based on collateral estoppel cannot stand under

the circumstances of this case, where the jury in his second trial convicted him only

under the “non-force” sections under R.C. 2907.02(A)(1)(c) and R.C. 2907.05(A)(5).

      {¶37} Furthermore, it stands to reason that if a victim is injured in an unwanted

sexual act, it may be because the victim attempted to resist, but was unable to do so

successfully due to substantial impairment based on her condition or older age. In

addition, the presence of injuries upon a medical examination of the victim may be

relevant to the timing of the sexual assault. These are factors which a jury should be

able to consider, even though the rape allegations are not based on “force or threat of
Licking County, Case No. 11 CA 39                                                      11

force.” For example, in State v. Lopez, Cuyahoga App. No. 94312, 2011-Ohio-182, the

Eighth District Court of Appeals, in analyzing a “sufficiency of the evidence” argument

by a defendant who had been acquitted of rape "by force" and only convicted of the

rape of a victim whose ability to resist or consent was "substantially impaired,” factored

into its analysis the presence of injuries to the victim. Id. at ¶ 62. As we recognized in

Dorsey I, “[a] finding that [the defendant] did not use force does not equate with a

finding that the victim had the ability to consent or to resist.” Id. at ¶ 47.

      {¶38} We therefore find no double jeopardy or due process violation in the

proceedings below as urged by appellant. The Second Assignment of Error is

overruled.

                                                 III.

      {¶39} In his Third Assignment of Error, appellant contends the trial court’s

allowance of “other acts” evidence violated his constitutional rights to a fair trial and

due process of law. We disagree.

      {¶40} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d

343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.

Our task is to look at the totality of the circumstances in the case sub judice, and

determine whether the trial court acted unreasonably, arbitrarily or unconscionably in

allowing or excluding the disputed evidence. State v. Oman (Feb. 14, 2000), Stark

App.No.1999CA00027, at 2.

      {¶41} Evid.R. 404(A) provides, with certain exceptions, that evidence of a

person's character is not admissible to prove the person acted in conformity with that
Licking County, Case No. 11 CA 39                                                      12


character. Evid.R. 404(B) sets forth an exception to the general rule against admitting

evidence of a person's other bad acts. Said rule states as follows: “Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show that he acted in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Finally, Evid.R. 403(B) grants a court

discretion to limit questioning if the “probative value is substantially outweighed by

considerations of undue delay, or needless presentation of cumulative evidence.”

      {¶42} The three portions of testimony specifically challenged by appellant are (1)

Nurse Mahan’s recollection that Bonnie told her that appellant “does it to Pam

[appellant’s sister-in-law],” (2) Pamela Parker’s own testimony that appellant had

exposed his genitals to her, and (3) Detective Waugh’s testimony that he found a

semen stain on a chair in the living room.

      {¶43} Certainly, the State may not “parade past the jury a litany of potentially

prejudicial similar acts that have been established or connected to the defendant only

by unsubstantiated innuendo.” Huddleston v. United States (1988), 485 U.S. 681, 689,

108 S.Ct. 1496, 99 L.Ed.2d 771. Likewise, a prior act which is “ * * * too distant in time

or too removed in method or type has no permissible probative value. * * *” State v.

Snowden (1976), 49 Ohio App.2d 7, 10, 359 N.E.2d 87, 91.

      {¶44} However, in the case sub judice, we find the allowance of challenged

testimony was within the trial court’s discretion as proof, at least, of motive, intent,

and/or absence of mistake. Appellant herein never denied having sexual contact and

intercourse with his elderly mother-in-law; he rather advanced the defense theory that
Licking County, Case No. 11 CA 39                                                         13


the acts were consensual. Evidence that he had attempted other sexually-oriented

actions targeting another member of his wife’s family, i.e., his sister-in-law Pamela,

was permissible to enable the jury to consider whether his actions were part of a larger

plan to engage in unwanted sexual advances toward his female in-laws. Furthermore,

the trial court instructed the jury that they could not consider the evidence at issue to

prove the character of appellant. See Tr. at 568. It is well-established that juries are

presumed to follow and obey the limiting instructions given them by the trial court.

State v. DeMastry, 155 Ohio App.3d 110, 127, 799 N.E.2d 229, 2003-Ohio-5588, ¶ 84,

citing State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1.

         {¶45} Finally, regarding the detective’s testimony regarding a semen stain in the

living room, we find such evidence merely went to the general description of the crime

scene and the inference that appellant had at some point ejaculated in that room, and

any error in that regard must be considered harmless under Crim.R. 52(A), which

states that “[a]ny error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.”

         {¶46} Upon review, we are unable to find that the challenged “other acts”

testimony constituted an abuse of discretion or deprived appellant of his right to a fair

trial.

         {¶47} Appellant's Third Assignment of Error is overruled.

                                                IV.

         {¶48} In his Fourth Assignment of Error, appellant contends his convictions were

not supported by sufficient evidence and were against the manifest weight of the

evidence. We disagree.
Licking County, Case No. 11 CA 39                                                      14


      {¶49} In reviewing a claim of insufficient evidence, “[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.

      {¶50} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “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 jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered .” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The

granting of a new trial “should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

      {¶51} In the case sub judice, appellant was convicted under Count I of rape. The

pertinent statute states as follows:

      {¶52} “R.C. 2907.02 (A)(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:

      {¶53} “ * * *

      {¶54} “(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
Licking County, Case No. 11 CA 39                                                       15


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

because of advanced age.”

      {¶55} Appellant was also found guilty of gross sexual imposition, in violation of

R.C. 2907.05, which states:

      {¶56} “(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; or cause two or more other persons to have sexual contact when any

of the following applies:

      {¶57} “ * * *

      {¶58} “(5) The ability of the other person to resist or consent or the ability of one

of the other persons 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 ability to resist or consent of the other person or of

one of the other persons is substantially impaired because of a mental or physical

condition or because of advanced age.”

      {¶59} We note that “ ‘[s]ubstantial impairment’ need not be proven by expert

medical testimony; it may be proven by the testimony of persons who have had some

interaction with the victim and by permitting the trier of fact to obtain its own

assessment of the victim's ability to either appraise or control her conduct.” State v.

Brady, Cuyahoga App.No. 87854, 2007-Ohio-1453, ¶ 78.

      {¶60} The first State's witness was Dr. Ronald Vargo, who was Bonnie Parker's

physician for approximately 15 years from 1993-2007. Dr. Vargo testified that Ms.

Parker had type 2 diabetes, high blood pressure, elevated cholesterol and a history of
Licking County, Case No. 11 CA 39                                                         16


hypertension. He stated that over time, these conditions progressed, and he diagnosed

Bonnie with dementia in 2003. Tr. 130-131. Over the objection of defense counsel, Dr.

Vargo testified that someone in Bonnie’s condition could not consent to sexual activity.

Tr. at 148-151. On cross examination, he stated that the stages of dementia are

sometimes referred to mild, moderate, or severe, but he opined that such classification

was arbitrary. Tr. at 151-153. In the context of a person's ability to consent to sexual

activity, he also testified that it would be difficult for a medical doctor or a layperson to

determine when a person with dementia has crossed over from "changes in anatomy to

really affecting cognition." Tr. at 154. He stated that there are numerous mental status

exams available but that he did not administer any of them. Tr. at 156-158. He stated

that a CT scan had been done in 2006, but it did not indicated any infarcts (blocking off

of blood supply in the brain), or any acute intracranial abnormalities. Tr. 161-162.

      {¶61} The next witness for the State was Kailey Mahan, who, as previously

noted, was working at Grant Hospital as an ER and SANE nurse. She testified that the

purpose of her forensic exam of Bonnie was both medical and legal. In addition to

recounting what Bonnie told Mahan during the exam about appellant’s sexual conduct

and contact with her (see Assignment of Error I, supra), she testified to the results of a

physical examination that revealed a bruise on Bonnie’s thigh, a tear to the center of

the labia majora, and bruising on the vaginal wall. Tr. at 187. She opined that the

injuries were consistent with the history reported to her. Tr. at 191.

      {¶62} Ms. Mahan testified that she never would have let Bonnie sign the sexual

assault examination documents if she felt Bonnie didn't understand what she was

signing. Tr. at 198. She stated that Bonnie appeared to be able to do things for herself
Licking County, Case No. 11 CA 39                                                     17


like brushing her teeth and using mouthwash and was able to provide all of her

demographic information including her full social security number. Tr. at 210.

      {¶63} The next State's witness was BCI forensic scientist Amy Wanken. She

testified that she analyzed a semen stain from a chair and that appellant could not be

ruled out as a contributor. The frequency of the profile reappearing in the general

population would be 1 in 941,600,000,000,000,000 individuals. Tr. at 249-250.

      {¶64} The next State's witness was Pataskala Police Department Detective

Andy Waugh. Detective Waugh was dispatched to the residence in Pataskala and

spoke with Pam Parker and Bonnie Parker. As a result of his interviews, he processed

the scene for evidence. Tr. at 272. As part of his investigation, he swabbed a chair for

the presence of bodily fluids or semen. Tr. at 276. He also interviewed appellant as

part of his investigation.   He noted appellant had denied that there would be any

reason his semen-based DNA would be in Bonnie’s apartment. Tr. at 285.

      {¶65} On cross examination, the detective stated that he had Bonnie sign a

consent-to-search form for her apartment and that he felt confident that she understood

what she was doing and that she had a right to refuse. Tr. at 297. He also recalled that

Bonnie, in conversing with him, relayed information in a "normal and consistent"

fashion. Tr. at 300.

      {¶66} The next State's witness was Pamela Parker, Bonnie’s daughter and

appellant’s sister-in-law. She testified that in 2005, her mother had Alzheimer's and

needed assistance that she couldn't provide. Tr. at 308-309. Pamela described Bonnie

as often acting like “a kid,” even needing help picking out her clothes. Tr. at 308, 334.

Over the objection of appellant, Pamela testified that in February 2006, appellant
Licking County, Case No. 11 CA 39                                                      18


exposed himself to her at her apartment. Tr. at 315-323. Pamela stated that her mother

was not involved in that situation. Tr. at 327.

      {¶67} The next State's witness was Jackie Duffy. In April of 2006, Duffy started

providing home health aide services for Bonnie Parker. Tr. at 346-347. Jackie

summarized that Bonnie essentially needed help “with everything.” Tr. at 349-350. The

final State’s witness was Mary Bailey, who initially called the police and was present for

the interviews and was at the hospital when the examination was performed on Bonnie.

Tr. at 359-361.

      {¶68} The parties stipulated as exhibits parts of a transcript of former home

health aide Carol Moulder's prior testimony and all of the appellant's prior testimony

subject to previously made objections. See Tr. at 379-381; State’s Exhibit 10. In

appellant's prior trial testimony, he had acknowledged knowing that Bonnie had

dementia and said he had engaged in several consensual sexual encounters with her.

He also admitted to masturbating in Bonnie’s apartment. See State’s Exhibit 11.

      {¶69} The defense then called Dr. Christopher Demas. Dr. Demas operated a

family practice in Westerville, Ohio, and had experience in geriatrics as well. Dr.

Demas testified that he reviewed the sexual assault forensic exam form, Dr. Vargo's

records for Bonnie, and the testimony of Nurse Mahan and Dr. Vargo. Tr. 427-428.

      {¶70} As part of his review of records, he reviewed the CT scan report of Bonnie

from April 10, 2006. He testified that after his review of the records, there was not any

objective evidence to support a diagnosis of "multi-infarct dementia." Tr. 431. He

testified that based on his review, Bonnie did have the ability to appraise and control

her conduct. He also described the physical findings of the physical examination as
Licking County, Case No. 11 CA 39                                                      19


non-specific, meaning it could come from many things. Tr. 439-440. He also testified

that according to the death certificate, the causes of death were respiratory failure,

cardiac failure, electrolyte imbalance and finally senile dementia. He stated that

according to the death certificate, the probable onset of senile dementia was

approximately November of 2008. Tr. 442-443.

      {¶71} Nonetheless, despite the defense expert testimony, viewing all of         the

evidence in a light most favorable to the prosecution, we conclude that a reasonable

person could have found beyond a reasonable doubt that the State had met the

elements of the crimes of rape and gross sexual imposition as previously set forth,

particularly the requirement of showing that Bonnie’s ability to resist or consent was

substantially impaired.

      {¶72} In regard to manifest weight of the evidence, we emphasize that “[w]hile

the jury may take note of the inconsistencies and resolve or discount them accordingly

* * * such inconsistencies do not render defendant's conviction against the manifest

weight *** .” State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09-1236. We recognize that an array

of evidence, both from the prosecution and the defense, was presented to the jury on

the critical issue of whether or not Bonnie was actually able to resist appellant’s

advances due to her age and level of dementia. However, upon review, we hold the

jurors in this case, in resolving any conflicts in the evidence, did not create a manifest

injustice requiring a new trial.

      {¶73} Appellant's Fourth Assignment of Error is overruled.

                                              V.
Licking County, Case No. 11 CA 39                                                     20


      {¶74} In his Fifth Assignment of Error, appellant argues that he was erroneously

designated a Tier III sexual offender. We agree.

      {¶75} Appellant directs us to State v. Williams, __ Ohio St.3d ___, 2011-Ohio-

3374, wherein the Ohio Supreme Court, following its decision concerning the

constitutionality of sexual offender reclassification in State v. Bodyke, 126 Ohio St. 3d

266, 2010-Ohio-2424, determined that the current version of O.R.C. 2950, otherwise

known as S.B.10, as applied to defendants who committed sex offenses prior to its

enactment, violates the prohibition against retroactive laws under Section 28, Article II

of the Ohio Constitution.

      {¶76} In this case, appellant's offenses occurred prior to the January 1, 2008,

effective date of S.B. 10. The State concedes herein that Williams, which postdated the

judgment and sentence of appellant, mandates reversal. The matter will therefore be

remanded for a sex offender classification hearing in accordance with the pre-S.B. 10

classification scheme.

      {¶77} Appellant's Fifth Assignment of Error is sustained.
Licking County, Case No. 11 CA 39                                             21


     {¶78} For the foregoing reasons, the judgment of the Licking County Court of

Common Pleas, Ohio, is affirmed in part and reversed in part, with directions to

conduct a classification hearing in accordance with law.



By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

                                           ___________________________________



                                           ___________________________________



                                           ___________________________________

                                                           JUDGES

JWW/d 0206
Licking County, Case No. 11 CA 39                                                      22


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT



STATE OF OHIO                                         :
                                                      :
             Plaintiff-Appellee                       :
                                                      :
      -vs-                                            :     JUDGMENT ENTRY
                                                      :
RICHARD DORSEY                                        :
                                                      :
             Defendant-Appellant                      :     Case No. 11 CA 39




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed in part,

reversed in part, and remanded for further proceedings consistent with this opinion.

      Costs to be split evenly between the parties.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
