[Cite as State v. Castaneda, 2019-Ohio-4389.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      18CA0087-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
TOMAS G. CASTANEDA III                                COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   17 CR 0735

                                 DECISION AND JOURNAL ENTRY

Dated: October 28, 2019



        HENSAL, Judge.

        {¶1}     Tomas Castaneda appeals his convictions for sexual battery and unlawful sexual

conduct with a minor from the Medina County Court of Common Pleas. This Court reverses.

                                                 I.

        {¶2}     This appeal involves sexual conduct that occurred at a high school graduation

party where alcohol was being served to minors. Relevantly, the victim had just completed her

sophomore year of high school, and was 15 years and 10 months old at the time of the party.

The party was for her friend S.N., whom she knew from participating in the same dance group.

The victim also knew one of the other attendees, E.R., through the same dance group. All three

girls went to different high schools. The victim admitted that she drank several alcoholic

beverages at the party, which lasted into the early hours of the morning.

        {¶3}     Mr. Castaneda is S.N.’s friend. He arrived at the party after the victim. Shortly

thereafter, S.N. briefly introduced the victim to Mr. Castaneda. Mr. Castaneda left the party at
                                                2


one point, but returned around 4:00 a.m., at which point the party had wound down. When Mr.

Castaneda returned, the victim was on the living room couch, and E.R. was in the bathroom

getting sick from consuming too much alcohol. According to E.R., she emerged from the

bathroom and was greeted by Mr. Castaneda. A short while later, the victim and Mr. Castaneda

started kissing on the living room couch. At one point, E.R., who was seated on the opposite

side of the same couch, moved over and started “cuddling” with the victim and Mr. Castaneda.

She eventually moved back to the other side of the couch, and the victim and Mr. Castaneda

continued to kiss. As they continued to kiss, E.R. asked the victim periodically if she was ok,

and the victim responded that she was, but that she did not know who she was kissing. E.R.

responded that it was Mr. Castaneda, and the victim “just kind of nod[ded] her head.” E.R. then

heard Mr. Castaneda suggest that he and the victim should have sex, at which point E.R. stepped

in and said “[n]o” because she knew the victim had been drinking and “wouldn’t have been okay

with that.” According to E.R., the victim and Mr. Castaneda then kissed for a while longer, and

she (E.R.) fell asleep.

        {¶4}    According to the victim, she had several drinks at the party, which caused her to

get sick around 2:00 a.m., and then again around 3:00 a.m. or 4:00 a.m. After that, she and E.R.

went to lie down on the living room couch. The victim fell asleep for a short while, but awoke

when E.R. went to get sick in the bathroom. She recalled that at some point thereafter, Mr.

Castaneda was sitting on the couch with her. The victim testified that she and Mr. Castaneda

started kissing, that he pulled her shorts off and inserted his finger into her vagina, and that he

eventually suggested that they should have sex, to which she responded “[n]o.” According to the

victim, E.R. heard this exchange and separated her from Mr. Castaneda. The victim then fell

asleep, and Mr. Castaneda slept elsewhere in the house.
                                                 3


       {¶5}    When she awoke, the victim noticed that her shorts were on backwards, and that

her underwear was behind a pillow on the couch. The victim did not tell anyone about the

incident until later that day when she confided in a male friend. That friend contacted the

victim’s mother, and the victim eventually went to the hospital to be evaluated. The hospital

then contacted the police. Prior to the police contacting Mr. Castaneda, Mr. Castaneda contacted

them and voluntarily gave a video-recorded statement about the events that transpired.

According to his recorded statement, which the State played for the jury, Mr. Castaneda did not

know whether the victim had been drinking because he did not drink with her at the party, but he

was “pretty sure” she had been. He also indicated that he did not know the victim was 15 years

old because everyone else at the party was over 18. According to him, everything that occurred,

including the kissing and inserting his finger into the victim’s vagina, was consensual.

       {¶6}    A grand jury indicted Mr. Castaneda on one count of sexual battery in violation of

Revised Code Section 2907.03(A)(2), and one count of unlawful sexual conduct with a minor in

violation of Section 2907.04(A). Mr. Castaneda pleaded not guilty, and the matter proceeded to

a jury trial. At trial, the State presented testimony from the victim, E.R., and the detective who

interviewed Mr. Castaneda. The defense presented no evidence. The jury found Mr. Castaneda

guilty of both charges, and he now appeals, raising five assignments of error for our review. To

facilitate our review, we will address Mr. Castaneda’s assignments of error out of order.

                                                II.

                                 ASSIGNMENT OF ERROR II

       THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT
       APPELLANT’S UNLAWFUL SEXUAL CONDUCT WITH A MINOR
       CONVICTION.
                                                 4


       {¶7}     In his second assignment of error, Mr. Castaneda argues that the State presented

insufficient evidence to support his conviction for unlawful sexual conduct with a minor. This

Court agrees.

       {¶8}     A sufficiency challenge of a criminal conviction presents a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “[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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Although we

conduct a de novo review, “we neither resolve evidentiary conflicts nor assess the credibility of

witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton

Nos. C-120570, C-120751, 2013-Ohio-4775, ¶ 33.

       {¶9}     As previously noted, Mr. Castaneda was convicted of unlawful sexual conduct

with a minor in violation of Section 2907.04(A). That Section provides that “[n]o person who is

eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse

of the offender, when the offender knows the other person is thirteen years of age or older but

less than sixteen years of age, or the offender is reckless in that regard.” “A person has

knowledge of circumstances when the person is aware that such circumstances probably exist.”

R.C. 2901.22(B). “A person is reckless with respect to circumstances when, with heedless

indifference to the consequences, the person disregards a substantial and unjustifiable risk that

such circumstances are likely to exist.” R.C. 2901.22(C).

       {¶10} Here, there was no dispute at trial that Mr. Castaneda was 18 years old at the time

of the party, and that he engaged in sexual conduct with the 15-year-old victim, who was not his
                                                  5


spouse. The remaining issue at trial, therefore, was whether Mr. Castaneda knew the victim was

less than 16 years old, or was reckless in that regard.

       {¶11} The evidence presented at trial indicated that the victim and Mr. Castaneda did

not go to the same high school, that they did not know each other prior to the party, and that –

other than being briefly introduced – they did not talk at the party until they were on the living

room couch together. The victim acknowledged that most, if not everyone, at the party was 18

years old or older. She testified that she talked to some people at the party about the fact that she

was younger than them, but acknowledged that she never talked to Mr. Castaneda about her age

or what grade she was in. Even viewing the evidence in a light most favorable to the State, we

cannot say that the State presented sufficient evidence to establish that Mr. Castaneda knew the

victim was less than 16 years old. We now turn to whether he was reckless in that regard.

       {¶12} While the State presented a picture of the victim that was taken near the time of

the incident, there was no testimony that the victim looked young for her age, or that there was

otherwise reason for Mr. Castaneda to suspect or believe that the victim was younger than the

other party attendees. Given the context in which Mr. Castaneda and the victim met (i.e., a high

school graduation party where most – if not all – of the party attendees were 18 years old or

older) and the lack of evidence indicating that Mr. Castaneda, “disregard[ed] a substantial and

unjustifiable risk” that the victim was under the age of 16, we cannot say that the State presented

sufficient evidence to establish that Mr. Castaneda acted recklessly with respect to the victim’s

age. R.C. 2901.22(C); Compare State v. Brown, 9th Dist. Lorain No. 08CA009328, 2008-Ohio-

6349, ¶ 22-24 (holding that the State presented sufficient evidence to establish that the defendant

acted recklessly with respect to the victim’s age). Accordingly, we sustain Mr. Castaneda’s

second assignment of error.
                                                 6


                                 ASSIGNMENT OF ERROR IV

       THE EVIDENCE AT TRIAL WAS INSUFFICIENT                              TO    SUPPORT
       APPELLANT’S SEXUAL BATTERY CONVICTION.

       {¶13} In his fourth assignment of error, Mr. Castaneda argues that the State presented

insufficient evidence to support his conviction for sexual battery. We apply the same sufficiency

standard set forth in our analysis of Mr. Castaneda’s second assignment of error.

       {¶14} Section 2907.03(A)(2), under which Mr. Castaneda was convicted, provides that

“[n]o person shall engage in sexual conduct with another, not the spouse of the offender, 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.” “The phrase ‘substantially impaired,’ in

that it is not defined in the Ohio Criminal Code, must be given the meaning generally understood

in common usage.” State v. Zeh, 31 Ohio St.3d 99, 103 (1987). “[S]ubstantial impairment must

be established by demonstrating a present reduction, diminution or decrease in the victim’s

ability, either to appraise the nature of h[er] conduct or to control h[er] conduct.” Id. at 103-104.

“[T]he existence of a substantial impairment may be proven by the victim’s testimony.” State v.

Dasen, 9th Dist. Summit No. 28172, 2017-Ohio-5556, ¶ 19.

       {¶15} As previously noted, there was no dispute at trial that Mr. Castaneda engaged in

sexual conduct with the victim, who was not his spouse. The issue at trial, therefore, was

whether the State presented sufficient evidence to establish that Mr. Castaneda knew that the

victim was substantially impaired. We conclude that it did not.

       {¶16} This Court has acknowledged that intoxication does not always equate to

substantial impairment, and that “the minimal statement, standing alone, that someone was

intoxicated would not be sufficient to demonstrate substantial impairment absent other indicia[.]”

State v. Hansing, 9th Dist. Lorain No. 16CA011053, 2019-Ohio-739, ¶ 14, 28. Here, the victim
                                                7


testified that she had several drinks throughout the course of the evening, and that she was

intoxicated, which caused her to get sick. E.R., who had been drinking with the victim, also

testified that the victim was intoxicated. Notably, neither the victim nor E.R. testified that the

victim’s speech was slurred, that she was stumbling or falling, or that she otherwise exhibited

signs of intoxication.

       {¶17} Other than the statements from the victim and E.R. indicating that the victim was

intoxicated, the record contains no evidence to support the State’s position that the victim was

substantially impaired. Rather, the record indicates that E.R. periodically asked the victim if she

was ok while she and Mr. Castaneda were kissing, and that the victim indicated that she was.

According to E.R., the “cuddling” between the victim and Mr. Castaneda appeared to be

consensual. Further, the victim testified at length regarding the events that transpired, recalling

details such as: E.R. getting sick; where she, E.R., and Mr. Castaneda were located on the couch;

the position of a blanket over her body; Mr. Castaneda taking her shorts and underwear off; Mr.

Castaneda touching her legs, buttocks, and vagina; Mr. Castaneda suggesting they have sex and

telling him no to further sexual conduct; and E.R. separating her from Mr. Castaneda. This

testimony does not support a conclusion that the victim experienced a “reduction, diminution or

decrease in [her] ability, either to appraise the nature of h[er] conduct or to control h[er]

conduct.” Zeh, 31 Ohio St.3d 99, at 103-104; State v. Rivera, 8th Dist. Cuyahoga No. 97091,

2012-Ohio-2060, ¶ 25, 29 (holding that the State failed to present sufficient evidence of

substantial impairment when the victim’s “testimony demonstrated that she was aware of the

events as they happened and made conscious decisions about her participation.”).

       {¶18} Even if this Court could conclude that sufficient evidence existed to support the

State’s position that the victim was substantially impaired, nothing in the record indicates that
                                                8


Mr. Castaneda knew or should have known that she was substantially impaired. While Mr.

Castaneda acknowledged in his recorded statement that he was “pretty sure” the victim had been

drinking, that does not equate to him knowing that she was substantially impaired. The record

indicates that the victim and Mr. Castaneda did not drink together at the party, and that Mr.

Castaneda was not present when the victim got sick. At most, the record indicates that Mr.

Castaneda knew the victim had been drinking. Compare State v. Hatten, 186 Ohio App.3d 286,

2010-Ohio-499, ¶ 25 (2d Dist.) (citing cases wherein the evidence indicated that the defendant

knew or should have known that the victim was substantially impaired). While this Court does

not condone the events that transpired or wish to appear insensitive or unsympathetic to victims

of sexually based offenses, a challenge to the sufficiency of the evidence asks the question of

whether the State met its legal burden.      Under these facts, it did not.   Accordingly, Mr.

Castaneda’s fourth assignment of error is sustained.

                                 ASSIGNMENT OF ERROR I

       APPELLANT WAS DENIED DUE PROCESS AND A FAIR AND
       IMPARTIAL TRIAL BASED ON PROSECUTORIAL MISCONDUCT
       DURING THE STATE OF OHIO’S CLOSING ARGUMENT.

                                  ASSIGNMENT OF ERROR III

       APPELLANT’S CONVICTION FOR UNLAWFUL SEXUAL CONDUCT
       WITH A MINOR PURSUANT TO OHIO REVISED CODE [ ]
       2907.04(A)(B)(2) IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.
                           ASSIGNMENT OF ERROR V

       APPELLANT’S CONVICTION FOR SEXUAL BATTERY PURSUANT TO
       OHIO REVISED CODE [ ] 2907.03(A)(2) IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.
                                                 9


       {¶19} In light of this Court’s disposition of Mr. Castaneda’s second and fourth

assignments of error, his remaining assignments of error are moot, and are overruled on that

basis. See App.R. 12(A)(1)(c).

                                                III.

       {¶20} Mr. Castaneda’s second and fourth assignments of error are sustained.            Mr.

Castaneda’s first, third, and fifth assignments of error are overruled as moot. The judgment of

the Medina County Court of Common Pleas is reversed.

                                                                              Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                       10




CALLAHAN, P. J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JAY MILANO and KATE PRUCHNICKI, Attorneys at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
