[Cite as State v. Harris, 2011-Ohio-4066.]


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

STATE OF OHIO                                         C.A. No.      25364

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ERICA L. HARRIS                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 09 08 2466(A)

                                  DECISION AND JOURNAL ENTRY

Dated: August 17, 2011



        CARR, Presiding Judge.

        {¶1}     Appellant, Erica Harris, appeals her conviction out of the Summit County Court

of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     This case stems from an incident that occurred on August 4, 2009, that led to the

arrest of Harris. Harris was indicted by the Summit County Grand Jury on one count of sexual

battery in violation of R.C. 2907.03(A)(2)/(3), a felony of the third degree; and one count of

gross sexual imposition in violation of R.C. 2907.05(A)(1), a felony of the fourth degree. Harris

pleaded not guilty to the charges.

        {¶3}     The matter proceeded to trial before the jury in January 2010. Harris was tried

with a co-defendant, Dwain Johnson. At the close of the State’s case, the trial court denied

Harris’s Crim.R. 29 motion for acquittal. Harris renewed her motion after presenting a defense,

but the trial court denied the motion again. The jury found Harris guilty of sexual battery and
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not guilty of gross sexual imposition. Johnson was found not guilty on both counts. The trial

court sentenced Harris to two years in prison, suspended upon the condition that she complete

two years of community control, and ordered her to register as a Tier III sex offender. Harris

filed a notice of appeal. She raises two assignments of error for review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIM. R. 29
       MOTION AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO
       SUSTAIN A CONVICTION.”

       {¶4}    Harris argues that her conviction for sexual battery was not supported by

sufficient evidence. This Court disagrees.

       {¶5}    Crim.R. 29 provides, in relevant part:

       “(A) The court on motion of a defendant or on its own motion, after the evidence
       on either side is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment, information, or complaint, if the
       evidence is insufficient to sustain a conviction of such offense or offenses. The
       court may not reserve ruling on a motion for judgment of acquittal made at the
       close of the state’s case.”

       {¶6}    When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before

the trial court was sufficient to sustain a conviction. State v. Jenks (1991), 61 Ohio St.3d 259,

279.

       “An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The 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.” Id. at paragraph two of the syllabus.
                                                 3


       {¶7}    Harris was charged with one count of sexual battery in violation of R.C.

2907.03(A)(2)/(3), which states, in relevant part:

       (A) No person shall engage in sexual conduct with another, not the spouse of the
       offender, when any of the following apply:

       (2) The offender knows that the other person’s ability to appraise the nature of or
       control the other person’s own conduct is substantially impaired.

       (3) The offender knows that the other person submits because the other person is
       unaware that the act is being committed.

       {¶8}    “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.” R.C.

2901.22(B).

       {¶9}    R.C. 2907.01(A) defines “sexual conduct” as:

       “vaginal intercourse between a male and female; anal intercourse, fellatio, and
       cunnilingus between persons regardless of sex; and, without privilege to do so, the
       insertion, however slight, of any part of the body or any instrument, apparatus, or
       other object into the vaginal or anal opening of another.”

       {¶10} Since “substantially impaired” is not defined in the Ohio Criminal Code, the Ohio

Supreme Court has 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.” State v. Doss, 8th Dist. No. 88443, 2008-Ohio-449, at ¶13, citing State v. Zeh (1987), 31

Ohio St.3d 99, 103-04.

       {¶11} Harris admitted at trial that she digitally penetrated the victim’s vagina. Harris

argues that there was insufficient evidence to establish that the victim was substantially impaired

and that, even if the State proved she was substantially impaired, there was insufficient evidence

to prove that Harris knew the victim was substantially impaired. Harris also argues that the State

failed to prove that the victim was unaware of the digital penetration when it occurred.
                                                  4


       {¶12} The victim has two sons with Johnson. At the time of the incident, the victim and

Johnson were not officially in a relationship, though they were still intimate. Johnson and Harris

were best friends. Harris and the victim knew each other through Johnson. Harris and the victim

had socialized on prior occasions and the victim had told Harris she thought she was cute.

Johnson was mad that the victim was attracted to Harris, but the victim assured him nothing

would ever happen. Despite a mutual attraction, the victim and Harris agreed that nothing could

happen between them because of Johnson.

       {¶13} On the evening of August 4, 2009, Harris called Johnson and they made plans to

meet at Harris’s apartment. Johnson went over to Harris’s apartment and brought the victim and

their two sons with him. Harris placed a mattress in the kitchen and Johnson put his sons to bed.

Harris and the victim sat on a loveseat while Johnson sat in a chair.

       {¶14} Harris, Johnson, and the victim proceeded to drink alcohol. The victim was

drinking Long Island Ice Tea while Harris and Johnson drank liquor and beer. The victim

testified that she had “[a]t least a half of a fifth of Long Island” while Johnson testified that the

victim drank the whole bottle. The victim also testified that the three of them were drinking

shots of the Long Island. The victim testified that she drank two shots for each shot Harris and

Johnson drank, for a total of “at least five or six” shots. The victim testified that it does not take

much for her to become intoxicated and that she was intoxicated. Harris even admittied at trial,

“I knew [the victim] was intoxicated because we were all intoxicated.”

       {¶15} The victim stated that Harris and Johnson went outside twice during the night

because “they needed to talk.” At some point, Johnson was upset and wanted to leave, but he

calmed down and stayed. The victim testified that she did not want Johnson to leave because she

was “too drunk to drive” and did not want to stay at his friend’s house alone. She testified that,
                                                5


although she flirted with Johnson throughtout the night, she did not “even really remember

talking to Erica[.]”

       {¶16} The victim testified that the following chain of events occurred. She fell asleep

on the couch because “it seemed like everybody was falling asleep.” She woke up to find Harris

“standing behind me with her arms under my arms and her hands behind my neck.” The victim

described how she was “kind of just hanging” and facing the couch as Johnson proceeded to

remove her pants and underwear. The victim was placed back on the couch and she tried pulling

her knees up to her chest. The victim stated that Harris was then “leaning her whole body up

against my legs and Dwain has his hand on my arm and she put her finger in me.” When asked

to clarify, the victim stated that while Johnson was holding her right arm, Harris digitally

penetrated her vagina without her consent. She testified that Johnson asked her, “Why are you

trying to stop something you know you like?” The victim was able to get away.

       {¶17} The victim started hitting Johnson, put her pants back on, and then began fighting

with Harris. The victim testified that Harris started choking her, which Harris admitted at trial.

Harris and the victim fell to the floor in the kitchen. Johnson pulled Harris off of the victim.

The victim grabbed her kids and left the apartment.

       {¶18} The victim drove back to her house and called Johnson’s current girlfriend, Tonya

Marcelli, on the way. The victim told Ms. Marcelli that “we had all got drunk and Erica had

raped me.” Ms. Marcelli called Johnson and told him about her phone call with the victim.

Upon arriving home, the victim met with her neighbor and they called the police. An ambulance

came and took the victim to the hospital.

       {¶19} Detective Steve Mara drove the victim home from the hospital. Detective Mara’s

report indicated that the victim was still drunk at this time. After dropping the victim off, he
                                                 6


received a dispatch to Harris’s apartment, because Harris and Johnson wanted to give a

statement. Detective Mara recorded the statement that Harris gave, which was admitted into

evidence without objection. Harris made the following admissions in her statement. She first

told Detective Mara that Johnson and she “never touched [the victim]” and that “basically

nothing happened.”     She admitted that they had all been drinking.          Detective Mara then

explained to Harris there would be a problem if a DNA analysis reveals that she had touched the

victim. Harris then told Detective Mara that she would like to tell the truth and admitted to

digitally penetrating the victim’s vagina. While laughing, Harris explained, “I had my hands

inside her” but said that it was not forced or rejected by the victim. Harris then admitted that the

victim was “probably so drunk” and “might not have realized what was going on.”             At trial,

Harris again admitted that she inserted her fingers into the victim’s vagina that night, but asserted

it was consensual.

       {¶20} The victim returned to the hospital the next day and was examined by SANE

(Sexual Assault Nurse Examiner) nurse Diana Shaffer. At trial, Ms. Shaffer discussed the report

she created while examining the victim. In the report, Ms. Shaffer wrote that the victim told her

“there was penetration of the vagina with a finger” by Harris, genital fondling, holding, and

strangling. The victim told Ms. Shaffer a version of events that was very similar to the version

she gave at trial. Ms. Shaffer also took pictures of the victims injuries, which showed a “linear

abrasion” on the victim’s neck and bruises and abrasions on her arms.

       {¶21} Detective Mara interviewed the victim three times, including after she was

examined by Ms. Shaffer. He testified that, except for some minor variations, the victim’s story

about what happened remained consistent during these interviews. The victim consistently told

him that she was intoxicated, fell asleep clothed, Harris digitally penetrated her, and that the
                                                   7


sexual act was not consensual. He testified that “[i]t’s fairly common that a person who’s been

in a very traumatic situation will have some differences in their statement.” He added that the

fact that the victim was intoxicated and just waking up at the time of the incident could be

another explanation for the minor inconsistences. He also testified that the victim’s third version

of events was most similar to the version she testified to at trial.

       {¶22} Viewing the evidence in a light most favorable to the State, this Court concludes

that a rational trier of fact could have found the essential elements of the charge of sexual battery

were proved beyond a reasonable doubt. See Jenks at paragraph two of the syllabus. Harris

admitted to digitally penetrating the victim’s vagina. The victim testified that she did not

consent to the sexual act. Harris admitted that she, Johnson, and the victim had been drinking

and she knew the victim was intoxicated. Harris further admitted to the police that the victim

was probably so drunk that she did not know what was happening. The victim testified that she

was intoxicated at the time of the incident and Detective Mara testified that the victim was still

intoxicated after leaving the hospital a few hours later. Furthermore, the victim had been

sleeping and unaware of what was occurring until she awakened to find Harris holding her. The

evidence demonstrates that, between not being fully awake and being very intoxicated, the

victim had a decreased ability to think, resulting in substantial impairment.

       {¶23} Based on the foregoing, the State presented sufficient evidence to establish that

the victim was substantially impaired and that Harris knew she was substantially impaired when

she digitally penetrated her vagina. Harris’s first assignment of error is overruled.
                                                 8


                                 ASSIGNMENT OF ERROR II

       “THE JURY CREATED A MANIFEST MISCARRIAGE OF JUSTICE AS THE
       VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶24} In her second assignment of error, Harris argues her conviction is against the

manifest weight of the evidence.

       {¶25} A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley (Mar.

15, 2000), 9th Dist. No. 19600. “While the test for sufficiency requires a determination of

whether the state has met its burden of production at trial, a manifest weight challenge questions

whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78

Ohio.St.3d 380, 390 (Cook J., concurring). A determination of whether a conviction is against

the manifest weight of the evidence, however, does not permit this Court to view the evidence in

the light most favorable to the State to determine whether the State has met its burden of

persuasion. State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, at ¶11. Rather,

       “an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       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.” State v. Otten (1986), 33 Ohio App.3d 339,
       340.

       “Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
       juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio

St.3d at 387.
                                                 9


        {¶26} Harris uses the same argument that there is no evidence that the victim was

substantially impaired and, if she was, there is no evidence that she knew the victim was

substantially impaired.

        {¶27} The victim, Harris, and Johnson all gave inconsistent testimony about what

happened the night in question. They all admit that they were drinking and that the victim was

intoxicated. However, they disagree on who fell asleep, whose clothes came off and how, who

had conversations, and on whether Harris digitally penetrated the victim’s vagina without

consent.

        {¶28} The victim testified that she was awakened by Harris who was holding her as

Johnson was taking off her pants. She testified that Johnson held her down while Harris inserted

her finger into her vagina without her consent. According to the victim, she did not take off her

clothes, she did not talk to Harris during the night, and everyone went to sleep.

        {¶29} Harris testified that they had all been taking off their own clothes during the night

and that the victim had been flirting with her. She stated that she slowly moved her finger all the

way up the victim’s leg before inserting it in her vagina and that the victim was enjoying it. She

testified that the victim did not reject her advances and consented to her putting her finger in her

vagina. She also testified that Johnson witnessed this sexual act occur. She stated that she

stopped penetrating the victim after a couple seconds, went to the bathroom, and then came out

to find the victim hitting Johnson before engaging in a fight with her. She also stated that no one

fell asleep at any point in time that night.

        {¶30} Johnson testified that he was asleep and awakened to the victim hitting him before

she started fighting with Harris. He also testified that no one took any clothes off throughout the

night, but that everyone had engaged in conversation with each other. He testified that he
                                                  10


assumed Harris and the victim were fighting because the victim was wrecking Harris’s apartment

and Harris was trying to stop her.

           {¶31} Although the victim changed some parts of her story in all of her interviews, this

Court will not overturn the trial court’s verdict on a manifest weight of the evidence challenge

only because the trier of fact chose to believe certain witnesses’ testimony over the testimony of

others. State v. Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, at ¶22. A thorough review

of the record indicates that this is not the exceptional case, where the evidence weighs heavily in

favor of Harris, and there is no indication that the trial court lost its way and committed a

manifest miscarriage of justice in convicting Harris of sexual battery. Harris, Johnson, and the

victim all gave differing accounts of the events that happened on the night of August 4, 2009.

While the victim changed some parts of her story, she consistently maintained that Harris

digitally penetrated her vagina without consent. Detective Mara testified that it is not unusual for

a victim of a traumatic event to change parts of her story. Harris’s credibility was undermined

given that she lied to the detective when she told him nothing happened, but then admitted that

she did put her fingers in the victim’s vagina after he explained the consequences of DNA

testing.

           {¶32} Furthermore, Harris admitted that she knew the victim was intoxicated, as the

victim had drunk a large amount of Long Island Ice Tea. In her statement to Detective Mara,

Harris stated that the victim probably did not know what was going on because she was drunk.

The evidence demonstrates that Harris knew that the victim had a decreased ability to think due

to her intoxication.      Accordingly, Harris’s conviction for sexual battery is not against the

manifest weight of the evidence. Harris’s second assignment of error is overruled.
                                                11


                                                III.

       {¶33} Harris’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                        Judgment affirmed.




       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 Summit, 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(E). 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 Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



WHITMORE, J.
DICKINSON, J.
CONCUR
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APPEARANCES:

MARTHA HOM, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
