[Cite as State v. Soto, 2016-Ohio-7476.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103321




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                           JUAN SOTO
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-588583-B

        BEFORE: Laster Mays, J., Kilbane, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: October 27, 2016
                               -i-
ATTORNEY FOR APPELLANT

Brian A. Murray
Zukerman, Daiker & Lear Co., L.P.A.
3912 Prospect Avenue, East
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Jeffrey Schnatter
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

        {¶1}     Defendant-appellant Juan Soto (“Soto”) appeals his conviction for rape in

violation of R.C. 2907.02(A)(1)(a), a felony of the first degree. Soto was sentenced to

five years in prison and declared to be a Tier III sex offender. After a thorough review

of the record, we affirm.

I.      BACKGROUND AND FACTS

        {¶2} Soto and codefendant Emmanuel Machuca (“Machuca”) were indicted on a

total of 14 counts relating to the kidnapping and sexual assault of then 23-year-old M.R.

in July 2014. The trial court severed Machuca’s indictments for an unrelated 2010 rape

case.

        {¶3}     Soto was indicted for the following:1

        Count 8, rape, R.C. 2907.02(A)(2);
        Count 9, rape, R.C. 2907.02(A)(1)(a);
        Count 10, rape, R.C. 2907.02(A)(2);
        Count 11, rape, R.C. 2907.02(A)(1)(a);
        Count 12, rape, R.C. 2907.02(A)(2);
        Count 13, rape, R.C. 2907.02(A)(1)(a); and
        Count 14, kidnapping, R.C. 2905.01(A)(4), with a sexual motivation

        specification, R.C. 2941.147(A).

Machuca was indicted for the identical charges under Counts 1 through 7.



            The cited list reflects the trial court’s renumbering of the counts for purposes of trial, as the
        1


result of the severance of Machuca’s 2010 charges.
       {¶4}    Soto and Machuca pled not guilty to the charges. A jury trial ensued in

May 2015.

       A.      Trial

               1.        Testimony of Identified Victim M.R.

       {¶5}         Identified victim M.R. testified with the aid of a Spanish language

interpreter.   M.R. attended mainstream and special assistance education classes

throughout her high school years.        She resides with her mother (“T.C.”), and her

stepfather, and enjoys attending parties and hanging out with friends. M.R. drinks a beer

or cocktail occasionally, but “nothing extreme.”

       {¶6}    On July 12, 2014, M.R. drove to the home of her girlfriend and former high

school classmate, N.A., so they could meet friends at a local bar, watch a televised boxing

match, and celebrate N.A.’s recently discovered pregnancy. N.A. was surprised to see an

open half-empty bottle of a Baccardi rum cocktail drink on the front seat of M.R.’s car.

M.R. told N.A. that it was the first time that she had consumed the drink and that she

liked it. M.R.’s car overheated. N.A. was not feeling well and decided not to go out.

At M.R.’s request, N.A. drove M.R. to the bar about 10:00 p.m. and M.R. told N.A. that

she would have a friend at the bar give her a ride back to N.A.’s house to pick up the car.

       {¶7}         M.R. recognized several former high school classmates at the bar,

including Machuca, who played high school basketball, and Soto. M.R. knew their

names, but testified that Soto introduced himself as Jose. M.R. consumed one beer

during her two to three hours at the bar.
       {¶8}    Unable to locate the friend who had agreed to give her a ride, M.R. began

talking with Soto, Machuca, and an unknown male about 1:30 a.m. While they were

talking, M.R. consumed one-half of a beer that Soto purchased for her, and entered her

phone number into Soto’s cell phone. M.R. decided to accompany the three males to a

party that other former classmates were attending.

       {¶9} Between 2:00 and 2:30 a.m., Machuca drove M.R., Soto, and the unknown

male to a gas station convenience store and next to the home of a paraplegic male known

as El Negrito. M.R. recognized El Negrito and was speaking with him when Machuca

called her into a bedroom. From the bedroom, M.R. could see Soto pouring a drink from

a bottle in another room, but could not see the bottle label.

       {¶10} Soto entered the bedroom with a clear glass, about 5 inches tall, half-filled

with a transparent liquid. Soto announced that the drink was a double because it was for

M.R. She drank the contents all at once, though it burned her throat and she was not

familiar with the taste.

       {¶11} M.R. began feeling strange, and said she could not think clearly. Soto

poured white powder on a little table, and inhaled it. Soto then placed his hand on the

back of M.R.’s head and told her to inhale the powder. After M.R. inhaled the powder,

Soto placed white powder into her nostril with his finger.

       {¶12}    M.R. began feeling “really bad” and hearing “screeching sounds” in her

ears. She stated she then became concerned that she may be in danger. Approximately

15 to 20 minutes after arriving at the first house, M.R. left with Soto, who drove her to
another house. M.R. testified initially that she thought they were going to the after party

they discussed attending while at the bar. M.R. later testified that, though nothing was

said to induce her to leave the first house, she did not feel that she had a choice.

       {¶13}     M.R. and Soto arrived at the second house where Machuca and the

unknown male were also present. M.R. was groggy and believed that she may have gone

“in and out of consciousness.” M.R. was not sure what occurred next; however, at one

point, she recalled sitting up while Soto had his penis in her mouth, and another time,

Machuca was raping her vaginally and slapping her. M.R. also remembered Machuca and

Soto exchanging positions, and violating her vaginally and anally.

       {¶14} M.R. was not sure about the order of events, but was certain that they

occurred. M.R.’s response to whether she had given consent to the sexual activity was,

“[a]s far as I remember, no.” She also recalled telling both of them to stop, “like three

times.”

       {¶15}    The unknown male opened the door and spoke to Soto, who told M.R. to

wash up in the bathroom because Machuca’s girlfriend was coming over. Soto and

Machuca then dropped M.R. off at N.A.’s house. M.R. did not recall drinking anything

or taking any drugs at the second house.

       {¶16} M.R.’s cell battery was dead when she arrived at N.A.’s house. She called

for her outside of N.A.’s window. N.A. emerged and M.R. fell down crying and told her

what happened. N.A. called T.C. over M.R.’s objections, and took M.R. home.

       {¶17}    M.R. stated she was confused and crying when speaking with the police
in the ambulance at her mother’s house. She was examined at the hospital and her

clothing retained for evidence. M.R. later provided a statement to Cleveland police

detective, Liz Galarza (“Detective Galarza”), and identified photographs of Soto and

Machuca.

       {¶18} During cross-examination, M.R. explained that any conflicts between her

statements to the hospital nurse, Detective Galarza, and to police during the ambulance

ride occurred because “some memories come back, some things I remember, they come

and go.” However, she added that, “as time has gone on, and passed, I remember better

details and things.”

               2.       N.A.

       {¶19}        N.A. testified that M.R. usually kept to herself, did not drink or take

drugs, and was always with T.C. during their high school years. N.A. was surprised to

see M.R. with an open bottled rum drink in the car the evening of the incident. N.A.

confirmed dropping M.R. off at the sports bar.

       {¶20}        At approximately 5:00 a.m., M.R. appeared outside of N.A.’s home,

crying loudly that she had been raped. M.R. appeared to be intoxicated and had to be

helped to her feet. The commotion awakened the neighbors. N.A. telephoned T.C. who

told N.A. to bring M.R. home. M.R. did not want to go.

       {¶21}        Upon arrival, T.C. angrily grabbed M.R. by her hair, and began hitting

M.R., saying “nothing happened to her, she is just drunk.” Inside the home, M.R.

continued to cry while T.C. continued to hit, push, and punch her. N.A. placed M.R. in a
cold shower to keep her awake until the ambulance arrived. N.A. miscarried the next

day, and the friendship between N.A. and M.R. has not been the same since the incident.

               3.      T.C.

       {¶22} T.C. testified that M.R. experienced delayed motor skills and mental

development at birth, and attended special education classes from the age of three. M.R.

was required to account for her time when going out, including activating her cell phone

global positioning system (“GPS”) monitor, and texting or calling T.C. when changing

locations.

       {¶23} T.C. was not aware that M.R. was not with N.A. M.R. did not respond to

T.C.’s texts or calls and was not home by the 3:00 a.m. curfew deadline. M.R. knew that

there would be consequences for breaking the rules. T.C. encouraged M.R. to refrain

from alcohol consumption because M.R. is on several medicines that could cause

adverse reactions.

       {¶24}        N.A. brought M.R. home at 5:00 a.m., M.R. was screaming, crying,

disheveled and somewhat disoriented. M.R. told T.C. that she was sexually assaulted by

Jose (Soto) Machuca, and an unknown person. M.R. was emotionally distressed for days

afterward. T.C. found photographs of Soto and Machuca on Facebook and gave the

names and pictures to Detective Galarza.

               4.      Nurse Examiner

       {¶25} Wendy Turk (“Turk), the sexual assault nurse examiner, examined and

collected evidence from M.R. at Fairview Hospital the night of the assault. M.R. arrived
at 8:49 a.m.; however, Turk waited three hours to obtain M.R.’s informed consent for the

examination, because M.R. appeared to be under the influence of alcohol. Turk obtained

blood and urine samples from M.R. at 10:15 a.m. to test for drugs and alcohol.

      {¶26} A Spanish language interpreter was summoned because M.R. spoke very

little English. M.R. told Turk that she was “drunk,” had been raped by three men, and

that three men had been giving her drinks at the bar earlier. M.R. identified Soto as

“Jose,” and could not recall his last name. Soto told M.R. that he would drive her to her

friend’s house to pick up her car, but instead, took her to his cousin’s house, where he

drugged her by putting crack cocaine in her nose and giving her marijuana. Soto then

drove her to his house “by Lorain Avenue and 85th Street.” M.R. was very sleepy when

she arrived at Soto’s house. The three men were all touching her and raping her orally,

vaginally, and anally, and one was slapping her face. M.R. was crying, confused and

very distraught during the examination.

      {¶27} Photographs taken during the examination depicted abrasions and bruising

on M.R.’s neck, breast, knees, and thigh. Turk further observed abrasions and evidence

of trauma to the vaginal canal. Oral, vaginal, and anal swab samples were collected;

however, a cervical sample was not taken due to M.R.’s expressed discomfort.

Scrapings and samples were also taken from M.R.’s nails and hair.

              5.       Toxicology

      {¶28}        Toxicologist Dr. Harold Schueler (“Schueler”) testified that M.R.’s blood

sample, taken at 9:00 a.m. indicated a blood-alcohol level of 0.056 grams per deciliter.
Schueler opined that M.R.’s blood level was 0.102 grams per deciliter at the time she was

dropped off at the home of N.A. by Machuca and Soto at approximately 5:00 a.m.

       {¶29} Schueler also detected the presence of cocaine in the urine, and cocaine

metabolites in the blood and urine samples. The blood and urine samples were negative

for date rape drugs, sedatives, and marijuana.

               6.    Forensics

       {¶30}    Forensic scientist Jeff Oblock (“Oblock”), from the Cuyahoga County

Regional Forensic Science Laboratory, testified that Machuca’s DNA was detected on the

swabs from M.R.’s fingernail scrapings, underpants, vagina, and anus. Soto’s DNA was

not detected on any of the items from the rape evidence kit, including M.R.’s clothing.

Oblock stated that it was “possible” for someone to have sexual relations with an absence

of DNA, for example, using a condom. “Whether that means that an assault didn’t happen

or contact didn’t happen, that’s not something I would be able to say.”

               7.    Detective Galarza

       {¶31}    Detective Galarza talked with T.C., who provided her with Facebook

photographs and information on Soto and Machuca. Detective Galarza’s investigation

included an interview with El Negrito, and photographing the bedroom described by M.R.

  M.R. told Detective Galarza that she smoked marijuana and consumed cocaine while

with Soto and Machuca, but M.R. was not sure where the consumption occurred.       M.R.

also told Detective Galarza that she may have consumed three beers that evening, and that

she had two glasses of rum drinks at the first house. M.R. did not mention that Soto
prepared a drink for her.

       {¶32} M.R. also told the detective that Soto and Machuca did not wear condoms

during the assault. Soto appeared at Detective Galarza’s office by appointment, and

consented to buccal swabs for DNA testing. Detective Galarza was informed that there

was no DNA match. Detective Galarza then obtained a search warrant for buccal swabs

from Machuca, and the results were positive.

       {¶33} At the close of the evidence, Soto made a motion for judgment of acquittal

pursuant to Crim.R. 29. In response to the bill of particulars, the state responded that the

assault took place at a specific address, that was actually the home address of M.R. Soto

argued that, there was “nothing objective at all to either put Juan Soto at the scene of the

alleged rape, or that he engaged in any sexual conduct or activity at that location.”

       {¶34}    Soto further argued that there was no DNA evidence as to Soto

whatsoever. Also lacking was evidence supporting kidnapping or forced intoxication.

M.R. had testified that: (1) she was not restrained or forced in any way to accompany

Soto at any point during the evening; and (2) she was not misled or forced to drink the

glass of liquid, or to consume the white powder. The trial court denied the motion.

       {¶35} The jury found appellant Soto guilty of Count 13, rape by impairment, in

violation of R.C. 2907.02(A)(1), a first-degree felony. Soto had no prior record. At

sentencing, the trial court acknowledged recent receipt of a letter provided by Soto,

explaining that he and M.R. initially engaged in consensual sexual activity. When Soto

realized that M.R. was interested in Machuca, Soto left them alone in the room. Soto
also indicated that there were others present who could possibly corroborate this

information.

          {¶36} Soto was advised by the trial court that he had the opportunity to address

the court during trial and proclaim his innocence, but chose not to, in spite of the fact that

Soto did not have a criminal record and faced no risk of prior incidents evidence.

Defense counsel asked the trial court not to hold Soto responsible for the legal strategy of

the defense. The trial court responded that defense counsel had certainly instructed Soto

that it was his prerogative not to testify and give his side of the story, and it was Soto’s

decision not to do so. The trial court placed the correspondence in the record, and

deemed the communication to the trial court to be a waiver of Soto’s Fifth Amendment

rights.

          {¶37} Soto was sentenced to five years in prison and determined to be a Tier III

sex offender with lifetime registration. This appeal ensued.

II.       ASSIGNMENTS OF ERROR

          {¶38}    Soto proffers six assignments of error:

          I.     The trial court violated appellant’s state and federal constitutional
          rights to due process by providing a jury instruction on complicity when
          neither the indictment nor the bill of particulars put appellant on notice that
          he could be held accountable as an aider and abettor for his codefendant’s
          alleged acts of rape.

          II.    The trial court committed reversible error when it provided the jury
          with an erroneous instruction as it relates to a rape charge alleging that
          appellant substantially impaired the alleged victim’s judgment or control
          and in instructing the jurors on when they could consider a lesser included
          offense.
       III.   The trial court committed reversible error when it failed to provide
       appellant with a jury instruction for the lesser included offense of sexual
       battery as it relates to Count 13 of the indictment.

       IV. The jury’s affirmative finding that appellant committed the offense
       of rape is not supported by evidence sufficient to satisfy the requirements of
       the due process clause of the Fourteenth Amendment to the United States
       Constitution.

       V.     The trial court erred when it denied appellant’s motion for judgment
       of acquittal pursuant to Crim.R. 29.

       VI. The trial court violated appellant’s rights to due process and a fair
       trial by entering a judgment of conviction against the manifest weight of the
       evidence.

III.   LAW AND ANALYSIS

       A.     Jury Instructions

              1.     First Assignment of Error

       {¶39} In the first assignment of error, Soto argues that the trial court erred by

allowing a jury instruction on complicity where neither the indictment, nor the bill or

particulars, provided notice to Soto that he could be held accountable for the acts of

Machuca. We disagree.

       {¶40} An abuse of discretion standard applies to reviews of jury instructions.

State v. Chinn, 85 Ohio St.3d 548, 709 N.E.2d 1166 (1999). The abuse of discretion

standard implies an attitude on the part of the court that is unreasonable, arbitrary or

unconscionable, and connotes more than an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
      {¶41} We addressed a similar argument in State v. Smith, 8th Dist. Cuyahoga No.

86690, 2006-Ohio-3156. Smith argued that the trial court erred in instructing a jury on

complicity where: (1) the complicity was not charged in the indictment, (2) there was no

factual basis for the instruction, and (3) the instruction had the effect of significantly

altering the charges. Id. at ¶ 62. We held that:

      Pursuant to R.C. 2923.03(F), a charge of complicity may be stated in terms
      of R.C. 2923.03 or in terms of the principal offense. State v. Caldwell, 19
      Ohio App.3d 104, 483 N.E.2d 187 (1984). Where one is charged in terms
      of the principal offense, he or she is on notice, by operation of R.C.
      2923.03(F), that evidence could be presented that the defendant was either a
      principal or an aider and abettor for that offense. See State v. Dotson, 35
      Ohio App.3d 135, 520 N.E.2d 240 (1987). Because a charge of complicity
      may be stated in terms of either the principal offense or in terms of R.C.
      2923.03, the complicity section, the indictment was not amended when the
      court instructed the jury that they could find Johnson guilty under the
      complicity theory.

State v. Smith, 8th Dist. Cuyahoga No. 86690, 2006-Ohio-3156, ¶ 65, quoting State v.

Johnson, 8th Dist. Cuyahoga Nos. 81692 and 81963, 2003-Ohio-3241.

      {¶42} We further observed in Smith that the analysis does not stop at this point.

The instruction is only proper if the record reflects sufficient evidence to demonstrate

complicity pursuant to R.C. 2923.03(A)(3), providing that no person shall “aid or abet

another in committing the offense.” Smith at ¶ 66.

      {¶43}    M.R. testified that Machuca and Soto drove her to the first house and

summoned her into the bedroom. Soto handed her a glass of clear liquid that burned

M.R.’s throat, and next held the back of her head, telling her to inhale the cocaine. Soto

placed cocaine on his finger, inserted it into her nostril and told her to inhale. M.R.
testified that she felt groggy and “not herself.” Soto drove M.R. to the second house

where M.R. recalled Soto having her perform oral sex, and that Soto and Machuca

changed places as she was violated orally, anally, and vaginally.

        {¶44} Pivotal here, even if the evidence was insufficient to warrant a complicity

instruction, which it is not, Soto was not convicted of complicity. Soto was convicted of

the principal offense, engaging in sexual conduct by substantially impairing the other

person’s judgment or control for the purpose of preventing resistance, by administering a

drug, intoxicant, or controlled substance to the other person surreptitiously or by force,

threat of force, or deception. R.C. 2907.02(A)(1)(a).

        {¶45}          R.C. 2923.03(F), governing complicity, provides that “[a] charge of

complicity may be stated in terms of this statute, or in terms of the principal offense.”

(Emphasis added.) Id. Soto’s indictment as a principal joint offender with Machuca,

for the same charges, placed Soto on notice that he could be found liable for complicity.

State   v.   Harrington,       1st   Dist.   Hamilton   Nos.   C-0800547   and   C-0800548,

2009-Ohio-5576, ¶ 15. Soto’s first assignment of error is without merit.

                  2.      Second Assignment of Error

        {¶46} The second assignment of error is that the trial court provided an erroneous

jury instruction as it relates to a rape charge alleging that Soto substantially impaired

M.R.’s judgment or control, and in instructing the jurors on when they could consider a

lesser included offense. We find that the trial court’s instructions did not rise to the level

of plain error.
       {¶47}    Soto offers that the trial court erroneously issued an “acquittal first”

instruction, and that the instructions were ambiguous and confusing. The parties concur

Soto failed to object to the instruction during trial; therefore, a plain error analysis

applies. Crim.R. 30(A) and 52; State v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d

1279 (1989). Plain error is an obvious defect in the trial proceedings that affects a

defendant’s substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759

N.E.2d 1240.

       {¶48} “An erroneous jury instruction does not amount to plain error unless, but

for the error, the result of the trial clearly would have been different.” State v. Dowell,

8th Dist. Cuyahoga No. 83575, 2004-Ohio-3870, ¶ 31. “An appellate court must view a

trial court’s jury instructions in the context of the overall charge rather than in isolation.”

Id. at ¶ 32.

       {¶49} “When a court gives a misleading or conflicting instruction, we are unable

to indulge in that presumption and must reverse, even when applying the jury instructions

in their entirety analysis.” State v. Mays, 161 Ohio App.3d 175, 2005-Ohio-2609, 829

N.E.2d 773, ¶ 37 (8th Dist.), quoting State v. Thompson, 4th Dist. Ross No. 92CA1906,

1993 Ohio App. LEXIS 5377 at *12-13 (Nov. 9, 1993). Thus, we review the jury

instructions as a whole to determine whether the instructions misled the jury, substantially

and materially affecting Soto’s rights. Dowell at ¶ 31-32; Barnes at 27.
       {¶50}      The state introduced the subject of sexual battery pursuant to

R.C. 2907.03(A)(2) as a lesser included offense under the intoxication rape, and not the

force rape charges. The theory was that the jury could easily find that neither Soto or

Machuca was responsible for M.R.’s state of intoxication, yet she was intoxicated to a

point where she could not consent. The trial court instructed the jury on the lesser

included offense of sexual battery for Soto and Machuca on the requested counts.

       {¶51} The jury instructions for the Soto counts, that began at Count 8, were

preceded by a side bar. The court observed that the sexual battery instructions properly

provided that a person should not engage in sexual conduct with another not their spouse,

when 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.            However, the

instructions did not state that the jury had to find that the parties engaged in sexual

conduct in order to find the offender guilty of sexual assault. The state agreed.

       {¶52} The following exchange ensued regarding the instruction:

       Defense Counsel:       Would you also be able to read, Judge — I know
                              before you give them the lesser included you say it’s
                              differentiated from rape by — are you able to find
                              that in your instructions?

       Court:        Yeah.

       Defense Counsel:       Did you find that confusing at all or — I want to
                              make sure if we’re going to do it again we make sure
                              we get it all right.

       Court:        It says, the offense of sexual battery is distinguished from
                              rape by the absence or failure to show that he knew
                              the other person’s ability to appraise the nature of or
                             control his or her own conduct was substantially
                             impaired or significantly weakened.

      Prosecutor:            That’s actually — you know, it’s failure to prove that
                             he induced it. They caused it by force. They inserted
                             the elements of sexual battery, next to the failure to
                             prove.

                             So, [Defense Counsel] is right, that is wrong.

(Tr. 1117-1119.)

      {¶53} The trial court addressed the sexual battery clarification during the jury

instruction on Soto’s Count 9 rape (vaginal intercourse and administering an intoxicant).

The court explained:

      Now, with this count, as was charged earlier under this particular charge of
      rape, you’re also going to consider the lesser included offense of sexual
      battery, which is a lesser included offense of this particular count.

      When we were on break, I discussed the instruction that you were read.
      The purpose of receiving a lesser included offense is correct as read to you.
       But in my discussions with the attorneys, we agreed that the — what
      sexual battery as defined was confusing as it was contained in these
      instructions.

      So, we’ve clarified that for you right now.

      If you find that the state failed to prove beyond a reasonable doubt all the
      essential elements of rape as defined under R.C. 2907.302(A)(1), then your
      verdict must be guilty of that offense.

      In that event or if you’re unable to unanimously agree, you would continue
      your deliberations to decide whether the state has proven beyond a
      reasonable doubt all the essential elements of the lesser included offense of
      sexual battery.

      Now, the offense of sexual battery is distinguished from rape as charged
      under that section by the absence or the state’s failure to prove that the
      defendants substantially impaired the alleged victim’s judgment or control
       by administering a drug, intoxicant, or controlled substance, to her,
       surreptitiously or by force, threat of force, or deception.

       So, if you were to find beyond a reasonable doubt that element was not
       proven by the state as alleged in that count of rape, then you’re allowed to
       consider the lesser included form of sexual battery.

       Sexual battery as defined in R.C. 2907.03 states that, no person shall engage
       in sexual conduct with another, not the spouse of the offender, when 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.

       Does that clarify it a little for you as to what sexual battery is?

       All right, thank you.

       We’re going to make amendments to these instructions to comply with the
       modifications that we made.

       So, the term knowingly has been previously defined. That same definition
       applies here.

       If you find the state proved beyond a reasonable doubt all the elements of
       the lesser included offense of sexual battery, your verdict must be guilty.
       You will then indicate your findings on the verdict form.

       If you find the state failed to prove beyond a reasonable doubt any one or
       more of the essential elements of the lesser included offense of sexual
       battery, your verdict must be not guilty.

       And when you reach a finding, you would make your findings on the
       verdict form.

(Emphasis added.) (Tr. 1125-1129.)

       {¶54}       The trial court not only corrected the instruction, it repeated the

explanation. To insure that the jury was not confused, as is more fully detailed in the

analysis of Soto’s third assigned error, the trial court polled the jury after the verdict, as to

Count 13 finding Soto guilty of fellatio by causing intoxication (R.C. 2907.02(A)(1)(a)).
The trial court confirmed their understanding of the charge, the lesser included offense,

and their verdict. We do not find that “but for the error, the outcome of the trial clearly

would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804

(1978). The second assignment of error is overruled.

              3.       Third Assignment of Error

      {¶55} Soto next argues that, while the trial court provided proper instructions on

the lesser included offense of sexual battery for the other rape by impairment counts, the

trial court committed plain error by failing to recite the sexual battery instruction on

Count 13. The record reflects that the trial court failed to give the instruction on Count

13; however, we cannot say that the trial court committed plain error.        Soto cannot

demonstrate that, but for the error, the outcome of the proceedings would have been

different. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; Williford, 49

Ohio St.3d 247, 251, 551 N.E.2d 1279.

      {¶56}        During closing arguments, the state explained that sexual battery is a

lesser included offense of the rape by impairment charges, and specifically named Counts

9, 11, and 13 for Soto. (Tr. 1146-1147.) The state also distinguished between the

impairment elements of rape and sexual battery.     The state pointed out that, in the case

of rape impairment, the offender has a role in causing the impairment.         In contrast,

sexual battery impairment requires that the offender have knowledge that the victim is

impaired, and is unable to appraise the nature of the victim’s conduct, regardless of

causation.
       {¶57}    The verdict forms for Count 13 included both the principal and lesser

included offenses.     Due to the presence of a “scribble” on the verdict form, the court

polled the jury to ensure there was no confusion:

       And on count thirteen, the charge of rape, there is a finding of guilty. This
       is the charge of rape. Juan Soto, did engage in sexual conduct, fellatio,
       with [M.R.]. Now there is a notation or some type of scribble on that
       verdict form. So I’m going to poll the jury, make sure that I’m reading
       this correctly.

(Tr. 1206.)

       {¶58}        Each juror confirmed that Soto was determined to be guilty of the

principal offense of rape (fellatio) by impairment under R.C. 2907.02(A)(1).       The trial

court also stated for the record that the jury indicated “not guilty” on the verdict form for

the lesser included offense of sexual battery for Count 13.

       {¶59} Based on the foregoing, the third assignment of error is overruled.

       B.      The Evidence

               1.      Fourth, Fifth, and Sixth Assignments of Error

       {¶60}        Soto challenges the manifest weight of the evidence in the sixth

assignment of error, the sufficiency of the evidence in the fourth assignment of error, and

the denial of Soto’s Crim.R. 29 motion for judgment of acquittal in the fifth assignment

of error. Appellate review of the denial of a Crim.R. 29 motion is identical to reviewing

whether the evidence was legally sufficient to sustain the defendant’s convictions. State

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

combine our analysis for purposes of judicial economy.
       {¶61} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997).         “Sufficiency of the evidence is a test of

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

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

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

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

court is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.”   Thompkins at 387.

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

verdict is a question of law.   State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148, 1955

Ohio LEXIS 604 (Feb. 2, 1955).”        Thompkins at 386. It is, “an inquiry about due

process, * * * the resolution of which does not allow the court to weigh the evidence.”

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶63} “[A] determination that a conviction is supported by the weight of the

evidence will also be dispositive of the issue of sufficiency.” State v. Moore, 8th Dist.

Cuyahoga No. 98178, 2012-Ohio-5891, ¶ 12, quoting Cleveland v. Roche, 8th Dist.

Cuyahoga No. 96801, 2012-Ohio-806, ¶ 8. Thus, we consider whether our finding on

the manifest weight of the evidence error is dispositive here.

       {¶64} A manifest weight inquiry looks at whether the evidence was substantial

enough for a jury to reasonably conclude that all of the elements of the alleged crime have
been proved beyond a reasonable doubt.        We sit   “as a thirteenth juror.” Thompkins at

387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

      {¶65}    We review the entire record, consider the credibility of the witnesses,

weigh the evidence and all reasonable inferences, and determine whether the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.       Martin at 175.       “Weight is not a question of

mathematics, but depends on its effect in inducing belief.” Black’s Law Dictionary

1594 (6th Ed.1990). State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541.

      {¶66}     Soto was convicted of violating R.C. 2907.02(A)(1)(a), as set forth in the

indictment:

      On or about July 13, 2014 to July 14, 2014 [Appellant] did engage in sexual
      conduct, to wit: fellatio with Jane Doe I who was not the spouse of the
      offender, by substantially impairing her judgment or control by
      administering a drug, intoxicant, or controlled substance to her
      surreptitiously or by force, threat of force, or deception.

 R.C. 2907.02(A)(1)(a) provides that no person shall engage in sexual conduct with

another not his spouse where:

      For the purpose of preventing resistance, the offender substantially impairs

      the other person’s judgment or control by administering any drug,

      intoxicant, or controlled substance to the other person surreptitiously or by

      force, threat of force, or deception.

      {¶67}    Soto argues that the state failed to demonstrate that Soto engaged in
fellatio with M.R. by substantially impairing her judgment or control, and that the only

DNA evidence was from Machuca.         Further, Soto contends that there is no evidence that

M.R. was forced to consume the alcohol and cocaine, or that she did not know what she

was consuming.

       {¶68}   M.R. testified that, after she consumed the drink that Soto handed to her at

the first house, she began to feel weak and did not feel “like herself.”   Soto then inhaled

cocaine, placed it in front of M.R., put his hand on her head and told her to inhale it.

Soto placed cocaine on his finger and inserted it into M.R.’s nostril. The toxicology report

supports the ingestion of alcohol and cocaine. Though overt threats were not made to

induce her to drink the beverage or inhale the cocaine, M.R. testified that she felt that she

did not have a choice.

       {¶69}     Soto drove M.R. to the second house. M.R. was still feeling weak, and

was not sure if she lost consciousness totally, or was “in and out” of consciousness. While

unsure of the order of occurrence, M.R. specifically remembered Machuca hitting her in

the face, and Soto “putting his penis in my mouth. And I remember them changing

places.” M.R.’s description of the sexual activities of Soto and Machuca remained

consistent in spite of memory inconsistencies regarding other events of that night.

       {¶70}      The evidence also demonstrates that M.R. was too intoxicated to give

valid consent. Turk testified that she waited for three hours until M.R. was coherent to

obtain consent. Schueler testified that M.R. tested positive for alcohol and cocaine and

estimated that, at the time M.R. was delivered to the home of N.A., M.R.’s alcohol level
was 0.102 grams per deciliter. Oblock testified that it was possible for a person to

engage in sexual activity and leave no evidence of DNA, and that the cold shower that

M.R. was placed in to keep her awake until the ambulance arrived may possibly have

removed DNA.

       {¶71}   In light of our review of the record, we find that the trial court did not lose

its way or create a manifest miscarriage of justice. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541.         As a result, Soto’s conviction is not against the

manifest weight of the evidence.         This conclusion is also dispositive of Soto’s

sufficiency claims. Moore, 8th Dist. Cuyahoga No. 98178, 2012-Ohio-5891, ¶ 12. The

fourth, fifth, and sixth assignments of error are overruled.

       {¶72}   The trial court’s order is 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. Case remanded to the trial court for

execution of sentence. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated.

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

the Rules of Appellate Procedure.

_____________________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR
