[Cite as State v. Freeman, 2011-Ohio-2663.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95511




                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               JAMES K. FREEMAN
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-530486

        BEFORE:           S. Gallagher, J., Cooney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: June 2, 2011
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Pinkey S. Carr
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:

      {¶ 1} Appellant James Freeman (“Freeman”) appeals his conviction in Cuyahoga

County Common Pleas Court Case No. CR-530486 of four counts of rape in violation of R.C.

2907.02(A)(1)(c) and two counts of gross sexual imposition (“GSI”) in violation of R.C.

2907.05(A)(5).   For the following reasons, we affirm the conviction and sentence.
         {¶ 2} A.S. and her family stayed at a Staybridge Suites (“Staybridge”) in Mayfield

Heights, Ohio, for an extended period of time because of a fire that destroyed their home.

The parents were in the process of viewing temporary rentals to move the family out of the

hotel and into a house or apartment while their house was being repaired.    A.S. was 15 years

old at that time.   Staybridge employed the 32-year-old Freeman as a maintenance worker.

A.S. had incidental contact with Freeman during her stay, and they engaged in small talk on a

number of occasions.

         {¶ 3} On October 20, 2009, A.S. approached Freeman and began a conversation.

A.S.’s parents left the hotel for a 15-minute trip to view a temporary home for the family.

Freeman’s shift had ended, and he was on his way to his van, parked in the parking lot of the

hotel.   The conversation turned to whether A.S. smoked.       After discussing this, Freeman

asked if A.S. wanted to smoke some marijuana.     A.S., who admitted smoking marijuana on at

least two prior occasions, agreed.   A.S. told him she was only 15 years old.   Freeman drove

to the store to pick up a cigarillo while A.S. went back to her room to change into her pajamas.

         {¶ 4} Upon Freeman’s return, A.S. was told to wait in his van while Freeman spoke

to another hotel employee.    According to Freeman, he had to purchase the marijuana from

the other employee.    After the purchase, Freeman decided his current parking spot may be

too conspicuous, so he moved the van, with A.S. inside, to the other side of the parking lot.

The new spot was more remote, but still in the Staybridge parking lot.
       {¶ 5} A.S. took three “puffs” of the marijuana, which was rolled in the cigarillo

Freeman recently purchased.     A.S. was talking with Freeman while they were smoking the

marijuana, which, according to her testimony, was only for a few minutes.            They both

smoked the same marijuana.     A.S. testified that she took the third puff two to three minutes

after the first two because the first two were not “taking full effect.”    After the third, she

declined further use.   She felt really “zoned out,” but not “zombie like.”      She could not

grasp the reality of where she was located and what was happening.       A.S. told Freeman she

“was high.”   According to A.S., Freeman began making sexual comments and then started to

caress her arm, breasts, buttocks, and vagina.   A.S. never said to stop because she was zoned

out and scared he would hurt her.    A.S. testified at trial to telling Freeman “no” three times

during the encounter and initially resisting     oral sex.    The sexual-assault treating nurse

testified that A.S. told Freeman “no not here” at one point, but did not directly say “no.”

Freeman never made any threatening remarks.

       {¶ 6} Freeman “nudged” A.S. to the backseat of the van where a bed was set up.

Freeman used the bed to take naps during his breaks at work.       The incident escalated from

oral sex being performed on both to vaginal penetration.     During the encounter, Freeman told

A.S. that he was about to ejaculate, and she responded, “not inside of me.”           A.S. was

concerned about pregnancy.      Freeman then disclosed his vasectomy.       Before she left the
van, Freeman told A.S. that this would be their little secret.       Freeman claims that A.S.

initiated the sexual encounter and that A.S. told him she was 18 years old.

       {¶ 7} After exiting the van, A.S. started walking to the front of the Staybridge where

her dad found her.    A.S.’s parents had been looking for her for around 45 minutes after they

came back to the hotel and realized she was not in their room.    Her father walked her into the

hotel and to A.S.’s mother.    A.S.’s mother spoke to A.S. who disclosed the assault.

       {¶ 8} Sergeant Douglas Suydam executed the arrest warrant and interviewed

Freeman.    Freeman told Sgt. Suydam that the marijuana was very potent or strong, referring

to it as “cush,” and that two or three drags will get you high.    Freeman also said that A.S.

mentioned she was high after the third puff and he admitted that it was wrong to give

marijuana to a juvenile.

       {¶ 9} After a bench trial, the trial court found Freeman not guilty of one count of

kidnapping with a sexual motivation specification; not guilty to four counts of rape by using

force or the threat of force, R.C. 2907.02(A)(2); and not guilty to two counts of GSI by using

force or the threat of force, R.C. 2907.05(A)(1).   The trial court found Freeman guilty of four

counts of rape and two counts of GSI when the victim’s ability to resist or consent is

substantially impaired because of a physical or mental condition, R.C. 2907.02(A)(1)(c) and

2907.05(A)(5), respectively.    Freeman was sentenced to an aggregate term of seven years of

incarceration.   This timely appeal followed.
           {¶ 10} Freeman raises two assignments of error that will be dealt with together.    The

first assignment of error is as follows:    “The evidence was insufficient to support convictions

for rape and gross sexual imposition.”       The second assignment of error is as follows: “The

convictions for rape and gross sexual imposition were against the manifest weight of the

evidence.”      Freeman’s first and second assignments of error are not well taken.

           {¶ 11} In reviewing a claim of insufficient evidence, “‘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.’”

 State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State

v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The

weight to be given the evidence and the credibility of the witnesses are primarily for the trier

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

           {¶ 12} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether “there is substantial evidence upon which a jury could

reasonably conclude that all the elements have been proved beyond a reasonable doubt.           In

conducting this review, we must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, 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.”      (Internal citations and quotations omitted.) State v.

Leonard, 104 Ohio St.3d at ¶ 81.

       {¶ 13} Freeman      was    convicted   of   four    counts   of   rape   in   violation   of

R.C. 2907.02(A)(1)(c) and two counts of GSI in violation of R.C. 2907.05(A)(5).           The two

statutes, in pertinent part and respectively, provide as follows:

       “(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:

       **

       “(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 resist or consent is substantially impaired because of a mental or
       physical condition or because of advanced age.”

       and

       “(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:

       **

       “(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.”
       {¶ 14} Both violations require that the defendant knows or has reasonable cause to

believe that the victim’s ability to resist or consent is substantially impaired. Freeman

challenges the sufficiency and weight of evidence establishing that he was aware that the

victim’s ability to resist or consent was substantially impaired. For that reason, we will address

both counts together.

       {¶ 15} The phrase “substantially impaired” is not defined in the Ohio Revised Code.

In State v. Zeh (1987), 31 Ohio St.3d 99, 103, 509 N.E.2d 414, the Ohio

Supreme Court held that it “must be given the meaning generally understood

in common usage.”           It is sufficient for the state to establish substantial

impairment by establishing a reduction or decrease in the victim’s ability to

act or think. Id. at 103-04. “Substantial impairment does not have to be

proven by expert medical testimony; rather, it can be shown to exist by the

testimony of people who have interacted with the victim * * *.” State v.

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

intoxication or impairment is included in the terms “mental or physical

condition” as used in R.C. 2907.02(A)(1)(c). State v. Doss, Cuyahoga App. No.

88443, 2008-Ohio-449, ¶ 15, citing In re King, Cuyahoga App. Nos. 79830 and

79755, 2002-Ohio-2313.

       {¶ 16} R.C. 2907.02(A)(1)(c), and likewise R.C. 2907.05(A)(5), was not

intended to criminalize sexual conduct as the result of an alcohol or
drug-induced state of lowered inhibitions.                 “A person’s conduct becomes

criminal under this section only when engaging in sexual conduct with an

intoxicated victim when the individual knows or has reasonable cause to

believe that the victim’s ability to resist or consent is substantially impaired

because of voluntary intoxication.” Doss, 2008-Ohio-449, at ¶ 15.                     This court

previously acknowledged:

       “[T]here can be a fine, fuzzy, and subjective line between intoxication and
       impairment. Every alcohol consumption does not lead to a substantial impairment.
       Additionally, the waters become even murkier when reviewing whether a defendant
       knew, or should have known, that someone was impaired rather than merely
       intoxicated. Of course, there are times when it would be apparent to all onlookers
       that an individual is substantially impaired, such as intoxication to the point of
       unconsciousness. On the other hand, ‘a person who is experiencing [an alcohol
       induced] blackout may walk, talk, and fully perform ordinary functions without
       others being able to tell that he is “blacked out.”’”

Id. at ¶ 18.       We see no reason to distinguish voluntarily ingesting alcohol from voluntarily

ingesting drugs.     See R.C. 2901.21(D).   The rationale from the Doss court equally applies to both

scenarios.

       {¶ 17} There is a continuum between impairment and unconsciousness, somewhere in between

being the line of what is legally sufficient to establish substantial impairment.   The continuum with

drugs and younger, inexperienced users can be much shorter, but the continuum exists nonetheless.

Once it is established that the victim was substantially impaired, the state must establish that the

defendant knew or had cause to reasonably believe the victim was substantially impaired, either

physically or mentally.     Doss, 2008-Ohio-449, at ¶ 18.
       {¶ 18} On that point, the Doss case is instructive.       The victim in Doss consumed

excessive amounts of alcohol during the course of one New Year’s Eve.            She testified to

blacking out around midnight and not remembering anything until eight o’clock the next

morning.       A bartender testified that the victim was only served water after midnight because

she was severely intoxicated, slumping over while sitting at tables, and generally not being

aware of her surroundings.          By all outward appearances, the victim was extremely

intoxicated.     In reversing the conviction, the Doss court held that the bartender’s statements

about the victim “does not give rise to the inference that appellant knew, or should have

known, about such impairment.”        Id. at 22; see, also, State v. Schmidt, Cuyahoga App. No.

88772, 2007-Ohio-4439 (noting the victim walked and talked normally prior to the sexual

encounter and only “passed out” momentarily before the vaginal penetration for which she did

not consent).     Thus, the evidence establishing that the offender knew or should have known

of the victim’s substantial impairment is based on the totality of the circumstances surrounding

the interaction between the offender and the victim.

       {¶ 19} For illustrative purposes, there are numerous cases where the state established

the offender’s knowledge of the substantial impairment through evidence of the offender being

privy to or responsible for the substance creating the substantial impairment, or the victim

being asleep or unconscious. In re King, 2002-Ohio-2313 (noting the victim drank six to

eight triple shots of hard liquor, had a blood alcohol concentration of .25 when admitted to the
hospital, and was passed out prior to the assault); State v. Blazer, Cuyahoga App. No. 93980,

2010-Ohio-6367 (noting the 15-year-old victim consumed a quarter of a bottle of vodka and

vomited in front of the defendant before passing out while the assault occurred); State v.

Felton, Cuyahoga App. No. 92295, 2010-Ohio-4105 (noting the victim drank 12 beers and

several shots of liquor and passed out before the assault occurred); State v. Martin (Aug. 14,

2000), Brown App. No. CA00-09-026 (noting the victim drank ten shots of tequila and two

beers before feeling numb and repeatedly vomiting in front of the defendant who supplied all

the liquor); State v. Eberth, Mahoning App. No. 07-MA-196, 2008-Ohio-6596 (finding

sufficient evidence to convict the defendant because there was evidence that defendant

engaged in sexual conduct with an unconscious victim); State v. Prater, 12th Dist. No.

CA2006-01-017, 2006-Ohio-7028 (noting that witnesses observed the victim staggering and

stumbling all evening before finally passing out prior to the assault).   This does not mean that

every case requires proof of an unconscious, vomiting, staggering, or slurring victim.     Those

are just factors to consider in determining whether the victim is substantially impaired by a

physical condition.

       {¶ 20} In the current case, we disagree with Freeman and find there is substantial

evidence establishing beyond a reasonable doubt that A.S. was substantially impaired based on

her own testimony and that of her parents.       A.S. testified that she was “zoning out” and

“didn’t grasp the * * * realization of where [she] was.”      She remembered feeling “buzzed”
and tired.   According to A.S., she felt trapped inside her mind.          In addition, both A.S.’s

parents indicated that their daughter appeared to be “zoned out” and “zombie like.”

       {¶ 21} The more difficult issue raised is whether Freeman knew or had cause to

reasonably believe that A.S.’s ability to resist or consent was substantially impaired by a

physical or mental condition.    To establish Freeman’s knowledge, or lack thereof, we analyze

all the facts and circumstances in existence at the time of the event.        We initially note that

during the trial, A.S. testified to telling Freeman “no” several times, trying to push him back at

one point, and avoiding sexual contact another time.           That testimony contradicted A.S.’s

version of the incident given to the sexual-assault treating nurses the night of the assault.

While A.S.’s trial testimony arguably is evidence that her ability to consent was not impaired

by the more potent marijuana, the trial court was free to weigh the credibility and resolve the

inconsistencies within the context of all the testimony adduced at trial.     The trial court, as the

trier of fact, was free to accept A.S.’s version of the incident as it was given to the

sexual-assault treating nurse the night of the incident.

       {¶ 22} We now look at Freeman’s conduct, in relation to the victim’s physical

condition, to determine whether he knew or had reasonable cause to believe the victim’s

ability to resist or consent was substantially impaired.      In this instance, Freeman supplied the

substance that led to the physical impairment.             It is true A.S. voluntarily smoked the

marijuana, but Freeman purchased the stronger, more potent marijuana after spending enough
time with A.S. to know that the young girl was staying at the hotel with her parents.

Freeman was also aware that two or three drags or puffs would make anyone high, much less a

15-year-old.     A.S. told Freeman she was in fact high.    The trial court reasonably concluded

that Freeman was aware that A.S. was substantially impaired to the point that it affected her

ability to control her conduct or resist.     The sexual-assault treating nurse relayed A.S.’s

statement that she did not consent or resist during the encounter.          When asked by Sgt.

Suydam, Freeman admitted he knew A.S. was high and was a juvenile.            A.S. demonstrated a

reduction in ability to control her conduct in an environment established by Freeman.           She

testified to being trapped in her mind.   In consideration of those factors, the trial court did not

err by finding that the state proved every element of rape and GSI beyond a reasonable doubt.

       {¶ 23} Substantial impairment is a physical condition that must be established by facts

in the record.    Nevertheless, assessing the level of impairment exhibited by a victim and the

offender’s appreciation of that level of impairment is not done in a vacuum.        The totality of

facts and circumstances in existence at the moment where resistance or consent is established

are all relevant in assessing the offender’s knowledge of the victim’s impairment.

       {¶ 24} Here, Freeman not only created the victim’s condition impacting her ability to

resist or consent, he also controlled the environment where she would have to make such a

decision.   Freeman set into motion a scenario where the young victim ended up in his van in

a remote part of a parking lot at night, where he supplied the marijuana with an awareness of
its potency, where he was aware of the youthfulness of A.S. and the possible effect drugs

might have on her, and where she told him she was “high.”        In light of these circumstances

and given her physical condition establishing substantial impairment, there is substantial

evidence upon which the trial court could conclude that Freeman was aware that          A.S. was

substantially impaired to the point that it affected her ability to control her conduct or resist.

Her testimony, as well as her parents’ testimony, if believed, was sufficient to sustain a

conviction.   Furthermore, upon our review of the entire record, we do not find the conviction

was against the manifest weight of the evidence.

       {¶ 25} Freeman’s first and second assignments of error are overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

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

court to carry this judgment into execution.         The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

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

Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
