[Cite as State v. Scruggs, 2019-Ohio-3043.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 107860
                 v.                                 :

GREGORY SCRUGGS, JR.,                               :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: July 25, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-628628-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Christine M. Vacha, Assistant Prosecuting
                 Attorney, for appellee.

                 Edward M. Heindel, for appellant.


MARY EILEEN KILBANE, A.J.:

                   Defendant-appellant, Gregory Scruggs, Jr. (“Scruggs”), appeals his

convictions for rape and sexual battery. For the reasons set forth below, we affirm.
              In January 2018, Scruggs was charged with four counts of rape, three

counts of kidnapping, and one count attempted rape.1 The charges arose from

separate incidents, involving three victims, and each was alleged to have occurred,

approximately a year apart, between June 2015 and July 2017.

              In September 2018, the trial court granted Scruggs’s motion to sever

the counts pertaining to each victim. In the same month, a jury trial commenced

on one count each of rape and kidnapping pertaining to victim T.M.

              At trial, 25-year-old T.M. testified that on July 23, 2017, she spent

time with her best friend, Jamica, and her cousin, Van. They drove around, drank

alcohol, and smoked marijuana. T.M. stated they bought a fifth of Hennessy and

started drinking around noon. The three shared the alcohol as they drove around.

              T.M. testified that around 6:00 p.m., they stopped to visit her sister

T.M.II. While visiting her sister, T.M. exchanged text messages with a man named

Maurice Bryant (“Bryant”), whom she had met several weeks earlier. Bryant

indicated he would pick her up from her sister’s house, so they could spend time

together.

              Bryant arrived at T.M.II’s house around 7:00 p.m. Bryant was

accompanied by another man, who was later identified as Scruggs. T.M. and Jamica

entered Bryant’s car and the four began driving around. Bryant and Scruggs were

drinking alcohol and offered the women a drink, but they declined. T.M. testified


      1  Each rape count and the attempted rape count contained a sexually violent
predator specification. The kidnapping counts contained both sexual motivation and
sexually violent predator specifications.
she declined because she was already drunk, had been drinking dark liquor all day

and Bryant and Scruggs were drinking light liquor.

               T.M. testified that after driving around for a while, and after Bryant

made stops at several houses, they went to Scruggs’s house. Once there, the four

sat around watching television. At some point, T.M. left with Bryant to go to the

liquor store. When they returned to Scruggs’s house, they continued to watch

television. T.M. testified that while they were watching television, she fell asleep on

the couch next to Bryant and Jamica, who were already asleep.

               T.M. testified that at some point during the middle of the night, she

awoke because she felt as if she was falling off the couch. T.M. stated the living room

was dark, the television had been turned off, her shorts and underwear were pulled

down, and she felt someone inserting his penis into her vagina. T.M. stated she

pushed him off, pulled up her shorts, and went back to sleep because she still felt

drunk. T.M. testified that she was awakened a second time when someone inserted

his penis into her vagina. T.M. stated she again pushed him off her and pulled up

her shorts. T.M. stated that as she was trying to become fully awake, she observed

Bryant coming through the front door. T.M. told Bryant she was ready to leave and

he took her home.

               T.M. testified that she called T.M.II early the next morning and

described what occurred and later went to the hospital where a rape kit was

completed and where she indicated Bryant was the perpetrator.             When T.M.

reported the incidents to the police, she also indicated Bryant was the assailant.
              T.M. testified that she subsequently sent Bryant a text stating, “[i]f

you wanted to have sex then you could have just asked me. And then I told him to

lose my number, and he said he already did.” T.M. testified that at the time she sent

the text, she thought it was Bryant who had sexually assaulted her so she was

surprised when the rape-kit results indicated it was Scruggs who had committed the

sexual assault.

              T.M.’s older sister, T.M.II, testified that on July 23, 2017, T.M. and

Jamica visited with her for a few hours. T.M.II stated her sister was drunk when she

arrived, but that she continued drinking. T.M.II testified that Jamica was also drunk

and fell asleep on the couch. T.M.II stated that someone in a dark-colored vehicle

picked up her sister and Jamica. T.M.II testified that because she did not know the

individual who picked up T.M., she communicated with her sister via text

throughout the rest of the evening. T.M.II stated that the following morning, her

sister contacted her and informed her of the sexual assault.

                  Scruggs testified on his own behalf. Scruggs testified he and Bryant

picked up T.M. and her friend between 6:30 and 7:00 p.m. on July 23, 2017.

Scruggs stated that he and Bryant were drinking, offered the women a drink, but

T.M. refused and informed them she would not drink light liquor because she had

been drinking dark liquor. Scruggs stated they drove around for about an hour and

then went to the house where he lived with his grandmother.

              Scruggs testified that while at his grandmother’s house, they sat

around watching a show called “Power,” while T.M.’s friend slept on the couch.
Scruggs stated T.M. left with Bryant and they returned about 45 minutes later.

Scruggs stated that a short time later, Bryant left again.

               Scruggs testified that after Bryant left, he and T.M. began talking and

flirting with each other. Scruggs stated that he and T.M. went into a room adjacent

to the living room where they had consensual sex. Scruggs stated that T.M. asked if

he had any money and he told her that he did. Scruggs stated they had sex in two

different rooms. Scruggs testified that after they had sex, T.M. asked him not to tell

Bryant and he told her he would not. After Bryant returned, he and Scruggs dropped

T.M. and Jamica home.

               The jury found Scruggs guilty of rape, but not guilty of kidnapping.

Thereafter, Scruggs pled guilty to two counts of sexual battery relating to victims

D.A. and E.W. The trial court sentenced Scruggs to five years in prison for rape and

to two years each for the sexual battery charges. The trial court ordered concurrent

sentences for a total prison term of five years.

               Scruggs now appeals, assigning the following four errors for review:

                              Assignment of Error One

      The conviction for rape was against the manifest weight of the evidence.

                              Assignment of Error Two

      The conviction for rape was not supported by sufficient evidence.

                             Assignment of Error Three

      Scruggs was denied his right to the effective assistance of counsel, when
      counsel failed to subpoena and call witnesses to testify on Scruggs’
      behalf.
                             Assignment of Error Four

      The trial court erred when it did not have a full plea colloquy with
      Scruggs pausing to further explain the important rights he was waiving
      by pleading guilty to sexual battery.

                            Sufficiency of the Evidence

              For ease of discussion, we will begin with the second assignment of

error, wherein Scruggs argues that his conviction for rape was not supported by

sufficient evidence.

              Sufficiency is a test of adequacy. Whether the evidence is legally

sufficient to sustain a verdict is a question of law. State v. Williams, 8th Dist.

Cuyahoga No. 106563, 2018-Ohio-4612, citing State v. Thompkins, 78 Ohio St.3d

380, 386, 1997-Ohio-52, 678 N.E.2d 541. When reviewing the sufficiency of the

evidence to support a criminal conviction, an appellate court examines 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. Id. 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., citing State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

              The jury found Scruggs guilty of rape in violation of R.C.

2907.02(A)(1)(c). This statute provides in pertinent part that “[n]o person shall

engage in sexual conduct with another” when “the other person’s ability to resist or

consent is substantially impaired because of a mental or physical condition,” 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.”

               Scruggs does not deny that sexual conduct occurred. Rather, he

argues that the state failed to offer sufficient evidence either that T.M. was

substantially impaired or that he knew, or had reasonable cause to believe, that she

was substantially impaired and not able to consent. As a result, we need only

address the element of substantial impairment.

               In State v. McCall, 8th Dist. Cuyahoga No. 104479, 2017-Ohio-296,

we stated:

       As for the element of substantial impairment, this court has repeatedly
       held that “sleep constitutes a mental or physical condition that
       substantially impairs a person from resisting or consenting to sexual
       conduct.” State v. Jones, 8th Dist. Cuyahoga No. 98151, 2012-Ohio-
       5737, ¶ 30, citing State v. Clark, 8th Dist. Cuyahoga No. 90148, 2008-
       Ohio-3358, ¶ 21.

Id. at ¶ 7.

               In the instant case, T.M. testified that she was twice awakened when

someone, whom she thought was Bryant, but actually was Scruggs, had inserted his

penis into her vagina. T.M. read the last text message she sent to Bryant, which

stated: “That’s crazy as f**k. If you wanted to f**k, you could’ve told me. You ain’t

have to do it while I was asleep but it’s cool.”
              The above excerpt reveals that T.M. was substantially impaired by

sleep at the time of the incidents such that she was unable to resist or consent to

Scruggs’s sexual conduct.

              In addition, T.M. testified that she had been drinking for several

hours prior to being picked up by Bryant and was already drunk. T.M.II testified

that T.M. was drunk when she arrived at her house, but continued to drink. T.M.II

also testified that T.M.’s friend and drinking companion, Jamica, was so inebriated

that she slept most of time she was at T.M.II’s house. The testimony also established

that Jamica was asleep most of the time spent at Scruggs’s house.

              The consumption of a large amount of alcohol over the course of just

a few hours is sufficient evidence to find that the victim was substantially impaired.

State v. Patterson, 8th Dist. Cuyahoga No. 104266, 2017-Ohio-1444, citing State v.

Kuck, 2016-Ohio-8512, 79 N.E.3d 1164, ¶ 95 (2d Dist.).

              Based on the foregoing, and the physical evidence linked to Scruggs,

we conclude there was sufficient evidence presented which, if believed, would

convince the average trier of fact that Scruggs was guilty beyond a reasonable doubt

of rape.

              Accordingly, the second assignment of error is overruled.

                            Manifest Weight of Evidence

              In the first assignment of error, Scruggs argues his rape conviction is

against the manifest weight of the evidence.
               A manifest weight challenge questions whether the prosecution met

its burden of persuasion. State v. Tate, 8th Dist. Cuyahoga No. 97804, 2014-Ohio-

5269, rev’d on other grounds, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888,

citing State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When

considering a manifest weight challenge, a reviewing court reviews the entire record,

weighs the evidence and all reasonable inferences therefrom, considers the

credibility of the witnesses and determines whether the finder of fact clearly lost its

way. Id., citing State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938,

¶ 29. A reviewing court may reverse the judgment of conviction if it appears that 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. Id.

               We note that in considering a manifest weight challenge, the trier of

fact is in the best position to take into account inconsistencies, along with the

witnesses’s manner, demeanor, gestures, and voice inflections, in determining

whether the proffered testimony is credible. State v. Frost, 8th Dist. Cuyahoga No.

106964, 2019-Ohio-93, ¶ 28, citing State v. Becker, 8th Dist. Cuyahoga No. 100524,

2014-Ohio-4565, ¶ 37, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-

Ohio-2999, ¶ 26. Therefore, we afford great deference to the factfinder’s

determination of witness credibility. State v. High, 8th Dist. Cuyahoga No. 106198,

2018-Ohio-2236, citing State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-

1060.
               As previously discussed, Scruggs does not dispute that he engaged in

sexual conduct with T.M.; rather, he argues that the jury’s conclusion that it was

without T.M.’s consent is against the manifest weight of the evidence.

               Notwithstanding Scruggs’s arguments, based on the specific facts and

circumstances of this case, we conclude that the jury’s conclusion that the sexual

conduct was not consensual is not against the manifest weight of the evidence.

Ultimately, this case turned on whether the jury believed T.M.’s or Scruggs’s version

of events. The jury was in the best position to view T.M. and Scruggs, to observe

their demeanor, gestures, voice inflections, and then conclude who was more

credible.

               As a result, the jury was free to accept or reject any or all of the parties’

testimony, but decided to accept T.M’s testimony that she did not and was not able

to consent to sexual conduct with Scruggs because she was asleep and drunk. In

light of the foregoing, when considering T.M.’s credibility and resolving conflicts in

the evidence, we do not find that the jury clearly lost its way in convicting Scruggs.

               Accordingly, the first assignment of error is overruled.

                          Ineffective Assistance of Counsel

               In the third assignment of error, Scruggs argues he was denied the

effective assistance of counsel because of counsel’s failure to subpoena and call

various witnesses to testify on his behalf.

               For a defendant to establish a claim for ineffective assistance of

counsel, he or she must demonstrate that trial counsel’s performance was deficient
and that the deficient performance prejudiced his or her defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish prejudice, the

defendant must demonstrate there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland at 694.

              In evaluating a claim of ineffective assistance of counsel, a court must

give great deference to counsel’s performance. Id. at 689. “A reviewing court will

strongly presume that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” State v.

Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy

or tactical decisions cannot form the basis for a claim of ineffective counsel.” State

v. Logan, 8th Dist. Cuyahoga No. 106868, 2018-Ohio-5350, citing State v. Foster,

8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. Clayton, 62

Ohio St.2d 45, 402 N.E.2d 1189 (1980).

              Scruggs argues defense counsel was ineffective for failing to call

Bryant as a witness, who could have testified that T.M. was coherent, was able to

carry on a full conversation, and most importantly was able to consent to sexual

intercourse. Scruggs also argues that defense counsel was ineffective for failing to

call Jamica as a witness, who could have testified whether T.M. was looking for a

sexual relationship when she contacted Bryant and could also testify whether T.M.

was in a position to consent.
               Generally, an attorney’s determination of which witnesses to call falls

within the realm of trial strategy and will not be second-guessed on appeal. State v.

White, 8th Dist. Cuyahoga No. 101576, 2017-Ohio-7169, citing State v. Treesh, 90

Ohio St.3d 460, 490, 2001-Ohio-4, 739 N.E.2d 749; State v. Vargas, 8th Dist.

Cuyahoga No. 97376, 2012-Ohio-2767, ¶ 14. Thus, the mere failure to call witnesses

does not render counsel’s assistance ineffective absent a showing of prejudice.

               Here, defense counsel’s decision not to call Bryant and Jamica as

witnesses falls within the realm of trial strategy. We also find there is no showing of

prejudice by defense counsel’s decision. Scruggs’s own testimony established that

Bryant was not present when the sexual conduct occurred. Further, by Scruggs’s

own testimony, Jamica was asleep when the sexual conduct occurred.

               As a result, Scruggs was not prejudiced and therefore, his claim of

ineffective assistance of counsel is unpersuasive.

               Accordingly, the third assignment of error is overruled.

                                     Guilty Plea

               In the fourth assignment of error, Scruggs argues the trial court erred

when it failed to have a full plea colloquy on the sexual battery charges. We find no

merit to this assertion.

               Crim.R. 11(C)(2)(a) provides in pertinent part that “the court shall not

accept a plea of guilty or no contest without first addressing the defendant

personally and * * * [d]etermining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum penalty

involved[.]”

               The requirements of Crim.R. 11(C)(2)(a) are nonconstitutional, and

thus, this court reviews “to ensure substantial compliance” with this rule. State v.

Maddox, 8th Dist. Cuyahoga Nos. 106505 and 106506, 2018-Ohio-3056, citing

State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654. “Under this

standard, a slight deviation from the text of the rule is permissible; so long as the

totality of the circumstances indicates that ‘the defendant subjectively understands

the implications of his plea and the rights he is waiving.’” State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting State v. Nero, 56 Ohio

St.3d 106, 564 N.E.2d 474 (1990).

               Scruggs does not contend that the trial court failed to engage in a

proper Crim.R. 11 colloquy. Instead, Scruggs claims the trial court should have been

more detailed.

               In the instant case, prior to accepting Scruggs’s pleas, the trial court

asked if he was threatened or coerced and his response was no; asked if he was

promised anything to enter the pleas and his response was no; asked if he

understood the allegations and his response was yes; and when asked if he

understood a plea of guilt is a complete admission, his response was yes.

               In addition, the trial court carefully reviewed the offense to which

Scruggs would be pleading guilty, identifying the potential sentence he could

receive. Scruggs confirmed that he understood. The trial court specifically asked
if Scruggs understood that the pleas could not be accepted if he did not understand

that he would be waiving important constitutional rights.       The trial court then

proceeded to review all the constitutional rights that Scruggs would be waiving by

entering the pleas. In each instance, Scruggs indicated he understood.

                Following a thorough review of the record, we find that, under the

totality of the circumstances, Scruggs subjectively understood the consequences and

implications of his guilty pleas. As a result, his guilty pleas were knowingly,

intelligently, and voluntarily made and the trial court did not err in accepting his

guilty pleas.

                Accordingly, the fourth assignment of error is overruled.

      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 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.


______________________________________
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR
