[Cite as State v. Browder, 2014-Ohio-113.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99727




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 MICHAEL BROWDER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-564350

        BEFORE: S. Gallagher, P.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: January 16, 2014
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue East
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristin Karkutt
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

      {¶1} Defendant Michael Browder appeals his conviction, following a jury trial, in

which he was found guilty of rape and kidnapping and sentenced to 11 years of

imprisonment. For the following reasons, we affirm Browder’s conviction.

       {¶2} In June 2012, the victim, C.C., 16 years old at the time, was on her way home

when she encountered Browder.         Several witnesses, including C.C.’s family, the

responding EMS and police personnel, and C.C.’s school counselors established evidence

that C.C. is cognitively challenged. One responding officer went so far as treating C.C.

as if she were much younger than an average 16-year-old, and another officer made a

similar assessment after a brief two-minute conversation. The responding emergency

personnel stated that brief conversations with C.C. revealed several indications of her

cognitive   disabilities.   C.C.’s   school     counselors   confirmed   that   C.C.   was

developmentally behind her contemporaries, and C.C.’s family members indicated that

C.C. better related to much younger children.

       {¶3} On the day of the incident, C.C. and her younger cousin T.H. visited their

local swimming pool. C.C. left the pool to go home earlier than T.H., who normally

looked after C.C. despite being the younger of the two. When T.H. finally went home,

she realized that C.C. never arrived, and the family began a frenzied search. Hours later,

C.C. called her aunt, frantically describing her location and situation. According to C.C.,

on her way home from the pool, Browder, who was 57 years old at the time, walked off

his porch and directed C.C. to approach him. Browder grabbed C.C.’s arm and pulled
her into the house, saying that she looked like a nice girl. Browder offered a beer, which

C.C. declined. C.C. was scared and felt as if Browder would hurt her.

       {¶4} At this point in the narrative, C.C. told Browder she wanted to leave because

her family would be worried. Browder responded that she would need a taxi or an

umbrella because it was raining and invited C.C. to follow him to get his umbrella so she

could walk home. C.C. reluctantly complied, but did not know what to do at the time.

Once upstairs, Browder told her to sit down on the couch right next to him. He then

offered her $20 “to do something with him.” C.C. did not understand the request and

rejected the money. Browder persisted and placed the $20 bill into C.C.’s swimming

suit. C.C. immediately removed the money. Browder took C.C. into his bedroom, took

off his clothes, and told her to remove hers.

       {¶5} C.C. testified in detail, although through mostly childish vernacular, that

Browder proceeded to rape her, including, as pertinent to this appeal, a period of time in

which he forced acts of oral sex. C.C. stated that she screamed for help because of the

pain and fear, but Browder continued. At one point, Browder was interrupted by a knock

on the door, but C.C. was unable to escape.

       {¶6} After a period of time, C.C. was finally able to call her family on her cell

phone after Browder allowed her to plug it into a wall socket. Up to that point, her cell

phone’s battery was depleted, and she was unable to use it. Browder gave C.C. his

address and telephone number, and C.C. relayed the information to her family. C.C. ran
out of the house and was reunited with her family. Shortly thereafter, she was taken to

the hospital and treated.

       {¶7} Several of C.C.’s family, arriving at Browder’s home to help, attacked

Browder after finding C.C. Browder called 911 for his own protection. When the

police officers arrived, Browder complained of injuries and sought treatment. Browder

told the responding officers that C.C. was a prostitute, and the state recovered Browder’s

DNA from C.C.’s face, neck, and chest.

       {¶8} Unrelated to the immediate events of this case, a neighbor, K.S., testified to

an earlier encounter with Browder. K.S. was returning from her friend’s house early in

the morning of C.C.’s attack. When she was walking by Browder’s home, Browder

stepped off the porch and grabbed K.S. by the arm. K.S., however, was 44 years old and

able to jerk herself free. She told him to let go and quickly walked to her nearby home.

After seeing the commotion later in the day, she approached the investigating officers to

report the earlier altercation.

       {¶9} At trial, Browder presented two witnesses, his brother and another neighbor.

Both witnesses observed Browder together with C.C., but neither had any direct

communication or interaction with C.C. The neighbor, from her front porch, saw the

incident with K.S. earlier in the morning, but saw nothing out of the ordinary and thought

the two were just talking. She also saw C.C. approach Browder after being called by

him, but again, did not think any nefarious events were unfolding. Likewise, Browder’s
brother visited and saw C.C. sitting on a chair in the house. He testified that she seemed

natural and was not acting strange.

      {¶10} Browder was charged with three counts of rape in violation of

R.C. 2907.02(A)(1)(c) (based on digital penetration, cunnilingus, and fellatio,

respectively), one count of rape in violation of R.C. 2907.02(A)(2), one count of gross

sexual imposition in violation of R.C. 2907.05(A)(1), and one count of kidnapping in

violation of R.C. 2901.01(A)(4) with a sexual motivation specification. The jury found

Browder guilty of one count of rape, Count 3 involving fellatio, and kidnapping with the

sexual motivation specification.      The offenses were merged for the purposes of

sentencing.   All the other counts either were dismissed or a not guilty verdict was

rendered. The trial court sentenced Browder to 11 years of incarceration on the rape

count, with five years of mandatory postrelease control.

      {¶11} Browder appealed his conviction, raising two assignments of error, in which

he claims the trial court erred in denying Browder’s motion for acquittal because the state

failed to present sufficient evidence to sustain the conviction, or in the alternative, his

conviction is against the manifest weight of the evidence. For the following reasons, we

find no merit to Browder’s claims.

       {¶12} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 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.

       {¶13} Browder was convicted of one count of rape in violation of

R.C. 2907.02(A)(1)(c) and kidnapping in violation of R.C. 2905.01(A)(4). 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

       [n]o person, by force, threat, or deception, or, in the case of a victim under
       the age of thirteen or mentally incompetent, by any means, shall remove
       another from the place where the other person is found or restrain the
       liberty of the other person, * * * [t]o engage in sexual activity * * * against
       the victim’s will.

       {¶14} Browder claims there was no evidence that he, by force, threat, or deception,

removed C.C. from another place or restrained her liberty in any fashion, and therefore,

according to him, there was insufficient evidence to support the kidnapping charge.

Browder ignores C.C.’s testimony that he grabbed her arm, pulled her into the house, or

lured her into his bedroom by promising an umbrella and kept her in the bedroom despite
her attempted escape. C.C. further testified to multiple unwanted acts of sexual contact,

at times screaming for help and for Browder to stop. Only one of those incidents was

necessary to demonstrate that Browder restrained her liberty for the purposes of engaging

in sexual activity against C.C.’s will.

       {¶15} Even if we ignored the “deception” aspect of kidnapping demonstrated by

the offers of alcohol or search for the umbrella, as Browder implicitly asks, “force” is

defined as “any violence, compulsion, or constraint physically exerted by any means upon

or against a person or thing.” R.C. 2901.01(A). Browder focuses on the violence aspect

of “force” at the exclusion of compulsion or other physical constraint and claims force

cannot be established because Browder never overtly “threatened” C.C.

       {¶16} As this court continuously maintains, “force need not be overt and

physically brutal to accomplish its objective. The force and violence necessary under the

code depends upon the age, size and strength of the parties and their relationship to each

other.” State v. Sullivan, 8th Dist. Cuyahoga No. 63818, 1993 Ohio App. LEXIS 4859,

*10 (Oct. 7, 1993), citing State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988).

Browder’s specious argument that he never overtly threatened C.C., and therefore never

exerted force is overruled. There is sufficient evidence to support Browder’s kidnapping

conviction based on C.C.’s testimony that Browder grabbed her by the arm, pulled her

from the street, lured her to the interior of his home with beer or an offer of an umbrella,

and then engaged in sexual activity with C.C. against her will.
      {¶17} With regard to his rape conviction, Browder claims the state failed to

present evidence that C.C.’s ability to consent or resist was substantially impaired and

that Browder was aware of her substantial impairment.          The phrase “substantially

impaired,” however, is not defined in the Ohio Revised Code. In State v. Zeh, 31 Ohio

St.3d 99, 103, 509 N.E.2d 414 (1987), 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 103-104. “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, 8th Dist. Cuyahoga

No. 87854, 2007-Ohio-1453, ¶ 78. Further, the trier of fact can reasonably infer from a

combination of their observation of the victim’s demeanor and the defendant’s or other

witnesses’ interactions with the victim to determine whether a defendant knew or had

reasonable cause to believe that the victim was impaired. State v. Novak, 11th Dist. Lake

No. 2003-L-077, 2005-Ohio-563, ¶ 25.

      {¶18} The state presented several witnesses who observed within minutes of

conversing with her that C.C. had some form of mental impairment or other cognitive

disabilities. A few of those witnesses were the emergency responders attending to C.C.

immediately after the alleged rape occurred.      C.C.’s school psychologist testified to

C.C.’s learning deficiencies, her inability to express herself when something is wrong,

and her inability to understand the nature of her own limitations. C.C.’s family further
testified that her maturity level more aptly compared to a much younger cohort than

generally associated with an average 16-year-old. C.C.’s childish testimony supported

these observations. The state therefore presented sufficient evidence that Browder had

reasonable cause to believe that C.C.’s ability to resist or consent was substantially

impaired by her cognitive deficiencies. Most important, since the trier of fact had the

opportunity to observe C.C. testify, the jury was in the best position to determine whether

Browder knew or should have known that C.C.’s ability to resist or consent was

substantially impaired through that cognitive disability.

       {¶19} Although Browder also claims the state failed to establish that C.C. was

mentally retarded, in so arguing, he misconstrues the extent of the state’s burden to

establish substantial impairment. 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.

Zeh at 103-104. The state is not burdened with establishing mental retardation or some

form of psychological disease to establish substantial impairment. The state amply met

its burden through an overwhelming number of witnesses describing C.C.’s cognitive

deficiencies and the conspicuous nature of C.C.’s limitations.              Browder’s first

assignment of error is overruled.

       {¶20} Finally, in considering a claim challenging the manifest weight of the

evidence, the court, reviewing the entire record, must 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

Reversing a conviction as being against the manifest weight of the evidence should be

reserved for only the exceptional case in which the evidence weighs heavily against the

conviction. Id. Moreover, a claim that a jury verdict is against the manifest weight of

the evidence involves a separate and distinct test that is much broader than the test for

sufficiency. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038,

¶ 193. Therefore, they should properly be separately addressed when raised on appeal.

       {¶21} Browder claims the police failed to conduct an investigation into the

allegations and that C.C.’s testimony should be discredited because it is not corroborated

by tangible evidence.1 Browder told the investigating police officers that C.C. was a

prostitute. His sole argument is essentially that no rape or kidnapping occurred because

the victim had “no cuts, bruises, or physical injuries” or any other evidence corroborating

C.C.’s testimony to demonstrate a sexual assault occurred. Browder’s arguments are

decidedly without merit.

       {¶22} After reviewing the record, there is no objective reason, nor any provided by

Browder, to discount C.C.’s or any other witnesses’ credibility to the point of determining

that the jury clearly lost its way and created such a manifest miscarriage of justice as to

       1
         Browder is not clear on how the police failed to conduct an investigation. Browder’s
argument summarily claims, without any citation to the record or any specificity, that the investigation
was flawed. See App.R. 16(A)(7). Browder admitted to sexual relations taking place and simply
claimed to the emergency responders that C.C. was a prostitute. The only issues for trial focused on
C.C.’s lack of consent, cognitive abilities, and force, all of which were fully developed at trial.
warrant reversing Browder’s conviction.       C.C.’s testimony, if believed, established

substantial evidence upon which the jury could have determined beyond a reasonable

doubt that a rape or kidnapping occurred. Moreover, several witnesses established that

C.C. was unable to effectively consent or resist because of a conspicuous and substantial

impairment, which even the shortest encounter with C.C. apparently revealed.

      {¶23} Browder does not claim otherwise, other than to argue that in order to

convict him, the state should have presented tangible evidence corroborating C.C.’s

version of events, such as signs of physical trauma.         Ohio law imposes no such

requirement.   In fact, forceful resistance or receiving physical injuries are not even

elements of rape or kidnapping. See State v. Leonard, 8th Dist. Cuyahoga No. 98626,

2013-Ohio-1446, ¶ 46 (a rape victim’s testimony need not be corroborated, nor is physical

injury an element of rape). We, therefore, overrule Browder’s arguments to the contrary.

      {¶24} After independently reviewing the entire record and weighing the

aforementioned evidence and all reasonable inferences, including the credibility of the

witnesses, we cannot say that 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.

Browder’s second assignment of error is without merit.           Browder’s conviction is

supported by sufficient evidence and is not against the manifest weight of the evidence.

      {¶25} We affirm Browder’s conviction and the judgment of the trial court.

      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, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
