State v. Rivera , 2012 Ohio 2060 ( 2012 )


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  • [Cite as State v. Rivera, 
    2012-Ohio-2060
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97091
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    JOHN RIVERA
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND REMANDED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-546886
    BEFORE: Keough, J., Boyle, P.J., and Sweeney, J.
    RELEASED AND JOURNALIZED: May 10, 2012
    ATTORNEYS FOR APPELLANT
    Russell S. Bensing
    David L. Grant
    1350 Standard Building
    1370 Ontario Street
    Cleveland, OH 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    Scott Zarzycki
    Edward D. Brydle
    Assistant Prosecuting Attorneys
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, OH 44113
    KATHLEEN ANN KEOUGH, J.:
    {¶1} Defendant-appellant, John Rivera, and co-defendants Kyle Noernberg and
    Christopher Theodus 1 were indicted in a multi-count indictment for kidnapping, rape,
    sexual battery, and gross sexual imposition.
    {¶2} Count 1 charged kidnapping with a sexual motivation specification; Counts
    2-4 charged rape by force; Counts 5-7 charged rape where the victim is substantially
    impaired; Counts 8-10 charged sexual battery by coercion; Counts 11-13 charged sexual
    battery where the victim is substantially impaired; Counts 14-16 charged gross sexual
    imposition by force; Counts 17-19 charged gross sexual imposition by administering a
    drug or intoxicant; and Counts 20-22 charged gross sexual imposition where the victim is
    substantially impaired.       All of the counts contained sexually violent predator
    specifications.
    {¶3} After the presentation of the State’s case at trial, the defense moved for
    Crim.R. 29 judgment of acquittal.         The trial court dismissed Count 1 (kidnapping),
    dismissed the duplicative rape, sexual battery, and gross sexual imposition counts, and
    renumbered the counts as follows:           Count 1: rape by force, in violation of R.C.
    2907.02(A)(2); Count 2: rape where the victim’s ability to resist or consent was
    See State v. Noernberg, 8th Dist. No. 97126, and State v. Theodus, 8th Dist. No. 97290.
    1
    substantially impaired, in violation of R.C. 2907.02(A)(1)(c); Count 3: sexual battery by
    coercion, in violation of R.C. 2907.03(A)(1); Count 4: sexual battery where the victim’s
    ability to appraise or control her conduct was substantially impaired, in violation of R.C.
    2907.03(A)(2); Count 5: gross sexual imposition by force, in violation of R.C.
    2907.05(A)(1); Count 6: gross sexual imposition by administering a drug or intoxicant, in
    violation of R.C. 2907.05(A)(2); Count 7: gross sexual imposition where the victim is
    substantially impaired, in violation of R.C. 2907.05(A)(5).
    {¶4} The defense rested after presenting one witness and again moved for
    Crim.R. 29 acquittal, which the trial court denied. Over defense objection, the court
    instructed the jury on unlawful sexual conduct with a minor under R.C. 2907.04 as an
    inferior offense of Count 1. The jury subsequently found Rivera not guilty of rape by
    force, but guilty of unlawful sexual conduct with a minor (Count 1); guilty of rape where
    the victim’s ability to resist or consent was substantially impaired (Count 2); not guilty of
    sexual battery by coercion (Count 3) but guilty of sexual battery where the victim’s ability
    to appraise or control her conduct was substantially impaired (Count 4); not guilty of
    gross sexual imposition by force (Count 5), and not guilty of gross sexual imposition by
    administering a drug or intoxicant (Count 6), but guilty of gross sexual imposition where
    the victim is substantially impaired (Count 7).
    {¶5} At sentencing, the court granted the State’s request to dismiss the sexually
    violent predator specifications and found that the counts on which Rivera had been
    convicted merged as allied offenses. The State elected to proceed with sentencing under
    Count 2, the rape conviction, and the court imposed a sentence of six years imprisonment.
    Rivera now appeals.
    I. Trial Testimony
    {¶6} The evidence at trial demonstrated the following. The victim, 15-year-old,
    Y.B., was a troubled young girl with severe emotional and behavioral difficulties.
    According to Dr. Robyn Finkenthal, the psychologist at the school Y.B. attended, Y.B.
    had ADHD and a personality disorder that caused her to have difficulty getting along with
    people and to engage in behavior characterized by “a lot of drama, a lot of getting into
    situations [involving] risk-taking, [and] a need for attention.”
    {¶7} On September 14, 2010, Y.B. ran away from home for the second time in a
    month. Her boyfriend drove her around for a little while and then, shortly after midnight,
    dropped her off at her friend Ray’s apartment, where Y.B. spent the night. The next day,
    she called Terrance Lee, a boy she had never met in person before and knew only through
    her Facebook page.      Lee invited Y.B. to meet him and two of his friends at his
    apartment, so Ray took Y.B. to Lee’s apartment, where she was introduced to Darrius
    Warrick and Rivera.
    {¶8} Sometime later, Y.B., Lee, Warrick, and Rivera went to the home of
    co-defendant Kyle Noernberg. Kyle and co-defendant Chris Theodus arrived there a
    short time later and were introduced to Y.B. The group hung out in the backyard
    throughout the afternoon and into the evening. After Warrick left, someone suggested
    they get alcohol.     Y.B., Rivera, Noernberg, and Theodus went to a Giant Eagle to
    purchase alcohol. Y.B. testified that she told the co-defendants how old she was and that
    they told her to “stay in the front [of the store] because they didn’t want to get in trouble.”
    {¶9} The group returned to Noernberg’s house, where, according to Y.B., they
    began drinking and smoking marijuana in the backyard. Later in the evening, the group
    moved inside to Noernberg’s bedroom, where they continued drinking. Y.B. testified
    that she drank more than five beers (described by another witness as 24-ounce
    “tall-boys”) and “started feeling dizzy on — like just tired, and didn’t really feel that
    well.” She stated that Rivera, Theodus, and Noernberg all approached her as she was
    sitting on the edge of the bed and she tried to push them away.
    {¶10} Rivera and Theodus then left the room, and Noernberg took off everything
    but his underwear and laid down next to Y.B. on the bed. Y.B. testified that she told
    Noernberg she would not take her pants off because she was a virgin and refused to have
    sex with him when he offered to use a condom. Y.B. stated that when Noernberg told
    her that she would have to leave unless she performed oral sex on him, she did so
    “because I didn’t want to leave.” Y.B. testified that after she vomited on Noernberg’s
    penis, he left the bedroom and she overheard him telling Theodus and Rivera that she had
    just vomited on him and that she was a virgin. Y.B. then went to the bathroom where
    she cleaned herself up after vomiting again.
    {¶11} Y.B. testified that after using the bathroom, she “felt okay” but was “still a
    little like sick” and felt “dizzy and tired.” She returned to Noernberg’s bedroom and
    Theodus came into the room. Y.B. testified that when Theodus asked for sex, she told
    him no because she was a virgin and asked him, “Didn’t Kyle tell you?” Y.B. said that
    as she was sitting on the edge of the bed, Theodus stood in front of her and “kept
    pushing” her to give him oral sex. Y.B. testified that she did not want to do so but
    eventually gave in.
    {¶12} According to Y.B., Noernberg, Theodus, and Rivera then left the house and
    she went into the living room and watched TV for awhile with a boy she knew only as
    “X,”2 and then fell asleep. Sometime later, Rivera and Noernberg returned to the house
    and Y.B. overheard them discussing whether she should be allowed to stay.                Y.B.
    testified that by this time, she “felt a little better” although she “wasn’t really sober.” It
    was apparently decided that Y.B. could spend the night and she, Rivera, and Noernberg
    went back into Noernberg’s bedroom.
    {¶13} Y.B. testified that when Noernberg’s mother came home a short time later,
    Rivera and Noernberg threw a blanket over her to hide her as she lay on the floor.
    According to Y.B., she said no when Rivera, who was on the floor next to her, suggested
    they have sex. She testified that she also told him she would not give him oral sex but
    relented when he told her that “he would have Kyle make me leave,” even though she told
    him that “it was not his house to tell me if I could leave or stay.” Y.B. then climbed in
    bed with Noernberg and they all went to sleep.
    {¶14} The next morning, Noernberg, Rivera, Xavier, and Y.B. went to the library.
    After Noernberg and Xavier left, Rivera and Y.B. went back to Noernberg’s house but
    Later identified as Xavier Gordon.
    2
    found it locked, so they went to the home of Rivera’s friend Julian.      Y.B. testified that
    the group went into the basement and started drinking, at which point she began
    remembering what had happened the night before. Y.B. spent the night at Julian’s.
    {¶15} The following morning, Julian took Y.B. to the library to meet Lee, who
    took Y.B. back to his house. Lee testified that Y.B.’s family had contacted him by phone
    and he and Warrick escorted Y.B. to a local McDonald’s, where members of her family
    picked her up. They took Y.B. to her aunt’s house, where her family and several police
    officers were waiting.      From there, she was taken to Parma Hospital and shortly
    thereafter to Fairview Hospital, where she was admitted for psychiatric observation and
    remained for over a week.
    {¶16} At the hospital, Y.B. initially refused to talk to the police and refused
    permission for a rape kit. When she finally spoke with the investigating detective, she
    told the detective that the sex had been consensual. Some months later, Y.B. repudiated
    her initial statement and alleged that the sex had been forced.
    II. Sufficiency of the Evidence
    {¶17} Under R.C. 2907.02(A)(1)(c), which prohibits rape,
    “[n]o person shall engage in sexual conduct with another who is not the
    spouse of the offender * * * 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 * * *.”
    {¶18} Under R.C. 2907.03(A)(2), regarding sexual battery, “no person shall
    engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he
    offender knows that the other person’s ability to appraise the nature of or control the other
    person’s conduct is substantially impaired.”
    {¶19} And under R.C. 2907.05(A)(5), regarding gross sexual imposition,
    “No person shall have sexual contact with another, not the spouse of the
    offender, * * * when * * * [t]he ability of the other person 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 ability to resist or consent of the other person * * * is substantially
    impaired because of a mental or physical condition * * *.”
    {¶20} Thus, to establish a violation of these statutes, the State must establish both
    that the victim was substantially impaired and that the defendant knew or had cause to
    reasonably believe the victim was substantially impaired, either mentally or physically.
    State v. Freeman, 8th Dist. No. 95511, 
    2011-Ohio-2663
    , ¶ 17. In his first assignment of
    error, Rivera contends that his convictions for rape, sexual battery, and gross sexual
    imposition were not supported by sufficient evidence because there was insufficient
    evidence to show that Y.B. was substantially impaired or, even assuming evidence of
    substantial impairment, that he knew or should have known of that impairment.
    {¶21} The test for sufficiency requires a determination of whether the State
    presented adequate evidence on each element of the offense to sustain the verdict as a
    matter of law.     State v. Hawn, 
    138 Ohio App.3d 449
    , 471, 
    741 N.E.2d 594
     (2d
    Dist.2000). 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. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991), paragraph two of the syllabus.
    {¶22} The phrase “substantially impaired’” is not defined in the Ohio Revised
    Code but “must be given the meaning generally understood in common usage.” State v.
    Zeh, 
    31 Ohio St.3d 99
    , 103, 
    509 N.E.2d 414
     (1987).            The State may demonstrate
    substantial impairment by offering evidence at trial establishing a reduction or decrease in
    the victim’s ability to act or think. Id. at 103-104. Voluntary intoxication or impairment
    is a “mental or physical condition” that could cause substantial impairment. State v.
    Doss, 8th Dist. No. 88443, 
    2008-Ohio-449
    , ¶ 13, citing In re King, 8th Dist. Nos. 79830
    and 79755, 
    2002-Ohio-2313
    .        Nevertheless, the statutes do not criminalize sexual
    conduct resulting from an alcohol or drug-induced state of lowered inhibitions. Freeman
    at ¶ 16. Rather, “a person’s conduct becomes criminal under [the statutes] 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 at ¶ 13, citing State v. Martin, 12th
    Dist. No. CA99-09-026, 
    2000 WL 1145465
     (Aug. 14, 2000) (emphasis in original).
    {¶23} In this case, we do not find sufficient evidence that Y.B. was substantially
    impaired, either physically or mentally, to support Rivera’s convictions for rape, sexual
    battery, and gross sexual imposition. The only evidence regarding Y.B.’s impairment
    came from Y.B., and nothing in her testimony supports a conclusion that she was
    substantially impaired on the night in question. Although she testified that she smoked
    marijuana that night, she also admitted that prior to this she had smoked marijuana “a
    lot”3 and taken other drugs as well. And although she testified this was the first time that
    she ever consumed alcohol, Cleveland police detective Cindy Eschweiler, who spoke with
    Y.B. on September 17 at Fairview Hospital, testified that Y.B. told her she was surprised
    she became intoxicated that night based on her prior experience with drinking.
    {¶24} Although Y.B. testified that she had five beers and “wasn’t really sober,”
    she described her condition only as “feeling dizzy” and “just like tired.” And as it relates
    to Rivera, Y.B. testified that by the time she went into Noernberg’s bedroom with
    Noernberg and Rivera, immediately before she had oral sex with Rivera, she “was feeling
    better.” Y.B. also testified that she never blacked out or lost consciousness that night
    and that although she was not sober, she knew what was happening.
    {¶25} In fact, Y.B.’s testimony demonstrated that she was aware of the events as
    they happened and made conscious decisions about her participation. She was fully able
    to say “no” to intercourse, and give her reason as to why: she wanted to remain a virgin.
    She was also able to explain the reason she ultimately agreed to give oral sex to at least
    two of the males, i.e., she did not want them to kick her out of Noernberg’s home.
    {¶26} The other witnesses who testified did not observe that Y.B. was impaired at
    all, let alone substantially. Darrius Warrick testified that Y.B. “seem[ed] like she was
    having a good time” while the group was drinking in the backyard of Noernberg’s house.
    Xavier Gordon corroborated that account. He also testified that when Y.B. came out of
    Y.B.’s 11/09/10 Evaluation Team Report from the school she attended indicated that she had
    3
    abused alcohol and drugs for the last several years, including daily marijuana use.
    Noernberg’s bedroom and sat with him on the couch, after she had performed oral sex on
    two people, he noticed nothing unusual about her behavior.
    {¶27} As this court recognized in Doss, “[t]here can be a fine, fuzzy, and
    subjective line between intoxication and impairment. Every alcohol consumption does
    not lead to a substantial impairment.” Id. at ¶ 18. In this case, although Y.B. was
    intoxicated, it is apparent from her own testimony that she was not substantially impaired.
    {¶28} Moreover, even assuming evidence of substantial impairment, there is
    nothing in the record to demonstrate that Rivera knew or had cause to reasonably believe
    that Y.B. was substantially impaired to the point that it affected her ability to control her
    conduct. There is no evidence that Y.B. was slurring her words, passed out, or unable to
    control her actions. To the contrary, Y.B.’s testimony indicated that although she may
    have been intoxicated, she was aware of her surroundings and coherent enough to make
    decisions about the extent of her participation in the events in question.
    {¶29} Because the evidence was insufficient to demonstrate beyond a reasonable
    doubt that Y.B. was substantially impaired, or that Rivera was aware or should have been
    aware that her ability to resist was substantially impaired, the trial court erred in denying
    Rivera’s Crim.R. 29 motion for acquittal regarding rape, sexual battery, and gross sexual
    imposition.
    {¶30} The first assignment of error is sustained; appellant’s convictions for rape,
    sexual battery, and gross sexual imposition are vacated.
    III. Manifest Weight of the Evidence
    {¶31} In his second assignment of error, Rivera contends that his convictions for
    rape, sexual battery, and gross sexual imposition were against the manifest weight of the
    evidence.
    {¶32} A manifest weight challenge questions whether prosecution met its burden
    of persuasion. State v. Thomas, 
    70 Ohio St.2d 79
    , 80, 
    434 N.E.2d 1356
     (1982). 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.” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387,
    
    678 N.E.2d 541
     (1997).
    {¶33} In light of our holding that there was insufficient evidence to sustain
    Rivera’s convictions for rape, sexual battery, and gross sexual imposition, this assignment
    of error is moot and we need not consider it. App.R. 12(A)(1)(c).
    IV. Unlawful Sexual Conduct with a Minor
    {¶34} In his third assignment of error, Rivera contends that the trial court erred in
    instructing the jury on unlawful sexual conduct with a minor as an inferior offense of
    rape. Rivera ackowledges that in State v. Hairston, 
    121 Ohio App.3d 750
    , 
    700 N.E.2d 930
     (8th Dist.1997) and State v. Doss, 8th Dist. No. 890811, 
    2003-Ohio-4398
    , this court
    recognized that unlawful sexual conduct with a minor is an offense of inferior degree to
    the charge of rape, but he respectfully asserts that these cases were wrongly decided.
    The record reflects that Rivera did not raise this argument below, however,4 and therefore
    he has waived it for purposes of appeal. State v. Williams, 
    51 Ohio St.2d 112
    , 
    364 N.E.2d 1364
     (1977). Nevertheless, we vacate Rivera’s conviction for unlawful sexual
    conduct with a minor because there was insufficient evidence to sustain his conviction.
    {¶35} R.C. 2907.04, prohibiting unlawful sexual conduct with a minor, states that
    “[n]o person who is eighteen years of age or older shall engage in sexual conduct with
    another, who is not the spouse of the offender, when the offender knows the other person
    is thirteen years of age or older but less than sixteen years of age, or the offender is
    reckless in that regard.”
    {¶36} As provided by the statute, the age of the offender is an essential element of
    the offense and must be proven by the State beyond a reasonable doubt. State v. Wright,
    8th Dist. No. 93068, 
    2011-Ohio-3575
    , ¶ 26, citing State v. Price, 
    80 Ohio App.3d 35
    , 
    608 N.E.2d 818
     (3d Dist.1992). Age may be proved by circumstantial evidence, but the
    jury’s observations of the defendant alone are not sufficient. 
    Id.
    {¶37} Here, the State presented no direct evidence of Rivera’s age at trial.5 And
    the only circumstantial evidence regarding his age was Y.B.’s testimony that Rivera,
    Theodus, and Noernberg went to Giant Eagle to purchase alcohol on the night in question.
    Rivera’s counsel argued that the evidence was not sufficient to support a charge of unlawful
    4
    sexual conduct with a minor, but did not argue that the offense is not an inferior offense of rape.
    During opening statement, the prosecutor described the defendants as “one 19, one 19, and
    5
    the other one 21 years old,” but the State did not produce any evidence of the defendants’ ages at
    trial.
    But that testimony does not demonstrate beyond a reasonable doubt that Rivera was 18
    years of age or older. Because there was no other evidence relating to Rivera’s age, any
    conclusions the jury made about his age based solely on their observations of him at trial
    are insufficient to establish this element of the offense.
    {¶38} Further, even if we did not vacate on a sufficiency analysis, we would
    vacate and remand for retrial on this count because the trial court improperly instructed
    the jury regarding this offense. The court instructed that “[u]nlawful sexual conduct with
    a minor is having sexual conduct with another who was not his spouse and the defendant
    knew that she was 13 years old, 13 years of age or older, but less than 16 years of age, or
    the defendant was reckless in this regard.” The trial court gave no instruction that the
    jury was required to find that Rivera was 18 years of age or older as an element of this
    offense.
    {¶39} Appellant’s third assignment of error is therefore sustained. Even viewing
    the evidence in a light most favorable to the prosecution, it is apparent the State did not
    present sufficient evidence of Rivera’s age to sustain his conviction for unlawful sexual
    conduct with a minor. His conviction is therefore vacated.
    {¶40} Because we vacate Rivera’s conviction for unlawful sexual conduct with a
    minor, Rivera’s fourth assignment of error, in which he argues that his conviction for
    unlawful sexual conduct with a minor is a first degree misdemeanor, and not a fourth
    degree felony, is moot. App.R. 12(A)(1)(c). Likewise, Rivera’s fifth assignment of error,
    which asserts that the trial court should have declared a mistrial after the prosecutor
    referred to the fact that Theodus was in jail, is moot.
    {¶41} Appellant’s first, second, and third assignments of error are sustained; the
    fourth and fifth assigments of error are overruled. Appellant’s convictions are vacated;
    the matter is remanded with instructions to the trial court to enter a judgment entry
    vacating appellant’s convictions and his classification as a Tier III sex offender.
    It is ordered that appellant recover from appellee 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.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    KATHLEEN ANN KEOUGH, JUDGE
    MARY J. BOYLE, P.J., and
    JAMES J. SWEENEY, J., CONCUR
    

Document Info

Docket Number: 97091

Citation Numbers: 2012 Ohio 2060

Judges: Keough

Filed Date: 5/10/2012

Precedential Status: Precedential

Modified Date: 10/30/2014