State v. Tegarty , 2023 Ohio 1369 ( 2023 )

[Cite as State v. Tegarty, 2023-Ohio-1369.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111855
v. :
MATTHEW R. TEGARTY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 27, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-659546-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Matthew R. Tegarty, appeals from the trial
court’s judgment, rendered after a bench trial, finding him guilty of rape and gross
sexual imposition. For the reasons that follow, we affirm his convictions.
I. Procedural History
In May 2021, Tegarty was named in a four-count indictment charging
him with rape, a first-degree felony in violation of R.C. 2907.02(A)(2) (force or
threat of force); rape, a first-degree felony in violation of R.C. 2907.02(A)(1)(c)
(substantial impairment); gross sexual imposition, a fourth-degree felony in
violation of R.C. 2907.05(A)(1) (force or threat of force); and gross sexual
imposition, a fourth-degree felony in violation of R.C. 2907.02(A)(5) (substantial
impairment).
Tegarty pleaded not guilty and waived his right to a jury trial.
II. Bench Trial
On the evening of June 13, 2020, the victim, age 16, and her sister
went to the Tegarty residence to hang out with friends. They were friends with
Tegarty’s sister, A.T. Other individuals were present at the house including Tegarty,
who was 18 years old. While at the house, the group hung out, went into the hot tub,
and watched a movie in A.T.’s room. Later that evening, another girl came over to
the house and brought a bottle of Bacardi alcohol that the group drank in the
basement.
The victim testified that she voluntarily drank a significant amount of
alcohol from the bottle. She stated that she spilled alcohol on herself and Tegarty
gave her one of his shirts to wear. She testified that she became “very intoxicated”
and she had trouble moving around, that she was stumbling, and “very out of it.”
After drinking the bottle of Bacardi, some members of the group, including the
victim, went upstairs to A.T.’s bedroom. The victim testified that she went back
down to the basement where Tegarty and another male were present because it was
too hot upstairs and she felt sick. She stated that the boys told her to lie down in
Tegarty’s bedroom, which was located in the basement. The victim testified that
Tegarty helped her to his bedroom, but left and closed the door. Later, Tegarty came
back into his bedroom and laid down next to her. The victim testified that he moved
closer to her body and when he tried to kiss her, she turned her head away. She
testified that she told him that she “can’t do this * * * [I have] a boyfriend,” and that
she “just wanted to lay down.” Tegarty reached under her chest and grabbed her
breast, and the victim told Tegarty that “you need to stop, we can’t do this.”
The victim testified that Tegarty got up from the bed, walked over to
the closet, and got a condom. According to the victim, Tegarty walked back to the
bed, grabbed her legs, leaned on top of her, pulled her shorts and underwear to the
side, fondled her vagina, and proceeded to have sex with her. She stated that she
told him to “stop,” but that Tegarty only responded by saying “it’s okay.” The victim
testified that she started crying and repeatedly told him to “stop,” but that Tegarty
calmly repeated “it’s okay.” She stated that she leaned up, but that Tegarty pushed
her back onto the bed and held her there by using his hand against the side of her
jaw and neck area, causing her to lay there “frozen.” She testified that Tegarty then
got up from the bed and walked back to the closet, and when he returned, he
continued having sex with her. The victim stated that all she could hear was Tegarty
saying “it’s okay,” which caused her to “just give up.”
The victim stated that after Tegarty stopped, she immediately sat up
and told him that she was going upstairs with her sister. Once upstairs, the victim
discovered A.T. in the bathroom crying about a personal relationship. The victim
consoled her, despite what had just happened to herself. The victim stated that after
A.T. left the bathroom, she locked the bathroom door and lay on the floor. She then
went into A.T.’s room and fell asleep on a mattress. After waking, the victim changed
out of her borrowed clothes and walked home.
The victim testified that she called her boyfriend and told him what
had happened because they were both virgins and she felt ashamed that someone
had done this to her. She stated that she did not tell anyone else about what had
occurred until her sister asked her, because apparently Tegarty told another friend
that he and the victim engaged in consensual sexual activity. The victim denied that
what had occurred was consensual.
During her testimony, the victim read verbatim instant messages
exchanged between her and Tegarty. The first group of messages occurred the day
after the rape, with Tegarty initiating the conversation and asking whether she was
“OK.” The victim responded that she was “fine.” The next day, Tegarty messaged
the victim apologizing to her. The victim responded, stating that they should not
talk about what had happened and should pretend it never happened because “that’s
not who I am and if I was sober I wouldnt [sic] have done that.” Tegarty agreed,
stating that they were both drunk and that maybe it should not have happened, but
he hoped they could hang out like “friends.” Tegarty also assured the victim that she
was not a “bad person” for what had occurred.
The second group of messages occurred in September 2020, with
Tegarty again initiating the conversation. In this exchange, Tegarty apologized for
talking about what had occurred in June, calling his actions “stupid.” The victim
expressed her anger that Tegarty took advantage of her being drunk. Tegarty denied
that he took advantage of her, stating that they were both drunk and that she
suggested they engage in sexual conduct. Tegarty told the victim that she
“consented.” The victim responded that she did not consent and that he was taking
advantage of her not remembering the entire evening, but that she remembered
Tegarty “over [her] having sex with [her].”
At trial, the victim emphatically denied that she suggested or
consented to having sexual intercourse. The victim admitted that she remembered
what had happened, and that Tegarty held her down and raped her despite her
telling him “no.”
The victim’s sister testified that she believed that the victim was
intoxicated because she was unable to walk and slurring her words. Although the
sister testified that the victim threw up, she admitted that she did not tell the
investigating officer this information. She stated that the victim was not flirting with
Tegarty nor did the victim tell Tegarty that she and her boyfriend were on a “break”
from one another.
Alexandra Bell Jezior, a North Royalton School Resource Officer,
testified that she was assigned the victim’s case in December 2020 after receiving a
report from a social worker about a sexual assault involving a North Royalton High
School student. Officer Jezior testified regarding her investigation, including
interviewing only certain witnesses.
Following the close of testimony, the state moved to admit without
objection three exhibits: (1) the June 14-15, 2020 Instagram messages exchanged
between the victim and Tegarty (exhibit No. 1); (2) the September 27, 2020
Snapchat messages exchanged between the victim and Tegarty (exhibit No. 2); and
(3) a Snapchat photo of the victim on June 13, 2020 (exhibit No. 4). The trial court
admitted those exhibits into evidence and the state rested its case. The trial court
denied Tegarty’s Crim.R. 29 motion for judgment of acquittal, and Tegarty did not
put forth any defense. The trial court found Tegarty guilty of all four counts and over
objection, sentenced him under the Reagan Tokes Law to an indefinite sentence of
a stated minimum term of four years in prison and a maximum term of six years.
Tegarty now appeals, raising four assignments of error, which will be
addressed out of order.
III. Social Media Instant Messages
During the victim’s testimony, the state offered the messages
exchanged between the victim and Tegarty following the incident. Without
objection, the victim read verbatim both the messages she sent and the messages
Tegarty sent. Following the close of the state’s case, the state moved to admit the
messages into evidence. The defense did not object, and the trial court admitted
them.
Tegarty’s theory throughout trial was that the sexual encounter was
consensual but that the victim regretted her decision and claimed that Tegarty raped
her. During closing arguments, defense counsel argued the existence of reasonable
doubt by focusing on the inconsistent and contradictory testimony given by the
victim and her sister. Additionally, counsel contended that there was evidence of
consent by relying on the messages exchanged between the victim and Tegarty.
The court interjected by quoting one of Tegarty’s September
messages that admitted to engaging in sexual conduct with the victim but claimed
that it was consensual. The court concluded that based on this message, the only
issue was “force” and “substantial impairment,” but questioned whether it was the
defense’s position that the conduct was consensual based on Tegarty’s own
statement. Defense counsel affirmed that was their position.
The trial court explained that Tegarty could not “offer” his statement
to support his position because, “[h]is statement is that of a party opponent, but it’s
not offered against himself. A party may not introduce his own statement.” (Tr.
198.) When counsel reminded the court that the messages were stipulated exhibits
the court admitted into evidence, the court responded, “[a] defendant cannot
introduce a self-serving statement, unless it’s against his interest. Saying that she
consented is not against his interest.” (Tr. at id.) Relying on State v. Cunningham,
105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 105, the court stated “that
a party cannot offer exculpatory evidence on their behalf. It has to be a party’s
statement against their own interest. And if he is saying that she consented, that’s
his defense. It’s hardly against his interest.” (Tr. at 198-199.) Defense counsel
reiterated that consent was the theory of their case, based on the inconsistencies
between the messages and the evidence at trial, and that Tegarty did not have to
prove his innocence. The court agreed, but stated:
I understand, but the extent that you are — that it’s been relied upon or
thought to be relied upon that he’s made this statement and therefore
he is not liable, it’s not a statement against interest and the Court
cannot consider it as a statement of the party opponent because it’s not
— it does not tend to inculpate him; it tends to exculpate him. And he
didn’t testify, wasn’t subject to cross-examination. That’s the reason
why it may not have the weight that you would like it to.
(Tr. at 199-200.) The trial court maintained, however, that counsel was “absolutely
correct” that Tegarty is presumed innocent and that the state had the burden of
proof, and that it would “evaluat[e] all the evidence that’s available.” (Tr. 200, 202.)
In his third assignment of error, Tegarty contends that the trial court
abused its discretion and denied him due process at trial under both the United
States and Ohio Constitutions in “refusing to give proper consideration” to text
conversations between him and the victim despite admitting the messages into
evidence as exhibits and through the victim’s testimony, without objection or
admissibility-qualification. He maintains that he did not put forth a defense because
he believed that the trial court would give the messages proper consideration under
the rules of evidence.
Tegarty recognizes that in a bench trial, a presumption exists that the
court only considered relevant, material, and competent evidence, but contends that
this presumption is rebutted by the record and the trial court’s statements that it
was not giving his messages any weight due to the trial court’s belief that the
messages were inadmissible. He contends that his statements in the instant
messages were admissible under Evid.R. 801(D)(2) as nonhearsay because it was
the state that “offered” or “introduced” them in its case-in-chief. Tegarty is correct.
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Hearsay is not admissible unless it falls within one of the
permissible hearsay exceptions. Evid.R. 801. One such exception is for admissions
by a party opponent under Evid.R. 801(D)(2). A statement is not hearsay if “[t]he
statement is offered against a party and is * * * the party’s own statement, in either
an individual or a representative capacity[.]” Evid.R. 801(D)(2)(a)
Under Evid.R. 801(D)(2)(a), the trial court properly permitted the
state to introduce, through the victim’s testimony, the messages exchanged between
the victim and Tegarty because the state offered them against Tegarty and they were
his own statements.
The trial court’s statement that a defendant cannot offer his own
exculpatory statement under Evid.R. 801(D)(2)(a) is also correct. See State v.
Wilson, 12th Dist. Clermont No. CA2001-09-072, 2002-Ohio-4709, ¶ 58; State v.
Lewis, 7th Dist. Mahoning No. 03 MA 36, 2005-Ohio-2699, ¶ 127. And the trial
court’s reliance on Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d
504, for this proposition was proper. However, the trial court was incorrect in its
application of Evid.R. 801(D)(2)(a) as to Tegarty’s reliance on the properly admitted
messages and testimony. By virtue of the state offering Tegarty’s statements made
in the messages, and not Tegarty himself, the statements were admissible under
Evid.R. 801(D)(2)(a). And Tegarty’s subsequent attempt to rely on his statements
in his defense and closing argument did not run afoul of this rule. Therefore, the
court was mistaken in its understanding of Evid.R. 801(D)(2)(a) in this instance.
The trial court confused the issue further by its subsequent
statements that Tegarty could not offer his self-serving statement unless it was
against his interest or inculpatory. This requirement refers to the hearsay exception
in Evid.R. 804(B)(3), “statements against interest,” and does not apply to
statements made by a party to the action. See State v. Webster, 1st Dist. Hamilton
No. C-120452, 2013-Ohio-4142, ¶ 66 (explaining Evid.R. 801(D)(2) and 804(B)(3)
reflect two distinct concepts). Instead, Evid.R. 801(D)(2)(a) does not require that
the statement be “against interest,” but rather applies to any prior statement of a
party, so long as it is offered against the party at trial. Wilson at ¶ 57; State v. Baker,
137 Ohio App.3d 628, 652, 739 N.E.2d 819 (12th Dist.2000); Weissenberger’s Ohio
Evidence Treatise, Section 801.33, at 367 (1998).
Accordingly, while a defendant cannot offer his prior statements
under Evid.R. 801(D)(2)(a), the rule does not preclude him from relying on the
statements when properly offered by the state and admitted by the court. The
court’s statement was therefore erroneous. Nevertheless, the trial court’s confusion
and conflation of these two evidentiary rules does not warrant reversal of Tegarty’s
convictions because it did not affect his substantial rights.
The state had to prove that the sexual conduct between the victim and
Tegarty was because of force or because the victim was unable to consent due to
substantial impairment. By its very definition, if a person of sound mind voluntarily
consented to engaging in sexual conduct, then the state is unable to satisfy its burden
of proof. The trial court acknowledged the state’s burden by stating “you are
absolutely right, the State has the burden of proof. I have to find whether or not they
have met that burden. He is presumed innocent and it is solely the State’s burden.”
(Tr. 200.) And in doing so, the court stated that it would evaluate all of the available
evidence, which we note included all of the messages and the testimony provided.
Nothing in the record before this court indicates that the trial court acted contrary
to its statement.
Tegarty maintains, however, that the trial court’s ruling was
prejudicial and deprived him of due process to a fair trial because he relied on the
complete admission of the exhibits, including their evidentiary weight, in his
strategic decision to not present a defense. He maintains on appeal that had he
known that the trial court would not give appropriate weight to his messages
claiming that the sexual conduct was consensual, he would have made different
decisions regarding trial strategy. This hindsight argument is not supported by the
record.
The record is devoid of any assertion by Tegarty contending that the
trial court’s ruling affected his trial strategy. After being advised by the trial court
that the self-serving portions of the text messages “may not have the weight
[counsel] would like,” counsel did not indicate that his trial strategy would have been
different or that Tegarty would have otherwise testified. His entire defense was that
the sexual conduct was consensual. In addition to the messages between him and
the victim, Tegarty supported this defense with the victim’s delay in reporting the
incident, her statement to police, the inconsistencies and contradictions in
testimony by the victim and her sister, and his contention that the investigation by
police was inadequate and incomplete.
Even though the trial court erroneously stated it would not consider
Tegarty’s statements asserting consent, the state introduced the messages without
redaction and the trial court heard the victim’s testimony, which included reading
the messages verbatim. The victim was subject to cross-examination where defense
counsel questioned her extensively on the content of the messages and the
discrepancies in her wording, text, and tone between the two different groupings of
messages. So, although the trial court stated it would not consider Tegarty’s
apparent self-serving statements, the victim’s responses to those statements
implicitly provided context into the nature and content of Tegarty’s messages and
claims of consent.
Finally, even considering Tegarty’s statements in his messages
asserting his belief that the victim consented to the sexual conduct, the victim denied
in her messages and at trial that she consented. Tegarty saying that it was
consensual in his messages does not establish that it was in fact consensual. The
trial court, as finder of fact, can give evidence and testimony the weight it deems
appropriate. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph
one of the syllabus (the weight to be given the evidence and the credibility of the
witnesses are matters primarily for the trier of fact). The trier of fact may “believe
or disbelieve any witness or accept part of what a witness says and reject the rest.”
State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Granted, although the
trial court stated that the messages “may not have the weight that you would like it
to,” this statement is well-within the purview of the trier of fact assessing weight of
the evidence and credibility.
Based on the foregoing, the trial court’s statements and decision did
not deprive Tegarty of his due process right to a fair trial. The third assignment of
error is overruled.
IV. Sufficiency of the Evidence
Where a party challenges the sufficiency of the evidence supporting a
conviction, a determination of whether the state has met its burden of production at
trial is conducted. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541(1997). An appellate court reviewing sufficiency of the evidence must determine
“‘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, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. Under a sufficiency inquiry, an appellate court
does not review whether the state’s evidence is to be believed but whether, if
believed, the evidence admitted at trial supported the conviction. State v. Starks,
8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387.
Tegarty contends in his second assignment of error that the state
presented insufficient evidence of “substantial impairment” to support his
convictions of rape and gross sexual imposition as charged in Counts 2 and 4 of the
indictment.
The trial court found Tegarty guilty of all counts of the indictment.
The trial court agreed with the state that Counts 1 and 2 should merge for sentencing
and Counts 3 and 4 should also merge. The state elected that the court sentence
Tegarty on Count 1 — rape by force — and Count 3 — gross sexual imposition by
force. Accordingly, Tegarty was only convicted of Counts 1 and 3. See State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (“conviction”
consists of a finding of guilty and a sentence).
When counts in an indictment are allied offenses and there is
sufficient evidence to support the offense on which the state elects to have the
defendant sentenced, the reviewing court need not consider the sufficiency of the
evidence on the counts that are subject to merger because any error relating to those
counts would be harmless. State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-
Ohio-7685, ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191(1990). See also State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164
N.E.3d 316, ¶ 25 (considering the sufficiency-of-the-evidence challenge only on
those convictions surviving merger), citing Whitfield and State v. Myers, 154 Ohio
St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 138 (merger of kidnapping count
with aggravated-robbery and aggravated-burglary counts moots sufficiency-of-the-
evidence claim regarding kidnapping count).
In this case, Tegarty has not made a sufficiency-of-the-evidence
challenge regarding his convictions in Counts 1 and 3, effectively conceding that
sufficient evidence was presented to support his convictions of the sexually oriented
offenses committed by use of force. Because no argument has been raised and
Counts 1 and 3 are the surviving counts following merger, this court could
summarily overrule Tegarty’s assignment of error. See App.R. 12 and 16.
Nevertheless, even without the perceived concession on Counts 1 and 3, this court
finds that sufficient evidence was presented to support Tegarty’s convictions for
forcible rape and gross sexual imposition.
Count 3 charged Tegarty with gross sexual imposition, in violation of
R.C. 2907.05(A)(1). The indictment provided that Tegarty “did have sexual contact,
to wit: fondled breasts * * * by purposely compelling [the victim] to submit by force
or threat of force.” “‘Force’ means any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01. Under this
definition, even minimal constraint or physical exertion is sufficient. See State v.
Heiney, 2018-Ohio-3408, 117 N.E.3d 1034, ¶ 112 (6th Dist.); State v. Schellentrager,
8th Dist. Cuyahoga No. 105652, 2017-Ohio-9275, ¶ 13, citing State v. Elam, 2016-
Ohio-5619, 76 N.E.3d 391, ¶ 44 (8th Dist.) (sexual contact means any nonconsensual
physical touching, even if through clothing of another).
The victim testified that Tegarty laid in bed next to her, moved his
body close to hers, and tried to kiss her. When she turned her head away telling him
that she had a boyfriend, Tegarty put his arm underneath her chest “and start[ed] to
grab on [her] chest area.” The victim clarified that Tegarty touched her breast
despite her telling him that he “needed to stop.” Tegarty’s movement of his body
and manipulation of his arm underneath the victim to touch her breast despite the
victim telling him to stop is sufficient to support Tegarty’s conviction for gross sexual
imposition as charged in Count 3 of the indictment. See, e.g., State v. Guenther, 9th
Dist. Lorain No. 05CA008663, 2006-Ohio-767, ¶ 20 (movement of body to prevent
victim from leaving to touch her breast; victim telling defendant to stop sufficient
for gross sexual imposition by use of force).
Count 1 charged Tegarty with forcible rape, in violation of R.C.
2907.02(A)(2). The indictment provided that Tegarty “did engage in sexual
conduct, to wit: vaginal penetration * * * by purposely compelling her to submit by
force or threat of force.” The victim testified that Tegarty grabbed her legs, leaned
on top of her, pulled her shorts and underwear to the side, fondled her vagina, and
proceeded to have sex with her. She stated that she told him to “stop,” and when
she tried to get up, he pushed her back onto the bed by using his hand against the
side of her jaw and neck area. She stated that she lay there frozen as he held her
there. The victim’s testimony is sufficient to support Tegarty’s conviction for
forcible rape as charged in Count 1 of the indictment.
Accordingly, because this court finds that sufficient evidence was
presented supporting Tegarty’s convictions on Counts 1 and 3 for forcible rape and
gross sexual imposition, any error in the sufficiency of the evidence on Counts 2 and
4 — rape and gross sexual imposition because of substantial impairment — would
be harmless. The assignment of error is overruled.
V. Manifest Weight of the Evidence
In his first assignment of error, Tegarty contends that “the trial court
erred by entering judgments of conviction as to all counts of the indictment that
were against the manifest weight of the evidence in derogation of [his] right to due
process of law, as protected by the Fourteenth Amendment to the United States
Constitution.”
In contrast to a challenge based on sufficiency of the evidence, a
manifest-weight challenge attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion at trial. State v. Whitsett,
8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-
Ohio-3598, ¶ 13. In our manifest-weight review of a bench trial verdict, we recognize
that the trial court serves as the factfinder, and not the jury. State v. Crenshaw, 8th
Dist. Cuyahoga No. 108830, 2020-Ohio-4922, ¶ 23. “‘When considering whether a
judgment is against the manifest weight of the evidence in a bench trial, an appellate
court will not reverse a conviction where the trial court could reasonably conclude
from substantial evidence that the state has proved the offense beyond a reasonable
doubt.’” State v. Worship, 12th Dist. Warren No. CA2020-09-055, 2022-Ohio-52,
¶ 34, quoting State v. Tranovich, 12th Dist. Butler No. CA2008-09-242, 2009-Ohio-
2338, ¶ 7. To warrant reversal from a bench trial under a manifest-weight-of-the-
evidence claim, this court must determine that “the trial court clearly lost its way
and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered.” Crenshaw at id. “A conviction should be reversed
as against the manifest weight of the evidence only in the most ‘exceptional case in
which evidence weighs heavily against the conviction.’” Id., quoting Thompkins at
547.
Tegarty contends that his convictions for forcible rape and gross
sexual imposition are against the manifest weight of the evidence because the
victim’s message exchanged after the rape and her trial testimony were inconsistent.
Specifically, he contends that (1) the victim testified unequivocally about the entirety
of the evening, but in her messages, she stated that she was unable to recall what
occurred; (2) the victim testified that she told Tegarty to stop and physically resisted
him, but in her messages she only stated that she did not give affirmative consent;
and (3) the victim’s subsequent messages reveal that “regret” was her motivation to
“embellish” what occurred. This court disagrees.
First, the victim testified extensively about the sexual assault that
occurred in the late-night hours in Tegarty’s bedroom. In fact, during cross-
examination, she stated that she was not alleging that she did not remember what
had occurred but that Tegarty forced her after she said “no.” (Tr. 135.) The social
media messages exchanged between the victim and Tegarty following the sexual
assault do not render her testimony inconsistent. In fact, in the September
messages, the victim stated, “I don’t remember the full night but I remember you
over me having sex with me.”
Next, Tegarty’s characterization of the victim’s social media messages
as “regret” and motivation to “embellish” the assault is without merit. Rather, the
victim’s initial June messages, which occurred the day after the assault, can be
characterized as disappointment and her asking that they just “pretend it didn’t
happen.” Despite her request, Tegarty disclosed to others that they engaged in
sexual conduct and mischaracterized it as consensual. The subsequent September
messages between them reveal that the victim expressed anger and self-loathing
about the situation, not regret or a need to embellish the sexual assault. In fact, the
victim did not report the assault until she was hospitalized in December. The fact
that the victim had regrets about consuming alcohol and leaving herself in a
vulnerable situation does not create a motive for her to fabricate a sexual assault.
Finally, whether the victim physically resisted and told Tegarty to
“stop” as opposed to not giving “affirmative consent” is irrelevant. R.C. 2907.02(C)
does not require that physical resistance needs to be established for a person to be
charged for rape. Moreover, the victim stated in her messages and again reiterated
at trial that she did not consent to sexual intercourse with Tegarty and that he took
advantage of the situation. We agree.
Tegarty knew that the victim was in his bedroom in an intoxicated
state. He was present when she consumed a substantial amount of alcohol, and he
assisted the victim into his bedroom when she wanted to lie down. The victim did
not ask if she could lie down in his bedroom; rather, it was Tegarty and the other
male that suggested that she lie down in Tegarty’s bedroom. The testimony by both
the victim and her sister revealed that the victim only wanted to lie down in the
basement because it was cooler and she was feeling sick. No evidence was presented
that the victim and Tegarty engaged in flirtatious conduct that evening to insinuate
that the victim was interested in engaging in sexual conduct with him, that the victim
invited Tegarty into his bedroom with her, or that she asked that he lie down beside
her. The evidence demonstrates that it was Tegarty’s own actions that placed him
in the bedroom with the victim that night.
Even if this court were persuaded by Tegarty’s assertions that the
victim somehow initiated or acquiesced to the initial encounter, once the victim
protested, asking and telling him to “stop,” her consent was revoked and his
repeated assurances of “it’s okay” while proceeding and continuing to have sexual
intercourse with her and using his hand to hold her down by her neck and jaw
amounts to forcible rape. Evidence of consent, or lack thereof, is not a static concept.
State v. Boyd, 2022-Ohio-3523, 198 N.E.3d 514 (7th Dist.), ¶ 58, citing State v.
Freeman, 2d Dist. Greene No. 2020-CA-33, 2021-Ohio-734, ¶ 42. In State v.
Hartman, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 32 (2d Dist.), the Second District
explained:
[Forcible] rape can be established when the two participants start the
sexual encounter on a consensual basis, but the consent is revoked by
words, actions or conduct that clearly communicates non-consent, and
the defendant fails to respect the change in consent, and purposely
proceeds to engage in sexual conduct through force or threat of force
evidenced by violence, physical restraint, or some type of coercive or
threatening conduct that creates a belief or fear that physical force will
be used if the victim does not consent.
See also In re E.S., 5th Dist. Delaware No. 21CAF080041, 2022-Ohio-2003 (when
the sexual activity was no longer consensual and became a forcible act, appellant
committed rape). Accordingly, this is not the exceptional case in which the evidence
weighs heavily against the convictions. Tegarty’s convictions for forcible rape and
gross sexual imposition as charged in Counts 1 and 3 are not against the manifest
weight of the evidence.
Tegarty also independently argues that the counts for which he was
found guilty, but that merged — i.e. rape and gross sexual imposition because of
substantial impairment — were against the weight of the evidence. Again, because
those offenses were merged into Counts 1 and 3, this court need not address these
offenses. State v. Worley, 8th Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23.
This court’s conclusion that Tegarty’s convictions for forcible rape and gross sexual
imposition were not against the manifest weight of the evidence necessarily renders
any issues with the merged offenses to be harmless error because his final sentence
would not be affected by any review of the evidence underlying the merged counts.
Id., citing Powell, 49 Ohio St.3d at 263, 552 N.E.2d 191.
The assignment of error is overruled.
VI. Reagan Tokes Law
Tegarty raises as his fourth assignment of error that the trial court
erred when it found S.B. 201, commonly referred to as the Reagan Tokes Law, to be
constitutional and imposed an indefinite sentence under that law.1
Tegarty contends that the trial court erred when it sentenced him to
an indefinite sentence under the Reagan Tokes Law because the law violates
constitutional guarantees of due process, the separation-of-powers doctrine, and the
right to trial by jury. He acknowledges that this court’s en banc decision of State v.
Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 17-51 (8th Dist.), rejected these
arguments challenging the constitutionality of the Reagan Tokes Law, thus
affirming that his arguments are advanced to preserve the claim for further review.
Based on the authority of Delvallie, we summarily overrule Tegarty’s challenges and
his assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
1 Neither party has raised any issues as to the imposed sentence; therefore, any
determination as to the validity of the sentence is beyond the scope of this direct appeal.
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.
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
convictions 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MICHAEL JOHN RYAN, J., CONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B.
Forbes (dissenting) and Administrative Judge Anita Laster Mays (concurring in
part and dissenting in part) in Delvallie and would have found the Reagan Tokes
Law unconstitutional.