State v. Harris , 2020 Ohio 4365 ( 2020 )

[Cite as State v. Harris, 2020-Ohio-4365.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29583
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
COREN HARRIS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 01 0017
DECISION AND JOURNAL ENTRY
Dated: September 9, 2020
CARR, Presiding Judge.
{¶1} Defendant-Appellant Coren Harris appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} In January 2019, Harris was indicted on one count of rape, one count of kidnapping,
and one count of sexual battery related to an assault on his cousin, D.H., on August 1, 2018. Later,
a supplemental indictment was filed adding repeat violent offender specifications to the first two
counts.
{¶3} The matter proceeded to a jury trial. The jury found Harris not guilty of rape and
kidnapping. However, the jury found Harris guilty of sexual battery. Harris was sentenced to four
years in prison. Harris has appealed, raising two assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ADOPTING THE JURY’S VERDICT
FINDING APPELLANT GUILTY OF SEXUAL BATTERY WHERE THE
CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶4} Harris argues in his first assignment of error that the jury’s verdict finding him
guilty of sexual battery was against the manifest weight of the evidence. Specifically, he asserts
that the weight of the evidence does not support that the victim, D.H., was substantially impaired
or that Harris knew that she was substantially impaired. Our discussion will be limited
accordingly.
{¶5} In determining whether a criminal conviction is against the manifest weight of the
evidence,
an appellate court must review the entire record, 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder's resolution of the
conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.
Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a
judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
{¶6} Harris was found guilty of violating R.C. 2907.03(A)(2)/(B). R.C. 2907.03(A)(2)
states that “[n]o 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
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the other person’s own conduct is substantially impaired.” “Whoever violates [R.C. 2907.03] is
guilty of sexual battery.” R.C. 2907.03(B). “A person acts knowingly, regardless of purpose,
when the person is aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when the person is
aware that such circumstances probably exist. When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is established if a person subjectively believes
that there is a high probability of its existence and fails to make inquiry or acts with a conscious
purpose to avoid learning the fact.” R.C. 2901.22(B).
{¶7} In evaluating R.C. 2907.03(A)(2), this Court has determined that “[t]he phrase
substantially impaired * * * must be given the meaning generally understood in common usage. *
* * [It] must be established by demonstrating a present reduction, diminution or decrease in the
victim’s ability, either to appraise the nature of his [or her] conduct or to control his [or her]
conduct. This is distinguishable from a general deficit in ability to cope[.]” (Internal quotations
and citations omitted.) State v. Hansing, 9th Dist. Lorain No. 16CA011053, 2019-Ohio-739, ¶ 13.
“Expert testimony is not required to establish substantial impairment, and the existence of a
substantial impairment may be proven by the victim’s testimony.” Id., quoting State v. Dasen, 9th
Dist. Summit No. 28172, 2017-Ohio-5556, ¶ 19. “[V]oluntary intoxication is a mental or physical
condition that could cause substantial impairment.” Hansing at ¶ 14. Nonetheless, “[e]very
alcohol consumption does not lead to a substantial impairment.” (Internal quotations and citations
omitted.) Id. Moreover, not every instance of intoxication equates with substantial impairment.
Id. “[W]hen reviewing substantial impairment due to voluntary intoxication, there can be a fine,
fuzzy, and subjective line between intoxication and impairment.” (Internal quotations and citations
omitted.) Id. “[T]he waters become even murkier when reviewing whether the defendant knew,
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or should have known, that someone was impaired rather than merely intoxicated.” (Internal
quotations and citations omitted.) Id.{¶8} At the time of the assault, D.H. was in her forties. D.H. and Harris are cousins and
have known each other since elementary school. Prior to the assault, D.H. testified that she was
very close to Harris.
{¶9} On August 1, 2018, D.H. was supposed to pick up her close friend, Devin, whom
she had also known since elementary school. The two were going to go to a clothing store. D.H.
was late and Devin ended up taking a bus to go home. On his way home, D.H. called Devin and
asked him to get off the bus and meet her. According to Devin, D.H. wanted Devin to drive
because she was “a little bit lit.” Devin agreed to do so and then drove them to the clothing store.
On the way back, D.H. wanted to stop at Harris’ house to get some marijuana.
{¶10} In his testimony, Devin first described D.H.’s alcohol consumption in terms of
shots, but subsequently testified that D.H. was drinking from a bottle of vodka and that she had a
half a pint of vodka prior to getting to Harris’ and a whole pint while at Harris’. Devin indicated
that D.H. was pretty drunk. Devin also testified that D.H. smoked marijuana while at Harris’.
D.H. testified that there was a bottle of alcohol with her in the car. Prior to meeting Devin, she
estimated that she had one to two shots and was able to drive. Once Devin was driving, D.H. had
more alcohol. She estimated that she had five or six more shots before arriving at Harris’. Once
at Harris’ D.H. asserted that she began drinking from the bottle. She estimated that she had “a
couple swigs” from the bottle and smoked marijuana while she was at Harris’. D.H. described
herself as being “intoxicated quite a bit” such that she did not “remember everything initially.”
However, she also testified that she was not “intoxicated where [she] was falling over * * * where
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[she] was like passed out.” She testified that she was “drunk” but not “she need[s] an ambulance
type of drunk.” D.H. testified that the marijuana did not have much effect on her.
{¶11} When they arrived at Harris’ house, D.H. went on the porch to play with some
puppies and Devin and Harris were inside playing on the Xbox. Harris and Devin heard a yelp,
and Harris became angry, went on the porch, grabbed D.H. from under her arms, and dragged her
inside. The two began arguing and Devin stepped outside. Devin testified that, when he came
back in, things had settled down. D.H. started dancing, but in the process of doing so, tripped over
something and knocked a few things to the ground. Devin helped D.H. to the couch. Harris
became angry, went to the kitchen, returned, and then zip tied D.H.’s legs. D.H. testified that she
was on the ground when Harris put the zip ties on her, and she then sat down on the couch. D.H.
and Harris started to argue again. Harris told D.H. to “shut up and just sit there [and was] just
trying to make [D.H.] sit down.” At the time, D.H. was not overly concerned about the zip ties
and thought it was just “horseplay.” Devin then left to go the store.
{¶12} D.H. testified that, after Devin left, Harris put her on the edge of the couch, pushed
her legs up, pulled her leggings down, and had vaginal intercourse with her. When Devin returned,
he found Harris having sex with D.H. Devin heard D.H. saying, “Stop. Stop. Get off of me. This
is not right. This is not right.” Devin went outside in shock and called D.H.’s son. Devin went to
go back in and D.H. then came running out of the house and told Devin that “both of [them were]
wrong[.]” D.H. was frantic and “shaking and crying[.]” D.H. refused to give Devin a ride and left
in her car. She asserted that she was “very wide alert” after the trauma; it “sobered” her up. Harris
ultimately gave Devin a ride. While they were in the car together, Harris told Devin that D.H.
deserved it and asked why Devin did not join in.
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{¶13} D.H. went to her grandmother’s house. She initially did not call the police because
Harris was family and she knew doing so would cause problems. A couple days later, D.H. went
to Planned Parenthood but she was told she needed to go to the hospital. D.H. then proceeded to
the emergency room. Devin met her there. D.H. was examined by Patti Riley, R.N., and a rape
kit was performed. Ms. Riley documented several bruises that appeared to all be around the same
age; some of the bruises appeared to look like fingertip impressions. D.H. was also questioned by
police. Detective Dawn Forney, a detective with the Akron Police Department, interviewed D.H.
at the hospital. D.H. told Detective Forney that she had been drinking the day of the assault and
that she had “four little shots[.]” Upon returning home, D.H. located the leggings, shorts, and a
feminine hygiene pad she was wearing at the time of the assault. They had not been laundered.
The items were submitted to the police for possible testing. Stacy Violi, a forensic scientist with
the Ohio Bureau of Criminal Investigation, testified that the vaginal and anal samples from D.H.
contained no DNA profile foreign to D.H. Ms. Violi indicated that the DNA profile recovered
from D.H.’s leggings contained a mixture of DNA consistent with that of D.H. and Harris. The
portion consistent with Harris’ DNA profile was expected to be seen in the population less than
one in one trillion times. The DNA profile obtained from the shorts was also a mixture with the
major profile consistent with D.H. The minor profile was from a male but was not of sufficient
quality or quantity to compare it to any individual.
{¶14} On cross-examination, D.H. acknowledged that she and Harris had had a
consensual sexual encounter over a decade prior to the assault. She stated that it happened when
they were both high, that they knew it was wrong, and it never happened again.
{¶15} After an independent review of the record, we conclude that the jury’s verdict is
not against the manifest weight of the evidence. While the testimony as to how much alcohol D.H.
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had varied, the record is clear that D.H. had a substantial amount of alcohol and also smoked
marijuana. Some of that alcohol and all of the marijuana was consumed during D.H.’s visit to
Harris’ house. D.H. described herself as being “intoxicated quite a bit” such that she did not
“remember everything initially.” Devin, who was completely sober, testified that, when he met
D.H., D.H. wanted him to drive because she was already “a little bit lit.” By the time they were at
Harris’ Devin indicated that D.H. was pretty drunk. While D.H. also testified that she was not
falling over or in need of an ambulance, D.H. did trip and fall while dancing and knocked some
items off of an end table. Devin then helped D.H. to the couch. In order to control D.H. and get
her to “shut up and just sit there[,]” Harris put zip ties around D.H.’s ankles. From those
circumstances, it would not be unreasonable for the trier of fact to infer that D.H. was not only
intoxicated, her “ability to appraise the nature of or control [her] own conduct [wa]s substantially
impaired.” R.C. 2907.03(A)(2). While D.H. did remember many details, she also admitted some
difficulty remembering everything. In addition, the jury could have attributed her coordination
issues to alcohol and/or marijuana impairment. Moreover, Harris and D.H. grew up together and
there was evidence presented that the two had gotten high together in the past. Thus, there was
evidence that Harris would be aware of what D.H. was like when she was impaired. In addition,
there was evidence that Harris was so annoyed by D.H.’s drunken behavior that he zip tied her
legs; this would also support the notion that Harris was aware of D.H.’s substantial impairment.
Therefore, the jury could have also reasonably concluded that Harris knew that D.H.’s ability to
appraise the nature of or control her own conduct was substantially impaired when he assaulted
her.
{¶16} While Harris argues the facts of this case are similar to those in Hansing, a case in
which this Court found a defendant’s conviction for sexual battery was against the weight of the
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evidence, we determine the facts of this case are distinguishable. See Hansing, 2019-Ohio-739, ¶
46. Notably, in Hansing there was surveillance video of the victim. Id. at ¶ 32. Despite the
victim’s testimony that she was very intoxicated, id. at ¶ 26, “[i]n none of the video recorded [did
the victim] appear to be stumbling, swaying, or having extreme difficulties maintaining her
balance.” Id. at ¶ 46. Moreover, multiple witnesses who knew the victim and saw her immediately
after the alleged assault testified that she did not appear intoxicated or drunk. Id. Here, there was
no surveillance video or other witness testimony which contradicted D.H.’s impairment.
{¶17} Harris has not demonstrated that the jury’s verdict was against the manifest weight
of the evidence. Harris’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY NOT PROVIDING JURY INSTRUCTIONS
THAT SPECIFIED THAT MERE INTOXICATION DOES NOT EQUATE TO
SUBSTANTIAL IMPAIRMENT.
{¶18} Harris argues that the trial court committed plain error in failing to instruct the jury
that mere intoxication does not equate to substantial impairment.
{¶19} Harris admits that he did not object to the jury instructions; thus, he has forfeited
all but plain error. State v. Higgins, 9th Dist. Summit No. 27700, 2018-Ohio-476, ¶ 27. “Plain
errors or defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” Crim.R. 52(B).
By its very terms, [Crim.R. 52(B)] places three limitations on a reviewing court’s
decision to correct an error that was not raised below. First, an error, i.e., a
deviation from a legal rule, must have occurred. Second, the error complained of
must be plain – that is, it must be an obvious defect in the * * * proceedings. Third,
the error must have affected substantial rights. We have interpreted this * * * to
mean that the trial court’s error must have affected the outcome of the proceedings.
(Internal quotations and citations omitted.) State v. Martin, 154 Ohio St.3d 513, 2018-Ohio-3226,
¶ 28. Thus, “[t]his Court may not reverse the judgment of the trial court on the basis of plain error,
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unless appellant has established that the outcome of trial clearly would have been different but for
the alleged error.” Higgins at ¶ 27, quoting State v. Klingel, 9th Dist. Lorain No. 15CA010876,
2017-Ohio-1183, ¶ 29; see also Martin at ¶ 32 (noting the burden to establish plain error is on the
appellant).
{¶20} The jury was instructed that: “Before you can find the defendant guilty, you must
find beyond a reasonable doubt that on or about the 1st of August, 2018, in Summit County Ohio,
the defendant engaged in sexual conduct with [D.H.], who was not his spouse, and the defendant
knew that [D.H.’s] ability to appraise the nature of or control her own conduct was substantially
impaired.” In defining knowingly and knowledge, the trial court stated: “Because you cannot
look into the mind of another, knowledge is determined from all the facts and circumstances in
evidence. You will determine from these facts and circumstances whether there existed at the time
in the mind of the defendant an awareness of the probability that [D.H.’s] ability to appraise the
nature of or control her conduct was substantially impaired.” Despite Harris’ argument to the
contrary, substantially impaired was defined; however, the definition appeared in the section
related to the charge for kidnapping, not sexual battery. Substantially impaired was defined by the
trial court as a “present reduction, diminution or decrease in [D.H.’s] ability to either appraise the
nature of her conduct or control her conduct.” Nonetheless, Harris is correct that the trial court
did not instruct the jury that every instance of intoxication does not equate to substantial
impairment. See Hansing, 2019-Ohio-739, at ¶ 14 (discussing the concept in terms of a sufficiency
analysis).
{¶21} Notwithstanding the foregoing, even if we were to assume that the trial court should
have provided the instruction as argued by Harris, Harris has not explained how the result of the
trial would have been different if that instruction was given. See Higgins, 2018-Ohio-476, at ¶ 27.
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While Harris has stated that “[b]ut for that error the outcome at trial would have been different[,]”
he has developed no argument explaining why that would be so. See App.R. 16(A)(7). As
discussed above, the weight of the evidence supported the conclusion that D.H.’s ability to appraise
the nature of or control her own conduct was substantially impaired and that Harris knew the same.
{¶22} Harris has not met his burden of demonstrating that the trial court committed plain
error in instructing the jury. Harris’ second assignment of error is overruled.
III.
{¶23} Harris’ assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
SCHAFER, J.
HENSAL, J.
CONCUR.
APPEARANCES:
AVIVA L. WILCHER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.