State v. Williams

[Cite as State v. Williams, 2022-Ohio-2517.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-66
:
v. : Trial Court Case Nos. 2021-CR-369 and
: 2021-CR-592
LORENZO WILLIAMS :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 22nd day of July, 2022.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington
Court House, Ohio 43160
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-Appellant, Lorenzo Williams, appeals from judgments in two trial
court cases. In Clark C.P. No. 2021-CR-592, Williams appeals from his convictions on
two counts of sexual battery, both third-degree felonies, and one count of intimidation of
an attorney, victim, or witness in a criminal case, a first-degree misdemeanor. Following
a jury trial, the court sentenced Williams to five years in prison on each sexual battery
conviction, with the terms to be served consecutively, and to six months on the
intimidation charge, to be served concurrently with the other sentences. The total prison
term, therefore, was ten years. Williams was also designated a Tier III sexual offender
and ordered to register with the sheriff in person every 90 days for the rest of his life.
{¶ 2} According to Williams, the trial court should have granted his motion to
suppress evidence in Case No. 2021-CR-592, because law enforcement recklessly
included misrepresentations in the affidavit used to obtain search warrants. Williams
further contends that his convictions were based on insufficient evidence and were
against the manifest weight of the evidence. For the reasons stated below, Williams’s
assignments of error are without merit, and the judgment in Clark C.P. No. 2021-CR-592
will be affirmed.
{¶ 3} The second case included in the notice of appeal is Clark C.P. No. 2021-CR-
369, in which all charges against Williams were dismissed. In light of that fact, we told
the parties to address our jurisdiction over the case. See Order (Feb. 8, 2022), p.1.
Both parties have agreed that no appealable order exists concerning the case. See
Williams’s Brief, p. 10, and State’s Brief, p. 3.
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{¶ 4} We also agree. Dismissal of all charges left Williams in the same position
as if the charges had not been filed. As a result, Williams’s substantial rights were not
affected, and no final appealable order exists. Accordingly, the appeal as it relates to
Clark C.P. No. 2021-CR-369 will be dismissed.
I. Facts and Course of Proceedings
{¶ 5} On September 15, 2021, an indictment was filed in Clark C.P. No. 2021-CR-
592, charging Williams with five counts of rape, five counts of sexual battery, two counts
of kidnapping, and one count of intimidation of an attorney, victim, or witness in a criminal
case. The rape and kidnapping charges were first-degree felonies, the sexual battery
charges were third-degree felonies, and the intimidation charge was a first-degree
misdemeanor. The rape and kidnapping charges arose from incidents that occurred on
separate dates: January 27, 2021, and November 28, 2021. They also involved two
different victims. The intimidation incident allegedly occurred on September 6, 2021.
{¶ 6} After Williams pled not guilty, the court set a jury trial for November 16, 2021.
A bill of particulars filed on November 3, 2021, outlined details relating only to the crimes
that allegedly occurred on January 27, 2021, and September 6, 2021. These incidents
involved one victim, R.T.
{¶ 7} On November 5, 2021, Williams filed a motion pursuant to Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), challenging an affidavit
and complaint that had been used to obtain a warrant for buccal swabs that were taken
from Williams. On the same day, Williams filed a motion to dismiss the charges based
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on a speedy trial violation. The trial court overruled the speedy trial motion on November
12, 2021.
{¶ 8} On the first day of trial, the court held a Franks hearing outside the presence
of the jurors. No witnesses testified, as the circumstances relating to the motion were
undisputed. However, the parties did present argument. See Trial Transcript (“Tr.”), p.
5-15. After hearing the arguments, the court denied the motion. Id. at p. 15.
{¶ 9} Before trial began, the State also asked the court to dismiss counts 10, 11,
and 12. Those counts concerned rape, kidnapping, and sexual battery charges based
on the November 28, 2019 incident and a victim named D.L. Id. The court agreed to
dismiss the counts without prejudice, which left counts one through nine and 13 remaining
for trial. These included four rape counts, four sexual battery counts, one kidnapping
count, and one count of intimidation of a witness. As indicated, these charges involved
R.T. and allegedly occurred on January 27, 2021, and September 6, 2021.
{¶ 10} At this time, the State also told the court it wished to dismiss an indictment
filed against Williams in Clark C.P. No. 2021-CR-369, and the court agreed to dismiss
that case as well. Tr. at p. 16. As will be discussed more fully below, Case No. 2021-
CR-369 involved Williams’s girlfriend, L.R. Before filing charges in that case, the police
obtained buccal swabs from Williams, because L.R. alleged that Williams had inserted a
knife in her vagina. The DNA evidence from the swabs subsequently revealed a match
with DNA found in R.T.’s vagina.
{¶ 11} At trial, the State presented testimony from R.T. and several other people,
including police officers, medical personnel, a forensic expert, and R.T.’s friends. Other
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than R.T., none of these witnesses were present during the January 27, 2021 incident,
which occurred in a hotel room. Williams presented evidence from one witness, his
girlfriend, L.R., who was also not present in the hotel room, but she was in the car when
R.T. and Williams drove to the hotel.
{¶ 12} R.T.’s account at trial was as follows. On January 27, 2021, R.T. was at a
friend’s apartment along with a lot of other people, including Williams. Id. at p. 162-163
and 174. At the time, R.T. had been up (i.e., had not slept) for a few days because she
was “on the streets” and was staying at a houseful of drug addicts. R.T. was staying
there because that was the only place she had to go. Id. at p. 181 and 184. R.T. said
that she and Williams left the apartment because her friend, Mandy, wanted food.
However, they did not get food. Instead, they drove to a couple of places, doing alcohol
and “some weed,” and ended up at the USA hotel. Id. at p. 163-164 and 174. R.T.
indicated that another woman (Williams’s girlfriend, L.R.), was in the car when she and
R.T. went to the hotel, but L.R. was not in the car the entire time. Id. at p. 173.
{¶ 13} After Williams and R.T. arrived at the hotel, they went into a room that
contained three other people: a husband and wife and their son. Tr. at p. 164. R.T. did
not feel well and lied on the floor between the two beds in the room. She was throwing
up. Id. at p. 165 and 174.1 The woman in the room said R.T. could lie down on one of
the beds; after doing so, R.T. dozed off. Id. at p.164 and 175. R.T. recalled Williams
lying down beside her and that Williams kept putting methamphetamine (“meth”) inside
1 When R.T. talked to the police after the incident, she claimed she also threw up out of
the car window multiple times on the way to the hotel, due to having unknowingly ingested
what she suspected was methamphetamine. R.T. did not testify to this at trial, but the
evidence was brought in through the officers’ testimony. Tr. at p. 211-212 and 272-273.
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her butt and vagina. Id. at p. 165. At some point, R.T. took a shower. While she was
in the bathroom, Williams tried to have sex with her, pushing her face-down over the toilet.
R.T. asked him to stop, but he did not. Williams was doing meth, told her she was no
fun anymore, and left the hotel. Id. at p. 166-167.
{¶ 14} R.T. then called her friends, Neveah and Alexis, as well as a man who was
close to her. She did not call the police. The man came and got R.T., and she left the
hotel. Id. at p. 168, 175, 179, 187, and 201.
{¶ 15} The call to Neveah and Alexis was on speakerphone. Id. at p. 203.
According to Neveah, R.T. said she had been raped but did not remember much. R.T.
also mentioned to Neveah that someone named “Lo” put a needle in her. Id. at p. 189.
Alexis testified that R.T. sounded like she was “out of it,” like she was under the influence
of drugs. Both women said R.T. was crying during the phone call. Id. at p. 187-188 and
202. Alexis’s account was that R.T. called because she wanted them to come and get
her at the hotel. However, Alexis stated that she never found out from R.T. why she
wanted them to come. Id. at p. 203.
{¶ 16} Neveah and Alexis went to the hotel room number that R.T. had described,
but R.T. was not at the hotel when they arrived. Neveah called the police as soon as
they got here. Before the police arrived, Neveah and Alexis talked to the three occupants
of the room. Tr. at p. 189, 191, and 201. Neveah observed “blood all over the bed and
all types of needles and stuff like that in the bathroom.” Id. at p. 188. After the police
came, Neveah talked to R.T. on the phone. During this call, Neveah handed her phone
to Springfield Police Officer Joshua Emory, who spoke with R.T. and arranged to meet
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her at a Speedway gas station. Id. at p. 198 and 209. Emory was a patrol officer who
had gone to the hotel to assist other officers. Id. at p. 207-208. During this
conversation, R.T. said she had taken a shower and had changed her clothes. Emory
asked R.T. to bring the other clothes with her. Id. at p. 210.
{¶ 17} When Emory arrived at the gas station, he was unable to locate R.T. He
then called R.T. at a number she had given him and met her at an empty parking lot north
of the gas station. Id. at p. 209-210.
{¶ 18} When R.T. appeared, she gave Officer Emory the following account. On
January 27, 2021, R.T. was at the Ronez apartment complex, and Williams asked if she
wanted to make $200. R.T. told Williams that she did. Id. at p. 211. R.T. then got into
a car with Williams and an unknown person. They went to a local park where Williams
gave her a “bong,” which was a glass pipe used for smoking. R.T. thought the pipe
contained marijuana and took a hit, but realized the substance was not marijuana. R.T.
suspected it was meth. Id. R.T. began getting sick immediately, and that is when
Williams left the park. As noted, R.T. claimed to have thrown up multiple times out of the
car window as they were driving. Id. at p. 211-212.
{¶ 19} According to R.T’s account to the police, she and Williams went to Room
213 when they got to the USA hotel. Because R.T. was not feeling well, she lied down
in a bed. The people in the room were doing doses of meth, and R.T. did a line of meth
as well. As R.T. was lying in bed, Williams inserted meth into her vagina and anus with
his finger. Shortly after this, a boy in the room got out of the shower; R.T. then asked if
she could get in the shower. After going in, R.T. locked the door. At some point,
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Williams came into the bathroom, yelled at her for locking the door, and they had a normal
conversation. Id. at p. 212-213. After R.T. got out of the shower, Williams grabbed her
by the neck, bent her over the sink and placed his penis inside her vagina. Id. at p. 213.
{¶ 20} Officer Emory decided to take R.T. to the hospital to have a rape kit
performed. Tr. at p. 213. A sexual assault nurse then examined R.T. using a sexual
assault evidence collection kit. Id. at p. 225-226. The exam was conducted at 8:10 a.m.
on January 28, 2021, which was several hours after the alleged events occurred. Id. at
p. 226 and 231-232, and State’s Ex. 1. The nurse took swabs from various areas,
including the mouth, the fingernails, the outside and inside of the vagina, and the rectal
area. She also collected pubic hairs and did a physical exam. Id. at p. 224, 228-229,
and 230-231. The chain of custody was preserved for the kit, and it was submitted to
the Ohio Bureau of Criminal Investigation (“BCI”) for analysis. Id. at p. 236-238, 246-
247, 250-252, 257, and 321, and State’s Ex. 3.
{¶ 21} On January 29, 2021, a number of text messages were sent to a contact
identified as “Lo Lo” in R.T.’s cell phone. R.T. denied putting Williams in her phone as
“Lo” and denied ever contacting him. Id. at p. 170-171, and Defendant’s Ex. A. R.T.
then stated that she did remember some of the text messages. However, she still denied
putting Williams’s name in her contact list; she claimed that multiple people used her
phone. Id. at p. 171 and 181. During this text conversation (quoted verbatim), R.T.
stated, “Listen man, uk I told u to stop u were hurting. . . ,” and “Lo Lo” responded, “Smh
I never raped you and u know it.” Ex. A at p. 2. R.T. also expressed anger over the fact
that “Lo” had brought other girls to the hotel and said, “the thing is I thought you was coo
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man.” Id. There is no evidence of further contact after January 29, 2021.
{¶ 22} An initial BCI report on R.T.’s DNA sample was issued on March 5, 2021.
The vaginal samples revealed the presence of R.T.’s DNA and that of an unknown male
in sufficient quantity for comparison; the anal samples revealed R.T.’s DNA and additional
male DNA, but not enough for a comparison or to really say anything about it. Tr. at p.
321-322 and 324-327, and State’s Ex. 8.
{¶ 23} On March 18, 2021, Detective Fent of the Springfield Police Department
took a buccal swab from Williams in connection with a different case and submitted it to
the BCI. Tr. at p. 274-275, 281-282, and 322, and State’s Ex. 4. 2 BCI then did
additional DNA testing of R.T.’s DNA and issued a second report on April 13, 2021. Tr.
at p. 328-329 and State’s Ex. 9. This report showed that the DNA of the unknown male
in the vaginal sample was consistent with Williams’s DNA, with a statistic ratio of being
rarer than one in one trillion unrelated individuals. Tr. at p. 330. This meant that the
forensic scientist would have to test more than a trillion other persons who were not
Williams’s identical twin to find someone also matching that DNA profile. Id.
{¶ 24} As indicated, Williams’s girlfriend, L.R., was in the car with Williams and
R.T. the night of the incident. L.R. testified that they gave R.T. a ride to the USA hotel,
where R.T. was to meet a boyfriend, Michael. L.R. saw no evidence that R.T. was ill or
2 The case in question was Clark C.P. No. 2021-CR-369, which involved Williams’s
girlfriend, L.R., who had called 911 about Williams on March 3, 2021. Tr. at p. 360-370.
As a result of L.R.’s complaint, the police obtained a search warrant for Williams’s home.
They then obtained a search warrant for a buccal swab from Williams. Id. at p. 5-8.
However, the State later dismissed any charges relating to the incident after L.R. sent a
letter to the prosecutor in July 2021 recanting what she had previously said about
Williams. Id. at p. 9.
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acting in a peculiar manner. They arrived at the hotel between 8:00 and 9:00 p.m.
Williams went in briefly for about a minute and a half and returned to the car. Id. at p.
355-357. Williams then took L.R. home and left to help a friend move a stove. Id. at p.
356. L.R. was not with Williams the rest of the evening. Id.
{¶ 25} On August 14, 2021, L.R. reached out to R.T. on Facebook. L.R. did this
because she had seen R.T. at the grand jury proceedings. L.R. was mad because R.T.
was crying and asking, “why me,” when R.T. knew that L.R. was Williams’s girlfriend.
Yet R.T. “was still hanging out with a man who had a girlfriend.” L.R. took screenshots
of the text conversation. Id. at p. 359-360 and Defendant’s Ex. B.
{¶ 26} During this text conversation, R.T. told L.R. her side of what had happened
at the hotel. Tr. at p. 360. R.T. also told L.R. that she did not have sex with Williams
that night in the hotel room and denied that she was pregnant with Williams’s child. R.T.
sent L.R. a picture of the child’s father. Id. at p. 362.
{¶ 27} On September 6, 2021, Williams and L.R. had a jail call that was recorded.
During the call, L.R. gave the phone to Williams’s nephew, Mack, who spoke to Williams.
While they were speaking, Williams told Mack to “handle” R.T. Id. at p. 301-302, 305,
and 363-364, and State’s Ex. 7 (Redacted Jail Call # 7). Detective Fent stated that she
interpreted handling to mean to “get” to R.T., “have her not show up, to hurt her, whatever
it took.” Tr. at p. 305. However, Fent was not aware of anything that happened after
that call. Id. at p. 306.
{¶ 28} After hearing the evidence, the jury found Williams guilty of two sexual
battery charges and intimidation of a witness, but not guilty of the rapes, the kidnapping,
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and the remaining sexual battery charges. The trial court then sentenced Williams to a
total of ten years in prison. Williams timely appealed from his convictions.
II. Appeal of Clark C.P. No. 2021-CR-369
{¶ 29} Williams’s first assignment of error deals with whether an appeal from Clark
C.P. No. 2021-CR-369 is properly before us. Again, this case involves charges arising
from the March 3, 2021 911 call that Williams’s girlfriend, L.R., made to the police. Both
parties agree that the dismissal of the indictment in that case is not a final appealable
order. We also agree.
{¶ 30} Crim.R. 48(A) provides that “[t]he state may by leave of court and in open
court file an entry of dismissal of an indictment, information, or complaint and the
prosecution shall thereupon terminate.” This type of dismissal is not considered to be a
final appealable order, because it does not affect a substantial right. Instead, the
defendant is simply placed in the same position he or she occupied before criminal
charges were filed. See, e.g., State v. Williams, 9th Dist. Summit No. 25384, 2011-Ohio-
6412, ¶ 9 and 11.
{¶ 31} A different result could occur if the State were appealing a trial court’s
dismissal of an indictment. See State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752,
876 N.E.2d 957, ¶ 16 (“[p]ursuant to R.C. 2945.67(A), the state may appeal the dismissal
of an indictment whether the dismissal is with or without prejudice”). Likewise an appeal
could proceed if some charges were dismissed and a defendant then appealed
convictions on the remaining charges. See State v. Jackson, 151 Ohio St.3d 239, 2017-
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Ohio-7469, 87 N.E.3d 1227, ¶ 1 (“any dismissal of a count in an indictment resolves that
count and does not prevent a judgment of conviction from being final and appealable”
(emphasis sic.))
{¶ 32} However, neither situation applies here. Instead, the court’s dismissal of
all charges in Clark C.P. No. 2021-CR-369 left the parties in the same position they
occupied before the criminal charges were filed. No substantial right of Williams,
therefore, has been affected. Accordingly, there is no final appealable order, and the
appeal, insofar as it relates to that case, will be dismissed.
III. Suppression of Evidence Derived From Buccal Swab
{¶ 33} Williams’s second assignment of error states that:
The Trial Court Erred When It Failed to Suppress All Evidence
Derived From the Buccal Swab Where the Affidavit Did Not Meet the
Probable Cause Requirements of the Fourth Amendment to the U.S.
Constitution and Art. I, Section 14 of the Ohio Constitution.
{¶ 34} Under this assignment of error, Williams sets forth the requirements for
deciding sufficiency of probable cause in an affidavit. He further outlines situations
where the analysis may be extended beyond an affidavit’s “four corners” if a defendant
can demonstrate that the affiant “made a false statement intentionally, or with reckless
disregard for the truth.” Williams’s Brief at p. 11-12. Williams then discusses the facts
surrounding two search warrants. The first warrant authorized a search of Williams’s
home, based on the report of his girlfriend, L.R., who had accused him of sexually
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assaulting her on March 3, 2021, by inserting a knife into her vagina. Id. at p. 12-13.
After obtaining a search warrant, the police found the alleged knife along with cut clothing.
Based on finding these objects, the police obtained a second search warrant on March
18, 2021, to obtain buccal swabs from Williams. Id. at p. 13. This swab was later used
in April 2021 to match Williams’s DNA to that of R.T., the victim in the present case.
{¶ 35} Williams notes that his argument in the trial court was not that the affidavit
contained deliberately false information. Instead, he argued only that the police
recklessly placed L.R.’s recanted story into the affidavit. Id. at p. 13. After making these
points, Williams essentially agrees in his brief that the evidence was sufficient when the
affidavit was filed. Williams also does not discuss how the police acted recklessly. Id.
at p. 13-15.
{¶ 36} Under the Fourth Amendment to the United States Constitution, “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.” “The language of
Article I, Section 14 of the Ohio Constitution is virtually identical to the language in the
Fourth Amendment, and we have interpreted Article I, Section 14 as affording the same
protection as the Fourth Amendment.” State v. Hoffman, 141 Ohio St.3d 428, 2014-
Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette, 80 Ohio St.3d 234, 238-239,
685 N.E.2d 762 (1997).
{¶ 37} “Central to the Fourth Amendment is the probable-cause requirement.”
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State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 34. “In
determining the sufficiency of probable cause in an affidavit submitted in support of a
search warrant, [an issuing magistrate's task] * * * ‘is simply to make a practical, common-
sense decision whether, given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place.’ ” State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),
paragraph one of the syllabus, quoting and following Illinois v. Gates, 462 U.S. 213, 238-
239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Accord Castagnola at ¶ 35. Ordinarily, “a
probable cause inquiry must be confined to the four corners of the affidavit.” State v.
Klosterman, 114 Ohio App.3d 327, 332, 683 N.E.2d 100 (2d Dist.1996).3
{¶ 38} However, “where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment requires that a hearing
be held at the defendant's request.” Franks, 438 U.S. at 155-156, 98 S.Ct. 2674, 57
L.Ed.2d 667. “Furthermore, if the defendant establishes the perjury allegation or
reckless disregard by a preponderance of the evidence at the hearing, and if, with the
false material set aside, ‘the affidavit's remaining content is insufficient to establish
probable cause, the search warrant must be voided and the fruits of the search excluded
3 There are exceptions, of course. For example, “a court may consider evidence beyond
the four corners of a search-warrant affidavit in determining whether an officer reasonably
and in good faith relied on that warrant.” State v. Dibble, 159 Ohio St.3d 322, 2020-Ohio-
546, 150 N.E.3d 912, ¶ 1.
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to the same extent as if probable cause was lacking on the face of the affidavit.’ ” State
v. Corwin, 2d Dist. Montgomery No. 26690, 2016-Ohio-4718, ¶ 21, quoting Franks at 156.
{¶ 39} “ ‘Reckless disregard’ means that the affiant had serious doubts of an
allegation's truth.” State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d 819 (1992),
quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984). Accord State v.
Starks, 2d Dist. Montgomery No. 28158, 2019-Ohio-2842, ¶ 12.
{¶ 40} Here, the trial court held a Franks hearing and denied Williams’s motion.
On review, there is no question that Williams failed to establish reckless disregard.
Specifically, the affidavits for both search warrants were filed in connection with L.R.’s
March 3, 2021 complaint. At the time, the police had no idea that L.R. would later refute
her allegations several months later, in July 2021. Williams has not even seriously
attempted to argue this point. Accordingly, there was simply no evidence of reckless
disregard, and the trial court did not err in overruling the motion. The second assignment
of error therefore is overruled.
IV. Sufficiency and Manifest Weight Challenges
{¶ 41} Williams’s third and fourth assignments of error are combined in his brief
and will be considered together. These assignments of error state, respectively, as
follows:
The Trial Court Erred in Accepting the Jury Verdict of Guilty as the
Evidence Presented Was Insufficient to Conclude that Guilt Had Been
Proven Beyond a Reasonable Doubt in Violation of the Defendant-
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Appellant’s Rights to Due Process and a Fair Trial Under the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution, and Article
I, Sections 10 and 16 of the Ohio Constitution; and
The Trial Court Erred in Entering a Finding of Guilty Because Such
Verdict Was Against the Manifest Weight of the Evidence, Fifth and
Fourteenth Amendments, United States Constitution, and Article I, Section
16 of the Ohio Constitution.
{¶ 42} The argument under both assignments of error is the same, i.e., that the
guilty verdicts on sexual battery were not based on adequate evidence because the State
failed to prove that the victim, R.T., was substantially impaired. In this regard, Williams
relies on the following points: (1) while R.T. admitted taking meth, this was not
corroborated by results from the local hospital or BCI; (2) according to recognized
authorities, the effects of meth do not demonstrate a “reduction, diminution, or decrease”
in a victim’s ability to appraise her conduct’s nature or to control her conduct; (3) the nurse
who conducted the rape examination stated that she could not tell if R.T. was under the
influence of drugs; (4) R.T. forgot she had said she was to be paid $200 and instead told
people Williams had raped her; and (5) the symptoms of meth withdrawal are the opposite
of the effects of intoxication. Williams’s Brief at p. 16-18.
{¶ 43} In responding, the State notes that Williams failed to raise this issue in the
trial court. State’s Brief at p. 5. The State further argues that Williams’s contentions
are “beyond the pale,” because illegal stimulants can impair victims. Id. Before
addressing these points, we will outline the general standards for assessing sufficiency
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and manifest weight of the evidence claims.
A. General Standards
{¶ 44} “A sufficiency-of-the-evidence argument challenges whether the state has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or to sustain the verdict as a matter of law.” State v. Cherry, 171 Ohio App.3d
375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), citing State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). “The proper test to apply to the inquiry is the
one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492: ‘An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. 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.’ ” Cherry at ¶ 9.
{¶ 45} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th Dist. Franklin No.
10AP-881, 2011-Ohio-3161, ¶ 11. As a result, “a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”
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State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 46} In situations involving a manifest weight challenge, a court reviews “ ‘the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene No. 2013-CA-61,
2014-Ohio-3432, ¶ 24, citing State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 14.
{¶ 47} A further important principle is that appellate courts should cautiously
exercise their discretionary power of finding that judgments are against the manifest
weight of the evidence. This is because factfinders see and hear the witnesses and have
unique competence to decide whether, and to what extent, to credit their testimony. As
a result, we give substantial deference to credibility decisions of factfinders. State v.
Winbush, 2017-Ohio-696, 85 N.E.3d 501, ¶ 59 (2d Dist.), citing State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
B. Discussion
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{¶ 48} The State argues that Williams failed to raise the substantial impairment
issue in the trial court and waived error concerning this point. When Williams moved for
a Crim.R. 29 acquittal after the State rested, he did not mention lack of evidence of
substantial impairment as a ground. See Tr. at p. 345-346. In responding, the State did
briefly mention impairment but did not go into detail. Id. at p. 348. The trial court found
the State had met its burden and overruled Williams’s motion. Id. at p. 349.
{¶ 49} Typically, unpreserved errors may not be reviewed on appeal. They may
be reviewed, however, under the plain error doctrine, which provides that “defects which
affect substantial rights may be grounds for reversal even though they were not brought
to the attention of the trial court.” State v. Manley, 71 Ohio St.3d 342, 347, 643 N.E.2d
1107 (1994), citing Crim.R. 52(B). “Notice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. “Plain error does not exist unless it can be said that but
for the error, the outcome of the trial would clearly have been otherwise.” State v.
Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990), citing Long at paragraph two of
the syllabus. (Other citation omitted.)
{¶ 50} “In a criminal prosecution, a plea of ‘not guilty’ requires the state to prove
all material facts relating to the crime charged.” State v. Manago, 38 Ohio St.2d 223,
226, 313 N.E.2d 10 (1974). Furthermore, we have said that “a defendant's ‘not guilty’
plea preserves the right to object to an alleged insufficiency of evidence, even if the matter
is not raised at trial.” State v. Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016,
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¶ 28, citing State v. Carter, 64 Ohio St.3d 218, 223, 594 N.E.2d 595 (1992), and State v.
Jones, 91 Ohio St.3d 335, 346-347, 744 N.E.2d 1163 (2001). Accord State v. Erby, 2d
Dist. Montgomery No. 27799, 2018-Ohio-3695, ¶ 17; State v. Ropp, 2d Dist. Champaign
No. 2018-CA-44, 2020-Ohio-824, ¶ 30.
{¶ 51} We have also said that “even if a defendant could waive a challenge to the
sufficiency of the evidence by failing to raise the issue at trial, it would remain subject to
plain-error analysis.” State v. Rochowiak, 2d Dist. Miami No. 2008-CA-12, 2009-Ohio-
2550, ¶ 24, citing State v. Osterfeld, 2d Dist. Montgomery No. 20677, 2005-Ohio-3180,
¶ 8. The reasoning is that “ ‘ “a conviction based on legally insufficient evidence
constitutes a denial of due process,” * * * and a conviction based upon insufficient
evidence would almost always amount to plain error.’ ” Osterfeld at ¶ 9, quoting State v.
Coe, 153 Ohio App.3d 44, 2003-Ohio-2732, 790 N.E.2d 1222, ¶ 19 (4th Dist.), which in
turn quotes Thompkins, 78 Ohio St.3d at 386-387, 678 N.E.2d 541.4 Regardless of the
standard used, we find no error.
{¶ 52} Notably, Williams was not convicted of any of the rape charges, which were
brought under R.C. 2907.02(A)(2), which states that “No person shall engage in sexual
conduct with another when the offender purposely compels the other person to submit by
force or threat of force.” Williams was convicted of two counts of sexual battery and
intimidation (the latter of which relates to an incident occurring months after January 27,
4 Some courts have found the “issue largely academic because a conviction based on
legally insufficient evidence constitutes a denial of due process.” State v. Smith, 10th
Dist. Franklin No. 08AP-736, 2009-Ohio-2166, ¶ 25. See also State v. Jackson, 3d Dist.
Allen No. 1-19-83, 2020-Ohio-5224, ¶ 12. Any differences in approach are irrelevant,
however, because Williams’s challenge fails whether we review it either under plain error
or traditional standards relating to sufficiency of the evidence.
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2021).
{¶ 53} The alleged sexual battery crimes were violations of R.C. 2907.03(A)(2),
which provides, in pertinent part, that “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 own conduct is
substantially impaired.”
{¶ 54} “Sexual conduct” is defined as “vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;
and, without privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening of another.
Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.
2907.01(A).
{¶ 55} Because the Ohio Revised Code has not defined the term “substantially
impaired,” it “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). Thus, “substantial impairment
must be established by demonstrating a present reduction, diminution or decrease in the
victim's ability, either to appraise the nature of his conduct or to control his conduct.” Id.Expert testimony is not needed to prove substantial impairment; “ ‘it may be proven by
the testimony of persons who have had some interaction with the victim and by permitting
the trier of fact to obtain its own assessment of the victim's ability to either appraise or
control her conduct.’ ” State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927
N.E.2d 632, ¶ 21 (2d Dist.), quoting State v. Dorsey, 5th Dist. Licking No. 2007-CA-091,
-22-
2008-Ohio-2515, ¶ 43. “Furthermore, voluntary intoxication is a ‘mental or physical
condition’ that could cause substantial impairment * * *.” Id., quoting State v. Harmath,
3d Dist. Seneca No. 13-06-20, 2007-Ohio-2993, ¶ 11.
{¶ 56} In the case before us, ample evidence existed of R.T.’s intoxication, both
voluntary and involuntary. Viewing the evidence in a light most favorable to the
prosecution, any rational fact-finder could have found beyond a reasonable doubt that
R.T. was substantially impaired. First, R.T. voluntarily drank alcohol and smoked
marijuana before arriving at the hotel. She also voluntarily took a hit of what she thought
was marijuana but which appeared to be meth. R.T. had an immediate reaction,
vomiting multiple times out of the car’s side window, and Williams observed this.
{¶ 57} After arriving at the hotel, R.T. vomited again while lying on the floor. She
had clearly experienced a reduction or decrease in her ability to control her conduct at
that point. By her own admission, R.T. used meth again, which was voluntary. While
R.T. dozed on the bed, Williams inserted more drugs into R.T.’s body. Whether R.T.
was dozing, had passed out, or was partially awake, she did not ask Williams to place
meth inside her body, meaning that this ingestion of drugs was involuntary.
{¶ 58} Furthermore, although R.T. was able to get up and take a shower and have
“normal conversation” briefly, this does not mean she was not substantially impaired. In
fact, when R.T. called her friends right after these incidents, she showed obvious signs
of intoxication, being “out of it” and under the influence of drugs. Tr. at p. 202. Williams
was in a position to see this and, in fact, caused the intoxication in part.
{¶ 59} In arguing that R.T. was not substantially impaired, Williams notes that the
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nurse who performed the rape examination could not tell if R.T. was intoxicated. The
nurse described R.T. as being “very tearful, just kind of like flight of ideas, like she couldn’t
stay on one topic for too long, just kept saying she was tired, she just wanted to sleep.”
Tr. at p. 234. According to the nurse, R.T. said she was “going to fall asleep now,” and
was “seeing black floating things.” As a result, R.T. was unable to complete her
statement. Id. at p. 235. The nurse also said she could not tell whether R.T. was under
the influence of drugs. Id. at p. 241. In this regard, the nurse commented that R.T. was
“just very distraught, so I didn’t know what that was from. I was assuming it was from
the assault.” Id.
{¶ 60} The jury could have reasonably given little weight on the nurse’s statement,
as her examination took place hours after the incident, during which time signs of
intoxication or impairment may have subsided. The time frame R.T. gave the nurse was
10:19 p.m. on January 27, 2021, to 3:00 a.m. on January 28, 2021, and the exam took
place around 8:10 a.m. on January 28. Id. at p. 231-232 and State’s Ex. 1. Therefore,
between five and 10 hours had elapsed. R.T. told the nurse that she was not really sure
on the time frame “because she had been using drugs and she hadn’t slept and she
couldn’t remember a whole lot, but she remembered when she got to where she was at
and when she woke up.” Id. at p. 231.
{¶ 61} Courts have commented that a more difficult question is whether the
defendant knew the alleged victim was substantially impaired. Hatten, 186 Ohio App.3d
286, 2010-Ohio-499, 927 N.E.2d 632, at ¶ 23. See also State v. Jenkins, 2d Dist. Greene
No. 2015-CA-6, 2015-Ohio-5167, ¶ 27.
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{¶ 62} “ ‘[W]hen reviewing substantial impairment due to voluntary intoxication,
there can be a fine, fuzzy, and subjective line between intoxication and impairment.
Every alcohol consumption does not lead to a substantial impairment. Additionally, the
waters become even murkier when reviewing whether the defendant knew, or should
have known, that someone was impaired rather than merely intoxicated.’ ” Hatton at
¶ 23, quoting State v. Doss, 8th Dist. Cuyahoga No. 88443, 2008-Ohio-449, ¶ 18.
{¶ 63} If one accepts R.T.’s testimony that she threw up multiple times while in
Williams’s car and threw up in the hotel, after which she ingested even more meth both
voluntarily and involuntarily, there was sufficient evidence to support the conclusion that
Williams knew R.T. was substantially impaired at the time of the sexual battery.5 No
error or plain error occurred in this regard. Again, even if Williams failed to properly raise
the impairment issue, sufficient evidence existed to support the convictions.
{¶ 64} Williams has also remarked on R.T.’s statement that she wanted to make
$200, implying that she willingly agreed to go with him and to engage in sexual activity.
However, this has nothing to do with whether R.T. was substantially impaired or whether
Williams knew of it at the time of the battery. This would be more of a factor in
considering whether the verdict were against the manifest weight of the evidence.
{¶ 65} As noted, reversing on the manifest weight of the evidence is done in
“ ‘exceptional cases,’ ” and involves reviewing the entire record, weighing evidence and
5 There was some evidence that R.T. also used fentanyl, perhaps without her knowledge.
R.T. told the police that people in the room were using fentanyl, but she did not want any
part of it. Tr. at p. 212. However, R.T. also told her friend that Williams had put a needle
in her. Id. at p. 191. She also testified that the doctors told her meth and fentanyl were
in her system. Id. at p. 173.
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all reasonable inferences, as well as considering witness credibility to decide if “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.’ ” Thompkins, 78 Ohio St.3d at 387, 678
N.E.2d 541. Williams did not waive error in this regard, at least with respect to appellate
consideration of a manifest weight challenge.
{¶ 66} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, the Supreme Court of Ohio rejected the position that parties waive the ability to
assert a manifest weight challenge on appeal if they fail to file motions for new trial (which
test the weight of the evidence). Id. at ¶ 24-30. Relying on R.C. 2321.04, the court held
that “[n]othing in the rules or statutes requires a party to have made a particular motion
before seeking appellate review of a jury verdict on the weight of the evidence.” Id. at ¶
28-29. This statute provides that “[a] motion for a new trial is not necessary as a
prerequisite to obtain appellate review of the sufficiency or weight of the evidence
submitted to the trial court where such evidence to be considered appears as a part of
the record filed in the appellate court.”
{¶ 67} Although Eastley was a civil action, the court noted that the criminal code
contains a “corresponding statute.” Eastley at ¶ 28, fn. 4. This statute, R.C. 2945.831,
provides that “[a] motion for a new trial is not a necessary prerequisite to obtain appellate
review of the sufficiency or weight of the evidence in the trial of a criminal case.” Thus,
similar considerations apply here.
{¶ 68} In reality, however, the issue concerns whether Williams presented
evidence on his view of the substantial impairment issue at trial. He did not. Williams
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argues that the effects of meth contradict “a present reduction, diminution, or decrease in
the victim's ability, either to appraise the nature of her conduct or control her conduct as
required.” Williams's Brief at p. 16. Specifically, Williams is contending that the effects
of meth do not meet the definition of "substantial impairment" as outlined in Zeh, 31 Ohio
St.3d at 103, 509 N.E.2d 414. As support for this point, Williams refers to various
publications discussing short and long-term effects of meth. Williams's Brief at p. 16-18.
{¶ 69} Under well-established law, “[a] reviewing court cannot add matter to the
record before it, which was not a part of the trial court's proceedings, and then decide the
appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d
500 (1978), paragraph one of the syllabus. If Williams wished to challenge impairment
based on the “effects” of meth, he should have presented expert testimony at trial. He
chose not to do so, and he cannot rely here on various publications to support his
argument.
{¶ 70} We have reviewed the entire record and find this case lacks exceptional
circumstances that would justify overturning the verdict to avoid a miscarriage of justice.
The evidence of record supported the convictions, and the jury, which saw and heard the
witnesses, chose to believe the State’s witnesses, including R.T., even though there may
have been some inconsistencies in testimony. As noted, credibility decisions “are
primarily for the finder of fact.” Jenkins, 2d Dist. Greene No. 2015-CA-6, 2015-Ohio-
5167, at ¶ 30. Accordingly, the judgment was not against the manifest weight of the
evidence. Moreover, Williams’s acquittal on several counts supports the conclusion that
the jury was able to weigh the evidence. See State v. Redic, 2d Dist. Greene No. 2019-
-27-
CA-1, 2019-Ohio-3395, ¶ 28.
{¶ 71} Based on the preceding discussion, the third and fourth assignments of
error are overruled.
IV. Conclusion
{¶ 72} All of Williams’s assignments of error in Clark C.P. No. 2021-CR-592 having
been overruled, the judgment of the trial court in that case is affirmed. The appeal from
the dismissal of all charges in Clark C.P. No. 2021-CR-369 is dismissed for lack of a final
appealable order.
.............
DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Ian A. Richardson
Steven H. Eckstein
Hon. Douglas M. Rastatter