APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 11CR0479
ROBERT C. MEEKER, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
(¶1} Defendant-Appellant, Steven Porter, appeals from the judgment of the Medina County Court of Common Pleas. This Court affirms.
(¶2} On August 6, 2011, Porter, his wife, Katie, and their two children attended the wedding of his step-brother, Josh. Also in attendance were brothers Matt and Jessie Shorter, and C.S. Matt and Jessie are Porter's cousins by marriage. C.S. is Matt and Jessie's sister and was 13 years old at the time.
(¶3} After the wedding reception, Porter invited Josh, another step-brother, Jake, and their wives over to his house for an after-party. Josh asked if Matt and Jessie could come along, to which Porter had no objection. Matt and Jessie volunteered to bring the remaining keg of beer over to Porter's after they dropped C.S. off at home. After receiving permission from her father, C.S. decided to go along with her brothers to Porter's house.
(¶4} While waiting for Josh to bring the tap for the keg, Porter pulled out a bottle of 101 proof peppermint schnapps, a bottle of tequila, and three shot glasses. According to C.S., Porter gave her shots of the peppermint schnapps. However, none of the witnesses at trial admitted to seeing C.S. drinking any alcohol that evening. Josh and his new wife left first, followed by Jake and his wife. Matt, Jessie, and C.S. intended to spend the evening because Matt and Jessie were too drunk to drive.
(¶5} Katie Porter testified that she went upstairs to bed around 12:00 or 12:30 a.m. Not long after, Jessie, Matt, C.S., and Porter lay down in the living room to sleep. Matt was sitting in a reclining chair, while the others were on the "L" shaped sectional couch. Porter was lying on the long portion that forms the bottom of the "L, " C.S. was lying with her feet toward Porter's head, and Jessie was sitting at the end of the couch near C.S.'s head.
(¶6} Jessie testified that he woke when he heard Matt get out of the chair and go to the bathroom to throw up. He then noticed that C.S. had slid down the couch toward Porter and was quietly moaning. Jessie said that he picked up the blanket covering C.S. and saw that C.S. was disrobed and that Porter's hand was touching her bare vagina.
(¶7} Jessie testified that he tried to alert his brother Matt, and eventually called 911 while standing in the bathroom with Matt. He hung up the phone with the dispatcher when Porter opened the bathroom door. Matt and Jessie then went outside, and Jessie called the police again.
(¶8} Officer Matthew Heidelman of the Seville Police Department was the first officer on scene. Officer Heidelman testified that C.S. "was passed out or sleeping" on the couch when he entered the living room. He began asking her questions and "could tell something just wasn't right. Her speech was somewhat * * * slurred. She just wasn't very coherent, [and] couldn't really make out what had happened." Detective Kevin Ross arrived shortly thereafter and began interviewing C.S. Detective Ross testified that C.S. was intoxicated when he spoke to her and that she "was out of it." Detective Ross further testified that C.S. told him that Porter had given her alcohol.
(¶9} C.S. testified that Porter had given her two or three shots of peppermint schnapps and that the last thing she remembered was sitting on the couch with Porter. She remembered Porter had his hand on her leg and asked her if she was okay. The next thing she knew Officer Heidelman was waking her. She testified that she did not remove her skirt, underwear or bra and was unaware that they were off until the officer brought it to her attention.
(¶10} Porter was indicted on two counts of gross sexual imposition ("GSI"), in violation of R.C. 2907.05(A)(1) and R.C. 2907.05(A)(5), both felonies of the fourth degree. At trial, the court granted Porter's Crim.R. 29 motion and dismissed the count related to R.C. 2907.05(A)(1). The jury found Porter guilty of the remaining GSI charge, and the court sentenced him to one year in prison. Porter now appeals and raises three assignments of error for our review.
Assignment of Error Number One
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY VERDICT OF GUILTY OF GROSS SEXUAL IMPOSITION, PURSUANT TO R.C. §2907.05(A)(5), AND THAT SAID JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
(¶11} In his first assignment of error, Porter argues that the evidence is insufficient to sustain his conviction for GSI. Additionally, Porter argues that his conviction is against the manifest weight of the evidence.
(¶12} "'[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting Black's Law Dictionary 1433 (6th Ed.1990). "In essence, sufficiency is a test of adequacy." Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. The pertinent question is whether "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id.
(¶13} "Whether the evidence is legally sufficient to sustain a verdict is a question of law." Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court, therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721, ¶ 4 (9th Dist.).
(¶14} R.C. 2907.05(A)(5) provides, in relevant part, that:
No person shall have sexual contact with another, not the spouse of the offender; [or] cause another, not the spouse of the offender, to have sexual contact with the offender * * * when * * * [t]he ability of the other person to resist or consent * * * is substantially impaired because of a mental or physical condition * * *, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person * * * is substantially impaired * * *.
(¶15} The General Assembly did not define the phrase "substantially impaired" as used in R.C. 2907.05. See State v. Zeh , 31 Ohio St.3d 99, 103 (1987). "In the absence of clear legislative intent to the contrary, words and phrases in a statute shall be read in context and construed according to their plain, ordinary meaning." (Quotations omitted.) Barton v. G.E. Baker Constr., Inc., 9th Dist. Lorain No. 10CA009929, 2011-Ohio-5704, ¶ 10. "[S]ubstantial 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." Zeh , 31 Ohio St.3d at 103-104.
(¶16} Porter argues that the State failed to produce sufficient evidence to establish that C.S. was substantially impaired by alcohol. Further, according to Porter, there is no evidence that he knew or had reasonable cause to believe that C.S. was substantially impaired. Because Porter limits his argument to this element, we will limit our review accordingly.
(¶17} C.S. testified that when they arrived at Porter's everyone started drinking. When she asked if she could have a drink, Porter offered her shots of 101 proof peppermint schnapps. C.S. described the curvy shot glass she used and explained that Porter instructed her to drink the shot fast because it would "taste really bad." She thought Porter gave her a total of two or three shots. C.S. further testified that the last thing she remembered was sitting on the couch with Porter and him "leaning back and touching [her] leg and asking if [she] was okay." When she woke she had a blanket over her and a police officer was ...