APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2012-02-0535
ANGELA M. KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
EVE V. BELFANCE Judge.
(¶1}David Boden appeals from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
(¶2} Three women accused Mr. Boden of engaging in sexual conduct with them without their consent. C.E., Mr. Boden's biological daughter, alleged that Mr. Boden had engaged in sexual conduct with her following a night of heavy drinking. R.C., the daughter of Mr. Boden's girlfriend, alleged that Mr. Boden had repeatedly had sex with her while he was living with her mother and that this had occurred both before and after she turned 18. M.K., whose mother also lived with Mr. Boden, accused him of forcibly raping her on multiple occasions. Mr. Boden admitted to engaging in sexual conduct with each of the women but claimed that each incident was consensual and occurred when the women were older than 18.
(¶3} On March 7, 2012, Mr. Boden was indicted on four counts of rape and five counts of sexual battery. A supplemental indictment charged Mr. Boden with an additional count of rape and an additional count of sexual battery. The matter proceeded to trial, and Mr. Boden was found guilty of four counts of sexual battery and one count of rape. A count of rape and a count of sexual battery were dismissed, and Mr. Boden was acquitted of the remaining charges, including all charges related to M.K. The trial court sentenced Mr. Boden to 19 years in prison. Mr. Boden has appealed, raising three assignments of error for our review.
ASSIGNMENT OF ERROR I
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO PROVE EACH AND EVERY ELEMENT OF THE CRIMES CHARGED BEYOND A REASONABLE DOUBT.
(¶4} In Mr. Boden's first assignment of error, he argues that his convictions were against the manifest weight of the evidence. We disagree.
(¶5} In reviewing a challenge to the weight of the evidence, the appellate court
[m]ust 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).
(¶6} Mr. Boden was convicted of violating R.C. 2907.03(A)(2)/(A)(3),  R.C. 2907.03(A)(5), and R.C. 2907.02(A)(1)(c) by committing sexual battery and rape against C.E. Mr. Boden does not argue that his conviction for violating R.C. 2907.03(A)(2)/(A)(3) with regard to C.E. is against the manifest weight of the evidence. Accordingly, we confine our analysis to his convictions for violating R.C. 2907.02(A)(1)(c) and 2907.03(A)(5). See State v. Harmon, 9th Dist. Summit No. 26426, 2013-Ohio-2319, ¶ 9, citing Cardone v. Cardone, 9th Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998) and App.R. 16(A)(7).
(¶7} R.C. 2907.02(A)(1)(c) provides in pertinent part that
[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other person's ability to resist or consent is substantially impaired because of a mental or physical condition * * * and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition * * *.
"A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B). R.C. 2907.03(A)(5) provides that "[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." 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.
(¶8} C.E. testified that she first met Mr. Boden when she was 17. Mr. Boden and her mother picked C.E. up from school and that was when she first learned that Mr. Boden was her father. Mr. Boden would also refer to her as his daughter. She testified that her son called Mr. Boden "papa" and that Mr. Boden would buy her children gifts.
(¶9} According to C.E., she went over to Mr. Boden's house on the evening of January 26, 2011, with her friend James Holmes to obtain some marijuana from Mr. Boden. At the time, C.E. was married. Mr. Boden invited them to stay and drink with him and another man identified as JD. The four of them drank whiskey and some beer. C.E. and JD left to buy more alcohol from a nearby gas station. When they returned, they found shots of liquor poured for each person. C.E. remembered drinking the shot but did not remember anything else until the next day when Mr. Boden woke her up and told her that her brother was there. She was bottomless and did not understand why her pants and her underwear were on the floor. However, she passed out again and when she woke up later, she had to go to work. C.E. testified that, when she woke up, she felt like she "was having an out-of-body experience." By the time she arrived at work, she started to feel better and began to figure out what had happened. She went to the hospital to be examined.
(¶10} Mr. Holmes testified that he was at Mr. Boden's home with C.E. on night of January 26, 2011. Although he had only met Mr. Boden once before, he knew him as C.E.'s father because that was how Mr. Boden had introduced himself He testified that he and C.E. drove separately to Mr. Boden's house and arrived around nine or ten in the evening. They drank with Mr. Boden and another man named JD, and, at one point, C.E. and JD went to buy more alcohol for the group. While they were gone, Mr. Boden poured shots for everyone, which they drank when C.E. and JD returned. After C.E. drank the shot she seemed totally different. "[S]he [wa]s just slurring words more than usual, loss of balance. It * * * didn't seem right." Mr. Holmes testified that he had never seen her so bad before.
(¶11} According to Mr. Holmes, he decided to leave around 4 a.m. because he had to work in three hours. He knew that C.E. could not drive but also believed that he could not drive her home because her husband would be upset with him. He decided that it would be best for C.E. to stay with Mr. Boden, whom he believed to be her father. Mr. Boden told Mr. Holmes to take C.E. to his bedroom, which Mr. Holmes did. When they got to the room, Mr. Holmes passed C.E. off to Mr. Boden, and C.E. "plopped" ...