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State v. Swisher

Court of Appeals of Ohio, Third District, Seneca

May 22, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JASON G. SWISHER, DEFENDANT-APPELLANT.

         Appeal from Seneca County Common Pleas Court Trial Court No. 16CR0044

          W. Alex Smith for Appellant.

          Angela M. Boes for Appellee.

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Jason Swisher ("Swisher), brings this appeal from the November 9, 2016, judgment of the Seneca County Common Pleas Court sentencing Swisher to a 10-year prison term after Swisher was convicted in a jury trial of Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree. On appeal, Swisher argues that the trial court erred in denying his request that a jury instruction be given on the lesser-included offense of Sexual Battery, and that his conviction was against the manifest weight of the evidence.

         Relevant Facts and Procedural History

         {¶2} On March 2, 2016, Swisher was indicted for Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree. Swisher pled not guilty to the charge and his case proceeded to a jury trial, which was held November 7-8, 2016.

         {¶3} At trial, the State presented the testimony of nine witnesses including the alleged victim, S.B., who was 14 years old when the sexual assault occurred. S.B. testified that Swisher was a cousin through marriage and that she had known him since she was approximately 6 years old.[1]

         {¶4} S.B. testified that in the late evening hours of December 3, 2015, Swisher came to S.B.'s mother's residence while S.B.'s mother was at work. S.B. testified that Swisher was not expected, but he was invited inside. At the time, S.B. testified and that her older sister Kimmie was present at the residence, as was S.B.'s brother and S.B.'s little sister. S.B. testified that they were watching a movie together in the living room.

         {¶5} S.B. testified that Swisher stayed as they watched television and that he eventually fell asleep on the couch. S.B. testified that she fell asleep on a separate love seat and that her sister Kimmie apparently turned off the television and went to bed in her room. S.B. testified that she awoke at one point when Swisher got up and stepped on the dog, but she quickly fell back to sleep. Later, S.B. testified that she was awakened when Swisher placed one hand on her leg and one hand down her shirt under her bra.

         {¶6} S.B. testified that Swisher grabbed both of her hands in one of his and held them above her head and covered her mouth with his other hand. S.B. testified that she tried to move her hands but Swisher squeezed them tighter. S.B. testified that Swisher rubbed her chest and put his mouth on her chest, leaving a hickey.

         {¶7} S.B. testified that Swisher then removed her shorts with the hand that had been covering her mouth, but she did not scream because she was too scared to make any noise. S.B. testified that Swisher pulled her shorts to her ankles and then put his penis inside her vagina. S.B. testified that it hurt and burned and that she was crying during the act.

         {¶8} S.B. testified that she tried to physically resist, to move her hands and legs, but Swisher put his legs on top of hers. S.B. testified specifically that she did not consent to the act. S.B. testified that she was too afraid to say anything, that she was scared and shocked that it was happening. She testified that she was not sure whether Swisher ejaculated.

         {¶9} S.B. testified that shortly after the incident she went to the room she shared with her sister Kimmie, then upstairs to her other sibling's bedroom to try and sleep in her little sister's bed. S.B. testified that she told Kimmie what happened to her the next day after school and that Kimmie encouraged her to tell S.B.'s aunt. ...


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