from Seneca County Common Pleas Court Trial Court No.
Alex Smith for Appellant.
M. Boes for Appellee.
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
Facts and Procedural History
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.
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.
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.
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.
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.
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.
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.
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. ...