Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County No. CR-17-620606-A
Court of Common Pleas Case
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Hannah Smith, Assistant Prosecuting Attorney,
W. Flowers Co., L.PA., and Louis E. Grube, for appellant.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
1} Defendant-appellant, Jeremiah Ford
("appellant"), brings the instant appeal
challenging his convictions for sexual battery. Appellant
argues that his convictions are against the manifest weight
of the evidence. After a thorough review of the record and
law, this court affirms.
Factual and Procedural History
2} The instant appeal arose from an incident that
occurred between appellant and the victim, F.C., on July 30,
2017. Appellant and F.C. attended middle school and high
school together and were friends at school. They did not stay
in touch after high school, and had not been in contact with
one another for approximately ten years prior to July 2017.
3} The victim posted a message on Facebook regarding
how nice the weather was and asking if any of her friends
wanted to hang out. Appellant responded to the victim's
post, and they decided to go to a park. The victim's
daughter accompanied the victim and appellant to the park.
4} At some point, the victim, her daughter, and
appellant left the park, got ice cream, and returned to the
park. Later in the evening, they got dinner together. After
dinner, they went to a Wal-Mart store to purchase movies to
watch. The victim invited appellant to watch the movies at
As they were watching a movie, and after the victim's
daughter fell asleep, appellant engaged in sexual conduct
with the victim. The parties disputed whether or not the
sexual conduct was consensual. According to the victim,
appellant engaged in sexual acts - digital penetration, oral
sex, and vaginal intercourse - against her will. Appellant,
on the other hand, asserted that the victim initiated the
sexual conduct and that the sexual encounter was consensual.
6} The following day, July 31, 2017, the victim felt
"violated" and spoke with a friend about what
transpired the prior evening with appellant. The victim's
friend, C.F., opined that appellant's conduct constituted
rape. Thereafter, the victim filed a police report and was
treated at Fairview Hospital where a rape-kit examination was
7} In Cuyahoga C.P. No. CR-17-620606-A, the Cuyahoga
County Grand Jury returned a four-count indictment on August
28, 2017, charging appellant with three counts of rape, with
notice of prior conviction and repeat violent offender
specifications, and one count of kidnapping, with sexual
motivation, notice of prior conviction, and repeat violent
offender specifications. Appellant was arraigned on August
31, 2017. He pled not guilty to the indictment.
8} On September 18, 2017, the trial court referred
appellant to the court psychiatric clinic for an evaluation
pursuant to R.C. 2945.371 for competency to stand trial and
sanity at the time of the incident. The court psychiatric
clinic determined that appellant was competent to stand
trial. The parties stipulated to the court psychiatric
clinic's report during a pretrial hearing on October 23,
9} On June 6, 2018, appellant waived his right to a
jury trial and elected to try the case to the bench. A bench
trial commenced on June 6, 2018.
10} After the state rested, defense counsel moved
for a Crim.R. 29 judgment of acquittal. Regarding the rape
offenses charged in Counts 1, 2, and 3 of the indictment, the
state requested that the trial court also consider the
lesser-included offense of sexual battery, third-degree
felony violations of R.C. 2907.03(A)(1). The trial court
permitted the state to proceed on Counts 1, 2, and 3 with the
offenses of sexual battery. Defense counsel argued that Count
4 should proceed as the lesser-included offense of abduction
rather than the kidnapping offense charged in the indictment.
The trial court agreed. (Tr. 192-193.)
11} The trial court returned its verdict on June 11,
2018. On Counts 1 and 3, the trial court found appellant
guilty of the lesser-included offense of sexual battery. The
trial court found appellant not guilty on the underlying
notice of prior conviction and repeat violent offender
specifications. The trial court found appellant not guilty on
Counts 2 and 4.
12} The trial court held a sentencing hearing on
July 18, 2018. The trial court sentenced appellant to
community control sanctions for a term of two years on each
count, under the probation department's "mental
health/developmental disabilities unit." The trial court
ordered appellant to have no contact with the victim.
Finally, the trial court determined that appellant was a Tier
III sex offender.
13} On August 14, 2018, appellant filed the instant
appeal challenging the trial court's judgment. He assigns
one error for review:
trial court's verdict is against the manifest weight of
Law and Analysis
14} In his sole assignment of error, appellant
argues that his convictions for sexual battery are against
the manifest weight of the evidence.
15} Initially, we note that appellant's sole
assignment of error combines and confuses the issues of
sufficiency of the evidence and manifest weight of the
evidence. See State v. Adhikari, 2017-Ohio-460, 84
N.E.3d 282, ¶ 10 (8th Dist). For instance, appellant
argues that the "inconsistencies [in the victim's
testimony] make it impossible for a finder of fact to accept
her story as true, finding that [appellant] knowingly coerced
her to engage in sexual conduct, without any reasonable
doubts. R.C. 2907.03(A)(1)." Appellant's brief at
16} "The legal concepts of sufficiency of the
evidence and weight of the evidence are both quantitatively
and qualitatively different." State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),
paragraph two of the syllabus. "Sufficiency of the
evidence is a test of adequacy as to whether the evidence is
legally sufficient to support a verdict as a matter of law,
but weight of the evidence addresses the evidence's
effect of inducing belief." State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶
25, citing Thompkins at 386-387.
Sufficiency asks whether, when "viewed in a light most
favorable to the prosecution," "a rational trier of
fact" could find that the state met its burden of
production on each element of the offense with the evidence
admitted at trial? A manifest weight challenge asks whether,
viewed from the perspective of a "thirteenth
juror," it is apparent that the jury has clearly
"lost its way" due to "misrepresentation or
misapplication of the evidence."
(Citations omitted.) State v. Curry, 8th Dist.
Cuyahoga No. 105203, 2018-Ohio- 4771, ¶ 21.
17} Appellant does not raise separate assignments of
error challenging the sufficiency of the evidence and the
manifest weight of the evidence, as required by App.R.
16(A)(7). See Cleveland v. Hall, 8th Dist. Cuyahoga
No. 101820, 2015-Ohio-2698, ¶ 14, citing App.R. 16(A)(7)
(pursuant to App.R. 16(A)(7), this court overruled an
appellant's assignment of error relating to a sufficiency
challenge because the appellant did not make a specific
argument regarding why the convictions were not supported by
sufficient evidence and only addressed the issues relating to
the manifest weight challenge).
18} Nevertheless, appellant's sole assignment of
error primarily focuses on whether his convictions were
against the manifest weight of the evidence. 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." State v.
McCrary, 10th Dist. Franklin No. 10AP-881,
2011-Ohio-3161, ¶ 11, citing State v. Braxton,
10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
Accordingly, a determination that a conviction is supported
by the weight of the evidence is dispositive of, and will
subsume the issue of sufficiency. Braxton at
id.; State v. Mock, 2018-Ohio-268, 106 N.E.3d 154,
¶ 44 (8th Dist.).
19} Appellant argues that "[t]he strong weight
of the evidence suggests that [appellant] did not
knowingly coerce [the victim] to engage in manual
and oral sexual conduct." (Emphasis sic.)
Appellant's brief at 10. Appellant does not dispute that
he engaged in sexual conduct with the victim. However,
appellant argues that he believed the sexual conduct was
"entirely consensual." Appellant's reply brief
at 1. Appellant explains that "there had been no reason
for [him] to believe during sex with [the victim] that he was
coercing her to do anything at all." Appellant's
reply brief at 5. Finally, appellant contends that
"[t]he evidence admitted at trial strongly suggests that
[the victim] did not share any sexual reservations with [him]
until almost one full day had passed after the sexual conduct
occurred." Appellant's brief at 11. After reviewing
the record, we find that appellant's arguments are
misplaced and unsupported by the record.
20} Appellant was convicted of sexual battery in
violation of R.C. 2907.03(A)(1), which prohibits a person
from engaging in sexual conduct with another when the
offender knowingly coerces the other to submit by any means
that would prevent resistance by a person of ordinary
resolution. "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.
21} The Revised Code does not define
"coercion." The commentary to RC. 2907.03, however,
provides that sexual conduct by coercion is somewhat broader
than sexual conduct by force. State v. Ndoji, 8th
Dist. Cuyahoga No. 90181, 2008-Ohio-3551, ¶ 15;
State v. Wilkins, 64 Ohio St.2d 382, 386, 415 N.E.2d
303 (1980) ("coercion for purposes of sexual battery is
broader than the force required to prove rape and necessarily
includes all uses of force. Force is not required to prove
22} In State v. Woods, 48 Ohio St.2d 127,
357 N.E.2d 1059 (1976), the Ohio Supreme Court described the
term "coercion" as follows:
"Coercion" may include a compulsion brought about
by moral force or in some other manner with or without
physical force. * * *
These judicial definitions of coercion correspond to the
common use of the word. Webster's Third New International
Dictionary defines coercion as "the act of coercing: use
of physical or moral force to compel to act or assent,"
and to coerce as "to restrain, control or dominate,
nullifying individual will or desire (as by force, power,
violence, or intimidation)."
The essential characteristic of coercion which emerges from
these definitions is that force, threat of force, strong
persuasion or domination by another, necessitous
circumstances, or some combination of those, has overcome the
mind or volition of the [victim] so that [s]he acted other
than [s]he ordinarily would have acted in the absence of
Id. at 136-137.
23} Additionally, in State v. Brooks, 8th
Dist. Cuyahoga No. 96552, 2011- Ohio-6643, this court
reiterated the Twelfth District's explanation of the
element of coercion:
"Coercion for purposes of sexual battery has been
defined as 'to compel by pressure.' See In re
Jordan, [9th Dist. Lorain No. 01 CA007804, 2001 Ohio
App. LEXIS 4013 (Sept. 12, 2001)]. Webster's Third New
International Dictionary (1993) defines 'to coerce'
in relevant part as 'to restrain, control, or dominate,
nullifying the individual will or desire,' 'to compel
to an act of force, threat, or other pressure,' and
'to bring about * * * by force, threat, or other
pressure.' Id. at 439. Black's Law
Dictionary (5th Ed.1979), in turn states that coercion
'may be actual, direct, or positive, as where physical
force is used to compel act[s] against one's will, or
implied, legal, or constructive, as an where one party is
constrained by subjugation to [an]other to do what his free
will would refuse.' Id. . at 234."
Brooks at ¶ 34, quoting In re JA.S.,
12th Dist. Warren No. CA2007-04-046, 2007-Ohio-6746, ¶
24} In Wilkins, 64 Ohio St.2d 382, 415
N.E.2d 303, the Ohio Supreme Court held that sexual battery,
as defined in R.C. 2907.03(A)(1), may be a lesser-included
offense of rape, as defined in R.C. 2907.02(A)(1).
Id. at syllabus. The court explained,
it is possible for a person to compel another to engage in
sexual conduct by force or threat of force knowingly but not
purposely. A person could subjectively believe that there is
consent where there is none, and in using his strength could
coerce another to submit by force. In such a case he would
not intend to do the prohibited act. However, if he is aware
of the circumstances that probably exist and that under such
circumstances there probably is no consent he would have
knowingly coerced another to engage in sexual conduct by
force. Consequently, sexual battery as defined in R. C.
2907.03(A)(1) may be a lesser included offense of rape as
defined in R. C. 2907.02(A)(1) where force is present.
Id. at 386-387.
25} In State v. Frigic, 8th Dist. Cuyahoga
No. 61509, 1992 Ohio App. LEXIS 6598, 11 (Dec. 31, 1992),
this court explained,
sexual battery is properly considered as a lesser offense of
rape when the evidence demonstrates either that the defendant
knowingly coerced another to engage in sexual conduct by
force, or that the defendant misunderstood a refusal to
consent. Sexual battery is not properly considered when the
state's evidence demonstrates that the victim gave
absolutely no indication of valid consent, and the defendant
wholly denies that any sexual conduct occurred.
Id. at 14.
26} In the instant matter, appellant does not deny
that sexual conduct occurred with the victim. Furthermore,
the evidence - the victim's testimony - demonstrates that
appellant knowingly coerced the victim to engage in sexual
conduct by force. Accordingly, the trial court properly
considered the lesser offense of sexual battery.
27} As noted above, the victim testified that
appellant digitally penetrated her with his fingers,
performed oral sex, and had vaginal intercourse with her
against her will. The victim testified that appellant got on
top of her, forced his hands down her pants, and forced his
fingers into her vagina. When appellant got on top of her and
forced his hands down her pants, she said "no,"
told appellant "stop" and "get off," and
tried to pull his hands away approximately five times. (Tr.
35-36.) She explained that she was unable to push him off of
her because "he was forcing [his hands down her pants]
and he wouldn't stop." (Tr. 36.) The victim
testified that she is 5'2" and weighs 125 pounds.
(Tr. 34.) She explained that appellant was "much
bigger" than her.
28} After forcing his fingers into her vagina,
appellant forced his mouth onto her vagina and performed oral
sex. She continued to tell appellant "no" and also
asserted that she was on her period. She did not want him to
perform oral sex. (Tr. 52.)
29} The victim was fearful of appellant based on
what he said earlier in the day and also because "how
[appellant] was so forceful on [her] when [she] kept telling
him to stop and he wouldn't stop. [The victim] was
thinking about that." (Tr. 83.)
30} In Frigic, 8th Dist. Cuyahoga No.
61509, 1992 Ohio App. LEXIS 6598, the ...