[Cite as State v. Shah,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25855 Plaintiff-Appellee : : Trial Court Case No. 2012-CRB-7728 v. : : MAYAN SHAH : (Criminal Appeal from : (Municipal Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 4th day of April, 2014.

...........

SHAUNA HILL, Atty. Reg. No. 0074569, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 West Second Street, Suite 2150, P.O. Box 1262, Dayton, Ohio 45402 Attorneys for Defendant-Appellant

.............

WELBAUM, J.

{¶ 1} Defendant-Appellant, Mayan Shah, appeals from his conviction and sentence, 2

following a jury trial, on one count of Sexual Imposition. Shah contends that the trial court erred

in denying his motion in limine, and in permitting other acts evidence at trial. Shah further

contends that the State presented insufficient evidence at trial for a conviction.

{¶ 2} We conclude that the trial court did not abuse its discretion in denying the

motion in limine. Any delay in disclosing a state witness was not the State’s fault, and Shah did

not show prejudice, because he elected not to ask for a continuance. The testimony of the

witness was also properly admitted under Evid.R. 404(B).

{¶ 3} We further conclude that the judgment was supported by sufficient evidence,

and was not against the manifest weight of the evidence. The victim’s testimony was supported

by sufficient corroboration, and Shah’s voluntary intoxication could not be taken into

consideration to determine the existence of a mental state that is an element of the crime that was

charged. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} In September 2013, the State filed a complaint in Dayton Municipal Court,

alleging that Mayan Shah had committed Sexual Imposition in violation of R.C. 2907.06(A)(1), a

third-degree misdemeanor. The charge against Shah arose from events that occurred at the Ale

Fest, which was held on August 25, 2012, at Carillon Park in Dayton, Ohio. For a flat fee,

patrons at the Ale Fest received a small glass that could hold two to three ounces of liquid, and

could obtain ale from any exhibitor. There was no limit on the number of times an exhibitor

could be visited, and patrons could drink as much as they wished.

{¶ 5} Shah was one of the patrons of the Ale Fest. Shah had been in the Air Force 3

since 1989, and had achieved the rank of colonel. On that day, Shah came to the festival alone,

and consumed his normal amount of drink, which was about 30 to 45 fluid ounces. According

to Shah, he did not realize that ale was much more potent than beer.

{¶ 6} M.P., her brother, and a mutual friend also attended the Ale Fest.1 M.P. and the

rest of her party arrived near the start of the festival and left between 4:00 and 4:30 p.m. They

were being picked up by M.P.’s sister-in-law, and went to a parking lot to the right of the

structure that contained the Carillon bells to wait for their ride. M.P.’s feet were bothering her,

so she told her brother and friend that she was going to go sit by a tree. M.P. had on a sundress

and sat down with her knees together. A man, later identified as Shah, was directly in front of

M.P., and was standing. M.P. had never seen him before. M.P. noticed Shah immediately

because he was in her line of sight and he was looking at her. Shah did not say anything at that

point, but continued to stand and stare.

{¶ 7} Because M.P. felt uncomfortable, she averted her eyes. When she glanced back,

Shah was still staring, and he began to make a hand movement. His palms were touching and he

was slowly moving them outward while staring at her. M.P.’s first reaction was that Shah

wanted her to spread her knees apart, but she dismissed that because she did not know what he

was doing. Out of her peripheral vision, she continued to see Shah making that motion.

{¶ 8} M.P. described Shah as looking “out of it,” and more than drunk. He was

standing, making a strange gesture. M.P. thought Shah might be using sign language, so she told

him that she did not know what he was saying. However, she did not believe he heard her.

M.P. then made a gesture, and Shah walked over immediately. He kneeled down, with his face

1 For privacy purposes, initials will be substituted for the names of the witnesses and the victim in this case. 4

in close proximity to hers, and asked if she had a boyfriend. After M.P. said that she had a

boyfriend, Shah immediately said, “Do you want me to eat you out.” June 6, 2013 Trial

Transcript, Volume II, p. 180.

{¶ 9} M.P. was very scared, immediately said no thank you, and went over to her

brother. After she told him what Shah had said, their group moved to another part of the parking

lot. M.P.’s sister-in-law arrived a few minutes later to pick them up, and they left. M.P. never

went to the police about the incident, nor did she file any charges.

{¶ 10} On the same day, the victim, A.P., and two other women, Y.M. and S.P., were

volunteering at the Ale Fest. All three women were employed as servers or hostesses at a local

bar/restaurant, and they had volunteered to serve drinks for that bar/restaurant at the festival.

They were dressed in the uniforms they normally wore to work, which consisted of tank tops,

middle-length plaid skirts, and knee-high plaid socks or tights. A.P.’s boyfriend, L., was at the

festival as a patron.

{¶ 11} The festival lasted from 2:00 p.m. until 5:00 p.m. After finishing work and

talking with some friends, A.P., L., Y.M., and S.P. left the festival at around 5:30 p.m. On the

way to the parking lot, they decided to stop at a large tree and take pictures. Y.M. stood on a

stump about a foot and a half off the ground, on the left side. A.P. and S.P. were standing in a

V-shaped area of the tree, about two to three feet off the ground. A.P. was in the middle, between

Y.M. and S.P., and L. was taking pictures of them.

{¶ 12} While the pictures were being taken, S.P. felt a breeze by her skirt and realized

that someone behind her had lifted up her skirt. She was in shock, and asked the person why he

was doing that. She looked around and saw Shah. She asked Shah not to do that again. Shah 5

just stood there, with a blank expression. S.P. turned around to pose for the picture and, out of

her peripheral vision, saw something go past her and reach towards A.P. She saw Shah’s arm

and saw it go under A.P.’s skirt. At that point, S.P. slapped Shah’s arm, swore at him, and told

him not to do it again.

{¶ 13} A.P. stated that she felt Shah go up her skirt and touch her vagina. She could

feel his fingers or his hand, and felt movement of his hand. She was in shock and felt really

violated. Both S.P. and Y.M. told Shah to get away immediately. Shah did not have any

reaction to what the women said. He stood there, without an expression or a response, and then

walked away.

{¶ 14} After Shah walked away, A.P., L., S.P., and Y.M. walked to their car.

However, they saw children in the area where Shah was walking, and decided to tell the

authorities what had happened. They found Dayton Police Officer, Johnny Watts, who was

working at the festival, and told him that Shah had touched them inappropriately. They pointed

out Shah, and Watts then went to speak with Shah. Watts indicated that Shah said very little

about the incident. Shah had been drinking and seemed somewhat confused. Shah refused or

was unable to give the police his address, and gave them a post office box number instead. After

speaking with a supervisor, the police transported Shah to Wright Patterson Air Force Base

(WPAFB), and released him to the military police.

{¶ 15} The Sexual Imposition charge was filed against Shah a few weeks later, on

September 13, 2012. After some delays, the case was scheduled for trial on June 6, 2013. In

the meantime, M.P. (the woman from the parking lot) accidentally encountered Shah at WPAFB,

where they both worked. M.P. was a civilian worker at WPAFB. A few days after the Ale Fest, 6

M.P. was assigned to a special project and was in a different part of the building than where she

normally worked. M.P. was assisting job candidates, and spent time in the hallway at various

points in the day.

{¶ 16} During the afternoon, M.P. saw Shah walk by, and recognized him as the man

who had accosted her at the festival. They did not speak, and Shah walked into a door close to

where M.P. was standing. Shah was in uniform. Later that afternoon, Shah walked out and saw

M.P. standing there. Shah came up to her and asked if she needed help. This was not an

unusual occurrence at WPAFB, as military members are supposed to question why people in

civilian dress are standing around. The encounter felt very normal, and had M.P. not had a

previous encounter with Shah, there would have been no issue.

{¶ 17} M.P. looked at Shah’s name tag, and then looked Shah up on the global address

directory. She discovered that Shah was a colonel. She told a co-worker about the situation and

kept Shah’s name for future reference in case there were any issues at work.

{¶ 18} Apparently, the media only became aware of Shah’s case shortly before the trial

that was scheduled for June 6, 2013. M.P. learned of the case through an article in the Dayton

Daily News, and contacted the authorities. On June 4, 2013, the Dayton City prosecutor learned

that M.P. was a potential witness, and notified Shah’s counsel that afternoon. The prosecutor

and Shah’s counsel then interviewed M.P. together on June 5, 2013. At the urging of Shah’s

counsel, the court held a hearing the same day to address a motion in limine seeking to preclude

M.P.’s testimony. At the hearing, the parties outlined the situation, and Shah objected to M.P.’s

testimony on two grounds: (1) that the late disclosure of the witness hampered the defense’s

ability to prepare for trial; and (2) that the testimony should be excluded under Evid.R. 404. [Cite as State v. Shah,

.] {¶ 19} When the hearing began, the trial court inquired about whether the defense

would be requesting a continuance. After hearing the arguments of the parties, the court

concluded that the prosecution was not at fault for the late disclosure. The court also concluded

that M.P.’s testimony was admissible under Evid.R. 404(B), on the issues of motive and

preparation, and on Shah’s state of mind. At that point, the court asked defense counsel if he

intended to ask for a continuance. Because Shah was not present at the hearing, defense counsel

told the court that he would check with Shah and would let the court and prosecution know what

he wanted to do. The record contains no further discussion about a continuance, and the trial

proceeded the following day, as scheduled.

{¶ 20} After hearing the evidence, the jury found Shah guilty, as charged. The court

then sentenced Shah to 60 days in jail, with 60 days suspended, 180 days of electronic home

detention, with release for work, three years of intensive supervised probation, and other

community control sanctions. The court also required Shah to register as a Tier I sex offender.

Shah now appeals from his conviction and sentence.

II. Did the Trial Court Err in Denying Shah’s Motion in Limine?

{¶ 21} Shah’s First Assignment of Error states that:

The Trial Court Erred in Denying Appellant’s Motion in Limine,

Permitting Other Acts Evidence at Trial that Was Inadmissible.

{¶ 22} Under this assignment of error, Shah contends that the trial court erred in

overruling the motion in limine and allowing M.P.’s testimony at trial. Shah first argues that

the late disclosure did not provide adequate time to investigate M.P. as a witness. In this regard,

Shah stresses the fact that, according to M.P., other witnesses were present when M.P. and Shah 8

were in the parking lot. Shah also argues that M.P. could potentially have been biased against

Shah in some way because they worked in close proximity to each other.

{¶ 23} The purpose of Crim.R. 16 is “to provide all parties in a criminal case with the

information necessary for a full and fair adjudication of the facts, to protect the integrity of the

justice system and the rights of defendants, and to protect the well-being of witnesses, victims,

and society at large.” Crim.R. 16(A). Under this rule, parties are required to disclose various

information to each other, including witness lists. See, e.g., Crim.R. 16(I). If the court finds

that a party has failed to comply with Crim.R. 16, “the court may order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence

the material not disclosed, or it may make such other order as it deems just under the

circumstances.” Crim.R. 16(L)(1).

{¶ 24} “Appellate courts review allegations of noncompliance with criminal discovery

rules under the abuse of discretion standard.” State v. Adams, 7th Dist. Mahoning No. 00 CA

211,

, citing State v. Parson,

,

(1983). Recently, the Supreme Court of Ohio noted that:

In Parson,

,

, we established three factors

that should govern a trial court's exercise of discretion in imposing a sanction for a

discovery violation committed by the prosecution. The three Parson factors a

judge should consider are (1) whether the failure to disclose was a willful

violation of Crim.R. 16, (2) whether foreknowledge of the undisclosed material

would have benefited the accused in the preparation of a defense, and (3) whether

the accused was prejudiced. State v. Darmond,

, 9

,

, citing Parson at syllabus.

{¶ 25} After reviewing the record, we find that the trial court did not abuse its

discretion. First, there was no willful violation, and no violation at all, really. As the trial court

noted, the prosecution was not at fault for the late disclosure. The prosecution disclosed M.P. to

the defense the same day that it learned of her identity, and both parties interviewed the witness

at the same time. Further, with regard to the two remaining factors, M.P. testified that her

brother and friend were watching for their ride and were not with her when the incident occurred.

Thus, they would have had nothing to contribute, other than to possibly verify her reaction after

the fact. M.P. also indicated that she had never met Shah before, and only accidently met him

at work after the incident. Thus, the record offers no indication that there was anything pertinent

to discover.

{¶ 26} However, even if these facts were otherwise, Shah has failed to establish

prejudice, because he elected not to ask for a continuance. The trial court offered this option

twice as a possibility, but Shah elected to continue with the trial as scheduled. Accordingly,

Shah cannot now complain about any potential prejudice caused by the late disclosure.

{¶ 27} Shah’s second argument is that the motion in limine should have been granted

because M.P.’s testimony was not admissible under Evid.R. 404(B). According to Shah, his

interaction with M.P. was unrelated to the victim’s allegation, and the evidence of the interaction

was unduly prejudicial. In contrast, the State contends that the evidence was properly admitted

as proof of intent or motive.

{¶ 28} Evid. R. 404(B) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 10

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In criminal cases, the proponent of evidence to be offered under this rule shall

provide reasonable notice in advance of trial, or during trial if the court excuses

pretrial notice on good cause shown, of the general nature of any such evidence it

intends to introduce at trial.

{¶ 29} “Trial court decisions regarding the admissibility of other-acts evidence under

Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion of the trial

court. Appeals of such decisions are considered by an appellate court under an

abuse-of-discretion standard of review.” State v. Morris,

,

,

, syllabus. “ ‘Abuse of discretion’ has been described as including a ruling that

lacks a ‘sound reasoning process.’ ” Id. at ¶ 14, quoting AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp.,

,

(1990).

{¶ 30} In arguing that the “other acts” evidence was improperly admitted, Shah relies

on State v. Shaw, 2d Dist. Montgomery No. 21880,

. In Shaw, we held that the

trial court abused its discretion by admitting an “extensive amount of ‘other acts’ evidence,

particularly since the court gave no limiting instruction regarding that evidence.” Id. at ¶ 9.

Shaw is distinguishable, however, due to the extensive and repeated testimony allowed in that

case about years of abuse that was alleged to have occurred multiple times each week regarding

each of the defendant’s three daughters, when the defendant was only charged with fifteen counts

of Rape and ten counts of Sexual Battery. Id. at ¶ 11-12 and 21. In addition, we relied on the 11

State’s failure to provide the trial court with a “proper justification for the ‘other acts’ evidence

* * *.” Id. at ¶ 15.

{¶ 31} In the case before us, the State presented a minimal amount of evidence about an

incident that occurred very shortly before the alleged crime. This was appropriate, because of

the State’s burden of proof, and because Shah placed his state of mind, or purpose, at issue.

{¶ 32} Shah was charged with having violated R.C. 2907.06(A)(1), which provides

that:

No person shall have sexual contact with another, not the spouse of the

offender; cause another, not the spouse of the offender, to have sexual contact

with the offender; or cause two or more other persons to have sexual contact when

any of the following applies:

(1) The offender knows that the sexual contact is offensive to the other

person, or one of the other persons, or is reckless in that regard.

{¶ 33} “Sexual contact” is defined in R.C. 2907.01(B) as “any touching of an

erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region,

or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either

person.”

{¶ 34} At trial, the defense theory was that Shah was too intoxicated to form the

purpose of sexual gratification. June 6, 2013 Trial Transcript, Volume III, pp. 275-279.

Because Shah placed his ability to form a purpose of sexual gratification in question, the State

was entitled to present evidence indicating that a very short time before the crime, Shah had

approached another woman for the purpose of sexual gratification. Furthermore, the State was 12

also required to prove that sexual gratification was part of the crime.

{¶ 35} In State v. Burson,

,

(1974), the Supreme

Court of Ohio noted that “[t]he other acts of the defendant must have such a temporal, modal and

situational relationship with the acts constituting the crime charged that evidence of the other acts

discloses purposeful action in the commission of the offense in question. The evidence is then

admissible to the extent it may be relevant in showing the defendant acted in the absence of

mistake or accident.”

.

{¶ 36} In a situation similar to the present, we found no error in the admission of

evidence relating to the defendant’s implied sexual activity with another female near the time of

an alleged crime, when the charged crime required the State to prove that the defendant “acted

with a ‘sexual motivation.’ ” State v. Johnson, 2d Dist. Montgomery No. 23508,

, ¶ 45. In this regard, we commented that:

The fact that, two hours after he had asked D.W., a twelve-year old girl, to

“come here, little girl,” while standing on the porch of his house, Defendant was

found inside the house with another young female and in a state of sexual arousal,

is probative of the allegation that Defendant acted with a sexual motivation in his

encounter with D.W. Any dissimilarities in the two episodes goes to the weight

of the other act evidence admitted, not its admissibility. Id. at ¶ 56.

{¶ 37} Accordingly, the trial court did not abuse its discretion in overruling the motion

in limine and in allowing M.P.’s testimony.

{¶ 38} Shah’s final argument is that the trial court committed reversible error in failing

to instruct the jury that M.P.’s testimony was for a limited purpose. In this regard, Shah relies on 13

Shaw, as well as other decisions holding that a limiting instruction should be given.

{¶ 39} As a preliminary matter, we note that Shah failed to request a limiting

instruction at trial, and has, therefore, waived all but plain error. State v. Moore, 2d Dist. Greene

No. 2010 CA 13, 2011-Ohio- 636, ¶ 23. We stated in Moore that:

Plain error may be noticed if a manifest injustice is demonstrated. Crim.R.

52(B); State v. Herrera, Ottawa App. No. OT–05–039,

. In

order to find a manifest miscarriage of justice, it must appear from the record as a

whole that but for the error, the outcome of the trial clearly would have been

otherwise. State v. Long (1978),

,

. The

Supreme Court of Ohio has held that, when the defense fails to request a limiting

instruction on other acts evidence, the trial court's failure to give such an

instruction is not plain error if “[n]othing suggests that the jury used ‘other acts'

evidence to convict [the defendant] because [he] was a bad person.” State v.

Perez,

,

,

, citing State

v. Diar,

,

,

, ¶ 91, citing State

v. Grant (1993),

,

. The record of this case

in no way suggests that the jury relied on the other acts evidence to convict

Moore. Thus, we conclude that the trial court's failure to give a limiting

instruction related to the prior bad acts was not plain error. Moore at ¶ 24.

{¶ 40} Likewise, in the case before us, there is no indication that the jury used the other

acts evidence to convict Shah because he was a bad person, and the record does not suggest that

the jury relied on the other acts evidence to convict Shah. The State presented evidence that 14

Shah lifted up A.P.’s skirt after he had previously lifted up another woman’s skirt and had been

told to stop, and that Shah placed his hand or fingers on A.P.’s vagina. It is hard to imagine

what purpose was involved in this act, other than sexual gratification.

{¶ 41} Accordingly, Shah’s First Assignment of Error is overruled.

III. Did the State Present

Sufficient Evidence to Support a Conviction?

{¶ 42} Shah’s Second Assignment of Error states as follows:

There Was Insufficient Evidence Presented at Trial to Support a

Conviction.

{¶ 43} Under this assignment of error, Shah contends that the trial court erred in failing

to grant his Crim.R. 29 motion for acquittal, because there was no evidence of sexual

gratification, and there was insufficient corroboration to convict him of the crime. Shah also

includes what appears to be a manifest weight challenge, even though he did not specifically state

this in his assignment of error.

{¶ 44} “A sufficiency-of-the-evidence argument challenges whether the state has

presented adequate evidence on each element of the offense to allow the case to go to the jury or

to sustain the verdict as a matter of law.” State v. Cherry,

,

,

(2d Dist.), citing State v. Thompkins,

,

(1997). “The proper test to apply to the inquiry is the one set forth in

paragraph two of the syllabus of State v. Jenks (1991),

,

: ‘An

appellate court's function when reviewing the sufficiency of the evidence to support a criminal 15

conviction is to examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.

The relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.’ ”

.

{¶ 45} In contrast, “[w]hen a conviction is challenged on appeal as being against the

weight of the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, 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.

Hill, 2d Dist. Montgomery No. 25172,

, quoting

. “A

judgment should be reversed as being against the manifest weight of the evidence ‘only in the

exceptional case in which the evidence weighs heavily against the conviction.’ ”

quoting

State v. Martin,

,

(1st Dist. 1983).

{¶ 46} “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.”

(Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881,

, ¶ 11.

As a result, “a determination that a conviction is supported by the weight of the evidence will

also be dispositive of the issue of sufficiency.” State v. Braxton, 10th Dist. Franklin No.

04AP-725,

.

{¶ 47} After reviewing the entirety of the record, we find that the conviction is not 16

against the manifest weight of the evidence, and is, therefore, also supported by sufficient

evidence. For the reasons previously mentioned, we reject Shah’s claim that there is no

evidence of sexual gratification. Shah also argues that there was no evidence of sexual contact,

i.e., the touching of an erogenous zone. To the contrary, A.P. testified that Shah placed his

fingers or his hand on her vagina, and that she could feel movement of his hand. The pubic area

is included in R.C. 2907.01(B) as an “erogenous zone.”

{¶ 48} In arguing that the evidence was insufficient, Shah also contends that the State

failed to present corroborating evidence, as required by R.C. 2907.06(B), because no one besides

A.P., the victim, witnessed the touching.

{¶ 49} R.C. 2907.06(B) states that “No person shall be convicted of a violation of this

section solely upon the victim's testimony unsupported by other evidence.” The Supreme Court

of Ohio stressed long ago that “[t]he corroborating evidence necessary to satisfy R.C. 2907.06(B)

need not be independently sufficient to convict the accused, and it need not go to every essential

element of the crime charged. Slight circumstances or evidence which tends to support the

victim's testimony is satisfactory.” State v. Economo,

,

(1996),

syllabus.

{¶ 50} In State v. Rossi, 2d Dist. Montgomery No. 22803,

, the only

two parties present at the time of the alleged sexual imposition were the defendant and the

victim. Id. at ¶ 18-27. However, we rejected the defendant’s claim of lack of sufficient

corroboration, noting that:

In State v. Economo, the only evidence corroborating any element of the

offense was that the alleged victim promptly reported the incident to the 17

authorities, appeared to be upset, and did not want to be alone with the alleged

perpetrator of the offense. These circumstances were deemed to constitute

sufficient corroboration. In the case before us, M.G. reported the alleged offense

within three hours of its occurrence to appropriate authorities, and appeared to be

upset. Both of these circumstances are similar to the circumstances deemed to

constitute sufficient corroboration in State v.

Rossi at ¶ 38.

{¶ 51} In the present case, there was far more corroboration than in either Rossi or

Economo. S.P. testified that she saw Shah’s hand go up A.P.’s skirt. A.P., the victim, stated

that she was in shock after the incident, felt really violated, and was pretty quiet. One of the

other witnesses, Y.M., corroborated the fact that A.P. was really quiet when they got to the car.

Y.M. also said that A.P. appeared to be stunned. Accordingly, there was more than adequate

corroboration of A.P.’s testimony.

{¶ 52} Shah’s final argument is that there was evidence showing that he lacked the

physical ability to touch A.P. for sexual gratification, or to know that the touching would be

offensive to her, because he was highly impaired due to alcohol. We disagree.

{¶ 53} R.C. 2901.21 (C) provides that:

Voluntary intoxication may not be taken into consideration in determining

the existence of a mental state that is an element of a criminal offense. Voluntary

intoxication does not relieve a person of a duty to act if failure to act constitutes a

criminal offense. [E]vidence that a person was voluntarily intoxicated may be

admissible to show whether or not the person was physically capable of

performing the act with which the person is charged. 18

{¶ 54} Based on this statute, Shah could not have used evidence of his intoxication to

negate his mental state. Furthermore, regarding Shah’s physical state, witnesses testified that

Shah was intoxicated, but Shah was able, even by his own admission, to perform many physical

actions both before and after the alleged crime. Shah claimed not to remember talking to M.P.,

nor did he recall the events surrounding the alleged sexual assault. However, he was able to

recall leaving the Ale Fest and asking various people where he could find a cab. According to

Shah, he asked dozens of people where he could find a cab. Thus, Shah was able to physically

walk and speak with numerous people.

{¶ 55} Shah also recalled being transported to WPAFB by a female police officer, and

then being transported to his home by a first sergeant in his military organization. In addition,

although Shah appeared intoxicated and had a moderate odor of alcohol, he was able to speak

with the police officers after the incident. Finally, none of the witnesses indicated that Shah had

difficultly walking or keeping his balance.

{¶ 56} Accordingly, the judgment was supported by sufficient evidence, and it was not

against the manifest weight of the evidence. Shah’s Second Assignment of Error, therefore, is

overruled.

IV. Conclusion

{¶ 57} All of Shah’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

............. 19

FAIN and DONOVAN, JJ., concur.

Copies mailed to:

Shauna Hill Jon Paul Rion Nicole Rutter-Hirth Hon. Christopher D. Roberts