[Cite as State v. Bender,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-19-22

v.

JASON G. BENDER, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2018-CR-0168

Judgment Affirmed

Date of Decision: March 2, 2020

APPEARANCES:

Charles A. Koenig for Appellant

David W. Phillips and Melissa A. Chase for Appellee Case No. 14-19-22

ZIMMERMAN, J.

{¶1} Defendant-appellant, Jason G. Bender (“Bender”), appeals the May 29,

2019 judgment entry of sentence of the Union County Court of Common Pleas. We

affirm.

{¶2} This case stems from a June 28-29, 2018 incident during which Bender

restrained the victim, K.W., with ropes around her neck, arms, and legs, and by

binding her hands and feet with ratchet straps and suspending her from the rafters

of a basement ceiling, then brutally beating and raping her. On July 13, 2018,

Bender was indicted on four counts: Count One of felonious assault in violation of

R.C. 2903.11(A)(1), (D)(1)(a), a second-degree felony, with a firearm specification

under R.C. 2941.145(A); Count Two of kidnapping in violation of R.C.

2905.01(A)(3), (C)(1), a first-degree felony, with a sexual-motivation specification

under R.C. 2941.147(A) and a sexually violent predator specification under R.C.

2941.148(A); Count Three of rape in violation of R.C. 2907.02(A)(2), (B), a first-

degree felony, with a sexually violent predator specification under R.C.

2941.148(A) and a criminal-gang-activity specification under R.C. 2941.142(A);

and Count Four of having weapons while under disability in violation of R.C.

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2923.13(A)(2), (B), a third-degree felony.1 (Doc. No. 1). Bender appeared for

arraignment on July 24, 2018 and entered pleas of not guilty. (Doc. No. 13).

{¶3} On January 9, 2019, the State filed a motion requesting that the trial

court declare K.W. a court’s witness. (Doc. No. 42).

{¶4} On April 22, 2019, the State filed a motion to dismiss the sexually

violent predator specification alleged in Counts Two and Three and the criminal-

gang-activity specification alleged in Count Three of the indictment, which the trial

court dismissed that same day. (Doc. Nos. 75, 76).

{¶5} The case proceeded to a jury trial on April 22-24, 2019. On April 24,

2019, the jury found Bender guilty of all the counts and specifications in the

indictment. (Doc. Nos. 78, 79, 80, 81). (See also Doc. No. 84). On May 29, 2019,

the trial court sentenced Bender to 7 years in prison on Count One, 10 years in prison

on Count Two, 10 years in prison on Count Three, 30 months in prison on Count

Four, and 3 years in prison on the firearm specification. (Doc. No. 87). The trial

court ordered Bender to serve consecutively the prison terms imposed under Counts

One, Two, and Three, and the firearm specification. (Id.). Further, the prison term

imposed as to Count Four was ordered to be served concurrently to the consecutive

prison terms imposed as to Counts One, Two, and Three, and the firearm

1 On April 17, 2019, the State filed a motion to amend the indictment to correct a typographical error, which the trial court amended on April 22, 2019. (Doc. Nos. 70, 77). On April 29, 2019, the State filed a second motion to amend the indictment (to which Bender did not object), which the trial court granted that same day. (Doc. Nos. 82, 83).

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specification for an aggregate sentence of 30 years in prison. (Id.). The trial court

also classified Bender as a Tier III sex offender. (Doc. No. 88).

{¶6} Bender filed a notice of appeal on June 18, 2019 and raises three

assignments of error for our review. (Doc. No. 93).

Assignment of Error No. I

Appellant was deprived of his constitutional rights to due process and to confront his accusers in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, as a consequence of the trial court permitted [sic] hearsay testimony from a medical witness regarding statements in the medical record that were not admissible under any hearsay exception, thereby preventing appellant from exercising his right to confront in a meaningful way.

{¶7} In his first assignment of error, Bender argues that the trial court erred

by admitting testimony of Andi Stevens (“Stevens”), a forensic nurse coordinator

and sexual assault nurse examiner (“SANE”) with OhioHealth, as to statements

made to her by K.W. Bender argues that the admission of Stevens’s testimony (i.e.,

K.W.’s statements) violated his rights under the Confrontation Clause of the Sixth

Amendment to the United States Constitution. He further argues that Stevens’s

testimony was inadmissible hearsay evidence.

Standard of Review

{¶8} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

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discretion and material prejudice. State v. Conway,

, 2006-Ohio-

2815, ¶ 62, citing State v. Issa,

(2001). An abuse of discretion

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State

v. Adams,

(1980). “However, we review de novo evidentiary

rulings that implicate the Confrontation Clause.” State v. McKelton,

,

. “De novo review is independent, without deference to

the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-

Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio,

(1992).

Analysis

{¶9} We will begin by addressing whether the admission of Stevens’s

testimony violated Bender’s Sixth Amendment rights. The Confrontation Clause to

the Sixth Amendment of the United States Constitution, made applicable to the

states by the Fourteenth Amendment, provides that “‘[i]n all criminal prosecutions,

the accused shall enjoy the right * * * to be confronted with the witnesses against

him * * * .’” Crawford v. Washington,

,

(2004),

quoting the Confrontation Clause. See also State v. Maxwell,

,

; State v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio-

2981, ¶ 43, fn. 13.

The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out-

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of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness.

, citing

. The United States Supreme Court “did

not define the word ‘testimonial’ but stated that the core class of statements

implicated by the Confrontation Clause includes statements ‘made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.’”

quoting

.

{¶10} “Only testimonial hearsay implicates the Confrontation Clause.”

. “‘[T]estimonial statements are those made for “a primary

purpose of creating an out-of-court substitute for trial testimony.”’”

quoting

, quoting Michigan v. Bryant,

,

(2011). That is, “[t]o rank as ‘testimonial,’ a statement must have a ‘primary

purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later

criminal prosecution.’” Bullcoming v. New Mexico,

,

(2011), fn. 6, quoting Davis v. Washington,

,

(2006). “The key issue is what constitutes a testimonial statement: ‘It is the

testimonial character of the statement that separates it from other hearsay that, while

subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.’” State v. Hood,

,

,

quoting

. Nevertheless, “[t]here is also no dispute that the

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Confrontation Clause ‘does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted.’” State v. Ricks,

,

, quoting Crawford at 59, and citing Williams v.

Illinois,

,

(2012).

{¶11} In this case, Bender argues that the trial court erred by admitting

Stevens’s testimony regarding statements made to her by K.W.—namely, a

“narrative history” provided to Stevens’s by K.W. at the hospital. However, even

if any of K.W.’s statements to Stevens were testimonial in nature, there was no

constitutional error since the victim testified at trial and was subject to cross-

examination. “Admission of testimonial statements against a party is a

constitutional error when that party does not have the opportunity to cross-examine

the declarant.” State v. Durdin, 10th Dist. Franklin No. 14AP-249, 2014-Ohio-

5759, ¶ 30, citing State v. Arnold,

,

, citing

Crawford at 68. “Consequently, the Confrontation Clause does not require

exclusion of prior statements of a witness who testifies at trial.” State v. Lykins, 4th

Dist. Adams No. 18CA1079,

, citing California v. Green,

,

(1970), and citing

, State v. Powell,

,

, State v. Kersbergen, 12th Dist. Butler No.

CA2014-10-218,

, State v. Gray, 12th Dist. Butler No.

CA2011-09-176,

, ¶ 48, and State v. Isa, 2d Dist. Champaign No.

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07-CA-37,

. Therefore, because K.W. testified at trial, and

Bender was able to fully cross-examine her regarding her out-of-court statements,

Stevens’s testimony did not violate the Confrontation Clause under the facts

presented. Id. at ¶ 91; State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-

Ohio-5607, ¶ 47, citing Gray at ¶ 48.

{¶12} Having determined that Stevens’s testimony was not barred by the

Confrontation Clause, we must now address whether her testimony was admissible

under the Ohio Rules of Evidence. See State v. Martin, 5th Dist. Tuscarawas No.

2015AP0010,

, citing State v. Jones,

, 2012-

Ohio-5677, ¶ 165. See also Lykins at ¶ 92. Hearsay is defined as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Hearsay is

generally not admissible unless an exception applies. Evid.R. 802. “Evid.R. 803 is

one such rule which permits the admission of certain hearsay statements even

though the declarant is available as a witness.” Dayton v. Combs,

(2d Dist. 1993). Under Evid.R. 803, the following hearsay statements are

admissible: (1) present sense impression; (2) excited utterance; (3) then existing

mental, emotional, or physical condition; and (4) statements for the purpose of

medical diagnosis or treatment.

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{¶13} “As relevant here, Evid.R. 803(4) provides an exception for

‘[s]tatements made for purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.’” State v. Remy, 2d Dist. Clark No. 2017-CA-

7,

, quoting Evid.R. 803(4). “The hearsay rules except

statements made for the purpose of medical diagnosis or treatment due to the

inherent reliability underlying the nature of those statements.” Lykins at ¶ 94. See

also State v. Muttart,

,

, ¶ 39. “[S]tatements made

for the purpose of medical diagnosis and treatment are considered reliable because

‘“facts reliable enough to be relied on in reaching a diagnosis have sufficient

trustworthiness to satisfy hearsay concerns.”’” Lykins at ¶ 95, quoting State v.

Dever,

(1992), quoting McCormick, Evidence, Section 250

(4th Ed. 1992), and citing Muttart at ¶ 41. “Thus, ‘“[i]f a statement is made for

purposes of diagnosis or treatment, it is admissible pursuant to Evid.R. 803(4).”’”

Id., quoting Muttart at ¶ 37, quoting

.

{¶14} “In sexual assault cases such as the case at bar, there is often testimony

from a sexual assault nurse. Similar to the dual role of a social worker interviewing

a child who may be a victim of sexual abuse, these nurses often perform a dual role

involving both medical diagnosis and treatment and the investigation and gathering

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of evidence.” Rose,

, citing Arnold,

,

. “Only those statements made for the purpose of diagnosis

and treatment are admissible under Evid.R. 803(4).”

citing Arnold at ¶ 28 and

Muttart at ¶ 47. See also State v. Hartman, 2d Dist. Montgomery No. 26609, 2016-

Ohio-2883, ¶ 51. “Accordingly, the salient inquiry when determining whether a

hearsay statement is admissible under Evid.R. 803(4), is whether the statement was

made for purposes of diagnosis or treatment rather than for some other purpose.”

, citing Muttart at ¶ 47. “One such ‘other purpose’ is the gathering of

forensic information to investigate and potentially prosecute a defendant.” Id.,

citing

. “To the extent that a victim’s statement to a nurse is for

investigative purposes in furtherance of such criminal prosecution, the statements

will not fall within the hearsay exception under Evid.R. 803(4). Rather, such

statements are considered ‘testimonial’ and implicate the Confrontation Clause.”

citing

, citing State v. Siler,

,

,

¶ 2.

{¶15} We conclude that Stevens’s testimony was properly admitted as a

statement made by a victim for purposes of medical diagnosis or treatment. See

State v. Wallace, 3d Dist. Union No. 14-10-20,

. At trial,

Stevens testified that her “role as a Forensic Nurse [is to] do a history of the events

from the assault that” caused the victim to seek medical treatment. (Apr. 22, 2019

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Tr., Vol. I, at 122). Specifically, she testified that the “history of events” “helps

guide [her] exam looking for injuries, helping with diagnosis and further treatment

that may need to be done * * * and, also, safety planning, if the patient is to be

discharged.” (Id.). Importantly, Stevens testified that (as a part of her “history of

events”), she “take[s] a more narrative history” from the patient, which is “important

for [her] to provide appropriate medical treatment * * * .” (Id. at 127). Stevens

then testified to the narrative that she documented from K.W. (See id. at 128-132).

{¶16} Although narrative accounts may reveal information subsequently

used by law enforcement in a criminal prosecution, “[n]arrative accounts can be

reasonably pertinent in establishing a potential diagnosis or treatment.” State v.

Warman, 12th Dist. Butler No. CA2016-02-029,

(Piper, J.,

concurring). See also

(“Even though the victim’s narrative account offered to

medical personnel can subsequently be used by law enforcement in a criminal

prosecution does not prevent the statement from being admitted into evidence

pursuant to Evid.R. 803(4).”), citing State v. Thomas, 8th Dist. Cuyahoga No.

101202,

. Indeed, “[a] description of an abusive encounter has

consistently been determined to be within the scope of statements offered for

medical treatment or diagnosis.” Id. at ¶ 71, citing State v. Diaz, 8th Dist. Cuyahoga

No. 103878,

, ¶ 33-34. That is, “[a] narrative account containing

peripheral details as the victim recounts abusive activities can be made for the

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primary purpose of medical diagnosis or treatment.”

citing State v. Williams,

1st Dist. Hamilton No. C140199,

. Specifically, “[a]

patient’s statements concerning how the alleged rape occurred can be relevant to

show the ‘general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.’” Wallace at ¶ 18, quoting Evid.R.

803(4). “For example, the victim’s statements may guide medical personnel to the

particular area(s) of the victim’s body to be examined for injury, as well as indicate

which areas may need more immediate treatment than others.”

citing State v.

Menton, 7th Dist. Mahoning No. 07 MA 70,

, ¶ 51. Therefore,

based on the evidence before us, we conclude that K.W.’s statements contained in

the narrative (as presented through Stevens’s testimony) were for the purpose of

medical treatment or diagnosis. Thus, the trial court did not abuse its discretion by

admitting Stevens’s testimony. See

{¶17} Even if we were to conclude that Stevens’s testimony was

inadmissible hearsay, the error would be harmless. See id. at ¶ 21. “‘Any error in

the admission of hearsay is generally harmless where the declarant of the hearsay

statement is cross-examined on the same matters and the seemingly erroneous

evidence is cumulative in nature.’” Id., quoting In re M.E.G., 10th Dist. Franklin

Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1263, 06AP-1264, and 06A

. Indeed, as we previously addressed, the victim was

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present at trial and subject to cross-examination, and the jury was able to assess her

credibility. See id.; State v. Ceron, 8th Dist. Cuyahoga No. 99388,

; Rose,

, citing State v. Cappadonia, 12th Dist. Warren

No. CA2008-11-138,

, ¶ 20.

{¶18} Moreover, Bender’s argument that Stevens’s testimony was

inadmissible hearsay because “Nurse Stevens [sic] primary reason for performing

her specialized exam on [K.W.] was to obtain evidence of a crime” is misplaced.

(Appellant’s Brief at 12). See Wallace at ¶ 19;

. Instead, Bender’s

argument is relevant to whether the victim’s statements were testimonial for

purposes of the Confrontation Clause. See Wallace at ¶ 19;

. However,

because we already concluded that no Confrontation Clause violation occurred in

this case, Bender’s argument is specious.

{¶19} For these reasons, Bender’s first assignment of error is overruled.

Assignment of Error No. II

Appellant was deprived of his constitutional rights to due process and effective assistance of counsel in violation of his Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, when the trial court called the victim as a court witness pursuant to Evid.R. 614, and, further, when appellant’s trial counsel failed to object to the court calling the victim pursuant to Evid.R. 614.

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{¶20} In his second assignment of error, Bender argues that his trial counsel

was ineffective for failing to object to the trial court designating K.W. as a court’s

witness.

Standard of Review

{¶21} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole,

(2001), citing Strickland v. Washington,

,

(1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment.

.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie,

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter,

(1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley,

(1989), quoting State v. Lytle,

(1976), vacated in part on

other grounds,

,

(1978).

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{¶22} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04,

, quoting

, citing

. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’”

quoting Bradley at 142

and citing

.

Analysis

{¶23} On appeal, Bender alleges that his trial counsel was ineffective for

failing to object to the trial court designating K.W. as a court’s witness. Under

Evid.R. 614(A), “[t]he court may, on its own motion or at the suggestion of a party,

call witnesses, and all parties are entitled to cross-examine witnesses thus called.”

The purpose of calling a witness as a court’s witness is to allow for a proper

determination in a case where a witness is reluctant or unwilling to testify, or there

is some indication that the witness’s trial testimony will contradict a prior statement

made to police. State v. Renner, 2d Dist. Montgomery No. 25514,

, citing State v. Curry, 8th Dist. Cuyahoga No. 89075,

;

State v. Arnold,

,

, ¶ 18 (2d Dist.). “The prime

candidate is a victim and an eyewitness who will not otherwise cooperate with the

party originally planning to call him.” Renner at ¶ 23, citing Curry at ¶ 18.

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{¶24} In this case, prior to the start of trial, the State filed a motion requesting

that the trial court call K.W. as its witness under Evid.R. 614(A). In support of its

motion, the State represented to the trial court that since the time that K.W. was

interviewed by law enforcement regarding the June 28-29, 2018 incident, K.W.

“remain[ed] somewhat reluctant to testify due to the nature of th[e] matter and [was]

somewhat difficult to reach.” (Doc. No. 42). The State further represented, “It is

believed that the victim was not supportive of law enforcement becoming involved

in this matter and may be uncooperative regarding her testimony and what she may

or may not recall.” (Id.). At trial, prior to calling K.W. to the stand, the State

(outside the presence of the jury) again requested (and Bender’s trial counsel did

not object) that the trial court call K.W. as its witness. The State argued that it “had

difficulty locating” K.W.; “difficulty communicating with” K.W.; and “issued a

subpoena on the day of the trial that it was scheduled for last time in order to make

sure that she” appeared at trial. (Apr. 23, 2019 Tr., Vol. I, at 69). Based on this

evidence, it was not error for the trial court to designate K.W. as its witness. See

Renner at ¶ 26; State v. Kiser, 6th Dist. Sandusky No. S-03-028,

; State v. Marshall, 9th Dist. Lorain No. 01CA007773,

,

*2 (Dec. 26, 2001). Because it was not error for the trial court to designate K.W. as

its witness, Bender’s trial counsel was not ineffective for failing to object.

{¶25} Bender’s second assignment of error is overruled.

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Assignment of Error No. III

The evidence adduced at trial is insufficient as a matter of law to support appellant’s conviction on the charge of rape.

{¶26} In his third assignment of error, Bender argues that his rape conviction

is based on insufficient evidence. In particular, Bender contends that his rape

conviction is based on insufficient evidence because the State presented insufficient

evidence that he compelled K.W. to engage in sexual conduct by force or threat of

force.

Standard of Review

{¶27} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal 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.” State v. Jenks,

(1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997). Accordingly,

“[t]he 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.”

“In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

,

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citing State v. Williams,

,

(1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing Thompkins at 386.

Analysis

{¶28} R.C. 2907.02 sets forth the offense of rape and provides, in relevant

part: “No person shall engage in sexual conduct with another when the offender

purposely compels the other person to submit by force or threat of force.” R.C.

2907.02(A)(2). Bender does not dispute that he engaged in sexual conduct with

K.W.; rather, he argues that the State presented insufficient evidence that he

purposely compelled K.W. to engage in that sexual conduct by force or threat of

force. As a result, we need only address those elements of forcible rape: (1) whether

Bender purposely compelled K.W. to engage in sexual conduct, and (2) whether

Bender did so by force or threat of force. See State v. Stevens, 3d Dist. Allen No.

1-14-58,

.

{¶29} In addressing the force-or-threat-of-force language under the rape

statute, the Supreme Court of Ohio clarified that “[a] defendant purposely compels

another to submit to sexual conduct by force or threat of force if the defendant uses

physical force against that person, or creates the belief that physical force will be

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used if the victim does not submit.” State v. Schaim,

(1992),

paragraph one of the syllabus.

A person acts purposely when it is the person’s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that nature.

R.C. 2901.22(A). “Force” is defined as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.” R.C.

2901.01(A)(1). A victim “need not prove physical resistance to the offender” in

order to demonstrate force. R.C. 2907.05(D).

{¶30} In rape cases in which the victim is not a child, the State “must prove

force or threat of force either through direct evidence of such or by inference where

the defendant overcame the victim’s will by fear and duress.” State v. Rupp, 7th

Dist. Mahoning No. 05 MA 166,

. See also Stevens at ¶ 20

(“‘[T]he key inquiry for determining whether the State presented sufficient evidence

on the element of force is whether the “victim’s will was overcome by fear or

duress.”’”), quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01,

, quoting In re Forbess, 3d Dist. Auglaize No. 2-09-20,

,

citing State v. Heft, 3d Dist. Logan No. 8-09-08,

, citing State

v. Eskridge,

(1988). “[I]f the defendant created the belief

that physical force will be used in the absence of submission, then threat of force

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can be inferred”—that is, a “threat of force includes both explicit and implicit

threats” because “[n]othing in the rape statute requires the threat of force to be direct

or express.” Rupp at ¶ 33. See also Schaim at paragraph one of the syllabus (“The

“force or threat of force” element “can be inferred from the circumstances

surrounding sexual conduct.”); State v. Worrell, 10th Dist. Franklin No. 04AP-410,

(“Thus, ‘[a] defendant purposely compels another to submit

to sexual conduct by force or threat of force’ by creating ‘the belief that physical

force will be used if the victim does not submit’ to the defendant’s actions.”), rev’d

in part on other grounds, sub nom. In re Ohio Criminal Sentencing Statutes Cases,

,

, quoting Schaim at paragraph one of the

syllabus. “In order for a defendant to overcome his victim’s will by fear or duress,

the defendant would have had to engage in sufficient behavior toward the victim.

This behavior is objective and its effect is viewed in light of the totality of facts and

circumstances existing at the time of the alleged rape.” Rupp at ¶ 41. See also

Stevens at ¶ 21 (“‘[T]he amount of force [necessary to prove forcible rape under

R.C. 2907.02(A)(2)] must be examined in light of the circumstances.’”), quoting

State v. Runyons, 3d Dist. Union No. 14-91-30,

, *2 (June 9, 1992).

{¶31} On appeal, Bender contends that the State presented insufficient

evidence that he purposely compelled K.W. to submit to the sexual conduct by force

or threat of force because K.W.’s testimony that she “thought that her having sex

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with [Bender] might calm him down and stop him from hitting her” “shows that she

did this knowingly and consensually.” (Appellant’s Brief at 24). Specifically,

Bender contends that there is insufficient evidence of the force-or-threat-of-force

element based on K.W.’s testimony because her testimony reveals that “[s]he may

not have wanted to have sex with [Bender], and her reasons for doing so may have

been far from romantic, but the sex was not forced upon her.” (Id.).

In fact, the statement Nurse Stevens said [K.W.] made to her, that having sex with [Bender] ‘usually’ makes things better and makes [Bender] leave her alone, shows that this sort of sexual behavior between [Bender] and [K.W.] is not unique to the events of June 28- 29, but appears to be a normal part of their non-traditional relationship.

(Id.).

{¶32} Bender’s argument is misplaced. See Worrell at ¶ 45 (concluding that

the victim’s “failure to physically resist does not negate the forcible element of the

rapes”), citing State v. Hurst, 10th Dist. Franklin No. 98AP-1549,

,

*4 (Mar. 7, 2000); Rupp at ¶ 42 (noting that “a victim need not risk physical damage

or even death to later prove that she was raped”). K.W.’s testimony does not negate

the forcible element of rape under R.C. 2907.02(A)(2); rather, K.W.’s testimony is

sufficient evidence that Bender overcame her will by fear and duress. See State v.

Thomas, 6th Dist. Lucas No. L-17-1266,

(“This testimony

was relevant, because it provided context for the rape and tended to explain R.I.’s

lack of resistance by demonstrating Thomas’s use of physical abuse, past and

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present, to force her compliance.”). Indeed, that Bender concedes that K.W. “may

not have wanted to have sex with” him is illustrative of the implicit threat to compel

K.W. to engage in sexual conduct.

{¶33} At trial, K.W. testified that (at the time of the incident) she was in a

romantic relationship with Bender and the two were living together. (Apr. 23, 2019

Tr., Vol. I, at 74-75). K.W. testified that (during the evening of June 28, 2018), she

and Bender began arguing after Bender discovered that she was moving her things

out of the residence that she shared with him. (Id. at 82). The State presented

evidence that the argument progressed into a physical altercation during which

Bender “tied [her] up down in the basement” by placing “ropes” “around [her] neck

and arms and legs,” then by binding her hands and her feet with “ratchet straps” and

suspending her from the rafters. (Id. at 84-85); (Apr. 22, 2019 Tr., Vol. I, at 128);

(State’s Ex. 4). Then, Bender “continued hitting” her with “[h]is fist”; “a piece of

wood”; “a pole”; a slingshot; a pan; and a gun. (Apr. 22, 2019 Tr., Vol. I, at 85-86);

(Apr. 23, 2019 Tr., Vol. I, at 130); (State’s Ex. 4). “Bender had [her] sit there on all

fours kicking [her] and then he used a back whip. It’s a leather strap with heavy

objects on it. Leather strap with rebar and a ball bearing on it.” (Apr. 23, 2019 Tr.,

Vol. I, at 130-131); (State’s Ex. 4). K.W. “had to sit there on [her] hands and knees

when he put the knife * * * in her vagina.” (Id. at 131); (Id.). Stevens also testified

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that K.W. reported to her that Bender bit her arm. (Apr. 23, 2019 Tr., Vol. I, at

127); (State’s Ex. 4).

{¶34} According to Stevens, K.W. reported that Bender would not permit

her to eat or sleep because “that is part of the game, too.” (Apr. 23, 2019 Tr., Vol.

I, at 132); (State’s Ex. 4). The State also presented evidence that (at some point

during the assault), K.W. was naked and that Bender would not return K.W.’s

clothes to her. (Apr. 23, 2019 Tr., Vol. I, at 130); (State’s Ex. 4). Moreover, K.W.

testified that Bender forced her to cut off her hair, then he used “clipper things” to

make it shorter. (Apr. 22, 2019 Tr., Vol. I, at 89-90). (See also Apr. 23, 2019 Tr.,

Vol. I, at 131); (State’s Ex. 4). K.W. further testified that she was screaming during

the assault but Bender put “rags and bandanas” in her mouth to muffle her screams.

(Apr. 22, 2019 Tr., Vol. I, at 131). (See also Apr. 23, 2019 Tr., Vol. I, at 129);

(State’s Ex. 4). According to K.W., Bender hit and kicked her over her entire body

and that the altercation lasted “until the next morning.” (Apr. 22, 2019 Tr., Vol. I,

at 86, 89). Importantly, K.W. testified that she was “scared” of Bender during the

June 28-29, 2018 incident. (Id. at 127).

{¶35} Mindful of her fear, K.W. testified that she engaged in sexual conduct

(“more than once”) with Bender during the assault “because [she] thought it would

calm him down.” (Id. at 88). K.W. reported to Stevens that “[u]sually [engaging in

sexual conduct with Bender] makes things better and he leaves [her] alone for a little

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bit when [she] do[es] it,” but that “[i]t turned worse” in this instance. (Apr. 23, 2019

Tr., Vol. I, at 131); (State’s Ex. 4). K.W. testified that she eventually escaped by

running and hiding from Bender, then having a neighbor take her to Burger King

for help. (Apr. 22, 2019 Tr., Vol. I, at 93-94). According to K.W., she requested

that her friend take her to a hospital in another county because she was afraid that

Bender would find her at the local hospital. (Id. at 95).

{¶36} Based on the totality of the circumstances of this case, a rational trier

of fact could infer that K.W.’s state of fear or duress during a prolonged period of

torture was such that she was compelled to submit to the sexual conduct to end the

torture. See Thomas,

(concluding that the victim’s

testimony “regarding past incidents of physical abuse” and that she engaged in

sexual conduct with Thomas because “she wanted the abuse to end and for Thomas

to leave” was relevant to whether Thomas purposely compelled the victim to engage

in sexual conduct by force or threat of force). See also State v. Rucker, 1st Dist.

Hamilton No. C-110082,

(concluding that evidence that

Rucker struck the victim with belts—even if the beatings occurred at times other

than the sexual assaults—was relevant to whether the victim’s will had been

overcome by fear or duress); Hurst,

, at *4 (Mar. 7, 2000) (noting

that the absence of physical resistance “highlights the frightful experiences and

threat of force present during the sexual encounter”). Accordingly, a rational trier

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of fact could conclude beyond a reasonable doubt that Bender engaged in conduct

which would overcome K.W.’s will by fear or duress and, therefore, that Bender

purposely compelled K.W. to engage in sexual conduct by force or threat of force.

Consequently, Bender’s rape conviction is based on sufficient evidence, and his

third assignment of error is overruled.

{¶37} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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