[Cite as State v. Moore,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 0038 DANIEL MOORE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2019 CR 0516

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 29, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP WILLIAM T. CRAMER PROSECUTING ATTORNEY 470 Olde Worthington Road JOSEPH C. SNYDER Suite 200 ASSISTANT PROSECUTOR Westerville, Ohio 43082 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 2020 CA 0038 2

Wise, John, J.

{¶1} Appellant Daniel Moore (“Appellant”) appeals his conviction in the Richland

County Court of Common Pleas for two counts of rape, in violation of R.C.

2907.02(A)(1)(c), and two counts of rape, in violation of R.C. 2907.02(A)(2). Appellee is

the State of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 29, 2019, Appellant was indicted on Counts 1 and 3, Rape (when

the other person’s ability to resist or consent is substantially impaired because of a mental

condition and the offender knows, or has reasonable cause to believe, that the other

person’s ability to resist or consent is substantially impaired because of a mental

condition), in violation of R.C. 2907.02(A)(1)(c), both felonies of the first degree. In

addition, Appellant was indicted on Counts 2 and 4, Rape (when a defendant engages in

sexual conduct with another and purposely compels another person to submit by force or

threat of force), in violation of RC. 2907.02(A)(2), both felonies of the first degree. These

charges stemmed from the sexual conduct engaged in by Appellant with a mentally

impaired sixteen-year-old female who is his niece, E.M.

{¶3} On March 3, 2020, the matter proceeded to a jury trial.

{¶4} At trial, M.H., mother of E.M. testified that on April 5, 2019, she dropped

E.M. off at F.M.’s house for the weekend. F.M. is the aunt of E.M. M.H. received a call

that her daughter had been raped by Appellant. After speaking with E.M., M.H. went to

F.M.’s house. M.H. discovered E.M. was not at F.M.’s house but at Appellant’s house.

M.H. then testified she and F.M. were on the phone with Appellant yelling at him, asking

why he raped E.M. She stated Appellant denied raping E.M. When E.M. came back to Richland County, Case No. 2020 CA 00038 3

F.M.’s house, M.H. observed that E.M. was scared, upset, sad, and crying. E.M.’s clothing

was askew and her pants were sagging, which was unusual for E.M.

{¶5} M.H. further testified when E.M. was three months old, she had double

bronchial pneumonia, which delayed her mental development. E.M. has undertook

occupational therapy to refine her motor skills, physical therapy when she was young to

help her walk, and is currently in speech therapy. M.H. discussed E.M.’s Individual

Education Plan (IEP) at school. As part of her educational plan an Evaluation Team

Report is completed every three or four years. The most recent report took place in 2017.

As part of the evaluation an IQ test was administered where E.M. scored a forty-six; 100

is the average score for the test. As part of E.M.’s IEP, a special needs teacher attends

classes with her at all times.

{¶6} Next, Appellee called E.M. to testify. E.M. testified that Appellant is her

uncle. E.M. said that Appellant went to F.M.’s house and asked E.M. to help him clean

out his garage. After E.M. had helped clean the garage, she testified Appellant shut the

garage door and put a table in front of the door so E.M. could not leave. E.M. did not

understand what was happening. Next, Appellant unzipped E.M.’s jacket and started

kissing her. He pulled her pants and leggings down. E.M. then testified Appellant inserted

his penis into her rectum and inserted two fingers into her vagina. E.M. further testified,

Appellant whispered to her, “That pussy is mine.” Tr. at 410. Appellant then threatened

E.M. that if he saw her again, he would continue to do this to her.

{¶7} E.M. said while this was happening, her friend, Dillen Richards, had

attempted to call her four times, but Appellant would not let her answer. E.M. texted Dillen

asking for his help. E.M. said, “I was locked in there, and he raped me. And I didn’t know Richland County, Case No. 2020 CA 00038 4

what to do.” Tr. at 413-14. E.M. explained that she did not try to push him away because,

“he was getting mad at me.” Tr. at 416. She believed that if she fought by pushing him

away or kicking him, that she would be in trouble. E.M. testified her cousin took her back

to her aunt’s house. After the police interviewed E.M., she went to the hospital.

{¶8} Dr. Anthony Midkiff performed the initial medical screening on E.M. when

she arrived at the hospital. Andrea Storm, a Sexual Assault Nurse Educator (S.A.N.E.),

treated E.M. at the hospital. Storm identified a visible anal tear, and blunt force trauma to

E.M.’s cervix also evidenced by a tear.

{¶9} Dawn Frybeck, an expert in DNA analysis, testified that the anal swabs

indicated the presence of a partial male DNA profile. Frybeck performed a Y-STR testing

which targets the male chromosomes. This testing looks at twenty-three different markers

within the same chromosome. Since the Y chromosome is passed from father to son, a

father and son are expected to have the same Y-STR DNA profile. In this case, Frybeck

retrieved information from seven of the twenty-three markers, and the information did

match Appellant. Each male in Appellant’s lineage would be expected to have this DNA

profile; however, Frybeck testified the odds of a random person outside of the lineage

having the same DNA profile would be one in every four hundred, thirty-five individuals.

{¶10} The trial court gave a special jury instruction only for Counts Two and Four

as it pertains to the definition of force.

“Force” means any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing. When the

relationship between the victim and the defendant is one of child and

authority figure, the element of force need not be openly displayed or Richland County, Case No. 2020 CA 00038 5

physically brutal. It can be subtle, slight, psychologically and emotionally

powerful. Evidence of an expressed threat of harm or evidence of significant

physical restraint is not required. If you find beyond a reasonable doubt that

under the circumstances in evidence E.M.’s will was overcome by fear,

duress, or intimidation, the element of force has been proved.

{¶11} Tr. 883-885, 907-898.

{¶12} On March 10, 2020, a jury convicted Appellant on all four counts. For the

purposes of sentencing, Count Two and Count Four merged into Count One and Count

Three, respectively. On Counts One and Three, Appellant was sentenced to eleven years,

with both sentences to be served consecutively. Appellant was sentenced to an

aggregate minimum term of twenty-two years to a maximum term of twenty-seven and a

half years in prison.

ASSIGNMENT OF ERROR

{¶13} On March 25, 2020, Appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

{¶14} “I. THE TRIAL COURT ERRED BY PROVIDING THE JURY WITH A JURY

INSTRUCTION ABOUT AUTHORITY FIGURES APPLYING PSYCHOLOGICAL FORCE

FOR PURPOSES OF RAPE PURSUANT TO STATE V. ESKRIDGE.

{¶15} “II. APPELLANT’S RAPE CONVICTIONS ARE NOT SUPPORTED BY THE

WEIGHT OF THE EVIDENCE.”

I.

{¶16} In Appellant’s first Assignment of Error, Appellant argues the trial court

abused its discretion when instructing the jury that evidence of physical restraint is not Richland County, Case No. 2020 CA 00038 6

required when the victim is a minor of sixteen-years old, and the defendant is the victim’s

uncle, but they are not particularly close. Appellant also argues this instruction was not

harmless, as it probably misled the jury in a matter materially affecting the defendant’s

substantial rights. We disagree.

{¶17} It is unnecessary to address the appropriateness of the jury instruction given

on Counts Two and Four, as Appellant was also found guilty on Counts on One and

Three. Counts Two and Four merged into Counts One and Three respectively, and the

trial court sentenced Appellant on Counts One and Three.

{¶18} It is well-established that juries are presumed to follow and obey the limiting

instructions given them by the trial court. State v. Davis, 5th Dist. Richland No. 14 CA 34,

,

, ¶54, citing State v. DeMastry,

,

,

; State v. Franklin (1991),

,

(1991); Zafiro v. United States,

,

,

122L.Ed.2d 317 (1993). “A presumption always exists that the jury has followed the

instructions given to it by the trial court.” Pang v. Minch,

,

(1990), at paragraph four of the syllabus, rehearing denied,

,

.

{¶19} The giving of jury instructions is within the sound discretion of the trial court

and will not be disturbed on appeal absent an abuse of discretion. State v. Martens,

, 620 N.E.2d (3rd Dist. 1993). In order to find an abuse of that discretion,

we must determine the trial court’s decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Richland County, Case No. 2020 CA 00038

,

(1983). Jury instructions must be reviewed as a whole.

State v. Coleman,

,

(1988).

{¶20} Crim.R. 30(A) governs instructions and states:

At the close of the evidence or at such earlier time during the trial as

the court reasonably directs, any party may file written requests that the

court instruct the jury on the law as set forth in the requests. The court shall

inform counsel of its proposed action on the requests prior to counsel’s

arguments to the jury and shall give the jury complete instructions after the

arguments are completed. The court also may give some or all of its

instructions to the jury prior to counsel’s arguments. The court need not

reduce its instructions to writing.

On appeal, a party may not assign as error the giving or failing to

give any instructions unless the party objects before the jury retires to

consider its verdict, stating specifically the matter objected to and the

grounds of the objection. Opportunity shall be given to make the objection

out of the hearing of the jury.

{¶21} In Neder v. United States,

,

,

(1999) the United States Supreme Court held that because failing to properly instruct the

jury is not in most instances structural error, the harmless-error rule of Chapman v

California,

,

,

applies to a failure to properly

instruct the jury, for it does not necessarily render a trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence. Crim.R. 52(A) defines harmless error

as any “error, defect, irregularity, or variance which does not affect substantial rights.” Richland County, Case No. 2020 CA 00038 8

{¶22} In the case sub judice, after giving the jury instructions for Count One and

Count Three to the jury, the trial court judge specified, “In Count 2 and Count 4, Daniel

Moore is charged with a second type of rape. He denies that he committed these crimes.

I will now instruct you on the law you need to evaluate these charges.” The trial court

appropriately bifurcated the first set of jury instructions from the jury instructions provided

for Count 2 and Count 4. As such, we find the trial court did not abuse its discretion when

providing the Eskridge jury instruction only for Counts 2 and 4.

{¶23} Appellant’s First Assignment of Error is overruled.

II.

{¶24} In Appellant’s second Assignment of Error, Appellant argues that the jury’s

guilty verdict is against the manifest weight of the evidence and not supported by sufficient

evidence. We disagree.

{¶25} Sufficiency of evidence and manifest weight of the evidence are separate

and distinct legal standards. State v. Thompkins,

. Essentially,

sufficiency is a test of adequacy.

A sufficiency of the evidence standard requires the

appellate court to examine the evidence admitted at trial, in the light most favorable to the

prosecution, to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks,

.

{¶26} As opposed to the sufficiency of evidence analysis, when reviewing a weight

of the evidence argument, the appellate court reviews the entire record, weighing the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts of evidence, the jury clearly lost its way and Richland County, Case No. 2020 CA 00038 9

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered. State v. Thompkins,

.

{¶27} Under the weight of the evidence argument, the appellate court shall

consider the same evidence as when analyzing the sufficiency of the evidence argument.

Appellant argues the jury clearly lost its way as their conviction of Appellant based on the

total weight of the evidence was a manifest miscarriage of justice.

{¶28} The State indicted Appellant on Count 1 and Count 3, Rape (when the other

person’s ability to resist or consent is substantially impaired because of a mental condition

and the offender knows, or has reasonable cause to believe, that the other person’s ability

to resist or consent is substantially impaired because of a mental condition), in violation

of R.C. 2907.02(A)(1)(c), and Count 2 and Count 4, Rape (when a defendant engages in

sexual conduct with another and purposely compels another person to submit by force or

threat of force), in violation of RC. 2907.02(A)(2).

{¶29} R.C. 2907.02(A) states:

(A)(1) No person shall engage in sexual conduct with another who is

not the spouse of the offender or who is the spouse of the offender but is

living separate and apart from the offender, when any of the following

applies:

…

(c) The other person’s ability to resist or consent is substantially

impaired because of a mental or physical condition or because of advanced

age, and the offender knows or has reasonable cause to believe that the Richland County, Case No. 2020 CA 00038 10

other person’s ability to resist or consent is substantially impaired because

of a mental or physical condition or because of advanced age.

(2) 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.

{¶30} With respect to Count 1 and Count 3, Appellant argues E.M.’s ability to

resist or consent was not substantially impaired because of her mental condition.

{¶31} Substantial impairment does not have to be proven through expert medical

testimony. State v. Hillock, 7th Dist. Harrison No. 02-538-CA,

, citing State

v. Tate, 8th Dist. No. 77462 (Oct. 26, 2000). In Hillock, the Seventh District Court of

Appeals found that the State presented sufficient evidence that the victim was

substantially impaired by her mental condition where the victim had an I.Q. of 64, and the

victim was fourteen years old, but functioned at a third-grade level.

{¶32} With respect to Count 2 and Count 4, Appellant argues there was no

evidence of overt force or threat of force.

{¶33} At trial, the State produced evidence that Appellant knew of E.M.’s

impairment through the testimony of Detective Clapp. Lorentino Brunetti, the school

psychologist, testified E.M. had an IQ of forty-six and was functioning at a first- or second-

grade level. Appellee also produced evidence through the testimony of E.M. that after

E.M. and Appellant finished cleaning Appellant’s garage, Appellant pulled a table in front

of the door, trapping E.M. inside the garage. Appellant told E.M. to pull her pants down,

and then proceeded to take E.M.’s jacket off. Next, Appellant did pull E.M.’s pants and

leggings down, inserted his penis into her rectum, and two fingers into her vagina. E.M. Richland County, Case No. 2020 CA 00038 11

felt if she struggled, pushed, kicked, or persisted she would get in trouble, as Appellant

was getting mad at her. Andrea Storm then testified that E.M. had a rectal/anal tear visible

to the naked eye, and had suffered blunt force trauma to the cervix. After the act,

Appellant threatened E.M. he would do this again the next time he saw her.

{¶34} We find the State produced sufficient evidence, if believed by a jury, that

Appellant knowingly engaged in sexual conduct with a person whose ability to resist or

consent was impaired, and Appellant knew of the impairment, and that Appellant engaged

in sexual conduct with another when Appellant purposely compelled the other person to

submit by force or threat of force. Our review of the entire record fails to persuade us that

the jury lost its way and created a manifest miscarriage of justice. Appellant was not

convicted against the manifest weight of the evidence.

{¶35} Appellant’s Second Assignment of Error is overruled.

{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is hereby affirmed.

By: Wise, John, J. Gwin, P. J., and Wise, Earle, J., concur.

JWW/br 0127