[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Gasper, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

             THE STATE OF OHIO, APPELLEE, v. GASPER, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Gasper, Slip Opinion No. 

.]
Ohio Jury Instruction CR § 507—Substantial impairment of a victim—R.C.
        2907.02(A)(1)(c)—Rape victim can be found to be substantially impaired
        based on a permanent mental condition—Judgment affirmed.
    (No. 2023-0786—Submitted March 26, 2024—Decided October 8, 2024.)
               APPEAL from the Court of Appeals for Hamilton County,
                             No. C-220218, 

.
                                   __________________
        FISCHER, J., authored the opinion of the court, which KENNEDY, C.J., and
DEWINE, DONNELLY, STEWART, BRUNNER, and SULEK, JJ., joined. DONNELLY, J.,
authored a concurring opinion joined by BRUNNER, J. CHARLES E. SULEK, J., of the
Sixth District Court of Appeals, sat for DETERS, J.
                              SUPREME COURT OF OHIO




       FISCHER, J.
       {¶ 1} In this case, we are asked to determine whether the Ohio jury
instruction defining the “substantial impairment” of an alleged rape victim applies
to the victim’s impairment from a permanent mental condition. For the reasons set
forth below, we conclude that the jury instruction defining a victim’s substantial
impairment does include impairment from a permanent mental condition.
              FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 2} Appellant, Mark Gasper, was indicted on seven counts of rape, in
violation of R.C. 2907.02(A)(1)(c). That statute prohibits sexual conduct with a
person whose ability to resist or consent is “substantially impaired because of a
mental or physical condition.” Relevant here, Count 1 related to the first sexual
encounter between Gasper and the alleged victim.
       {¶ 3} When the alleged crimes occurred, Gasper was employed as an in-
home licensed practical nurse to disabled children. The seven charges related to a
long-term sexual relationship between Gasper and K.W., a then-32-year-old woman
with cerebral palsy and intellectual disabilities of disputed severity. K.W. is a sister
of patients who were under Gasper’s care, and she lived in the home where Gasper
worked.
       {¶ 4} Before trial, the state notified Gasper that it would not rely on K.W.’s
physical condition in pursuing the rape charges, but rather would seek to prove that
K.W. had a substantial mental impairment that prevented her from consenting to
sexual conduct. Evidence at trial revealed that on the night of the first sexual
encounter, K.W. had taken Baclofen, which she did routinely. Baclofen was
prescribed to reduce K.W.’s muscle spasms and not to combat insomnia, but the
drug tended to make K.W. drowsy. Other evidence included a state expert’s
testimony that K.W.’s mental capacity to consent to sexual conduct was impaired
and a defense expert’s testimony that K.W. was intellectually able to consent to
sexual conduct.




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                                  January Term, 2024




        {¶ 5} At the conclusion of the trial, the jury received the standard jury
instruction addressing charges of rape, part of which states: “‘Substantially
impaired’ means a present reduction, diminution, or decrease in the victim’s ability
either to appraise the nature of [her] conduct or to control [her] conduct.” Ohio
Jury Instructions, CR § 507 (Rev. Jan. 22, 2011). Comment 10 to this instruction
notes that this language comes from State v. Zeh, 

 (1987). Gasper
did not object to this instruction at trial.
        {¶ 6} During its deliberations, the jury submitted the following question to
the judge: “Does medication come into consideration when evaluating or assessing
mental condition?” The court directed the jury to use the instructions it had been
given. Thirty minutes later, the jury returned its verdicts: the jury found Gasper
guilty on Count 1 and not guilty on all other counts. Gasper then filed a motion for
acquittal or in the alternative a new trial, asserting that the trial court’s response to
the jury’s question about K.W.’s medication changed the state’s theory of the case
midtrial and prevented him from preparing a defense. Gasper argued that the
verdicts were “substantially and logically inconsistent” and that the medication
issue was the only possible explanation for the inconsistency with the verdicts on
the other six counts. The trial court denied the motion.
        {¶ 7} The First District Court of Appeals unanimously affirmed Gasper’s
conviction. 

 (1st Dist.). It concluded that the trial court did
not abuse its discretion in denying Gasper’s motion for a new trial, agreeing with
the trial court that the state did not change its theory of the case or the nature of the
charges. Id. at ¶ 45. It noted that the trial court’s response to the jury’s question
regarding the medication was not a “green light” for the jury to consider improper
evidence, and it stated that it must presume that the jury followed the court’s
original jury instructions. Id. The appellate court also emphasized that there were
no interrogatories to test the basis of the jury’s verdicts and that it would not




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speculate why the jury convicted Gasper on the first count but acquitted him of the
remaining counts. Id. at ¶ 46.
       {¶ 8} The court of appeals further concluded that there was sufficient
evidence to support Gasper’s conviction, as the case was essentially a battle of the
experts, with there being sufficient evidence to support the conclusions that K.W.
lacked the capacity to consent to sexual conduct and that Gasper knew or had reason
to believe that K.W.’s ability to consent was substantially impaired. Id. at ¶ 67, 69.
       {¶ 9} We accepted jurisdiction over Gasper’s appeal in which he set forth a
single proposition of law: “In a prosecution for rape under R.C. 2907.02(A)(1)(c),
the definition of substantial impairment in State v. Zeh, 

, 

 (1987) does not apply to an impairment from a permanent mental
condition.” See 

.
                                    ANALYSIS
       {¶ 10} In connection with his proposition of law, Gasper argues that the
standard jury instruction on substantial impairment is flawed because it implies that
the term can relate only to a temporary condition and that the use of that instruction
in this case opened the door for Gasper to be improperly convicted based on
evidence of K.W.’s having taken her usual, prescribed medication, which was
contrary to the state’s original theory of the case. We review questions of law de
novo. State v. Towns, 

.
       {¶ 11} The jury instruction on substantial impairment incorporates
language from this court’s decision in Zeh. In that case, an expert witness testified
that the victim was “low on the intelligence scale” and suffered from permanent
mental deficiencies. 

. This court offered an explanation of what
“substantially impaired” means in this context:


              The phrase “substantially impaired,” in that it is not defined
       in the Ohio Criminal Code, must be given the meaning generally




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                                January Term, 2024




       understood in common usage. As cogently stated by the appellate
       court, substantial impairment must be established by demonstrating
       a present reduction, diminution or decrease in the victim’s ability,
       either to appraise the nature of his conduct or to control his conduct.

. This court then added, “This is distinguishable from a general
deficit in ability to cope, which condition might be inferred from or evidenced by a
general intelligence or I.Q. report.” 

.
       {¶ 12} Gasper contends that the trial court’s jury instruction failed to fully
apply Zeh, which he asserts was intended to apply only to temporary conditions.
Essentially, Gasper claims, use of the term “present” in Zeh and in the standard jury
instruction on what it means to be “substantially impaired” implies that the mental
or physical condition causing the person to be substantially impaired was
temporary.
       {¶ 13} That is not what this court said in Zeh, however. What the term
“present” means in Zeh is that the impairment must exist at the time of the events
in question. Gasper fails to identify any decision or other source (outside of his
own argument) indicating that this language from Zeh has caused confusion for
anyone in the 37 years since that decision was announced.            Zeh states that
substantial impairment is established when the evidence shows that a reduction,
diminution, or decrease in the victim’s ability was present when the alleged offense
occurred. Zeh, 

. We see no need to offer any further
elaboration on this clear point of law. Because the rule established in Zeh allows
for evidence of a permanent mental condition to establish substantial impairment,
we reject Gasper’s proposition of law.
       {¶ 14} Furthermore, Gasper failed to object at trial to the jury instruction
that he now challenges. See Crim.R. 30(A). A defendant who fails to object to jury
instructions waives all but plain error. State v. Owens, 

. To




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                             SUPREME COURT OF OHIO




show reversible error under plain-error review, see Crim.R. 52(B), three elements
must be met: there must first be a deviation from a legal rule, that deviation must
be an obvious defect in trial proceedings, and the deviation must have affected
substantial rights, State v. Eafford, 

, citing State v. Payne,

, ¶ 16.
        {¶ 15} Gasper has failed to demonstrate plain error. First, as explained
above, because evidence of a permanent mental condition may be used to establish
substantial impairment, the trial court’s jury instruction did not deviate from the
rule announced in Zeh. Second, Gasper has not established that he suffered any
prejudice from the trial court’s jury instruction that affected his substantial rights.
As the First District explained, the state presented expert testimony during trial that
K.W. was substantially impaired. See 

 (1st Dist.). The First
District also correctly acknowledged that trial testimony established that Gasper
knew or had reasonable cause to believe that K.W. was substantially impaired. Id.
at ¶ 70. We will not speculate about why the jury found Gasper guilty on Count 1
but not guilty on the other six counts. That issue is beyond the scope of the
proposition of law we accepted for review.
        {¶ 16} For the above reasons, we do not find plain error in this appeal.
Because the trial court’s jury instruction correctly applied the rule set forth in Zeh,
and because Gasper has failed to demonstrate plain error, we affirm the judgment
of the First District.
                                  CONCLUSION
        {¶ 17} Our decision in Zeh, 

, clearly provides that a person
may be “substantially impaired” based on a permanent mental condition that exists
at the time of an alleged crime. Because Gasper has failed to identify any reversible
error in this case, we affirm the First District Court of Appeals’ judgment.
                                                                  Judgment affirmed.
                               __________________




                                          6
                                January Term, 2024




       DONNELLY, J., joined by BRUNNER, J., concurring.
       {¶ 18} I join the majority’s decision to affirm the judgment of the First
District Court of Appeals. As the majority properly sets out, a permanent mental
condition may be used to establish that the victim of a crime was “substantially
impaired” when the offense occurred. And while I take no issue with the majority’s
reasoning or its conclusion, I feel compelled to write separately to express a certain
frustration with this case’s outcome.
       {¶ 19} During its deliberations in Mark Gasper’s trial for seven counts of
rape in violation of R.C. 2907.02(A)(1)(c), the jury asked the trial court whether it
could consider what effect the medication that the victim, K.W., took might have
had on her mental condition. Before providing a response, the trial court heard
arguments from the State and Gasper, during which Gasper argued that the trial
court should instruct the jury not to consider the medication’s effects because that
consideration would fundamentally change the State’s theory of the case and the
nature of the indictment. The trial court determined that it would not provide
further instructions to the jury, and it directed the jury to use the instructions
previously given. A short time later, the jury returned a verdict finding Gasper
guilty of one count of rape, while acquitting him on the remaining counts.
       {¶ 20} In the trial court, the court of appeals, and now this court, Gasper has
argued that the trial court’s failure to prohibit the jury from considering the
medication’s effects on K.W. fundamentally altered the nature of the charges
against him without providing him adequate notice of the change. In doing so,
Gasper has raised questions that suggest a violation of his constitutional rights to
procedural due process and to a fair trial. See U.S. Const., amends. V, VI, and XIV;
Ohio Const., art. I, § 10; see also Strickland v. Washington, 

(1984) (“[A] fair trial is one in which evidence subject to adversarial testing is
presented to an impartial tribunal for resolution of issues defined in advance of the
proceeding.” [emphasis added]).




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                             SUPREME COURT OF OHIO




       {¶ 21} Unfortunately, this court cannot reach those constitutional claims,
because Gasper has couched them in a question of law that deals purely with the
language of a jury instruction. When resolving questions of law raised on appeal,
courts “rely on the parties to frame the issues for decision” and act as “neutral
arbiter[s] of matters the parties present.” Greenlaw v. United States, 

 (2008). The only legal matter Gasper raised was whether the jury instruction
addressing “substantial impairment,” which incorporates this court’s definition of
that term in State v. Zeh, 

 (1987), includes impairment
caused by a permanent mental condition. As the majority opinion shows, the
question that Gasper has raised is a pure question of law that requires little
elaboration or explanation beyond an analysis of our decision in Zeh. The question
as presented does not implicate whether the trial court’s actions during the jury’s
deliberations violated Gasper’s constitutional rights. So we cannot reach those
important claims.
       {¶ 22} To be sure, when preparing a case for appeal to this court, advocates
must make tough decisions and strategic choices when determining which issues
they should raise. While we are not an error correcting court, we are tasked with
addressing “issues of public or great general interest.” Ohio Const., art. IV, §
2(B)(2)(e); see also State v. Noling, 

 (O’Donnell, J.,
dissenting). And, to my mind, resolving constitutional issues that have arisen from
a criminal trial is an issue of public interest. Thus, I encourage advocates preparing
appeals to this court to craft propositions of law that properly and completely
encompass the legal errors they will argue and for which they seek redress. This
will help avoid situations like the one here—in which the question presented by the
appellant prevents this court from addressing the more foundational issues raised
by the appellant’s arguments.
                                __________________




                                          8
                              January Term, 2024




       Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
       Raymond T. Faller, Hamilton County Public Defender, and David
Hoffmann, Assistant Public Defender, for appellant.
                             __________________




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