State v. Gasper, 2024 Ohio 4782

Mark Gasper was convicted of one count of rape under Ohio Revised Code (R.C.) 2907.02(A)(1)(c), which prohibits sexual conduct with a person whose capacity to resist or consent is "substantially impaired because of a mental or physical condition."
The victim, K.W., is an adult woman with cerebral palsy and intellectual disabilities; she is the sister of patients whom Gasper, a licensed practical nurse, cared for in their home.
The State's theory at trial was based solely on K.W.’s alleged substantial mental impairment, not her physical condition.
At trial, both sides presented expert testimony concerning K.W.'s mental capacity to consent, and the jury received the Ohio Jury Instruction for "substantial impairment."
After receiving a jury question about whether the effect of medication could be considered, the trial court declined to elaborate and instructed the jury to rely on the original instructions.
On appeal, Gasper argued the standard jury instruction did not apply to permanent mental impairments and that the trial court erred in not specifically excluding medication effects from deliberation. Both the Court of Appeals and the Ohio Supreme Court rejected these arguments and affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the jury instruction on "substantial impairment" apply to permanent mental conditions?	Gasper: Instruction only for temporary impairments	State: Includes permanent impairments	Instruction includes permanent impairments
Was it error not to instruct the jury to exclude effects of medication from consideration?	Gasper: Opened door to improper theory change	State: Jury presumed to follow instructions	Not error; original instructions sufficed
Was there sufficient evidence to support conviction based on substantial impairment?	Gasper: Verdict inconsistent, no clear basis	State: Battle of the experts on capacity	Sufficient evidence supported conviction
Was plain error committed by using the standard instruction without objection at trial?	Gasper: Resulted in conviction on improper basis	State: No deviation from law, no prejudice	No plain error; waiver doctrine applied

State v. Zeh, 31 Ohio St.3d 99 (Ohio 1987) (Defines "substantial impairment" in the context of R.C. 2907.02 and holds that present reduction in ability at time of alleged offense constitutes impairment)