State v. Keller, 2018 Ohio 4107

Background

Defendant Donald Keller, age 52, was indicted on one count of rape (R.C. 2907.02(A)(1)(c)) for sexual intercourse with a 23‑year‑old woman whose ability to resist or consent was alleged to be substantially impaired.
The parties had spent the night drinking and using marijuana at two bars and at a friend Trish’s house; the victim testified she consumed several alcoholic drinks, smoked marijuana, fell asleep on a couch, and later awoke to sexual activity.
Victim reported soreness, torn crotch in her stockings, and both legs pushed into one pant leg of her skort; a SANE exam documented genital abrasions and swelling; DNA testing matched Keller to semen on swabs and underwear.
Keller testified he was intoxicated, woke to the victim touching him, and engaged in consensual sex but did not remember much; he denied forcible intercourse.
The jury convicted Keller of rape; he was sentenced to six years and classified a Tier III sex offender. Keller appealed raising sufficiency/manifest‑weight, evidentiary rulings, jury instruction on flight, and ineffective assistance of counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency: Was there sufficient evidence that the victim’s ability to resist/consent was substantially impaired and that Keller knew or had reasonable cause to believe so?	State: Victim was voluntarily intoxicated and asleep (both can substantially impair consent); Keller witnessed her intoxication, drove her, and saw her sleep — thus reasonable cause/knowledge.	Keller: Victim showed no obvious outward signs of substantial impairment; mere intoxication is not necessarily substantial impairment; insufficient proof he knew of impairment.	Affirmed — evidence supported that victim was substantially impaired by intoxication and sleep, and Keller knew or had reasonable cause to believe it.
Manifest weight	State: Credibility and physical/DNA evidence support verdict.	Keller: Verdict against manifest weight given inconsistencies and surprise testimony.	Overruled — Keller failed to meaningfully argue; record does not show the exceptional case to overturn verdict.
Evidentiary rulings: Admission of testimony about fear of false molestation accusation, alleged gang affiliation, and surprise testimony of digital penetration	State: Testimony was responsive to cross‑examination and impeaching material; other evidence overwhelmingly supported conviction.	Keller: Testimony irrelevant and highly prejudicial; surprise testimony introduced factual matters outside the indictment and warranted relief.	Admission errors either not prejudicial or harmless given other admissible evidence and impeachment; court did not abuse discretion.
Jury instruction on flight	State: Flight instruction appropriate if jury finds flight indicating consciousness of guilt.	Keller: Leaving the house was not deliberate flight to avoid detection and instruction was improper.	Court erred in giving it but error was harmless beyond a reasonable doubt — instruction did not prejudice outcome.
Ineffective assistance for not moving for mistrial after surprise/ prejudicial testimony	State: Counsel made tactical choice to avoid mistrial and potential re‑indictment for forcible rape; used impeachment evidence instead.	Keller: Counsel’s failure to request mistrial was deficient and prejudiced defense.	Overruled — counsel’s performance fell within reasonable strategic choices and Keller did not show prejudice under Strickland.

Key Cases Cited

State v. Zeh, 31 Ohio St.3d 99 (1987) (defines “substantially impaired” as present reduction in ability to appraise or control conduct)
State v. Jenks, 61 Ohio St.3d 259 (1991) (standard for reviewing sufficiency of evidence)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (manifest‑weight review framework)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
State v. Murphy, 91 Ohio St.3d 516 (2001) (reiterating sufficiency test cited from Jenks)
State v. Lytle, 48 Ohio St.2d 391 (1977) (harmless‑error standard for criminal cases)
State v. Williams, 6 Ohio St.3d 281 (1983) (overwhelming proof can render certain errors harmless)
State v. Brown, 65 Ohio St.3d 483 (1992) (error harmless where unlawful testimony did not contribute to conviction)