State v. Kilbarger, 2014 Ohio 2341

Daniel Kilbarger was indicted for four counts of rape (first-degree felonies) and five counts of gross sexual imposition (fourth-degree felonies) for sexual abuse of a mentally impaired family member from Sept. 2009 to Sept. 2012.
The victim had an IQ at or below 70, was 16 when the abuse began and 19 when it ended, and had significant adaptive deficits; his school placed him in a Functionally Essential Life Skills curriculum and recommended guardianship.
A court-ordered psychological evaluation by Dr. David Hrinko concluded the victim had cognitive disabilities and was unable to make a reasonable, well-informed decision about engaging in sexual activity.
At trial the victim testified (in simple terms, with questions sometimes rephrased) that he did not want the sexual acts, that appellant bought him gifts and provided benefits, and that he did not report the abuse out of fear those benefits would stop.
A jury found Kilbarger guilty on all counts; he was classified as a Tier III sex offender and sentenced to 22 years in prison.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the victim’s ability to consent or resist was "substantially impaired" by mental condition under R.C. 2907.02/2907.05	State: Evidence (psychologist, school testimony, victim testimony) shows present reduction in ability to appraise/control conduct; Kilbarger knew or had reasonable cause to know of impairment	Kilbarger: Victim’s activities (checking account, cellphone, games, sports) show sufficient functioning to consent; he enjoyed time with appellant and never complained	Court: Affirmed — jury reasonably found substantial impairment based on expert, school, and victim testimony; convictions not against manifest weight

State v. Zeh, 31 Ohio St.3d 99 (1987) ("substantially impaired" means present reduction in ability to appraise or control conduct; impairment shown by diminished capacity to understand implications or control actions)