State v. Noernberg, 2012 Ohio 2062

Defendant-appellant Kyle Noernberg challenged his rape conviction in an Eighth District Ohio Court of Appeals appeal following a jury trial in Cuyahoga County Common Pleas Court.
Noernberg and codefendants were charged with 22 counts including kidnapping, multiple rapes, sexual battery, and gross sexual imposition, each with a sexually violent predator specification; kidnapping had a sexual motivation specification.
After the state rested, the trial court dismissed the kidnapping count and several others as duplicative; seven counts remained for jury consideration (Counts 1–7) with SVP specs.
The jury found Noernberg not guilty of Count 1 (rape under 2907.02(A)(2)) but guilty of unlawful sexual conduct with a minor; guilty on Counts 2, 4, and 7 for rape/sexual battery/gross sexual imposition with SVP specs; other counts were acquitted.
Before sentencing, SVP specifications were dismissed; the court merged Counts 1, 4, and 7 into Count 2 and sentenced Noernberg to five years on Count 2 with a Tier III sex offender designation and five years of postrelease control.
The appellate court vacated Noernberg’s convictions for rape, sexual battery, gross sexual imposition, and unlawful sexual conduct with a minor, vacated the Tier III designation, and remanded for judgment entry consistent with the opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for rape (substantial impairment)	Noernberg argues the state failed to prove substantial impairment or knowledge.	Noernberg contends the victim was not substantially impaired and he did not know or have reasonable cause to know of impairment.	Insufficient evidence; conviction for rape reversed
Knowledge of impairment element for rape	State contends evidence shows substantial impairment or defendant’s knowledge.	Noernberg argues there was no proof of impairment or knowledge.	No sufficient proof of knowledge; conviction vacated
Plain error regarding related offenses	State based on same impairment theory; convictions for sexual battery and gross sexual imposition should stand if underlying theory satisfied.	Noernberg did not raise sufficiency for those counts; plain error should be addressed to avoid miscarriage of justice.	Plain error sua sponte vacated sexual battery and gross sexual imposition convictions
Unlawful sexual conduct with a minor conviction	State argues age element proven; defendant challenges age proof.	Noernberg contends age element not proven and jury instruction flawed.	Sua sponte vacated unlawful sexual conduct with a minor conviction; age element not proven beyond reasonable doubt; instruction flawed

State v. Zeh, 31 Ohio St.3d 99 (Ohio 1987) (substantial impairment defined by common usage; may be shown by non-expert testimony)
State v. Brady, 2007-Ohio-1453 (Ohio App. 8th Dist. 2007) (substantial impairment may be shown by witnesses who interacted with the victim)
State v. Doss, 2008-Ohio-449 (Ohio App. 8th Dist. 2008) (difficulty in assessing substantial impairment when intoxication is involved)
State v. Harmath, 2007-Ohio-2993 (Ohio App. 3d 2007) (evidence of victim’s intoxication supports knowledge of impairment in some contexts)
State v. King, 2002-Ohio-2313 (Ohio App. 8th Dist. 2002) (voluntary intoxication can still support rape if defendant knew victim’s impairment)
State v. Wright, 2011-Ohio-3575 (Ohio App. 8th Dist. 2011) (age-element proof and circumstantial evidence considerations)
State v. Price, 1992-Ohio-353 (Ohio App. 3d Dist. 1992) (circumstantial evidence may prove age element)
State v. Malone, 2007-Ohio-5484 (Ohio App. 3d Dist. 2007) (sua sponte plain-error framework to avoid miscarriage of justice)
State v. Conklin, 2002-Ohio-2156 (Ohio App. 2d Dist. 2002) (Crim.R. 52(B) plain-error authority)