State v. Swisher
2017 Ohio 2921
| Ohio Ct. App. | 2017Background
- Jason Swisher (38) was indicted for first-degree rape (R.C. 2907.02(A)(2)) for an incident on December 3, 2015 involving the victim S.B., who was 14 at the time.
- At trial S.B. testified Swisher woke her, placed a hand on her leg and inside her shirt, restrained her hands over her head, covered her mouth, removed her shorts, and had penile-vaginal intercourse without her consent. She described pain and resistance; she said she did not consent.
- A SANE exam documented suction marks on S.B.’s breasts and a knee bruise; no genital injuries were found (the SANE explained most assaults show no genital injury). Vaginal swabs contained DNA consistent with Swisher’s.
- Swisher did not present witnesses or testimony; his cross-examination suggested the encounter was consensual and pointed to minor inconsistencies in S.B.’s accounts.
- Swisher requested a jury instruction on the lesser-included offense of Sexual Battery (R.C. 2907.03(A)(1)); the trial court denied the request. The jury convicted Swisher of rape and he received a 10-year sentence. Swisher appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing a jury instruction on lesser-included offense Sexual Battery | State: Rape by force was charged; no alternative theory was advanced | Swisher: Evidence supported an instruction on Sexual Battery (coercion) as a lesser-included offense | No error — jury could not reasonably acquit on rape-by-force yet convict on coercion-only Sexual Battery where the only coercion alleged was force |
| Whether conviction was against the manifest weight of the evidence | State: Victim testimony, SANE findings, and DNA supported conviction | Swisher: Victim was not credible; encounter was consensual (argued mainly at trial) | Not against the manifest weight — jury reasonably credited victim; no miscarriage of justice |
Key Cases Cited
- State v. Johnson, 112 Ohio St.3d 210 (Ohio 2006) (Sexual Battery is a lesser-included offense of Rape when rape is charged under force/threat theory)
- State v. Wilkins, 64 Ohio St.2d 382 (Ohio 1980) (force or threat of force constitutes coercion)
- State v. Shane, 63 Ohio St.3d 630 (Ohio 1992) (lesser-included instruction requires more than some evidence; needs sufficient evidence to support acquittal on charged offense and conviction on lesser)
- State v. Thomas, 40 Ohio St.3d 213 (Ohio 1988) (same legal standard for lesser-included instructions)
- State v. Keenan, 81 Ohio St.3d 133 (Ohio 1998) (discusses when lesser-included instruction is warranted)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for manifest-weight review; appellate court acts as thirteenth juror)