{¶ 2} Plaintiff-appellee is the State of Ohio.
{¶ 4} Once at Appellant's home, Ms. Norris drank about three-quarters of a Smirnoff's wine cooler and Appellant drank three beers. (T. 143, 211). The two of them then left Appellant's house and went to the Old Bag of Nails Pub in Delaware. Id. As they were leaving Ms. Norris told the defendant she wasn't feeling well, and the defendant told her she probably just needed something to eat (T. at 144, 246). At the pub, Appellant ordered a beer for himself and a Jack Daniels and Coke for Ms. Norris. (T. at 144-145, 213-214). Appellant instructed the bartender to make Ms. Norris' drinks strong. (T. at 215, 259. Instead of having dinner, Appellant ordered nachos and ate most of them himself. (T. at 146, 219).
{¶ 5} After Ms. Norris had two drinks and Appellant had three beers, they left the Old Bag of Nails Pub and went to the Red Rock Cafe. (T. at 148, 219, 220). Again, *3 Ms. Norris told Appellant that she felt queasy. (T. at 246). At the Red Rock Café, Ms. Norris asked Appellant to escort her to the bathroom because she wasn't walking too well and she didn't feel safe. (T. at 148-149). Appellant ordered drinks for him and Ms. Norris and again told the bartender to "make `em strong." (T. at 223, 259-60). Ms Norris stated that she remembers nothing of their time at the Red Rock Cafe after she got up to dance and Appellant yelled at her, stating that she was embarrassing him and drawing attention to the two of them. (T. at 150).
{¶ 6} The next thing Ms. Norris remembers is that she couldn't open her eyes, her body and head felt heavy. (T. at 152). She said that she could feel Appellant on top of her, and moving inside of her, but that she could not react. Id. She claims that the next thing she remembers is waking up without any clothes on Sunday morning in Appellant's bed when his alarm went off at 6:00 or 6:30 a.m. (T. at 152, 235-236). Ms. Norris asked Appellant what was going on and he told her she needed to go home. (T. 152). At that time, Ms. Norris went to the bathroom, became sick, cleaned up a bit and drove home. (T. at 153-155). She stated that she told Appellant that she did not think she should drive home, in response to which he gave her two Advil and told her she would be fine. Id.
{¶ 7} Over the course of the next four or five days, Ms. Norris attempted to have a discussion with Appellant to find out what happened on August 18, 2007. He refused to talk to her about that night except to tell her it was a mistake. (T. at 156, 158).
{¶ 8} On August 24, 2008, the Friday after their Saturday date, Ms. Norris contacted the police to file a complaint. (T. at 161). Detective Juston Herning interviewed *4 Ms. Norris and then on August 27, 2008, he had Appellant come into the police station for questioning. (T. at 184). In response to Detective Herning's questions about what happened on August 18, 2007, Appellant admitted to having oral sex and intercourse with Ms. Norris on August 18-19, 2007. (T. at 229-234, 244, 255). Appellant told Det. Herning that Ms. Norris consumed eleven (11) Jack Daniels and Cokes that evening. (T. at 245). He stated that her speech was slurred, she was stumbling and having trouble walking, that he helped her to her car, that he should have "shut her off", and that she puked three or four times at his house. (T. at 247-248, 257, 263). He further told Det. Herning that Christy told him she was queasy, that she was drunk and stumbling and had slurred speech. (T. at 260). He stated that she wasn't able to follow what he was talking about. Id. Appellant told Detective Herning that Ms. Norris was "wasted" and "drunk". (T. at 261). Appellant stated that on a scale of 1 to 10 with 10 being the worst, Ms. Norris was a 12. (T. at 260-261). Appellant told Det. Herning that he and Ms. Norris engaged in both oral sex and vaginal intercourse. (T. at 244). Appellant then stated that maybe they did not have intercourse because he pulled out and ejaculated instead of inside of her. He stated approximately three to four different times while they were having intercourse, Ms. Norris had to get up and vomit. (T. at 231-234, 263). During the interview Appellant also told Det. Herning that it was possible that Ms. Norris may have passed out while they were having intercourse. This interview was digitally recorded and was admitted at trial as Exhibit 1.
{¶ 9} Appellant was charged with one count of Rape, in violation of R.C. §
{¶ 10} On January 7, 2008 counsel for defendant requested a continuance, which was denied after a meeting in chambers between the Judge and counsel for the parties.
{¶ 11} On January 10, 2008, a jury was selected and the trial commenced.
{¶ 12} The jury began deliberating on January 11, 2008, and after deliberations came back with a verdict of not guilty on the rape and a verdict of guilty on the sexual battery charge.
{¶ 13} On March 17, 2008, the trial court sentenced Appellant to two (2) years in prison on the sexual battery count. Appellant was also advised of his duty to register as a sexual offender.
{¶ 14} Appellant now raises the following assignments of error on appeal:
{¶ 16} "II. APPELLANT'S CONVICTION FOR SEXUAL BATTERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 17} "III. APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND A RIGHT TO A FAIR TRIAL.
{¶ 18} "IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY REFUSING TO GRANT APPELLANT A CONTINUANCE OF THE JURY TRIAL." *6
{¶ 20} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. See State v. Thompkins (1997),
{¶ 21} Weight of the evidence addresses the evidence's effect of inducing belief. State v. Wilson,
{¶ 22} Employing the above standard, we believe the State presented sufficient evidence from which a jury could conclude, beyond a reasonable doubt, that Appellant committed the offense of sexual battery.
{¶ 23} In the present case, Appellant was charged with and convicted of sexual battery, in violation of R.C.
{¶ 24} "[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * *
{¶ 25} "(2) [t]he offender knows that the other person's ability to appraise the nature of or control the other person's own conduct is substantially impaired."
{¶ 26} "Sexual conduct" is defined as "vaginal intercourse between a male and a female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C.
{¶ 27} Appellant admitted that he and the victim engaged in sexual conduct, i.e. both oral and vaginal intercourse. Accordingly, with regard to his conviction for sexual battery, Appellant's only argument asserts that the State failed to present any evidence that he knew the victim in this case was "substantially impaired" when he engaged in *8 sexual conduct with her. Appellant contends that the sexual conduct was knowing and consensual and that the State failed to present any evidence to the contrary, amounting to a failure to establish all of the elements essential for a conviction on sexual battery.
{¶ 28} The Ohio Supreme Court has held that "substantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim's ability, either to appraise the nature of his conduct or to control his conduct. This is distinguishable from a general deficit in ability to cope, which condition might be inferred from or evidenced by a general intelligence or I.Q. report." State v.Zeh (1987),
{¶ 29} A review of Ohio case law on the offense of sexual battery reveals that Ohio courts have consistently found the essential elements to be established under circumstances similar to those presented in this case. State v. Prater, 12th Dist. No. CA2006-01-017,
{¶ 30} In In re Thomas, Cuyahoga App. Nos. 83579, 83580,
{¶ 31} Similarly, in State v. Lilley, Stark App. No. 2003CA00073,
{¶ 32} In State v. Prater, supra, the Twelfth Appellate Dist. found sufficient evidence of substantial impairment where the victim testified that she consumed multiple alcoholic beverages during the evening and that she also took a "hit" off of a marijuana pipe. "She remembered very little of what happened after that point. She stated that she remembered Parks asking her if she wanted him to leave, and that she *10 told him to stay, explaining that she did so because she did not trust appellant. She next remembered hearing appellant tell Parks that he was `going to have sex with [her]' and that he had a condom. E.N. testified that she `wasn't completely passed out' but that she could only remember hearing things and could not recall seeing anything or remember anything happening to her body." Id. at 5. Additional witnesses from the party also testified, describing E.N. as "really drunk" and "not herself," "staggering" and "stumbling" throughout the evening. Id. at 19.
{¶ 33} In the case at bar, the State presented the testimony of the victim, Detective Herning and Appellant. This testimony, as set forth in detail above in the statement of the facts, established that Ms. Norris' ability to apprise or control the situation was, in fact, "substantially impaired" when Appellant engaged in sexual conduct with her, and that he knew she was "substantially impaired".
{¶ 34} Viewing this evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Appellant had committed the crime of sexual battery.
{¶ 35} We hold, therefore, that the State met its burden of production regarding each element of the crime of sexual battery and, accordingly, there was sufficient evidence to support Appellant's conviction.
{¶ 36} Appellant argues that his trial testimony supported his position that he had no way of knowing that Ms. Norris was "substantially impaired". He testified that while he and Ms. Norris were at the Red Rock Café, they played a video game for about 30 to 45 minutes which required thought and mental processing and that she beat him several times. (T. at 223-227). He also testified that Ms. Norris danced for about five (5) *11 to (8) minutes while they were at the bar and that they talked and made jokes during that time. Id. He further testified that Ms. Norris was able to walk to the car, albeit with some assistance from him. Id. Appellant stated that once the two of them arrived at his house, Ms. Norris took off her boots and jeans by herself and he helped her remove her shirt and bra. (T. 229-232). He also argued that his own intoxication hindered his ability to appreciate the level of Ms. Norris' impairment. He did admit that she was drunk and that she vomited at least 3 to 4 times while they were having sex. (T. at 231-234, 263).
{¶ 37} "A fundamental premise of our criminal trial system is that `the jury is the lie detector.' United States v. Barnard,
{¶ 38} Although Appellant argued that the victim consented to the sexual relations, and further, that the victim's ability to resist or consent was not substantially impaired, the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990),
{¶ 39} The jury was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the jury may take note of the *12
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence". State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604,
{¶ 40} After reviewing the evidence, we cannot say that this is one of the exceptional cases where the evidence weighs heavily against the conviction. The jury did not create a manifest injustice by concluding that Appellant was guilty of the crime charged in the indictment.
{¶ 41} We conclude the trier of fact, in resolving the conflicts in the evidence, did not create a manifest injustice to require a new trial.
{¶ 42} Appellant's first and second assignments of error are overruled.
{¶ 44} Appellant argues that his trial counsel was ineffective because he failed to question a juror concerning the detail of his wife's murder, because he failed to cross-examine *13 Detective Herning, and because he failed to call character witnesses or co-worker's on Appellant's behalf.
{¶ 45} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry in whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to Appellant. The second prong is whether Appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993),
{¶ 46} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley,
{¶ 47} In order to warrant a reversal, Appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.Strickland
{¶ 48} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, quotingStrickland at 697. Accordingly, we will direct our attention to the second prong of the Strickland test.
{¶ 49} With regard to the questioning of the juror, Appellant argues that once said juror advised the court that his wife had been murdered and possibly raped, that his counsel should have questioned him about whether the defendant in his wife's case had been convicted of murder and/or rape, what the defendant's sentence was, what the juror's impressions were of the judicial system, and how his wife's death impacted him.
{¶ 50} Upon review of the transcript, we find that said juror was questioned extensively, outside of the presence of the other jurors, by both the trial court and the prosecutor. In response to the court's inquiries, the juror advised the court that his wife had been murdered in Idaho 20 years ago, that rape had been suspected as part of the murder and that the defendant was never convicted. (T. at 73-76). The juror assured the court that he believed he could be fair, objective and impartial, regardless of such history and that he could listen to the testimony and independently decide guilt or innocence in this particular case. (T. at 32, 75-76).
{¶ 51} As said juror was adequately questioned by both the trial court and the prosecutor concerning his ability to be objective and fair, we do not find that trial counsel was ineffective in failing to question said juror further.
{¶ 52} Appellant also argues that his counsel was ineffective in failing to cross-examine Detective Herning. He argues that his trial counsel should have questioned *15 the detective about Appellant being nervous during the interview and further should have attempted to reconcile or explain the inconsistencies in Appellant's statements to Detective Herning and his trial testimony.
{¶ 53} An attorney's decision whether to cross-examine a witness falls under the rubric of trial strategy, and as such, an appellate court will not second-guess the attorney's decision, even if the decision was debatable. State v. Fritz, 3d Dist. No. 13-06-39,
{¶ 54} Ohio attorneys enjoy a strong presumption of competence, and "tactical or strategic trial decisions, even if ultimately unsuccessful, do not generally constitute ineffective assistance." Id., citingState v. Sallie,
{¶ 55} As stated above, in order to prove that he was prejudiced by counsel's actions, Appellant must demonstrate that "there is a reasonable probability that, but for counsel's performance, the result of the proceeding would have been different." Id. at ¶ 6, citingStrickland, at 694. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." State v. Loza (1994),
{¶ 56} Additionally, Appellant has failed to show how the failure to call character witnesses in this matter would have changed the outcome of the trial. This case was won or lost based on what the jury believed occurred on the night in question, not what the relationship was between Appellant and Ms. Norris before that night, or even after.
{¶ 57} Upon review of Appellant's arguments that his counsel was unprepared for trial, we find no evidence in the record to support this position.
{¶ 58} None of the instances raised by Appellant rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Having reviewed the record Appellant cites in support of his claim that he was denied effective assistance of counsel, we find Appellant was not prejudiced by defense counsel's representation of him. The results of the trial were not unreliable, nor were the proceedings fundamentally unfair because of the performance of defense counsel.
{¶ 59} Based on the foregoing, Appellant's third assignment of error is overruled. *17
{¶ 61} Appellant argues that the continuance in this matter was requested to allow time for certain e-mail communications between Appellant and Ms. Norris to be recovered and because he had been unable to locate a witness who had spoken with Ms. Norris during her date with Appellant.
{¶ 62} "The decision whether to grant a continuance is within the sound discretion of the trial court." Hartt v. Munobe (1993),
{¶ 63} In ruling upon a motion for a continuance, "[t]he trial court balances the court's interest in controlling its docket and the public's interest in an efficient judicial system with the possibility of prejudice to the defendant." Sayre v. Hoelzle-Sayre (1994),
{¶ 64} Upon review, we do not find Appellant was prejudiced by the trial court's denial of the requested continuance. Ms. Norris and Appellant both testified to the content of the instant messages which were sent between the two of them.
{¶ 65} With regard to the witness who Appellant failed to locate, Appellant has failed to show how he was prejudiced by such witness' absence at trial.
{¶ 66} Based on the foregoing, we find that the trial court did not abuse its discretion in denying Appellant's motion for continuance in this matter.
{¶ 67} Appellant's fourth assignment of error is overruled.
{¶ 68} For the foregoing reason, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
*19Wise, J. Hoffman, P. J., and Gwin, J., concur.
*1Costs assessed to Appellant.