State v. Abraham

[Cite as State v. Abraham, 2024-Ohio-5600.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                Plaintiff-Appellee,                 :
                                                             No. 113782
                v.                                  :

RALIEGH ABRAHAM,                                    :

                Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: November 27, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-22-674860-A


                                              Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Abe Dakdouk, Assistant Prosecuting
                Attorney, for appellee.

                Russel S. Bensing, for appellant.


EILEEN A. GALLAGHER, J.:

               Raliegh Abraham (“Abraham”) appeals his convictions for two counts

of substantial impairment rape as being against the manifest weight of the evidence.

For the reasons that follow, we affirm Abraham’s convictions.
I.   Facts and Procedural History

            On November 22, 2021, M.H. and Abraham agreed to meet for drinks

after M.H. got off work at midnight.       M.H. and Abraham went to a bar at

approximately 1:00 a.m. on November 23, 2021 and M.H. became intoxicated and

vomited in the bar’s bathroom. Abraham helped M.H. get into his truck because she

was “stumbling” and he drove M.H. back to his house. M.H. was then “helped”

upstairs. The next thing she recalled was waking up in Abraham’s bed with his head

between her legs. M.H. passed out and when she woke up again, Abraham was

engaging in sexual intercourse with her. M.H. left Abraham’s house and went home.

Later that night, M.H. went to a hospital and reported that she had been raped.

            On October 6, 2022, Abraham was indicted for two counts of forcible

rape in violation of R.C. 2907.02(A)(2) and two counts of substantial impairment

rape in violation of R.C. 2907.02(A)(1)(c). Abraham waived his right to trial by jury

and his case proceeded to a bench trial in January 2024. On January 31, 2024, the

court acquitted Abraham of both counts of forcible rape and found him guilty of both

counts of substantial impairment rape. On March 4, 2024, the court sentenced

Abraham to three-to-four-and-a-half years in prison on each count to run

concurrently and determined him to be a Tier III sex offender.

            Abraham appeals and assigns one error for our review.

      The trial court erred by entering a conviction which was against the
      manifest weight of the evidence.
II. Trial Testimony and Evidence

         a. M.H.

             M.H. testified that she has two jobs and works about 40 hours per week.

M.H. knows Abraham, who she referred to as “Cousin Bic,” because her great-aunt

dated his father. According to M.H., prior to this incident, she had not seen

Abraham since her great-aunt and his father broke up “at least ten years ago.” M.H.

testified that, at the time of trial, she had not spoken to or seen Abraham “for many

years.” According to M.H., she and Abraham “weren’t super close or anything like

that.”

             On November 22, 2021, M.H. went to work and while at work received

a Facebook message from Abraham. At the time, she was not “friends” with

Abraham on Facebook. At first, M.H. did not recognize from whom this message

emanated. M.H. testified that the message “was asking me about, if I was at a bar

the night prior.” M.H. responded that she was not. According to M.H., Abraham

“started saying, you know, how I looked familiar to him. And when I really looked

at his picture, I thought the same, and then from there we talked some more and

realized who each other were.” Eventually, “something was brought up about

getting together for a drink.” M.H. testified that the “agreement was that I would

drive from my house to his house; and from his house, him and I would go to the bar

together.”

             When M.H. got off work that night, she went home, changed outfits, let

her mom know where she was going and with whom and left. M.H. testified she did
not shower or “do any sort of female grooming” before leaving. Asked if she was

“anticipating anything happening between” herself and Abraham that night, M.H.

answered, “No, I was not.” According to M.H., the purpose of meeting Abraham was

“[c]atching up and having a drink together.”

             M.H. testified that she arrived at Abraham’s house between “midnight

and 12:30.” M.H. and Abraham “just talked for a few minutes before we got into his

truck and headed to the bar.” M.H. testified that she has had genital herpes for 11

years and she “had a genital herpes breakout” at this time. M.H. agreed that this

condition prohibited her “from being sexually active at that point in time.”

             M.H. testified that she and Abraham went to a bar she had never been

to before located in either Biddulph Plaza or Brook Park Plaza. The two “sat there

drinking and talking.” M.H. had a “cherry bomb,” which is “cherry vodka with Red

Bull.” M.H. ordered it “as a drink and a shot.” M.H. recalled that she drank “two

drinks and two shots” that night and that “[a]ll of it was a cherry bomb.” M.H.

testified that, from what she could remember, she and Abraham “danced at one

point.” M.H. further testified that, before they left, she went to the restroom because

she “needed to throw up . . . close to bar closing time.” Asked if she knew why she

threw up, M.H. answered, “No, I don’t.” According to M.H., Abraham and a couple

they had been talking to in the bar came into the bathroom to tell her that the bar

was closing. M.H. testified that she saw Abraham “standing outside of the bathroom

door” when she was “trying to wash [her] hands and rinse [her] mouth.”
              Asked what happened when she left the bathroom, M.H. testified as

follows: “When I left the bathroom, I recall stumbling and [Abraham] had to hold

me up.” According to M.H., Abraham asked her where she wanted to go and she

told him she wanted to go home. When they got into Abraham’s truck, he again

asked M.H. where she wanted to go and she again told him she wanted to go home.

Abraham drove M.H. to his house. M.H. further testified that, on the way to

Abraham’s house, she fell asleep in the truck.

              M.H. testified that, when they arrived at Abraham’s house, she

“stumbled out of the truck” and Abraham “helped escort” her into his house. Asked

to describe her “mental state of mind,” M.H. responded, “At that point in time, it

was just not very good . . . . I was extremely intoxicated.” Asked how she knew she

was intoxicated, M.H. said, “I was stumbling. I wasn’t — I was fairly weak. It was

hard for me to stand and walk on my own.” M.H. further testified that she did not

want to be at Abraham’s house. M.H. testified: “After we got inside of his house, I

remember walking through the living room up to the stairs . . . . From the stairs,

after the stairs, the only other thing I remember is waking up on his bed . . . . When

I woke up and I was laying on his bed, I can remember feeling and seeing his head

in between my legs [b]y my genitals . . . My vagina.” Asked what Abraham was

doing, M.H. answered, “[H]e was using his tongue to lick my vagina.”

              M.H. testified that she did not consent to this nor did she want this.

Asked if she tried to get Abraham to stop, M.H. replied, “Yes, I did . . . . I attempted

to push his head off of me.” According to M.H., Abraham responded by pushing her
hand away. M.H. testified that she then passed out and when she woke up again

Abraham was on top of her. Asked what Abraham was doing, M.H. testified, “He

had his penis inside of my vagina.” M.H. testified that she did not consent to this

nor did she want this. Asked if she did anything to get Abraham to stop, M.H.

replied, “I said no. I said stop.” Asked if he stopped, M.H. answered, “No . . . . He

kept going.”

               According to M.H., Abraham eventually stopped. “He pulled off of me

and looked at my face and he said, What’s wrong?” M.H. told Abraham to “Get off.”

Abraham did and M.H. “got up, pulled my underwear and pants up, grabbed my

purse and left.” According to Abraham, her sweater, tank top and boots had not

been removed but that her pants and underpants were pulled down. M.H. got in her

car and “attempted to drive home” but she went the wrong way. When M.H.

eventually arrived home she noticed that Abraham had sent her a message on

Facebook “asking me what was wrong.” Specifically, M.H. testified that Abraham

sent her the following message: “If you could please tell me what I did wrong I’m

really sorry[.] If you want me to leave you alone I totally understand. I just want to

know what I did wrong[.]” According to M.H., the “timestamp” on Abraham’s

message was “November 23rd at 4:10 a.m.” M.H. testified that she responded to

Abraham by messaging, “I said no[.] Many times[.]” M.H. further testified about

the remainder of the message exchange between her and Abraham:

      Abraham:            Send note to what I don’t understand

                          I’m so so sorry
M.H.:      Sex

           Please leave me alone never contact me again

Abraham:   You were the one who wanted to LOL I mean we
           both did but you did too I’m very sorry

M.H.:      I said no

Abraham:   Please can we talk about th[indecipherable]ovie
           Friends

M.H.:      I said take me home

Abraham:   Talk about this and be friends

           Girl I would have took you home I asked you

M.H.:      I said no take me home

Abraham:   It’s not what you sai

           Ssid

M.H.:      I didn’t want that at all

           Yes it is I said take me home

           I said take me home I didn’t want that at all

Abraham:   Said okay I’m sorry that’s not what you said though
           okay would I’m sorry

M.H.:      Not one bit did I want that

Abraham:   That’s not what you said at the bar but I am very
           sorry I feel

M.H.:      I f––g said take me home and. O the whole f——g
           time

           What part of that said I wanted it????

           Even at the bar I said take me home
      Abraham:            That’s not what you said those people at the bar that
                          heardit to

      M.H.:               I’ve been trying to go home

      Abraham:            No that’s not what you said at the bar I’m sorry
                          [indecipherable] you too many shots.

                          I’m sorry it doesn’t have to happen again can we
                          please be friends

      M.H.:               I said to take me home I even told the lady I wanted
                          to go home

                          No

                          Leave me alone

      Abraham:            Okay well nobody at the bar remembers hearing
                          that

      M.H.:               Leave me the f——k alone

      Abraham:            Okay I’ll leave you alone I feel terrible though I’m so
                          sorry

      M.H.:               Go to h——l

              According to M.H., Abraham responded to her last message with a

“thumb’s up” emoji. M.H. further testified about one last message she received from

Abraham on November 23 at 10:40 a.m., which read, “Hey if you never want me to

message you again I won’t but I really wish we could talk about last night I’m very

sorry and I really would like you not to hate me[.]”

              Later that morning M.H. “blocked” Abraham on Facebook. M.H.

testified that she showered and went to work. According to M.H., she “felt very upset

and just a complete mess.” M.H. further testified that she was “very groggy.” M.H.

talked to her mom that morning but she did not tell her mom what had happened
because she was “[s]cared, embarrassed. He knows my family, so I just, I just didn’t

say anything.”

              Asked if she was able to work that day, M.H. replied, “No, no, I was

not.” M.H. testified that “[a]round 8, 9:00” p.m. she went to the emergency room

“for sexual assault.” M.H. met with a sexual assault nurse examiner (“SANE nurse”)

who conducted a sexual assault examination. According to M.H., she had “injuries”

on her inner thighs. M.H. testified that these “bruises” were not there “before [she]

met [Abraham] that evening.”

              Asked if she remembered the sexual assault examination and how it

felt, M.H. answered as follows:

      Horrible. While I was there, I had to tell her everything that happened.
      She had to — I had to strip naked and put a gown on. She had to
      examine my vagina, my thighs, the rest of my body. She drew blood,
      she took urine. She scraped underneath my nails. We sat there, we
      talked, she asked me what happened and everything. I explained to her
      what happened.

              M.H. testified she told the SANE nurse that she did not want to give a

statement to the police at the time. M.H. further testified that “I wanted to speak

with my mom before I proceeded.” According to M.H., she “eventually met with an

officer or detective . . . about a week” after the sexual assault occurred. M.H. clarified

that she met with detective Sabrina Choat. M.H. further testified that when she left

Abraham’s house at approximately 3:00 or 4:00 a.m. on November 23, 2021, she

went the wrong way to get home because she was still intoxicated.
              On cross-examination, M.H. testified that, at the time this incident

occurred, she and Abraham lived about five minutes away from each other. On the

day of the incident, M.H. worked in Brunswick, which is about 25-30 minutes from

where she lived, from 4:00 p.m. to midnight. M.H. testified that during her shift,

she and Abraham began to communicate via Facebook.

              Abraham’s defense counsel asked M.H. a series of questions regarding

what she did at the end of her eight-hour shift on the night in question. M.H.

testified that she went home from Brunswick, changed into dark blue jeans, boots, a

yellow tank top and a sweater and then drove to Abraham’s house. According to

M.H., Abraham told her that his roommate was also in the house but M.H. never

saw anybody other than Abraham.

              On cross-examination, M.H. testified that she still could not

remember the name of the bar she and Abraham went to that night. There were not

a lot of people there and M.H. and Abraham engaged in conversation with another

couple at the bar. M.H. agreed that she had “a cherry bomb or two” that night. M.H.

testified that Abraham was also drinking alcohol that night, although M.H. could

not remember what specifically Abraham was drinking.

              M.H. testified that “it was five, ten minutes” from Abraham’s house to

the bar and they arrived at “12:30-ish.” M.H. agreed with defense counsel that it

was “probably closer to the 1:00 hour that you got to that bar, 1 or 1:15.” While they

were at the bar, she and Abraham went outside to the back patio “to have some

cigarettes” and, at one point, they danced. M.H. further agreed with defense counsel
that she and Abraham were at the bar for “an hour or so” that night and M.H.

“consumed” one or two cherry bombs, as well as got sick, during this time. After

getting sick in the bathroom, M.H. was “falling down” and “stumbling” and

Abraham assisted her to his truck.

              According to M.H., she did not try to leave in her car or call for a ride

home when they arrived at Abraham’s house. Furthermore, although she knew that

Abraham’s roommate was home, she did not “cry out for help . . . .” M.H. testified

that she was “extremely intoxicated” that night. Asked to describe this, M.H. said,

“Dizziness, . . . hard to control your own movements, and things like that.” M.H.

testified that she was “blacking in and out.” Defense counsel asked if M.H. “had a

blackout that night” and defined blackout as “when you pass out and you have no

recollection of what happened.” M.H. answered, “I would have to say no.”

              M.H. testified on cross-examination about what happened when she

and Abraham arrived back at his house after leaving the bar. Defense counsel asked

M.H. if she went to her car, which was parked in the street. M.H. replied, “Honestly,

I don’t know what I was doing.” According to M.H., Abraham helped her into his

house. Asked, “[D]id you say that you wanted to go home at that point in time,”

M.H. answered, “No.” M.H. testified that she went upstairs to the second floor and

she “assumed” that she went into the bedroom.

              M.H. testified that she woke up in Abraham’s bed with her jeans and

“foundation garments” pulled down to her knees and Abraham’s head in between

her thighs. According to M.H., Abraham was performing cunnilingus on her. M.H.
testified that she “attempted to push his head off of me” and then she “passed out

again.” M.H. testified as follows about what happened next:

       Q:     And then you said that you woke up and he was on top of you and
              he had inserted his penis within your vaginal cavity?

       A:     Yes.

       Q:     And did you cry out at that point in time for the other person who
              was in the house to help you?

       A:     No. I told [Abraham] no, I told him to stop.

       Q:     And when you said . . . no, he stopped and pulled out?

       A:     No, he did not.

                  According to M.H., she eventually pulled her clothes up and left

Abraham’s house. She drove to her house but got lost along the way. M.H. and

Abraham engaged in a text message exchange at approximately 4:30 a.m. The gist

of the messages was Abraham asking what he did and M.H. telling him to leave her

alone. M.H. testified that when she got home, she went to bed. M.H. testified that

when she woke up, she talked to her mom although she did not tell her mom what

happened. Asked if she had “a cup of coffee and . . . some breakfast,” M.H. replied,

“I didn’t eat.”

                  M.H. testified that she took a shower and went to work in Twinsburg.

According to M.H., she arrived at work at “about 3 or 4” but did not work her entire

shift. M.H. left at “about 7,” went to the “Brunswick facility” and told “them” that

she had been sexually assaulted. M.H. explained what happened to the SANE nurse.

Approximately one week later, M.H. reported what happened to the police.
              M.H. attempted to clarify whether she “blacked out” that night. M.H.

testified that she was “passing out” and when asked if she was losing consciousness

at certain points,” M.H. answered, “Yes.” Asked if she said to Abraham “at any point

in the night that [she] wanted to have sex with him” or wanted him to perform oral

sex on her, M.H. replied, “No.” Asked if she and Abraham had “any discussion

throughout the night about sex,” M.H. answered, “No.”

              During M.H.’s redirect examination, the following colloquy occurred:

      Q:    And when he was performing cunnilingus on you, did you say no
            to him?

      A:    Yes.

      Q:    And you said you tried to push his head away as well?

      A:    Yes.

      Q:    And you blacked out?

      A:    Yes.

      Q:    When you came to, he was on top of you and with his penis inside
            of your vaginal cavity?

      A:    Yes.

      Q:    Did you say anything to him at that point?

      A:    I said stop.

      Q:    Did you say no?

      A:    Yes.

      Q:    And you had bruises and injuries to your inner thighs after this
            incident?

      A:    Yes.
      Q:     And not before?

      A:     Yes.

           b. Kayla Galton

              Kayla Galton (“Galton”) testified remotely via Zoom that she is a nurse

in the trauma ICU of the University of Washington’s Harborview Medical Center in

Seattle, Washington but was employed as a surgical ICU and SANE nurse at the

Cleveland Clinic.    Galton testified that she has performed 36 sexual assault

examinations as a SANE nurse and has been qualified in court as an expert in the

field. In this case, the court qualified Galton as an expert witness.

              Galton testified that she was employed by the Cleveland Clinic as a

SANE nurse in 2021. On November 23, 2021, Galton performed a sexual assault

examination on M.H. The State introduced M.H.’s medical records from the

examination into evidence and Galton testified that part of these records included

her documented report from M.H.’s examination. This report included M.H.’s

“narrative” to Galton explaining “the events which occurred on 11/23/21 . . . .”

Galton did not testify about this narrative because the court sustained defense

counsel’s objection regarding this line of questioning. The document, however, was

admitted into evidence.

              Galton testified that M.H. arrived at the emergency room at 8:09 p.m.

and related to Galton that the sexual assault occurred at 2:30 a.m. at the “assailant’s

house,” which is located a few blocks from M.H.’s house. Galton testified that M.H.

told her “she was penetrated vaginally with assailant’s penis and mouth . . . .” Galton
testified that M.H. has genital herpes and she was having an outbreak at the time of

the assault.   According to Galton, M.H. disclosed that she had been sexually

assaulted and “[h]e had, like, held her down on the bed while assaulting her.” Galton

took DNA swabs from M.H.’s body and collected blood and urine samples “for the

drug-facilitated sexual assault kit [that] was sent to the crime lab to be processed

there.”

               Asked if M.H. had any injuries, Galton testified as follows: “Yes. I

noted a small abrasion on her left cheek. I noted an abrasion on her right upper

arm, and then I noted mild bruising to her bilateral upper thighs, and a cluster of

abrasions to her left thigh.” Asked if these injuries to M.H. were “consistent with

someone that has been a victim of a sexual assault,” Galton replied as follows: “Yeah.

While the injuries — while injury with sexual assault doesn’t always occur, it

certainly is used as a piece of the puzzle when explaining the way that the patient,

the victim, was held or handled during the assault.”

               On cross-examination, Galton established that her examination of

M.H. took place “approximately 18-some-odd hours after the alleged incident

occurred . . . .” Galton testified that, as part of the examination, she collected M.H.’s

underwear, which was the same underwear that M.H. wore at the time of the assault.

Defense counsel asked Galton if M.H. “was under the influence of any intoxicants”

when she presented herself to Galton at the “emergency department.” Galton

answered, “No.”     Galton testified that, despite M.H. stating that she had “an

outbreak of . . . genital herpes,” Galton “did not document any visible lesions at the
time of the assessment.” Galton further testified, however, that “genital herpes isn’t

always expressed outwardly on the genitals that you can see from the outside of the

body.”

          c. Salesha Frantz

              Salesha Frantz (“Frantz”) testified that she is a forensic DNA analyst

with the Cuyahoga County Regional Forensic Science Laboratory. The court in this

case qualified Frantz as an expert witness in the field of DNA analysis. Frantz

testified that she generated a report on March 8, 2022, from the “sexual assault

evidence collection kit” in M.H.’s case. Frantz further testified that there was a

match between Abraham’s DNA and DNA found in “the dried stain from the

bilateral inner thighs” of M.H.

          d. Sabrina Choat

              Sabrina Choat (“Choat”) testified that she is a Cleveland police

detective assigned to the Sex Crimes/Child Abuse Unit. Choat testified that in

November 2021, she was “assigned a property found report.” Choat further testified

that “a property found [report] is when there is a victim that goes to the hospital and

they have a sexual assault kit completed, but yet don’t want to confer with officers

or law enforcement at that time.” Choat related that M.H. came to the police

department and reported the assault. Choat interviewed M.H., who identified

Abraham as the “suspect in this matter.” Choat also “spoke with [Abraham] a couple

times on the phone.”
              According to Choat, during her interview, M.H. was “upset, she was —

there was some frustration because she did not have much memory. We were trying

to put things together.” Choat testified that M.H. was not able to identify “a location”

because M.H. “had no memory. She had bits and pieces.” According to Choat, M.H.

“remembered there was a smaller bar and she remembered there was a patio that

they went and smoked on.” M.H. further recalled that “it was in a plaza.” Choat

investigated “bars that [she] was able to locate” but was not able to obtain any

pertinent information.

              Choat testified that she obtained a search warrant, collected

Abraham’s DNA and requested a comparison with the DNA found in M.H.’s sexual

assault kit. Choat further testified that there was a match between Abraham’s DNA

and “what was obtained in the sexual assault kit.” Additionally, Choat “got text

messages from [M.H.] and . . . had . . . Abraham’s phone dumped.” Choat testified

that she reviewed this evidence and presented it to a prosecutor.

              On cross-examination, Choat testified about M.H.’s toxicology report,

which was generated by the Cuyahoga County Regional Forensic Science Laboratory

on February 8, 2022, using blood and urine samples taken from M.H. on November

24, 2021. Defense counsel asked Choat if she reviewed “those documents to see if

somebody had been given a roofie or something of that nature that they were

impaired . . . .” Choat replied, “Yeah, that’s what we’re looking for.” This line of

questioning continued:
      Q:     But there was nothing in [M.H.’s] system that would be
             indicative of any type of impairment 18 hours after it occurred?

      A:     Not after 18 hours.

III. Law and Analysis

           a. Zoom Witness

               Preliminarily, we sua sponte address the issue of whether Galton’s

remote testimony violated Abraham’s United States Constitutional right pursuant

to the Sixth Amendment “to be confronted with the witnesses against him,” which

is often referred to as the Confrontation Clause. In this case, the State filed a motion

to allow remote witness testimony related to Galton’s testifying “via teleconference

using the computer program Zoom.” The defendant did not oppose this motion and

the court did not rule on this motion. Rather, the prosecutor called Galton “to the

stand” and announced that “she will be appearing via Zoom.”

              The United States Supreme Court has held that the Confrontation

“Clause’s ultimate goal is to ensure reliability of evidence . . . . It commands, not that

evidence be reliable, but that reliability be assessed in a particular manner: by

testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36,

61 (2004). See also Ohio Const., Art. I, § 10; State v. Self, 56 Ohio St.3d 73, 78 (1990)

(“Our interpretation of Section 10, Article I [of the Ohio Constitution] has paralleled

the United States Supreme Court’s interpretation of the Sixth Amendment . . . .”).

The Ohio Supreme Court has stated that the Sixth Amendment “encompasses the

rights to have a witness physically appear in the courtroom, to require the witness
to testify under oath, and to force the witness to be subject to cross-examination.”

State v. Carter, 2024-Ohio-1247, ¶ 27.

               In Maryland v. Craig, 497 U.S. 836, 844 (1990), the United States

Supreme Court held that the Confrontation Clause does not guarantee “criminal

defendants the absolute right to a face-to-face meeting with witnesses against them

at trial.”   (Emphasis omitted.)      Rather, “the Confrontation Clause reflects a

preference for face-to-face confrontation at trial . . . .” Ohio v. Roberts, 448 U.S. 56,

63 (1980). This line of case law has developed to require courts to use an “interest-

balancing framework” to make a ‘“case-specific finding’ . . . that an exception to face-

to-face confrontation” is necessary. Carter at ¶ 36. The court’s finding must be

“based on evidence presented by the parties” that the exception is ‘“necessary to

further an important state intertest’ or ‘public policy’ objective.” Carter at ¶ 35,

quoting Craig at 852.

               In Carter, the Ohio Supreme Court addressed the issue of whether the

defendant’s “right to face-to-face confrontation was violated because the trial court

allowed a witness to testify remotely by way of video conference.” Id. at ¶ 1. The

Carter Court found that “the trial court erred by allowing the remote testimony.

Under United States Supreme Court precedent, a trial judge may only dispense with

the requirement of face-to-face confrontation in narrow circumstances. But the trial

court in this case did not make sufficient findings to establish that such

circumstances existed.” Id. at ¶ 2. The Carter Court further found that “the use of

videoconferencing was harmless error” because, given “the other evidence
presented at trial, there was no reasonable possibility that the trial court’s error in

allowing the remote testimony contributed to [the defendant’s] conviction.” Id. at

¶ 3.

               In Carter, the defendant was accused of sexual offenses against his

adopted daughter. Id. at ¶ 4. At the defendant’s jury trial, his former employer

testified against him by video. Id. at ¶ 12. The State filed a motion to allow this video

testimony and the defendant objected. Id. at ¶ 13. This witness lived in Minnesota

at the time of Carter’s trial, and the trial court found the COVID-19 pandemic, the

uncertainty of “travel by air” and the unpredictability of the weather “rendered” the

witness ‘“unavailable to testify in person’ and that the video format would not hinder

the defense’s ability to cross-examine him.” Id. at ¶ 13.

              The jury found Carter guilty of two counts of sexual battery but

acquitted him of the remaining sexual offenses charged in the indictment. Carter

appealed and the Third District Court of Appeals affirmed finding that “the

combination of the pandemic and resultant airline-labor shortages were sufficient

bases to justify the trial court’s determination . . . .” State v. Carter, 2022-Ohio-

4559, ¶ 18 (3d Dist.).

               The Ohio Supreme Court agreed with the defendant that “these

findings at most recite potential weather-related inconveniences that could have

hindered travel but did not necessarily prevent [the witness] from testifying in

person.” State v. Carter, 2024-Ohio-1247, ¶ 37. The Ohio Supreme Court further

reasoned that the “trial court heard no evidence about winter weather patterns,
delayed fights, aviation reports (concerning Ohio or Minnesota), road conditions, or

airline-staffing shortages.” Id. Additionally, the trial court’s reasoning behind

allowing the remote testimony “was not a ‘case-specific finding of necessity’ . . .

because erratic weather patterns and the delays they cause are equally relevant to

any trial involving nonlocal witnesses.” Id. (Emphasis in original.) The Carter

Court additionally found that “the record does not establish that allowing [the

witness] to testify remotely advanced an important state interest.” Id. at ¶ 38.

              In applying this Confrontation Clause law to Abraham’s case, we find

that no evidence was presented, and the trial court made no “case-specific finding,”

to show why it was “necessary” for Galton to testify remotely. Therefore, the trial

court erred by allowing Galton to testify remotely. Although we find the court erred,

the defense did not object and we find that this error is harmless in this case.

               The harmless-error doctrine is governed by Crim.R. 52(A), which

states that “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” In this case, Galton did not testify as to

whether M.H. was substantial impairment on the night in question. Indeed, Galton

testified that she examined M.H. for sexual assault approximately 18 hours after the

alleged incident took place and that M.H. was not “under the influence of any

intoxicants” at the time of the examination. However, as will be shown in this

opinion, the State presented evidence other than Galton’s testimony to show that

M.H. was substantial impairment at the time of the sexual assault.
           b. Substantial Impairment Rape

              Pursuant to R.C. 2907.02(A)(1)(c), “No person shall engage in sexual

conduct with another when . . . [t]he other person’s ability to resist or consent is

substantial impairment because of a mental or physical condition . . . and the

offender knows or has reasonable cause to believe that the other person’s ability to

resist or consent is substantial impairment because of a mental or physical condition

. . . .”

              The term “substantially impaired” is not defined in the Ohio Revised

Code. The Ohio Supreme Court has held that the term “must be given the meaning

generally understood in common usage.” State v. Zeh, 31 Ohio St.3d 99, 103 (1987).

Specifically, the Court 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.” Id. at 103-

104.

              This court has held that “voluntary intoxication is a mental or physical

condition that could cause substantial impairment.” State v. Virostek, 2022-Ohio-

1397 (8th Dist.). See also State v. Jones, 2015-Ohio-1818 (8th Dist.); State v. Doss,

2008-Ohio-449 (8th Dist.); State v. Martin, 2000 Ohio App. LEXIS 3649 (12th

Dist.) (“[U]nder the plain meaning of the words used in R.C. 2907.02(A)(1)(c), a

person whose ability to resist is substantially impaired because of intoxication is a

person whose ability to consent or resist is substantially impaired by reason [of] a

mental or physical condition.”).
          c. Manifest Weight of the Evidence

              A manifest weight of the evidence challenge attacks the credibility of

the evidence presented and questions whether the State met its burden of

persuasion. State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.). Weight of the

evidence “addresses the evidence’s effect of inducing belief,” i.e., “whose evidence is

more persuasive — the state’s or the defendant’s?” State v. Wilson, 2007-Ohio-

2202, ¶ 25, citing Thompkins, 78 Ohio St.3d 380, at 386-387. When considering an

appellant’s claim that a conviction is against the manifest weight of the evidence, the

appellate court functions as a “thirteenth juror” and may disagree “with the

factfinder’s resolution of . . . conflicting testimony.” Thompkins at 387, citing Tibbs

v. Florida, 457 U.S. 31, 42 (1982). The appellate court examines the entire record,

weighs the evidence and all reasonable inferences that may be drawn therefrom,

considers the witnesses’ credibility and determines whether, in resolving conflicts in

the evidence, the trier of fact ‘“clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’”

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).

Reversal on manifest weight grounds is reserved for the ‘“exceptional case in which

the evidence weighs heavily against the conviction.”’ Id.

          d. Analysis

              In Abraham’s sole assignment of error, he argues that his convictions

for two counts of substantial impairment rape are against the manifest weight of the

evidence because “the evidence showed that [he] was unaware that [M.H.] was
substantially impaired.” Our reading of Abraham’s appellate brief reveals that he is

not challenging whether M.H. was substantial impairment. To support this reading,

we note that Abraham states the following in his brief: “Brushing aside the question

of whether M.H. was truly impaired, it is evident from the Facebook messages the

two exchanged after the incident that Abraham was not aware of the impairment.”

Therefore, we limit the remainder of this analysis to whether Abraham knew that

M.H. was substantial impairment.

              This court has held as follows regarding substantial impairment rape:

      [W]hen reviewing substantial impairment due to voluntary
      intoxication, there can be a fine, fuzzy, and subjective line between
      intoxication and impairment. Every alcohol consumption does not
      lead to a substantial impairment. Additionally, the waters become even
      murkier when reviewing whether a defendant knew, or should have
      known, that someone was impaired rather than merely intoxicated.

Doss at ¶ 18. Furthermore, in State v. Foster, 2020-Ohio-1379, ¶ 48 (8th Dist.), this

court held that “[e]vidence that should have alerted an offender to whether a victim

was substantially impaired may include evidence that the victim was stumbling,

falling, slurring speech, passing out or vomiting.”

              In this case the evidence in the record showing that Abraham knew or

had reasonable cause to believe that M.H. was intoxicated to the point of being

substantial impairment came from M.H.’s testimony. M.H. testified that she and

Abraham were together when she was drinking alcohol on the night in question. She

further testified that Abraham was standing at the bathroom door when she was

inside vomiting. M.H. was stumbling when she exited the bathroom and Abraham
had to hold her up. M.H. fell asleep in Abraham’s truck when Abraham was driving

back to his house. When they arrived at his house, M.H. was again stumbling and

Abraham “helped escort” her into his house. M.H. further testified that she was

“extremely intoxicated” and that it was hard for her to stand or walk on her own.

              In addition to testifying that she was visibly intoxicated, M.H. also

testified that she was asleep or passed out and she woke up at one point to find

Abraham performing oral sex on her and woke up a second time to find Abraham

having sexual intercourse with her. This court has held that “sleep is a mental or

physical condition that ‘substantially impairs’ a victim as envisioned by R.C.

2907.02(A)(1)(c).” State v. Hartman, 2018-Ohio-2641, ¶ 12 (8th Dist.). See also

State v. Scruggs, 2019-Ohio-3043, ¶ 22-23 (8th Dist.) (finding that the victim was

“substantially impaired by sleep” when “she was twice awakened when [the

defendant] had inserted his penis into her vagina”).      This court has additionally

affirmed a substantial impairment rape conviction as being supported by the weight

of the evidence when the victim testified that, “while she was inside [the defendant’s]

apartment, she ‘passed out’ more than once” and she “required help to put on her

shoes and coat and needed [the defendant’s] assistance to walk.” State v. Jones,

2012-Ohio-5737, ¶ 32 (8th Dist.).

              The only evidence in the record that supports the notion that Abraham

may not have known that M.H. was substantially impaired is the Facebook messages

he sent to M.H. within an hour or so after the sexual assault occurred asking her to

tell him what he did wrong. In these messages, Abraham refers to M.H. having “too
many shots” but he makes no reference to her being asleep or passed out and waking

up to find him sexually assaulting her.

               After examining the entire record and weighing all the evidence

presented, we cannot say that this is the exceptional case where the factfinder lost

its way in convicting Abraham of two counts of substantial impairment rape. In

other words, his convictions are supported by the manifest weight of the evidence in

the record.

               Accordingly, Abraham’s sole assignment of error is overruled.

                Judgment affirmed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that the appellee recover from the appellant the costs herein

taxed.

         It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.


_________________________________
EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
ANITA LASTER MAYS, J., CONCUR