State v. McCary

[Cite as State v. McCary, 2019-Ohio-4596.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28250
:
v. : Trial Court Case No. 2018-CR-2078
:
RICHARD McCARY IV : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 8th day of November, 2019.

...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

CARL BRYAN, Atty. Reg. No. 0086838, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant

.............
 -2-

FROELICH, J.

{¶ 1} After a jury found Richard McCary IV guilty of one third-degree felony count

of sexual battery in violation of R.C. 2907.03(A)(3), the trial court sentenced him to 36

months in prison. McCary appeals from that judgment of conviction. The judgment of the

trial court will be affirmed.

Factual and Procedural Background

{¶ 2} In 2018, G.F., a 23-year-old woman, was living at the St. Vincent de Paul

women’s shelter in downtown Dayton. Late in the morning of May 28, 2018, she and

Michelle, another woman from the shelter, took a bus to the House of Bread, which served

free meals. There they met up with Michelle’s boyfriend and another man named “Rich”

(McCary), whom G.F. had not met previously. A few hours later, after eating lunch, G.F.

wanted to go to the Dayton Mall, but was unfamiliar with bus routes to the mall, so “Rich”

agreed to accompany her.

{¶ 3} G.F. and McCary spent a few hours together at the mall. As evening arrived,

G.F. realized that her cell phone was dead. Not knowing the time or the correct bus route

to take, and fearing that she would not be able to get back to the shelter before the 7 p.m.

curfew there,1 G.F. asked McCary if she “could stay at his place for the night.” (Tr., p.

236.) According to G.F., she “felt like [she] really didn’t have any other option.” (Id., p.

237.) McCary assented. While they waited for a bus, G.F. asked McCary to stop

“constantly touching [her],” which made her “uncomfortable”; she told him she had a

1
G.F. explained that women living at the shelter were supposed to call if they would be
late, but she could not do so because her phone was dead (Tr., pp. 292-293), and “if
you’re not there by 7, then they’re not going to let you in.” (Id., p. 294.)
 -3-

boyfriend. The two then rode a bus to the hub near where McCary lived and walked to his

building from there.2

{¶ 4} G.F. signed the visitor’s log in the lobby of McCary’s building. The two rode

an elevator up to McCary’s apartment, where McCary gave her some food and water,

and G.F. took a shower. After showering, G.F. re-dressed in the same dress she had

been wearing before, but did not put her soiled underwear back on.3 She then returned

to the living room.

{¶ 5} Because the apartment had no furniture,4 G.F. and McCary sat on the living

room floor while he showed her how to play a video game. G.F. plugged her phone in to

charge, then lay on the floor with headphones on to sleep, while McCary continued to sit

on the floor playing the game. According to G.F., at about 1 a.m., she heard McCary say

her name, and she awoke to find her legs “wide open.” When she asked McCary what he

was doing, he told her that he was “eating me out,” which she understood to mean oral

sex. (Tr., p. 259.) He also said that he had been unable to “put his dick in me.” (Id.) G.F.

said she was “mad” and told McCary “he did that without my consent.” (Id.) G.F. described

McCary trying to “hug” her from behind following her reaction, which led her to tell him not

to touch her. She “grabbed [her] stuff” and “just walked out of the building,” where she

immediately placed a 911 call to report that she had been sexually assaulted. (Id., pp.

2
A video recording played at trial depicted G.F. and McCary boarding the bus near the
mall, sitting together during the trip back downtown, and leaving the bus together when it
arrived at the downtown hub at about 6:31 p.m. (State’s Exh. 6.)
3
G.F. testified that she did not have “an extra pair” of underwear with her, and “honestly,
it’s kind of disgusting to have to put dirty underwear back on.” (Tr., p. 302.)
4
The record suggests that McCary only recently had moved into the apartment and had
not yet acquired furniture. (Tr., p. 298.)
 -4-

260-261.)5

{¶ 6} Outside McCary’s building, G.F. encountered a woman who asked if G.F.

was okay and pointed out a bruise6 on her (G.F.’s) neck. According to G.F., the bruise

had not been there earlier, and she had no memory of receiving it. The unknown woman

explained G.F.’s situation to a man who volunteered to wait with her until the police

arrived. While they were waiting, McCary came outside, but G.F. refused to talk to him

and he eventually left. When a police officer arrived, G.F. described what had happened.

At her request, she was transported to the hospital, where her neck, vaginal area, and

the inside of her mouth were swabbed for a sexual assault kit.

{¶ 7} Later, G.F. was interviewed by Detective Zachary Williams at the Dayton

police department. She described “Rich” and gave his apartment number to Det. Williams.

G.F. identified McCary from a photo array. She also identified him in the courtroom at

trial, where she testified as recounted above.

{¶ 8} Officer Devin C. Portis of the Dayton Police Department was the first witness

presented at McCary’s trial. Officer Portis testified that while on patrol at about 2 a.m. on

May 29, 2018, he was “flagged down” by a man outside a downtown Dayton apartment

complex. That man told Officer Portis that a young woman wanted to speak to him about

something that had happened; Officer Portis checked his patrol car’s computer and

confirmed that a 911 call reporting a sexual assault had been made from that location at

5 The parties stipulated to the accuracy of an audio recording of G.F.’s 911 call. (State’s
Exh. 1.) Although G.F. reported that she had been “raped,” the jury was instructed to
disregard that characterization, as McCary was not charged with rape.

6
Elsewhere, G.F. described that “bruise” as “a hickey” formed by “sucking on someone’s
neck.” (Tr., pp. 269.)
 -5-

about 1 a.m. Portis spoke to G.F., whom he described as “pretty calm.” He said she was

transported to the hospital.

{¶ 9} Teara Shuck testified as the sexual assault nurse examiner who performed

G.F.’s sexual assault examination. Shuck identified the sexual assault exam kit she

collected on May 29, 2018, and the swabs and other evidence it contained. She said that

G.F. reported sleeping at the home of “Rich,” a man she met at House of Bread, and

awaking to the man performing oral sex on her and saying he had been unable to

penetrate her with his penis. Shuck noted that G.F. had a bruise on the left side of her

neck. Shuck’s physical examination also revealed some redness and a tear “consistent

with a point of contact injury” 7 in G.F.’s genital area. On cross-examination, Shuck

confirmed that she could not determine whether her exam findings were the result of

consensual or non-consensual acts.

{¶ 10} The State presented Mary Barger, a forensic scientist in the DNA and

serology section of the Miami Valley Regional Crime Laboratory, as an expert witness

regarding the test results from G.F.’s sexual assault kit. Barger testified that semen was

not detected on any of the swabs from G.F.’s body, but DNA in the samples collected

from G.F.’s neck and inner labia matched McCary. She agreed that the presence of DNA

is not indicative of consent or the lack of it.

{¶ 11} Officer Wayne Hammock of the Dayton police testified that on May 30,

2018, he and his partner were at a downtown apartment complex on another call when

two detectives asked them to assist in locating a suspect (McCary). Officer Hammock

7
According to Shuck, “something forcibly contacted that area to cause that tear.” (Tr., p.
215.)
 -6-

identified a video recorded while McCary was being transported in the backseat of his

(Hammock’s) cruiser. Officer Hammock described McCary as “a little upset that he was

being accused of a crime,” but otherwise “pretty calm.” He said that McCary consented

to a search of his apartment.

{¶ 12} The State’s final witness was Detective Zachary Williams. Det. Williams

testified about his investigation of G.F.’s assault complaint, including his separate

interviews of G.F. and McCary. He described G.F. as “very fact-of-the-matter” as well as

consistent from her initial statements through her trial testimony. Det. Williams stated that

he was familiar with the St. Vincent de Paul shelter and its policy that female residents

are “denied access” if they are not on site by 7 p.m. After G.F. provided a description of

her assailant and the location and number of his apartment, the manager of that

apartment complex advised Det. Williams that McCary was the tenant in that apartment.

{¶ 13} With the assistance of other officers, Det. Williams obtained video

surveillance footage from the apartment building that showed McCary with G.F. on the

evening of May 28 and the morning of May 29, 2018. On the sign-in sheet at McCary’s

apartment building, Det. Williams found G.F.’s name signed in as a visitor to McCary’s

apartment number. Upon locating McCary in the building on May 30, Det. Williams

obtained McCary’s permission to search his apartment and arranged for McCary to be

transported to police headquarters.

{¶ 14} Det. Williams said his search of McCary’s apartment confirmed that, as G.F

described, it contained little or no furniture and few personal items. A recording of Det.

Williams’s interview with McCary was played for the jury. During that interview, McCary

confirmed many of the details of G.F.’s account, including meeting G.F. at the House of
 -7-

Bread, taking the bus and spending the afternoon together at the Dayton Mall, and

allowing G.F. to shower and spend the night in his apartment. McCary stated that he “put

a hickey on” G.F.’s neck and “was trying to get with” her while he “thought she was

asleep.” He admitted that he “went down”8 on G.F. “to show her some affection.” McCary

said G.F. still did not wake up, which made him stop and look at her and think “she was

acting asleep.” McCary said he then told G.F. to turn over, and she “woke up.” When he

told her what he had done, G.F. accused him of raping her. He denied penetrating or

ejaculating in G.F. According to Det. Williams, McCary admitted that he touched G.F.’s

vaginal area with his fingers and could have caused the tear found there during her sexual

assault examination.

{¶ 15} McCary consented to a DNA swap from inside his cheek. He said that

during the day, G.F. had been wearing a relatively short reddish dress, glasses, a bra, a

thong, and shoes. However, he said G.F. was not wearing the thong when she came out

of the shower. McCary said that G.F. had told him she had a boyfriend who was engaged

to someone else. She also asked him if he was “trying to get with her,” and he said that

he was. Beyond that, however, McCary said they did not talk much.

{¶ 16} On cross-examination, Det. Williams stated that G.F. never told him she felt

afraid of McCary. However, Det. Williams said he never asked G.F. whether she feared

McCary. Williams agreed that McCary had been compliant and cooperative with police

officers, including by consenting to a search of his apartment and a swab of his cheek for

a DNA sample. Det. Williams also said that McCary once or twice claimed to have

8
Det. Williams explained, without objection, his understanding that “went down” meant
that McCary performed oral sex on G.F.
 -8-

believed that G.F. might be “faking” being asleep, but only after he said multiple times

that she was asleep when he began performing oral sex. Despite McCary’s claim during

the interview that G.F. had been “all up on” him, Det. Williams said footage (which the

jury viewed) from the pair’s bus ride and arrival at McCary’s building showed a “quite

opposite” situation; in Det. Williams’s view, G.F. appeared to be “quite distant” as to

McCary.

{¶ 17} After moving for the admission of exhibits, the State rested. The trial court

denied defense counsel’s motion for acquittal pursuant to Crim.R. 29(A).

{¶ 18} McCary testified in his own defense. He said that he walked from his

apartment to the House of Bread on the morning of May 28, 2018, arriving at about 10

a.m. There he saw his friend Carl, who was with Carl’s girlfriend and G.F. McCary

introduced himself to G.F., and the four sat together, conversing and eating lunch, until

about 11:30 or noon. McCary said he found G.F. attractive and asked if he “could hang

with her for the day.” (Tr., p. 445.) The group took a bus to the downtown hub, where Carl

and his girlfriend (G.F.’s friend Michelle) went their own way. G.F. asked McCary what

bus to take to go to the Dayton Mall, and he accompanied her to the bus stop. According

to McCary, at this point, G.F.

* * * started playing around. She started playing. Told me had [sic] a thong

on. I had a shocked face. Then she’s telling me she’s got to – she’s telling

me excuse me, I’ve got to pull my thong out, as I turned my head and we,

you know, we kind of laughed at that.

(Id., p. 447.)

{¶ 19} McCary said that while they rode the bus to the mall together, G.F. had
 -9-

earbuds in her ears, and the two did not talk. Once at the mall, however, they went to a

series of stores together, “just cracking jokes and laughing.” (Id., p. 449.) According to

McCary, while they were at Guitar Center, G.F. was listening to music through her

earbuds and “got sad and her eyes got teary.” (Id., p. 450.) McCary testified that he “h[e]ld

her in [his] arms, trying to comfort her.” (Id.) He said he “had no idea” why she was crying,

but she assured him that he hadn’t done anything wrong. McCary said he hugged G.F.

for “[f]ive, ten minutes,” and she did not try to move away or push or slap his hands away.

Next, they walked back to the bus stop, where they sat on a bench and talked about

G.F.’s housing situation. McCary said he put his arm “like behind” G.F. while trying to

encourage her by telling her about his own transition from a shelter to his own place. They

boarded the bus when it arrived at about 6 p.m.

{¶ 20} McCary testified that while riding the bus back downtown, G.F. “was still sad

and teary eyed,” so he tried to comfort her by putting his arm around her and rubbing her

back and her thigh.9 He said G.F. never moved away or objected. When they arrived at

the bus hub, he invited her to stay at his place. Once there, he prepared some food and

they discussed G.F.’s relationship status; “she told me she had a boyfriend who was

engaged with a fiancé. So I * * * asked her * * * [w]hy don’t you just get with me? * * * And

then she said no, she loved him or something like that.” (Tr., p. 456.)

{¶ 21} McCary said he offered to let G.F. use his shower, and she did. G.F.

emerged after her shower in the same dress and sat on the floor, where McCary let her

play a video game. He testified that G.F. told him “you can look, you can touch me,” so

9
McCary said he also pulled down the hem of G.F.’s dress because the dress had ridden
up and “you know, she’s supposed to be [a] lady * * *.” (Tr., p. 453.)
 -10-

he lifted her dress and saw that she was not wearing underwear. According to McCary,

G.F. told him to move closer, then to lie on his back next to her. After “it seems like a

minute or two,” McCary lifted G.F.’s dress and began to perform oral sex. He said he

thought she was awake because “I don’t see how you can go to sleep that fast.” Although

G.F.’s eyes were closed, she turned her head when he “put a hickey on her neck,” and

“her legs are in the air, spread apart.” McCary said he performed oral sex a second time,

and “masturbat[ed] her with my hand.” Thinking she was “acting asleep,” McCary

“test[ed]” her by telling her to turn over. At that point, G.F. opened her eyes and sat up.

When McCary told her he had performed oral sex on her, G.F. accused him of raping her

and left the apartment. McCary testified that he went outside to try to convince G.F. to

return, but went back to his apartment alone when she refused to speak to him.

{¶ 22} McCary then described police officers coming to his apartment and

transporting him to police headquarters. He testified that he “told the detectives that same

truth” about the signs that G.F. actually was awake but pretending to be asleep.

{¶ 23} On cross-examination, McCary claimed that after his interview with

detectives shown at trial, “they also brought me back into the room and that wasn’t

recorded.” (Tr., p. 487.) He confirmed many of the details of G.F.’s testimony through the

bus ride back downtown, but said that she did not ask to stay at his apartment; rather, he

invited her there. He said that the events that followed in the apartment happened at

around 8 p.m. to 10 p.m., at the latest. Reviewing the video of G.F.’s leaving the building,

however, he acknowledged that her departure occurred at 1:17 a.m., so “I must have

forgot the time.”

{¶ 24} McCary also claimed to have told the detectives information that did not
 -11-

appear in the interview recording – e.g., that G.F. gave him permission to touch her, that

she turned her head, that her legs were “in the air,” and that he believed she could not

have fallen asleep so quickly. He again claimed that detectives took him back for “an extra

interrogation” that they did not record, and that those statements occurred during that

unrecorded interview. He admitted, however, that he did tell the detectives that he initially

“thought she [G.F.] was asleep.”

{¶ 25} On rebuttal, the State presented additional testimony from Det. Williams as

well as testimony from Det. Sara Von Holle, who was present during McCary’s interview.

Both denied that any unrecorded second interview occurred.

{¶ 26} Following closing arguments, the jury returned a verdict of guilty on the

single count of sexual battery. The trial court ordered a presentence investigation and

later entered a judgment of conviction sentencing McCary to 36 months of imprisonment.

McCary appeals from that judgment, raising these assignments of error:

1) Mr. McCary’s conviction for sexual battery was against the manifest

weight of the evidence.

2) The trial court committed reversible error when it charged the jury with

the instruction that “Ignorance of the law is not a defense, meaning that

knowledge that certain conduct is unlawful is not a necessary element

when action is done knowingly is an element of an offense.”

Assignment of Error #1 – Manifest Weight of the Evidence

{¶ 27} McCary’s first assignment of error alleges that his conviction was against

the manifest weight of the evidence. His argument attacks the credibility of G.F.’s claim

to have been unaware that McCary was performing oral sex on her, contending that the
 -12-

evidence showed G.F. “actually facilitat[ed] the sexual contact.” (Brief of Appellant, p. 5.)

{¶ 28} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 19. When evaluating whether a conviction is against the manifest weight of the

evidence, the appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine 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.” State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 29} In reviewing challenges based on the manifest weight of the evidence, we

are required to consider all of the evidence admitted at trial, regardless of whether it was

admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d

284, ¶ 26; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio-197, ¶ 16, citing

State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.). Because the trier of

fact sees and hears the witnesses at trial, we must defer to the factfinder’s decisions

whether, and to what extent, to credit the testimony of particular witnesses. State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

{¶ 30} The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the
 -13-

evidence only in exceptional circumstances. Martin at 175.

{¶ 31} The statute under which McCary was convicted provides in pertinent part

as follows:

(A) No person shall engage in sexual conduct with another, not the spouse

of the offender, when any of the following apply:

***

(3) The offender knows that the other person submits because the other

person is unaware that the act is being committed.

R.C. 2907.03(A)(3). “Sexual conduct” as used therein includes cunnilingus. R.C.

2907.01(A). “A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B).

{¶ 32} The Ninth District Court of Appeals has observed that the focus of R.C.

2907.03(A)(3) is not on the victim’s subjective state of mind, but rather “on what ‘[t]he

offender knows’ concerning the victim’s submission” due to unawareness. (Emphasis sic.)

State v. Antoline, 9th Dist. Lorain No. 02CA008100, 2003-Ohio-1130, ¶ 52. “[I]n many

prosecutions under R.C. 2907.03(A)(3), * * * the offender’s knowledge that the victim

submits because of his or her unawareness is inferred from the victim’s testimony that,

initially, he or she was subjectively in a state of unawareness (e.g., sleep or

unconsciousness), during which the offender initiated and engaged in sexual conduct.”

(Citations omitted.) Id. at ¶ 55; accord State v. Shaffer, 4th Dist. Hocking No. 18CA5,

2018-Ohio-4976, ¶ 21, quoting Antoline at ¶ 51-52. G.F.’s testimony that she was asleep

when McCary performed oral sex on her supports such an inference.

{¶ 33} McCary’s testimony that he believed G.F. was only pretending to be asleep
 -14-

does not mean that the jury verdict was against the manifest weight of the evidence.

Although McCary deems it implausible that G.F. “somehow slept through receiving oral

sex and a hickey on her neck” (Brief of Appellant, p. 5), the jury was permitted to credit

her testimony. G.F. explained that she is “a heavy sleeper[;] it’s kind of sometimes hard

to wake me up.” (Tr., p. 303.) “A jury can reasonably conclude that the defendant knew

the victim was * * * unable to object to the defendant’s conduct if there was evidence that

the victim was in a state of deep sleep * * *.” State v. Anderson, 6th Dist. Wood No. WD-

04-035, 2005-Ohio-534, ¶ 41, citing State v. Branch, 10th Dist. Franklin No. 00AP-1219,

2001 WL 548630, *2 (May 24, 2001). As noted by the appellate court in a case factually

similar to this one, “[a] verdict is not against the manifest weight of the evidence because

the finder of fact chose to believe the State’s witnesses rather than the defendant’s

version of the events.” State v. Oswald, 9th Dist. Summit No. 28633, 2018-Ohio-245,

¶ 25, quoting State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.

Accord State v. Brown, 2d Dist. Montgomery No. 27738, 2018-Ohio-3068, ¶ 35

(testimonial inconsistencies “do not render a defendant’s conviction against the manifest

weight of the evidence”). The jury that heard McCary’s case cannot be said to have lost

its way by choosing to accept G.F.’s version of events.

{¶ 34} Furthermore, during his interview with Det. Williams, McCary himself

admitted that he “was trying to get with” G.F. while he “thought she was asleep.” Although

later in that interview he said that at some point he concluded that G.F. “was acting

asleep,” McCary’s own statements would support an inference that McCary had reason

to know that G.F. likely was asleep when he first began to perform oral sex on her. This

is not the exceptional circumstance in which the record indicates that the jury’s resolution
 -15-

of conflicts in the evidence created a manifest miscarriage of justice.

{¶ 35} McCary’s first assignment of error is overruled.

Assignment of Error #2 – Erroneous Jury Instruction

{¶ 36} In his second assignment of error, McCary contends that the trial court erred

by instructing the jury that ignorance of the law was not a valid defense to the sexual

battery charge against him. McCary argues that the instruction to that effect deprived him

of the ability to pursue a defense based upon a mistake of fact – i.e., his mistaken

impression that G.F. was not asleep or was only pretending to be asleep at the time of

the sexual conduct.

{¶ 37} “A criminal defendant has the right to expect that the trial court will give

complete jury instructions on all issues raised by the evidence.” State v. Williford, 49 Ohio

St.3d 247, 251, 551 N.E.2d 1279 (1990); State v. Mullins, 2d Dist. Montgomery No.

22301, 2008-Ohio-2892, ¶ 9. As a corollary, a court should not give an instruction unless

it is specifically applicable to the facts in the case. State v. Fritz, 163 Ohio App.3d 276,

2005-Ohio-4736, 837 N.E.2d 823 ¶ 19 (2d Dist.). The decision to give a requested jury

instruction is a matter left to the sound discretion of the trial court, and the court’s decision

will not be disturbed on appeal absent an abuse of discretion. State v. Elliott, 2d Dist.

Montgomery No. 26104, 2014-Ohio-4958, ¶ 22.

{¶ 38} When reviewing a trial court’s jury instructions, an appellate court must

consider the instructions as a whole rather than viewing an instruction in isolation, and

then determine whether the jury charge probably misled the jury in a matter materially

affecting the complaining party’s substantial rights. State v. Crawford, 2d Dist.

Montgomery No. 22314, 2008-Ohio-4008, ¶ 36, citing Becker v. Lake Cty. Mem. Hosp.
 -16-

West, 53 Ohio St.3d 202, 560 N.E.2d 165 (1990). An appellate court will not reverse a

conviction due to an erroneous jury instruction unless the error was so prejudicial that it

might have induced an erroneous verdict. Id.; see also Hayward v. Summa Health

Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243.

{¶ 39} The particular jury instruction to which McCary now objects stated as

follows:

Ignorance of the law is not a defense, meaning that knowledge that certain

conduct is unlawful is not a necessary element when action is done

knowingly is an element of an offense.

(Sic.) (Tr., p. 599.)10

{¶ 40} “ ‘[T]he general rule that ignorance of the law or a mistake of law is no

defense to criminal prosecution is deeply rooted in the American legal system.’ ” State v.

Wheatley, 2018-Ohio-464, 94 N.E.3d 578, 36 ¶ (4th Dist.), quoting Cheek v. United

States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.E.2d 617 (1991). That principle applies

when a person “knowingly” commits a prohibited act, even if he is unaware the act is

prohibited. See State v. Jones, 8th Dist. Cuyahoga No. 90903, 2009-Ohio-3371, ¶ 5

(affirming conviction of having weapon under disability despite defendant’s alleged

ignorance that prior drug conviction created disability).

{¶ 41} McCary does not contend that the instruction given misstates the law.

Rather, he in essence argues that the instruction about ignorance of the law was

10
Although the charge conference regarding the jury instructions does not appear in the
record before us, it apparently is undisputed that McCary’s trial attorney preserved an
objection to that instruction. (See Brief of Appellant, p. 6.) We have no indication that
McCary requested or that the trial court declined to give a separate instruction regarding
the effect of mistakes of fact.
 -17-

erroneous because it “confused the jury” as to the viability of his defense based upon an

alleged mistake of fact. (Brief of Appellant, p. 7.) We do not accept that premise.

{¶ 42} “Generally, mistake of fact is a defense if it negates a mental state required

to establish an element of a crime * * *.” State v. Arnold, 2013-Ohio-5336, 2 N.E.3d 1009

(2d Dist.). The trial court permitted the instruction regarding “ignorance of the law”

because McCary’s police interview suggested that McCary believed he did not commit a

sex offense if no penetration occurred, and such professed belief is not consistent with

R.C. 2907.03(A)(3). However, the “ignorance of the law” instruction did not preclude

McCary from arguing that he lacked the requisite mens rea to commit sexual battery

because he believed, however mistakenly, that G.F. was awake when he began to

perform oral sex on her. Indeed, McCary’s trial attorney presented that very defense to

the jury in his closing, arguing:

[E]ven if you find that [G.F.] was unaware of the acts being performed on

her that night, you cannot find that Rich McCary knew she was unaware.

Rich told you from the witness stand, he thought she was playing. She

initiated the contact. She leaned over. She put her legs in the air. Even if

you believe that [G.F.] was asleep that evening, common sense and reason

of any skeptical person would think those are the actions of someone who

is awake. You don’t have any evidence before you to suggest otherwise.

(Tr., p. 583.)

{¶ 43} Furthermore, the State’s rebuttal argument during closing reinforced the

viability of a defense based on a mistake of fact as to whether G.F. was asleep. The

assistant prosecutor stated: “This comes down to[,] did he [McCary] know? Was he aware
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that when he’s performing oral sex on her that she is unaware that it’s happening? That’s

your only question * * *.” (Id., p. 585.) Later, the State also clarified the limited applicability

of the “ignorance of the law” instruction, arguing: “It does not matter if he [McCary] did not

know that this was illegal conduct. What matters is does he know he’s operating when

she is unaware and unable to speak about what happens to her body.” (Id., p. 595.)

{¶ 44} Nothing in the record suggests that McCary was found guilty because the

“ignorance of the law” instruction misled jurors into thinking that McCary would not have

a valid defense if he mistakenly believed that G.F. was not actually asleep. To the

contrary, based on the record, it appears far more likely that the jury did not find McCary

to be credible. McCary’s trial testimony not only conflicted with G.F.’s trial testimony and

her earlier reports to the police and the sexual assault nurse examiner, but also conflicted

with his own initial account to the police, where he indicated that he “thought [G.F.] was

asleep.” Furthermore, McCary’s testimony that he provided exculpatory statements in a

second interview that the police failed to record may have eroded his credibility further in

the eyes of jury, especially given rebuttal testimony from police officers denying that any

such second interview occurred.

{¶ 45} The record provides no basis to conclude either that the instruction given

by the trial court was erroneous or that any error in that instruction (although we find none)

was so prejudicial that it might have induced an erroneous verdict. McCary’s second

assignment of error is overruled.

Conclusion

{¶ 46} The judgment of the trial court will be affirmed.

.............
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WELBAUM, P.J. and TUCKER, J., concur.

Copies sent to:

Mathias H. Heck
Michael P. Allen
Carl Bryan
Hon. Michael W. Krumholtz