State v. Carver

[Cite as State v. Carver, 2020-Ohio-4984.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA17
:
vs. :
:
JAMES E. CARVER, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________

Smith, P.J.:

{¶1} James E. Carver appeals the judgment entry of the Highland

County Common Pleas Court, dated August 9, 2019. After a jury trial,

Carver was convicted of several counts, including the murder and rape of

Heather Camp. On appeal, Carver challenges the sufficiency of the evidence

of his convictions. He also asserts that the trial court erred by allowing his

interview with a detective to be played in its entirety, in violation of the

corpus delicti rule. However, upon review of the record, we find no merit to
Highland App. No. 19CA17 2

Carver’s arguments. Accordingly, we overrule both assignments of error

and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} On April 2, 2019, James E. Carver, “Appellant,” was indicted as

follows:

Count 1: Murder, R.C. 2903.02(A), an unclassified felony;

Count 2: Specification that Offender Displayed, Brandished,
Indicated Possession of, or Used a Firearm, R.C.
2941.145;1

Count 3: Rape, R.C. 2907.02, a felony of the first degree;

Count 4: Having Weapons while Under Disability, R.C.
2923.13(A)(2), a felony of the third degree;

Count 5: Domestic Violence, R.C. 2919.25 (A), a felony of
the third degree; and,

Count 6: Tampering with Evidence, R.C. 2921.12(A)(1), a
felony of the third degree.

{¶3} The indictment arose from activities and conduct which occurred

in Highland County on or about Sunday, February 17 through Tuesday,

February 19, 2019. Appellant and Heather Camp, the victim, had an

intermittent romantic relationship. On the evening of Sunday, February 17,

2019, they were traveling together in a black Chevy Trailblazer when

1
The trial court later ordered the counts be renumbered for purposes of trial. Count 2 was submitted to the
jury as a specification finding under Count 1, rather than as an independent count.
Highland App. No. 19CA17 3

Heather was shot in the chest at close range. The evidence demonstrates that

Heather was bleeding internally immediately and supports the conclusion

that her last 48 hours of life were lived in agony.

{¶4} During an interview with Detective Vincent Antinore of the

Highland County Sheriff’s Office, Appellant told the detective that after the

shooting, Heather and he went back to his camper and had sex. According to

Appellant, Heather only complained of her back hurting slightly. According

to Appellant, Heather did not want to go to the hospital for treatment

because she had outstanding warrants.

{¶5} Appellant also advised the detective that on the next evening,

Monday, February 18th, he became concerned about Heather’s condition so

he took her to the home of his friends, Bobby and Kalie Kinnison. The

Kinnisons lived in Greenfield. Appellant said that he and Heather slept at

the Kinnisons’ that evening and did not engage in sex. However, about 3:00

a.m. on Tuesday, February 19, 2019, Heather indicated she had to use the

bathroom. When Appellant attempted to assist her to the bathroom, she

urinated on herself.

{¶6} The record demonstrates that around 5:00 a.m. on the 19th,

Bobby Kinnison took Heather to the Greenfield Adena Medical Center

emergency room (ER). Kinnison told hospital personnel that he found
Highland App. No. 19CA17 4

Heather in the street. Immediate attempts to resuscitate Heather were

unsuccessful.

{¶7} Later that week, Appellant was located at an apartment in

Dayton, Ohio and taken into custody. As indicated above, Appellant gave

an interview. During the interview, Appellant related to the detective

several versions describing the circumstances of Heather’s shooting and the

circumstances which transpired the following two days. Appellant advised

that the weapon used was a .22 Ruger pistol and eventually advised where

the weapon could be located. Appellant consistently maintained that

Heather’s shooting was not purposeful but occurred as the result of a

struggle with the gun.

{¶8} Appellant proceeded to a jury trial in August 2019. The State of

Ohio called various lay and expert witnesses, including medical and law

enforcement witnesses. The State also called Ray Dunihue, who supplied

the gun to Appellant, and the Kinnisons. The testimony presented at trial is

summarized as follows.

{¶9} Dr. Jill Eippert, emergency physician at Greenfield Adena

Medical Center, testified Heather Camp was brought to the ER at 5:15 a.m.

on February 19, 2019. Dr. Eippert first encountered Heather in the
Highland App. No. 19CA17 5

resuscitation room where a Lucas device2 had been applied to Heather’s

chest. At this point, Dr. Eippert was not aware Heather had been shot.

Resuscitation was not successful so Heather was intubated. During

intubation, Dr. Eippert noticed Heather’s jaw was stiff. On cross-

examination she testified that rigor mortis had set in.

{¶10} When Dr. Eippert intubated Heather is when she first noticed

Heather’s head and facial injuries. Dr. Eippert described “deep dark bruises

around both eyes.” Her eyelids were “swollen shut.” Dr. Eippert told the

registrar to call the police because it looked like physical harm was

potentially the reason for the death. Dr. Eippert was also concerned about

internal injuries, so she ordered an ultrasound to look at Heather’s abdomen

and heart. The test revealed blood in the abdomen.

{¶11} Dr. James McKown, Highland County coroner’s investigator,

arrived at the ER at 6:45 a.m. After speaking with Dr. Eippert, Dr. McKown

viewed Heather Camp lying on a gurney and immediately noticed extensive

physical damage to Heather’s face and upper torso, indicative of a

suspicious death. Dr. McKown took various photographs of Heather’s

injuries and tattoos. He was the first person to identify Heather’s gunshot

wound. Dr. McKown specifically testified Heather Camp had extensive

2
According to https://www.lucas-cpr.com/whylucas, this device provides safer chest compressions and
there is no need to switch CPR providers every two minutes.
Highland App. No. 19CA17 6

bruising around the eyes on both sides; an extensive bruise on the forehead;

a bruise on the chin and right side of the head; and bruises of differing ages

on the upper arms and torso. Dr. McKown determined Heather would need

to be sent to the Montgomery County Medical Examiner for an autopsy.

Heather Camp was a “Jane Doe” at this point.

{¶12} Montgomery County assistant deputy coroner, Dr. Bryan Casto,

testified that Heather Camp’s head, hair, and face were beaten and bloody.

He performed the autopsy and prepared a report on February 19, 2019. Dr.

Casto identified photographs of Heather’s external injuries. Based upon a

reasonable degree of medical certainty, Dr. Casto opined Heather’s cause of

death was a gunshot wound to the torso. She was shot at close range, an

inch or less away. Dr. Casto’s testimony will be discussed further below.

{¶13} Dr. Jeff Beery, Highland County Coroner, testified he prepared

the death certificate and determined the manner of death was homicide. Dr.

Beery opined that Heather’s face showed evidence of a severe beating. Dr.

Beery opined death occurred at 3:00 a.m. on the 19th with a range of three

hours either way. He also testified it was common for a person’s bladder to

release at the moment they pass. To a reasonable degree of medical

certainty, Dr. Beery opined Heather’s cause of death was a near-range

gunshot wound to the torso.
Highland App. No. 19CA17 7

{¶14} Robert Buzzard, an FBI agent, testified that on February

21, 2019 at 6:45 p.m., he and other FBI task force members located

Appellant at a residence on East Third Street in Dayton. He was taken

into custody.

{¶15} Mary Camp, Heather’s mother, testified she had daily contact

with Heather. Heather and Appellant lived together at times. Prior to

Heather’s death, Mary was trying to get Heather to turn herself in because

she had outstanding warrants.3

{¶16} On February 18th, Mary became concerned about Heather’s

whereabouts because she had not heard from Heather. Mary texted

Appellant to attempt to get in touch with Heather. On Monday, February

18th, Appellant assured Mary through text that Heather was fine. Mary’s

text conversations with Heather and with Appellant were admitted as

exhibits.

{¶17} Tyler Lawrence testified that on Sunday, February 17th, 2019,

Heather and he went to Wal-Mart in Hillsboro and then to Wilmington.

While they were on their way to Wilmington, they saw Appellant in a

Trailblazer following them. They drove faster to avoid him. However, later,

around 4:00 p.m. or 5:00 p.m., Lawrence drove Heather to meet Appellant

3
According to the Clinton County, Ohio Clerk of Courts online records, Heather had failed to appear in
Clinton County on December 14, 2018, for hearings in several open criminal cases.
Highland App. No. 19CA17 8

for dinner at El Dorado in Wilmington. On February 19, 2019, Lawrence

took officers to Appellant’s camper.

{¶18} Roy Dunihue testified that Appellant texted him on Sunday,

February 17, 2019, and asked to borrow a gun. Dunihue provided Appellant

with a .22 pistol he had previously obtained from a friend in Fayette County.

At about dark Appellant arrived in front of Dunihue’s house. Dunihue took

the gun out to Appellant’s vehicle. The gun was in a holster, loaded, with

the safety on when he gave it to Appellant. Heather Camp was sitting in the

front seat with Appellant. Dunihue identified State’s Exhibit 1, a Ruger .22

Mark 1, as the gun he gave Appellant.

{¶19} Dunihue further testified that Appellant texted a couple of days

later and indicated he had placed the gun in Dunihue’s truck. Dunihue then

took the gun to his friend’s house and put it in a barn. The gun was not

returned with the holster. Dunihue assisted Highland County Sheriff’s

officers with retrieving the gun on February 22, 2019.

{¶20} Bobby and Kalie Kinnison lived in Greenfield with their

children. They recalled many of the same facts in their testimony. On

Sunday, February 17, 2019, they had both been “up” for days, having used

drugs. Appellant stopped by their home on the 17th for the purpose of drug
Highland App. No. 19CA17 9

trafficking. Bobby Kinnison testified that Appellant messaged him on the

18th and said somebody had been shot and to open the garage.

{¶21} Upon their arrival around 8:00 or 8:30 p.m., Heather Camp was

with Appellant. She was swollen and bruised and looked like she had been

beaten. Appellant told them another man shot Heather, trying to shoot

Appellant. Appellant and Bobby carried Heather upstairs from the garage to

the living room and placed her on a futon. Upon observing Heather’s

conditions, both Kalie and Bobby told Appellant repeatedly that she needed

to go to the hospital. Appellant told them Heather had outstanding warrants

and didn’t want to go to jail. Appellant acted “indifferent, agitated.”

{¶22} Kalie observed Heather’s injuries: “Her face had been badly

bruised; her eyes were swollen shut; she had swelling around her rib-cage

and very labored breathing.” Heather showed Kalie a bullet wound in the

center of her chest. She repeatedly said her left shoulder hurt and was

having a lot of pain in her left side. Kalie helped Heather into a sitting

position and examined her back. There was no exit wound.

{¶23} Kalie testified Heather was “still slightly lucid, uh, she could

still move around a little bit, uh, she could move her arms; but other than

that, she needed…at that point she needed help.” Kalie testified as she was

assisting Heather, Appellant was standing over Kalie’s shoulder.
Highland App. No. 19CA17 10

{¶24} The Kinnisons both testified that Kalie contacted her own

mother, Mandy Knisley, to look at Heather. They recalled that Appellant

and Bobby helped Heather downstairs to the garage for the purpose of taking

her to the hospital. However, moments later, they brought Heather upstairs

again. Kalie moved the futon from the living room to a bedroom. Bobby

and Appellant carried Heather to the bedroom.

{¶25} Bobby testified that while in the garage he overheard a

conversation between Appellant and Heather. She wanted to go to the

hospital. Appellant said: “Straighten up, bitch,” and he slapped her face.

At this point Bobby suggested bringing Heather back upstairs because he

wasn’t sure what was going to happen to her.

{¶26} Appellant and Heather stayed in one bedroom together. Kalie

locked herself and her children in another bedroom. Bobby Kinnison sat up

all night in the living room. Around 5:00 a.m. Bobby took Heather to the

hospital and told them he found Heather down the street. He did not tell

them she had been shot. He did not know Heather was already dead, but

when he carried her, he noticed she felt limp.

{¶27} The next morning, Kalie drove Appellant’s Trailblazer to take

her daughter to school. Kalie found a .22 shell casing on the passenger side

floor-board. The Kinnisons testified they put the shell casing in a cell phone
Highland App. No. 19CA17 11

box with other bullets in a kitchen cabinet. Appellant left around 9:00 or

10:00 a.m. He returned later in the day with a girl, C.G. Appellant seemed

nervous and “on edge.” C.G. told Bobby to put seat covers on the

trailblazer.

{¶28} Both Kinnisons acknowledged they were not initially truthful

with law enforcement officers because of their fear of Appellant. Kalie was

terrified something would happen to her family. She described Appellant as

“menacing” and testified Appellant had ties with people he called “The

Brotherhood.” Bobby testified he was scared of getting into trouble and

scared of Appellant. Since that time, both have completed drug

rehabilitation and Bobby is employed.

{¶29} On cross-examination, Kalie admitted that Heather did say

twice that she didn’t want to go to the hospital because she had warrants and

would go to jail. On cross-examination, Bobby admitted he was getting

drugs from Appellant and re-selling them out of his home. He admitted that

when he first talked to the police he didn’t tell them Appellant slapped

Heather.

{¶30} Mandy Jo Knisley, Kalie’s mother, acknowledged her felony

record and testified she was currently undergoing drug rehabilitation. When

Mandy arrived at the Kinnisons’ home, Heather was lying on a futon.
Highland App. No. 19CA17 12

Mandy described Heather: “She was just very beaten. She was just really

tiny. Her eyes were swollen; her lips were black; and she was laying there

by herself.” Mandy took Heather’s hand. Heather was spitting blood clots

out of her mouth. Appellant explained that someone shot a bullet that

grazed Heather. Mandy examined Heather, saw the bullet hole, and said

“This doesn’t look like a graze.”

{¶31} Mandy testified she tried to comfort Heather. Heather’s eyes

were shut. Appellant was pacing. Mandy asked Heather if she wanted help,

if she wanted to go to the hospital. Heather indicated “that she did; that she

didn’t want to die.” Appellant then said: “No. She’s not going to the

hospital.” Appellant told Mandy this was because Heather had a warrant,

“he loved her, and he didn’t want her to go to the hospital.” Mandy testified

she told Appellant several times that he needed to take Heather to the

hospital. As she left, Appellant was putting Heather in the passenger seat of

the car.

{¶32} Haydee Lara, a forensic DNA analysist with the Ohio Bureau

of Criminal Investigation (BCI) prepared a DNA report, Exhibit 16. Ms.

Lara’s opinions were given within a reasonable degree of medical certainty.

Lara testified she tested nipple swabs taken from Heather Camp’s breasts.

She also tested oral swabs taken from Appellant. The nipple swabs
Highland App. No. 19CA17 13

contained a DNA mixture consistent with Heather Camp and Appellant. She

testified that Exhibit 21, a pair of boots with blood stains, also contained a

DNA mixture of Heather and Appellant inside the left boot.

{¶33} Andrew McClelland, a forensic firearm examiner with BCI,

identified State’s Exhibit 1 and State’s Exhibit 24. Exhibit 1 was a Ruger

model .22 caliber long rifle semiautomatic pistol. Exhibit 24 was

McClelland’s report on a test of the gun. McClelland testified to a

reasonable degree of scientific certainty that the firearm was in good

working order.

{¶34} McClelland testified about the gun’s safety mechanism. He

explained that if placed into the safe position the firearm will not fire when

the trigger is pulled. In order to fire the safety must be disengaged.

McClelland testified a person would have to first take the safety off and then

pull the trigger to make it fire.

{¶35} Lieutenant Brian McNeil of the Greenfield Police Department

searched the Kinnisons’ residence in Greenfield. He testified the residence

was approximately one city block from the Greenfield ER. Lieutenant

McNeil identified photographs taken at the Kinnison residence: a futon

where Heather Camp was placed; a box inside a kitchen cupboard containing

.22 caliber cartridges; the box itself; the cartridges; a spent shell casing
Highland App. No. 19CA17 14

removed from the box. He also identified photographs of a trash bag on the

front porch and black boots recovered from the trash bag at the Kinnisons’

residence. He placed the items into evidence. Lieutenant McNeil also

assisted in executing a search warrant of Appellant’s black Chevy

Trailblazer.

{¶36} Detective Randy Sanders of the Highland County Sheriff’s

Office located Mary Camp and advised her of Heather’s death. He also

interviewed Heather’s sister, Brandy Camp, and Tyler Lawrence. Lawrence

then took them to Appellant’s camper in Highland County and to the

Kinnisons’ residence in Greenfield. The Kinnisons were initially

interviewed separately. Detective Sanders testified that after Bobby

understood the gravity of the situation, he “broke down” and started crying

and asked to go inside where Kalie was and “get the story straight.”

{¶37} Detective Sanders assisted Detective Antinore in preparing a

search warrant for the camper and assisted in serving the warrant and

searching the camper. He identified photographs of the camper and items

found inside it. The officers found male and female clothing. The camper’s

wall had “James and Heather” written on it. Officers found three bags of

clothing, one containing a pink bra with blood on it and a gray shirt with a

hole and with blood on it. In the bag which contained the bra and shirt,
Highland App. No. 19CA17 15

officers also found three identification cards, one an Ohio Women and

Children’s Program (WIC) card, issued to Heather Camp. Photographs of

the bed showed blood stains on the sheets.

{¶38} On February 21st, officers contacted BCI for assistance in

locating Appellant. Eventually, a license plate reader hit on Appellant’s

vehicle at East Third Street in Dayton.4 Detective Sanders contacted Agent

Buzzard. Buzzard located the Trailblazer in a parking lot on East Third

Street. Appellant was taken into custody.

{¶39} Detective Sanders assisted in searching the East Third Street

apartment and discovered trash bags. One of the trash bags contained boots.

The officers also located a pair of pants with blood stains on them which

came out of a purple Adidas bag.5 They also found Appellant’s wallet.

{¶40} Detective Sanders and other officers went to Roy Dunihue’s

residence in Highland County. Dunihue ultimately took them to a barn in

Fayette County where a .22 Ruger semiautomatic pistol in a plastic bag was

retrieved from a dryer. Detective Sanders identified photographs of the

ammunition and State’s Exhibit 1, the Ruger .22 pistol.

4
A license plate reader attached to a police cruiser logs license plates as the cruiser passes them, recording
the time and location the plate was read.
5
In his interview with Detective Antinore, Appellant explained he had put items in the trash bags to
“downsize.” He also acknowledged ownership of the Adidas bag.
Highland App. No. 19CA17 16

{¶41} Detective Vincent Antinore attended the autopsy. He testified

it was difficult to identify Heather Camp at first because of the “bruising and

apparent beating she had taken.” He assisted in locating Heather’s family

and interviewed Tyler Lawrence, who identified Bobby Kinnison and

directed them to Appellant’s camper. Detective Antinore also assisted with

execution of the search warrant on the camper on February 20th. Over the

next 2 days, he and Detective Sanders focused on apprehending Appellant.

{¶42} Detective Antinore testified about his interview with Appellant.

Detective Antinore testified he had received specialized training in

interviewing suspects. He had been trained to befriend a suspect; “get on the

same level” as the suspect; suggest an “alternate” explanation for the

circumstances of the crime; and establish a bond with the suspect. Detective

Antinore identified State’s Exhibit 122, a disk copy of the actual interview

which he conducted with Appellant.

{¶43} At this point, defense counsel objected, based upon the corpus

delicti rule, to playing any parts of the interview where Appellant referenced

having sex with Heather Camp. After some discussion, the trial recessed for

lunch. After returning from lunch, the court stated:

Counsel, I want to go back and revisit the issue of the tape.
***Because I’m concerned about the corpus delecti rule here.
***The objection was that there has not been independent
evidence of the crime of rape established; therefore, the corpus
Highland App. No. 19CA17 17

delecti rule would prevent the admission of the statements of
the defendant that he engaged in sexual conduct with the
victim. Does that accurately state your objection, right?

{¶44} Defense counsel agreed. After further lengthy discussion, the

trial court overruled the objection. The interview between Detective

Antinore and Appellant was played for the jury.

{¶45} At the conclusion, Detective Antinore testified that he was able

to confirm that Appellant and Heather went to Frisch’s and Burger King on

Monday, February 18th. Surveillance video from Frisch’s demonstrated

Appellant was driving the black Trailblazer. He also testified that in driving

from Frisch’s to Burger King, one would drive past the Highland District

Hospital emergency room.

{¶46} Detective Antinore also testified he assisted with the search

warrant executed on the Trailblazer on February 24th. He identified

photographs of the vehicle as it appeared on February 24th. He also

obtained a search warrant for Appellant’s phone in order to view text

messages and Facebook messages. He identified photographs of text

conversations of Appellant. In one exhibit, Appellant asked an unidentified

person to stop by his camper and remove Heather’s belongings.

{¶47} Detective Antinore thereafter testified to Appellant’s criminal

history of domestic violence convictions. He also testified he swabbed
Highland App. No. 19CA17 18

Appellant’s mouth for DNA. He identified the blue jeans that Appellant was

wearing when Heather was shot. Appellant testified that the jeans were

removed from the Adidas bag. He also identified the pink bra and gray shirt

with blood stains. On cross-examination, Detective Antinore acknowledged

that in the interview, Appellant never explicitly stated “I pulled the trigger

and I meant to shoot her.”

{¶48} After Detective Antinore’s testimony concluded, the State

offered its exhibits and rested. Defense counsel made a Crim.R. 29 motion

for acquittal. Specifically, defense counsel argued as to the murder charge,

that the State had presented no evidence that Appellant purposely caused

Heather Camp’s death. As to the rape charge, counsel argued that the State

had to prove that Appellant knew or should have known that Heather Camp

was unable to consent or to physically resist. He argued that no evidence

had been produced as to that element. The trial court overruled the motion.

{¶49} The jury returned guilty verdicts on murder, rape, assault, and

tampering.6 Appellant was sentenced to a total of 33 years to life in prison.

This timely appeal followed. Where pertinent, we set forth additional facts

below.

6
The jury did not convict Appellant of domestic violence. Instead, he was convicted of the lesser included
offense of assault.
Highland App. No. 19CA17 19

ASSIGNMENTS OF ERROR

“I. THE COURT ERRED IN ALLOWING THE INTERVIEW
TO BE PLAYED WITHOUT REDACTING THE
DISCUSSION ON SEX.

II. THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT IT WAS MURDER
INSTEAD OF RECKLESS HOMICIDE OR THAT IT WAS
RAPE.”

ASSIGNMENT OF ERROR ONE - CORPUS DELICTI RULE

{¶50} Under the first assignment of error Appellant asserts the

trial court erred in allowing the State to play for the jury the portion of

Appellant’s interview in which he discusses alleged consensual sex with

Heather Camp prior to her death. Appellant made a timely objection on this

ground at trial. Appellant’s argument raises the issue of the proper

application of the corpus delicti rule in this case.

STANDARD OF REVIEW

{¶51} We review a trial court's decision as to whether the State

established the corpus delicti of a crime under a manifest weight of the

evidence standard. See State v. Whiting, 4th Dist. Ross, No. 18CA3672,

2019-Ohio-5471, at ¶ 36. See In re W.B. II, 4th Dist. No. 08CA18-2009-

Ohio 1707, ¶ 31 and 32. Thus, we will uphold the trial court's decision as

long as the record contains some competent and credible evidence

independent of the defendant's confession to establish that a crime occurred.
Highland App. No. 19CA17 20

See e.g., State v. Maranda, 94 Ohio St. 364, 114 N.E. 1038, paragraphs one

and two of the syllabus (1916); W.B. at ¶ 32.

LEGAL ANALYSIS

1. Corpus Delicti Rule.

{¶52} “ ‘The corpus delicti of a crime is essentially the fact of the

crime itself.’ ” Whiting, supra, quoting State v. Young, 4th Dist. Washington

No. 12CA14, 2013-Ohio-3418, at ¶ 27, quoting State v. Hofer, 4th Dist.

Adams No. 07CA835, 2008-Ohio-242, ¶ 36; see also State v. Haynes, 130

Ohio App.3d 31, 34, 719 N.E.2d 576 (1998). The corpus delicti of a crime

“is comprised of ‘(1) the act [and] (2) the criminal agency of the act.’ ”

Young, supra, quoting State v. Maranda, supra, at paragraph one of the

syllabus; see also State v. Edwards, 49 Ohio St.2d 31, 34, 358 N.E.2d 1051

(1976), vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147 (1978); State

v. Van Hook, 39 Ohio St.3d 256, 261, 530 N.E.2d 883 (1988). See also In re

W.B., II, supra, at ¶ 33-34; State v. Puckett, 2010-Ohio-6597, 947 N.E.2d

730, ¶ 16 (4th Dist.).

{¶53} The Supreme Court of Ohio noted in Maranda, “[i]t has long

been established as a general rule in Ohio that there must be some evidence

outside of a confession, tending to establish the corpus delicti, before such

confession is admissible.” Maranda at paragraph two of the syllabus; see
Highland App. No. 19CA17 21

also Young at ¶ 27. Thus, a court may not admit an extrajudicial confession

unless the State has produced independent evidence of the corpus delicti of a

crime. Maranda at paragraph two of the syllabus; Hofer at ¶ 36; Young at ¶

27.

{¶54} Our own court, in Whiting, observed:

The quantum or weight of such outside or extraneous evidence
is not of itself to be equal to proof beyond a reasonable doubt,
nor even enough to make it a prima facie case. It is sufficient if
there is some evidence outside of the confession that tends to
prove some material element of the crime charged. (Emphasis
added).

Id. at ¶ 39, quoting Maranda at paragraph two of the syllabus; see also State

v. Edwards, supra, at ¶ 34; State v. Young, supra, at ¶ 27. Further, the

outside or extraneous evidence may be direct or circumstantial. Whiting at

¶ 40; Young at ¶ 27, citing Maranda at 371; see also State v. Nicely, 39 Ohio

St.3d 147, 154-155, 529 N.E.2d 1236 (1988) and State v. Clark, 106 Ohio

App.3d 426, 431, 666 N.E.2d 308 (1995).

{¶55} In this case, the State was allowed by the trial court to play an

unredacted version of Appellant’s interview with Detective Antinore for the

jury. In that interview, Appellant states several times that he had sex with

Heather Camp at his camper after she was shot. The trial court allowed the

entire interview to be played on the basis that the State had some evidence

on one of the elements of rape. The State had argued that the coroner’s
Highland App. No. 19CA17 22

testimony showed that Heather would have been in pain. The State

persuaded the trial court that the coroner’s testimony was enough to meet the

element of “inability to consent due to substantial impairment. “

{¶56} Appellant argues this is simply not enough to rise to a level of

substantial impairment. Appellant points out women often have consensual

sex while in pain or not physically well. Appellant further points out the

evidence that: (1) Heather Camp was shot sometime Sunday evening and

the consensual sex occurred that same evening; (2) both Appellant and

Heather appeared at Frisch’s the following evening; (3) Heather was still

capable of communicating and walking when she arrived at the Kinnisons’

on Monday evening. Appellant emphasizes that although the standard of

“some evidence * * * that tends to prove a material element of the crime

charged” is lower than reasonable doubt, the evidence provided must be

more than “anything goes.” For the reasons which follow, we disagree with

Appellant.

{¶57} As set forth above in Maranda and most recently in Whiting,

the corpus delicti rule is clear that “some evidence [direct or circumstantial]”

is sufficient. In this case, Appellant was convicted of rape, pursuant to R.C.

2907.02(A)(1)(c) which provides:

(A)(1) No person shall engage in sexual conduct with another
who is not the spouse of the offender or who is the spouse of
Highland App. No. 19CA17 23

the offender but is living separate and apart from the offender,
when any of the following applies:
***
(c) The other person's ability to resist or consent is substantially
impaired 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 substantially
impaired because of a mental or physical condition * * *.

{¶58} In response to the defense objection, the prosecutor focused on

the “substantial impairment” element as set forth above. The prosecutor

argued:

So my question then: A material element of rape. But, it
doesn’t have to be only a material element of the sexual assault
part of it; there are other elements to that crime. * * * [Her
physical condition is such that…and we have that testimony. *
* * That she was in bad shape that night; that she would have
been bleeding out immediately; that she would have been in
serious pain; that Gabapentin wouldn’t even have dulled the
pain, wouldn’t have done anything for her. We have that
testimony. So, we have that element.

{¶59} Defense counsel disagreed, indicating that the testimony

regarding Heather Camp’s weakened state and impairment was in reference

to the following day. Defense counsel also pointed out there was no

evidence of cognitive impairment. The prosecutor directed the court and

counsel to the Puckett and Maranda cases. After consideration, the trial

court overruled the objection.

{¶60} We believe the trial court properly analyzed the testimony and
Highland App. No. 19CA17 24

the corpus delicti rule in this case. Haydee Lara, the forensic expert,

testified that she tested the oral swabs taken from Appellant. She also

examined the nipple swabs taken from Heather Camp’s body and

determined the DNA mixture from the nipple swabs to be consistent with

both Heather and Appellant. We agree with the trial court’s conclusion that

there was evidence of sexual contact and possible sexual conduct. We also

agree with the trial court’s conclusion that Dr. Casto, the deputy coroner

who provided expert testimony, provided some evidence that Appellant

knew or had reasonable cause to believe that Heather Camp’s ability to resist

or consent was substantially impaired because of her physical condition.

{¶61} Dr. Casto identified State’s Exhibit 6, the autopsy report

of Heather Camp. He also identified various photographs of

Heather’s body which demonstrated her external injuries: blackened

“raccoon eyes”; a forehead abrasion; a contusion on her nasal bridge;

extensive bruising on her scalp; a large bruise on the right breast area;

scattered bruising of varying colors on her extremities; a bruise on her

buttock. Dr. Casto testified when he removed the medical equipment

on Heather’s chest, he discovered the gunshot wound.

{¶62} Dr. Casto’s autopsy report also documented Heather’s internal

injuries. He testified the bullet grazed her aorta and went through her liver,
Highland App. No. 19CA17 25

esophagus and diaphragm, lodging in her spine. Dr. Casto found blood in

the chest cavity and her belly, testifying that she had over 2 liters of internal

blood loss. Dr. Casto testified, given her size, she had lost a lethal amount

of blood, almost half of her blood, internally. The immediate cause of death

was the blood loss. Based on a reasonable degree of medical certainty, Dr.

Casto opined that she was shot at close range.

{¶63} Dr. Casto opined that Heather was shot with a small caliber

weapon and the bullet just grazed her aorta and lodged in her spine instead

of having an entrance and exit. This explained why she lived a few days

instead of just a few minutes. Dr. Casto described Heather’s physical

condition after suffering the injury, qualifying that he could not be specific:

Would she have pain with this injury? Certainly. Okay, uh,
very early on in the process. Uh, eventually as the bleeding
becomes more brisk and more life threatening, she’ll have other
symptoms, now when that happened, I do not know, right? Uh,
but you would expect a loss or drop in your blood pressure;
your color may change; you may feel cold; you may feel dizzy,
nauseous; you know, lots of things are going to decline as the
blood loss into the chest and abdomen becomes worse and
worse.

{¶64} On cross examination, Dr. Casto testified:

[K]eep in mind, everything else is bleeding, the liver, the
esophagus, the diaphragm, all those are bleeding from point
Highland App. No. 19CA17 26

zero. I mean they began bleeding immediately, there was a
wind path through them…7

{¶65} He also testified regarding the toxicology report. It detected

Gabapentin, amphetamine and methamphetamine. He testified Gabapentin

is supposed to dull nerve pain but he did not know if it would dull “this kind

of pain” or not.

{¶66} Did Dr. Casto’s testimony provide some evidence of substantial

impairment because of her physical condition? Our research has not yielded

any cases with similar fact patterns involving persons substantially impaired

due to physical injury. Many cases have discussed the definition of

“substantial impairment” in the context of cases involving victims who were

mentally disabled or under the influence of intoxicating substances. At least

one of these cases has provided some guidance.

{¶67} State v. Foster, 8th Dist. Cuyahoga No. 108340, 2020-Ohio-

1379, involved allegations of rape of a substantially impaired victim who

went back to Foster’s hotel room after a night of drinking with other

persons, but not with Foster. Foster and the alleged victim met in a cab.

Foster acknowledged having consensual sex with the accuser. He was

convicted of “substantial impairment rape,” R.C. 2907/02(A)(1)(c). On

7
On redirect, he clarified that as soon as the bullet struck the liver and the esophagus, it started
bleeding heavily from those two spots.
Highland App. No. 19CA17 27

appeal the issue was whether Foster knew or had cause to believe victim was

substantially impaired. Foster’s conviction was overturned. In its decision

the appellate court noted there was no testimony that Foster was aware of the

victim’s consumption of a large quantity of alcohol, and none of the State’s

witnesses who interacted with the victim prior to the sexual incident testified

that she showed specific signs or indications of substantial impairment such

that Foster would have or should have known that her ability to consent to

sexual conduct was substantially impaired.

{¶68} The Foster court observed that the term “substantially

impaired” is not statutorily defined and therefore, the term must be given the

meaning “ ‘generally understood in common usage.’ ” Id. at 42, quoting

State v. Zeh, 31 Ohio St.3d 99, 103, 509 N.E.2d 414 (1987). The State can

show substantial impairment by offering evidence “demonstrating a present

reduction, diminution or decrease in the victim's ability, either to appraise

the nature of [her] conduct or to control [her] conduct.” Foster, supra,

quoting, Zeh, at 103-104, 509 N.E.2d 414. Moreover, “substantial

impairment does not have to be proven by expert medical testimony; rather,

it can be shown to exist by the testimony of people who have interacted with

the victim.” Foster, supra, at 45, quoting State v. Brady, 8th Dist. Cuyahoga
Highland App. No. 19CA17 28

No. 87854, 2007-Ohio-1453, at ¶ 78; see also State v. Jones, 8th Dist.

Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 43.

{¶69} Foster further observed:

A person's conduct becomes criminal only when engaging in
sexual conduct with an intoxicated victim when that person
knows or has reasonable cause to believe that the victim's
ability to resist or consent is substantially impaired because of
her intoxication. State v. Noernberg, 8th Dist. Cuyahoga No.
97126, 2012-Ohio-2062, ¶ 11; State v. Rivera, 8th Dist.
Cuyahoga No. 97091, 2012-Ohio-2060, ¶ 22; and State v.
Martin, 12th Dist. Brown No. CA99-09-026, 2000 WL
1145465 (Aug. 12, 2000). “A person acts knowingly, regardless
of his purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that
such circumstances probably exist.” R.C. 2901.22(B).

Foster, at ¶47.

Whether an offender knew or had reasonable cause to believe
the victim was impaired may be reasonably inferred from a
combination of the victim's demeanor and others' interactions
with the victim. Jones, 8th Dist. Cuyahoga No. 101311, 2015-
Ohio-1818, at ¶ 43, citing State v. Novak, 11th Dist. Lake No.
2003-L-077, 2005-Ohio-563, ¶ 25. Evidence 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. King at ¶ 20;
State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927
N.E.2d 632, ¶ 50 (2d Dist.).

Foster, at 48. Foster also referenced State v. Keller, 8th Dist. Cuyahoga No.

106196, 2018-Ohio-4107 (where defendant was present during entire

evening when the victim consumed alcohol and smoked marijuana and
Highland App. No. 19CA17 29

drove her to their friend’s house knowing she could not drive her vehicle due

to her intoxication), and State v. Freeman, 8th Dist. Cuyahoga No. 95511,

2011-Ohio-2663 (defendant sent into motion a scenario where a 15-year-old

victim ended up in the defendant’s van where he supplied potent drugs to

her.)

{¶70} Based upon our review of the pertinent law and the facts of this

case, we find Dr. Casto’s testimony provided some evidence of Heather

Camp’s substantial impairment based upon her physical condition. Dr.

Casto testified she would have been in physical pain “very early on in the

process.” He testified her liver, esophagus, and diaphragm were “bleeding

immediately.”

{¶71} In addition, Appellant’s interview provides additional evidence

of her physical condition after the shooting. In Foster, the court noted that

evidence of substantial impairment is not required to be from expert

witnesses but may be from persons who have interacted with a victim.

While in Foster the defendant didn’t know the alleged victim was drunk and

saw no signs of mental or physical impairment, here Appellant did interact

with Heather Camp after the shooting. Again, a person has knowledge of

circumstances when he is aware that such circumstances probably exist.

R.C. 2901.22(B).
Highland App. No. 19CA17 30

{¶72} Appellant knew or had reasonable cause to believe she was

physically impaired. In the portions of the interview which were not

objected to, Appellant told Detective Antinore that when they went back to

the camper, she walked with his assistance and told him her back hurt.

According to Appellant, Heather asked him to “try to get her some pain

pills.” Appellant stated in the interview, “You can tell she’s not 100%.”

{¶73} The Foster court also noted the State can show substantial

impairment by offering evidence demonstrating “a present reduction * * *

in the victim’s ability, either to appraise the nature of [her] conduct or to

control [her] conduct.” By the time Heather Camp, with a close-range

gunshot wound to the chest, reached Appellant’s camper in rural Highland

County, the evidence suggests a reduction in her ability to control her

conduct. With immediate internal bleeding, her need for assistance with

walking, back pain, and request for pain medication, it is unlikely that

Heather could have controlled her “physical conduct.” It is unlikely that she

could have escaped Appellant’s Trailblazer or escaped his camper and

gotten away from him under the circumstances of her substantially impaired

physical condition.

{¶74} While the trial court and parties focused on Heather’s

substantially impaired physical condition, arguably, Appellant knew or had
Highland App. No. 19CA17 31

reasonable cause to believe that Heather’s ability to consent was

substantially impaired because of her mental condition. We are mindful that

all medical witnesses and experts testified that Heather’s face, head, and

scalp were badly bruised and beaten, so much so that her eyes were swollen

shut. In fact, the evidence demonstrates that she appeared to be badly beaten

about the head when she arrived at the Kinnisons’. Dr. Casto’s testimony

noted “early cerebral edema,” which according to him meant swelling of the

brain. In his interview, Appellant said immediately after Heather was shot,

she said “Motherfucker, you shot me.” At that point of the interview,

Appellant told Detective Antinore, “She’s not fine. Like in shock.” All this

testimony suggests that Heather’s mental condition was also impaired.

{¶75} For the foregoing reasons, we find the trial court did not err in

its analysis of the corpus delicti rule. We find there was some evidence that

Heather Camp’s physical condition was substantially impaired. This was

some evidence of a material element of the crime of rape. Therefore, the

trial court did not err by overruling Appellant’s objection to playing portions

of the interview with Detective Antinore in which Appellant discussed

consensual sex. As such, we find no merit to Appellant’s argument that the

trial court erred in allowing the full interview to be played and without
Highland App. No. 19CA17 32

redacting the portions referring to consensual sex. Accordingly, the first

assignment of error is overruled.

ASSIGNMENT OF ERROR TWO -
SUFFICIENCY OF THE EVIDENCE

STANDARD OF REVIEW

{¶76} “ ‘A claim of insufficient evidence invokes a due process

concern and raises the question of whether the evidence is legally sufficient

to support the verdict as a matter of law.’ ” Whiting, supra, at ¶ 36, quoting

State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 12 (4th Dist.), citing

State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 22;

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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.”

Blanton at ¶ 12, citing Thompkins at syllabus. “The standard of review is

whether, after viewing the probative evidence and inferences reasonably

drawn therefrom in the light most favorable to the prosecution, any rational

trier of fact could have found all the essential elements of the offense beyond

a reasonable doubt.” Blanton at ¶ 12; citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio

St.3d 259, 273, 574 N.E.2d 492 (1991). “Furthermore, a reviewing court is
Highland App. No. 19CA17 33

not to assess ‘whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.’ ”

Blanton at ¶ 12, quoting Thompkins, supra, at 390.

{¶77} This test raises a question of law and does not allow us

to weigh the evidence. See Whiting, at ¶ 37; State v. Martin, 20 Ohio

App.3d 172, 174, 485 N.E.2d 717 (1983). Rather, the test “gives full play to

the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson at 319. We reserve the issues of the

weight given to the evidence and the credibility of witnesses for the trier of

fact. See State v. Thomas, 70 Ohio St.2d 79, 79–80, 434 N.E.2d 1356

(1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one

of the syllabus (1986).

LEGAL ANALYSIS

{¶78} For ease of analysis, we begin with Appellant’s challenge of

his murder conviction. He asserts that the evidence was insufficient to

support proof of murder beyond a reasonable doubt and instead supports a

conviction for reckless homicide. For the reasons which follow, we

disagree.

1. Murder
Highland App. No. 19CA17 34

{¶79} Appellant was convicted of murder, R.C. 2903.02(A), which

states: “No person shall purposely cause the death of another * * *.” A

person acts purposely when it is the person's specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is the offender's specific intention to engage in

conduct of that nature. R.C. 2901.22 (A). Appellant concedes responsibility

for causing Heather Camp’s death; however, he argues the State had

insufficient evidence that Appellant intended for her to be shot. Appellant

urges us to conclude that the physical evidence, as well as his interview,

supports a finding of reckless homicide instead of murder.

{¶80} Appellant admits that it was reckless to get the gun out of the

holster; reckless to point the gun at anyone; reckless to either turn the safety

off or be in such a position that the safety could come off; and reckless to

hold the gun in a way that the trigger could be pulled. However, Appellant

argues the evidence shows he was the person who told them where the gun

could be recovered. He also argues that the very serious crime of reckless

homicide motivated his evasive actions. Additionally, he asserts that taking

her out in public and asking for help are not congruent with having

intentionally harmed her. In fact, Appellant argues his behavior is consistent
Highland App. No. 19CA17 35

with someone who actually cared about Heather Camp and also realized he

was in serious trouble.

{¶81} We are not persuaded. We have reviewed Appellant’s video-

recorded interview with Detective Antinore which the jury saw at trial.

First of all, it is a mischaracterization to indicate that Appellant was

completely forthcoming with the circumstances surrounding the gun. While

he eventually told officers that he obtained the gun from Roy Dunihue, he

first told officers that the gun was stolen from his house and actually in

Heather’s bag. Then, three times he told officers that the gun was thrown

out of the car onto the side of the road after the shooting. Not until the very

end does Appellant inform the officers that he returned it to Dunihue’s truck.

{¶82} We are likewise not convinced that Appellant taking Heather

through the Frisch’s drive-thru and later to the Kinnisons’ house is indicative

of his concern for her. In the interview, Appellant admits that it is dark and

Heather didn’t eat anything. There’s no evidence he asked anyone at

Frisch’s to help Heather. Additionally, the evidence demonstrated he also

drove her to Burger King, bypassing a hospital facility where he could have

sought help between the two restaurants.

{¶83} In the interview Appellant relates going back to his camper

after the shooting. When he decided they should leave the camper,
Highland App. No. 19CA17 36

Appellant told officers that he pulled his car up to the back of the camper

and had Heather come out that way so his neighbors Amy and Todd would

not see her. We cannot agree that these actions demonstrated concern for

Heather. Rather, these actions tend to demonstrate Appellant’s concern for

himself and concealing his crime.

{¶84} Further, Appellant’s statements to the officers that he insisted

Heather go to the hospital but she didn’t want to because she had warrants

are easily construed as self-serving. These statements are obviously contrary

to the testimonies of Mandy Jo Knisley, Bobby Kinnison, and Kalie

Kinnison, who each testified that Heather stated at least once that she wanted

to live. In particular, it appears that Mandy Jo Knisley was so insistent that

Heather be taken for treatment that Appellant concocted the scene in which

he and Bobby take Heather downstairs to the garage as if they were taking

her to the hospital, but then bring her back upstairs after Mandy leaves.

Importantly, Bobby Kinnison also testified that in the garage, Appellant

slapped Heather’s face, already obviously beaten, and told her to,

“Straighten up, bitch.” Ostensibly, Appellant was admonishing Heather to

“straighten up,” and not indicate to anyone again that she wanted to live.

{¶85} As one can see, the evidence in this case demonstrates the

volatile nature of Appellant and Heather Camp’s relationship. There is
Highland App. No. 19CA17 37

evidence of physical abuse and substance abuse. The evidence also suggests

that jealousy was a possible motive for shooting Heather.

{¶86} The evidence indicates that Appellant had dinner plans with

Heather Camp on Sunday, February 17, 2019. Roy Dunihue testified that

sometime on that date, Appellant texted him and asked to borrow a gun.

After drinking with Heather and arguing, Appellant went to Dunihue’s place

with Heather in the vehicle to pick up the gun. Dunihue testified he gave

Appellant the gun in a holster with the safety on. According to one version

provided by Appellant, Heather was shot shortly after he received the gun

from Dunihue, while they were still sitting in Dunihue’s driveway.

{¶87} During Appellant’s emotional interview, he mentioned Mike

Scholler several times. In the first few moments of the interview, he stated

that, “She was driving the Trailblazer. [They] got into it over Mike Scholler.

I grabbed the gun and it went off.” He also indicates that Mike Scholler is in

Hamilton, Ohio. Appellant repeatedly explains they argued over Mike

Scholler, but at times indicates Heather grabbed the gun. He even tells

Detective Antinore that Heather said she’d “set Mike up for him.”

{¶88} Towards the end of the interview, Appellant seems to describe

the overall toxic nature of his relationship with Heather. He states: “She’s

on the run…I’m selling dope. We’ve got no one to lean on but each other.
Highland App. No. 19CA17 38

We always fuck it up.” Facts tending to suggest Appellant’s jealousy with

regard to Heather are scattered throughout his interview.

{¶89} Earlier in the interview, Appellant stated there was “only one

person I had a problem with her seeing - Tyler.” Appellant stated that when

he picked [Heather] up, he “didn’t want to hear about the past.” Appellant

told Detective Antinore he took her to her sister’s house to pick up her

“stuff.” While Heather is inside and Appellant is outside waiting for her, her

“ex-boyfriend pulls up” and “come in.” “She’s inside 20-30 minutes.”

Appellant got mad and left. He texts her and she replies, “Why are you

being an asshole?”

{¶90} At the end of the interview, Appellant relates that they were

arguing and he told her to “get off him.” He pointed the gun at her and she

kicked him. Appellant stated, “I didn’t want to argue with her.” Then he

provides information that he has not previously provided in the first part of

the interview. Appellant told Detective Antinore: “I was mad, I put money

up for bail. I wanted to get a hotel room. She said she was busy. Always

something stupid between us.”

{¶91} While during the interview Appellant maintained that he didn’t

intend to shoot Heather and that he only pointed the gun to scare her, we

believe the jury could reasonably infer that Appellant shot Heather out of
Highland App. No. 19CA17 39

jealousy. The evidence provided in the interview indicates that Heather had

ongoing relationships with “Tyler,”8 an “ex-boyfriend,” and Mike Scholler,

which caused Appellant to be upset. They argued at dinner and Mike

Scholler came up. According to Appellant, Heather told him she saw Mike

Scholler at Wal-Mart earlier. Appellant may not have actually planned for

days or weeks to shoot Heather Camp, but he did make arrangements to

obtain a gun on a day he argued with her. Appellant pointed a gun at her

with the safety off – a gun that was given to him holstered with the safety

on, according to Dunihue’s testimony. A jury could certainly reasonably

infer that Appellant purposely pulled the trigger with the intention of killing

her.

{¶92} Our conclusion that Appellant’s actions were purposeful is

bolstered by evidence of jail phone calls made while Appellant awaited trial.

Detective Antinore testified Appellant made approximately 7000 calls from

the Highland County jail. Detective Antinore regularly reviews the phone

calls made from the jail. He reviewed a call log which demonstrated that on

March 30, 2019, Appellant made a phone call during which he told the other

speaker that he “knew the safety was off the gun.”

8
We do not know whether or not Tyler refers to Heather’s friend Tyler Lawrence, who drove them around
earlier in the day. Tyler Lawrence testified that Appellant followed them earlier in the day between
Wilmington and Highland County.
Highland App. No. 19CA17 40

{¶93} Additionally, Roy Dunihue testified he handed Appellant the

gun in a holster with the safety on. Andrew McClelland, the BCI expert

who tested the gun testified that in order to fire the firearm, the safety must

be disengaged. In his interview with Detective Antinore, Appellant

explained at least twice that the shooting occurred as soon as he brought the

gun into the vehicle. We think it may then be reasonably inferred that

Appellant purposely removed the gun from the holster and removed the

safety mechanism with the intention of firing the gun.

{¶94} Detective Antinore’s testimony regarding jail phone calls also

belies Appellant’s self-serving statements in his interview and on appeal that

he was trying to help her. In a June 6, 2019 jail phone call, Appellant

discussed Heather’s outstanding warrants. Detective Antinore testified:

“James tells the other individual that he’s talking to, that when he met with

Heather Camp at El Dorado’s Restaurant in Wilmington, her intention was

to turn herself in on the warrants that she had.” This directly undermines

Appellant’s interview statements in which he stated that it was Heather who

did not want to seek medical treatment for fear of being taken to jail.

{¶95} Detective Antinore further testified, “[Appellant] observed a

plastic bag with loose leaf tobacco that she intended to take into the jail with

her when she turned herself in.” Detective Antinore further identified a
Highland App. No. 19CA17 41

State’s exhibit tote bag taken from Appellant’s camper with the bloody bra

and shirt. Inside the tote bag was also a clear plastic bag containing loose

leaf tobacco, as described in the phone call.

{¶96} “ ‘When a court reviews the record for sufficiency, “[t]he

relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” ’ ” State

v. Bennington, 4th Dist. Adams No. 18CA1078, 2019-Ohio-4386, at ¶ 11,

quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d

930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus; following Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The court must defer to

the trier of fact on questions of credibility and the weight assigned to the

evidence.” State v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-4974,

2014 WL 5800342, ¶ 22, citing State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, 15 N.E.3d 818, ¶ 132; State v. Lodwick, 2018-Ohio-3710, 118

N.E.3d 948, ¶ 9 (4th Dist.). In this case, the trial court gave standard Ohio

jury instructions on reasonable doubt, credibility of witnesses, direct

evidence, circumstantial evidence, and inferences to be made. Specifically,

the trial court instructed:
Highland App. No. 19CA17 42

To infer, or to make an inference, is to reach a reasonable
conclusion, or deduction of facts, which you may, but are not
required to make, from other facts which you have found to
have been established by direct evidence. Whether an inference
is made rests entirely with you.

{¶97} In this case, we defer to the jury who heard the testimony of the

witnesses and also viewed Appellant’s video interview. We find there was

sufficient evidence from which a rational person could find evidence of

Appellant’s intent to shoot Heather Camp beyond a reasonable doubt. Thus,

we find no merit to this argument contained within the second assignment of

error.

2. Rape

{¶98} Appellant argues that the State failed to prove beyond a

reasonable doubt that Appellant committed rape. The elements of rape, R.C.

2907.02(A)(1)(c), are set forth fully above at paragraph #57. Appellant

challenges the sufficiency of the evidence on the element of “substantial

impairment,” asserting that the jury did not have sufficient evidence to

conclude that Heather Camp was substantially impaired and therefore unable

to give consent to sexual conduct. In our analysis of the first assignment of

error, we considered whether there was some evidence tending to prove the

material element of substantial impairment in order to properly admit

Appellant’s confession to having had consensual sex with Heather Camp.
Highland App. No. 19CA17 43

{¶99} The corpus delicti rule is an evidentiary ruling, State v. Ashe,

2nd Dist. Montgomery No. 26528, 2016-Ohio-136, at ¶ 9, and is satisfied by

“a rather low” evidentiary standard. State v. Blevins, 2nd Dist. Montgomery

No. 24006, 2011-Ohio-381, at ¶ 27, citing State v. Barker, Montgomery

App. No. 23691, 2010-Ohio-5744, ¶ 10. However, here a different standard

is required. Here we must determine whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt.

{¶100} In arguing for a rape conviction, the State pointed out that

Appellant shot Heather Camp in the center of the chest and, according to

Appellant, returned to his camper in Highland County later and had sex with

her. The State pointed to the nipple swabs which indicated Appellant’s

DNA on both nipples. In closing, the State also pointed to Dr. Casto’s

testimony. The State argued:

Her mental state was such that this man had shot her in the
chest. * * * At that point you can draw the inference, rely on the
circumstantial evidence, that [Heather] was in no physical or
mental state to consent or resist the defendant having sexual
intercourse with her. And the Defendant knew or should have
known that the condition existed, because he caused the
condition. In order to prove that the defendant had reasonable
cause to believe that Heather’s ability to resist or consent was
substantially impaired because of a physical or mental
condition, you must compare him to an ordinary person.
Would an ordinary person who had just shot Heather in the
chest believe that Heather’s ability to resist or consent was
substantially impaired?
Highland App. No. 19CA17 44

{¶101} As indicated above, we have not found other rape cases

containing fact patterns in which the “substantial impairment” element was

based upon a physical impairment. In analyzing Appellant’s conviction

pursuant to R.C. 2907.02(A)(1)(c), we find other cases’ discussion of other

pertinent factors to be instructive. In State v. Bender, 3rd Dist. Union No 14-

19-22, 2020-Ohio-722, Bender was convicted of rape pursuant to R.C.

2907.02(A)(2): “No person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or

threat of force.” The 3rd District court discussed the legal definition of “fear

or duress.” On appeal, Bender argued there was insufficient evidence to

prove that Bender compelled his victim to engage in sexual conduct by force

or threat of force. The appellate court noted:

(“ ‘[T]he key inquiry for determining whether the State
presented sufficient evidence on the element of force is whether
the “victim's will was overcome by fear or duress.” ’ ”), State v.
Stevens, 2016-Ohio-446, 58 N.E.3d 584 (3rd Dist.) at 20,
quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-
Ohio-2837, ¶ 40, quoting In re Forbess, 3d Dist. Auglaize No.
2-09-20, 2010-Ohio-2826, ¶ 40, citing State v. Heft, 3d Dist.
Logan No. 8-09-08, 2009-Ohio-5908, ¶ 88, citing State v.
Eskridge, 38 Ohio St.3d 56, 58-59 (1988). “[I]f the defendant
created the belief that physical force will be used in the absence
of submission, then threat of force can be inferred”—that is, a
“threat of force includes both explicit and implicit threats”
because “[n]othing in the rape statute requires the threat of
force to be direct or express.” State v. Rupp at ¶ 33.
Highland App. No. 19CA17 45

{¶102} See also State v. Schaim, 65 Ohio St. 3d 51, 1992-Ohio-31,

600 N.E.2d 661, at paragraph one of the syllabus (“The ‘force or threat of

force’ element ‘can be inferred from the circumstances surrounding sexual

conduct.’ ”). “In order for a defendant to overcome his victim's will by fear

or duress, the defendant would have had to engage in sufficient behavior

toward the victim. This behavior is objective and its effect is viewed in light

of the totality of facts and circumstances existing at the time of the alleged

rape.” Rupp at ¶ 41. See also Stevens at ¶ 21 (“ ‘[T]he amount of force

[necessary to prove forcible rape under R.C. 2907.02(A)(2)] must be

examined in light of the circumstances.’ ”), quoting State v. Runyons, 3d

Dist. Union No. 14-91-30, 1992 WL 136196, *2 (June 9, 1992). Bender,

supra, at ¶ 30. In Bender’s case, the appellate court found that based on the

totality of the circumstances, a rational trier of fact could infer that his

victim’s state of fear or duress during a prolonged period of torture was such

that she was compelled to submit to the sexual conduct to end the torture.

See also Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916, at ¶ 27.

{¶103} In State v. Salti, 8th Dist. Cuyahoga No. 106834, 2019-Ohio-

149, the defendant appealed multiple convictions of rape and kidnapping of

multiple young female victims he met online or through a third person.
Highland App. No. 19CA17 46

Salti’s convictions were also brought pursuant to R.C. 2907.02(A)(2). The

appellate court observed:

“The force and violence necessary to commit the crime of rape
depends upon the age, size and strength of the parties and their
relation to each other.” State v. Eskridge, 38 Ohio St.3d 56, 58,
526 N.E.2d 304 (1988). “Force need not be overt and
physically brutal, but can be subtle and psychological. As long
as it can be shown that the rape victim's will was overcome by
fear or duress, the forcible element of rape can be established.”
State v. Fowler, 27 Ohio App.3d 149, 154, 500 N.E.2d 390 (8th
Dist.1985).

Salti, supra, at ¶92.

{¶104} In Salti’s case, the appellate court found that “the constant

threat of violence caused [the victims] to “agree” to perform oral sex on a

stranger behind a Walgreens store. Then, during the encounter, [the victims]

recognized the stranger as Salti, and Salti threatened them by brandishing a

firearm and a knife. Id. at 120. The appellate court found, therefore, there

was sufficient evidence that Salti engaged in sexual conduct with [the

victim] against her will and that he used the threat of force to compel her

submission. Therefore, there was sufficient evidence to support the rape

convictions.

{¶105} Recognizing that Bender and Salti were not convicted under

the same subsection of the rape statute, we agree with the State’s argument

that a reasonable person could make the inference that after Heather Camp
Highland App. No. 19CA17 47

was shot in the chest after struggling with Appellant, that she was

substantially physically impaired so as to be unable to give consent to sex.

As discussed above relative to Foster, Appellant did in fact know that

Heather was physically injured since he set in motion the events that caused

her to be shot in the chest at close range. He did observe specific signs of

impairment and in his interview told Detective Antinore that “she was not

100%”, and at his camper she asked for pain pills. It may be inferred that

given her physical injuries and substantial physical impairment, Heather

knew she would not be able to resist sex with Appellant. As in Bender, it

may be inferred that Heather may have feared further physical violence if

she did not consent to sex. Appellant admitted hitting her in the forehead

and the side as they drove prior to the shooting. Heather needed assistance

walking into the camper. Given her physical injuries, it is reasonable to

infer that Heather knew resistance was or would have been futile.

{¶106} The Salti court discussed that force may be subtle and

psychological, and that the size and strength of the parties is relevant. The

Salti court concluded that the “constant threat” to the victims caused them to

“agree” to sex. Heather Camp had been hit and shot in the chest at close

range. Mandy Knisley described Heather’s stature as “tiny.” It may be hard

to imagine what more could have happened to her, but it is reasonable to
Highland App. No. 19CA17 48

infer that Heather, in her substantially impaired physical state, may have

agreed to consensual sex to avoid further violence.

{¶107} For the foregoing reasons we find no merit to Appellant’s

argument that there was insufficient evidence that Heather Camp was

substantially impaired so as to be unable to give consent to sex. We find any

rational trier of fact could have found the evidence of substantial impairment

beyond a reasonable doubt. Accordingly, we hereby overrule the second

assignment of error.

{¶108} Having found no merit to either of Appellant’s assignments of

error, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.
Highland App. No. 19CA17 49

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. and Hess, J. concur in Judgment and Opinion.

For the Court,
__________________________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
Highland App. No. 19CA17 50