State v. York

[Cite as State v. York, 2021-Ohio-1591.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109054
v. :

ANDARI KARRON YORK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 6, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-636583-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brad Meyer, Assistant Prosecuting
Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Paul A. Kuzmins, Assistant Public Defender, for
appellant.
MARY J. BOYLE, A.J.:

Defendant-appellant, Ahdari York, appeals his conviction and

sentence.1 He raises five assignments of error for our review:

1. The trial court erred in failing to suppress Mr. York’s statement
where the waiver of his Miranda rights was not knowingly, intelligently
and voluntarily made.

2. The trial court’s sentence is contrary to law.

3. The state’s evidence was insufficient to sustain a conviction for sexual
battery.

4. The conviction for sexual battery is against the manifest weight of the
evidence.

5. The trial court erred in instructing the jury on the offense of sexual
battery because it is not a lesser included offense and it was not
warranted by the facts.

Finding no merit to his assigned errors, we affirm.

I. Procedural History

In January 2019, York was indicted on six counts, including three

counts of rape in violation of R.C. 2907.02(A)(1)(c) and (2) (vaginal and anal rape

by force and vaginal rape by substantial impairment), two counts of complicity to

commit rape in violation of R.C. 2923.03(A)(2), and one count of kidnapping in

violation of R.C. 2905.01(A)(4). York pleaded not guilty to all charges.

1 York’s first name was originally spelled incorrectly in the common pleas court.
The incorrect spelling was “Andari.” The record reflects that the state moved to amend
the indictment to correct the spelling, which the trial court granted, but it does not appear
to have been corrected in the common pleas court’s file.
 In May 2019, York moved to dismiss the indictment against him due to

preindictment delay. In June 2019, York moved to suppress any oral statements he

made to police during questioning by police in Detroit, Michigan, in December 2018.

The trial court held hearings on York’s motions in late June 2019 and

subsequently denied them. The case then proceeded to a jury trial.

After the evidence was presented, the state requested a lesser included

offense instruction on sexual battery in violation of R.C. 2907.03(A)(2) for each rape

charge, which the trial court granted. The jury found York guilty of sexual battery

in violation of R.C. 2907.03(A)(2), a third-degree felony, as a lesser included offense

of rape under Count 2 but found him not guilty of all other charges.

The trial court sentenced York to three years in prison for sexual battery

and classified him as a sexually oriented offender under Megan’s Law, the sex

offender classification law in effect at the time York committed the crime. The trial

court further notified York that he would be subject to a mandatory period of five

years of postrelease control upon his release from prison. It is from this judgment

that York now appeals. We will address York’s assignments of error out of order for

ease of discussion.

II. Motion to Suppress

In his first assignment of error, York contends that the investigators

violated his Fifth Amendment rights when they “tricked [him] into reporting to his

probation officer outside of his regular schedule” and coerced him to sign a Miranda
waiver. He therefore contends that the trial court erred when it denied his motion

to suppress.

“Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. In ruling on a motion to suppress, “the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate

the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582

N.E.2d 972 (1992). On appeal, we “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Id., citing State v. Fanning, 1

Ohio St.3d 19, 437 N.E.2d 583 (1982). Accepting these facts as true, we must then

“independently determine as a matter of law, without deference to the trial court’s

conclusion, whether they meet the applicable legal standard.” Id., citing State v.

McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). In this case,

however, the trial court did not make findings of fact or conclusions of law. We must

therefore independently review the record to determine if it supports the trial court’s

decision. See State v. Loza, 71 Ohio St.3d 61, 73, 641 N.E.2d 1082 (1994) (“Upon an

independent review of the record, we find the evidence supports the denial of

appellant’s motion to suppress.”).

“The Fifth Amendment to the United States Constitution and Article

I, Section 10, of the Ohio Constitution guarantee that no person in any criminal case

shall be compelled to be a witness against himself.” State v. Jackson, 2d Dist.

Greene No. 02CA0001, 2002-Ohio-4680, ¶ 19. In adopting the Fifth Amendment,
the framers were concerned that “coerced confessions are inherently

untrustworthy.” Id., citing Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326,

147 L.Ed.2d 405 (2000). Suspects may waive their constitutional right against self-

incrimination “provided that waiver is voluntary.” Id. at ¶ 20, citing Colorado v.

Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

In Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), the United States Supreme Court held that before questioning

suspects in custody, law-enforcement officials must inform them that (1) they have

the right to remain silent, (2) their statements may be used against them at trial, (3)

they have the right to have an attorney present during questioning, and (4) if they

cannot afford an attorney, one will be appointed.

To use a statement made by an accused during a custodial

interrogation, the prosecution must show that (1) the accused was given the

Miranda warnings before any interrogation, (2) upon hearing the warnings, the

accused made an “express statement” that he or she desired to waive his or her

constitutional rights, and (3) the accused effected a voluntary, knowing, and

intelligent waiver of those rights. State v. Edwards, 49 Ohio St.2d 31, 38, 358

N.E.2d 1051 (1976) (overruled on other grounds), citing Miranda. Contrary to the

second prong in Edwards, however, the United States Supreme Court held in recent

years that the prosecution “does not need to show that a waiver of Miranda rights

was express. An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit

a suspect’s statement into evidence.” Berghuis v. Thompkins, 560 U.S. 370, 384,
130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). “Where the prosecution shows that a

Miranda warning was given and that it was understood by the accused, an accused’s

uncoerced statement establishes an implied waiver of the right to remain silent.” Id.

That is because “the law can presume that an individual who, with a full

understanding of his or her rights, acts in a manner inconsistent with their exercise

has made a deliberate choice to relinquish the protection those rights afford.” Id.

To determine whether a valid waiver occurred, a court must “consider

the totality of the circumstances, including the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency of interrogation; the

existence of physical deprivation or mistreatment, and the existence of threat or

inducement.” Edwards at paragraph two of the syllabus.

Normally, if defendants challenge statements they made to police as

involuntary, “the state must prove a knowing, intelligent, and voluntary waiver by a

preponderance of the evidence.” State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-

4575, 999 N.E.2d 557, ¶ 34. But here, because York was accused of rape and his

questioning was electronically recorded, his statements are presumed to be

voluntary. R.C. 2933.81(B). This statute therefore shifts the burden to York to prove

that the statements were not voluntary. Id.

A. Suppression Hearing

Ranae Reynolds was York’s probation officer in Troy, Michigan, in

December 2018. York had been on probation for driving under the influence since

December 2017. Reynolds explained that once York was placed on probation, she
had him sign his “probation orders” or “conditions” of probation. One of those

conditions included York having to report to the probation office on “short notice.”

It stated, “Make a truthful report to the probation officer monthly, or as often as the

probation officer may require, either in person or in writing as required by the

probation officer.”

Reynolds testified that she received a call on December 13, 2018, from

Cuyahoga County investigators who wished to speak to York about a case. Reynolds

stated that one or two days before the Cuyahoga County investigators were going to

be there, she called York on December 24, 2018, to tell him to come to the Troy office

two days later. She told him that she could not tell him why.

On December 26, 2018, the Cuyahoga County investigators obtained a

warrant in Oakland County Circuit Court in Michigan to collect York’s buccal swab.

When they arrived at the probation office, Reynolds had them wait in a conference

room until York arrived. Reynolds said the conference room was large with “two

long L tables” and about 15 chairs.

When York arrived, Reynolds walked him to the conference room. She

said that she told him that two investigators from Ohio were waiting to speak to him

in the conference room. She told him that she did not know why they were there,

although she testified that she did know. She did not tell him that he had to speak

to the investigators, nor did she tell him that he would be in violation of his

probation if he did not speak to them. She further stated that there is nothing in

York’s probation orders that would require York to speak to the investigators.
 Reynolds stated that there was one door to the conference room. The

door was closed when York was talking to the investigators, but it was not locked.

When York was done speaking to the investigators, he reported back

to Reynolds. She did not ask him any questions about the meeting.

York last reported to Reynolds on March 6, 2019. Reynolds believed

that York did not report to her after that because he was in custody in Ohio. When

the state informed her that he had been out on bond, she said that York should have

reported to her immediately, but he did not.

On cross-examination, Reynolds explained that her department

“cooperate[s] with any law enforcement.” If they request information, her

department assists. Reynolds said it was not true that York asked her before he went

into the conference room, “Do I have to go in there? Do I have to speak to those

people?” Reynolds agreed that as part of York’s probation, he had to submit to any

search warrant.

Larry Stalter testified that he was an investigator with the Cuyahoga

County Prosecutor’s Office, assigned to the “cold case/sexual task force.” His duties

included reinvestigating or investigating “for the first time old reported sexual

assaults.” Investigator Stalter had over 30 years of experience as a police officer and

had given Miranda warnings hundreds of times.

Investigator Stalter testified that Investigator Brian Katigbak asked

him to drive to Michigan with him in late December 2018 regarding an old case that
Investigator Katigbak was assigned to. Investigator Stalter said he was there to

assist Investigator Katigbak.

Investigator Stalter testified that after obtaining the warrant for York’s

buccal swab, they went to the Troy probation office to talk to York. When York

walked into the room, he sat down next to the investigators. Investigator Stalter said

that they informed York that they were there “to talk about an old case in which his

name came up, and then we Mirandized him.” Investigator Stalter explained that

by Mirandized, he meant they “read him his Miranda rights, letting him know that

he had a right to remain silent, the right to have an attorney present if he chose one,

and the rest of what’s on the form.” Investigator Stalter testified that as he read the

form to York, the form was between them so York could read along. Investigator

Stalter stated that York also had a chance “to look over it.”

Investigator Stalter identified the Miranda form that York signed and

Investigator Stalter witnessed. Above York’s signature, the form states,

I have read this statement of my rights and it has been read to me, and
I understand what my rights are. I’m willing to make a statement and
answer questions. I do not want a lawyer at this time. I understand
and know what I am doing. No promises or threats have been made to
me and no pressure or coercion of any kind has been used against me.
I hereby voluntarily and intentionally waive my rights and I am willing
to make a statement and answer questions.

Investigator Stalter testified that they told York “a couple of different

times that we were not there to arrest him.” Investigator Stalter said, “It was very

laid back.”
 Investigator Stalter stated that the entire interview with York was

recorded. The state played the recording in court, and Investigator Stalter identified

it. The entire interview lasted approximately 22 minutes.

Investigator Stalter said that York also signed a form voluntarily

consenting to giving a buccal swab, which can also be heard on the recording.

York testified that his probation officer called him on December 24,

2018, and told him to report to her two days later. When he went to the Troy

probation office on December 26, 2018, York said that he went during his lunch

break, which was only 30 minutes. After he signed in, he waited 30 minutes before

his probation officer came to get him. York stated that he asked Reynolds what the

Ohio investigators wanted to talk to him about, and she told him that she did not

know.

York testified that he also asked Reynolds whether he had to speak to

them, and she replied, “yes.” York said that when he was on probation to her, he

tried to comply with her orders because “she had power” over him. He stated that

because of what Reynolds said to him, he felt obligated to talk to the Ohio

investigators.

York testified that during the interview, he was “antsy” because he

“was supposed to have been back to work.” At the beginning of the interview, York

said that his cousin called York’s cell phone and told him that his “job was calling”

him. York can be heard at the beginning of the electronic recording telling his cousin

that he would be there soon.
 York stated that he did not read the Miranda form as Investigator

Stalter was reading it. Instead, York said he listened to the investigator read it. York

testified that at the same time, he was also “looking on my phone as the texts from

[his] job [were] coming in.” York said there was “no paper in front” of him but

agreed that Investigator Stalter “showed me as he read it.” Although York “was

paying attention,” he said he was not really paying attention because he “was

thinking about [the] consequences with [his] job.”

York testified that when Investigator Stalter told him where to sign

the form, he did not read the form before he signed it. York stated, “I never even

looked at it.” York agreed that Investigator Stalter told him, “[S]ign here so we can

speak freely.”

On cross-examination, York agreed that although he quit school in the

eleventh grade, he could read and write. York identified his signature on the

Miranda form but said he never read it. He agreed, however, that he “heard

[Investigator Stalter] read it.” But he also stated that they were “rushing [him]

through” it.

York stated on cross-examination that there was more to the interview

with the investigators than is shown on the tape, but he could not recall what they

talked about after it ended.

York further stated on cross-examination that Reynolds was either

lying or could not remember when she testified that he did not ask her if he had to

talk to the investigators.
 B. Analysis

York contends that two factors are at issue here: the voluntary nature

of his statements and his ability to comprehend and waive his rights. He claims that

the record establishes that “authorities used coercive tactics while interrogating”

him by “ambush[ing] [him] in his probation officer[’]s office” and by “exploiting his

status as a probationer to coerce a Miranda waiver.” He maintains that “he felt

obligated to speak with those investigators from Ohio because of what [Reynolds]

said.”

Even assuming for the sake of argument that York was in custody,

which we are not concluding that he was, we find no constitutional violation. After

reviewing the totality of the circumstances in this case, we find that the record

supports the finding that York voluntarily, knowingly, and intelligently waived his

Fifth Amendment rights.

York does not cite to one case in support of his argument that he was

“tricked” into coming to see his probation officer and because of that, the

investigators’ questioning was coercive. Instead, York cites to cases that establish a

Miranda violation occurs when police use coercive tactics such as “physical abuse,

threats, deprivation of food, medical treatment, or sleep,” and none of that is at issue

here. See State v. Getsy, 84 Ohio St.3d 180, 189, 702 N.E.2d 866 (1998).

Regarding York’s claim that he was “tricked” into reporting to his

probation officer, the U.S. Supreme Court has explained that “probationer[s] cannot

pretend ignorance of the fact that [their] probation officer ‘is a peace officer, and as
such is allied, to a greater or lesser extent, with [their] fellow peace officers.’”

Minnesota v. Murphy, 465 U.S. 420, 432, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984),

quoting Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). The

Murphy court further explained that “[i]f [the probationer] did harbor a belief that

his probation might be revoked for exercising the Fifth Amendment privilege, that

belief would not have been reasonable. Our decisions have made clear that the State

could not constitutionally carry out a threat to revoke probation for the legitimate

exercise of the Fifth Amendment privilege.” Id. at 438.

York testified that he asked Reynolds whether he had to speak to the

investigators, and Reynolds replied, “yes.” York further testified that he tried to

comply with Reynolds’s orders because “she had power” over him. York stated that

because of what Reynolds said to him, he felt obligated to talk to the Ohio

investigators. But Reynolds denied that York asked her if he had to talk to the

investigators, and she further denied telling York that he had to speak to them

(although she agreed that as part of his probation, he had to submit to a search

warrant).

Further, the entire interview was electronically recorded and lasted

only approximately 22 minutes. The investigators were polite to York during the

questioning. Although York claims that he did not read the Miranda form and was

not paying attention due to his anxiety regarding work, he admitted that he listened

to Investigator Stalter read the form. York further told the investigators that he
could read and write. And the investigators never employed improper techniques

when questioning York.

York simply did not meet his burden of establishing that any

statements he made were involuntary. Accordingly, we find that the trial court did

not err when it denied York’s motion to suppress. We therefore overrule York’s first

assignment of error.

III. Trial Evidence

J.G., the victim, testified that in 1999, she was living in an apartment

complex located on Garden Valley Road in Cleveland, Ohio. Andrea Williams and

“some other people” were “staying” with her at that time.

On February 11, 1999, around 1:00 p.m., Williams asked J.G. to go

“kick it with this guy” because she did not know her way around Cleveland very well.

J.G. agreed to go with her. They went to “Rhonda’s” house on Browning Street in

Cleveland. J.G. did not know Rhonda’s last name. When they arrived, Rhonda was

not there, but “Papar and two other guys” were there. J.G. knew Papar because she

had gone to “school with him from elementary on up until high school,” but she did

not know the other two men. She remembered that Papar’s first name was George,

but she did not know his last name. The two other men introduced themselves to

her as “Dee and Rico.” Dee told J.G. that they were from Michigan.

The five of them began playing a game called “Questions.” J.G. could

not remember how the game was played but knew that it was a “drinking game.” As

they were playing the game, J.G. said she began to “feel funny, so she went to the
bathroom.” When she came out of the bathroom, Williams was gone. The three

men told her that Williams had gone to the store and “would be right back.” J.G.

said, “then all of a sudden[,] I just was taken out of the house” by Papar. She

explained that her body was “limp,” she was “weak,” and she “wasn’t feeling too

well.” She stated that she felt like she had been drugged. J.G. testified that she was

“vaguely in and out” of consciousness.

According to J.G., Papar carried her out of the house because she

“couldn’t move” or “walk.” Papar put her in a car and drove what felt like “just * * *

around the corner.” He took her into a house and lay her on a bed. She said her legs

were “just like hanging over the bed, and he just did what he did.” When asked to

explain, J.G. replied, “He violated me.” When asked to explain further, she stated

that Papar had “unconsensual” vaginal sex with her. She said that she was still going

in and out of consciousness while it was happening, and her body was still limp. She

did not know if he used a condom or if he ejaculated.

J.G. testified that when Papar was done, “the other two do what they

do.” She explained that Dee and Rico were also in the bedroom. Both Dee and Rico

had “unconsensual” vaginal sex with her; first Dee and then Rico. She said that she

told the men “no, but probably they couldn’t hear it because [she] was in and out.”

Although she told police shortly after the incident that she was also anally raped, at

the time of trial, she could not recall if someone had anal sex with her.

J.G. explained that after Rico had sex with her, she went downstairs

because she heard Williams’s voice. When J.G. walked into the kitchen, she said
that Williams caught her before she fell. Williams asked her what was wrong, and

J.G. told her that she was ready to go because she “was afraid that they might do

something else” to her. Williams took her to the bathroom and told her to wait for

Papar “to come get [them], to take [them] home.” She replied that she did not want

Papar to take her home. At that point, Dee came into the bathroom. Dee and

Williams took J.G. outside to get some air. They then took her back inside, sat her

on the couch, and “start[ed] putting water on [her] face.” They also tried to give her

coffee, but J.G. did not drink coffee.

J.G. stated that she went back outside. She told Williams that she was

getting ready to leave. J.G. planned to walk to her son’s godmother’s house because

it was nearby, but Williams and Rhonda, who finally came home, “wouldn’t let [her]

leave.” About five minutes later, Papar “pull[ed] up,” and “they stuffed [her] in the

car.” She could not recall who else was in the car, but she said that she was in the

middle of the back seat, so she “couldn’t even try to jump out of the car if [she]

wanted to.” They took her and Williams “to Garden Valley.”

J.G. testified that she never told Williams what the three men did to

her. She “just wanted to get away from the whole situation.” But when she got home,

she “broke down.” People who knew her could tell that something was wrong. They

ended up calling police, and she went to the hospital, where a rape kit was collected.

She also met with police on February 16, 1999, and gave them a statement.

J.G. stated that the next time she talked to police was when they

contacted her “recently of this year.” She said she moved to Arkansas in 2010, and
Investigator Katigbak contacted her there. She met with a detective in Arkansas

twice. The detective showed her several photo lineups of men, but she could not

positively identify any of them as her perpetrators “because it [had] been so long.”

On cross-examination, J.G. denied that there was another female

there by the name of “K-1.”

On redirect-examination, J.G. read from the statement she gave to

police in February 1999. She stated:

On Thursday, February 11, 1999 at about 1:00 p.m., me and my
girlfriend Andrea met with Papar, Rico and Dee and we all decided to
get together. We went over Rhonda’s house at * * * Browning Avenue
(up). We all started playing this game called Questions, which is when
one person ask[s] another question and the other person answer[s]
with a question. If you don’t answer with a question, then you have to
take a shot of alcohol.

I remember that after we got to the third 40 ounce bottle of beer, I
started feeling sick. Andrea and Rhonda took me outside on the porch
to get some air. We came back in and they laid me on the couch.
Andrea and Rhonda went back out on the porch * * * and Andrea told
me when she came back in that I was gone and Papar * * * was gone.
Papar had taken me someplace. I remember going to another house. I
remember my legs hanging over a wooden part of the bed. I woke up
and I was upstairs in this attic. I remember seeing and hearing about
three guys in the attic. I know that one of the guys was Papar. The
other was Rico[,] and Dee was the last one.

I remember Papar laying on top of me. He had his penis inside of me,
in my vagina. Then he turned me over and put his penis in my anus. I
couldn’t scream or say anything. I couldn’t move. I think I was
drugged.

Papar went downstairs. Then Rico got on top of me. He put his penis
inside of my vagina and turned me around and put his penis inside my
anus. Then Rico went downstairs[,] and Dee got on top of me and put
his penis inside my vagina and turned me over and put his penis inside
my anus.
When Dee finished, Papar came back in the attic. He did it again,
putting his penis inside my vagina. I remember him putting his penis
in my mouth. Then Dee came back up. I kept saying no. I was able to
start moving. Dee had me turned sideways and had his penis inside my
vagina.

When I started moving, that’s when he stopped. Dee got up and went
downstairs. I had on a dress. I was able to walk downstairs. I was
drugged. I was able to get to the kitchen. Andrea caught me from
falling out. She took me to the bathroom. She asked me what
happened. I was too afraid to say anything, because Papar and his
friends were still there.

Andrea put water on my face. I was crying. Dee came in the bathroom
asking what was wrong. I told Andrea I was ready to go home. They
gave me some coffee. We sat on the porch. They started talking about
what they did to me. Andrea heard this. I heard one of the girls saying
that it was my fault that this happened to me because of the dress I was
wearing. I remember telling her that they had no right to do this to me.

I was still feeling weak. I told them I wanted to go home and that I
would walk home. They wouldn’t let me go home. They said I wasn’t
able to. They told me to wait for Papar to return. He left to go pick up
some girl. I told them to let me use the telephone, but they wouldn’t.

Finally Papar came back and took us home.

What happened when you got home? I called the police and told them
what happened[,] and they took me to St. Luke’s Hospital.

Do you know any of the persons involved real names? No. Only my
friend, Andrea Williams.

Can you describe these males? Papar is a black male. He’s about five,
four or five, five, about medium build, brown complexion. His ears
stick out, short fade haircut. He’s about 22 or 23 years old. Rico is a
black male. He has a short fade haircut, about five, five, brown-
skinned, medium build. He’s about 25 years old. * * * Dee is a black
male. He’s dark-skinned, about five, six to about five, ten, small build.
He is about 22 years.

How is Rhonda related to these males? I don’t know. Dee and Rico are
from Detroit. Rico is his cousin and was visiting from Detroit.
 J.G. stated that she did not make up the story.

Upon recross-examination, J.G. stated that although she was “in and

out of consciousness,” she knew that her body had been violated and was able to give

details about the sexual assaults.

The court then asked J.G. a series of jury questions. In response to

the jury’s questions, J.G. explained that the sexual assaults started at Rhonda’s

house, but then when she was “taken away from that house to another house,” they

continued there. She further stated that she did not drink a lot because she does not

“drink that much.” She was worried that someone would put something in her drink

because she does not trust anyone. She further denied flirting with the men during

the party.

Upon redirect-examination, J.G. stated that only Papar assaulted her

at the second house. Dee and Rico assaulted her “back at the first house,” but she

stated that she did not remember Papar taking her back to the first house.

Susan Eaton, the sexual assault nurse examiner (“SANE”) who

completed the rape kit for J.G., identified J.G.’s chart from the hospital. She

explained that J.G. was brought to the hospital by ambulance for an alleged rape.

According to Nurse Eaton’s notes, J.G. got to the hospital at 11:30 p.m. on February

11, 1999. Nurse Eaton documented that J.G.’s “mental state” was “sleepy.” J.G. had

no visible injuries and was not in pain, but Nurse Eaton testified that it was possible

to have a rape without visible injuries.

Nurse Eaton read from her notes that night, which stated:
 Patient states she was at an acquaintance’s house. Admits to drinking.
Patient states she thinks something was slipped in her drink. Patient
states she doesn’t remember how she got upstairs. Patient states there
were 3 men involved in the incident. Patient states she was sexually
assaulted vaginally and rectally, states another person attempted to put
his penis in her mouth. Patient doesn’t know if her assailant ejaculated.
Attempted to get in contact with rape crisis. Unable to get in touch.
Patient sleepy but awakens when her name is called. Patient states she
has a headache. Rape kit is complete and rape kit was picked up by 4th
district.

Nurse Eaton explained that she completed the rape kit at 2:00 a.m.

J.G.’s urine test showed that her blood alcohol content was .038 and there were no

drugs in her system. They did not test for marijuana. Nurse Eaton said that the

toxicology test was “a very basic tox screen,” and they would not test for “newer

things” that are “concoct[ed] on the street and don’t really have tests for.”

On cross-examination, Nurse Eaton stated that J.G.’s urine was

collected when she came into the hospital. The results did not come back until

approximately 2:00 a.m. According to the toxicology report, J.G. was negative for

cocaine, amphetamines, ethclorvynol, barbituates, bezodiazepines, PCP,

phenothiazines, opiates, and salicylates.

Andrea Dennis, a forensic scientist with the Ohio Bureau of Criminal

Investigation (“BCI”), testified that her office received J.G.’s rape kit in this case on

October 25, 2013. Dennis testified that scientists at her office conducted DNA

testing on the anal swab, the oral swab, and the vaginal swabs. Dennis reported on

June 6, 2014, that there was male DNA on several swabs from J.G.’s rape kit. Dennis

received a DNA standard (buccal swab) from York on December 28, 2018. The
sample was analyzed on January 2, 2019. The results showed that the DNA found

on J.G.’s vaginal and anal swabs and pubic hair combings were “sperm fractions”

and were consistent with York’s DNA and one other unknown male’s DNA. With

respect to the anal swab, Dennis stated that the likelihood that the DNA from the

anal swab matched York’s DNA was one in three billion. The likelihood that the

DNA from the pubic hair combings matched York’s was one in ten million. And the

likelihood that the DNA from the vaginal swab matched York’s was one in ten billion.

Investigator Katigbak testified that he works in the Sexual Assault

Task Force investigating “cold cases” for the Cuyahoga County Prosecutor’s Office.

He explained that his office receives rape kits from all cities in Cuyahoga County.

Since the task force began, which was in the beginning of 2014, they have received

7,000 rape kits to process. Investigator Katigbak stated that he was assigned to this

case in early 2018.

Investigator Katigbak testified that the detectives assigned to the case

in 1999 identified Papar as George Epps and Rico as Damon Joiner.

Investigator Katigbak identified a letter dated July 17, 2014, from the

Ohio BCI to the Cleveland Police Department. In the letter, BCI informed the

department that there had been a CODIS match found in the national database that

“would require a DNA sample from [York].” Investigator Katigbak explained that

“it took so long to get to this” case simply due to “the amount of cases, 7,000 cases”

that they had received. He said his department has only 25 investigators who had

to work through the 7,000 cases.
 Investigator Katigbak finally located J.G. in Arkansas in late 2018.

Investigator Katigbak created a photo lineup that contained a photo of York from

2001. J.G. did not choose York in the lineup; she chose “some other random

individual” instead and wrote “50%” by it. He also created two photo arrays with

Joiner and Epps. J.G. was not able to identify them in the lineups either.

Investigator Katigbak located York in Detroit, Michigan, in December

2018. The state played the recording of Investigators Katigbak’s and Stalter’s

interview with York in court. York denied that he had ever been to Cleveland. He

told the investigators that he once loaned his identification card to Brady Keys so

that Keys could go to Ohio to avoid prison until his child was born. When Keys went

to Ohio, he was charged with driving under the influence (“DUI”) and used York’s

identification card when he was arrested. Because of that, York stated that his first

DUI case was not even his.

Investigators Katigbak and Stalter showed York photos of J.G. from

1996 and 2001, and photos of George Epps and Damon Joiner. On the photos of

J.G., York wrote, “I never seen this girl ever in my life.” On Epps’s photo, York wrote,

“His name is George.” York explained that Epps was “part of [his] family” but he

could not explain how. And on Joiner’s photo, York wrote, “I don’t know this man.”

On the recording, Investigator Stalter can be heard saying, “He knows you.” York

told the investigators that his nickname was “Dee Money” without them telling him

what the victim said. York continually stated that he had never been to Cleveland.
 Investigators Katigbak and Stalter told York that the woman in the

photos had been sexually assaulted and asked York if he would give a DNA sample

to confirm that he did not sexually assault her. York replied that he would because

he had “never had sex with her.”

Investigators Katigbak testified that Epps’s and Joiner’s DNA were not

found in J.G.’s rape kit. Through his investigation, Investigator Katigbak later

learned that Rico and Damon Joiner were two different people.

IV. Sufficiency of the Evidence

In his third assignment of error, York argues that the state’s evidence

of sexual battery was insufficient for a jury to find him guilty beyond a reasonable

doubt.

A sufficiency challenge essentially argues that the evidence presented

was inadequate to support the jury verdict as a matter of law. State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “‘The relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998),

quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

“[A] conviction based on legally insufficient evidence constitutes a denial of due

process.” Thompkins at 386, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982). When reviewing a sufficiency of the evidence claim, we review
the evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d

195, 205, 661 N.E.2d 1068 (1996).

In this case, the state had to present evidence of the elements of sexual

battery set forth in R.C. 2907.03(A)(2). This statute provides: “No person shall

engage in sexual conduct with another * * * when * * * [t]he offender knows that the

other person’s ability to appraise the nature of or control the other person’s own

conduct is substantially impaired.” “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.” R.C. 2901.22(B).

York maintains that the state’s evidence of sexual battery is

insufficient for two reasons: (1) there was no reliable evidence that establishes the

victim was substantially impaired, and (2) there was no evidence that York knew or

had reason to believe the victim’s ability to resist or consent due to substantial

impairment.

First, the state did not have to prove that the victim was substantially

impaired for purposes of sexual battery (it did for rape, but not sexual battery as we

explain in our analysis on lesser included offenses). The state did have to prove,

however, that York knew that the victim’s ability to appraise the nature of or control

her own conduct was substantially impaired. Second, York is incorrect that for

sexual battery, the state had to present evidence that he “knew or had reason to

believe the victim’s ability to resist or consent due to substantial impairment.”

York’s language incorrectly tracks the rape statute under R.C. 2907.02(A)(1)(c)
instead of the sexual battery statute.2 But we will assume for sufficiency purposes

that York meant to track the sexual battery language rather than rape.

York spends a great deal of time arguing that the victim’s toxicology

results blood alcohol content proved that she was not substantially impaired. He

contends that because there were no drugs in her system and her blood alcohol

content would not have even established that she was impaired for purposes of

driving a car, she could not have been substantially impaired in this case. We

disagree.

York’s entire argument fails to take into account that with the passage

of time, alcohol decreases in a person’s blood. See State v. Hayes, 2d Dist.

Montgomery No. 26379, 2016-Ohio-7241, ¶ 56, quoting Schmerber v. California,

384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (alcohol has an “‘evanescent

nature,’” which means that “the level of alcohol in blood decrease[s] with the passage

of time”). In Hayes, the defendant argued that the state did not present sufficient

evidence that his blood alcohol content was .17 or more at the time of a crash. But

the Second District explained that “from the time of the crash at 8:45 p.m. until the

time of the blood draw at 11:20 p.m., Hayes was obviously not drinking any more

alcohol. Therefore, the level of alcohol in his blood was steadily decreasing during

that period of time while his body was eliminating it.” Id. at ¶ 99.

2 R.C. 2907.02(A)(1)(c) provides: “No person shall engage in sexual conduct with
another * * * when * * * [t]he 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[.]”
 Here, the victim testified that she went to Rhonda’s house with

Williams around 1:00 p.m. They began playing drinking games with the men. They

were drinking out of 40-0z bottles of beer. The victim testified that she began to feel

“funny,” and her body was “weak” and “limp.” She was “in and out of

consciousness.” She had to be carried to the car. She could not walk. Later, she had

to wait around for someone to take her home. Although the victim did not testify as

to how long she was with Williams, Rhonda, and the men, she did not go to the

hospital until 11:30 p.m. The fact that the victim’s blood alcohol content was below

the legal limit for driving impairment therefore has no bearing on this case because

there is no way to know how long it was between the victim’s last drink and the time

she went to the hospital. Moreover, the SANE nurse testified that the hospital does

not test all possible drugs because there is no test for many street drugs.

The cases that York cites in support of his argument that this court

should find insufficient evidence of sexual battery are distinguishable from the

present case. In State v. Noernberg, 8th Dist. Cuyahoga No. 97126, 2012-Ohio-

2062, this court found insufficient evidence of rape in relevant part because the

victim “fully was able to say ‘no’ to intercourse and give her reasons why; she wanted

to remain a virgin.” Id. at ¶ 25. Additionally, the victim could explain why she

decided “to give oral sex to at least two of the males, i.e., she did not want them to

kick her out of Noernberg’s home.” Id. The state also did not present any evidence

that “any particular aspects of [the victim’s] behavior * * * should have alerted

Noernberg to her substantial impairment, such as stumbling, falling, slurred speech,
passing out, or vomiting.” Id. at ¶ 27. Here, however, the victim testified that she

was weak, limp, and had to be carried because she could not walk, she was “in and

out of consciousness,” and that during the sexual acts, her legs were just hanging

over the bed. Thus, there was sufficient evidence presented in this case that should

have alerted York to the fact that the victim could not appraise the nature of or

control her own conduct due to her substantial impairment.

York also cites State v. Theodus, 8th Dist. Cuyahoga No. 97290, 2012-

Ohio-2064. Theodus is distinguishable for the same reason as Noernberg because

Theodus and Noernberg were codefendants, and their appeals were companion

cases before this court.

The final case that York cites is State v. Doss, 8th Dist. Cuyahoga No.

88443, 2008-Ohio-449. Doss is distinguishable from the present case because in

Doss, although there was evidence that the victim was substantially impaired earlier

in the evening, there was insufficient evidence that the defendant was aware that the

victim was substantially impaired at the time of the rape. According to the evidence

presented, the victim went to defendant’s house voluntarily. And according to the

defendant’s statement that was not countered at trial, the encounter was consensual,

the victim had a “consensual conversation with him,” and she “was in control of her

actions.” Id. at ¶ 19-25.

Accordingly, we find that the state presented sufficient evidence based

on the victim’s testimony that, if believed, established that York committed sexual

battery against the victim.
 We therefore overrule York’s third assignment of error.

V. Weight of the Evidence

In his fourth assignment of error, York argues that his conviction is

against the manifest weight of the evidence.

Unlike sufficiency of the evidence, a challenge to the manifest weight

of the evidence attacks the credibility of the evidence presented. Thompkins, 78

Ohio St.3d at 387, 678 N.E.2d 541. Because it is a broader review, a reviewing court

may determine that a judgment of a trial court is sustained by sufficient evidence,

but nevertheless conclude that the judgment is against the weight of the evidence.

Id., citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).

In determining whether a conviction is against the manifest weight

of the evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing

so, it must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, 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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d

172, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being against the

manifest weight of the evidence and ordering a new trial should be reserved for only

the “‘exceptional case in which the evidence weighs heavily against the conviction.’”

Id. quoting Martin.
 York makes the same argument with respect to manifest weight of the

evidence that he did regarding sufficiency of the evidence, namely, that the state’s

theory that the victim was substantially impaired is not supported by scientific or

physical evidence. But we previously found this argument to be without merit and

will not address it a second time.

York further contends that because there was no evidence of any

injuries to the victim, “no bruises[,] [n]o scrapes[,] [and] [n]o scratches,” and

because Epps’s and Joiner’s DNA was not found in the victim’s rape kit, the “state’s

theory or J.G.’s story” was not corroborated in any way.

Although Epps’s and Joiner’s DNA was not found in the victim’s rape

kit, York’s was. But York told police that he had never been to Cleveland. Regarding

the fact that the victim had no visible injuries, the SANE nurse testified that it is

possible to have a rape without visible injuries.

After reviewing the entire record, weighing the evidence and all

reasonable inferences, considering the credibility of the witnesses and determining

whether the trial court clearly lost its way and created such a manifest miscarriage

of justice such that York’s sexual battery conviction must be reversed and a new trial

ordered, we find that it did not. This is simply not the exceptional case where the

evidence weighs heavily against the conviction.

We further note that although we are required to independently weigh

the evidence, including the credibility of the witnesses, the Ohio Supreme Court

made clear that we “must always be mindful of the presumption in favor of the finder
of fact.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,

¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273

(1984) (although Eastly was a civil case, the Supreme Court thoroughly discussed

sufficiency and manifest weight of the evidence reviews in civil and criminal cases

and concluded that the reviews are the same whether the case is civil or criminal).

Regarding this presumption in favor of the finder of fact, the Supreme

Court explained:

In weighing the evidence, the court of appeals must always be mindful
of the presumption in favor of the finder of fact. In determining
whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the findings
of fact. * * * If the evidence is susceptible of more than one construction,
the reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining
the verdict and judgment.

Id.

In this case, although the jury found that the state did not prove that

the victim was substantially impaired, it clearly believed the victim that York

committed a sexual act against her when he knew that her ability to appraise the

nature of or control her own conduct was substantially impaired. Although the

evidence presented at trial was susceptible of more than one construction, we are

mindful of the presumption in the favor of the jury.

York’s fourth assignment of error is overruled.

VI. Lesser Included Offense
 In his fifth assignment of error, York argues that the trial court erred

when it instructed the jury on the offense of sexual battery because sexual battery is

not a lesser included offense of rape and the instruction was not warranted by the

facts.

A trial court’s decision to grant or deny a requested jury instruction is

reviewed under an abuse of discretion standard. State v. Williams, 8th Dist.

Cuyahoga No. 90845, 2009-Ohio-2026, ¶ 50. “Abuse of discretion” has been

described as a ruling that lacks a “sound reasoning process.” AAAA Ents., Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). However, whether an offense is a lesser included offense of

another offense is a question of law that we review de novo. State v. Deanda, 136

Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6 (calling the inquiry a “purely

legal question”).

When a lesser included offense is included within the offense charged

in a complaint or indictment, the defendant may be found guilty of the lesser

included offense even though the lesser included offense was not separately charged

in the complaint or indictment. Crim.R. 31(C); see also R.C. 2945.74; State v. Lytle,

49 Ohio St.3d 154, 157, 551 N.E.2d 950 (1990). Lesser included offenses need not

be separately charged because when an indictment or complaint charges a greater

offense, “‘it necessarily and simultaneously charges the defendant with lesser

included offenses as well.’” State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, 905

N.E.2d 151, ¶ 15, quoting Lytle at 157.
 The question of whether a particular offense should be submitted to

the finder of fact as a lesser included offense involves a two-tiered analysis. Deanda

at ¶ 6, citing State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889,

¶ 13. The first tier, also called the “statutory-elements step,” is a purely legal

question, wherein we determine whether one offense is generally a lesser included

offense of the charged offense. Id., citing State v. Kidder, 32 Ohio St.3d 279, 513

N.E.2d 311 (1987).

In determining whether one offense is a lesser included offense of

another, a court must consider whether (1) “one offense carries a greater penalty

than the other,” (2) “some element of the greater offense is not required to prove

commission of the lesser offense” and (3) “the greater offense as statutorily defined

cannot be committed without the lesser offense as statutorily defined also being

committed.” Evans at paragraph two of the syllabus, clarifying State v. Deem, 40

Ohio St.3d 205, 533 N.E.2d 294 (1988). In clarifying Deem, the Ohio Supreme

Court removed the word “ever” from the third prong of the test (which was the

second prong under the Deem test) that had previously stated, “the greater offense

cannot, as statutorily defined, ever be committed without the lesser offense, as

statutorily defined, also being committed.” (Emphasis added.) Evans at ¶ 25.

After it has been determined that the offense is a lesser included

offense, the second tier of determining whether the lesser included offense should

be submitted to the jury mandates that courts look to the evidence in a particular

case and determine whether “‘a jury could reasonably find the defendant not guilty
of the charged offense, but could convict the defendant of the lesser included

offense.’” Deanda at ¶ 6, quoting Evans at ¶ 13; see also State v. Thomas, 40 Ohio

St.3d 213, 216, 533 N.E.2d 286 (1988).

York challenges both prongs of the analysis. In the first part of the

analysis, we must determine if sexual battery is a lesser included offense of rape.

Rape under R.C. 2907.02(A)(1)(c) provides:

No person shall engage in sexual conduct with another * * * when [t]he
other person’s ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age,
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 or because of advanced age.

Sexual battery under R.C. 2907.03(A)(2) provides:

No person shall engage in sexual conduct with another * * * when * * *
[t]he offender knows that the other person’s ability to appraise the
nature of or control the other person’s own conduct is substantially
impaired.

The first step of the Evans test is easily met. Rape under R.C.

2907.02(A)(1)(c) is a first-degree felony, and sexual battery under R.C.

2907.03(A)(2) is a third-degree felony. R.C. 2907.02(B); R.C. 2907.03(B).

The second step requires this court to determine if there is “some

element” of the greater offense that is not required to prove the lesser offense. This

step is easily met as well. Rape requires proof that the victim’s ability to resist or

consent was substantially impaired because of a mental or physical condition.

Sexual battery does not require proof of this element.
 We turn now to the third part of the Evans test, i.e., determining

whether “the greater offense as statutorily defined cannot be committed without the

lesser offense as statutorily defined also being committed.” In discussing this prong,

the Ohio Supreme Court explained after Evans that the specific facts of a particular

case are “still irrelevant,” but courts should “no longer * * * look at the elements in a

vacuum.” Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 18. The

Supreme Court made clear that “a menu of unrelated, fact-specific hypotheticals” or

“implausibles” should not be considered in the analysis. Id.; Evans, 122 Ohio St.3d

381, 2009-Ohio-2974, 911 N.E.2d 889, at ¶ 24. “Rather, it is more instructive to

consider the charged crime’s relationship with potential lesser included offenses,

and then follow the language of the applicable statutes in order to ensure the

defendant’s constitutional right to notice.” Deanda at ¶ 18. In clarifying the Deem

test, the Ohio Supreme Court explained in Evans that the test now “requires a

comparison of the elements of the respective offenses in the abstract to determine

whether one element is the functional equivalent of the other. If so, and if the other

parts of the test are met, one offense is a lesser included offense of the other.” Evans

at ¶ 25.

This court has previously held, even under the more rigid Deem test,

that sexual battery under R.C. 2907.03(A)(2) is a lesser included offense of rape

under R.C. 2907.02(A)(1)(c). State v. Felton, 8th Dist. Cuyahoga No. 92295, 2010-

Ohio-4105, ¶ 35. In finding the Tenth District’s reasoning in State v. Stricker, 10th
Dist. Franklin No. 03AP-746, 2004-Ohio-3557, to be persuasive, we quoted from

Strickler and explained:

“[S]exual battery under R.C. 2907.03(A)(2) does not require that the
offender act with ‘actual knowledge.’ Rather, the statute merely
requires that the offender act ‘knowingly.’ R.C. 2901.22(B) defines
‘knowingly’ as follows:

“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.

“Because ‘knowledge’ as defined above requires no more than a
person’s belief that a set of circumstances ‘probably’ exist, rather than
the person’s absolute or actual knowledge that the circumstances are in
fact true, the mental state attributable to the offender in both the sexual
battery and the rape statute at issue is the same, i.e., knowledge. See In
re Sechler[, 11th Dist. Trumbull No. 96-T-5575, 1997 Ohio App. LEXIS
3886 (Aug. 29, 1997)]. Thus, the mens rea element for rape under R.C.
2907.02(A)(1)(c) is not lesser than the mens rea for sexual battery
under R.C. 2907.03(A)(2).” Id. at ¶ 31.

The Stricker court found sexual battery under R.C. 2907.03(A)(2) to be
a lesser included offense of rape under R.C. 2907.02(A)(1)(c). We
agree. Rape requires that the offender knew or had reason to believe
that the victim’s ability to consent to or resist the offender’s acts was
substantially impaired, while sexual battery requires that the offender
knew the victim’s ability to appraise or control his or her own conduct
was substantially impaired. If an offender knew that a victim could not
appraise or control his or her own acts, then the offender would
certainly know that the victim could not consent to or resist another’s
advances. Thus, the second prong of the Deem test is met [which is the
third prong of the Evans test].

Felton at ¶ 34-35.

We reaffirm our holding in Felton and conclude that the trial court

correctly found that sexual battery under R.C. 2907.03(A)(2) is a lesser included

offense of rape under R.C. 2907.02(A)(1)(c).
 York cites to State v. Hines, 12th Dist. Clermont No. CA2017-06-025,

2018-Ohio-1780, in support of his argument that sexual battery is not a lesser

included offense of rape. Hines, however, dealt with sexual battery under R.C.

2907.03(A)(3), which provides: “No person shall engage in sexual conduct with

another * * * when * * * [t]he offender knows that the other person submits because

the other person is unaware that the act is being committed.” York was convicted of

sexual battery under R.C. 2907.03(A)(2). Accordingly, Hines is inapplicable to this

case.

Having determined that sexual battery under R.C. 2907.03(A)(2) is a

lesser included offense of rape under R.C. 2907.02(A)(1)(c), we now must determine

whether “‘a jury could reasonably find the defendant not guilty of the charged

offense but could convict the defendant of the lesser included offense.’” Deanda,

136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, at ¶ 6, quoting Evans, 122 Ohio

St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889; see also Thomas, 40 Ohio St.3d 213,

216, 533 N.E.2d 286 (1988).

Based on the evidence presented in this case, we conclude that the

jury could have reasonably found York not guilty of rape, but guilty of sexual battery.

If the jury found that the state failed to prove that the victim was impaired, i.e.,

intoxicated or drugged, but found that York knew that the victim was not able to

appraise the nature of or control her own conduct due to her substantial

impairment, then the jury could find that the state proved the elements of sexual
battery but not rape. We therefore find that the trial court did not err when it

instructed the jury on sexual battery.

Accordingly, we overrule York’s fifth assignment of error.

VII. Sentence

In his second assignment of error, York argues that his three-year

prison sentence was contrary to law because the trial court “erroneously considered

as a seriousness factor the fact [that] the underlying offense was a sex offense.” He

further contends that the trial court failed to consider his age at the time of the

offense as a mitigating factor.

R.C. 2953.08(G)(2) states that when reviewing felony sentences, an

“appellate court’s standard for review is not whether the sentencing court abused its

discretion.” Rather, the statute states that if we “clearly and convincingly” find that

(1) “the record does not support the sentencing court’s findings under” certain

sentencing provisions not at issue in this case, or that (2) “the sentence is otherwise

contrary to law,” then we “may increase, reduce, or otherwise modify a sentence * * *

or [we] may vacate the sentence and remand the matter to the sentencing court for

resentencing.”

When sentencing a defendant, the court must consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,

2013-Ohio-5025, ¶ 7. In this case, York challenges only the trial court’s findings

under R.C. 2929.12.
 R.C. 2929.12 sets forth a nonexhaustive list of factors that the court

must consider in relation to the seriousness of the underlying crime and likelihood

of recidivism, including “(1) the physical, psychological, and economic harm

suffered by the victim, (2) the defendant’s prior criminal record, (3) whether the

defendant shows any remorse, and (4) any other relevant factors.” State v.

Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 26, citing R.C.

2929.12(B) and (D).

However, the trial court is not required to use particular language or

make specific findings on the record regarding its consideration of the factors under

R.C. 2929.11 or 2929.12 before imposing the sentence. State v. Boczek, 8th Dist.

Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 22, citing State v. Wilson, 129 Ohio St.3d

214, 2011-Ohio-2669, 951 N.E.2d 381. In fact, “[c]onsideration of the factors is

presumed unless the defendant affirmatively shows otherwise.” State v. Seith, 8th

Dist. Cuyahoga No. 104510, 2016-Ohio-8302, ¶ 12, citing State v. Keith, 8th Dist.

Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234. The Ohio Supreme Court

recently reaffirmed this holding in State v. Jones, Slip Opinion No. 2020-Ohio-

6729, ¶ 20.

At the sentencing hearing, the trial court stated in relevant part:

Mr. York, when I look at the factors here, I have to look at the factors
as to what occurred here as the injury to the victim, psychological and
physical condition. The economic harm. There is no doubt that this
offense is the victim’s own testimony and her own statement to this
court how this has psychologically harmed her. The fact that I look at
this, that this was a sexual offense is also a serious factor that this court
has to consider.
 When I look at the less serious offenses, there is clear testimony in this
case that alcohol was involved, people were drinking and the fact that
she was looking, I think in her words, for a kick at that party that night,
I don’t know if you want to call that a less serious offense, but there was
alcohol being used and I think that’s where the jury came back with a
lesser included of sexual battery on this case.

When I look at the recidivism factors, it is clear your criminal history,
that you have been convicted of crimes of unarmed robbery, drugs,
receiving stolen property, OVI. You were given probation and there
was probation terminated and a sentence imposed. So you have a
criminal history, but not for sex offenses.

So then I have to look at this and what makes it tragic is that
unfortunately for you, medical technology and DNA has advanced to a
point where you could be in a crime 23 years later. When I look at what
occurred 23 years ago, you made a mistake that night. I heard from
your family and there is no question by the comments of your family
and friend that you are a good father, good husband, good friend, and
a person who has done good things well in this world.

However, I have to look at the crime that occurred in 1999 when you
were 23 years old and I have to impose a sentence based on a crime that
occurred and the facts of this case. When I look at those factors and I
look at the violence that occurred, the sexual violence that occurred
with this woman and the factors I just went over in 2929.11, a prison
sentence would be appropriate.

With respect to York’s argument that the trial court failed to take his

age at the time of the offense into consideration, we note again that the trial court

did not have to explicitly discuss any mitigating factors on the record. In this case,

however, the trial court did just that. It discussed York’s young age at the time of

the crime more than once when it was sentencing York. Therefore, the trial court

clearly considered York’s age when deciding what sentence to impose.

York further argues that the trial court improperly considered the

nature of his offense, namely, the fact that it was a sex offense, as an aggravating
factor when sentencing him. He cites to several cases in support of his argument.

These cases, however, stand for the proposition that if a trial court considers only an

element of the offense as an aggravating factor, without considering any other factor,

it is improper. For example, in one of the cases cited by York, State v. Stroud, 7th

Dist. Mahoning No. 07 MA 91, 2008-Ohio-3187, the trial court found that Stroud

committed the worst form of the offense based solely on the fact that “a life was

taken” when Stroud committed the offense of voluntary manslaughter. The Seventh

District held that because the trial court did not explain how this was something

more than an element of the offense and was “present in every case where a court is

sentencing an offender for a voluntary manslaughter[,] * * * highlighting this fact

does not show why this particular case is a more serious form of that offense.” Id. at

¶ 52.

In this case, however, the trial court gave many reasons for imposing

its sentence (even though it did not have to), including the psychological harm that

York caused the victim. The victim informed the court in the presentence

investigation report that the crime still affects her. She stated that she does not go

anywhere by herself and is always with her husband. She further stated that she is

“paranoid.” Therefore, the cases that York cites to are inapplicable here.

Additionally, the cases York cites to (except for Stroud) were all pre-

Foster cases when a trial court had to find that an offense was the worst form of the

offense before sentencing an offender to the maximum sentence. See State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; former R.C. 2929.14(C). Former
R.C. 2929.14(C) only authorized a trial court to impose the maximum sentence upon

the following: (1) offenders who committed the worst forms of the offense; (2)

offenders who posed the greatest likelihood of committing future crimes; (3) certain

major drug offenders; and (4) certain repeat violent offenders. The statute

embodied a public policy disfavoring maximum sentences except for the most

deserving offenders. State v. Edmonson, 86 Ohio St.3d 324, 328, 326, 1999-Ohio-

110, 715 N.E.2d 131.

Pre-Foster, trial courts also had to make certain findings before

imposing a sentence that was more than the minimum sentence allowed. Former

R.C. 2929.14(B) (trial courts had to impose the shortest prison sentence unless the

trial court found “(1) The offender was serving a prison term at the time of the

offense, or the offender previously had served a prison term” or “that the shortest

prison term will demean the seriousness of the offender’s conduct or will not

adequately protect the public from future crime by the offender or others.”).

In one of the other cases cited by York, State v. Clagg, 4th Dist.

Washington No. 04CA30, 2005-Ohio-4992, the Fourth District found that the trial

court erred when sentencing the defendant for aggravated arson because it

considered the danger that Clagg posed to firefighters when committing the offense.

Id. at ¶ 26. The court explained that “[b]ecause the risk of harm to the firefighters

was an element of the offense, we find that the trial court could not properly consider

it as a factor justifying a greater than minimum sentence without explaining why the

danger was something more than a required element of the offense.” Id.
 However, in Foster, the Ohio Supreme Court held in pertinent part

that “[t]rial courts have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings or give their reasons for

imposing maximum, consecutive, or more than the minimum sentences.” Id. at

paragraph seven of the syllabus. Although the General Assembly revived the

consecutive sentencing provision in Am.Sub.H.B. No. 86, which became effective on

September 30, 2011, it never revived the “more than the minimum” and maximum

sentencing provisions. State v. Blackburn, 8th Dist. Cuyahoga Nos. 97811 and

97812, 2012-Ohio-4590, ¶ 30; State v. McHugh, 8th Dist. Cuyahoga No. 108372,

2020-Ohio-1024, ¶ 22. Therefore, the cases that York cites to are not applicable.

We further note that in making these arguments, York is essentially

challenging the trial court’s weighing of the seriousness and recidivism factors set

forth in R.C. 2929.12 and asking this court to independently reweigh those factors.

With respect to our review of a trial court’s consideration of the factors set forth in

R.C. 2929.12, the Ohio Supreme Court recently explained:

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a
sentence if it clearly and convincingly finds that “the record does not
support the sentencing court’s findings under” certain specified
statutory provisions.” But R.C. 2929.11 and 2929.12 are not among the
statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C.
2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are
specified.

***

R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and
2929.12.
 ***

Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a
freestanding inquiry like the independent sentence evaluation [the
Supreme Court] must conduct under R.C. 2929.05(A) when reviewing
a death penalty-sentence.

Jones, Slip Opinion No. 2020-Ohio-6729, ¶ 28, 39, 42.

We therefore cannot do what York is requesting us to do, namely,

independently weigh the evidence in the record and substitute our judgment for that

of the trial court regarding the seriousness and recidivism factors set forth in R.C.

2929.12. Because we cannot second guess the trial court’s application of these

factors, York’s argument is without merit.

Accordingly, we overrule York’s second assignment of error.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR