Gasper

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

MARK GASPER,

Petitioner, : Case No. 1:25-cv-00731

- vs - District Judge Jeffery P. Hopkins

Magistrate Judge Michael R. Merz

WARDEN,

Madison Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Mark Gasper to obtain relief from his

conviction for rape in the Hamilton County Court of Common Pleas, is before the Court for

decision on the merits. Relevant pleadings are the Petition (ECF No. 1), the State Court Record

(ECF No. 14), the Return of Writ (ECF No. 12), and Petitioner’s Traverse ()ECF No. 27).

Litigation History

On November 21, 2019, the Hamilton County Grand Jury handed down an indictment

charging Gasper with seven counts of rape in violation of R.C. 2907.02(A)(1)(c)(Indictment, State

Court Record, ECF No. 14, Ex. 1). A trial jury found Gasper guilty on Count One, but not guilty

on the remaining counts. Id. at Exs. 12, 13. Gasper appealed, but the verdict was affirmed. State

v. Gasper, 2023-Ohio-1500 (Ohio App. 1st Dist, May 5, 2023). The Ohio Supreme Court accepted

jurisdiction of Gasper’s further appeal, but affirmed. State v. Gasper, 176 Ohio St.3d 563 (2024).

Gasper then1 filed his Petition in this Court, pleading the following Grounds for Relief:

GROUND ONE: The State of Ohio erred by failing to suppress

Nestheide's testimony involving the GSKQ [General Sexual

Knowledge Questionnaire] .

Supporting Facts: Petitioner, Gasper argued in his first assignment

of error that the GSKQ is not an objectively verifiable measure of

sexual knowledge for purposes of assessing a person's capacity to

consent, that it is not generally accepted testimony in the

psychological field and therefore, Nestheide's report and testimony

involving the GSKQ was inadmissible. The State ultimately

decided, after some hard faught [sic] search for supporting case law,

that there is no single generally-accepted test that is better than

another. Nestheide also offered that a 2017 scientific paper

identified the GSKQ as a commonly-used tool to assess. sexual

knowledge. Nestheide used multiple tests to conclude that K.W. was

unable to consent. Moreover, Nestheide interviewed K. W. and

evaluated her personally to conclude that she was unable to consent.

Additionally, Gasper was able cross-examine [sic] Nestheide about

the GSKQ.

The States decision creates a pure question of law that resulted in a

decision that was contrary to, or a mixed question of law and facts

that involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States under 28 USCS 2254 (d)(l).

Ground Two: The State of Ohio erred convicting Gasper based on

insufficient evidence of a substantial impairment.

Supporting Facts: Petitioner asserts that the evidence was

insufficient to convict him because the state failed to prove both that

K.W.'s ability to consent was substantially impaired by her

medication or low I.Q. and that Gasper had knowledge of any

impairment. The State subsequently found that although substantial

impairment may be established through expert testimony, it is not

required. Substantial impairment also may be established through

lay testimony. Id. K.W.'s I.Q. was 66 in 2003 and 76 by 2019.

Dreyer and Nestheide agree that K.W. has borderline intellectual

1 Respondent concedes the Petition was timely filed.

functioning. Additionally, K.W., who was in her 30s, had never

lived independently. Her "constellation of physical conditions"

required regular support. K.W. received services through DDS at

least until the age of majority and became eligible for DDS services

again in August 2019. K.W. testified that her DDS services should

never have been discontinued. And the Mayerson Center does not

evaluate normally functioning adults. Even through Petitioners

expert testifying that K.W. could consent to sex, Nestheide testified

that she could not. This case truly was a battle of the experts.

But when the court viewed it in a light most favorable to the

prosecution, testimony that a victim had a learning disability

satisfied the "mental condition" component of Ohio's Law.

The States decision creates a mixed question of law and facts that

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States under

28 USCS 2254 (d)(l).

Ground Three: The State of Ohio erred by admitting other-acts that

was [sic] prejudicial in swaying the jury against him.

Supporting Facts: Petitioner argues that the other-acts evidence in

which K. W. asserted that Gasper had killed her dog, Candy, should

have been excluded because it was not relevant to whether K.W. had

the ability to consent or resist due to a substantial mental

impairment. He further argues that this evidence was prejudicial in

swaying the jury against him. The State determined that the

accusation that Gasper killed K.W.'s dog was intrinsic to the offense.

K.W. testified that she believed Gasper had killed Candy so that

K.W. would move to Tennessee with him and because Candy barked

at Gasper when he was in K.W.'s bed, which was in her parents'

home. The testimony did not involve acts extrinsic to the offenses

for which Gasper was accused. Instead, they involved an act that, if

it occurred, would have helped facilitate Gasper's engaging in sex

with K.W.

The States decision creates a mixed question of law and facts that

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States under

28 USCS 2254 (d)(l) or it involved a question of pure fact which

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding, 28 USCS 2254 (d)(2).

Ground Four: The State Of Ohio Denied Petitioner His 5th

Amendment To The United States Constitution, Right To A Fair

Trial, Present A Complete Defense And Due Process As Has Been

Held In The 14th Amendment To The United States Constitution

When It Denied His Motion For New Trial Due To The

Misrepresentation To The Jury Concerning The Use Of Regularly

Prescribed Medicine.

Supporting Facts: Petitioner argued to the Supreme Court of Ohio

that the standard jury instruction on substantial impairment is flawed

because it implies that the term can relate only to a temporary

condition and that the use of that instruction in this case opened the

door for Gasper to be improperly convicted based on evidence of

K.W.'s having taken her usual, prescribed medication, which was

contrary to the State's original theory of the case.

The Ohio Supreme Court found first clarified that the impairment

must exist at the time of the events in question. Gasper failed to

identify any decision or other source (outside of his own argument)

indicating that the language caused confusion for anyone in the 37

years since that decision was announced. Furthermore, Gasper failed

to object at trial to the jury instruction that he now challenges and

has not established that he suffered any prejudice from the trial

court's jury instruction that affected his substantial right. Thus

petitioner could not demonstrate plain error.

The State’s judgement creates a pure question of law that resulted in

a decision that was contrary to United States Supreme Court Law.

Even more, there may also be a mixed question of law and facts that

resulted in its decision being an unreasonable application. If this is

the case then AEDPA Deference does not apply because the state

arrived at a factual conclusion based upon an incomplete or incorrect

set of facts.

(Petition, Doc. 1, PageID 5-12).

Analysis

Ground One: Admission of Improperly Qualified Testimony

In his First Ground for Relief, Petitioner complains that the trial court improperly admitted

testimony of an expert witness based on inadequately qualified expert testimony. The trial court

did so by failing to suppress Dr. Nestheide's testimony involving the GSKQ [General Sexual

Knowledge Questionnaire] .and then allowing the jury to hear that testimony and base its verdict

on it.

Respondent argues that this does not state a claim for relief in habeas corpus (i.e. is not

cognizable) because there is no United States Supreme Court case law setting the parameters of

admissible expert testimony.

Gasper argues in his Traverse:

Specifically counsel stated "the report as well as Dr. Nestheides

testimony must, therefore be excluded as evidence pursuant to Ohio

Evid. R. 702, Miller v. Bike Athletic Co. (1998), 80 Ohio St. 3d 607

and Daubert v. Merrell Dow Phaims., Inc., 509 U.S. 579 (1993)...

and their progeny." Doc., ECFll,PageID#57).

Counsel started his argument by invoking the controlling United

States Supreme Court Law of Daubert. (Doc., ECF 11,

PageID#183). The application of Ohio Evid. R. 702 and Daubert are

distinct. Evid. R. 702 addresses preconditions to the admissibility of

evidence. See State V. Nemeth. 82 Ohio St. 3d 202.208 (1998).

Daubert, on the other hand, demands courts to also evaluate if the

evidences probative value is not substantially outweighed by unfair

prejudice, so as not to run afoul of due process and at its core

petitioner's right to a fair trial under the United States Constitution's

Sixth and Fifth Amendments. See Daubert. 509 U.S. at 590. The

courts gatekeeping function is a constitutional one. Therefore

Ground One is cognizable in the federal arena.

(Traverse, ECF No. 27, PageID 4713).

This argument misses a critical distinction: Daubert is not a constitutional decision. In

deciding the Daubert case, the Supreme Court was interpreting Fed. R. Evid. 702 which governs

the admission of expert evidence in trials in federal court. In doing so, it held that adoption of the

Federal Rules of Evidence had displaced the prior test for admission of expert testimony from Frye

v. United States, 293 F. 1013 (D.C. Cir. 1923). It held that the Federal Rules of Evidence, which

the Supreme Court itself had adopted under the Rules Enabling Act, were to be interpreted like

any statute. The Supreme Court has never held that Daubert is binding in any state court by virtue

of the United States Constitution. It is binding in federal courts because the Rules Enabling Act

gives Court authority to enact rules of procedure to be applied in federal courts, such as the Rules

of Civil Procedure and the Rules of Criminal Procedure. Ohio has a rule of evidence which

parallels Fed. R. Evid. 702, but it is binding in Ohio trial courts by virtue of the Ohio Supreme

Court’s authority to adopt such rules.

Neither the United States Supreme Court nor the Sixth Circuit has ever held that Daubert

is binding on Ohio courts by virtue of the federal Constitution. Therefore even if admission of the

GSKQ [General Sexual Knowledge Questionnaire] or Dr. Nestheide’s testimony based on it would

have violated Daubert, that would not be a basis for granting relief because, as Petitioner

acknowledges, habeas corpus relief is limited to convictions which violate the United States

Constitution. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497

U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939

(1983).

Ground One should be dismissed because it does not state a claim cognizable in federal

habeas corpus.

Ground Two: Insufficient Evidence on the Element of Substantial Impairment

In Ground Two, Gasper asserts he was convicted on insufficient evidence of a critical

element of the charged offense.

Unlike Ground One, Gasper’s Ground Two does state a claim cognizable under the

Fourteenth Amendment. An allegation that a verdict was entered upon insufficient evidence states

a claim under the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970);

Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th

Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the

crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he 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 . . . . This familiar standard 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 v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson). This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits 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.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). When reviewing a claim for sufficient

evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,

567 U.S. 37, 43 (2012) (per curiam). In a sufficiency of the evidence habeas corpus case, deference

should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate

court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652

(6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.

Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing

more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

The First Count of the Indictment charged Gasper

engaged in sexual conduct to wit: cunnilingus, with K.W.,” whose

ability to resist or consent was substantially impaired because of a

mental or physical condition or because of advanced age, and the

defendant knew or had reasonable cause to believe that K.W.'s

ability to resist or consent was substantially impaired because of a

mental condition, physical condition or because of advanced age, in

violation of Section 2907.02(A)(l)(c) of the Ohio Revised Code.”

(Indictment, State Court Record, ECF No. 14, Ex. 1). Trial proof focused on K.W.’s mental

capacity. On appeal to the First District, Gasper raised this insufficient evidence claim as his

second assignment of error and the First District decided it as follows:

{¶18} A 2003 letter from K.W.’s pediatric neurologist stated that

K.W.’s I.Q. was 66 and she “associates better with 12-year-old peers

than same-aged peers.”

{¶19} D.W. (K.W.’s father) testified that K.W. is “mentally about

14 years old.” D.W. discussed the physical and developmental

issues that K.W. had experienced growing up. He said that K.W.

was in special classes in school, had participated in programs

designed to help developmentally-disabled individuals get jobs and

strive for independence, and had been collecting supplemental

social security income (“SSI”) since she was 21 (after the adoption

subsidy ran out). D.W. testified that K.W. was unable to obtain a

driver's license or employment despite the training due to her

developmental delays.

{¶20} K.W. testified about her developmental delays, stating that

she should never have been disconnected from DDS services. K.W.

stated, “The thing with cerebral palsy and intellectual disabilities

and mental challenges, I don't understand everything and I don't

remember everything. I have short-term memory loss. I was in

special classes at school.” K.W. discussed Project Search and the

Developmental Disabilities Behavioral Pediatrics Clinic, where she

trained in hopes of becoming employed. K.W. had never been able

to secure a job. K.W. was very involved with the Special Olympics.

{¶21} K.W. struggled to explain concepts. When explaining the first

night that she and Gasper engaged in intercourse, she stated, “Well

this was the first night of actual—I guess everybody has been calling

it intercourse.” When asked what she meant by “he did oral,” she

responded, “[i]t was like oral sex, I guess, is how you explain it.”

She struggled to remember the places Gaspar touched her body.

K.W. expressed discomfort with talking about the incidents. She

said she could not explain to the jury what happened “like [she] was

able to before” because she could remember more when it first

happened when “[i]t was freshly in [her] mind.” Instead of making

her name body parts in open court, the court permitted K.W. to circle

parts on anatomical pictures. K.W. struggled to discuss the final

sexual encounter with Gaspar, repeatedly saying, “I can do this.”

{¶22} K.W. appeared to be frustrated during cross-examination

when responding to counsel's repeatedly asking why she did not

refuse Gasper. K.W. once responded, “I wish it was that easy. I don't

know if I could have. I don't know if I could have. I was stuck. I

couldn't get out of anything. The only thing I had freedom for was

Special Olympics.” She also responded, “What was I supposed to

do? I had said no many times. Just because I don't say it, I shake my

head no. It didn't matter. Why don't you understand that?” K.W.

expressed that she did not know what to do and she wanted to tell

somebody.

{¶23} Nestheide testified to administering the MMSE-2, explaining

that it tests whether there is “any kind of impairment in somebody's

cognitive functioning.” K.W. scored 27 out of a possible 30 points,

and “those tests are essentially designed so that most everyone

would get every point available.” Nestheide asserted that K.W.’s

score was lower than would be expected, being that she had

graduated from high school.

{¶24} Nestheide explained that, considering K.W.’s results on the

MMSE-2, the Vineland, and the Wechsler, K.W. was in the

borderline range of intellectual functioning, which used to be called

“mental retardation.” He explained that people who function in this

range tend to be gullible, naïve, struggle with problem solving in

social situations, can have difficulty understanding the intentions of

others, and more. While people with borderline intellectual

functioning can handle most of their day-to-day activities by

themselves, they struggle “a little bit more” when they are in unusual

situations.

{¶25} Nestheide testified that he considered her rationality,

knowledge, and voluntariness when determining K.W.’s ability to

consent to sex. He tested K.W.’s rationality via the MMSE-2, the

Vineland, and the Wechsler tests. K.W.’s score was lower than 95

percent of the population, rendering her rationality impaired due to

her overall cognitive functioning. Nestheide testified that this affects

K.W.’s ability to agree to engage in sexual activity.

{¶26} Nestheide testified that the GSKQ is used to test the sexual

knowledge of people with or without disabilities. It covers whether

the person understands anatomy and physiology, acts of sexual

activity, risks of pregnancy and illness, and more. He added that

there are a variety of tools to make these findings and there is no

tool that is generally accepted over another. K.W. scored 57 points

out of a possible 110. Her “knowledge of sexual activity was more

consistent to the knowledge that people with a more significant

intellectual disability might have.” Nestheide testified that the

GSKQ revealed that K.W.’s sexual knowledge is impaired because

her scores were closer to what would be expected of someone with

a more significant disability.

{¶27} Voluntariness is the “ability to express and act on the choice

to engage or not engage in sexual activity.” K.W. informed

Nestheide that she told Gasper, “No,” because she did not want to

engage in sexual activity, but she “ultimately complied because

there were threats made against her siblings.” Nestheide concluded

that K.W.’s results did not meet the voluntariness standard because

she complied due to feeling threatened, and K.W.’s belief that

Gasper had killed Candy also impaired voluntariness.

{¶28} When asked on cross-examination whether rationality,

voluntariness, and knowledge were like “a three-legged stool” that

falls over when one leg is taken away, Nestheide responded, “I

haven't seen it written in the literature that if one were removed, that

would change the ultimate outcome.” He later stated that he believed

that all three legs are needed.

* * *

C. Gasper's conviction was supported by sufficient evidence.

{¶60} Gasper's second assignment of error asserts that the evidence

was insufficient because the state failed to prove both that K.W.’s

ability to consent was substantially impaired by her medication or

low I.Q. and that Gasper had knowledge of any impairment.

{¶61} The test for determining the sufficiency of the evidence 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.” State

v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595,

¶ 12, quoting Martin, 20 Ohio App.3d 172, 485 N.E.2d 717. It is a

question of law for the court to determine, and this court is not to

weigh the evidence unless, after viewing the evidence, it weighs

heavily against conviction. Id. at ¶ 12.

{¶62} Gasper was convicted of rape under R.C. 2907.02(A)(1)(c).

It provides:

No person shall engage in sexual conduct with another who is not

the spouse of the offender * * * 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.

{¶63} The term “substantially impaired” is commonly understood

to be consistent with “a present reduction, diminution, or decrease

in the victim's ability” to control, or appraise the nature of, the

defendant's conduct. State v. Jordan, 1st Dist. Hamilton Nos. C-

210198 and Hamilton Nos. C-210199, 2022-Ohio-1512, ¶ 14,

quoting State v. Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414

(1987) (interpreting “substantial impairment” under R.C.

2907.03(A)(2)). Ohio courts have routinely applied this definition

in cases of gross sexual imposition and rape of a victim impaired

due to a cognitive disability or voluntary intoxication. State v.

Yerkey, 7th Dist. Mahoning No. 20MA0087, 2021-Ohio-3331, ¶ 29.

{¶64} Although substantial impairment may be established through

expert testimony, it is not required. State v. Slaughter, 2d Dist.

Montgomery No. 25270, 2013-Ohio-1824, ¶ 7. Substantial

impairment also may be established through lay

testimony. Id. Viewed in a light most favorable to the prosecution,

testimony that a victim had a learning disability satisfied the “mental

condition” component of R.C. 2907.02(A)(1)(c). State v. Wolff, 7th

Dist. Mahoning No. 07 MA 166, 2009-Ohio-2897, ¶ 68.

Sufficient evidence supported K.W.’s lack of capacity to consent

¶65} The testimony established that K.W. was in special education

classes, had cognitive delays, and was in the borderline range of

intellectual functioning, which used to be called “mental

retardation.” Nestheide testified that people in K.W.’s intelligence

range tend to be naïve, gullible, and have difficulty understanding

the intentions of others. See State v. Bohannon, 1st Dist. Hamilton

No. C-880004, 1989 WL 22007, 1, 1989 Ohio App. LEXIS 831, 3

(Mar. 15, 1989) (psychologist's report evaluating extent of victim's

developmental delays is “sufficient evidence to permit reasonable

minds to reach different conclusions as to whether the victim's

ability to appraise the nature of or control her conduct was

substantially impaired”); State v. Joseph, 1st Dist. Hamilton No. C-

840751, 1985 WL 8947, 3, 1985 Ohio App. LEXIS 6953, 8-9 (July

24, 1985) (“[a] finding of mental retardation * * * could logically

lead one to believe that a person * * * is substantially impaired”

under R.C. 2907.03.).

{¶66} K.W.’s I.Q. was 66 in 2003 and 76 by 2019. Dreyer and

Nestheide agree that K.W. has borderline intellectual functioning.

Additionally, K.W., who was in her 30s, had never lived

independently. Her “constellation of physical conditions” required

regular support. K.W. received services through DDS at least until

the age of majority and became eligible for DDS services again in

August 2019. K.W. testified that her DDS services should never

have been discontinued. And the Mayerson Center does not evaluate

normally functioning adults.

{¶67} Dreyer testified that K.W. could consent to sex. Nestheide

testified that she could not. This case truly was a battle of the

experts. Sufficient evidence supported K.W.’s lacking the capacity

to consent to sexual activity.

Gasper had knowledge of K.W.’s substantial impairment

{¶68} A person acts with “knowledge of circumstances when [he]

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

When a defendant's “knowledge of the existence of a particular fact

is an element of an offense, such knowledge is established if [the

defendant] subjectively believes that there is a high probability of

its existence and fails to make inquiry or acts with a conscious

purpose to avoid learning the fact.” Id. A defendant's knowledge

“may be reasonably inferred from a combination of the victim's

demeanor and others’ interactions with the victim.” (Citations

omitted.) Jordan, 1st Dist. Hamilton Nos. C-210198 and Hamilton

Nos. C-210199, 2022-Ohio-1512, at ¶ 16, quoting State v. Foster,

2020-Ohio-1379, 153 N.E.3d 728, ¶ 48 (8th Dist.).

{¶69} Gasper had been working for K.W.’s family for years when

his sexual involvement with K.W. came to light. He acknowledged

the challenges that K.W. faced but minimized them by emphasizing

that she was an adult, contending that her family “infantilized” her,

and insisting that her cognitive functioning is in the normal range.

{¶70} But other witnesses’ testimony established that Gasper knew,

or had reasonable cause to believe, that K.W.’s ability to consent

was substantially impaired. The evidence, including K.W.’s

testimony itself, was sufficient to support inferred knowledge. We

overrule Gasper's second assignment of error.

State v. Gasper, supra.

Thus the Ohio First District Court of Appeals applied the same test enunciated in Jackson,

albeit as that standard is embodied in Ohio case law. Under the Antiterrorism and Effective Death

Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), this habeas court is

required to defer to that decision unless it is an objectively unreasonable application of Jackson.

In arguing the merits of this claim, Gasper focuses on the fact that the State’s expert witness

testified that the victim’s ability to consent was impaired but the defense expert testified to the

contrary. He notes that the jury found him guilty of only one count and not guilty on six others.

But that result could well evidence a jury compromise. Because the sexual encounters between

the two went on some time, the jury may have felt that Gasper was more guilty for the first time

or that his being punished for the first time was sufficient punishment under the circumstances.

Juries do not explain their verdicts. Constitutional assessment of those verdicts must depend on

evaluating the evidence as to each count of conviction. Here there was competent evidence of the

victim’s impairment as to Count One and the jury relied on that evidence to convict. The First

District’s decision upholding that conviction is neither contrary to nor an objectively unreasonable

application of Jackson. Ground Two should therefore be dismissed on the merits.

Ground Three: Improper Admission of Other Acts Evidence

In his Third Ground for Relief, Gasper argues the trial court improperly admitted other acts

evidence which prejudiced him. This claim was submitted to the First District Court of Appeals

as Gasper’s Fourth Assignment of Error and that court decided it as follows:

{¶77} In his fourth assignment of error, Gasper argues that the other-

acts evidence in which K.W. asserted that Gasper had killed her dog,

Candy, should have been excluded because it was not relevant to

whether K.W. had the ability to consent or resist due to a

substantial mental impairment. He further argues that this evidence

was prejudicial in swaying the jury against him.

{¶78} “Evid.R. 404(B) only applies to ‘[e]vidence of other crimes,

wrongs, or acts’ extrinsic to the charged offense and not those acts

that are intrinsic to the offense.” State v. Ludwick, 4th Dist.

Highland No. 21CA17, 2022-Ohio-2609, ¶ 21, quoting State v.

Lotzer, 3d Dist. Allen No. 1-20-30, 2021-Ohio-3701, ¶ 10.

{¶79} The trial court determined that the accusation that Gasper

killed K.W.’s dog was intrinsic to the offense. We agree. K.W.

testified that she believed Gasper had killed Candy so that K.W.

would move to Tennessee with him and because Candy barked at

Gasper when he was in K.W.’s bed, which was in her parents’ home.

The testimony did not involve acts extrinsic to the offenses for

which Gasper was accused. Instead, they involved an act that, if it

occurred, would have helped facilitate Gasper's engaging in sex with

K.W.

¶80} Gasper's fourth assignment of error is overruled.

State v. Gasper, supra.

As can be seen, the First District decided that evidence about the killing of K.W.’s dog was

not extrinsic to the underlying charge of rape, but intrinsic to the charge for which Gasper was on

trial. That is, it was not “other acts” evidence, but evidence inferentially related to the crime that

was charged.

But even if the Court of Appeals had found it was extrinsic but held it not to be reversible

error, that would not support granting the writ because the allowance of other bad acts evidence

has never been held by the Supreme Court to violate the Constitution. The Sixth Circuit has held

“[t]here is no clearly established Supreme Court precedent which holds that a state violates due

process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to reach the

issue in Estelle v. McGuire. 502 U.S. 62 (1991).

Gasper’s Third Ground for Relief is not cognizable in habeas corpus and should therefore be

dismissed.

Ground Four: Failure to Grant a New Trial

In his Fourth Ground for Relief, Gasper asserts he was denied due process when his motion

for new trial was denied.

Like Grounds One and Three, Ground Four also does not state a claim for relief cognizable

in habeas corpus. There is no clearly established Supreme Court precedent which holds that under

certain circumstances – for example, persuasive new evidence – a State must grant a criminal

defendant a new trial. Nor is there any clearly established Supreme Court precedent which dictates

the procedure which must be followed when a defendant seeks a new trial.

As often occurs in habeas corpus cases, a petitioner believes he has been denied a procedure

or an outcome from some process which is prescribed in state law. After he loses in the state court,

he claims that denial was denial of a process he was due, or “due process.” The Sixth Circuit has

held “A state cannot be said to have a federal due process obligation to follow all of its procedures;

such a system would result in the constitutionalizing of every state rule, and would not be

administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907

(1993).” Although most if not all States have a process for considering whether a criminal

defendant should be granted a new trial, there is no clearly established Supreme Court precedent

establishing such a process as required by the Fourteenth Amendment.

Gasper’s Fourth Ground for Relief should be dismissed as not cognizable in habeas corpus.

Conclusion

In accordance with the foregoing analysis, the Magistrate Judge respectfully recommends

the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

be permitted to proceed in forma pauperis.

April 23, 2026.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such

objections shall specify the portions of the Report objected to and shall be accompanied by a

memorandum of law in support of the objections. A party may respond to another party’s

objections within fourteen days after being served with a copy thereof. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. #

18