Opinion

State v. McIntosh

2022 Ohio 3771

Court: Ohio Court of Appeals
Filed: Oct 21, 2022
Status: Published
On the bench: Mayle
Cited by: 1 cases
Authority: More cited than 45.3%

The opinion

[Cite as State v. McIntosh, 2022-Ohio-3771.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio Court of Appeals No. L-21-1207

Appellee Trial Court No. CR0202001756

Jerronn McIntosh, Jr. DECISION AND JUDGMENT

Appellant Decided: October 21, 2022

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and

Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

*****

MAYLE, J.

{¶ 1} Following a jury trial, defendant-appellant, Jerronn McIntosh, Jr., appeals

the August 10, 2021 judgment of the Lucas County Court of Common Pleas, convicting

him of two counts of rape and sentencing him to concurrent indefinite sentences of six to

nine years’ imprisonment. For the following reasons, we affirm the trial court judgment.

I. Background

{¶ 2} Jerronn McIntosh, Jr. was charged with two counts of rape,1 violations of

R.C. 2907.02(A)(1)(c), after his then-16-year-old cousin, T.M., claimed that he

performed oral sex on her and then penetrated her vagina with his penis. This provision

of the rape statute prohibits a person from engaging in sexual conduct with another when

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. The

state maintained that McIntosh knew or had reason to know that T.M. is developmentally

disabled, therefore, her ability to resist or consent was substantially impaired.

{¶ 3} The case was tried to a jury beginning June 21, 2021. T.M. claimed that on

the night in question, McIntosh took her to the store, then asked her to come over to his

house to babysit his son. While at McIntosh’s home, McIntosh asked T.M. to smoke

marijuana, and she said yes. At some point thereafter, McIntosh pulled down her pants

and put his tongue on her vagina. T.M. described that she couldn’t talk, couldn’t move,

“couldn’t do nothing.” McIntosh then brought her to his room and inserted his penis into

her vagina. He told her to tell him if it hurt. She told him it hurt, then he stopped.

McIntosh was initially charged with four counts of rape, but the state dismissed Counts

1 and 2 (alleging violations of R.C. 2907.02(A)(1)(a)) and renumbered Counts 3 and 4

(alleging violations of R.C. 2907.02(A)(1)(c)) as Counts 1 and 2.

McIntosh told her not to tell anyone, and he gave her $60. T.M. called her sister, then

called her mother, A.M., to pick her up. McIntosh left before A.M. arrived. When she

got in the car, T.M. told A.M. that McIntosh raped her. A.M. took T.M. to the hospital

where she was seen by a nurse who specializes in examining victims of sexual assault (a

“SANE” nurse).

{¶ 4} A rape kit was performed at the hospital. Vaginal and anal swabs revealed

DNA from T.M. and a male, but the quality was not sufficient to identify the second

contributor. Pubic combings revealed DNA from T.M. and a male contributor consistent

with McIntosh’s DNA profile. The occurrence of the DNA profile consistent with

McIntosh’s DNA was one in 300 billion.

{¶ 5} McIntosh testified in his own defense. He said that he asked T.M. to babysit

his son so he could sleep before going in to work the next morning. He smoked “a

blunt”—but denied that he offered any to T.M.—then went to sleep. He claimed that he

awoke to find T.M. on top of him, grinding on him with her pants and underwear off. He

threw her off him and said he was going to tell her mother. He then left to get some air,

leaving T.M. at his house with his son.

{¶ 6} McIntosh insisted that he did not have oral or vaginal sex with T.M. He

testified that his shorts were on, he was not erect, and his penis was not out. He believes

that T.M. is claiming he raped her because she was afraid of getting in trouble with her

mom.

{¶ 7} The state offered evidence from multiple witnesses in support of its position

that T.M. had a mental or physical condition that substantially impaired her ability to

resist or consent to sexual conduct. McIntosh attempted to refute this evidence. The

following testimony was presented pertinent to (1) whether T.M.’s ability to resist or

consent to sexual conduct was substantially impaired because of a mental condition, and

(2) whether McIntosh knew or had reasonable cause to believe that T.M.’s ability to resist

or consent to sexual conduct was substantially impaired because of a mental condition.

A. T.M.

{¶ 8} T.M. testified that she babysat McIntosh’s son almost every weekend and

McIntosh would pay her $20. She also babysits her sister’s baby. T.M. is not usually left

home alone because there are many people living in her house. She is allowed to go out

in the neighborhood with her friends—they go to the park, walk around, and go to each

other’s houses. Her friends do not pressure her to drink, do drugs, or steal, but she has

gotten into trouble at school. She has missed a lot of school because she slept late or did

not feel like going. When T.M. gets in trouble at home, her mother takes her phone away

and won’t let her leave the house. She denied that she fights often with her mother or

that she ran away from home a couple of weeks before the incident.

{¶ 9} T.M. testified that she took sex education in seventh or eighth grade, her

mother talked to her about sex, and she knows what sex is. She has had a girlfriend

before for five months and a boyfriend for six months to a year.

B. Veronica Casper

{¶ 10} Veronica Casper is a clinical therapist and the CEO of A Step Beyond.

T.M. has been treating at A Step Beyond for about two years. She is “delayed,” and

“functions way below her age.” She normally carries a teddy bear and sucks her thumb.

Her “[s]ocial skills are impaired,” she is “very immature for her age,” she has “boundary

issues,” and she is “easily influenced.” T.M. plays with kids much younger than she is

and does not understand why a third-grader shouldn’t be friends with someone in high

school.

{¶ 11} T.M. is on an IEP due to her delays. Her case management is focused on

social skills, boundaries, and hygiene. Her therapy is focused on the reasons behind her

emotions and trauma. T.M. has flashbacks, anxiety, nightmares, and she cries easily and

is fearful of people. She was a patient before this incident, but she was admitted into

therapy after she was raped and after she witnessed domestic abuse in her home.

{¶ 12} T.M. will always have cognitive delays. She functions at a level of an eight

or nine-year-old. She will never be like someone with an average IQ. Her disabilities

prevent her from caring for herself—her hygiene is poor, she has boundary issues, and

she cannot budget money. She is unable to think long-term and it is questionable whether

she knows right from wrong. T.M. can feed herself. Casper is not sure if T.M. can drive,

although she is not aware of any legal bar to her driving. Because she is now 18, Casper

would recommend a guardianship for T.M. to help with finances and big decisions.

{¶ 13} Casper conceded that there are many reasons for thumb-sucking. Some

people suck their thumb to reduce stress or anxiety or to replace boredom, like nail-

biting. Casper has witnessed T.M. suck her thumb in school.

C. A.M.

{¶ 14} A.M. testified that T.M. does not function at her age. In 2008, T.M. was

qualified as a student with cognitive disabilities. She takes special classes at school and

has an IEP. She was reevaluated in 2011 and 2014 and her eligibility continued. A.M.

collects social security income due to T.M.’s disabilities.

{¶ 15} There was a time T.M. wasn’t going to school much at all and the school

contacted A.M. When T.M. skips school, she’s at home sleeping. T.M. has been

suspended from school for fighting and for using profanity. She had 24 discipline

incidents at one school and was suspended six times.

{¶ 16} A.M. conceded that T.M. babysits for her niece and for McIntosh’s son.

A.M. sometimes leaves T.M. home alone. T.M. can clean herself and make her own

food. A.M. has sent T.M. to the store to buy things, but T.M. does not really understand

how money works. T.M. is allowed to use social media. She has had boyfriends or

girlfriends. She hangs out in the neighborhood with her friends. They have gotten into

trouble before. T.M. has rules at home—e.g., clean up after herself, take care of the dog,

make sure her work is done, no cussing—and when she does not follow the rules, she

loses her phone or is grounded. When T.M. is grounded, she gets angry.

{¶ 17} T.M. told A.M. she had been raped—T.M. knew what “raped” means.

A.M. had talked with T.M. about rape before.

{¶ 18} T.M. has known McIntosh her whole life and McIntosh has lived with

A.M.’s family a couple of times over the years. A.M. claimed that McIntosh knows of

T.M.’s mental disabilities.

D. Natalie Jones

{¶ 19} Natalie Jones has been a SANE nurse for four years. She examined T.M.

on the night in question. Jones described T.M. as tearful and child-like. She was lying in

fetal position, wrapped in a blanket, and sucking her thumb. Although Jones admittedly

had no baseline for T.M.’s normal behavior, she described T.M.’s speech and

mannerisms as child-like, and Jones observed that T.M. did not function like a typical 16-

year-old.

{¶ 20} Jones’s records indicate that T.M.’s mother reported that T.M. has

developmental delays, but that is not something that Jones herself evaluates or diagnoses,

so she cannot confirm that that is accurate. Elsewhere in her report, she indicated that

T.M. is not disabled, mentally ill, or an elderly adult. Jones later indicated in her report

that T.M. has mental health concerns of “depression, other, and anxiety.” She specified

that T.M. has ADHD. And she later marked in the chart that T.M. has disabilities

including anxiety and ADHD. This information would have come from the patient or

parent.

E. Detective Andre Bills

{¶ 21} Detective Andre Bills interviewed T.M. at the Children’s Advocacy Center.

She did not cry and was comfortable and talkative with him. T.M. told Bills that

McIntosh “ate [her] out” and “stuck it in [her].” He conceded that 16 is the age of

consent in Ohio, and it is not illegal to have sex with one’s cousin. But his experience

with T.M. was that she seemed to function at the level of an eight-year-old and not a 16-

year-old.

F. Jerronn McIntosh

{¶ 22} At the time of trial, McIntosh was 29 years old. T.M is his cousin. He has

a now-five-year-old son who T.M. babysat almost every weekend. McIntosh paid T.M.

$20 to watch his son. He said he would not have allowed T.M. to babysit if she wasn’t

capable of it, and nothing has ever happened when T.M. babysat. He noted that T.M.

also babysits her two-year-old niece.

{¶ 23} McIntosh has lived with T.M.’s family off and on. He knows that T.M.

gets in trouble at school, but he said that she’s good with family and knows right from

wrong. McIntosh has never talked to anyone about T.M.’s diagnosis, does not know if

she was ever on medications, did not know she was on an IEP, did not know she was in

therapy, and was not aware of any interventions to help with her alleged disability.

{¶ 24} McIntosh described T.M. as outgoing and chatty. He acknowledged that

she sucks her thumb. She has done it her whole life and he views it not as childlike, but

as a “comfort blanket” for her. He speculated that T.M. may be uncomfortable in

different surroundings, but with family she is outgoing and chatty. T.M. told McIntosh

that she had run away two weeks before and had been cutting herself. He told her to just

worry about school and getting stuff done and she wouldn’t have to worry about getting

in trouble with her mom.

{¶ 25} McIntosh denied that he had oral or vaginal sex with T.M. He does not

know why T.M. is saying this happened. He believes that T.M. accused him of rape

because she was afraid of getting in trouble with her mom. He thinks that T.M. did not

realize that the accusation would get to this point.

{¶ 26} McIntosh has no formal education about mental conditions, but he does not

believe that T.M. has a substantial mental condition. To the extent that the SANE nurse,

T.M.’s therapist, his aunt, or the state feel differently, he disagrees with them because he

does not see this in T.M.’s everyday life with her family. McIntosh does not disagree

with the school that issued T.M.’s IEP because he doesn’t know anything about that. He

emphasized that he would not want her watching his son if she wasn’t capable of doing it.

He believed she was capable of babysitting, and so did her mom and her sister who

entrusted T.M. with her niece.

{¶ 27} Ultimately, the jury found McIntosh guilty of two counts of rape, violations

of R.C. 2907.02(A)(1)(c) and (B), first-degree felonies. The trial court sentenced

McIntosh to minimum terms of six years in prison to a maximum term of nine years, to

be served concurrently. A mandatory five-year term of postrelease control was imposed,

and McIntosh was found to be a Tier III sex offender.

{¶ 28} McIntosh appealed. He assigns the following two errors for our review:

I. R.C. 2907.02 is void as it fails to define “mental condition.”

II. The State failed to prove beyond a reasonable doubt sexual

conduct occurred, that the victim suffered any impairment, let alone a

substantial impairment and that Appellant was aware of, or any reasonable

person would have been aware of, that impairment.

II. Law and Analysis

{¶ 29} In his first assignment of error, McIntosh challenges the constitutionality of

R.C. 2907.02(A)(1)(c). He argues that because it fails to define “mental condition,” it is

void for vagueness. In his second assignment of error, McIntosh challenges the

sufficiency of the evidence. He claims that the state failed to present evidence that sexual

conduct occurred, that T.M. was substantially impaired, or that McIntosh was aware of a

substantial impairment.

{¶ 30} We consider each of McIntosh’s assignments in turn.

A. Void for Vagueness Challenge

{¶ 31} In his first assignment of error, McIntosh argues that R.C. 2907.02(A)(1)(c)

is unconstitutionally vague because it does not define “mental condition.” He further

complains that expert medical testimony is not required to prove that a victim has a

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medical or physical condition and that lay people are permitted to testify as to their

subjective beliefs concerning whether the victim has a mental or physical condition.

McIntosh contends that if the victim never testifies, “the jury can never see for

themselves how the victim acts and behaves,” and if the victim does testify, “the jury has

no way to know if that victim is acting or has been coached on how to appear more

‘impaired.’”

{¶ 32} The state responds that a statute is not unconstitutionally vague merely

because not every term is defined. It maintains that some terms can be properly

understood by their plain, ordinary meaning, and an average person can easily understand

and apply “mental condition” as it is used in R.C. 2907.02. The state points out that in

State v. Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414 (1987), the Ohio Supreme Court

“did not declare the Rape statute void based on the Legislature’s failure” to define the

phrase “substantial impairment.” And it argues that if expert testimony is not required to

prove “substantial impairment,” it should not be required to prove the existence of a

“mental condition.”

{¶ 33} “Under the Due Process Clauses of the Fourteenth and Fifth Amendments

to the United States Constitution and Article I, Section 16 of the Ohio Constitution, any

statute which fails to give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute is void for vagueness.” (Internal

citations omitted.”) State v. Tanner, 15 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984),

11.

quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.E.2d

110 (1972). A statute or regulation must meet three requirements to survive a challenge

under the void-for-vagueness doctrine. Viviano v. Sandusky, 2013-Ohio-2813, 991

N.E.2d 1263, ¶ 15 (6th Dist.), citing Grayned v. City of Rockford, 408 U.S. 104, 108–

109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). “It must (1) provide fair warning to the

ordinary citizen of what conduct is proscribed, (2) preclude arbitrary, capricious, and

discriminatory enforcement, and (3) not impinge upon constitutionally protected

rights.” Id. The crime and its elements must be expressed clearly enough for an ordinary

person to choose, in advance, what course he may lawfully pursue. (Citations

omitted.) Tanner at 6.

{¶ 34} Despite these well-recognized principles, a statute need not avoid all

vagueness and is not necessarily void for vagueness merely because it could have been

worded more precisely. State v. Stallings, 150 Ohio App.3d 5, 2002-Ohio-5942, 778

N.E.2d 1110, ¶ 12 (9th Dist.); State v. Dorso, 4 Ohio St.3d 60, 61-62, 446 N.E.2d 449

(1983). In fact, both the Ohio and U.S. Supreme Courts have recognized that “[m]any

statutes will have some inherent vagueness, for in most English words and phrases there

lurk uncertainties.” (Internal quotations and citations omitted.) Dorso at 62,

quoting Rose v. Locke, 423 U.S. 48, 49–50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

Accordingly, “[a] statute will not be found void for vagueness if any ‘reasonable and

12.

practical construction’ can be given to its language.” (Citations omitted.) State v.

Sommerfield, 3d Dist. Union No. 14-05-23, 2006-Ohio-1420, ¶ 16.

{¶ 35} Nor is a statute necessarily void for vagueness because it fails to define a

term or phrase. To the contrary, “[a] legislative body need not define every word it uses

in an enactment.” Dorso at 62. Undefined terms must simply be accorded their common,

everyday meaning. Id. This principle is codified in R.C. 1.42, which provides that

“[w]ords and phrases shall be read in context and construed according to the rules of

grammar and common usage. Words and phrases that have acquired a technical or

particular meaning, whether by legislative definition or otherwise, shall be construed

accordingly.”

{¶ 36} R.C. 2907.02(A)(1)(c) prohibits a person from “engag[ing] 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 because of a mental or physical condition * * *.”

{¶ 37} McIntosh correctly points out that the legislature did not define “mental or

physical condition,” nor has the Ohio Supreme Court prescribed an exact definition.

State v. Horn, 159 Ohio St.3d 539, 2020-Ohio-960, 152 N.E.3d 241, ¶ 12. The Ohio

Supreme Court, however, has interpreted the word “condition,” however. “Based on its

context in R.C. 2907.02(A)(1)(c),” the Ohio Supreme Court in Horn looked to the

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dictionary definition of the word and interpreted “condition” to mean “‘[a] state resulting

from a physical or mental illness,’” Horn at ¶ 10, quoting Shorter Oxford English

Dictionary 483 (6th Ed.2007), or “‘a usually defective state of health’ or a prerequisite or

restricting factor,” id., quoting Merriam-Webster’s Collegiate Dictionary 259 (11th

Ed.2020).

{¶ 38} In R.C. 2907.02(A)(1)(c), “mental” merely modifies the word “condition.”

The dictionary offers several definitions of “mental,” including “relating to the mind, its

activity, or its products as an object of study”; “occurring or experienced in the mind”;

“of, relating to, or affected by a psychiatric disorder.” https://www.merriam-

webster.com/dictionary/mental (last accessed October 3, 2022).

{¶ 39} Taken together as a phrase, for purposes of R.C. 2907.02(A)(1)(c),

“mental condition” can reasonably be interpreted to mean a defective state of health

relating to the mind. While the phrase is potentially broad and may encompass

numerous conditions ranging from mild cognitive impairments to serious psychiatric

disorders, the statute criminalizes the behavior at issue only where the victim’s mental

condition substantially impairs his or her ability to resist or consent and the defendant

knows this or has reasonable cause to believe this. We find that the statute is not

unconstitutionally vague merely because it fails to define “mental condition.”

{¶ 40} McIntosh complains that if the victim never testifies, “the jury can never

see for themselves how the victim acts and behaves,” and if the victim does testify, “the

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jury has no way to know if that victim is acting or has been coached on how to appear

more ‘impaired.’” There are many ways the state can prove that the victim has a “mental

condition” and that his or her ability to resist or consent is “substantially impaired.” In

this case, the state offered evidence from the victim’s mother, the treating SANE nurse, a

mental health professional who has treated the victim, and the victim herself.

{¶ 41} “A fundamental premise of our criminal trial system is that the jury is the

lie detector.” (Internal quotations omitted and emphasis added.) State v. Sipes, 5th Dist.

Delaware No. 08 CA-A-04-0014, 2008-Ohio-6627, ¶ 37, quoting United States v.

Barnard, 490 F.2d 907, 912 (9th Cir.1973). “Determining the weight and credibility of

witness testimony, therefore, has long been held to be the ‘part of every case [that]

belongs to the jury, who are presumed to be fitted for it by their natural intelligence and

their practical knowledge of men and the ways of men.’” Id., quoting Aetna Life Ins. Co.

v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 35 L.Ed. 371 (1891). That a jury is permitted to

determine whether a victim has a mental condition does not render the statute void.

{¶ 42} We reject McIntosh’s claim that R.C. 2907.02(A)(1)(c) is void for

vagueness because it fails to define “mental condition.” Accordingly, we find

McIntosh’s first assignment of error not well-taken.

15.

B. Sufficiency of the Evidence

{¶ 43} In his second assignment of error, McIntosh argues that the state failed to

present sufficient evidence that (1) sexual conduct occurred, (2) T.M. was substantially

impaired, and (3) that McIntosh was aware of any impairment.

{¶ 44} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a

challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668

(1997). In making that determination, the appellate court will not weigh the evidence or

assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378

N.E.2d 1049 (1978). “Rather, we decide whether, if believed, the evidence can sustain

the verdict as a matter of law.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-

8448, 84 N.E.3d 993, ¶ 13. Naturally, this requires “a review of the elements of the

charged offense and a review of the state’s evidence.” Id.

1. Sexual Conduct

{¶ 45} McIntosh first claims that the state failed to present evidence that sexual

conduct occurred. He argues that his DNA was found only in T.M.’s pubic hair—not in

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or around T.M.’s vagina, where one would expect to find DNA if McIntosh and T.M.

engaged in oral or vaginal sex.

{¶ 46} In making this argument, McIntosh ignores T.M.’s testimony. T.M. clearly

stated that McIntosh licked her vagina and put his penis in her vagina. This, of course,

constitutes “sexual conduct.” See R.C. 2907.01(A) (“‘Sexual conduct’ means vaginal

intercourse between a male and female; anal intercourse, fellatio, and cunnilingus

between persons regardless of sex; and, without privilege to do so, the insertion, however

slight, of any part of the body or any instrument, apparatus, or other object into the

vaginal or anal opening of another * * *.”). The state was not required to corroborate the

victim’s testimony with DNA or other evidence. See State v. Johnson, 112 Ohio St.3d

210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 53 (“Corroboration of victim testimony in rape

cases is not required.”).

2. Substantial Impairment

{¶ 47} McIntosh next claims that while the state presented evidence that T.M. is

immature, is easily manipulated, is a follower, and is on an IEP, it failed “to prove

beyond a reasonable doubt” that these things equated to T.M.’s inability to control her

behavior or understand that she was having sex. McIntosh emphasizes that despite

describing T.M. as low-functioning, A.M. left T.M. to care for a newborn, allowed her to

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babysit a toddler every week, and permitted her to go places with her friends without

adult supervision.2

{¶ 48} The state responds that the evidence established the victim’s impairment.

Specifically, it maintains that T.M.’s demeanor at trial was of “great discomfort,” she had

trouble looking at the prosecutor, and she covered her face at one point. It claims that at

age 16, T.M. mentally operated at an eight-year-old level. It emphasizes A.M.’s

testimony that she received disability benefits for T.M., school records show T.M.’s

cognitive disabilities, T.M. has an IEP, is easily influenced by others, and has poor

personal hygiene, and there was testimony that T.M. cannot live independently, cannot

handle her own finances, cannot think long-term, and still sucks her thumb at 18 years

old.

{¶ 49} The Ohio Supreme Court has interpreted the phrase “substantial

impairment” to mean “a present reduction, diminution or decrease in the victim’s ability,

either to appraise the nature of his conduct or to control his conduct.” Zeh, 31 Ohio St.3d

at 103-04, 509 N.E.2d 414. “‘Substantial impairment’” need not be proven by expert

medical testimony.” State v. Hillock, 7th Dist. Harrison No. 02-538-CA, 2002-Ohio-

6897, ¶ 21. “It may be proven by the victim’s own testimony, allowing the trier of fact to

observe and evaluate the victim’s ability to either appraise or control his conduct, and by

McIntosh also complains that the trial court did not permit defense counsel to cross-

examine T.M. about whether she is sexually active, however, he did not assign this as

error.

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the testimony of others who have interacted with the victim.” State v. Kilbarger, 12th

Dist. Fayette No. CA2013-04-013, 2014-Ohio-2341, ¶ 11, citing State v. Bai, 12th Dist.

Butler No. CA2010-05-116, 2011-Ohio-2206, ¶ 54; State v. Daniels, 9th Dist. Summit

No. 25808, 2011–Ohio–6414, ¶ 6. “A substantial-impairment determination is made on a

case-by-case basis, with great deference to the factfinder.” Kilbarger at ¶ 11, citing Bai

at ¶ 53, citing State v. Brown, 3d Dist. Marion No. 9-09-15, 2009-Ohio-5428.

{¶ 50} In State v. Moore, 5th Dist. Richland No. 2020 CA 0038, 2021-Ohio-287, ¶

5, appeal not allowed, 163 Ohio St.3d 1429, 2021-Ohio-1721, 168 N.E.3d 525, the Fifth

District Court of Appeals found that there was evidence of substantial impairment where

the 16-year-old victim had double bronchial pneumonia as an infant, resulting in delayed

mental development; she required occupational therapy to refine her motor skills,

physical therapy to help her walk, and was currently in speech therapy; and she had an IQ

of 46, was on an IEP at school, and as part of her IEP, she had a special needs teacher

who attended classes with her at all times.

{¶ 51} In State v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, the

Fourth District Court of Appeals found that the jury did not lose its way in finding the

victim substantially impaired where the state presented testimony that the victim had an

IQ between 50 to 60, her mother said she had the mind of a six to nine-year-old child and

had been appointed her guardian; the nurse who examined the victim said that she acted

like an eight-year-old; her counselor believed she had an emotional age of five to seven

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years old; and the doctor who participated in her guardianship proceedings opined that

she functioned at the level of a seven or eight-year-old.

{¶ 52} And in Kilbarger, the Twelfth District Court of Appeals found that the jury

did not lose its way in finding that the victim was substantially impaired. There, a

psychologist testified that the victim had significantly below average cognitive

functioning, was slow mentally, had difficulty grasping abstract concepts, had mild or

moderate retardation, and was impaired in his ability to understand the implications of

choices and long term consequences of actions. Similarly, the special education director

for the victim’s school testified that he had an IQ of 70 or below, was mentally retarded,

had adaptive deficits that impaired his ability to problem solve or think things through,

and she had recommended that he be placed in a guardianship. The court observed, also,

that the jury was able to observe the victim testify and was able to assess his mental

condition and his ability to appraise or control his conduct.

{¶ 53} Here, there was sufficient evidence presented that T.M.’s ability to resist or

consent to sexual conduct was substantially impaired because of a mental condition.

While McIntosh offered evidence to the contrary—e.g., that T.M. babysits, that he did

not know that she saw a counselor, struggled with school, or took medication, and that

she is permitted to leave the house without adult supervision—this created an issue to be

resolved by the jury. See State v. Robinson, 9th Dist. Summit No. 21317, 2003-Ohio-

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5360, ¶ 14 (“When inconsistencies exist in the testimony, it is the trier of fact’s

responsibility to weigh the evidence and assess the witnesses’ credibility.”).

3. McIntosh’s Awareness of T.M.’s Substantial Impairment

{¶ 54} Finally, McIntosh claims that the state failed to present evidence that

McIntosh was aware that T.M. had a mental condition that constituted a “substantial

impairment.” He claims that the state’s evidence showed that McIntosh knew T.M. her

whole life and knew that T.M. “ran her mouth at school” and got into trouble, was subject

to discipline at her school, ran away from home, and sometimes displayed disrespect for

her mother and for house rules. But he contends that T.M.’s outward appearance “could

not have put anybody on notice that she was substantially impaired.” He again points to

the fact that T.M. was permitted to care for young children. McIntosh insists that he did

not know that T.M. was on an IEP, went to counseling, or took medication. And

although he acknowledges that there were times he lived with T.M. and her family, he

maintains there was no evidence that he knew about her special education, helped her

with homework, drove her to counseling, or helped manage her medication.

{¶ 55} The state responds that McIntosh was well aware—or should have been

well aware—of T.M.’s substantial impairment because he spent a considerable amount of

time with the family, had been at T.M.’s home hundreds of times, and even lived with the

family multiple times for five or six months at a time. It also emphasizes that T.M.’s

demeanor was consistent with that of an eight-year-old child and was “open and obvious

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for everyone,” including McIntosh. McIntosh knew T.M. sucks her thumb, and he was

aware of her behavioral issues. The state insists that all this evidence, if believed by the

jury, was sufficient to establish that T.M. was substantially impaired and McIntosh knew

this.

{¶ 56} In Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, appellant

was convicted of raping his neighbor, who was around 24 or 25 years old. As

summarized above, the state presented testimony that the victim had an IQ between 50 to

60, her mother said she had the mind of a six to nine-year-old child and had been

appointed her guardian, the nurse who examined her said that she acted like an eight-

year-old, her counselor believed she had an emotional age of five to seven years old, and

the doctor who participated in her guardianship proceedings opined that she functioned at

the level of a seven or eight-year-old. A family friend testified, however, that the victim

acted like a 16-year-old, and the appellant—who had known the victim since she was ten

or 11 years old and was friends with her family—said that she acted like she was 16 to 18

years old and behaved more child-like only when she was around her mother.

{¶ 57} Appellant challenged the jury’s determination that he knew or had

reasonable cause to believe that the victim’s ability to resist or consent was substantially

impaired because of a mental condition. The court held that the issue was one to be

determined by the jury. The court explained that the jury had viewed the witnesses who

22.

testified about the victim’s mental capability, and also observed the victim testify,

therefore, it could formulate its own conclusions as to the victim’s mental age.

{¶ 58} Here, too, the jury saw and heard T.M. testify. The state presented

testimony from T.M.’s mother, who said that she received social security income due to

T.M.’s disabilities, and T.M. does not function at her age, was qualified as a student with

cognitive disabilities, takes special classes at school, and has an IEP. It presented

testimony from the SANE nurse who described that T.M. appeared child-like, sucked her

thumb, and did not seem like a typical 16-year-old. It presented testimony from a clinical

therapist who believes that T.M. is cognitively delayed and always will be, functions at

the level of an eight or nine-year-old, carries a teddy bear and sucks her thumb, has

impaired social skills, has boundary issues, is easily influenced, plays with kids much

younger than she is, is unable to think long-term, has poor hygiene, and should be under

the care of a guardian. And it presented testimony from the detective, who observed that

T.M. seemed to function at the level of an eight-year-old and not a 16-year-old. This was

sufficient evidence, which, if believed, would support a conclusion that McIntosh—who

knew T.M. her whole life and had even lived with her—knew or had reasonable cause to

believe that T.M.’s ability to resist or consent to sexual conduct was substantially

impaired because of a mental condition.

{¶ 59} In sum, we find that the state presented sufficient evidence that sexual

conduct occurred, that T.M.’s ability to resist or consent to sexual conduct was

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substantially impaired because of a mental condition, and that McIntosh knew or had

reason to know of this substantial impairment. Accordingly, we find McIntosh’s second

assignment of error not well-taken.

III. Conclusion

{¶ 60} R.C. 2907.02(A)(1)(c) is not void for vagueness for failure of the

legislature to define “mental condition.” We, therefore, find McIntosh’s first assignment

of error not well-taken.

{¶ 61} The state presented evidence that sexual conduct occurred, that T.M.

suffered from a mental condition that substantially impaired her ability to resist or

consent to sexual conduct, and that McIntosh knew this or had reasonable cause to

believe this. This evidence was sufficient to support his conviction under R.C.

2907.02(A)(1)(c), therefore, we find his second assignment of error not well-taken.

{¶ 62} We affirm the August 10, 2021 judgment of the Lucas County Court of

Common Pleas. McIntosh is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

24.

State of Ohio

v. Jerronn McIntosh, Jr.

L-21-1207

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.