[Cite as State v. Jackson, 2018-Ohio-3492.]

 

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103957

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

DEMETRIUS JACKSON

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-598188-A 

BEFORE: E.A. Gallagher, A.J., Boyle, J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: August 30, 2018 
ATTORNEY FOR APPELLANT

Jonathan N. Garver 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Sherrie S. Royster 

 Anthony Thomas Miranda 

Assistant Prosecuting Attorneys 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, A.J.: 

{¶1} This cause is before this court on remand from the Ohio Supreme Court in State 

v.Jackson, Slip Opinion No. 2018-Ohio-2169, for further review of our decision released 

December 15, 2016. The Ohio Supreme Court, having reversed our judgment in this case 

which was based on the Fifth and Sixth Amendments to the United States Constitution, has 

remanded it to us with instructions to consider Jackson’s second and third assignments of error. 

{¶2} Defendant-appellant Demetrius Jackson appeals his convictions for rape, gross 

sexual imposition and kidnapping in the Cuyahoga County Court of Common Pleas. For the 

following reasons, we affirm as to those assignments of error. 

Factual and Procedural Background

{¶3} Appellant was charged by a Cuyahoga County Grand Jury with three counts of rape, 

gross sexual imposition, importuning with a prior conviction for a sexually or child victim 

oriented offense, felonious assault and kidnapping with a sexual motivation specification. Each 

of these crimes were alleged to have been committed against a 14-year old female (“C.H.”). 

{¶4} The case proceeded to a bench trial where C.H. testified that, on August 5, 2015, she 

went to an older sister’s home in Cleveland, Ohio and was interacting with her young relatives 

while two of her sisters were on the porch drinking with the appellant. C.H. testified that she 

did not know the appellant and that both of her sisters were intoxicated. Later that night, the 

occupant of the home, C.H.’s sister N.J.,1

 told C.H. to go upstairs and lay down with N.J.’s two 

children, ages 7 and 1. C.H. had fallen asleep in a bedroom with the two children and was 

awakened by the appellant who told her that her sister, S.H., had told him to come lay with her. 

C.H. rebuffed his advances and told him to leave the room, which he did, and after which he 
went downstairs but returned and repeated that her sister told him to go upstairs and lay with her. 

 C.H. herself went downstairs, as did the appellant, and found both of her sisters to be asleep on 

a couch. At that point the appellant laid himself on the living room floor and C.H. returned 

upstairs to a bedroom. 

{¶5} C.H. testified that appellant returned to the upstairs bedroom and asked her to allow 

him to perform oral sex on her. When she refused, appellant stated “I’ll give you $200 a week 

if you don’t say anything.” Appellant then “ripped” C.H.’s underwear off of her, proceeded to 

perform oral sex on her and when she resisted, he choked her and said “let me just do this.” 

The appellant then inserted his fingers, and later his penis, into her vagina. 

{¶6} At some point appellant stopped his assault which gave C.H. an opportunity to grab 

her cellular telephone from a windowsill and run, without shoes or underwear, to a family 

member’s home approximately eight houses away and from where Cleveland police were called. 

 C.H. was transported to University Hospitals by EMS where she was examined, treated and 

released. 

{¶7} N.J., the occupant of the home where these events transpired, testified that on the 

night in question, her sister S.H. brought appellant to the house after she went to the store to 

purchase alcohol. N.J. testified that she had fallen asleep and was awakened, on the couch, by 

her brother-in-law, K.F., who informed her that C.H. was at his home down the street and that 

she had been raped. N.J. went to the house of K.F. where she found the victim “hysterically 

crying . . . she was screaming ‘he raped me, he raped me. . .’” 

{¶8} Kathleen Hackett, the sexual assault nurse examiner who interacted and examined 

C.H. at U.H. Rainbow Babies and Children’s Hospital read the victim’s own words from the 

 1

N.J. identified herself as the victim’s “god-sister.” 
triage notes that echoed C.H.’s testimony but for the fact that C.H. did not report to her any 

digital penetration. The nurse noted a mark on C.H.’s neck. 

{¶9} Laura Evans, a DNA analyst at the Cuyahoga County Medical Examiner’s Office 

testified that testing of the victim’s vaginal swabs revealed the presence of seminal material but 

no DNA profile foreign to the victim was found. The DNA analyst testified that sometimes the 

victim’s DNA can mask another person’s DNA. She testified that Jackson could not be 

excluded as a possible contributor to the DNA profile from a dried stain from the victim’s left 

ear. She further testified that testing done of the penile swabs taken from Jackson could not 

exclude C.H. as a possible contributor. 

{¶10} Appellant testified on his own behalf. He testified, however, only because the 

court admitted the testimony concerning what was allegedly said to the child advocate, over 

objection. Appellant claimed that the sexual activity with the victim was consensual. He 

maintained that he had only a “few swigs” of alcohol and smoked two blunts of marijuana on the 

night in question. He testified that everyone, including the victim, was drinking and that he 

thought the victim was at least 18 years old. He testified that the victim started kissing him, that 

they performed oral sex on each other and that the victim asked him to pay her for same. He 

denied choking the victim or in penetrating her in any fashion. He also testified to the limited 

mobility of his right arm. 

{¶11} At the close of the state’s case the trial court dismissed the importuning and 

felonious assault charges. The trial court found appellant guilty of two counts of rape, gross 

sexual imposition and kidnapping with a sexual motivation specification. The trial court found 

appellant not guilty of the third count of rape (cunnilingus). 
{¶12} The trial court found the kidnapping count to be an allied offense to the rape and 

gross sexual imposition counts and merged the kidnapping count with those offenses. The state 

elected to proceed to sentencing on the two rape counts and the kidnapping count. The trial 

court imposed prison terms of 11 years on each of the three counts and ordered the sentences to 

run concurrently. 

Law and Analysis

I. Hearsay

{¶13} In his second assignment of error, Jackson argues that he was denied his Sixth 

Amendment right to be confronted with the witnesses against him when the state introduced an 

alleged hearsay statement through the testimony of Cleveland police officer Louis Adipietro. 

Adipietro testified that he responded to the scene and that C.H. told him, “I was raped.” 

{¶14} Hearsay is “a statement, other than one made by the declarant while testifying . . . 

offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). But if a statement 

is offered for another purpose, then it is not hearsay and is admissible. State v. Osie, 140 Ohio 

St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 118. 

{¶15} “Law-enforcement officers may testify to out-of-court statements for the 

nonhearsay purpose of explaining the next investigatory step.” State v. Beasley, Slip Opinion 

No. 2018-Ohio-493, ¶ 172, citing State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 

N.E.3d 508, ¶ 186. Testimony to explain police conduct is admissible as nonhearsay if it satisfies 

three criteria: (1) the conduct to be explained is relevant, equivocal, and contemporaneous with 

the statements, (2) the probative value of the statements is not substantially outweighed by the 

danger of unfair prejudice, and (3) the statements do not connect the accused with the crime 

charged. Id., citing State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. 
{¶16} The testimony in this instance satisfies the standard of Ricks. Officer Adipietro 

was describing his interaction with C.H. when he arrived on scene solely as context for his 

subsequent investigatory steps and C.H.’s statement did not implicate Jackson. Therefore, the 

statement was nonhearsay and did not violate the Confrontation Clause. Id. at ¶ 175, citing 

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 186. 

{¶17} Furthermore, even if the statement had not been admissible under Ricks, any error 

would be harmless in this instance. First, this case was tried to the bench and despite overruling 

the objection the trial court stated that it would not consider the statement as evidence to 

establish that C.H. was raped. Secondly, C.H. testified at trial that she was raped. When a 

hearsay declarant is examined at trial “on the same matters as contained in impermissible hearsay 

statements and where admission is essentially cumulative, such admission is harmless.” State v. 

Tucker, 8th Dist. Cuyahoga No. 83419, 2004-Ohio-5380, ¶ 78, citing State v. Tomlinson, 33 Ohio 

App.3d 278, 281, 515 N.E.2d 963 (12th Dist.1986); State v. Shropshire, 8th Dist. Cuyahoga 

No. 104775, 2017-Ohio-8308, ¶ 26. 

{¶18} Jackson’s second assignment of error is overruled. 

II. Manifest Weight 

{¶19} In his third assignment of error, Jackson argues that his convictions are against the 

manifest weight of the evidence. 

{¶20} A manifest weight challenge attacks the credibility of the evidence presented and 

questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist. 

Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Thompkins, 78 Ohio St.3d 380, 

387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 

2009-Ohio-3598, ¶ 13. 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. 

{¶21} In evaluating a challenge to the verdict based on the manifest weight of the 

evidence in a bench trial, 

[T]he trial court assumes the fact-finding function of the jury. Accordingly, to 

warrant reversal from a bench trial under a manifest weight of the evidence claim, 

this court must review the entire record, weigh the evidence and all reasonable 

inferences, consider the credibility of witnesses and determine whether in 

resolving conflicts in evidence, the trial court clearly lost its way and created such 

a manifest miscarriage of justice that the judgment must be reversed and a new 

trial ordered. 

Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 16 (8th Dist.), 

citing Thompkins. 

{¶22} In conducting such a review, this court remains mindful that the credibility of 

witnesses and the weight of the evidence are matters primarily for the trier of fact to assess. State 

v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the syllabus. 

Reversal on manifest weight grounds is reserved for the “exceptional case in which the evidence 

weighs heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio 

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

{¶23} Jackson argues that his convictions were against the manifest weight of the 

evidence because the convictions hinged on the credibility of C.H.’s account of the incident and 

because the investigating officers failed to collect C.H.’s underwear for examination. The trial 

court in this instance heard accounts of the incident from both C.H. and Jackson and concluded 
that C.H.’s version of events “very credibly portrays a sexually assaulted 14-year-old.” 

Conversely, the trial court did not find Jackson’s story to be credible particularly in light of the 

C.H.’s flight from the scene following their encounter. The trial court also noted that Jackson’s 

use of his right arm at trial was inconsistent with the defense’s position he could not have used 

the arm as described by C.H. due to its limited mobility. The trial court was in the best position 

to judge the credibility of the witnesses in this instance. We cannot say that its judgment is 

against the manifest weight of the evidence. 

{¶24} Jackson’s third assignment of error is overruled. 

{¶25} 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 Cuyahoga County 

Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

_____________________________________________________ 

EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE 

SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE 

OPINION); 

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY AND CONCURS WITH 

SEPARATE OPINION 

SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY: 
{¶26} I concur in judgment only with the lead opinion because I believe the law 

enforcement officer’s testimony that C.H. told him “I was raped” was hearsay. It is clear from 

the record that appellant was the suspect in the case. The testimony was introduced after the 

officer was questioned regarding what the victim meant when she indicated “it’s my fault” while 

on the scene. The officer then testified that “[w]hile on the scene, she did say, ‘I was raped.’” 

By implication, the statement was in reference to the incident between appellant and the victim, 

thereby connecting appellant to the crime charged. The testimony constituted inadmissible 

hearsay because it was offered to prove the truth of the matter asserted, rather than to explain 

police conduct. Nonetheless, I agree with the majority that any error was harmless because the 

trial court did not consider the statement as evidence that the victim was raped and the victim 

herself testified at trial that she had been raped. I also agree that appellant’s convictions are not 

against the manifest weight of the evidence. Therefore, the trial court’s judgment should be 

affirmed.