[Cite as State v. Bender, 2020-Ohio-722.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 14-19-22 

 v. 

JASON G. BENDER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 2018-CR-0168 

Judgment Affirmed 

Date of Decision: March 2, 2020 

 

APPEARANCES: 

 

Charles A. Koenig for Appellant 

 David W. Phillips and Melissa A. Chase for Appellee 
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ZIMMERMAN, J. 

{¶1} Defendant-appellant, Jason G. Bender (“Bender”), appeals the May 29, 

2019 judgment entry of sentence of the Union County Court of Common Pleas. We 

affirm. 

{¶2} This case stems from a June 28-29, 2018 incident during which Bender 

restrained the victim, K.W., with ropes around her neck, arms, and legs, and by 

binding her hands and feet with ratchet straps and suspending her from the rafters 

of a basement ceiling, then brutally beating and raping her. On July 13, 2018, 

Bender was indicted on four counts: Count One of felonious assault in violation of 

R.C. 2903.11(A)(1), (D)(1)(a), a second-degree felony, with a firearm specification 

under R.C. 2941.145(A); Count Two of kidnapping in violation of R.C. 

2905.01(A)(3), (C)(1), a first-degree felony, with a sexual-motivation specification 

under R.C. 2941.147(A) and a sexually violent predator specification under R.C. 

2941.148(A); Count Three of rape in violation of R.C. 2907.02(A)(2), (B), a firstdegree felony, with a sexually violent predator specification under R.C. 

2941.148(A) and a criminal-gang-activity specification under R.C. 2941.142(A); 

and Count Four of having weapons while under disability in violation of R.C. 
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2923.13(A)(2), (B), a third-degree felony.1

 (Doc. No. 1). Bender appeared for 

arraignment on July 24, 2018 and entered pleas of not guilty. (Doc. No. 13). 

{¶3} On January 9, 2019, the State filed a motion requesting that the trial 

court declare K.W. a court’s witness. (Doc. No. 42). 

{¶4} On April 22, 2019, the State filed a motion to dismiss the sexually 

violent predator specification alleged in Counts Two and Three and the criminalgang-activity specification alleged in Count Three of the indictment, which the trial 

court dismissed that same day. (Doc. Nos. 75, 76). 

{¶5} The case proceeded to a jury trial on April 22-24, 2019. On April 24, 

2019, the jury found Bender guilty of all the counts and specifications in the 

indictment. (Doc. Nos. 78, 79, 80, 81). (See also Doc. No. 84). On May 29, 2019, 

the trial court sentenced Bender to 7 years in prison on Count One, 10 years in prison 

on Count Two, 10 years in prison on Count Three, 30 months in prison on Count 

Four, and 3 years in prison on the firearm specification. (Doc. No. 87). The trial 

court ordered Bender to serve consecutively the prison terms imposed under Counts 

One, Two, and Three, and the firearm specification. (Id.). Further, the prison term 

imposed as to Count Four was ordered to be served concurrently to the consecutive 

prison terms imposed as to Counts One, Two, and Three, and the firearm 

 

1

 On April 17, 2019, the State filed a motion to amend the indictment to correct a typographical error, which 

the trial court amended on April 22, 2019. (Doc. Nos. 70, 77). On April 29, 2019, the State filed a second 

motion to amend the indictment (to which Bender did not object), which the trial court granted that same 

day. (Doc. Nos. 82, 83). 
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specification for an aggregate sentence of 30 years in prison. (Id.). The trial court 

also classified Bender as a Tier III sex offender. (Doc. No. 88). 

{¶6} Bender filed a notice of appeal on June 18, 2019 and raises three 

assignments of error for our review. (Doc. No. 93). 

Assignment of Error No. I 

Appellant was deprived of his constitutional rights to due process 

and to confront his accusers in violation of the Fifth, Sixth and 

Fourteenth Amendments to the United States Constitution and 

Section 10, Article I of the Ohio Constitution, as a consequence of 

the trial court permitted [sic] hearsay testimony from a medical 

witness regarding statements in the medical record that were not 

admissible under any hearsay exception, thereby preventing 

appellant from exercising his right to confront in a meaningful

way. 

{¶7} In his first assignment of error, Bender argues that the trial court erred 

by admitting testimony of Andi Stevens (“Stevens”), a forensic nurse coordinator 

and sexual assault nurse examiner (“SANE”) with OhioHealth, as to statements 

made to her by K.W. Bender argues that the admission of Stevens’s testimony (i.e., 

K.W.’s statements) violated his rights under the Confrontation Clause of the Sixth 

Amendment to the United States Constitution. He further argues that Stevens’s 

testimony was inadmissible hearsay evidence. 

Standard of Review 

{¶8} Generally, the admission or exclusion of evidence lies within the trial 

court’s discretion, and a reviewing court should not reverse absent an abuse of 
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discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion 

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State 

v. Adams, 62 Ohio St.2d 151, 157 (1980). “However, we review de novo evidentiary 

rulings that implicate the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d 

261, 2016-Ohio-5735, ¶ 97. “De novo review is independent, without deference to 

the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-

Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 

145, 147 (1992). 

Analysis

{¶9} We will begin by addressing whether the admission of Stevens’s 

testimony violated Bender’s Sixth Amendment rights. The Confrontation Clause to 

the Sixth Amendment of the United States Constitution, made applicable to the 

states by the Fourteenth Amendment, provides that “‘[i]n all criminal prosecutions, 

the accused shall enjoy the right * * * to be confronted with the witnesses against 

him * * * .’” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354 (2004), 

quoting the Confrontation Clause. See also State v. Maxwell, 139 Ohio St.3d 12, 

2014-Ohio-1019, ¶ 34; State v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio2981, ¶ 43, fn. 13. 

The United States Supreme Court has interpreted [the Sixth 

Amendment right to confrontation] to mean that admission of an out-
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of-court statement of a witness who does not appear at trial is

prohibited by the Confrontation Clause if the statement is testimonial 

unless the witness is unavailable and the defendant has had a prior 

opportunity to cross-examine the witness. 

Maxwell at ¶ 34, citing Crawford at 53-54. The United States Supreme Court “did 

not define the word ‘testimonial’ but stated that the core class of statements 

implicated by the Confrontation Clause includes statements ‘made under 

circumstances which would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial.’” Id., quoting Crawford at 52. 

{¶10} “Only testimonial hearsay implicates the Confrontation Clause.” 

McKelton at ¶ 185. “‘[T]estimonial statements are those made for “a primary 

purpose of creating an out-of-court substitute for trial testimony.”’” Id., quoting 

Maxwell at ¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143 

(2011). That is, “[t]o rank as ‘testimonial,’ a statement must have a ‘primary 

purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later 

criminal prosecution.’” Bullcoming v. New Mexico, 564 U.S. 647, 659, 131 S.Ct. 

2705, 2714 (2011), fn. 6, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 

2266 (2006). “The key issue is what constitutes a testimonial statement: ‘It is the 

testimonial character of the statement that separates it from other hearsay that, while 

subject to traditional limitations upon hearsay evidence, is not subject to the 

Confrontation Clause.’” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 33, 

quoting Davis at 821. Nevertheless, “[t]here is also no dispute that the 
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Confrontation Clause ‘does not bar the use of testimonial statements for purposes 

other than establishing the truth of the matter asserted.’” State v. Ricks, 136 Ohio 

St.3d 356, 2013-Ohio-3712, ¶ 18, quoting Crawford at 59, and citing Williams v. 

Illinois, 567 U.S. 50, 57-58, 132 S.Ct. 2221 (2012). 

{¶11} In this case, Bender argues that the trial court erred by admitting 

Stevens’s testimony regarding statements made to her by K.W.—namely, a 

“narrative history” provided to Stevens’s by K.W. at the hospital. However, even 

if any of K.W.’s statements to Stevens were testimonial in nature, there was no 

constitutional error since the victim testified at trial and was subject to crossexamination. “Admission of testimonial statements against a party is a 

constitutional error when that party does not have the opportunity to cross-examine 

the declarant.” State v. Durdin, 10th Dist. Franklin No. 14AP-249, 2014-Ohio5759, ¶ 30, citing State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 36, citing 

Crawford at 68. “Consequently, the Confrontation Clause does not require 

exclusion of prior statements of a witness who testifies at trial.” State v. Lykins, 4th 

Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 90, citing California v. Green, 399 

U.S. 149, 164, 90 S.Ct. 1930 (1970), and citing Arnold at ¶ 66, State v. Powell, 132 

Ohio St.3d 233, 2012-Ohio-2577, ¶ 64, State v. Kersbergen, 12th Dist. Butler No. 

CA2014-10-218, 2015-Ohio-3103, ¶ 68, State v. Gray, 12th Dist. Butler No. 

CA2011-09-176, 2012-Ohio-4769, ¶ 48, and State v. Isa, 2d Dist. Champaign No. 
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07-CA-37, 2008-Ohio-5906, ¶ 16. Therefore, because K.W. testified at trial, and 

Bender was able to fully cross-examine her regarding her out-of-court statements, 

Stevens’s testimony did not violate the Confrontation Clause under the facts 

presented. Id. at ¶ 91; State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-

Ohio-5607, ¶ 47, citing Gray at ¶ 48. 

{¶12} Having determined that Stevens’s testimony was not barred by the 

Confrontation Clause, we must now address whether her testimony was admissible 

under the Ohio Rules of Evidence. See State v. Martin, 5th Dist. Tuscarawas No. 

2015AP0010, 2016-Ohio-225, ¶ 52, citing State v. Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677, ¶ 165. See also Lykins at ¶ 92. Hearsay is defined as “a statement, other 

than one made by the declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Hearsay is 

generally not admissible unless an exception applies. Evid.R. 802. “Evid.R. 803 is 

one such rule which permits the admission of certain hearsay statements even 

though the declarant is available as a witness.” Dayton v. Combs, 94 Ohio App.3d 

291, 300 (2d Dist.1993). Under Evid.R. 803, the following hearsay statements are 

admissible: (1) present sense impression; (2) excited utterance; (3) then existing 

mental, emotional, or physical condition; and (4) statements for the purpose of 

medical diagnosis or treatment. 
Case No. 14-19-22 

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{¶13} “As relevant here, Evid.R. 803(4) provides an exception for 

‘[s]tatements made for purposes of medical diagnosis or treatment and describing 

medical history, or past or present symptoms, pain, or sensations, or the inception 

or general character of the cause or external source thereof insofar as reasonably 

pertinent to diagnosis or treatment.’” State v. Remy, 2d Dist. Clark No. 2017-CA7, 2018-Ohio-2857, ¶ 44, quoting Evid.R. 803(4). “The hearsay rules except 

statements made for the purpose of medical diagnosis or treatment due to the 

inherent reliability underlying the nature of those statements.” Lykins at ¶ 94. See 

also State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 39. “[S]tatements made 

for the purpose of medical diagnosis and treatment are considered reliable because 

‘“facts reliable enough to be relied on in reaching a diagnosis have sufficient 

trustworthiness to satisfy hearsay concerns.”’” Lykins at ¶ 95, quoting State v. 

Dever, 64 Ohio St.3d 401, 411 (1992), quoting McCormick, Evidence, Section 250 

(4th Ed.1992), and citing Muttart at ¶ 41. “Thus, ‘“[i]f a statement is made for 

purposes of diagnosis or treatment, it is admissible pursuant to Evid.R. 803(4).”’” 

Id., quoting Muttart at ¶ 37, quoting Dever at 414. 

{¶14} “In sexual assault cases such as the case at bar, there is often testimony 

from a sexual assault nurse. Similar to the dual role of a social worker interviewing 

a child who may be a victim of sexual abuse, these nurses often perform a dual role 

involving both medical diagnosis and treatment and the investigation and gathering 
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of evidence.” Rose, 2012-Ohio-5607, at ¶ 42, citing Arnold, 126 Ohio St.3d 290, 

2010-Ohio-2742, at ¶ 33. “Only those statements made for the purpose of diagnosis 

and treatment are admissible under Evid.R. 803(4).” Id., citing Arnold at ¶ 28 and 

Muttart at ¶ 47. See also State v. Hartman, 2d Dist. Montgomery No. 26609, 2016-

Ohio-2883, ¶ 51. “Accordingly, the salient inquiry when determining whether a 

hearsay statement is admissible under Evid.R. 803(4), is whether the statement was 

made for purposes of diagnosis or treatment rather than for some other purpose.” 

Rose at ¶ 42, citing Muttart at ¶ 47. “One such ‘other purpose’ is the gathering of 

forensic information to investigate and potentially prosecute a defendant.” Id., 

citing Arnold at ¶ 33. “To the extent that a victim’s statement to a nurse is for 

investigative purposes in furtherance of such criminal prosecution, the statements 

will not fall within the hearsay exception under Evid.R. 803(4). Rather, such 

statements are considered ‘testimonial’ and implicate the Confrontation Clause.” 

Id., citing Arnold at ¶ 28, citing State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 

¶ 2. 

{¶15} We conclude that Stevens’s testimony was properly admitted as a

statement made by a victim for purposes of medical diagnosis or treatment. See 

State v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, ¶ 18. At trial,

Stevens testified that her “role as a Forensic Nurse [is to] do a history of the events 

from the assault that” caused the victim to seek medical treatment. (Apr. 22, 2019 
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Tr., Vol. I, at 122). Specifically, she testified that the “history of events” “helps 

guide [her] exam looking for injuries, helping with diagnosis and further treatment 

that may need to be done * * * and, also, safety planning, if the patient is to be 

discharged.” (Id.). Importantly, Stevens testified that (as a part of her “history of 

events”), she “take[s] a more narrative history” from the patient, which is “important 

for [her] to provide appropriate medical treatment * * * .” (Id. at 127). Stevens 

then testified to the narrative that she documented from K.W. (See id. at 128-132). 

{¶16} Although narrative accounts may reveal information subsequently

used by law enforcement in a criminal prosecution, “[n]arrative accounts can be 

reasonably pertinent in establishing a potential diagnosis or treatment.” State v. 

Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 70 (Piper, J., 

concurring). See also id. (“Even though the victim’s narrative account offered to 

medical personnel can subsequently be used by law enforcement in a criminal 

prosecution does not prevent the statement from being admitted into evidence 

pursuant to Evid.R. 803(4).”), citing State v. Thomas, 8th Dist. Cuyahoga No. 

101202, 2015-Ohio-415, ¶ 24. Indeed, “[a] description of an abusive encounter has 

consistently been determined to be within the scope of statements offered for 

medical treatment or diagnosis.” Id. at ¶ 71, citing State v. Diaz, 8th Dist. Cuyahoga 

No. 103878, 2016-Ohio-5523, ¶ 33-34. That is, “[a] narrative account containing 

peripheral details as the victim recounts abusive activities can be made for the 
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primary purpose of medical diagnosis or treatment.” Id., citing State v. Williams, 

1st Dist. Hamilton No. C140199, 2015-Ohio-3968, ¶ 31-34. Specifically, “[a] 

patient’s statements concerning how the alleged rape occurred can be relevant to 

show the ‘general character of the cause or external source thereof insofar as 

reasonably pertinent to diagnosis or treatment.’” Wallace at ¶ 18, quoting Evid.R. 

803(4). “For example, the victim’s statements may guide medical personnel to the 

particular area(s) of the victim’s body to be examined for injury, as well as indicate 

which areas may need more immediate treatment than others.” Id., citing State v. 

Menton, 7th Dist. Mahoning No. 07 MA 70, 2009-Ohio-4640, ¶ 51. Therefore, 

based on the evidence before us, we conclude that K.W.’s statements contained in 

the narrative (as presented through Stevens’s testimony) were for the purpose of 

medical treatment or diagnosis. Thus, the trial court did not abuse its discretion by 

admitting Stevens’s testimony. See id. 

{¶17} Even if we were to conclude that Stevens’s testimony was 

inadmissible hearsay, the error would be harmless. See id. at ¶ 21. “‘Any error in 

the admission of hearsay is generally harmless where the declarant of the hearsay 

statement is cross-examined on the same matters and the seemingly erroneous 

evidence is cumulative in nature.’” Id., quoting In re M.E.G., 10th Dist. Franklin 

Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1263, 06AP-1264, and 06AP1265, 2007-Ohio-4308, ¶ 32. Indeed, as we previously addressed, the victim was 
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present at trial and subject to cross-examination, and the jury was able to assess her 

credibility. See id.; State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, 

¶ 61; Rose, 2012-Ohio-5607, at ¶ 48, citing State v. Cappadonia, 12th Dist. Warren 

No. CA2008-11-138, 2010-Ohio-494, ¶ 20. 

{¶18} Moreover, Bender’s argument that Stevens’s testimony was 

inadmissible hearsay because “Nurse Stevens [sic] primary reason for performing 

her specialized exam on [K.W.] was to obtain evidence of a crime” is misplaced. 

(Appellant’s Brief at 12). See Wallace at ¶ 19; Rose at ¶ 42. Instead, Bender’s 

argument is relevant to whether the victim’s statements were testimonial for 

purposes of the Confrontation Clause. See Wallace at ¶ 19; Rose at ¶ 42. However, 

because we already concluded that no Confrontation Clause violation occurred in 

this case, Bender’s argument is specious. 

{¶19} For these reasons, Bender’s first assignment of error is overruled. 

Assignment of Error No. II 

Appellant was deprived of his constitutional rights to due process 

and effective assistance of counsel in violation of his Fifth, Sixth 

and Fourteenth Amendments to the United States Constitution 

and Section 10, Article I of the Ohio Constitution, when the trial 

court called the victim as a court witness pursuant to Evid.R. 614, 

and, further, when appellant’s trial counsel failed to object to the 

court calling the victim pursuant to Evid.R. 614. 
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{¶20} In his second assignment of error, Bender argues that his trial counsel 

was ineffective for failing to object to the trial court designating K.W. as a court’s 

witness. 

Standard of Review 

{¶21} A defendant asserting a claim of ineffective assistance of counsel must 

establish: (1) the counsel’s performance was deficient or unreasonable under the 

circumstances; and (2) the deficient performance prejudiced the defendant. State v. 

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or 

unreasonable, the defendant must overcome the presumption that counsel provided 

competent representation and must show that counsel’s actions were not trial 

strategies prompted by reasonable professional judgment. Strickland at 687. 

Counsel is entitled to a strong presumption that all decisions fall within the wide 

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally 

constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). 

Rather, the errors complained of must amount to a substantial violation of counsel’s 

essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-142 

(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on 

other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978). 
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{¶22} “Prejudice results when ‘there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting 

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142 

and citing Strickland at 694. 

Analysis 

{¶23} On appeal, Bender alleges that his trial counsel was ineffective for 

failing to object to the trial court designating K.W. as a court’s witness. Under 

Evid.R. 614(A), “[t]he court may, on its own motion or at the suggestion of a party, 

call witnesses, and all parties are entitled to cross-examine witnesses thus called.” 

The purpose of calling a witness as a court’s witness is to allow for a proper 

determination in a case where a witness is reluctant or unwilling to testify, or there 

is some indication that the witness’s trial testimony will contradict a prior statement 

made to police. State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, 

¶ 23, citing State v. Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶ 18; 

State v. Arnold, 189 Ohio App.3d 507, 2010-Ohio-5379, ¶ 18 (2d Dist.). “The prime 

candidate is a victim and an eyewitness who will not otherwise cooperate with the 

party originally planning to call him.” Renner at ¶ 23, citing Curry at ¶ 18. 
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{¶24} In this case, prior to the start of trial, the State filed a motion requesting 

that the trial court call K.W. as its witness under Evid.R. 614(A). In support of its 

motion, the State represented to the trial court that since the time that K.W. was 

interviewed by law enforcement regarding the June 28-29, 2018 incident, K.W. 

“remain[ed] somewhat reluctant to testify due to the nature of th[e] matter and [was] 

somewhat difficult to reach.” (Doc. No. 42). The State further represented, “It is 

believed that the victim was not supportive of law enforcement becoming involved 

in this matter and may be uncooperative regarding her testimony and what she may 

or may not recall.” (Id.). At trial, prior to calling K.W. to the stand, the State 

(outside the presence of the jury) again requested (and Bender’s trial counsel did 

not object) that the trial court call K.W. as its witness. The State argued that it “had 

difficulty locating” K.W.; “difficulty communicating with” K.W.; and “issued a 

subpoena on the day of the trial that it was scheduled for last time in order to make 

sure that she” appeared at trial. (Apr. 23, 2019 Tr., Vol. I, at 69). Based on this 

evidence, it was not error for the trial court to designate K.W. as its witness. See 

Renner at ¶ 26; State v. Kiser, 6th Dist. Sandusky No. S-03-028, 2005-Ohio-2491, 

¶ 13, 16; State v. Marshall, 9th Dist. Lorain No. 01CA007773, 2001 WL 1647706, 

*2 (Dec. 26, 2001). Because it was not error for the trial court to designate K.W. as 

its witness, Bender’s trial counsel was not ineffective for failing to object. 

{¶25} Bender’s second assignment of error is overruled. 
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Assignment of Error No. III 

The evidence adduced at trial is insufficient as a matter of law to 

support appellant’s conviction on the charge of rape. 

{¶26} In his third assignment of error, Bender argues that his rape conviction 

is based on insufficient evidence. In particular, Bender contends that his rape 

conviction is based on insufficient evidence because the State presented insufficient 

evidence that he compelled K.W. to engage in sexual conduct by force or threat of 

force. 

Standard of Review 

{¶27} “An appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, would convince the average 

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio 

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional 

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, 

“[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.” Id. “In deciding if the 

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the 

credibility of witnesses, as both are functions reserved for the trier of fact.” State v. 

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, 
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citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). 

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight 

of the evidence.”), citing Thompkins at 386. 

Analysis 

{¶28} R.C. 2907.02 sets forth the offense of rape and provides, in relevant 

part: “No person shall engage in sexual conduct with another when the offender 

purposely compels the other person to submit by force or threat of force.” R.C. 

2907.02(A)(2). Bender does not dispute that he engaged in sexual conduct with 

K.W.; rather, he argues that the State presented insufficient evidence that he 

purposely compelled K.W. to engage in that sexual conduct by force or threat of 

force. As a result, we need only address those elements of forcible rape: (1) whether 

Bender purposely compelled K.W. to engage in sexual conduct, and (2) whether 

Bender did so by force or threat of force. See State v. Stevens, 3d Dist. Allen No. 

1-14-58, 2016-Ohio-446, ¶ 14. 

{¶29} In addressing the force-or-threat-of-force language under the rape 

statute, the Supreme Court of Ohio clarified that “[a] defendant purposely compels 

another to submit to sexual conduct by force or threat of force if the defendant uses 

physical force against that person, or creates the belief that physical force will be 
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used if the victim does not submit.” State v. Schaim, 65 Ohio St.3d 51 (1992), 

paragraph one of the syllabus. 

A person acts purposely when it is the person’s specific intention to 

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

against conduct of a certain nature, regardless of what the offender 

intends to accomplish thereby, it is the offender’s specific intention to 

engage in conduct of that nature. 

R.C. 2901.22(A). “Force” is defined as “any violence, compulsion, or constraint 

physically exerted by any means upon or against a person or thing.” R.C. 

2901.01(A)(1). A victim “need not prove physical resistance to the offender” in 

order to demonstrate force. R.C. 2907.05(D). 

{¶30} In rape cases in which the victim is not a child, the State “must prove 

force or threat of force either through direct evidence of such or by inference where 

the defendant overcame the victim’s will by fear and duress.” State v. Rupp, 7th 

Dist. Mahoning No. 05 MA 166, 2007-Ohio-1561, ¶ 33. See also Stevens at ¶ 20 

(“‘[T]he key inquiry for determining whether the State presented sufficient evidence 

on the element of force is whether the “victim’s will was overcome by fear or 

duress.”’”), quoting State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, 

¶ 40, quoting In re Forbess, 3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, ¶ 40, 

citing State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶ 88, citing State 

v. Eskridge, 38 Ohio St.3d 56, 58-59 (1988). “[I]f the defendant created the belief 

that physical force will be used in the absence of submission, then threat of force 
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can be inferred”—that is, a “threat of force includes both explicit and implicit 

threats” because “[n]othing in the rape statute requires the threat of force to be direct 

or express.” Rupp at ¶ 33. See also Schaim at paragraph one of the syllabus (“The 

“force or threat of force” element “can be inferred from the circumstances 

surrounding sexual conduct.”); State v. Worrell, 10th Dist. Franklin No. 04AP-410, 

2005-Ohio-1521, ¶ 43 (“Thus, ‘[a] defendant purposely compels another to submit 

to sexual conduct by force or threat of force’ by creating ‘the belief that physical 

force will be used if the victim does not submit’ to the defendant’s actions.”), rev’d 

in part on other grounds, sub nom. In re Ohio Criminal Sentencing Statutes Cases, 

109 Ohio St.3d 313, 2006-Ohio-2109, quoting Schaim at paragraph one of the 

syllabus. “In order for a defendant to overcome his victim’s will by fear or duress, 

the defendant would have had to engage in sufficient behavior toward the victim. 

This behavior is objective and its effect is viewed in light of the totality of facts and 

circumstances existing at the time of the alleged rape.” Rupp at ¶ 41. See also 

Stevens at ¶ 21 (“‘[T]he amount of force [necessary to prove forcible rape under 

R.C. 2907.02(A)(2)] must be examined in light of the circumstances.’”), quoting 

State v. Runyons, 3d Dist. Union No. 14-91-30, 1992 WL 136196, *2 (June 9, 1992). 

{¶31} On appeal, Bender contends that the State presented insufficient 

evidence that he purposely compelled K.W. to submit to the sexual conduct by force 

or threat of force because K.W.’s testimony that she “thought that her having sex 
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with [Bender] might calm him down and stop him from hitting her” “shows that she 

did this knowingly and consensually.” (Appellant’s Brief at 24). Specifically, 

Bender contends that there is insufficient evidence of the force-or-threat-of-force 

element based on K.W.’s testimony because her testimony reveals that “[s]he may 

not have wanted to have sex with [Bender], and her reasons for doing so may have 

been far from romantic, but the sex was not forced upon her.” (Id.). 

In fact, the statement Nurse Stevens said [K.W.] made to her, that 

having sex with [Bender] ‘usually’ makes things better and makes 

[Bender] leave her alone, shows that this sort of sexual behavior 

between [Bender] and [K.W.] is not unique to the events of June 28-

29, but appears to be a normal part of their non-traditional 

relationship. 

(Id.). 

{¶32} Bender’s argument is misplaced. See Worrell at ¶ 45 (concluding that 

the victim’s “failure to physically resist does not negate the forcible element of the 

rapes”), citing State v. Hurst, 10th Dist. Franklin No. 98AP-1549, 2000 WL 249110, 

*4 (Mar. 7, 2000); Rupp at ¶ 42 (noting that “a victim need not risk physical damage 

or even death to later prove that she was raped”). K.W.’s testimony does not negate 

the forcible element of rape under R.C. 2907.02(A)(2); rather, K.W.’s testimony is 

sufficient evidence that Bender overcame her will by fear and duress. See State v. 

Thomas, 6th Dist. Lucas No. L-17-1266, 2019-Ohio-1916, ¶ 28 (“This testimony 

was relevant, because it provided context for the rape and tended to explain R.I.’s 

lack of resistance by demonstrating Thomas’s use of physical abuse, past and 
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present, to force her compliance.”). Indeed, that Bender concedes that K.W. “may 

not have wanted to have sex with” him is illustrative of the implicit threat to compel 

K.W. to engage in sexual conduct. 

{¶33} At trial, K.W. testified that (at the time of the incident) she was in a 

romantic relationship with Bender and the two were living together. (Apr. 23, 2019 

Tr., Vol. I, at 74-75). K.W. testified that (during the evening of June 28, 2018), she 

and Bender began arguing after Bender discovered that she was moving her things 

out of the residence that she shared with him. (Id. at 82). The State presented 

evidence that the argument progressed into a physical altercation during which 

Bender “tied [her] up down in the basement” by placing “ropes” “around [her] neck 

and arms and legs,” then by binding her hands and her feet with “ratchet straps” and 

suspending her from the rafters. (Id. at 84-85); (Apr. 22, 2019 Tr., Vol. I, at 128); 

(State’s Ex. 4). Then, Bender “continued hitting” her with “[h]is fist”; “a piece of 

wood”; “a pole”; a slingshot; a pan; and a gun. (Apr. 22, 2019 Tr., Vol. I, at 85-86); 

(Apr. 23, 2019 Tr., Vol. I, at 130); (State’s Ex. 4). “Bender had [her] sit there on all 

fours kicking [her] and then he used a back whip. It’s a leather strap with heavy 

objects on it. Leather strap with rebar and a ball bearing on it.” (Apr. 23, 2019 Tr., 

Vol. I, at 130-131); (State’s Ex. 4). K.W. “had to sit there on [her] hands and knees 

when he put the knife * * * in her vagina.” (Id. at 131); (Id.). Stevens also testified 
Case No. 14-19-22 

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that K.W. reported to her that Bender bit her arm. (Apr. 23, 2019 Tr., Vol. I, at 

127); (State’s Ex. 4). 

{¶34} According to Stevens, K.W. reported that Bender would not permit 

her to eat or sleep because “that is part of the game, too.” (Apr. 23, 2019 Tr., Vol. 

I, at 132); (State’s Ex. 4). The State also presented evidence that (at some point 

during the assault), K.W. was naked and that Bender would not return K.W.’s 

clothes to her. (Apr. 23, 2019 Tr., Vol. I, at 130); (State’s Ex. 4). Moreover, K.W. 

testified that Bender forced her to cut off her hair, then he used “clipper things” to 

make it shorter. (Apr. 22, 2019 Tr., Vol. I, at 89-90). (See also Apr. 23, 2019 Tr., 

Vol. I, at 131); (State’s Ex. 4). K.W. further testified that she was screaming during 

the assault but Bender put “rags and bandanas” in her mouth to muffle her screams. 

(Apr. 22, 2019 Tr., Vol. I, at 131). (See also Apr. 23, 2019 Tr., Vol. I, at 129); 

(State’s Ex. 4). According to K.W., Bender hit and kicked her over her entire body 

and that the altercation lasted “until the next morning.” (Apr. 22, 2019 Tr., Vol. I, 

at 86, 89). Importantly, K.W. testified that she was “scared” of Bender during the 

June 28-29, 2018 incident. (Id. at 127). 

{¶35} Mindful of her fear, K.W. testified that she engaged in sexual conduct 

(“more than once”) with Bender during the assault “because [she] thought it would 

calm him down.” (Id. at 88). K.W. reported to Stevens that “[u]sually [engaging in

sexual conduct with Bender] makes things better and he leaves [her] alone for a little 
Case No. 14-19-22 

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bit when [she] do[es] it,” but that “[i]t turned worse” in this instance. (Apr. 23, 2019 

Tr., Vol. I, at 131); (State’s Ex. 4). K.W. testified that she eventually escaped by 

running and hiding from Bender, then having a neighbor take her to Burger King 

for help. (Apr. 22, 2019 Tr., Vol. I, at 93-94). According to K.W., she requested 

that her friend take her to a hospital in another county because she was afraid that 

Bender would find her at the local hospital. (Id. at 95). 

{¶36} Based on the totality of the circumstances of this case, a rational trier 

of fact could infer that K.W.’s state of fear or duress during a prolonged period of 

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

torture. See Thomas, 2019-Ohio-1916, at ¶ 27 (concluding that the victim’s 

testimony “regarding past incidents of physical abuse” and that she engaged in 

sexual conduct with Thomas because “she wanted the abuse to end and for Thomas 

to leave” was relevant to whether Thomas purposely compelled the victim to engage 

in sexual conduct by force or threat of force). See also State v. Rucker, 1st Dist. 

Hamilton No. C-110082, 2012-Ohio-185, ¶ 17 (concluding that evidence that 

Rucker struck the victim with belts—even if the beatings occurred at times other 

than the sexual assaults—was relevant to whether the victim’s will had been 

overcome by fear or duress); Hurst, 2000 WL 249110, at *4 (Mar. 7, 2000) (noting 

that the absence of physical resistance “highlights the frightful experiences and 

threat of force present during the sexual encounter”). Accordingly, a rational trier 
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of fact could conclude beyond a reasonable doubt that Bender engaged in conduct 

which would overcome K.W.’s will by fear or duress and, therefore, that Bender 

purposely compelled K.W. to engage in sexual conduct by force or threat of force. 

Consequently, Bender’s rape conviction is based on sufficient evidence, and his 

third assignment of error is overruled. 

{¶37} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and WILLAMOWSKI, J., concur. 

/jlr