[Cite as State v. Runk , 2021-Ohio-777.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO Appellee

v. ERIC D. RUNK Appellant C.A. No. 19CA0073-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 18CR1082
DECISION AND JOURNAL ENTRY Dated: March 15, 2021

TEODOSIO, Judge. {¶1} Defendant-Appellant, Eric Runk, ap peals from the judgment of th e Medina County Court of Common Pleas. T his Court affirms.
I. {¶2} Mr. Runk and his wife were frie nds with I.H., the victim in thi s matter. Late one evening, I.H. began sending them troubling messages wherein she indicated that she had been drinking, that no one cared for h er, and that she wanted to die . The two exchanged messages with her for some time, and Mr. Runk eventually told I.H. that he wa s coming to get her. He picked up I.H. at her house and brought he r back to the house he shared w ith his wife. {¶3} I.H. consumed a considerable amount of alcohol before Mr. Runk arrived and ingested several of her prescription anxiety pills. She did no t recall traveling to Mr. Runk’s house or being brought inside. At some point, however, she realized she was in Mr. Runk’s guest bedroom and he was standing over her. According to I.H., Mr. R unk climbed into bed and had2 sex with her as she repeatedly l ost and regained consciousness. She indicated that she was unable to move or fend him off because she continued to lose conscious ness. She next recalled waking up in the guest bedroom the following morning. {¶4} I.H.’s daughter picked her up in the morning to bring her home. On the ride home, I.H. told her daughter that Mr. Runk had raped her. Her daught er convinced her to go to the hospital, and I.H. underwent a se xual assault examination later that same day. She also sent messages to Mr. Runk and asked him whether they had had sex the previous evening. Mr. Runk repeatedly denied that they had engaged in sexual intercourse. Likewise, when a detective interviewed him a few weeks late r, Mr. Runk repeatedly denied h aving had sex with I.H. The detective collected Mr. Runk’s DNA, and forensic testing confir med that Mr. Runk could not be excluded as the source of the m ale DNA that scientists uncovere d when testing the samples from I.H.’s rape kit. {¶5} A grand jury indicted Mr. Runk on one count of rape and one cou nt of sexual battery. The matter pr oceeded to a jury tria l, at the conclusi on of which the jury found him guilty of both counts. The court deter mined that Mr. Runk’s counts we re allied offenses of similar import, and the State elected to have him sentenced on the rape count. The court sentenced him to five years in prison and classi fied him as a tier III sexual offender. {¶6} Mr. Runk now appeals from the tria l court’s judgment and raises two assignments of error for our review.
II. ASSIGNMENT OF ERROR I
THE TRIAL COURT’S JUDGMENT OF GUILTY IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE REQUIRING REVERSAL OF APPELLANT’S CONVICTION.3
{¶7} In his first assignment of error, Mr. Runk argues that his guil ty verdicts for rape and sexual battery are against t he manifest weight of the evide nce. We do not agree. {¶8} This Court has stated: In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of witnesse s and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered. State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the c onflicting testimony.” State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This dis cretionary power “should be exercised only in the exceptional case in which the evidence we ighs heavily against the conviction.” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340. {¶9} Rape occurs when an offender enga ges in sexual conduct with som eone other than their spouse, the 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 substan tially impaired * * *.” R.C. 2907.02(A)(1)(c). Sexual battery occurs when an offender engag es in sexual conduct with someone other than their spouse with knowledge “that the other person’s ability to appraise the nature of or control [her] own conduct is substantially impaire d.” R.C. 2907.03(A)(2). “[S]ubstantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim’s ability, either to appraise the nat ure of [her] conduct or to control [her] conduct.” State v. Zeh , 31 Ohio St.3d 99, 103-104 (1987). “[V]oluntary intoxication is a mental4 or physical condition that could cause substantial impairment.” State v. Hansing , 9th Dist. Lorain No. 16CA011053, 2019-Ohio-739, ¶ 14. {¶10} At trial, the defense conceded t hat Mr. Runk had sexual interco urse with I.H. The only question was whether it was consensual. Mr. Runk argues t hat the jury lost its way when it chose to believe (1) that I.H. w as too impaired to resist or co nsent to sexual intercourse, and (2) that he was aware of that fact when he had sex with her. He no tes that I.H. was able to send text and photo messages that evening, all of which were lucid and le gible. He also notes that she was able to walk without stumbling and to carry on a conversation w ith him. According to Mr. Runk, I.H. changed small details of her story or withheld certain asp ects of it, depending on her audience. He claims that she ha d consensual sex with him and fabricated t he rape as a result of the guilt she felt afterward. Because I.H. was not credible, Mr. Runk argues , the jury’s verdicts are against the manifest weight of the evidence. {¶11} I.H. testified that she used to d ate Mr. Runk’s best friend and , through that relationship, became friends with Mr. Runk and his wife. She f requently socialized with the couple and continued to do so even afte r her relationship with Mr. Run k’s best friend e nded. Additionally, her adult daughter would babys it Mr. Runk’s three children from time to time. Though I.H. had a closer relationship with Mr. R unk’s wife, she also considered M r. Runk to be her friend. {¶12} A few months after they became friends, Mr. Runk began flirting with I.H. Occasionally, he also would send her messages of a sexual natur e. I.H. testified that she always downplayed the messages or changed the subject because she was not interested in having a sexual relationship with Mr. Runk. Up until these events occurred, th e two had never engaged in any sexual activity.5
{¶13} I.H. testified that she suffered from depression and anxiety. On the day that led to the events herein, she became extremely depressed because she w as having significant financial problems and lost a job opportunity. She began drinking that e vening and estimated that she ultimately consumed around twelve or thirteen alcoholic beverag es. Additionally, she recalled taking about eight of the pills she had been prescribed for her anxiety. I.H. stated that she took the pills and consumed the alcohol becau se she “felt like [she] jus t couldn’t take [her] life” anymore. {¶14} As the evening wore on, I.H. began sending messages to Mr. Runk and his wife via Facebook Messenger. The two were driving home from a family fu nction in separate vehicles and responded separately to her messa ges. In the messages, I.H. re peatedly indicated that she had no one and wanted to die. She rej ected the attempts of Mr. Runk a nd his wife to console her and sent a picture of pill bottles restin g on a table wit h the message “ I don’t want to wake up[.]” Just after midnight, Mr. Runk messaged I.H. that he would come and get her so that she could spend the night at their house. {¶15} I.H. testified that she had limited memories of the events that occurred after Mr. Runk offered to get her because she was “kind of in and out of consciousness with the medicine and the drinking.” She did not recall him picking her up or dr iving her to his house, but she did remember someone putting her into bed in his guest bedroom. He r next memory was of Mr. Runk standing beside her as she lay on the bed. She testified that she asked him where his wife and children were, and he said the children were sleeping and his w ife had left to get food. According to I.H., Mr. Runk then said, “I’ve been waiting a long time for this,” and climbed into bed with her. {¶16} I.H. testified that she repeated ly lost and gained consciousnes s as Mr. Runk pulled down her shorts and proceeded to have sexual intercourse with h er. She indicated that she was6

shocked and felt unable to move or defend herself because she k ept blacking out. She next remembered Mr. Runk wiping something off the bed and his wife c oming into the room with food and water for her. I.H. then blacked out again and had no memo ries until the following morning. When she awoke, she felt some tenderness in her vaginal area an d realized she “was kind of messy down there * * *.” {¶17} I.H.’s adult daughter came to get her that morning. On their r ide home, I.H. told her daughter that she was “almo st positive” Mr. Runk had raped her. Though she could not recall every detail of the previous eve ning, the memories she had and the physical sensations she felt when she awoke convinced her that the rape had occurred. I.H. testified that her daughter ultimately persuaded her to go t o the hospital, and she underwe nt a rape exam later that day. {¶18} I.H.’s daughter testified that she lived with I.H. when these e vents transpired, but was not home that evening because she spent the night with her aunt. The daughter confirmed that I.H. had already started drinking when she left the house aroun d 8:00 p.m. to meet her aunt. She also confirmed that I.H. was suffe ring from a lot of stress at the time. {¶19} The daughter testified that, af ter she left home, she spoke wit h I.H. twice by phone. Around 11:30 p.m., she received a te xt message from Mr. Runk’s wife, asking her to call I.H. and make sure everything was okay. T he daughter complied and brief ly spoke with I.H. She testified that their first conversation did not cause her any concern bec ause I.H. reassured her that everything was okay. A short while later, however, Mr. Runk’s wife sent her another message, and the daughter called I.H. a second time. This time, their c onversation worried the daughter because I.H. sounded like she had been crying. Even so, the da ughter testified, she was unable to drive home to I.H. because she had been drinking.7
{¶20} The daughter testified that she drove to Mr. Runk’s the followi ng morning to pick up I.H. When she saw her mother , she immediately noticed that I.H. was anxious and acting as if she wanted to leave quickly. T he two left for home and, on the ride back, I.H. began crying. I.H. then told her daughter that she thought Mr. Runk had raped her. The daughter testified that I.H. initially did not want to go to the hospital, so they returned home. Once I.H. rested for a bit, she allowed her daughter to tak e her to the hospital. {¶21} A registered nurse performed a sexual assault examination at th e hospital, and the swabs collected during her examination were forwarded to the Bu reau of Criminal Identification (“BCI”). Forensic scientists at BCI uncovered a component of s perm in I.H.’s swabs, as well as the DNA profile of an unidentifie d male. A scientist later com pared the unknown DNA profile to Mr. Runk’s profile and determined that his profile was consiste nt with the profile BCI found on the swabs from I.H.’s rape kit. {¶22} The same day that I.H. underwent her sexual assault examination , she sent a message to Mr. Runk via Facebook Me ssenger. She testified that she reached out to him because she wanted to see if he would admit that anything had happened between them. After they exchanged a few friendly messages, I.H. asked Mr. Runk whether they had engaged in sexual intercourse the previous eveni ng. Mr. Runk replied that they h ad not, but that I.H. had thrown up in his truck. The two traded a few more messages before I.H. b roached the subject again in the following manner: [I.H.:] * * * I’m pretty sure we had sex to lol my v jay jay wa s sour this morning lol [I.H.:] I remember u laying with me A stretch of time passed be fore Mr. Runk responded:8 [Mr. Runk:] Glad ur doing better. U ever feeling depressed li ke that again, reach out and come visit. U get to hang out with the boys at all thi s morning? [I.H.:] Yes and why are u avoiding my question lol [Mr. Runk:] I didn’t. Lol. Maybe u used your toy? Haha I.H. testified that she stopped asking Mr. Runk about any sexua l encounter at that point because she understood that he had no inten tion of telling her the trut h. {¶23} A week or two later, Detective Keith Curtin interviewed I.H. at her home, and she provided him with the messages she had exchanged with Mr. Runk. He and another officer then paid an announced visit to Mr. Runk at his home. Although they knocked, walked around the house, and remained outside for about fifteen minutes, no one a nswered the door. The officers decided to return to their vehicle and wait a short while becau se there were cars parked in Mr. Runk’s driveway. About fifteen minutes later, Mr. Runk and his wife emerged from the house, entered one of their vehicles, and drove off. Detective Curtin stopped their vehicle and learned that they were driving to the doctor. He, therefore, provided Mr. Runk with his card and instructed him to call after their appointment. {¶24} Mr. Runk called Detective Curti n, and they arranged to meet at Mr. Runk’s house the following day. The detective spoke with Mr. Runk outside f or a little over twenty minutes and asked him about his evening with I.H. He also recorded their c onversation, and the State played the recording for the jury at trial. {¶25} Mr. Runk indicated that he picked up I.H. because she had sent several messages alluding to the fact that she was suicidal. He admitted that h e knew she had been drinking and that she threw up in his truck. At one point, he also said that he had to carry I.H. into his house when they arrived. Mr. Runk told the d etective that I.H. seemed bet ter after she threw up and that he believed she was exaggerating or faking her behavior. He denie d that he ever walked I.H. back to9 his guest bedroom, went to the guest bedroom, or had sex with h er. Even when the detective suggested to Mr. Runk that I.H. might have led him on or initia ted their sexual encounter, Mr. Runk denied that any sexual activity had occurred. He told the detective that he did not know why I.H. would fabricate the allegations against him. {¶26} Mr. Runk testified in his own d efense and admitted that he had sex with I.H. He testified that he picked her up because he and his wife were af raid that she might harm herself. While he knew she had been drinking, he indicated that all of h er text messages were lucid and legible. He also claimed that her motor skills were intact whe n he arrived at her home, as he watched her walk around and trav erse the stairs more than once without incident. Mr. Runk testified that he spoke with I.H. for a short while before she walked to another room to pack an overnight bag. When she left the room, he shook her pill bottl e and noted that it was still noticeably full. He, therefore, believed t hat she was not in any real dan ger and was just seeking attention. {¶27} Mr. Runk acknowledged that I.H. threw up in his truck on the ri de to his house, but testified that it seemed to be t he result of anxiety and not in toxication. He claimed that the vomit was more like spit and did not appear to contain any pills. He also claimed that I.H. calmed down after she vomited. When they arrived at his house, Mr. Runk te stified, his wife was waiting for them and he placed his arm around I.H. as they walked inside. He denied that he had to carry her and insisted that she walked inside of her own accord. It was his testimony that he left his wife with I.H. while he changed cloth es. Shortly thereafter, his wi fe went to get fast food and he went to the guest bedroom to keep I.H. company. {¶28} Mr. Runk testified that I.H. aske d him to lie with her and to h old her. As he did so, I.H. began grinding her hips against him. Mr. Runk stated that he too had been drinking that day and accepted I.H.’s advances. He testified that they had conse nsual sex while his wife was gone10 and, once they finished, they agreed to keep it a secret. Acco rding to Mr. Runk, I.H. ate the food that his wife brought home for th em before they all went to bed

. {¶29} Mr. Runk acknowledged that he lied to I.H. on Facebook Messenge r when she asked him whether they had engag ed in sexual intercourse. He t estified that her question worried him because they had agreed to keep it secret. He claimed to b e concerned that, if he admitted their sexual encounter, I.H. would use his admission to extort him. He also claimed that he lied to Detective Curtin when they spoke because he did not want his wi fe to find out that he had cheated on her. Mr. Runk testified that h e later wanted to change his initial statement, but his first attorney advised against it. Mr. Runk main tained that I.H. was lucid wh en they had consensual sex and that she initiated the exchange. {¶30} I.H. acknowledged that, initially, she did not want to report t he rape that occurred to the police. The incident cam e to the attention of the polic e when the nurse who performed I.H.’s sexual assault examination reported it. I.H. explained that sh e was hesitant to report the rape because she feared what might happen if she did. She did not k now what would be expected of her, and she agreed that the last thing she wanted to have to d o was testify before a jury. I.H. also acknowledged that she did not t ell the nurse examiner about hav ing taken anxiety pills on top of the alcohol she had consumed. S he explained, however, that she was too embarrassed to tell the nurse that detail. {¶31} Having reviewed the record, we cannot conclude that the jury cl early lost its way and created a manifest miscarriage of justice when it found Mr. Runk guilty of rape and sexual battery. See Otten , 33 Ohio App.3d at 340. The jury was essentially presented wi th two conflicting versions of the events. Neither Mr. Runk, nor I.H. were perfec tly consistent in their respective renditions, and the jury was in the best position to assess the ir credibility. See State v. Johnson ,11 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. The jury hea rd testimony that Mr. Runk repeatedly lied about having sex with I.H. Even when the detec tive suggested that I.H. may have led him on or initiated their en counter, Mr. Runk denied that t he two had engaged in sexual intercourse. To the extent he changed his story and attempted to explain his reasons for doing so at trial, the jury was not obligated to accept his explanation. This Court has repeatedly rejected the notion that a verdict is against the manifest weight of the evidence simply “because the finder of fact chose to believe the State’s witnesses rather than the defendant’s version of the events.” State v. Martinez , 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Because Mr. Runk has not shown that this is the exceptional case where the evidence weighs heavily against his conviction, we reject his argument to the contrary. See Otten at 340. His first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND DENIED HIS RIGHT TO A FAIR TRIAL WHEN TRIAL COUNSEL FAILED TO CALL A CRITICAL EYEWITNESS WHOSE TESTIMONY WOULD HAVE CORROBORATED APPELLANT’S DEFENSE OF CONSENT. {¶32} In his second assignment of error, Mr. Runk argues that he rece ived ineffective assistance of counsel because his attorney never called his wif e to testify as a defense witness. For the following reasons, we reject his argument. {¶33} “[I]n Ohio, a properly licensed atto rney is presumed competent. ” State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prove ineffective assistance of counsel, one must establish that: (1) his counsel’s performance was deficient, an d (2) the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it falls below an objective standar d of reasonable representation. State12
v. Bradley , 42 Ohio St.3d 136 (1989), paragr aph two of the syllabus. Pre judice can be shown by proving “there exists a reasonable probability that, were it no t for counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of the syllabus. “[T]he Court need not address both Strickland prongs if an appellant fai ls to prove either one.” State v. Lortz , 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 34. {¶34} According to Mr. Runk, he received ineffective assistance of co unsel because his wife should have been called to tes tify as a witness for the de fense. He notes tha t his wife was an eyewitness to the events immediat ely preceding the alleged rape , as well as the events that followed thereafter. Had his wife testified, Mr. Runk argues, she would have confirmed that I.H. was not substantially impaired or upset i n the wake of the alleged rape . According to Mr. Runk, the jury would have acquitted him if they heard his wife testify. Thus, he argues that he was prejudiced by his attorney’s failure t o call her as a witness. {¶35} Generally speaking, the decision “whether to call a witness fa lls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Treesh , 90 Ohio St.3d 460, 490 (2001). More important ly, “‘a claim of ineffect ive assistance of counsel on direct appeal cannot be premised on d ecisions of trial counsel that ar e not reflected in the record of proceedings[,] * * * [or] [s]peculation regarding the prejudici al effects of counsel’s performance * * *.” State v. Fridley , 9th Dist. Wayne No. 17AP0029, 2019-Ohio-3412, ¶ 32, quoting State v. Leyland , 9th Dist. Summit Nos. 23833, 23900, 2008-Ohio-777, ¶ 7. Mr. Runk presumes that his wife would have been willing to testify on his behalf and would have offered favorable testimony. Yet, there is no evidence in the record, demonstrating that his wife was willing to testify. Nor does the record evidence what her testimony would have been or wheth er it would have aided his defense. See State v. Ball , 9th Dist. Summit No. 26537, 2013-Ohio-3506, ¶ 41. Mr. Runk’s entire13 argument is based on speculation. Thus, even assuming his coun sel engaged in a deficient performance, he has not established resulting prejudice. See Bradley , 42 Ohio St.3d 136, at paragraph three of the syllabus . Mr. Runk’s second assignment of error is overruled.
III. {¶36} Mr. Runk’s assignments of error are overruled. The judgment of the Medina County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT14
CALLAHAN, P. J. CARR, J. CONCUR.

APPEARANCES: DAVID C. SHELDON, Attorney at Law, for Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLU ICCI, Assistant Prosecuting Attorney, for Appellee.