IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

KLINT KUCK, 

Petitioner, : Case No. 3:18-cv-157 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

NORM ROBINSON, Warden, 

 London Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This action pursuant to 28 U.S.C. ' 2254 for a writ of habeas corpus is before the Court for 

decision on the merits on the Amended Petition (ECF No. 7), Petitioner’s initial Brief in Support 

(ECF No. 6), the State Court Record (ECF No. 13), the Return of Writ (ECF No. 14), and 

Petitioner’s Traverse/Reply (ECF No. 21). 

Procedural History 

 On September 29, 2014, the Darke County grand jury indicted Petitioner Klint Kuck on 

charges of sexual assault, kidnapping, and furnishing alcohol to two underage customers, “Sara” 

and “Jane,” on separate occasions in July 2012 and February 2013. Over Kuck’s objection, the 

charges were tried together. Kuck was convicted of two counts of rape and on the alcohol charges, 

but acquitted of kidnapping, and sentenced to seven years imprisonment. Kuck appealed and his 
convictions were affirmed. State v. Kuck, 2016-Ohio-8512, 79 N.E. 3d 1164, 2016 Ohio App. 

LEXIS 5349 (Dec. 29, 2016), appellate jurisdiction declined, 150 Ohio St. 3d 1444 (2017). 

 Kuck also filed a petition for post-conviction relief claiming ineffective assistance of trial 

counsel and that the verdicts were against the manifest weight of the evidence. The trial court 

denied the petition and Kuck appealed, but the trial judgment was affirmed. State v. Kuck, 2018 

Ohio App. LEXIS 3545 (2nd Dist. Aug. 17, 2018). When the Return of Writ was filed, Kuck’s 

time to appeal to the Supreme Court of Ohio had not yet expired but was due to expire October 9, 

2018. A check of that court’s docket on December 21, 2018, showed no appeal had been taken. 

 Kuck, represented by counsel, filed his Petition for writ of habeas corpus in this Court on 

May 9, 2018, pleading the following Grounds for Relief: 

Ground One: Petitioner was denied his right to a fair trial when the 

trial court refused to dismiss a potential juror for cause when she 

stated that she could not judge Petitioner fairly. 

Supporting Facts: During voir dire, a potential juror told the trial 

court that she had had a sin [sic] who was raped, who had since 

passed away. Although the trial court tried to rehabilitate her, she 

stated that she was not sure that she would be able to listen to form 

her own opinion about what had happened. When trial counsel 

questioned her, she stated “I don’t think I could be fair.” When trial 

counsel moved to dismiss her for cause, the trial court denied the 

motion, forcing counsel to use Mr. Kuck’s last peremptory 

challenge. 

Ground Two: Petitioner was denied his right to effective assistance 

of counsel. 

Supporting Facts: Trial counsel failed to move for acquittal at the 

close of the State’s case and the close of evidence; failed to prepare 

to cross examine the complaining witnesses by having their 

recorded statements transcribed; failed to object to improper jury 

instructions; failed to object to incorrect statements by the trial court 

as to the elements and standards of proof; failed to object to the 

admission of improper evidence regarding the alleged victims, and 

Mr. Kuck’s own sexual history; and failed to object to prosecutorial 
misconduct through leading questions, hearsay, and blatant appeals 

to the jury’s emotions. 

Ground Three: Petitioner was denied his right to a fair trial by 

prosecutorial misconduct. 

Supporting Facts: The prosecutor introduced irrelevant personal 

information from the complaining witnesses in order to bolster their 

testimony and appeal to the jury’s emotions; introduced testimony 

about Mr. Kuck dating younger women, to make Mr. Kuck look 

untrustworthy; accused Mr. Kuck of treating women like “a piece of 

meat”, looking for “another notch in the belt”, and not intending to 

date or even call either of the complaining witnesses after having 

sexual encounters with them in an effort to appeal to the jury’s 

emotions; used leading questions; and solicited salacious hearsay 

testimony from a witness in an effort to make Mr. Kuck look bad. 

Ground Four: Petitioner was denied his right to a fair trial when 

the trial court refused to sever unrelated charges. 

Supporting Facts: Petitioner’s interaction with complaining 

witness D.D. happened on July 13th, 2012, in Darke County, Ohio. 

Petitioner’s interaction with complaining witness L.C. happened 

February 23, 2013, in Preble County, Ohio. The two incidents 

happened seven months apart, in different counties. When trial 

counsel moved the trial court to sever the charges for trial, the trial 

court refused. 

Ground Five: Petitioner was denied his right to a fair trial when the 

trial court allowed the introduction of evidence that the complaining 

witnesses “blacked out” to be considered evidence that the 

complaining witnesses’ ability to consent to sexual conduct was 

impaired. 

Supporting Facts: Both complaining witnesses testified that they 

did not remember portions of their interactions with Petitioner. 

Evidence of loss of memory is not evidence of an impaired ability 

to consent to sexual conduct. However, the trial court allowed the 

jury to consider evidence of lack of memory as evidence of impaired 

ability to consent to sexual conduct. 

Ground Six: Petitioner was denied his right to a fair trial when the 

trial court gave an instruction that created a mandatory presumption. 

Supporting Facts: The trial court gave a jury instruction that read, 

in pertinent part, “The consumption of large amounts of alcohol in 
a short period of time is evidence that voluntarily [sic] intoxication 

caused substantial impairment.” Another portion of the jury 

instructions stated that “Stumbling, falling, slurred speech, passing 

out and vomiting are all evidence that an intoxicated person is 

substantially impaired.” These instructions created the presumption 

that if the jury found any of these things: consumption of large 

amounts of alcohol in a short period of time, stumbling, falling, 

slurred speech, passing out, or vomiting, they must find that the 

complaining witness’ ability to consent to sexual conduct was 

substantially impaired. 

Ground Seven: Petitioner was denied his right to a fair trial when 

the trial court gave an instruction on sexual battery as a lesser 

included offense of rape, but did not instruct the jury on the 

difference in the elements of the crimes. 

Supporting Facts: The trial court instructed the jury on the 

supposed “lesser included offense” of sexual battery with regard to 

the rape charges regarding both complaining witnesses. However, 

under Ohio law, the elements of sexual battery are indistinguishable 

from the elements of rape: sexual conduct, with a person who is not 

the defendant’s spouse, while that person’s ability to resist or 

consent is substantially impaired, and the defendant knows or has 

reason to Code Sections 2902(A)(1)(c), 2907.03(A)(2); OJI CR 

507.02(A)(1); OJI CR 507.03. The trial court did not instruct the 

jury on the additional element that distinguishes rape from sexual 

battery, and the Ohio Courts do not agree on the nature of that 

element. 

(Petition ECF No. 1, Page ID 26-30.) 

Analysis 

Ground One: Failure to Excuse Unqualified Juror for Cause 

 In his First Ground for Relief, Kuck claims he was denied a fair trial because he was 

required to use a peremptory challenge to remove a juror who had said she doubted her ability to 
be fair in this rape case because her son had been raped as a young man. The Second District 

upheld the trial judge’s decision, holding 

[*P56] Here, the trial court implicitly found, based on the 

prospective juror's answers, that despite her assertion to the 

contrary, she could be a fair and impartial juror. While the 

prospective juror believed that she would not be able to judge 

properly, the trial court, through its questions, was able to show that 

she would do her duty properly. We think that this conclusion is 

reasonable. 

State v. Kuck, 2016-Ohio-8512. Assuming without conceding that this was error, Respondent 

notes that the loss of a peremptory challenge does not violate the constitutional right to an impartial 

jury so long as the biased juror does not sit. (Return, ECF No. 14, PageID 2154, relying on Ross 

v. Oklahoma, 487 U.S. 81 (1988), where the Court stated “so long as the jury that sits is impartial, 

the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the 

Sixth Amendment was violated.” Ross, 487 U.S. at 88 (citing Hopt v. Utah, 120 U.S. 430, 436 (1887), 

and Spies v. Illinois, 123 U.S. 131 (1887)).

 Petitioner agrees that Ohio law, like that of Oklahoma, requires a defendant to use a 

peremptory challenge to remove a juror he has unsuccessfully challenged for cause. This case is 

different from Ross, Kuck argues, because he had to use his last peremptory to remove the 

challenged juror, whereas Ross had eight of his nine peremptory challenges left (Reply, ECF No. 

21, PageID 2218, citing State v. Rowe, 1988 Ohio App. LEXIS 2123 (2nd Dist. Jun. 1, 1988)). The 

Magistrate Judge notes that in Rowe Judge Brogan dissented on the ground that, because the 

questionable juror had been excused, any error in not excusing her for cause was harmless since 

the deciding jury was impartial. Id. at *14-15, citing Gray v. Mississippi, 481 U.S. 648 (1987). 
 In any event, the analysis of this claim in the Reply reverses the standard for habeas corpus 

relief. To obtain relief, a petitioner must show that his conviction is contrary to or an unreasonable 

application of clearly established Supreme Court precedent, not that his case is distinguishable 

from a relevant Supreme Court case. To put it differently, the Supreme Court has never held that 

forcing a defendant to use his last peremptory to remove an unsuccessfully challenged venire man 

or woman is unconstitutional. The holding in Ross is that if the challenged juror does not sit, there 

is no constitutional violation, without any discussion of how many peremptory challenges the 

defendant had left. While the distinction Petitioner argues might be persuasive if this Court were 

deciding the constitutional question de novo, we may not do that in habeas corpus. 

 In his initial Brief, Kuck relied on White v. Mitchell, 431 F.3d 517 (6th Cir. 2005). 

Respondent distinguishes White in that the biased juror there was allowed to remain on the jury 

during the penalty phase of that capital case. Kuck responds that the Sixth Circuit in White

overturned the Ohio Supreme Court’s decision in the same case, reported at 82 Ohio St. 3d 16 

(1998), but the Second District had relied on the Ohio Supreme Court decision. 

 In White the Supreme Court of Ohio upheld the seating of a challenged venireman as an 

appropriate exercise of trial judge discretion. The Sixth Circuit overturned only that portion of the 

trial judge’s decision that related to impartiality in the penalty phase.1 White v. Mitchell speaks 

only to the standard to be used in evaluating whether a juror is impartial; it does not address at all 

the question presented by Ground One of whether it is unconstitutional to require a defendant to 

use his or her last peremptory challenge to remove an unsuccessfully challenged venireman. 

 

1 White is a capital case. The Sixth Circuit issued the writ only as to the penalty and not as to the conviction. 
 Kuck has not shown that the Second District’s decision is an unreasonable application of 

the holdings in Supreme Court precedent. Ground One should therefore be dismissed on the 

merits. 

Ground Two: Ineffective Assistance of Trial Counsel 

 In his Second Ground for Relief, Kuck claims he received ineffective assistance of trial 

counsel in that his trial attorney (1) failed to move for acquittal at the close of the State’s case and 

the close of evidence; (2) failed to prepare to cross examine the complaining witnesses by having 

their recorded statements transcribed; (3) failed to object to improper jury instructions; (4) failed 

to object to incorrect statements by the trial court as to the elements and standards of proof; (5) 

failed to object to the admission of improper evidence regarding the alleged victims, and Mr. 

Kuck’s own sexual history; and (6) failed to object to prosecutorial misconduct through leading 

questions, hearsay, and blatant appeals to the jury’s emotions. 

The governing standard for ineffective assistance of trial counsel was adopted by the 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): 

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence has 

two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel was 

not functioning as the "counsel" guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the conviction 

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable. 
8 

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing 

Knowles v. Mirzayance, 556 U.S.111 (2009). 

With respect to the first prong of the Strickland test, the Supreme Court has commanded: 

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

conduct, and to evaluate the conduct from counsel=s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action "might be 

considered sound trial strategy." 

466 U.S. at 689. 

As to the second prong, the Supreme Court held: 

The defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability 

sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 

313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally

Annotation, 26 ALR Fed 218. 

 As noted above, Petitioner makes six distinct claims of ineffective assistance of trial 

counsel which will be examined seriatim. 
9 

Subclaim 2(1) Ineffective Assistance in Failing to Make Motions for Judgment of Acquittal 

 Kuck asserts his trial attorney provided ineffective assistance of trial counsel when he 

failed to move for a judgment of acquittal at the close of the State’s case and at the close of the 

evidence. Kuck presented this claim to the Second District on direct appeal and that court decided 

the claim as follows: 

[*P75] Kuck first argues that trial counsel was ineffective for not 

moving for acquittal on the rape offenses on the grounds that the 

State failed to present any evidence that Kuck knew that either Sara 

or Jane was "substantially impaired." But the failure to move for 

acquittal under Crim.R. 29 does not rise to the level of ineffective 

assistance of counsel if the motion would have been futile. State v. 

Faulkner, 2d Dist. Clark No. 2892, 1993 Ohio App. LEXIS 2175, 

1993 WL 125452 (Apr. 22, 1993). Here, we conclude in our review 

of the second assignment of error that the evidence is sufficient to 

find that Kuck knew Sara and Jane were substantially impaired. So 

a motion for acquittal would have been futile. 

State v. Kuck, supra. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 

100(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); 

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

 Petitioner does not argue this claim in his Brief. In his Reply, he makes this subclaim turn, 

as the Second District did, on his insufficiency of the evidence claim (ECF No. 21, PageID 2220). 

If the motion for judgment of acquittal would indeed have been futile, then it cannot have been 

ineffective assistance of trial counsel to fail to make it. This Court must therefore examine the 
10 

underlying sufficiency of the evidence claim. That claim was made as the second assignment of 

error on direct appeal. The Second District stated the standard for such a claim as follows: 

A challenge to the sufficiency of the evidence supporting a 

conviction requires that we consider "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." State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, 

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

L.Ed.2d 560 (1979). We will not "disturb a verdict on appeal on 

sufficiency grounds unless 'reasonable minds could not reach the 

conclusion reached by the trier-of-fact.'" [State v.] Ketterer, 111 

Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 94, quoting 

State v. Dennis, 79 Ohio St.3d 421, 430, 1997 Ohio 372, 683 N.E.2d 

1096 (1997). 

State v. Kuck, supra, quoting State v. Montgomery, 148 Ohio St. 3d 347, ¶ 74 (2016). Applying 

that standard the Second District evaluated Kuck’s claim as to the rape victim2 (referred to in the 

opinion as “Sara”) follows: 

1. Rape and sexual battery 

2.

 [*P90] Kuck was convicted of rape under R.C. 2907.02(A)(1)(c), 

which prohibits 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." And he was convicted of sexual battery under 

R.C. 2907.03(A)(2), which prohibits sexual conduct with another 

when "[t]he offender knows that the other person's ability to 

appraise the nature of or control the other person's own conduct is 

substantially impaired." Kuck's sufficiency and weight arguments 

focus on whether the victims were substantially impaired and what 

he knew about their impairment. 

a. Substantial impairment 

 

2

 In his Reply, Kuck argues only the rape charge. The Second District’s sufficiency analysis includes both rape and 

sexual battery, but the latter is not quoted. 
11 

 [*P91] The Ohio Supreme Court has held that "substantial 

impairment must be established by demonstrating a present 

reduction, diminution or decrease in the victim's ability, either to 

appraise the nature of his conduct or to control his conduct." State 

v. Zeh, 31 Ohio St.3d 99, 104, 31 Ohio B. 263, 509 N.E.2d 414 

(1987). "'"Substantial impairment" need not be proven by expert 

medical testimony; it may be proven by the testimony of persons 

who have had some interaction with the victim and by permitting 

the trier of fact to obtain its own assessment of the victim's ability 

to either appraise or control her conduct.'" Hatten, 186 Ohio App.3d 

286, 2010-Ohio-499, 927 N.E.2d 632, at ¶ 21, quoting State v. 

Dorsey, 5th Dist. Licking No. 2007-CA-091, 2008-Ohio-2515, ¶ 43. 

"[V]oluntary intoxication is a 'mental or physical condition' that 

could cause substantial impairment under R.C. 2907.02(A)(1)(c)." 

Id. 

 [*P92] We consider first the evidence supporting the jury's finding 

that Sara's ability to resist or consent to sexual conduct with Kuck 

was substantially impaired because of a mental or physical 

condition. Sara testified that soon after she arrived at the bar she 

drank two shots and half a beer, which Kuck had brought to her. She 

said that after the second shot she felt very tired, so she went out to 

her car where she fell asleep. Her girlfriend came out and woke her 

up, and Sara "felt really weird, like, physically, like something 

wasn't right." (Tr. 255). Sara said that she then went back into the 

bar and drank the shot that Kuck handed her. Said Sara: "And I 

remember after I took it, it just—I just—something didn't feel right 

and I was really tired still and I remember looking across the clock 

in the bar and then it felt like my knees were about to collapse." (Id.

at 212). The battery in her cell phone was dead, so she went to her 

car to recharge it. "And then I don't remember getting to my car but 

I remember walking out the front of the bar and there was like a 

crowd of people that weren't there previously that were just standing 

out front. And I walked through them and then I don't remember 

what happened." (Id. at 213, 258). The next thing she remembered 

was Kuck waking her up by knocking on her car window or opening 

the car door. Then she blacked out: "I didn't fully make it out of my 

car. I wasn't walking wobbly. I stood up and then I blacked out." (Id.

at 260). Then: 

I remember waking up but I didn't open my eyes yet 

because I felt something. I felt—I felt him [Kuck] 

penetrating me with his penis in my vagina, and I didn't 

know what was going on. But then I moved my hips around 

and I remember I heard him grunt twice and then my head 
12 

was down and I shot it up and I yelled "What the f**k?" 

And he took off running. 

And then I remember I was so confused and mad and I 

didn't know what was going on and I couldn't stand though. 

And then I took a few steps to my right and I remember 

passing out on something which I later found was an air 

conditioner but then I don't remember nothing else. 

(Id. at 214). She also said, "I remember wanting to chase him but I 

couldn't move. I just took a few staggers to the right and just passed 

out on an object which I later found out was an air conditioner. And 

then the rest of the night nothing besides at one point I remember 

for like two seconds waking up in the back of his truck and 

watching—looking at him and [her girlfriend] talking." (Id. at 216). 

The next thing she remembered was waking up at her girlfriend's 

home. (Id. at 217). 

 [*P93] Viewing the evidence in a light most favorable to the State, 

a rational trier of fact could have found, beyond a reasonable doubt, 

that Sara's ability to appraise the nature of, or to control her conduct 

was reduced, diminished or decreased. That she repeatedly blacked 

out and had lapses of memory suggests this most strongly. . . . . 

 [*P94] [concerns other victim] 

 [*P95] We have said that the consumption of a large amount of 

alcohol over the course of just a few hours is sufficient evidence to 

find that the victim was substantially impaired. Hatten, 186 Ohio 

App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, at ¶ 22 (over the 

course of the evening and early morning, the victim drank half a 

pitcher of beer, three cans of beer, and seven shots of alcohol). Here, 

Jane consumed at least ten alcoholic drinks that night. The 

consumption of that amount of alcohol is sufficient evidence for 

reasonable jurors to find, beyond a reasonable doubt, that her ability 

either to appraise the nature of her conduct or to control her conduct 

was reduced, diminished, or decreased. And we cannot say that the 

jury clearly lost its way and created a manifest miscarriage of justice 

by finding that Jane's ability to appraise the nature of or control her 

own conduct was substantially impaired. 

b. Knowledge of substantial impairment 

 [*P96] To prove rape under R.C. 2907.02(A)(1)(c), the State must 

establish not only that the other person was substantially impaired 
13 

but also that the defendant knew or had reasonable cause to believe 

that the other person's ability to resist or consent was substantially 

impaired because of a mental or physical condition. Similarly, to 

prove sexual battery under R.C. 2907.03(A)(2), the State must 

establish that the defendant knew that the other person's ability to 

appraise the nature of or control the other person's own conduct was 

substantially impaired. Kuck argues that there is insufficient 

evidence to support finding that he knew or had reasonable cause to 

believe that either Sara or Jane was substantially impaired and that 

the manifest weight of the evidence is against this finding. 

 [*P97] Sara's testimony suggests that during her blackouts that 

night she was unconscious. Kuck could not have failed to notice this. 

That she was unconscious during the sexual conduct did not simply 

impair Sara from resisting or consenting but precluded either all 

together. The evidence is sufficient. 

State v. Kuck, supra. 

Kuck does not here make a direct claim that the evidence to support conviction was 

insufficient, but he relies on that argument to undergird his claim that his attorney provided aitc 

when he did not move to dismiss on that basis. 

An allegation that a verdict was entered upon insufficient evidence states a claim under the 

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. 

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order 

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a 

reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable inferences 

from basic facts to ultimate facts. 
14 

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); 

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was 

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

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

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

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

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

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

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

challenges the constitutional sufficiency of the evidence used to 

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

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

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

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

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

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for 

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

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

defendant had we participated in jury deliberations, we must uphold 

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

defendant guilty after resolving all disputes in favor of the 

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

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

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

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

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

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

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); 
15 

Parker v. Matthews, 567 U.S. 37, 43 (2012). 

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

habeas proceedings because they are subject to two layers of judicial 

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

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

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

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

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

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

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

state court decision rejecting a sufficiency of the evidence challenge 

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

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

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

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

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam). 

 Kuck’s argument as this Court understands it is that the Second District erroneously 

equated lack of memory or “blackout” with unconsciousness, but that is a false equivalence 

according to State v. Doss, 2008-Ohio-449 ¶ 18 (8th Dist.). In Doss the victim was heavily 

intoxicated and had no memory of having sex with the defendant. In the cited paragraph, the 

Eighth District held: 

 [*P18] As Schmidt demonstrates, when reviewing substantial 

impairment due to voluntary intoxication, there can be a fine, fuzzy, 

and subjective line between intoxication and impairment. Every 

alcohol consumption does not lead to a substantial impairment. 

Additionally, the waters become even murkier when reviewing 

whether a defendant knew, or should have known, that someone was 

impaired rather than merely intoxicated. Of course, there are times 

when it would be apparent to all onlookers that an individual is 

substantially impaired, such as intoxication to the point of 

unconsciousness. On the other hand, "a person who is experiencing 

[an alcohol induced] blackout may walk, talk, and fully perform 

ordinary functions without others being able to tell that he is 

'blacked out.'" Westin, Peter, Egelhoff Again (1999), 36 

Am.Crim.L.Rev. 1203, 1231. In addition, J.P.'s [the complainant] 

testimony describes a blackout as "where someone who drinks 

alcohol heavily can function and be, appear to be there, and 

conscious, but in reality, they would not have any memory of what 
16 

they did or where they were." Furthermore, Aaron Reynolds, a 

classmate of J.P.'s at NEOUCOM, who was also at Club Moda on 

the night in question, testified that he blacked out from 

approximately midnight until leaving the bar between 2:00 and 2:30 

a.m. While Reynolds did not remember anything from that time 

period, he stated that his friends told him that he was dancing and 

having a good time. He also testified that when he saw J.P. at the 

bar, "she was intoxicated, but she wasn't unmanageable." 

In other words, J.P. may in fact have been substantially impaired, but might not have appeared to 

Doss to be substantially impaired. 

Doss should not be read as holding that a person who is “blacked out” can never appear to 

a potential sex partner to be substantially impaired. Instead, Doss holds that, upon the evidence 

presented, the State had not proved beyond a reasonable doubt that Doss knew or should have 

known J.P. was substantially impaired. J.P. herself admitted that could happen and an eyewitness 

who knew her said she was “intoxicated” bot not “unmanageable.” 

 Even if Doss purported to be stating a rule of law rather than a conclusion based upon the 

evidence before the Eighth District, it would not be binding on the Second District. Beyond that, 

the facts before the Second District are significantly different. Sara blacked out repeatedly and 

was not able to stand at some points. Her description of her blackouts suggested to the Second 

District that she might have been unconscious at times, a condition which would have shown 

substantial impairment and which could not have been mistaken by Kuck as being intoxicated but 

not unmanageable.3

 

 Given the double deference required by AEDPA, this Court cannot say that the Second 

District’s application of Jackson v. Virginia was objectively unreasonable in this case. Because 

 

3

 Kuck claims in his Reply that “Sara stated she did not remember having sex with Petitioner,” but provides no record 

reference. The Second District, in contrast, quotes Sara as remembering Kuck vaginally penetrating her. ¶ 92. That 

certainly constitutes “having sex.” 
17 

there was sufficient evidence to convict, it was not ineffective assistance of trial counsel to fail to 

move for a judgment of acquittal.

Subclaim 2(2) Ineffective Assistance in Failing to Obtain Transcripts of Recorded Interviews 

with Witnesses. 

 

 In Subclaim 2(2), Kuck avers there existed audio recordings of statements made by each 

of the victims to law enforcement which, had they been transcribed, could have been effectively 

used to cross-examine and impeach the victims (Brief, ECF No. 6, PageID 57-59). This claim was 

part of Kuck’s first assignment of error on direct appeal and the Second District decided it in part 

as follows: 

[*P80] Kuck says that because there is no transcription of the 

interview there was no way to prove to the jury that Jane made these 

statements to the detective, short of playing the recording. So 

counsel's cross-examination on these statements failed, says Kuck, 

and trial counsel simply moved on to the next topic. But as with 

Sara, the trial transcript suggests that counsel was simply done 

asking about Jane's interview. 

[*P81] Counsel cross-examined both victims at trial using copies of 

their prior written statements. And parts of the recorded interviews 

were played during the trial. There is certainly nothing close to a 

showing here that the jury would have obviously come to different 

conclusions about Kuck's guilt if only transcripts of some pretrial 

interviews had been obtained and used. 

State v. Kuck, supra.

 Kuck cites no authority for the proposition that it is deficient performance for a crossexaminer to rely on original voice recordings of prior inconsistent statements rather than written 

transcriptions of those recordings. Indeed, hearing the prior inconsistent statement from the 

witness’s own mouth would likely be more effective than the written transcripts, and certainly 

since the Second District also found there is no showing of prejudice. Subclaim 2(2) should be 
18 

dismissed on the merits because the Second District’s decision is not an objectively unreasonably 

application of Strickland. 

Subclaim 2(3) Ineffective Assistance in Failing to Object to Jury Instructions 

 In his third subclaim of ineffective assistance of trial counsel, Kuck asserts his trial attorney 

provided ineffective assistance when he failed to object to jury instructions which Kuck considered 

improper. He raised this ineffective assistance claim in the Second District which rejected it on 

the basis that the instructions were not erroneous. Since it cannot be ineffective assistance of trial 

counsel to fail to object to proper instructions, this conclusion of the Second District is entitled to 

deference under 28 U.S.C. § 2254(d)(1). 

Subclaim 2(4): Ineffective Assistance in Failing to Object to Trial Court Statements on the 

Elements and Standard of Proof 

 

 Kuck presented this claim to the Second District which decided it as follows: 

[*P83] Kuck argues that trial counsel was ineffective for not 

objecting to certain comments made by the trial court about the 

State's burden of proof and the elements of rape. The trial court 

began voir dire by "talk[ing] a little bit about legal concepts." (Tr. 

31). The court told the prospective jurors that the State must prove 

guilt and then explained: 

So the State of Ohio has to prove guilt but how much proof 

does it take? Well, there is a legal standard. The standard 

is called you have to be guilty beyond a reasonable doubt. 

The State has to prove its case beyond a reasonable doubt. 

Did anybody hear a number in there, what percentage that 

is? It's not. 

In a criminal case, there's no such number. Sometimes it 

drives people crazy. Proof beyond a reasonable doubt is not 
19 

expressed as 99.9 percent. It's not expressed as 66 2/3 

percent. It's not 75. It's not any kind of a number. You have 

to be thoroughly convinced about the truth of the charge. 

So what amount of evidence it takes for each of you to be 

thoroughly convinced is an individual decision. * * * 

* * * All I can tell you is the State of Ohio has to prove 

guilt beyond a reasonable doubt before somebody is no 

longer presumed innocent. Everybody understand the 

concepts? 

(Id. at 31-33). Kuck says that the comments about percentages were 

inappropriate, because they confused the jury about the standard of 

proof and because they were made before a jury was even selected. 

[*P84] The trial court also explained to the prospective jurors what 

the rape charges allege: 

As to the first victim, the first count is engaging in sexual 

conduct when that person's ability to consent or to resist 

was impaired because of some sort of mental, physical or 

physiological condition. 

The title of that's called rape but I don't like to use that word 

because it doesn't mean anything. So it's sexual conduct 

with another person when their ability to consent or resist 

is impaired. 

(Id. at 49). 

[*P85] Kuck says that these statements misstate the elements of 

rape under R.C. 2907.02(A)(1)(c), which requires not simply 

impairment but substantial impairment. Because trial counsel failed 

to object to this misstatement of the law, says Kuck, the jury, at the 

very beginning of the trial, was misled about what the State had to 

prove. 

[*P86] When the trial court instructed the jury after the close of all 

evidence, it gave correct instructions of the law with respect to the 

standard of proof and the elements of rape. These instructions cured 

any misstatements or simplifications made by the court during voir 

dire, since "[t]he jury is presumed to follow the instructions given 

to it by the trial judge." (Citation omitted.) State v. Ahmed, 103 Ohio 

St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147. Because the 

court's statements during voir dire were not formal jury instructions, 
20 

we do not think that counsel was required to object and he was not 

ineffective for not doing so. 

State v. Kuck, 2016-Ohio-8512. 

 In his Brief (ECF No. 6, PageID 61-62), Kuck makes no attempt to show that this was an 

unreasonable application of Strickland, essentially finding no prejudice. The Magistrate Judge 

agrees that the Second District’s decision is entitled to deference under § 2254(d)(1) in the absence 

of any showing of prejudice or even any argument that it occurred. 

Subclaim 2(5) Ineffective Assistance in Failure to Object to Improper Evidence 

 In his Subclaim 2(5), Kuck asserts he received ineffective assistance of trial counsel when 

his attorney did not object to the improper admission of certain evidence. The Second District 

decided this claim as follows: 

5. Failing to object to the admission of evidence 

[*P87] Lastly, Kuck argues that trial counsel was ineffective for not 

objecting to hearsay, to improper leading questions, to questions 

prohibited by the rape-shield statute, and to character evidence 

regarding both Kuck's bad character and the victims' good character. 

We considered the underlying legal propositions in our review of 

the fourth assignment of error. Once again, Kuck recasts 

propositions of law as ineffective assistance. We rejected the 

underlying propositions on their merits, so we reject Kuck's 

ineffective assistance claim here. 

State v. Kuck, 2016-Ohio-8512. It cannot be ineffective assistance of trial counsel to fail to raise 

objections that are without merit. Therefore, this subclaim should also be denied on the merits 
21 

Subclaim 2(6) Ineffective Assistance for Failure to Object to Prosecutorial Misconduct 

 In his last trial attorney ineffective assistance claim, Kuck asserts he received ineffective 

assistance of trial counsel when his trial attorney did not object to a number of instances of asserted 

prosecutorial misconduct. 

 So far as the Court can determine, Kuck did not raise this subclaim on either direct appeal 

or appeal from denial of his petition for post-conviction relief. It is therefore subject to analysis 

as procedurally defaulted. 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights 

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 

U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal 

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal 

habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); 

Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. 

Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). 

 Because these asserted instances of ineffective assistance of trial counsel are evident from 
22 

the record, they could have been raised on direct appeal in the same way that Kuck’s other 

subclaims were raised. Because they were not, they are now barred by Ohio’s criminal res judicata 

rule adopted in State v. Perry, 10 Ohio St. 2d 175 (1967), which is an adequate and independent 

state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 

274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 

209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation 

omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). 

 Kuck’s Subclaim 2(6) should be dismissed as procedurally defaulted. 

Ground Three: Prosecutorial Misconduct 

 In his Third Ground for Relief, Petitioner complains that various acts of prosecutorial 

misconduct deprived him of a fair trial. This was his fourth assignment of error on direct appeal 

which the Second District decided on the merits. It first set forth the governing Supreme Court 

standard for evaluating such claims, quoting State v. McKelton, 148 Ohio St.3d, 261, 308, 2016-

Ohio-5735, ¶ 257 (2016): 

When reviewing a claim of prosecutorial misconduct, “[t]he 

relevant question is whether the prosecutors’ comments ‘so infected 

the trial with unfairness as to make the resulting conviction a denial 

of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986), 

quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To 

answer that question, we consider whether the conduct was 

improper and whether it prejudicially affected the defendant's 

substantial rights. In evaluating prejudice, we determine the effect 

of the misconduct “on the jury in the context of the entire trial.” State 

v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). 

State v. Kuck, 2016-Ohio-8512 at ¶ 28. With respect to misconduct claims revolving around 
23 

evidentiary issues, the court found the evidence in question was properly admissible and thus it 

was not misconduct to elicit it. Id. at ¶¶ 29-31. With regard to comments the prosecutor made 

about testimony on Kuck’s lifestyle and treatment of women, the Second District found that the 

complained-of comments were “mild compared to statements the Ohio Supreme Court has allowed 

describing other defendants” and thus not misconduct. Id. at ¶¶ 32-35. 

 Concerning the complaint that the prosecutor asked witnesses leading questions, the 

Second District found the questions either were not unambiguously leading or were within the 

discretion of the trial court to allow. Id. at ¶¶ 36-37. It also found that no objection had been 

made, so review was for plain error only. Id. at ¶ 37. Plain error review constitutes an enforcement 

of the contemporaneous objection rule, Fleming v. Metrish, 556 F.3d 520, 539 (6th Cir. 2009), 

which means this part of the prosecutorial misconduct claim is procedurally defaulted. The same 

procedural default applies to Kuck’s complaint that the prosecutor elicited hearsay. Id. at ¶ 38. 

 In support of this Ground for Relief, Petitioner cites the same general standard relied on by 

the Second District, albeit from a different source (Brief, ECF No. 6, PageId 66, citing Smith v. 

Warden, 2010 U.S. Dist. LEXIS 78706, *65-66 (S.D. Ohio 2010), relying on Donnelly and 

Darden, supra, as did the Second District. Kuck makes no effort in his Brief to show that the 

Second District’s decision on this claim is an objectively unreasonable application of these two 

Supreme Court cases. 

 To the extent the Second District’s ruling on this assignment of error was based on its 

conclusion that the elicited testimony was not objectionable, that is a ruling on Ohio evidence law 

questions. Federal habeas corpus is available only to correct federal constitutional violations. 28 

U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 

(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). “[I]t is 
24 

not the province of a federal habeas court to reexamine state court determinations on state law 

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction 

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 

67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); 

Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar concurring). A federal habeas 

court may not re-evaluate a state court’s interpretation of state law. Bradshaw v. Richey, 546 U.S. 

74, 76 (2005) (per curiam). Evidentiary questions generally do not rise to the constitutional level 

unless the error was so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 

F.2d 284, 286 (6th Cir. 1988); Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); Bell v. Arn, 536 

F.2d 123 (6th Cir. 1976); Burks v. Egeler, 512 F.2d 221, 223 (6th Cir. 1975). 

 Having examined both the evidence elicited from the victims and from and regarding 

Petitioner, the Court does not find admission of the complained-of evidence denied Petitioner a 

fundamentally fair trial. To the extent the Second District reviewed only for plain error, it was 

enforcing a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. 

Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 

2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 

(6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 

542, 557 (6th Cir. 2000)(plain error review does not constitute a waiver of procedural default); 

accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003). Kuck has made no showing of cause and 

prejudice to excuse these procedural defaults; his claim that it was ineffective assistance of trial 

counsel not to object is dealt with above. 

Ground Three should be dismissed with prejudice. 
25 

Ground Four: Denial of Severance 

 In his Fourth Ground for Relief, Petitioner asserts he was denied his right to a fair trial 

when the trial court refused to sever the two incidents for separate trials. Kuck presented this claim 

as part of his Fifth Assignment of Error and the Second District decided it as follows: 

[*P41] Kuck argues that the trial court erred by overruling his 

motion to sever the offenses against Sara from the offenses against 

Jane. He says that the joinder prejudiced him by implying that he 

had a habit of engaging in sex with younger women. 

[*P42] Ohio "law favors joining multiple offenses in a single trial 

under Crim.R. 8(A) if the offenses charged ‘are of the same or 

similar character.’” State v. Lott, 51 Ohio St.3d 160, 163, 555 

N.E.2d 293 (1990), quoting Crim.R. 8(A). But a defendant is 

entitled to severance under Crim.R. 14 if he can show prejudice. Id.

"“Even then, the state can overcome a defendant’s claim of 

prejudicial joinder by showing either that (1) it could have 

introduced evidence of either of the offenses, if they had been 

severed for trial, as 'other acts' under Evid.R. 404(B) or (2) the 

'evidence of each crime joined at trial is simple and direct.’” 

McKelton, 2016-Ohio-5735, at ¶ 299, quoting id. There are common 

threads in the two events: underage drinking and intoxication at 

Kuck’s bar with claims that he took advantage of both women. 

Evidence of one may be admissible in the other when it goes to show 

“motive, opportunity [or] intent.” Evid. R. 404(B). 

[*P43] Assuming that Kuck showed prejudice from the joinder of 

the offenses, that prejudice was negated by the simple and direct 

nature of the evidence. The State first presented evidence of the 

offenses against Sara and then presented evidence of the offenses 

against Jane. The evidence could be easily segregated, making it 

unlikely that the jury would have confused the evidence proving the 

separate offenses. Compare State v. Echols, 8th Dist. Cuyahoga No. 

102504, 2015-Ohio-5138 (concluding that the evidence of rape and 

kidnapping offenses against separate victims that occurred five 

years apart was simple and direct). The court did not abuse its 

discretion by refusing to sever the offenses for trial. 

State v. Kuck, 2016-Ohio-8512. 

 The relevant Supreme Court precedent is cited in the Return of Writ, Spencer v. Texas, 385 
26 

U.S. 554 (1967), and Marshall v. Lonberger, 459 U.S. 422 (1983). However, Petitioner never 

argued this claim as a federal constitutional claim in the Second District and never cited any 

relevant Supreme Court case law. Instead, he argued the trial court “abused its discretion and/or 

erred when it denied Defendant’s motion to sever and allowed the prejudicial joinder of the 

offenses.” (Appellant’s Brief, State Court Record, ECF No. 13, PageId 294.) 

 To preserve a federal constitutional claim for presentation in habeas corpus, the claim must 

be “fairly presented” to the state courts in a way that provides them with an opportunity to remedy 

the asserted constitutional violation, including presenting both the legal and factual basis of the 

claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 1506, 

1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson 

v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The 

claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 

F.3d 410, 418 (6th Cir. 2009). 

[T]he ways in which a state defendant may fairly present to the state 

courts the constitutional nature of his claim, even without citing 

chapter and verse of the Constitution, include (a) reliance on 

pertinent federal cases employing constitutional analysis, (b) 

reliance on state cases employing constitutional analysis in like 

factual situations, (c) assertion of the claim in terms so particular as 

to call to mind a specific right protected by the Constitution, and (d) 

allegation of a pattern of facts well within the mainstream of 

constitutional litigation. 

Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); accord, Whiting v. Birt, 395 F.3d 602 (6th Cir. 

2005); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Because this claim was not fairly 

presented to the Second District as a federal constitutional claim, it is procedurally defaulted and 

should be dismissed on that basis. 
27 

Ground Five: Admission of Blackout Evidence 

 In his Fifth Ground for Relief, Petitioner asserts that he was denied a fair trial when the 

trial judge permitted the jury to consider evidence that each of the victims “blacked out” during 

her sexual encounter with him as evidence that their ability to consent to sexual conduct with him 

was impaired. 

 The Respondent asserts this claim is procedurally defaulted because it was not presented 

to the Second District on direct appeal (Return, ECF No. 14, PageId 2177). Petitioner makes no 

response to that defense in his Reply and it is well taken. Ground Five should be dismissed as 

procedurally defaulted. 

Ground Six: Jury Instruction Created a Mandatory Presumption 

 In his Sixth Ground for Relief, Petitioner claims that the jury instruction given by the trial 

judge on “substantial impairment” created a mandatory presumption. In particular, he complains 

of an instruction which read, “The consumption of large amounts of alcohol in a short period of 

time is evidence that voluntarily [sic] intoxication caused substantial impairment.” He further 

complains the jury instruction that stated that “[s]tumbling, falling, slurred speech, passing out and 

vomiting are all evidence that an intoxicated person is substantially impaired.” 

 Kuck argued this claim as part of his Fifth Assignment of Error on direct appeal and the 

Second District decided it as follows: 

2. Jury instructions 

[*P44] Kuck next argues that the trial court gave improper jury 

instructions about the substantial-impairment elements of rape and 

sexual battery. Kuck did not object to the instructions, so we review 

only for plain error. 
28 

[*P45] The court gave these instructions about substantial 

impairment: 

Substantial impairment is established by demonstrating a 

present reduction, diminution or decrease in the victim’s 

ability either to apprise the nature of his conduct or to 

control his or her conduct. Whether a person is 

substantially impaired does not have to be proven by expert 

medical testimony; rather, it can be shown to exist by the 

testimony of people who have interacted with the victim 

and by allowing the jury to do its own assessment of the 

person's ability to apprise or control one's own conduct. 

The determination of substantial impairment is made on a 

case-by-case basis depending on the facts determined at 

trial. 

Voluntary intoxication constitutes a mental or physical 

condition that can cause substantial impairment. The 

consumption of large amounts of alcohol in a short period 

of time is evidence that voluntarily [sic] intoxication 

caused substantial impairment. Evidence of substantial 

impairment can also come from a victim’s inability to 

remember the events of the incident due to alcohol 

consumption. Stumbling, falling, slurred speech, passing 

out and vomiting are all evidence that an intoxicated person 

is substantially impaired. 

(Emphasis added.) (Tr. 912). Kuck argues that the instructions in the 

second paragraph create a mandatory presumption that shifts the 

burden of proof from the State on an essential element of the 

offenses of rape and sexual battery. He says that these instructions 

had the effect of placing undue stress on the issue of substantial 

impairment, and made it appear that the issue was already decided. 

Kuck argues that by saying that something "is evidence"—as 

opposed to "may be evidence"—suggests that the jury must find 

substantial impairment if it finds that the person consumed large 

amounts of alcohol. Similarly, he argues that using the phrase "is 

substantially impaired" suggests that if the jury finds that the person 

stumbled, fell, had slurred speech, passed out, or vomited, it must 

find that the person was substantially impaired. 

[*P46] Only the first sentence in the above-quoted paragraphs 

comes from the Ohio Jury Instructions. See CR 507.02(A)(1). The 

second paragraph comes from the Third District's opinion in State v. 

Lasenby, 3d Dist. Allen No. 1-13-36, 2014-Ohio-1878. While not a 
29 

standard instruction, it is a correct statement of the law. We have 

said that "the consumption of a large amount of alcohol over the 

course of just a few hours is sufficient evidence to warrant allowing 

a jury to consider whether . . . [a person] was substantially 

impaired." State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 

927 N.E.2d 632, ¶ 22 (2d Dist.). And we have said that "stumbling, 

falling, slurred speech, passing out, or vomiting" are aspects of 

behavior that are evidence of substantial impairment. Id. at ¶ 24. 

[*P47] We do not think that the second paragraph creates any 

mandatory presumptions. An instruction creates a mandatory 

presumption if it, “both alone and in the context of the overall 

charge, could have been understood by reasonable jurors to require 

them to find the presumed fact if the State proves certain predicate 

facts.” Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 

L.Ed.2d 218 (1989). In contrast, “[a] permissive inference suggests 

to the jury a possible conclusion to be drawn if the State proves 

predicate facts, but does not require the jury to draw that 

conclusion.” Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 

85 L.Ed.2d 344 (1985). The instructions here do not tell the jury that 

if it finds that one of the victims consumed a large amount of alcohol 

in a short time, it must presume that the victim was substantially 

impaired. Similarly, the instruction does not tell the jury that if it 

finds that one of the victims was stumbling, falling, slurring her 

speech, passing out, or vomiting, it must presume that she was 

substantially impaired. Rather, the instruction says that these facts 

are simply evidence of substantial impairment. We see no plain 

error. 

State v. Kuck, 2016-Ohio-8512. 

 Petitioner offers no response to the defense of procedural default made as to this Ground 

for Relief. As pointed out above, plain error review is enforcement of the contemporaneous 

objection rule, not a waiver. Ground Six should be dismissed on this basis. 

 Alternatively, Petitioner has not shown that the Second District’s decision is an objectively 

unreasonable application of Supreme Court precedent. It is true, as both parties agree, that a jury 

instruction that creates a mandatory presumption of an element in a criminal case violates the 

Constitution. A crystal-clear way of presenting a permissive inference to a jury is to instruct them 

“if you find x, you may then find y” where y is an element of the offense. Here the instruction 
30 

reads essentially “x is evidence of y.” But it does not say “x is sufficient evidence of y,” merely 

that it is some evidence. It is clear from its own prior cases that it cited that the Second District 

understood the constitutional prohibition and interpreted the language used as not violating that 

prohibition. This Court cannot say that is an objectively unreasonable way of applying the relevant 

precedent. Ground Six should therefore also be dismissed on the merits. 

Ground Seven: Incomplete Jury Instruction on Sexual Battery 

In his Seventh Ground for Relief, Petitioner claims he was denied his right to a fair trial 

when the trial court gave an instruction on sexual battery as a lesser included offense of rape, but 

failed to instruct on the difference in elements between the two crimes. 

 Respondent asserts this claim is procedurally defaulted because it was never presented to 

the Second District on direct appeal (Return of Writ, ECF No. 14, PageId 2182). Petitioner 

responds that the claim was presented in his Motion to Certify a Conflict (Reply, ECF No. 21, 

PageId 2228). 

 After a change of counsel, Petitioner filed an Amended Brief in the Second District where 

he raised as an Assignment of Error the question “Does a trial court commit plain error when it 

instructs the jury on sexual battery as a lesser included offense of rape, where the elements of each 

are exactly the same?” (State Court Record, ECF No. 13, PageId 358.) The Second District noted 

that the Eleventh, Tenth, and Eighth District Courts of Appeals had all concluded that sexual 

battery as prohibited by Ohio Revised Code § 2907.03(A)(2) was a lesser included offense of rape 

as prohibited by Ohio Revised Code § 2907.02(A)(1)(c), while the Seventh District had concluded 
31 

sexual battery was a lesser included offense of rape under Ohio Revised Code § 290702(A)(1)(a). 

The Second District rejected Petitioner’s argument that sexual battery was not a lesser included 

offense of rape by rejecting his argument that rape does not have an additional element. State v. 

Kuck, 2016-Ohio-8512 at ¶ 66. It did not reject his argument, made here, that the trial judge was 

required to instruct on the elements of the lesser included offense. 

 It is correct that in his Motion to Certify, Petitioner did discuss the conflict among the Ohio 

Courts of Appeals on what elements rape has that sexual battery does not (State Court Record, 

ECF No. 13, PageId 537-538). But that request for certification did not present to the Second 

District an opportunity to overturn Kuck’s conviction because the trial judge had not instructed on 

the additional element of rape. Put another way, a motion to certify a conflict under Ohio law is 

not an opportunity to present a new assignment of error. 

 More fundamentally, however, the Second District noted Kuck had not objected to the 

instruction and its review was therefore only for plain error. State v. Kuck, supra at ¶ 62. As noted 

above, that was an enforcement of the contemporaneous objection rule, not a waiver. 

 Accordingly, Petitioner’s Seventh Ground for Relief should be dismissed as procedurally 

defaulted. 

Procedural Default of Grounds Two, Three, Six, and Seven 

 At the end of his Reply, Petitioner notes that as to all of the instances of failure to object 

which are being argued as procedural defaults by Respondent, he raised those claims also as 

ineffective assistance of trial counsel claims. This Report deals with the relevant ineffective 

assistance of trial counsel claims under Ground Two and concludes as to each of them that the 
32 

decision of the Second District on ineffective assistance of trial counsel also is entitled to AEDPA 

deference because it is not an unreasonable application of Strickland v. Washington, supra. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

Circuit that any appeal would be objectively frivolous and therefore should not be permitted to 

proceed in forma pauperis. 

 

January 11, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

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

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

and Recommendations. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. A party may respond 

to another party=s objections within fourteen days after being served with a copy thereof. Failure 

to make objections in accordance with this procedure may forfeit rights on appeal. See United 

States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 

(1985).