[Cite as State v. Ferguson, 2024-Ohio-576.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112650

v. :

KEVIN FERGUSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 15, 2024 

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-651219-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Benjamin Fuchs and Chauncey Keller,

Assistant Prosecuting Attorneys, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Rick Ferrara, Assistant Public Defender, for appellant. 

MARY EILEEN KILBANE, J.:

Defendant-appellant Kevin Ferguson (“Ferguson”) appeals from his 

conviction for gross sexual imposition. For the reasons that follow, we affirm.
Factual and Procedural History

This case stems from events that allegedly occurred on May 17 and 18, 

2020. On May 17, 2020, victim A.W. and her then-boyfriend, Trabor Perry (“Perry”)

went to Ferguson’s apartment in Cleveland, Ohio. A.W. testified that Perry and 

Ferguson are cousins and she had known Ferguson for approximately a year prior 

to May 2020. A.W. testified that a group of people had gathered at Ferguson’s 

apartment to drink and smoke marijuana.

A.W. testified that at a certain point, because it was so late and 

because she and Perry had been drinking and smoking marijuana, they decided to 

spend the night at Ferguson’s apartment. A.W. denied being intoxicated, testifying 

that she did not drink very much. She and Perry spent the night on the living room 

floor; they were sleeping “on one cover and under another cover”; by the time they 

fell asleep, everyone else but Ferguson had left the apartment. According to A.W., 

Ferguson went to sleep in his bedroom. 

A.W. testified that she woke up on the morning of May 18, 2020, to 

find Ferguson’s hand between her legs and up her dress, touching her vagina. A.W. 

testified that she felt Ferguson’s fingers in her vagina and it woke her up and scared 

her and she jumped up. Ferguson then went back to his bedroom, and A.W. woke 

Perry up, who was sleeping beside her while this occurred. Perry then went to 

Ferguson’s bedroom and confronted him, and A.W. said that she was going to call 
the police. A.W. testified that Ferguson said that he was “trying to put a cover on 

her.”

A.W. testified that Perry tried to talk her out of calling the police, but 

she ultimately dialed 911; the state played the audio recording of A.W.’s 911 call at 

trial. A.W. left the apartment and went downstairs, where she spoke with the 

responding police officers. According to A.W., Perry also left the apartment and 

went outside to speak to the police. A.W. testified that after speaking to the police, 

they drove her home; Perry did not leave with her, and she was unsure where he 

went or when he left Ferguson’s apartment. A.W. testified that she did not go to the 

hospital because no one suggested that she should, and she was just “trying to 

separate [herself] from the situation.”

A.W. identified Ferguson at trial.

A.W.’s daughter, E.H., testified that on May 18, 2020, she was living 

at her aunt’s house in Brookpark, Ohio, with her aunt and A.W. E.H. testified that 

her mother was dropped off at her aunt’s house by police that morning. E.H. went 

on to testify that A.W. was “not in a good state” when she was dropped off; 

specifically, A.W. was “more sad, [and] distraught” and E.H. did not know what had 

happened, but she could tell that something had happened.

Cleveland police officer Lucas Nezbeth (“Nezbeth”) testified that on 

May 18, 2020, in the early morning hours, he responded to a call for “unknown 

trouble” at an apartment complex in Cleveland. Nezbeth testified that he met A.W. 

and Perry outside of the apartment building, and A.W. appeared very frantic and 
visibly upset. Nezbeth testified that initially, he spoke with Perry and his partner 

spoke with A.W., but he ultimately spoke with A.W. and learned that A.W. woke up 

to her boyfriend’s cousin “touching her inappropriately in her vaginal region.” 

Nezbeth testified that because the apartment building was secured and he did not 

have ready access to the building, and because of how frantic and scared A.W. was, 

he did not make any attempt to speak with Ferguson. Instead, Nezbeth contacted 

his supervisor to explain the situation and obtain permission to drive A.W. home.

The stated introduced Nezbeth’s body-camera footage from his 

encounter with A.W. and Perry.

Finally, Detective William Chapman (“Chapman”), a detective with 

the Cuyahoga Metropolitan Housing Authority police, testified that he was assigned 

this case, reviewed the report prepared by Nezbeth’s partner, and reached out to 

A.W. Chapman spoke to A.W. on the phone to set up an interview at her aunt’s 

house on May 21, 2020.

Chapman testified that A.W. explained the events of May 17 and 18 as 

described above. A.W. told Chapman that while she was sleeping, she felt someone 

touching her legs and vagina and she woke up and found Ferguson standing over 

her and he “played like he was putting the blanket over her” before going back to his 

bedroom. Chapman testified that because his interview with A.W. took place three 

days after the incident, he did not collect any DNA samples.

On August 3, 2020, a Cuyahoga County Grand Jury indicted 

Ferguson on Count 1, gross sexual imposition in violation of R.C. 2907.05(A)(5) and 
Count 2, gross sexual imposition in violation of R.C. 2907.05(A)(1), both felonies of 

the fourth degree, as a result of the incident on May 18, 2020.

Ferguson pleaded not guilty to the indictment, and the case 

proceeded to a jury trial on March 1, 2023. The jury returned a verdict of guilty on 

Count 1 and not guilty on Count 2. The court referred Ferguson to the probation 

department for a presentence investigation.

The court held a sentencing hearing on March 30, 2023. The court 

sentenced Ferguson to 18 months in prison and determined that he was a Tier I sex 

offender.

Ferguson filed a timely notice of appeal and presents two assignments 

of error for our review:

I. The trial court committed plain error in informing the petit jury that 

the evidence shows more likely than not that a crime occurred and 

defendant is somehow responsible, violating appellant’s right to due 

process under the Ohio and United States Constitutions.

II. The manifest weight of the evidence did not support conviction.

Law and Analysis

I. Statement to Jury

In his first assignment of error, Ferguson argues that the trial court 

committed plain error when it informed the jury that the evidence shows more likely 

than not that a crime occurred and Ferguson is somehow responsible, therefore 

violating Ferguson’s constitutional due process rights. Specifically, Ferguson argues 

that the trial court made multiple statements during voir dire misstating the relevant 
burden of proof for grand jury proceedings. This, according to Ferguson, prejudiced 

him and negated the presumption of innocence.

As an initial matter, we note that Ferguson did not object to these 

allegedly prejudicial statements at trial. A failure to object waives all but plain error. 

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 120, citing 

State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 204. Crim.R. 

52(B) provides that plain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of the court. ““‘Plain error 

does not exist unless it can be said that but for the error, the outcome of the trial 

would clearly have been otherwise.’”” Id., quoting State v. Adamson, 72 Ohio St.3d 

431, 434-435, 650 N.E.2d 875 (1995), quoting State v. Moreland, 50 Ohio St.3d 58, 

62, 552 N.E.2d 894 (1990).

When evaluating whether a trial court erred in instructing the jury 

during voir dire, we review the jury instructions as a whole. State v. Dunn, 8th Dist. 

Cuyahoga No. 101648, 2015-Ohio-3138, ¶ 55, citing State v. Harry, 12th Dist. Butler 

No. CA2008-01-013, 2008-Ohio-6380, ¶ 36, citing State v. Van Gundy, 64 Ohio 

St.3d 230, 233-234, 594 N.E.2d 504 (1992).

Reviewing the jury instructions and the court’s statements to the jury 

in their entirety, we cannot say that the trial court’s misstatement of the burden of 

proof required for a grand jury to indict was prejudicial, such that a manifest 

miscarriage of justice occurred. 
The statements at issue took place when the trial court, upon learning 

that a prospective juror had previously served on a grand jury, engaged that 

prospective juror in a discussion about the differences between grand jury 

proceedings and trial proceedings. Specifically, the trial court described the burden 

of proof in grand jury proceedings, relative to trial, as follows:

THE COURT: So the burden of proof is lower. The burden of proof is 

more likely than not. It’s probable cause. Has the evidence shown 

more likely than not a crime occurred and this person is somehow 

responsible.

You are going to be judging this case following the law and the burden 

of proof you are going to follow is beyond a reasonable doubt. It’s a 

much higher burden. And so does that probable cause burden ring a 

bell with you, [Juror 8]?

JUROR NO. 8: It does.

THE COURT: So you understand that’s not the burden if you are 

chosen as a juror in this case. You are going to apply what I explain to 

you as beyond a reasonable doubt.

JUROR NO. 8: Yes. I understand.

While the trial court made a point to distinguish between the 

respective burdens of proof, we note that the trial court’s description of the probable 

cause standard applicable to grand jury proceedings was an incorrect statement of 

law. It is incorrect that an individual’s indictment by a grand jury means it is “likely” 

or “more likely than not” that they have committed a crime. Instead, a grand jury 

indictment creates a presumption of probable cause. State v. Lucas, 8th Dist. 

Cuyahoga No. 108436, 2021-Ohio-437, ¶ 24, citing State v. Thomas, 8th Dist.

Cuyahoga No. 104174, 2017-Ohio-957. The probable-cause standard is incapable of 
precise definition or quantification into percentages because it deals with 

probabilities and depends on the totality of the circumstances. Maryland v. Pringle, 

540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). Probable cause requires 

“more than a bare suspicion” and the circumstances must demonstrate a “fair 

probability” that a crime has been committed. State v. Martin, 170 Ohio St.3d 181, 

2022-Ohio-4175, 209 N.E.3d 688, ¶ 18.

It is certainly not a best practice for a trial court to provide incorrect 

statements of law to jurors, whether during voir dire or otherwise, let alone to repeat 

those incorrect statements. The incorrect statements, however, took place in a very 

specific context — a discussion with a prospective juror about their previous 

experience on a grand jury, and the distinctions between grand jury proceedings and 

trial proceedings — and they were subsequently corrected when the trial court 

provided clear instructions to the jury as to the relevant burden of proof at trial.

More importantly for our analysis of whether the trial court’s 

statements prejudiced Ferguson and created a manifest miscarriage of justice, we 

note that when referring to the applicable burden of proof for the jury at trial —

beyond a reasonable doubt — the trial court repeatedly provided accurate 

explanations of the beyond a reasonable doubt standard. Specifically, the court 

stated:

The burden of proof. The defendant is presumed innocent until his 

guilt is established beyond a reasonable doubt. The defendant must be 

acquitted of an offense unless the state produces evidence that 

convinces you beyond a reasonable doubt of every essential element of 

such offense as charged in the indictment.
Reasonable doubt is * * * present when, after you have carefully 

considered and compared all of the evidence you cannot say you are 

firmly convinced of the truth of the charge. Reasonable doubt is a 

doubt based on reason and common sense. Reasonable doubt is not 

here possible doubt because everything relating to human affairs or 

depending on moral evidence is open to some possible or imaginary 

doubt. Proof beyond a reasonable doubt is such character that an 

ordinary person would be willing to rely and act upon it in the most 

important of his or her own affairs.

Further, the court repeatedly stated that Ferguson was presumed 

innocent, and specifically questioned the prospective jurors as to whether or not 

they understood and could apply the presumption of innocence at trial.

Ohio courts have repeatedly held that a trial court’s statements during 

voir dire, similar to those at issue in this case, do not violate a defendant’s due 

process rights. In State v. Brown, the Twelfth District found that a trial court’s 

statements that the grand jury process is “a procedural safeguard to make certain 

that innocent people aren’t drug into the courtrooms and required to” stand trial 

was not an error where the trial court repeatedly reiterated the presumption of 

innocence and the state’s burden to prove the defendant’s guilt at trial beyond a 

reasonable doubt. State v. Brown, 12th Dist. Butler No. CA2011-11-207, 2013-Ohio1610, ¶ 44. Likewise, this court found that a trial court’s statements — mirroring 

those in this case — that a grand jury returns an indictment when it finds “probable 

cause to believe that appears more likely than not that the person did commit the 

crime” did not have a materially adverse effect on the proceedings or prejudice the 

defendant where the court subsequently correctly stated the appropriate burden of 
proof at trial. State v. McLoyd, 8th Dist. Cuyahoga No. 112092, 2023-Ohio-4306, 

¶ 22.

Based on the foregoing, we cannot conclude that the trial court’s 

statements here amounted to plain error. Therefore, Ferguson’s first assignment of 

error is overruled.

II. Manifest Weight

In Ferguson’s second assignment of error, he argues that his gross 

sexual imposition conviction was against the manifest weight of the evidence 

because it rested entirely on A.W.’s testimony. According to Ferguson, A.W.’s 

testimony was inconsistent.

A manifest weight challenge questions whether the state met its 

burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio3598, ¶ 13. “‘[W]eight of the evidence involves the inclination of the greater amount 

of credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio856, ¶ 32, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 

(1997). On a manifest weight challenge, “a reviewing court asks whose evidence is 

more persuasive — the state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d 

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. A reviewing court “weighs the 

evidence and all reasonable inferences, considers the credibility of witnesses and 

determines whether in resolving conflicts in the evidence, the jury clearly lost its way 

and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 
717 (1st Dist.1983), paragraph three of the syllabus. Reversal of a trial court’s 

“judgment on manifest weight of the evidence requires the unanimous concurrence 

of all three appellate judges.” State v. Crumbley, 8th Dist. Cuyahoga No. 93202, 

2010-Ohio-3866, ¶ 20, citing Thompkins at paragraph four of the syllabus.

A defendant is not entitled to reversal on manifest weight grounds 

merely because certain aspects of a witness’ testimony are inconsistent or 

contradictory. State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-

Ohio-1274, ¶ 40, citing State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 45 (8th 

Dist.), and State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38. 

““‘While [a factfinder] may take note of the inconsistencies and resolve or discount 

them accordingly, * * * such inconsistencies do not render defendant’s conviction 

against the manifest weight or sufficiency of the evidence.’”” Id., quoting State v. 

Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37, quoting State v. 

Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, 7 (May 

28, 1996).

Here, Ferguson argues that A.W.’s testimony was inconsistent with 

respect to whether the blanket was on or off her, and where exactly Ferguson was 

when A.W. woke up. Our review of the record reveals that these alleged 

inconsistencies are perhaps more accurately characterized as responses to different 

questions on direct and cross-examination than actual inconsistencies in A.W.’s 

story. Moreover, neither of these alleged inconsistencies relates to the essential 

elements of gross sexual imposition. We cannot conclude that such minor 
discrepancies in a witness’ testimony were such that the jury lost its way in 

convicting Ferguson. Ferguson’s conviction was not against the manifest weight of 

the evidence. Therefore, his second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and

LISA B. FORBES, J., CONCUR