NOT RECOMMENDED FOR PUBLICATION

File Name: 15a0032n.06

No. 14-3418

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SCOTT BLAZER,

Petitioner-Appellant,

v.

KIMBERLY CLIPPER, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE NORTHERN 

DISTRICT OF OHIO

BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.

GRIFFIN, Circuit Judge.

Petitioner Scott Blazer appeals the district court’s denial of his petition for a writ of 

habeas corpus under 28 U.S.C. § 2254. The sole issue before this court is whether the exclusion 

at trial of an answering machine recording had a “substantial and injurious effect or influence” 

on the jury’s verdict. Following our review of the record, we hold that the evidentiary error was 

harmless. We therefore affirm the judgment of the district court. 

I.

The Ohio Court of Appeals described the relevant facts as follows: 

In 2009, Blazer was charged with four counts of rape, two counts of kidnapping, 

and one count of gross sexual imposition in the sexual assault of his brother’s 

step-daughter, “T.L.” 
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The matter proceeded to a trial by jury, at which the following evidence was 

presented. 

T.L. knew Blazer because her mother was married to his brother and she 

considered Blazer her uncle. Life at home was rough for T.L. because her mother 

and step-father did not get along, so T.L. began spending more time with her 42-

year-old uncle. In November 2006, 13-year-old T.L. spent the night at Blazer’s 

house and stayed up late using the computer. The next morning, the state alleged 

that Blazer climbed into the bed T.L. was sleeping in and performed oral sex on 

her. After this incident, T.L. continued her friendship with Blazer and, at one 

point, Blazer gave her a diamond “promise” ring. Blazer told T.L. that it meant 

that he would keep everything she told him and everything that happened between 

them a secret. 

On January 26, 2008, T.L. went to Blazer’s house for a family dinner. After 

everyone left, Blazer and T.L. began making vodka drinks. T.L., who was now 

15 years old, testified she consumed at least a quarter of the bottle of vodka. She 

was also smoking and she played on the computer while her uncle sat on a futon 

and listened to music. After a while, T.L. felt sick, ran to the bathroom, and 

vomited. Blazer followed her and helped her clean up her vomit, which was all 

over the bathroom. She called a friend and told him that she had been drinking 

and got sick. The friend recommended she eat some bread. At the time, T.L. was 

wearing a shirt, underwear, boxer shorts over her underwear, and baggy sweat 

pants. 

T.L. testified that the next thing she remembered was waking up in Blazer’s bed, 

with Blazer talking about “finishing.” Her uncle was naked and T.L. realized she 

did not have any bottoms on, her bra was unhooked, and her shirt was pushed up. 

T.L. testified that Blazer was on top of her and had his penis inside of her. She 

told the jury she was scared and asked Blazer “what are you doing” and “what 

time is it.” T.L. stated that after Blazer was “finished,” he gave T.L. the boxer 

shorts she had been wearing. T.L. testified she was still drunk and tired so she 

fell back asleep. At some point, she received a phone call from a friend and fell 

back asleep. Blazer woke her up around 8:30 a.m., telling her breakfast was 

ready. T.L. testified she got dressed and went into the kitchen, where Blazer was 

sitting with his girlfriend, who had just arrived. At one point, Blazer told T.L. he 

was “sorry,” but she just ignored him. 

When T.L. got home the next day, she threw her underwear and boxers in her 

trash can and showered. T.L. called a friend to tell her what happened, and also 

tried to call Blazer. A few days later, the police came to her house to investigate 

the incident after her friend’s mother reported what had happened to the police. 

T.L.’s mother came home, and T.L. told her what happened. T.L.’s mother 

retrieved T.L.’s underclothes from the trash can and turned them over to the 

police. The Ohio Bureau of Criminal Investigation tested the underclothes, and 
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the results showed that Blazer could not be excluded as a minor source of the 

DNA found on the boxer shorts. 

During cross-examination of T.L., defense counsel asked T.L. if she ever left a 

provocative message on Blazer’s answering machine [in February 2009]. T.L. 

stated she had not. Counsel sought permission from the court to play a tape 

recording, which was allegedly a message T.L. left on Blazer’s answering 

machine. The state objected, claiming they had not been provided the tape 

recording during discovery. The trial court recessed the jury to discuss the 

recording. On the recording, a girl is heard saying: “Hey, Scott, um, could you 

call me back? I kind of miss you. I miss your big long d*** in me. So hot. 

Anyways, just call me back. All right. Bye, baby.” 

The trial court excluded the recording from evidence finding that 1) it was error 

for the defense to fail to turn the tape over during discovery and 2) the tape had 

not been properly authenticated. 

At the close of the state’s case, the trial court dismissed one rape count pursuant 

to Blazer’s Crim. R. 29 motion for acquittal. 

Blazer testified in his own defense. He denied the 2006 incident ever happened. 

As to the January 28, 2008, incident, he testified that he had fallen asleep and 

woke up when he realized someone was in his bed. He testified that “someone” 

began kissing him and fondling him, but he did not know who it was. He stated 

he had sexual intercourse with the unknown person. He testified that he did not 

know who he was having sex with, but it was not uncommon for him to have sex 

with his girlfriend in the middle of the night. He further testified that he did not 

know if it was his girlfriend he was having sex with because he had been 

drinking. Finally, Blazer testified that he became aware he had sexual intercourse 

with T.L. after he was called for a family meeting. He admitted he knew that 

something had happened between him and T.L. but he did not know “how far it 

went.” 

The jury convicted Blazer of one count of rape, pursuant to [Ohio Revised Code 

§ 2907.02(A)(1)(c)], which requires proof that the other party’s “ability to resist 

or consent is substantially impaired,” and acquitted him on all other charges. The 

trial court sentenced Blazer to nine years in prison. 

State v. Blazer, No. 93980, 2010 WL 5487145, at *1−2 (Ohio Ct. App. Dec. 23, 2010) (footnotes 

omitted). On direct appeal, Blazer challenged the trial court’s exclusion of the recording. The 

Ohio Court of Appeals held that the trial court erred in excluding the recording but concluded 

that any error was harmless:
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Since we have found that the trial court erred in excluding the tape from evidence, 

we must next consider whether that error was harmless or if it affected Blazer’s 

substantial rights. 

Crim. R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which 

does not affect substantial rights shall be disregarded.” 

Blazer was convicted of rape under R.C. 2907.02(A)(1)(c), which states: “No 

person shall engage in 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 

* * *.” 

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 (1987), 31 Ohio St. 3d 99, 103–104, 509 N.E.2d 414. 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. Id. Furthermore, voluntary intoxication is 

a “mental or physical condition” that could cause substantial impairment under 

R.C. 2907.02(A)(1)(c). In re King, Cuyahoga App. Nos. 79830 and 79755, 2002-

Ohio-2313. 

Blazer maintains that the taped message is clearly inconsistent with T.L.’s 

allegation that she was so impaired that she was incapable of resisting or 

consenting to sex with Blazer. But consent is not an element of rape under R.C. 

2907.02(A)(1)(c). In other words, whether T.L. consented to sexual intercourse 

with Blazer is not relevant to a finding of rape under R.C. 2907.02(A)(1)(c). All 

the state was required to show was that T.L.’s ability to resist or consent was 

impaired and the defendant knew or had reasonable cause to believe that her 

ability to resist or consent was substantially impaired. (Emphasis added.) 

T.L., who was 15 at the time of the rape, testified that she and Blazer made 

drinks, and she drank a quarter bottle of vodka. She stated that after vomiting, she 

called a friend before falling asleep. After the assault, T.L. called a friend and 

then fell back to sleep until Blazer later woke her. Blazer admitted T.L. was 

intoxicated, he acknowledged helping clean up her vomit, and he admitted he had 

sexual intercourse with her. Although he denied he personally gave her anything 

to drink, he admitted he knew she was intoxicated. 

Based on the evidence presented at trial and because the tape recording was not 

relevant to a finding of guilt under R.C. 2907.02(A)(1)(c), we conclude any error 
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in excluding the tape did not affect Blazer’s substantial rights and was therefore 

harmless. We do note that had Blazer been convicted of rape or gross sexual 

imposition where an element of the crime was “force or threat of force,” our 

analysis and conclusion based on this harmless error analysis would have been 

different. 

Id. at *6 (alterations in original) (footnote omitted). 

Blazer then filed a motion for reconsideration, arguing that the court of appeals applied 

the wrong harmless error standard. The court denied the motion for reconsideration. The Ohio 

Supreme Court denied Blazer’s application for review. Blazer then filed a timely pro se petition 

for a writ of habeas corpus under 28 U.S.C. § 2254, raising four grounds for relief. After 

appointing counsel, the district court granted leave to amend to include a fifth claim: 

Petitioner’s right to due process of law, as protected by the Due Process Clause of 

the Fourteenth Amendment to the United States Constitution, was violated by the 

application of a harmless error standard that did not consider the probable impact 

of the excluded evidence upon the jury, which resulted in a decision that was 

contrary to, or involved an unreasonable application of clearly established Federal 

law, as determined by the Supreme Court of the United States. 

A magistrate judge issued a Report and Recommendation advising the district court to deny 

Blazer’s petition because the first four grounds were procedurally defaulted and the fifth claim 

lacked merit. The district court adopted the Report and Recommendation over Blazer’s 

objection and denied the petition. Nevertheless, the district court granted a certificate of 

appealability on Blazer’s fifth claim. 

II.

We review de novo the district court’s legal conclusions and rulings on mixed questions 

of law and fact. Jalowiec v. Bradshaw, 657 F.3d 293, 301 (6th Cir. 2011). Under the 

Antiterrorism and Death Penalty Act of 1996 (“AEDPA”), federal courts may not grant habeas 

relief on any claim that was adjudicated on the merits in the state courts unless the adjudication 
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resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly 

established federal law as determined by the Supreme Court; or (2) was based on an 

unreasonable determination of the facts in light of the evidence presented to the state courts. Id.

(citing 28 U.S.C. § 2254(d)). Under the “contrary to” clause, a federal habeas court may grant 

the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court 

on a question of law, or if the state court decides a case differently than the Supreme Court on 

materially indistinguishable facts. Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008). Under 

the “unreasonable application” clause, a federal habeas court may grant the writ if the state court 

identifies the correct legal principle but unreasonably applies it to the facts of the petitioner’s 

case. Id. “[T]o warrant habeas relief, the application must be found to be ‘objectively 

unreasonable.’” Jalowiec, 657 F.3d at 301 (quoting Williams v. Taylor, 529 U.S. 362, 409 

(2000)). “AEDPA thus imposes a highly deferential standard for evaluating state-court rulings.” 

Id. (internal quotation marks omitted).

Since the Supreme Court’s landmark decision in Chapman v. California, 386 U.S. 18 

(1967), in which the Court “adopted the general rule that a constitutional error does not 

automatically require reversal of a conviction, the Court has applied harmless-error analysis to a 

wide range of errors and has recognized that most constitutional errors can be harmless.” 

Arizona v. Fulminante, 499 U.S. 279, 306 (1991). On direct review of constitutional errors, the 

government has the burden of proving that the error was “harmless beyond a reasonable doubt.” 

Chapman, 386 U.S. at 24. On collateral review, however, “[c]iting concerns about finality, 

comity, and federalism,” the Supreme Court has “rejected the Chapman standard in favor of the 

more forgiving standard of review applied to nonconstitutional errors on direct appeal from 

federal convictions.” Fry v. Pliler, 551 U.S. 112, 116 (2007). We may only grant a writ if the 
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error resulted in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal 

quotation marks omitted). 

In determining whether the petitioner was actually prejudiced, courts ask whether the 

error had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’” Id.

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). This is the standard for 

reviewing all non-structural errors on collateral review; it applies “whether or not the state 

appellate courts recognized the error.” Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 

2009) (internal quotation marks omitted). The Brecht standard continues to apply after passage 

of the AEDPA. Id. (citing Fry, 551 U.S. at 119−20). “[T]he determination of whether an error 

had a substantially injurious effect on the jury’s verdict is broader and thus subsumes the 

question whether the state court reasonably applied Chapman.” Id. at 412 (internal quotation 

marks omitted). To satisfy the Brecht standard, there must be “more than a reasonable 

possibility that the error contributed to the jury’s verdict. If . . . there is a reasonable probability

that a trial error affected or influenced the verdict, then the Brecht standard would be satisfied.” 

Mitzel v. Tate, 267 F.3d 524, 534 (6th Cir. 2001) (internal quotation marks and citation omitted).

Blazer argues that the answering machine recording would have made it more likely that 

the jury would have accepted his version of events for two reasons: (1) “the provocative nature 

of the message evinced both an awareness of the act and an appreciation for it that is wholly 

inconsistent with a claim that T.L. was too intoxicated, and substantially impaired, to be aware of 

what was happening,” and (2) “the tape had substantial impeachment value.” In light of the 

record as a whole, we cannot agree there is a reasonable probability that exclusion of the 

recording affected the verdict. 
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As a preliminary matter, the jury convicted Blazer of a rape of “substantial impairment,” 

not rape by threat or force. The sole elements of the offense are that (1) two people who are not 

spouses living together engaged in sexual conduct, (2) one person’s ability to resist or consent 

was substantially impaired because of a mental or physical condition, and (3) the offender knew 

or had reasonable cause to believe that the other person’s ability to resist or consent was 

substantially impaired. Ohio Rev. Code § 2907.02(A)(1)(c). The Ohio Court of Appeals found 

that “Blazer admitted T.L. was intoxicated, he acknowledged helping clean up her vomit, and he 

admitted he had sexual intercourse with her. Although he denied he personally gave her 

anything to drink, he admitted he knew she was intoxicated.” Blazer, 2010 WL 5487145, at *6. 

Blazer does not challenge those factual findings on habeas review. Rather, Blazer contends that 

the recording evinces an “awareness” of what occurred, thereby undermining that T.L. was 

substantially impaired. Blazer’s argument is unpersuasive for multiple reasons. First, the 

contents of the recording do not address whether T.L.’s ability to resist or consent was 

substantially impaired at the time of the offense. A general “awareness” of events one year after 

the offense does not disprove that T.L. was substantially impaired at the time of the offense. 

Moreover, the recording is not actually inconsistent with T.L.’s testimony about her degree of 

awareness: she testified that when she awoke she realized Blazer was on top of her and his penis 

was inside of her. She never testified that she was unaware that such sexual activity occurred. 

Second, consent―which can hardly be inferred from a message left one year later―is not an 

element of the offense. The state court recognized as much, stating that its harmless-error 

analysis would have been different “had Blazer been convicted of rape or gross sexual 

imposition where an element of the crime was ‘force or threat of force.’” Id. However, as the 

state court observed, “[a]ll the state was required to show was that T.L.’s ability to resist or 
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consent was impaired and the defendant knew or had reasonable cause to believe that her ability 

to resist or consent was substantially impaired.” Id. Accordingly, we cannot agree with Blazer 

that the message evinces an “awareness” that undermines T.L.’s impairment at the time of the 

offense. 

Blazer also argues that the recording had “substantial impeachment value.” His argument 

goes to T.L.’s general credibility. At trial, defense counsel asked T.L. whether she left “a 

provocative telephone message” on Blazer’s answering machine earlier that year. She said “no.” 

Blazer argues that the message would have undermined T.L.’s credibility because the jury’s 

“view of her credibility would have been further diminished had they not only known of the 

contents of the message, but heard her lie about it.” 

In light of the entire state court record, it is not reasonably probable that the excluded 

evidence would have affected the jury’s verdict. First, Blazer’s argument is highly tenuous. He 

relies on the possibility that the jury would have believed that T.L. left the message and that her 

denial of having left the message would have caused the jury to disbelieve her testimony about

the degree of her impairment. However, Blazer does not contest the state court’s factual findings 

that T.L. had been drinking vodka to the point of vomiting, which Blazer witnessed. Nor does 

Blazer contest the state court’s finding that he was aware of her intoxication. Second, T.L. was 

subjected to extensive cross-examination on facts decidedly more relevant to the elements of the 

offense. She was questioned, for example, about the telephone calls she made and received 

during the course of the night. These questions tested the veracity of her testimony about the 

course of events before and after the sexual conduct. She was also questioned about the nature 

of her relationship with Blazer, such as whether she was “affectionate” toward Blazer during a 

family vacation, and the fact that she continued to contact and spend time with Blazer, even after 
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an alleged non-consensual sexual contact in 2006. These questions tested her credibility with 

respect to her denial that she had feelings for Blazer or otherwise sought sexual contact. Third, 

other testimony supported that Blazer had cultivated an unusually close relationship with T.L., 

including reading her a poem he wrote about her “chest” when she was 12 or 13 years old and 

buying her a “promise” ring to signify that he would keep her secrets. This evidence supported 

T.L.’s version of events and would not have been undermined by the answering machine 

recording. 

III.

For these reasons, we affirm the judgment of the district court.