[Cite as State v. Gibson, 2021-Ohio-1255.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2020-L-073

 - vs - : 

TYRONE GIBSON, : 

 Defendant-Appellant. : 

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2020 CR 

000213. 

Judgment: Affirmed 

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, 

Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio 

44077 (For Plaintiff-Appellee). 

Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113 

(For Defendant-Appellant). 

THOMAS R. WRIGHT, J. 

{¶1} Appellant, Tyrone Gibson, appeals his convictions for rape in violation of 

R.C. 2907.02. We affirm. 

{¶2} Gibson was indicted on 19 counts of rape, with attendant repeat violent 

offender specifications, and 18 counts of sexual battery, with one attendant repeat violent 

offender specification. The charges stem from allegations that Gibson engaged in 

numerous acts of sexual conduct with his girlfriend’s daughter, T.R., beginning when she 
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was 12 years old. T.R. disclosed the abuse to her mother after Gibson moved from their 

home when T.R. was 15 years old. 

{¶3} After trial, the jury found Gibson guilty on all counts, and the trial court found 

him guilty of the repeat violent offender specifications.1 The sexual battery counts and 

one rape count merged into the 18 remaining rape counts for purposes of sentencing. 

The trial court sentenced Gibson to a total prison term of life in prison with parole eligibility 

after serving 136 years. 

{¶4} Gibson assigns three errors. The first two assignments state: 

{¶5} “[1.] The convictions for rape and sexual battery were not supported by 

sufficient evidence.” 

{¶6} “[2.] The convictions for rape and sexual battery were against the manifest 

weight of the evidence.” 

{¶7} As set forth above, the jury found Gibson guilty of 19 counts of rape and 18 

counts of sexual battery. Of the 19 counts of rape: one count charged Gibson with rape 

of a person under the age of 13, in violation of R.C. 2907.02(A)(1)(b), with an enhanced 

sentencing finding of force or threat of force pursuant to R.C. 2971.03; one count charged 

Gibson with rape through administering a drug, intoxicant, or controlled substance 

causing the victim substantial impairment, in violation of R.C. 2907.02(A)(1)(a); and 17 

counts charged Gibson with rape in which force or threat of force is an element of the 

offense, in violation of R.C. 2907.02(A)(2). For sentencing purposes one count of forcible 

rape merged with the one count of rape through administering a drug, intoxicant, or 

controlled substance causing the victim substantial impairment, and the trial court 

 

1. The parties stipulated to Gibson’s prior conviction, and Gibson waived a jury trial on this issue only. 
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sentenced Gibson on the latter count. Gibson argues the evidence does not support a 

finding of force or threat of force, administration of an intoxicant, and substantial 

impairment. 

{¶8} The jury also found Gibson guilty on 18 counts of sexual battery in violation 

of R.C. 2907.03(A)(5), which prohibits sexual conduct by a person in loco parentis of the 

victim. For sentencing purposes, all the sexual battery offenses merged with the rape 

offenses. Gibson argues that the evidence did not support a finding that he was in loco 

parentis of T.R. 

{¶9} At the outset, we note that “[c]ourts have held, in merged offense cases, 

where there is sufficient evidence supporting the conviction of the state’s elected offense 

for sentencing, it is harmless error if there was insufficient evidence to support the 

offenses that merged with the elected offense.” (Citations omitted.) State v. Henderson, 

7th Dist. Mahoning No. 15 MA 0137, 2018-Ohio-5123, ¶ 9; accord State v. Cook, 11th 

Dist. Lake No. 2016-L-079, 2017-Ohio-7953, ¶ 62. Because all the sexual battery 

offenses merged with the rape offenses, a conclusion that the rape convictions are 

supported by the evidence renders harmless any error relative to evidence of sexual 

battery. Nonetheless, we will discuss Gibson’s argument with respect to the “in loco 

parentis” aspect of the sexual battery offenses because it is intertwined with the element 

of force or threat of force required to sustain the rape convictions. 

{¶10} “Whether the evidence is legally sufficient to sustain a verdict is a question 

of law.” (Citation omitted.) State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 

(1997); State v. Davis, 11th Dist. Lake No. 2019-L-170, 2021-Ohio-237, ¶ 187. “In 

essence, sufficiency is a test of adequacy.” Thompkins at 386. “In a sufficiency-of-the-
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evidence inquiry, the question is whether the evidence presented, when viewed in a light 

most favorable to the prosecution, would allow any rational trier of fact to find the essential 

elements of the crime beyond a reasonable doubt.” State v. Dent, ––– Ohio St.3d ––––, 

2020-Ohio-6670, ––– N.E.3d ––––, ¶ 15, citing State v. Jenks, 61 Ohio St.3d 259, 574 

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

{¶11} Unlike a challenge to the sufficiency of the evidence, a challenge to the 

manifest weight of the evidence “concerns ‘the inclination of the greater amount of 

credible evidence * * * to support one side of the issue rather than the other.’” (Emphasis 

sic.) Thompkins at 387, quoting Black’s Law Dictionary 1594 (6th Ed.1990). In reviewing 

the manifest weight of the evidence, we must “consider the entire record, including the 

credibility of the witnesses, the weight of the evidence, and any reasonable inferences, 

and determine whether ‘“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. Settle, 11th Dist. No. 2015-T-0119, 2017-Ohio-703, 86 N.E.3d 35, ¶ 51, quoting 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st 

Dist.1983); State v. Masters, 11th Dist. Lake No. 2019-L-037, 2020-Ohio-864, ¶ 18-19. 

{¶12} Upon a conclusion that the trial court’s decision is not against the manifest 

weight of the evidence, an appeals court need not do a separate analysis as to sufficiency 

because a conclusion that a decision is not against the manifest weight necessarily 

means it was supported by sufficient evidence. Masters at ¶ 17. 

{¶13} With respect to the conviction for rape in violation of R.C. 2907.02(A)(1)(b), 

that statute provides, “No person shall engage in sexual conduct with another * * * when 

* * * [t]he other person is less than thirteen years of age, whether or not the offender 
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knows the age of the other person.” On this count, the jury additionally found Gibson 

used force, which enhances the sentence under R.C. 2971.03. As to the convictions for 

rape in violation of R.C. 2907.02(A)(2), that statute provides, “No person shall engage in 

sexual conduct with another when the offender purposely compels the other person to 

submit by force or threat of force.” “Force” is “any violence, compulsion, or constraint 

physically exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). 

{¶14} With respect to the conviction for rape in violation of R.C. 2907.02(A)(1)(a), 

that statute provides, “No person shall engage in sexual conduct with another who is not 

the spouse of the offender * * * when * * * [f]or the purpose of preventing resistance, the 

offender substantially impairs the other person’s judgment or control by administering any 

drug, intoxicant, or controlled substance to the other person surreptitiously or by force, 

threat of force, or deception.” 

{¶15} With respect to the offense of sexual battery in violation of R.C. 

2907.03(A)(5), that statute provides, “No person shall engage in sexual conduct with 

another, not the spouse of the offender, when * * * [t]he offender is the other person’s 

natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco 

parentis of the other person.” The Ohio Supreme Court has explained: 

The phrase “person in loco parentis” in R.C. 2907.03(A)(5) applies 

to a person who has assumed the dominant parental role and is 

relied upon by the child for support. This statutory provision was not 

designed for teachers, coaches, scout leaders, or any other persons 

who might temporarily have some disciplinary control over a child. 

Simply put, the statute applies to the people the child goes home to. 

State v. Noggle, 67 Ohio St.3d 31, 33, 615 N.E.2d 1040 (1993). 

{¶16} Here, at trial, T.R., her mother, and her brother testified as part of the state’s 

case. T.R.’s mother testified that T.R. was born on January 8, 1999. T.R.’s mother met 
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Gibson in 2009, and they later began a romantic relationship. Gibson “pretty much” 

stayed with her at her home in Cleveland, where she lived in 2010-2011 with two of her 

children: T.R. and J.P, a boy one-year older than T.R. After living in Cleveland, T.R., J.P., 

and their mother moved to Painesville. Gibson also stayed with them at the Painesville 

home, where he usually slept in the living room on a pile of blankets on the floor. T.R.’s 

mother testified that she and Gibson fought “all the time” and Gibson would hit her. T.R.’s 

mother stated “[a] lot” of the physical violence took place in front of T.R. Gibson would 

also threaten T.R.’s mother in front of T.R., saying, “B*tch, I’ll kill you.” 

{¶17} T.R. testified to 18 separate instances of Gibson abusing her through acts 

of sexual conduct beginning when she was 12 years old and continuing until she was 15. 

The abuse included digital penetration of T.R.’s vagina and anus, vaginal intercourse, 

anal intercourse, fellatio, and insertion of a foreign object into T.R.’s vagina and anus. 

With some exceptions, T.R. did not testify as to Gibson using any overt force or threat of 

force on her in order to engage in these sexual acts. T.R. testified that, on two occasions, 

she and Gibson drank sangria and smoked marijuana prior to engaging in anal 

intercourse. 

{¶18} T.R. further testified that, during one instance of vaginal intercourse with 

Gibson in the living room of the Painesville home, J.P. came downstairs to get a drink 

from the kitchen. Although T.R. and Gibson were visible from the steps, J.P. did not 

acknowledge them, and he proceeded to the kitchen and went back upstairs. The next 

day, Gibson accused J.P. of having sex with T.R. T.R. falsely confirmed to her mother 

that she and J.P. were having sex, and her mother then sent J.P. to live with his 
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grandmother. T.R. explained that she lied to confirm Gibson’s accusation because she 

was scared of Gibson. 

{¶19} J.P. testified that he witnessed Gibson and T.R. laying in the living room 

under a blanket on a night when he went downstairs to get a drink from the kitchen. He 

indicated that it did not register to him what was happening between T.R. and Gibson. 

The next day, Gibson accused J.P. of having sex with T.R. J.P. denied this allegation 

and testified that he and his sister have never engaged in sexual activity. 

{¶20} Based upon the testimony, there is no dispute that Gibson and T.R.’s 

mother were not married. However, the testimony indicates that Gibson was regularly 

present and slept at T.R.’s home. T.R.’s mother additionally testified that Gibson 

frequently brought his grandchildren over to visit and stay for multiple days. In addition, 

T.R. and her mother testified that, although Gibson did not contribute to household 

expenses, he contributed to the household by often looking after T.R. and J.P. while their 

mother worked and attended school, along with during a time their mother was suffering 

from illness. Moreover, T.R.’s mother testified that Gibson kept his vehicles and 

possessions at T.R.’s home, and T.R. testified that she referred to Gibson as her 

stepfather to others, although she referred to him as Tyrone when speaking with him. In 

addition, T.R. and her mother testified that they celebrated Father’s Day with Gibson. We 

cannot say that the conclusion that Gibson was one of the “people the child goes home 

to” was against the manifest weight of the evidence. See Noggle, 67 Ohio St.3d 31, at 

33. Accordingly, Gibson’s argument that the weight of the evidence does not support that 

he was in loco parentis of T.R. is not well taken. 
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{¶21} Gibson’s position as a parental figure is critical to the issue of force to 

sustain the rape convictions. With respect to people standing in parental positions, the 

Ohio Supreme Court has held: 

The force and violence necessary to commit the crime of rape 

depends upon the age, size and strength of the parties and their 

relation to each other. With the filial obligation of obedience to a 

parent, the same degree of force and violence may not be required 

upon a person of tender years, as would be required were the parties 

more nearly equal in age, size and strength. 

(Citation omitted.) State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph 

one of syllabus. 

{¶22} Here, T.R. and her mother testified that T.R. witnessed Gibson’s repeated 

physical abuse of T.R.’s mother. T.R. testified that she witnessed physical injuries, both 

to her mother’s face and her ankle, resulting from the abuse, which scared her. T.R. 

testified that Gibson regularly threatened her mother when they argued, saying “B*tch, I’ll 

kill you.” Further, T.R. testified that Gibson had threatened her. In addition, T.R. testified 

that the earliest incident of sexual conduct that formed the basis of a rape charge occurred 

when she was 12 years old, when she awoke to Gibson digitally penetrating her vagina. 

On another occasion, when T.R. was 13, Gibson told her to perform oral sex on him, and 

“he wouldn’t take no for an answer.” Thereafter, T.R. vomited. On another date, T.R. 

testified that she again performed oral sex on Gibson because he wanted her to, and she 

again vomited directly after. T.R. also testified as to an incident where she was lying on 

her back on T.R.’s blankets, and he “pushed” her, got on top of her, and then had vaginal 

intercourse with her. 

{¶23} “‘* * * Force need not be overt and physically brutal, but can be subtle and 

psychological. As long as it can be shown that the rape victim’s will was overcome by 
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fear or duress, the forcible element of rape can be established.’” See Eskridge, 38 Ohio 

St.3d at 58, quoting State v. Fowler, 27 Ohio App.3d 149, 154, 500 N.E.2d 390 (8th 

Dist.1985). The jury could reasonably infer from the evidence that Gibson, a father figure 

to T.R., created an environment of physical abuse that pervaded T.R.’s home life to such 

an extent that the fear of physical violence overcame T.R.’s will for each occurrence of 

sexual conduct. Accordingly, Gibson’s argument that the weight of the evidence does 

not support force or threat of force is not well taken. 

{¶24} With respect to Gibson’s argument regarding the evidence of administering 

intoxicants to T.R. rendering her substantially impaired, the Ohio Supreme Court has 

explained: 

The phrase “substantially impaired,” in that it is not defined in the 

Ohio Criminal Code, must be given the meaning generally 

understood in common usage. As cogently stated by the appellate

court, 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, 103-04, 509 N.E.2d 414, 418 (1987). 

{¶25} T.R. testified that Gibson gave her sangria and marijuana to “loosen [her] 

up” for anal intercourse. T.R. maintained that the sangria was strong, and it made her 

feel “weak, like [she] didn’t feel like [her]self.” We cannot say that jury’s determination 

that, for the purpose of preventing resistance, Gibson substantially impaired T.R.’s 

judgment or control by administering to her sangria and marijuana by force or threat of 

force was against the manifest weight of the evidence. 

{¶26} With respect to T.R.’s credibility, Gibson maintains that her testimony was 

not credible because she testified that she falsely accused her brother of engaging in 

sexual conduct with her. However, T.R. testified that she was scared that if she did not 
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lie to confirm Gibson’s accusations, Gibson would kill them. It was within the province of 

the jury to determine her credibility. See State v. Unrue, 11th Dist. Lake No. 2020-L-054, 

2020-Ohio-6808, ¶ 16, quoting State v. Jones, 2d Dist. Clark No. 2005 CA 122, 2007-

Ohio-2425, ¶ 24 (“‘[T]he jury [i]s free to believe or disbelieve the testimony of any witness 

as to any issue, and the testimony of any one witness as to any material fact, believed by 

the trier of fact, is sufficient to prove any such fact.’”). Accordingly, Gibson’s argument 

that T.R.’s testimony lacked credibility is not well taken. 

{¶27} We conclude this is not the extraordinary case where 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.” See Thompkins, 78 Ohio St.3d at 387. Accordingly, 

Gibson’s convictions are not against the manifest weight of the evidence and are 

necessarily supported by sufficient evidence. Therefore, Gibson’s first and second 

assigned errors lack merit. 

{¶28} Gibson’s third assigned error states: 

{¶29} “[3.] The trial court erred when it permitted Gibson to be tried in his jail 

clothes.” 

{¶30} Gibson argues that it was error for the trial court to permit Gibson to be tried 

in his jail attire without warning him of the inherent risk in so proceeding. 

{¶31} Prior to trial, Gibson moved for permission to wear civilian clothes during 

his trial, and the trial court granted the motion. However, prior to voir dire, defense 

counsel indicated that Gibson had chosen not to wear civilian clothes and to instead 

proceed in his prison attire. After the jury was selected and permitted to leave for the day, 

counsel and the court again discussed this issue: 
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THE COURT: Anything else? 

[Prosecutor]: Just one more thing, Your Honor. Sorry. Juror Number 

16, when during voir dire she did indicate that she knew the 

defendant from the jail, also provided that the defendant is sitting in 

court in his jail clothes. The state would just asked (sic.) for a limited 

instruction be given in regards to the defendant being in jail.

THE COURT: Well, to say what? I mean he’s decided, he was given 

the opportunity to wear his civilian clothes and he has not, he’s in jail 

clothes, so what is it you want me to tell the jury? 

[Prosecutor]: Just not to infer anything by the defendant’s 

incarceration. 

THE COURT: All right. Why don’t you guys craft what you want me 

to say in the instruction, what do you think? 

[Defense counsel]: I would respectfully request an instruction saying 

that the jury shouldn’t infer anything by the fact that Mr. Gibson is in 

jail clothes, he hasn’t posted bond on this case which is true.

THE COURT: Usually we go to great lengths to make sure that they 

don’t know they are in jail. Mr. Gibson kind of didn’t cover up the 

fact. So do you want me to call attention to it unnecessarily and if 

you want me to craft something. If you want me to read it get it to 

me. 

{¶32} Thereafter, the parties agreed to an instruction, which was given to the jury 

prior to and following trial, stating: 

THE COURT: * * * I want to read one instruction to you. During the 

trial in this case the defendant, Tyrone Gibson appears in attire 

provided by the Lake County jail. You’re instructed not to draw any 

inference from this fact. His apparel should not influence you in any 

way whatsoever in the trial of this case. 

{¶33} On appeal, Gibson argues that he could not have a fair trial while dressed 

in prison attire, and the “trial court should have done more to prevent this situation.” 

However, given that defense counsel requested to proceed with Gibson dressed in his 

jail attire, any error in so proceeding was invited. “The doctrine of invited error holds that 
 12 

a litigant may not ‘take advantage of an error which he himself invited or induced.’” State 

v. Hope, 11th Dist. Trumbull No. 2018-T-0053, 2019-Ohio-2174, 137 N.E.3d 549, ¶ 147, 

quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 

590 (1986), paragraph one of the syllabus. 

{¶34} As the trial court permitted Gibson to be tried in civilian clothing, but he 

chose to proceed instead in his prison attire, he cannot now argue an error that he invited. 

Accordingly, Gibson’s third assigned error lacks merit. 

{¶35} The trial court’s judgment is affirmed. 

MARY JANE TRAPP, P.J., 

MATT LYNCH, J., 

concur.