[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, Cas e No. 2020 CR 000213.

Jud g ment: 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 v iolation 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 she2 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 th e 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 pur poses 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 supp orted 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 o f 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 c ontrolled 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 for ce is an element of the offense, in violation of R.C. 2907.02(A)(2). For sentencing pu rposes 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 Gib son waived a jury trial on this issue only.3 sentenced Gibson on the latter count. Gibson argues the eviden ce does not support a finding of force or threat of force, administration of an intox icant, and substantial impairment. {¶8} The jury also found Gibson guilty on 18 counts of sexual batter y in violation of R.C. 2907.03(A)(5), which prohibits sexual conduct by a pers on in loco parentis of the victim. For sentencing purposes, all the sexual battery offens es merged with the rape offenses. Gibson argues that the evidence did not support a fi nding that he was in loco parentis of T.R. {¶9} At the outset, we note that “[c]ourts have held, in merged offe nse 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 omi tted.) 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 t he sexual battery offenses merged with the rape offenses, a conclusion that the r ape convictions are supported by the evidence renders harmless any error relative t o evidence of sexual battery. Nonetheless, we will discuss Gibson’s argument with r espect to the “in loco parentis” aspect of the sexual battery offenses because it is i ntertwined with the element of force or threat of force required to sustain the rape convic tions. {¶10} “Whether the evidence is legally sufficient to sustain a verdic t 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-4 evidence inquiry, the question is whether the evidence presente d, when viewed in a light most favorable to the prosecution, would allow any rational tri er 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 challe nge to the manifest weight of the evidence “concerns ‘the inclination of t he 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 enti re record, including the credibility of the witnesses, the weight of the evidence, and a ny reasonable inferences, and determine whether ‘“the jury clearly lost its way and creat ed 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 agains t 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 manifes t 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. 2 907.02(A)(1)(b), that statute provides, “No person shall engage in sexual conduc t with another * * * when * * * [t]he other person is less than thirteen years of age, wh ether or not the offender5 knows the age of the other person.” On this count, the jury ad ditionally 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 thi ng.” R.C. 2901.01(A)(1). {¶14} With respect to the conviction for rape in violation of R.C. 29 07.02(A)(1)(a), that statute provides, “No person shall engage in sexual conduc t with another who is not the spouse of the offender * * * when * * * [f]or the purpose o f preventing resistance, the offender substantially impairs the other person’s judgment or c ontrol by administering any drug, intoxicant, or controlled substance to the other person s urreptitiously 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 i n sexual conduct with another, not the spouse of the offender, when * * * [t]he offen der is the other person’s natural or adoptive parent, or a stepparent, or guardian, custo dian, or person in loco parentis of the other person.” The Ohio Supreme Court has expl ained: The phrase “person in loco parentis” in R.C. 2907.03(A)(5) appl ies 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 per sons who might temporarily have some disciplinary control over a chi ld. Simply put, the statute applies to the people the child goes ho me 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 met6 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 20 10-2011 with two of her children: T.R. and J.P, a boy one-year older than T.R. After l iving 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 bl ankets 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 t hrough acts of sexual conduct beginning when she was 12 years old and conti nuing until she was 15. The abuse included digital penetration of T.R.’s vagina and anu s, vaginal intercourse, anal intercourse, fellatio, and insertion of a foreign object i nto T.R.’s vagina and anus. With some exceptions, T.R. did n ot testify as to Gibson using a ny overt force or threat of force on her in order to engage in these sexual acts. T.R. tes tified that, on two occasions, she and Gibson drank sangria and smoked marijuana prior to enga ging in anal

intercourse. {¶18} T.R. further testified that, during one instance of vaginal int ercourse with Gibson in the living room of the Painesville home, J.P. came do wnstairs to get a drink from the kitchen. Although T.R. and Gibson were visible from t he 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 his7 grandmother. T.R. explained that she lied to confirm Gibson’s a ccusation 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 dri nk from the kitchen. He indicated that it did not register to him what was happening be tween 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 sexu al 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 t estified 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 con tribute to household expenses, he contributed to the household by often looking afte r T.R. and J.P. while their mother worked and attended school, along with during a time the ir mother was suffering from illness. Moreover, T.R.’s mother testified that Gibson ke pt his vehicles and possessions at T.R.’s home, and T.R. testified that she referre d to Gibson as her stepfather to others, although she referred to him as Tyrone wh en speaking with him. In addition, T.R. and her mother testified that they celebrated Fa ther’s Day with Gibson. We cannot say that the conclusion that Gibson was one of the “peop le 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 evid ence does not support that he was in loco parentis of T.R. is not well taken.8 {¶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 thei r relation to each other. With the filial obligation of obedienc e to a parent, the same degree of force and violence may not be requir ed upon a person of tender years, as would be required were the pa rties 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 witne ssed physical injuries, both to her mother’s face and her ankle, resulting from the abuse, w hich 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 ba sis of a rape charge occurred when she was 12 years old, when she awoke to Gibson digitally p enetrating her vagina. On another occasion, when T.R. was 13, Gibson told her to perfo rm 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 h e wanted her to, and she again vomited directly after. T.R. also testified as to an inc ident 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 by9 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 wi ll for each occurrence of

sexual conduct. Accordingly, Gibson’s argument that the weight of the eviden ce does not support force or threat of force is not well taken. {¶24} With respect to Gibson’s argument regarding the evidence of adm inistering intoxicants to T.R. rendering her substantially impaired, the O hio 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 demonstrat ing a present reduction, diminution or decrease in the victim’s abi lity, 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 “l oosen [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 substant ially impaired T.R.’s judgment or control by administering to her sangria and marijua na 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 t estimony 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 not10 lie to confirm Gibson’s accusati ons, Gibson would kill them. I t 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 disbeliev e 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.’”). A ccordingly, 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, Gibso n’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 trie d in his jail

clothes.” {¶30} Gibson argues that it was error for the trial court to permit G ibson 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 cl othes during his trial, and the trial court granted the motion. However, pr ior to voir dire, defense

counsel indicated that Gibson ha d chosen not to wear civilian c lothes 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:11 THE COURT: Anything else? [Prosecutor]: Just one more thing, Your Honor. Sorry. Juror N umber 16, when during voir dire she did indicate that she knew the defendant from the jail, also provided that the defendant is si tting in court in his jail clothes. The state would just asked (sic.) fo r 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 give n 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 m e 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. Gib son 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 the y don’t know they are in jail. Mr. Gibson kind of didn’t cover u p 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 giv en 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 atti re provided by the Lake County jail. You’re instructed not to dra w 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 wh ile 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 G ibson dressed in his jail attire, any error in so proceeding was invited. “The doct rine of invited error holds that12 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 clo thing, but he chose to proceed instead in his prison attire, he cannot now ar gue 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.