[Cite as State v. Beard,
2025-Ohio-3097.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240388
TRIAL NO. B-2106212
Plaintiff-Appellee, :
vs. :
JUDGMENT ENTRY
SPENCER BEARD, :
Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs.
The judgment of the trial court is affirmed in part, the sentence is vacated, and
the cause is remanded for the reasons set forth in the Opinion filed this date.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs are taxed 50% to appellant and 50% to
appellee.
The court further orders that 1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial
court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 8/29/2025 per order of the court.
By:_______________________
Administrative Judge
[Cite as State v. Beard, 2025-Ohio-3097.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240388
TRIAL NO. B-2106212
Plaintiff-Appellee, :
vs. :
OPINION
SPENCER BEARD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence Vacated, and Cause
Remanded
Date of Judgment Entry on Appeal: August 29, 2025
Connie M. Pillich, Hamilton County Prosecuting Attorney, and Candace Crear,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
BOCK, Judge.
{¶1} Defendant-appellant Spencer Beard challenges his rape conviction and
sentence in three assignments of error. First, he argues that the evidence is insufficient
to prove that he knew the victim was substantially impaired. Second, he argues that
the weight of the evidence proves that the victim was not substantially impaired. Third,
Beard argues that the trial court impermissibly based its decision to sentence him to
the statutory maximum on Beard’s exercise of his constitutional right to a jury trial.
{¶2} We overrule Beard’s first two assignments of error. First, a rational juror
could find that Beard knew the victim was substantially impaired because
eyewitnesses described the victim’s instability on her feet, heaving, and vomiting near
Beard after drinking alcohol with Beard earlier in the night. Second, Beard’s
conviction, and the jury’s finding of a substantial impairment, is not contrary to the
weight of the evidence. The victim’s and eyewitnesses’ testimony describing the
victim’s condition before the sexual conduct reveal that alcohol impaired the victim’s
ability to apprise and control her conduct, and a conviction is not against the manifest
weight of the evidence simply because the jury believed the victim’s and eyewitnesses’
testimony and not Beard’s testimony.
{¶3} But we sustain Beard’s third assignment of error. The trial court’s
repeated condemnatory remarks about Beard’s not-guilty plea and his choice to be
tried by a jury reveal that it impermissibly considered Beard’s exercise of his
constitutional right to a jury trial when it imposed the maximum penalty. A sentence
imposed in retaliation for the defendant’s exercising his constitutional right to a jury
trial is contrary to law and must be vacated.
{¶4} Therefore, we affirm Beard’s conviction, vacate his sentence, and
remand the cause to the trial court for resentencing.
OHIO FIRST DISTRICT COURT OF APPEALS
I. Factual and Procedural History
{¶5} In late 2021, the State charged Beard with one count of rape of a
substantially-impaired person, J.F., in violation of R.C. 2907.02(A)(1)(c). Beard
pleaded not guilty and elected for a jury trial.
Beard’s trial
{¶6} At trial, J.F. explained that she had been separated from her husband
when she reconnected with an old friend from high school, Brady. J.F. was led to
believe that Brady was single and their messages became flirtatious. One weekend in
September 2021, Brady invited J.F. out to a bar.
{¶7} J.F. testified that she does not drink much, if at all. J.F.’s medications
include Adderall, Xanax, and acne medication. On the day J.F. was to meet up with
Brady, J.F. had little to eat due to a poor appetite, but she took an Adderall early in the
day and a Xanax around 9:30 p.m. because she was feeling anxious. According to J.F.,
that was the first time she had taken a Xanax since receiving her prescription.
A. Beard joined Brady at the bar
{¶8} Around 10:30 p.m., J.F. met Brady at the Casual Pint in Hamilton, Ohio.
There, J.F. met Brady’s friend, Beard, and Beard’s friend, Marissa. Brady bought J.F.
a drink. Brady testified that he bought J.F. a White Claw, while J.F. and Beard recalled
it being an IPA. Beard described J.F. as shy at the Casual Pint.
{¶9} The four decided to go to Big Buls in Ross, Ohio. While Beard drove, J.F.
and Marissa drank White Claws in the backseat. Brady and J.F. testified that, at Big
Buls, Beard bought one shot of tequila each for J.F. and Marissa, and a vodka
lemonade for himself. According to J.F. and Marissa, J.F. drank both shots of tequila.
J.F. recalled drinking most of Beard’s vodka lemonade.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} While his companions were inside drinking, Brady was outside arguing
with his girlfriend on the phone. When the group left Big Buls, Marissa recalled that
Brady had to help J.F. walk from the bar to Beard’s car.1 But Brady testified that he did
not “recognize” that J.F. was intoxicated at Big Buls.
{¶11} According to Brady, Beard suggested going back to his apartment in
Reading, Ohio. Brady and J.F. sat in the back while Beard drove to his apartment. J.F.
felt the effects of the alcohol on the way to Beard’s apartment and started “blacking in
and out.” Brady and J.F. kissed. According to Brady, J.F. was “having more fun, getting
a little bit louder than before.” At trial, he testified that she was tipsy, but not “sloppy.”
When the State asked Brady why he had described J.F. as “sloppy” to detectives during
a police interview, Brady clarified that J.F.’s kiss was “sloppy,” not her demeanor.
B. Beard’s apartment
{¶12} J.F. recalled being in Beard’s apartment sometime around midnight and
vomiting in Beard’s bathroom. She did not remember walking into Beard’s apartment.
From that point on, J.F. only remembered “bits and pieces.”
{¶13} J.F.’s sister-in-law, Caitlyn, testified that she had been texting J.F.
throughout the night. Caitlyn asked J.F. if everything was “okay,” and J.F. responded
that she was “having a good torn [sic] for real.” The next message from J.F. was
“discombobulated and didn’t make sense.” Caitlyn believed that J.F. was intoxicated
at that point. Caitlyn tracked J.F.’s location through J.F.’s phone and, at around 12:20
a.m., J.F.’s phone was in Reading, Ohio. Caitlyn called J.F., but there was no answer.
{¶14} Brady testified that he was at the apartment for 30 minutes, at most.
Brady and J.F. sat in Beard’s bedroom to give Beard and Marissa, who were having a
1 Beard testified that J.F. needed no help leaving Big Buls.
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OHIO FIRST DISTRICT COURT OF APPEALS
tense conversation, some privacy. According to Brady, Marissa rejected Beard’s
advances and wanted to leave Beard’s apartment. Marissa testified that she called her
mother to pick her up. This, according to Brady and Marissa, upset Beard.
{¶15} Brady and J.F. were talking when, according to Brady, J.F. started “dry
heaving.” Brady recalled guiding J.F. to the bathroom and Marissa came to assist J.F.
Marissa testified that J.F. was “very intoxicated at that point” and was vomiting within
the first ten minutes that she was in Beard’s apartment. Marissa recalled that J.F.
“stumbled” into the bathroom and she held J.F.’s hair as J.F. vomited. According to
Marissa, J.F. was “laying on the bathroom floor like she couldn’t really hold herself up
or anything” and could not clean herself up. Marissa also testified that J.F. had trouble
walking after she vomited.
{¶16} Beard testified that he walked into his bedroom to retrieve Marissa’s
purse and saw J.F. “on top of [Brady]” on Beard’s bed. Beard remembered J.F. going
into the bathroom because she felt unwell, so Beard, a nurse, went into his living room.
{¶17} When Brady was about to leave Beard’s apartment, J.F. had “a Pop-
Tart” and water, though Brady did not see her eat the Pop-Tart. Marissa left five
minutes before Beard drove Brady to his car. At that point, J.F. was on the couch, fully
clothed, and “[l]ying against the cushion.” Brady recalled that Beard gave J.F. a “puke
bucket.” As Brady was leaving the apartment J.F. said, “Wait, Don’t. Are you sure, like,
is it okay?” Brady assured J.F. that she would feel better after sleeping.
{¶18} Marissa recalled that J.F. “was too drunk to be left [] alone” and that
Brady remarked that he did not want to take advantage of J.F. in that state. Brady
testified that, around the time he left, he “wouldn’t see anyone having sex with [J.F.]”
considering her state. Marissa left Beard’s apartment believing that Brady was going
to drive J.F. home.
6
OHIO FIRST DISTRICT COURT OF APPEALS
C. J.F. slept at Beard’s apartment
{¶19} Beard testified that he returned to his apartment and J.F. had “one boot
and one leg of her pants off laying like catty-corner across” Beard’s bed. Her pants
were “way too tight” and he “couldn’t get ‘em on,” so he gave her sweatpants. She was
“mutter[ing] stuff” and told Beard, “I don’t feel good.” J.F. was, for the most part,
standing up straight. Beard helped J.F. into his bed and then went into his living room
to watch television.
{¶20} Beard recalled that J.F. received text messages from her family, but she
ignored them. Yet, he testified that she checked to see how much an Uber would cost
to take her back to her apartment. Beard acknowledged at trial that he told an officer,
“Like, I could have got her an Uber, but I’m really going to leave someone who can’t
lift their head up with a stranger?”
{¶21} Beard explained that he and J.F. talked for two-and-a-half hours about
family and relationships. He recalled J.F. assuring him that it was okay if they slept in
the same bed.
{¶22} Beard testified that, around 4:00 a.m., J.F. “rolled over, kissed [Beard]
on the cheek,” thanked Beard for taking care of her, and started “cuddling.” According
to Beard, J.F. initiated sexual contact, took off her clothing, and initiated sexual
intercourse. Beard testified at length describing sexual intercourse with J.F., in
graphic detail.
D. The next morning
{¶23} J.F. recalled waking up the next morning “scared” and in Beard’s bed,
next to Beard. Her shirt was on, though it “looked like maybe they tried to get it off.”
Her “bra was undone in the back” and she “had no pants on no shoes on or socks on,
no underwear on.” She explained that her pants were “super tight” and difficult to get
7
OHIO FIRST DISTRICT COURT OF APPEALS
off. She recalled that her pants, underwear, and pantyliner looked like they were
“peeled . . . straight down.” J.F. woke Beard and asked about Brady. Beard informed
J.F. that Brady had left “last night.” Beard stood up and “didn’t have boxers on.”
{¶24} According to Beard, J.F. woke up around 5:45 a.m. to go to the
bathroom, “got dizzy and lightheaded,” and fell onto his bathroom floor. Beard helped
J.F. and then packed her clothes in a bag to take her home. J.F. asked Beard why she
was in his apartment and “where was [Brady]?” Beard shook his head in response.
{¶25} J.F. recalled that her vagina felt sore on the drive home, as if “something
happened.” She asked Beard if he had “touched” her. Beard said no, that she had sex
with Brady, and “fell and hit [her] head.” This, to J.F., just “wasn’t adding up.” When
Beard felt the back of J.F.’s head, she started having “flashbacks.” She testified that
she began recalling “someone on top of me. Like, me telling somebody ‘No’; me –
someone turning me on my stomach; somebody yanking my boots off of me. And like,
they’re like combat boots; they lace up, they zip up, they’re not easy to get off or get
on.” J.F. recalled saying “Brady?” when that person was “tugging” on her boots. She
also remembered “someone like, putting, like, pressure on my chest [] and [] asking
me if I was on birth control.” J.F. learned from Beard that he had driven Brady to his
car after the night wound down, and Brady did not come back for J.F. because he “had
to go back to his girlfriend.”
{¶26} According to Beard, he told J.F. that they did not have sexual
intercourse because Beard was “in more shock than anything” after their night
together. Beard saw “no indication of her, like, slurring words or being confused.”
E. Rape kit
{¶27} Later that morning, J.F. explained her suspicions to her mother and
Caitlyn. Caitlyn testified that J.F. was “distraught” and “freaking out.” J.F. also texted
8
OHIO FIRST DISTRICT COURT OF APPEALS
and called Brady, who assured J.F. that they had not engaged in sexual intercourse
and suggested she “get a rape kit.”
{¶28} J.F. and Caitlyn went to the hospital. There, J.F. spoke with Nurse
Rhyan, a Sexual Assault Nurse Examiner (“SANE”). J.F. told Nurse Rhyan that she
woke up and felt “like she was being, like, tugged or, like, pulled off the bed and her,
like, boot was being taken off. And she said ‘Braden,’ and they responded to ‘yes.’”
Then J.F. recalled waking up and “feeling like someone was behind her doing sexual
things and, she remembers them saying, ‘Are you on birth control?’” J.F. told Nurse
Rhyan that she was “pretty positive” that she had sex with Brady, that Brady left, she
later awoke to someone “having sex with [her],” and she told that person “no.”
{¶29} The SANE report states that J.F. had consensual sex with Brady the
night before. J.F. testified that she agreed to a urinalysis because she recalled feeling
“paralyzed,” like she “couldn’t move,” and that she “was drugged.” Nurse Rhyan also
collected swabs to test for DNA. J.F. tested negative for alcohol, but positive for
amphetamines and benzodiazepine. Lab testing of J.F.’s vaginal swabs revealed the
presence of DNA from two contributors—J.F. and Beard. The lab analyst testified that
Beard’s DNA was a “sperm fraction” and “rarer than one in one trillion unrelated
individuals.” Brady was excluded as a contributor to the DNA on the vaginal swab.
F. Interrogation
{¶30} Brady testified that J.F. messaged him about her suspicions, which led
to Brady confronting Beard. Beard acted “confused,” denied having sex with J.F., and
failed to mention to Brady that he slept in the same bed as J.F. But sometime around
the DNA testing, Beard confessed to Brady, “Yeah, we had sex.” That change to Beard’s
story “didn’t make sense” to Brady, who wished Beard had told “the truth upfront,”
but Brady understood why his friend might hesitate to tell him about the sex. Beard
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OHIO FIRST DISTRICT COURT OF APPEALS
told Brady that the sexual intercourse was consensual and happened after Beard and
J.F. “talked all night” and “had a heart-to-heart.”
{¶31} Beard explained that he denied having sex with J.F. to Brady and law
enforcement because he had called a “prepaid legal hotline, and they told me not to
discuss – discuss anything with anybody.” Beard testified that Brady continued
speaking with J.F. because Brady wanted to “keep [J.F.] from telling his girlfriend.”
{¶32} Officer Eric Leininger interrogated Beard; that interrogation was played
at trial. Beard denied being naked in bed with J.F. and having sex with J.F. Beard told
officers that when J.F. asked if she and Beard had engaged in sexual intercourse the
night before, he responded, “You were throwing up hugging the trash can.” Beard said
that Brady had carried J.F. to the bathroom because she had started dry heaving.
{¶33} In his interview, Beard likened J.F. to a “floppy fish” when he returned
to his apartment after dropping off Brady. He said that taking J.F.’s jeans and boots
off was difficult. He also said that J.F. vomited several times and fell and hit her head
in his bathroom. Beard told officers that J.F. struggled to walk to his truck the next
morning. After officers secured a search warrant, Beard gave a DNA sample.
G. Toxicology experts
1. Dr. Topmiller
{¶34} Robert Topmiller was the chief toxicologist for the Hamilton County
Coroner’s office and testified as a forensic-toxicology expert. Topmiller was not
surprised that J.F.’s urine tested negative for alcohol because the hospital tested it
“approximately 14 hours” after the “incident,” and alcohol begins to “eliminate from
your blood and urine” once drinking stops. J.F. was 5’6” and 135 pounds, and
Topmiller determined that J.F.’s blood-alcohol concentration (“BAC”) “after 75
minutes of drinking would have been somewhere between 0.116 and 0.187.” The legal
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OHIO FIRST DISTRICT COURT OF APPEALS
driving limit in Ohio “is .080” and the “higher tier OVI limit” is 0.17. Topmiller agreed
that J.F.’s computed BAC could have increased between 12:30 to 1:00 a.m. because
“even though you stopped, you can still be absorbing a little more.”
{¶35} Topmiller found, based on that computed BAC and to a reasonable
degree of scientific certainty, that J.F. was “cognitively impaired.” He clarified that
cognitive impairment includes “not thinking as clearly and as quickly,” slowed visual
processing, slower reactions to stimuli, diminished attention, and critically
diminished judgment. According to Topmiller, J.F. would have shown signs of
psychomotor impairment, including “drowsiness, coordination troubles, maybe
walking, slurred speech.” Topmiller expected the alcohol’s effect on J.F. to have been
more pronounced because she is a nondrinker. He testified that, while J.F.’s body’s
elimination of alcohol would have lowered her computed BAC to 0.128 at roughly 4:45
a.m., J.F. would have showed signs of cognitive impairment and diminished judgment
and control.
{¶36} Topmiller described the effects of mixing Xanax, alcohol, and Adderall.
He believed that J.F. likely experienced pronounced drowsiness, mental confusion,
and coordination issues. As a nonregular user of Xanax, the effects of that drug would
have been “more pronounced” and surfaced between 1:00 and 3:00 a.m. Topmiller
agreed with J.F.’s primary care physician’s conclusion that J.F.’s dosage of Xanax was
unlikely to have caused her to blackout. Topmiller explained that Adderall, a
stimulant, would have made J.F. more aware of her surroundings. But when Adderall
is combined with alcohol, the drugs do not balance each other out and, instead, there
is “an increased likelihood and severity of side effects associated with each drug.”
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OHIO FIRST DISTRICT COURT OF APPEALS
2. Dr. Plotnick
{¶37} Dr. Harry Plotnick, a toxicologist, testified in Beard’s defense. In
Plotnick’s opinion, there is “no way to tell” whether a hypothetical person in a situation
identical to J.F.’s was impaired to a certain degree because of variables such as that
person’s tolerance for alcohol, and the concentration of Xanax and Adderall in their
system. He testified that J.F.’s computed BAC “would have been no higher than .176,
which is well below the area that you would have memory problems.” Plotnick testified
that blackouts are “not very common,” and J.F.’s computed BAC is not associated with
memory loss or blacking out.
{¶38} Plotnick agreed that a Xanax taken at 9:30 p.m. likely had an additive
effect to the alcohol consumed by a casual drinker. But he believed that J.F.’s dosage
presented a low likelihood of causing blackouts or paralysis. Plotnick explained that
Adderall and alcohol “moderate” each other. He found it interesting that Topmiller
noticed the presence of acetone in J.F.’s urine, because acetone is typically linked to
untreated diabetes or “people who have been starved and therefore their bodies are
making acetones or ketones . . . which could also have affected [J.F.].” The presence of
acetone also risks vomiting. Plotnick agreed that an empty stomach, a Xanax, and
drinking for two hours “[p]robably would have been” a bad combination.
Verdict and sentencing
{¶39} The jury found Beard guilty of rape in violation of R.C. 2907.02(A)(1)(c).
Following a long colloquy, the trial court sentenced Beard to “11 to 16 and a half years
in prison.”
II. Analysis
{¶40} Beard raises three assignments of error on appeal. First, he argues that
the evidence was insufficient to convict him of rape. Second, he maintains that his
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OHIO FIRST DISTRICT COURT OF APPEALS
conviction is against the manifest weight of the evidence. Third, he contends that his
sentence is the product of improper bias.
{¶41} Beard was convicted of rape in violation of R.C. 2907.02(A)(1)(c),
which, relevant here, criminalizes
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 . . . .
{¶42} No statute defines “substantially impaired,” but the Supreme Court of
Ohio defines the phrase as “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, 103-104 (1987). A person’s “voluntary intoxication is a mental
or physical condition that could cause substantial impairment.” State v. Foster, 2020-
Ohio-1379, ¶ 42 (8th Dist.); see State v. Gasper,
2023-Ohio-1500, ¶ 63 (1st Dist.),
citing State v. Yerkey,
2021-Ohio-3331, ¶ 29 (7th Dist.).
A. Sufficient evidence proved that Beard knew J.F. was substantially impaired
{¶43} Beard argues that the State’s evidence failed to establish that he knew
J.F. was substantially impaired, an element of rape under R.C. 2907.02(A)(1)(c).
1. Sufficiency and knowledge
{¶44} To review whether sufficient evidence established an element of a
criminal offense, this court, viewing the evidence and reasonable inferences in a light
most favorable to the State, determines if a rational fact finder could have found,
beyond a reasonable doubt, all essential elements of the offense. State v. Sipple, 2021-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-1319, ¶ 6 (1st Dist.), quoting State v. MacDonald, 2019-Ohio-3595, ¶ 12 (1st
Dist.), quoting State v. Martin,
20 Ohio App.3d 172, 175, (1st Dist. 1983).
{¶45} To prove that Beard knew J.F. was substantially impaired, the evidence
must establish that Beard was “aware that such circumstances probably exist.” R.C.
2901.22(B). Sexual conduct becomes criminal under R.C. 2907.02(A)(1)(c) “‘when the
individual knows or has reasonable cause to believe that the victim’s ability to resist or
consent is substantially impaired because of voluntary intoxication.’” State v. Doss,
2008-Ohio-449, ¶ 13 (8th Dist.), quoting State v. Martin,
2000 Ohio App. LEXIS
3649, *16 (3d Dist. Aug. 14, 2000).
{¶46} Fact finders may infer a defendant’s knowledge of a person’s substantial
impairment by looking to the person’s demeanor and interactions. State v. McClain,
2025-Ohio-962, ¶ 26 (8th Dist.). Courts have identified behaviors that a person would
recognize as clues of another person’s alcohol-induced substantial impairment,
including “‘stumbling, falling, slurr[ing] speech, passing out, or vomiting.’” State v.
Sims,
2023-Ohio-1179, ¶ 134 (4th Dist.), quoting State v. Hatten,
2010-Ohio-499, ¶ 24
(2d Dist.).
2. The State presented sufficient evidence to establish knowledge
{¶47} According to Beard, the evidence fails to show that he knew or should
have known that J.F. was substantially impaired because he was unaware that J.F. had
taken a Xanax, J.F. had consumed a limited amount of alcohol, and he did not observe
her vomiting or being unsteady on her feet.
{¶48} We hold that the State presented sufficient evidence to establish Beard’s
knowledge of J.F.’s substantial impairment. Marissa testified that J.F. needed help
walking from Big Buls to Beard’s car and then to the bathroom in Beard’s studio
apartment. Marissa, Brady, and Beard all testified that J.F. was dry heaving in Beard’s
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OHIO FIRST DISTRICT COURT OF APPEALS
apartment. Marissa and J.F. testified that J.F. vomited. Significantly, Marissa recalled
that J.F. was “laying on the bathroom floor like she couldn’t really hold herself up or
anything.” J.F. was unable to clean herself up after vomiting and had trouble walking.
{¶49} Before Beard left to take Brady to his car, Beard gave J.F. a “puke
bucket” in case she vomited. Brady testified that J.F. was lying “against a cushion” on
Beard’s couch when he left Beard’s apartment. Beard testified that he returned home
from driving Brady to find J.F. with “one boot and one leg of her pants off laying like
catty-corner across” Beard’s bed. J.F. “muttered stuff” and said, “I don’t feel good.”
{¶50} Moreover, Beard told law enforcement that he had told J.F. the next
morning that she had been “throwing up hugging the trash can.” He compared J.F. to
a “floppy fish” at the time he returned to his apartment after dropping off Brady. He
also told officers that J.F. vomited several times, “tumbled headfirst,” and hit her head
in his bathroom. Finally, Beard told the officers that J.F. had struggled to walk to his
truck the next morning.
{¶51} A rational juror could have determined that Beard knew that J.F.’s
ability to consent to sexual intercourse was diminished based on J.F.’s vomiting,
unsteadiness, and behavior throughout the night. Therefore, Beard’s conviction is
supported by sufficient evidence. We overrule the first assignment of error.
B. The weight of the evidence established J.F.’s substantial impairment
{¶52} Beard argues that the jury’s finding that J.F. was substantially impaired
is contrary to the manifest weight of the evidence and maintains that she was not
impaired and the sexual intercourse was consensual.
1. Manifest-weight review
{¶53} To reverse a conviction as against the manifest weight of the evidence,
we “review the entire record, weigh the evidence and all reasonable inferences,
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OHIO FIRST DISTRICT COURT OF APPEALS
consider the credibility of the witnesses, and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage
of justice.” State v. Champion, 2021-Ohio-4002, ¶ 14 (1st Dist.). Reviewing courts
should not sustain manifest-weight challenges except in “exceptional case[s]” where
“the evidence weighs heavily against the conviction.” State v. Nicholson, 2024-Ohio-
604, ¶ 71.
{¶54} Again, a “substantial impairment” is “a present reduction, diminution
or decrease in the victim’s ability, either to appraise the nature of [her] conduct or to
control [her] conduct.” Zeh, 31 Ohio St.3d at 103-104. But the phrase “substantial
impairment,” as used in R.C. 2907.02(A)(1)(c), is “not synonymous with intoxication.”
Foster,
2020-Ohio-1379, at ¶ 44 (8th Dist.); see Doss,
2008-Ohio-449, at ¶ 18 (8th
Dist.) (“there can be a fine, fuzzy, and subjective line between intoxication and
impairment.”).
{¶55} Courts consider several factors to determine whether the evidence
proves a victim’s substantial impairment, including the amount of alcohol consumed
by the victim, whether the victim had difficulty remembering the incident, and
whether there was evidence of “stumbling, falling, slurred speech, passing out, [and]
vomiting.” State v. Lasenby, 2014-Ohio-1878, ¶ 28 (3d Dist.), quoting Hatten, 2010-
Ohio-499, at ¶ 18 (2d Dist.); see Sims,
2023-Ohio-1179, at ¶ 128 (4th Dist.). But “not
‘every case requires proof of an unconscious, vomiting, staggering, or slurring victim.’”
State v. Baikov,
2020-Ohio-4876, ¶ 18 (12th Dist.), quoting State v. Freeman, 2011-
Ohio-2663, ¶ 19 (8th Dist.).
2. Beard’s conviction is not contrary to the weight of the evidence
{¶56} The weight of the evidence, including Marissa’s, Brady’s, and Beard’s
accounts of J.F.’s condition, demonstrated J.F.’s substantial impairment. A victim’s
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OHIO FIRST DISTRICT COURT OF APPEALS
substantial impairment may be proved “by the testimony of people who have
interacted with the victim.” State v. Brady, 2007-Ohio-1453, ¶ 78 (8th Dist.). While
Brady and Beard testified that J.F. did not need assistance walking, Beard described
her as a “floppy fish” to law enforcement and said she struggled to walk the next
morning. Marissa testified that J.F. needed help walking from Big Buls. Marissa and
Brady both testified that J.F. was dry heaving in Beard’s studio apartment. Marissa
testified that J.F. vomited, and Beard told officers that she vomited several times and
“tumbled headfirst” in his bathroom at one point. And Brady and Beard testified that
Beard gave J.F. a trash can in case she needed to vomit.
{¶57} Consistent with Beard’s theory that J.F. was not impaired and
consented to sexual intercourse, Beard emphasizes the absence of alcohol in J.F.’s
uranalysis results, her remark to the SANE nurse that she had consensual sex with
Brady that night, Plotnick’s testimony that J.F.’s alcohol levels were not consistent
with memory loss, testimony that J.F. did not need assistance leaving Big Buls or
getting to Beard’s apartment, Marissa’s and Brady’s decisions to leave J.F. in Beard’s
apartment, and J.F.’s accepting a ride home from Beard.
{¶58} But Topmiller was not surprised that J.F.’s urine test failed to reveal the
presence of alcohol because that test occurred the following afternoon, which was
enough time for J.F.’s body to metabolize and eliminate the alcohol that she had
consumed. While Plotnick expressed skepticism about the association between J.F.’s
calculated BAC and memory loss, J.F. also had consumed a Xanax, which both
Topmiller and Plotnick explained is “additive” and amplifies the effects of alcohol.
{¶59} While J.F. reported to Nurse Rhyan that she’d had consensual sex with
Brady the night before, Caitlyn’s, J.F.’s, and Brady’s testimony reveal that J.F. was
attempting to piece together what happened the night before. And Nurse Rhyan
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that J.F. was not “definitely sure.” J.F. clarified, at trial, that she reported
having consensual sex with Brady because she knew they had kissed and “[Beard] told
me that me and [Brady] had sex.”
{¶60} And while Beard and Brady testified that J.F. did not need help walking
from Big Buls to Beard’s car, “evidence that a rape victim displayed some awareness,
or could ambulate from one location to another, does not negate a finding of
substantial impairment.” Sims, 2023-Ohio-1179, at ¶ 129 (4th Dist.). Beard’s
conviction is not against the weight of the evidence simply because the jury found his
and Brady’s testimony less credible. See State v. Jackson,
2024-Ohio-2728, ¶ 17 (1st
Dist.), quoting State v. Robinson,
2019-Ohio-3144, ¶ 30 (12th Dist.). While credibility
is relevant to a manifest-weight inquiry, the jury “‘is in the best position to view the
witnesses and observe their demeanor, gestures, and voice inflections—observations
that are critical to determining a witness’s credibility.’” State v. Bentz, 2017-Ohio-
5483, ¶ 98 (3d Dist.), quoting State v. Williams,
2013-Ohio-573, ¶ 31 (8th Dist.).
{¶61} Beard’s conviction is not against the manifest weight of the evidence.
The jury was entitled to believe the State’s evidence and disbelieve Beard’s evidence.
We overrule the second assignment of error.
C. The trial court’s comments at sentencing reveal an improper bias
{¶62} In his third assignment of error, Beard challenges two aspects of his
sentence. First, he argues that the trial court’s statements during sentencing illustrate
a bias against Beard based on his exercise of his constitutional right to a jury trial.
Second, he argues that the trial court failed follow R.C. 2929.19(B)’s notice provision.
1. Sentences cannot be enhanced as a “trial tax”
{¶63} The Sixth Amendment to the United States Constitution guarantees a
person accused of a crime the right to a trial “by an impartial jury.” A defendant’s right
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OHIO FIRST DISTRICT COURT OF APPEALS
to a jury trial is “‘a fundamental reservation of power in our constitutional structure.’”
State v. Hand, 2016-Ohio-5504, ¶ 33, quoting Blakely v. Washington,
542 U.S. 296,
305-306 (2004). The jury, as guaranteed by the Sixth Amendment, “stand[s] between
a defendant and the power of the State.”
Id., quoting Shepard v. United States,
544
U.S. 13, 25 (2005) (plurality opinion). The right to a jury trial is an ancient right tracing
back to the common law and “‘guard[s] against a spirit of oppression and tyranny on
the part of rulers,’ and ‘[i]s the great bulwark of [our] civil and political liberties.’”
Apprendi v. New Jersey,
530 U.S. 466, 477 (2000), quoting 2 J. Story, Commentaries
on the Constitution of the United States, 540-541 (4th Ed. 1873).
{¶64} In Ohio, a trial court fashioning a criminal defendant’s sentence must
be “guided by the overriding purposes of felony sentencing.” R.C. 2929.11(A). A
sentence must be consistent with “the seriousness of the offender’s conduct and its
impact upon the victim.” R.C. 2929.11(B). To determine the seriousness of the
defendant’s conduct, the trial court must consider the severity of the harm suffered by
the victim because of the offense. R.C. 2929.12(B)(2). The defendant’s likelihood of
recidivism is relevant to the defendant’s sentence, and the defendant’s lack of “genuine
remorse for the offense” is indicative of the potential to recidivate. R.C. 2929.12(D)(5).
{¶65} The United States Supreme Court has held that “a sentencing authority
may legitimately consider the evidence heard during trial, as well as the demeanor of
the accused.” United States v. Grayson, 438 U.S. 41, 50 (1978). Ohio’s sentencing
statutes “do not preclude the sentencing court from considering serious misbehavior
by a defendant as observed by the sentencing court during trial.” State v. O’Dell,
45
Ohio St.3d 140, 147 (1989). Citing Grayson, the Supreme Court of Ohio held that
“when a sentencing judge is the same judge who presided over the defendant’s trial,
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OHIO FIRST DISTRICT COURT OF APPEALS
the defendant’s act of lying under oath is a factor that may be considered along with
other pertinent factors when imposing sentence.” O’Dell at 148.
{¶66} But a trial court may not “punish a person because he has done what the
law plainly allows.” State v. Rahab, 2017-Ohio-1401, ¶ 8, quoting Bordenkircher v.
Hayes,
434 U.S. 357, 363 (1978). A sentence is contrary to law (and constitutes an
impermissible “trial tax”) when the trial court “vindictively imposed [the sentence] on
a defendant for exercising his constitutional right to a jury trial.”
Id.
{¶67} Ohio courts employ a two-part test to cases where the trial court
“creat[es] the appearance that it enhanced a defendant’s sentence because he elected
to go to trial.” State v. Morris, 2005-Ohio-962, ¶ 13 (4th Dist.), quoting State v. Hobbs,
2003-Ohio-4338, ¶ 71 (8th Dist.). When a trial court’s statements create an inference
that the trial court impermissibly imposed a trial tax when sentencing the defendant,
we must vacate the sentence unless the record includes “an unequivocal statement that
the defendant’s decision to go to trial was not considered in imposing the sentence.”
Id. In doing so, we must “review the entire record—the trial court’s statements, the
evidence adduced at trial, and the information presented during the sentencing
hearing[.]”
Rahab at ¶ 19. A court may vacate a sentence based on a “trial tax,” only
when the evidence clearly and convincingly shows that the trial court impermissibly
imposed the sentence based on vindictiveness. See
id.
{¶68} Ohio courts have vacated sentences as impermissibly vindictive where
the trial court explicitly connected the harsher sentence to the defendant’s decision to
go to trial. In one case, the trial court told the defendant:
[Y]ou had an opportunity to do the right thing, which is to admit your
culpability, and you did not do it . . . I want you to know, had he been
willing to enter a plea on this case, he would have been afforded
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OHIO FIRST DISTRICT COURT OF APPEALS
probation. He wouldn’t have gone to the institution. But now you’re
going to the institution.
State v. Scalf, 126 Ohio App.3d 614, 623 (8th Dist. 1998). The Scalf court held that
“these remarks create the appearance that defendant was given a more severe sentence
in order to punish him for exercising his right to a trial” and vacated the sentence.
Id.
{¶69} Another sentence was determined to be the result of vindictiveness
where the trial court was “angry that [the defendant] elected to go to trial,” and
described the defendant as “try[ing] to jam up the system” and wasting taxpayer
dollars. Morris at ¶ 14. Critically, the trial court in Morris referenced the defendant
“ple[ading] not guilty and [having] ‘put the State to the test and they have proven it’”
as an aggravating factor for the defendant’s sentence.
Id. The Morris court held that
these statements revealed a jury-trial enhancement of the defendant’s sentence and
nothing in the record suggested otherwise. Id. at ¶ 15. So, it vacated the sentence and
remanded the case for resentencing. Id.
{¶70} And a sentence was held to be the product of vindictiveness where the
trial court remarked to the defendant that a guilty defendant’s choice to have his case
tried by a jury was an “abuse” and a waste of the jurors’ time. State v. Fritz, 2008-
Ohio-4389, ¶ 31 (2d Dist.). The Fritz court vacated the sentence because the trial
court’s “comments suggest[ed] that a trial by jury is an option available only for those
who are innocent and not a constitutional right.” Id.
2. The trial court’s statements indicated a “trial tax”
{¶71} The trial court imposed an indefinite 11-to-16-and-a-half-year
sentence, the maximum sentence for a first-degree felony under R.C. 2929.14(A)(1)(a).
{¶72} At the sentencing hearing, J.F. addressed the trial court and thanked
her family for appearing at court “because I know this has been hard on them just as
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OHIO FIRST DISTRICT COURT OF APPEALS
much as it has been hard on me.” The trial court commended J.F. for assisting in the
prosecution because “a lot of time [the victims] won’t show up for trial” and “will give
up because they are so frightened.”
{¶73} Before announcing its sentence, the trial court remarked that Beard “put
[J.F.] through” three difficult experiences:
So first she gets raped, then on, it’s horrible, and then she goes to the
hospital, which that’s a horrible thing. Then she has to go over it with
[law enforcement]. Then she has to come in, in front of the Grand Jury.
Then she has to come in and talk about it again in front of all the jurors,
which is tough, but she did it.
He could have avoided all of that by taking that plea to obstructing
justice, a Felony 3, and he would not have to register. It would keep her
off the stand. So he punished her.
His continued denial caused her to go through this over again, which is
horrible, as you know.
(Emphasis added.)
{¶74} The trial court chastised Beard for failing to admit his guilt and
“victimiz[ing] [J.F.] again” when J.F. “had to listen to [Beard] lie about that.” Because
of Beard, J.F. “had to testify in front of 12 people.” Beard “had the opportunity to plead
this out, wouldn’t do it.” Beard
victimized [J.F.] again[] and then victimized her this last time by telling
this horrible, creepy story about how–you know, what planet are you on
that you think anybody would believe that story, anybody would believe
this attractive woman would ever have sex with you voluntarily. No way.
You are creepy. No way this woman would have anything to do with you.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶75} Some of the trial court’s statements at the sentencing hearing address
Beard’s lack of remorse and J.F.’s fortitude. A defendant’s lack of remorse is relevant
to a sentencing decision. But a defendant’s decision to plead not guilty and elect to
have the State try its case before a jury is irrelevant to sentencing. The trial court’s
repeated references to Beard’s decision to refuse to accept a guilty plea and instead
exercise his Sixth Amendment right to a jury trial reveal that a vindictive or retaliatory
motive influenced the trial court’s sentence.
{¶76} A defendant’s “constitutional right to require the Government to
proceed to a conclusion of the trial and to establish guilt by independent evidence
should not be exercised under the shadow of a penalty. . . . To impose upon a defendant
such alternatives amounts to coercion as a matter of law.” United States v. Tateo, 214
F.Supp. 560, 567 (S.D.N.Y. 1963). As other courts have observed, “‘courts must not use
the sentencing power as a carrot and stick to clear congested calendars, and they must
not create an appearance of such a practice.’” State v. Elson,
311 Conn. 726, 775 (2014),
quoting United States v. Stockwell,
472 F.2d 1186, 1187 (9th Cir. 1973).
{¶77} The trial court’s imposition of the maximum sentence, on its own, was
not problematic. Had it been clear that the trial court considered only the evidence,
Beard’s lack of remorse, and Beard’s trial behavior, the trial court would have been
well within its discretion in imposing the maximum sentence. We hold, however, that
because the trial court indicated that its sentence was based on Beard’s election for a
jury trial, that sentence was contrary to law. We sustain the third assignment of error,
vacate Beard’s sentence, and remand this cause for resentencing.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶78} We overrule the first two assignments of error and affirm the conviction.
We sustain the third assignment of error, vacate the sentence, and remand the cause
to the trial court for a resentencing hearing consistent with this opinion.
Judgment accordingly.
KINSLEY, P.J., and MOORE, J., concur.
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