A Hamilton County jury had sufficient evidence to convict a night supervisor at a home for the blind of sexually fondling a resident with developmental disabilities, the Supreme Court of Ohio ruled today.

A divided Supreme Court found a jury could infer from the evidence presented that the supervisor’s awareness of the woman’s blindness, coupled with her inability to consent to sexual activity, led him to know she was “substantially impaired” when he improperly touched her. The decision reversed a First District Court of Appeals decision, which dismissed one of his two convictions on misdemeanor sexual imposition charges.

In the Court’s lead opinion, Chief Justice Sharon Kennedy stated that blindness alone may not meet the substantial impairment standard of the sexual imposition law, but when coupled with a lack of capacity to consent to sexual activity, a victim’s blindness does substantially impair a victim because the person cannot appraise the nature of or control the sexual contact. The opinion reinstated Joel Jordan’s March 2021 conviction.

Justice R. Patrick DeWine joined Chief Justice Kennedy’s opinion. Second District Court of Appeals Judge Christopher Epley, sitting for Justice Joseph T. Deters, also joined the chief justice’s opinion. Justice Patrick F. Fischer concurred in judgment only.

In a dissenting opinion, Justice Melody Stewart wrote that the Supreme Court was asked only to rule on whether the victim’s blindness constituted “substantial impairment” under the sexual imposition law. The record indicated the prosecution failed to show the required connection between Jordan’s knowledge of the victim’s limited vision and her ability to appraise the nature of or control Jordan’s conduct, Justice Stewart stated. She maintained the Supreme Court should have considered the case improvidently accepted and let Jordan’s conviction on one of the two sexual imposition charges stand.

Justice Michael P. Donnelly joined Justice Stewart’s opinion. Justice Jennifer Brunner partially joined Justice Stewart’s position, stating that she agreed that the case was improvidently accepted.

Supervisor Lures Resident to His Room to Assess Her Weight
In 2019, Jordan had been the night supervisor at the Samuel Bell Home for the Sightless, a residential facility for legally blind individuals, for about 13 months. His duties included serving refreshments to the residents in the evening and lunch and dinner on the weekends. As part of his compensation, Jordan was provided an apartment in the Bell House. Through his meal service duties, Jordan got to know a resident, identified in court records as “S.W.” S.W. had lived at Bell House for about four years. S.W. was legally blind, with no vision in her left eye and limited vision in her right eye. She testified that she could see about six to ten feet in front of her.

In March 2019, Jordan commented on S.W.’s low weight and offered to measure and weigh her. When S.W. could not find a tape measure in the Bell House fitness room, Jordan suggested she come to his apartment so he could measure her there. Inside the apartment, Jordan tried to read the tag on S.W.’s pants to determine her size. Jordan professed an inability to see the tag and asked S.W. to take off her pants. Jordan also squeezed S.W.’s breasts as she undressed, telling her he was trying to determine her bra cup size. He also touched her genitals, and she slapped his hand away.

S.W. said she felt uncomfortable, quickly dressed, and left the room. As S.W. was leaving, Jordan told her, “It’s our little secret.” S.W. called her parents immediately and asked whether she suffered a sexual assault.

After an investigation, Jordan was charged with two counts of sexual imposition: one under R.C. 2907.06(A)(1) and another under R.C. 2907.06(A)(2). Under the first provision, a person is guilty of sexual imposition if the “offender knows that the sexual contact is offensive to the other person.” The second provision requires that the “offender knows” the other person’s “ability to appraise the nature of or control of the offender’s” conduct is substantially impaired.

Jurys Heard Conflicting Version of Events
A Hamilton County Municipal Court jury heard testimony from S.W., Jordan, and other witnesses and watched surveillance footage of some of the interactions between Jordan and S.W. at the Bell House. At the trial, both parties stipulated to a psychologist’s report that S.W. lacked the capacity to consent to sexual activity. But Jordan denied having any sexual contact with S.W.

The jury found Jordan guilty on both counts. For sentencing purposes, the trial court merged the charges and sentenced Jordan only on the violation of R.C. 2907.06(A)(2), which required that Jordan knew S.W. was substantially impaired.

Jordan appealed his conviction to the First District Court of Appeals. The First District reversed the conviction, finding the Hamilton County Prosecutor’s Office did not provide sufficient evidence to prove Jordan knew that S.W. was substantially impaired. The appeals court found that S.W. was not substantially impaired by her blindness. The court noted that individuals with visual limitations generally can consent to sexual activity, and the record did not show a connection between S.W.’s limited vision and her inability to appraise or control Jordan’s conduct.

In a 2-1 decision, the First District reversed the conviction related to substantial impairment and directed the trial court to sentence Jordan on the remaining sexual imposition conviction.

The prosecutor’s office appealed the First District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Reviewed Lower Court’s Findings
Chief Justice Kennedy explained that when Jordan appealed his sentence to the First District, he challenged the “sufficiency of the evidence” to prove that he knew S.W. was substantially impaired. When presented with that type of challenge, the appeals court is to consider if “any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt” when the evidence is viewed in a light most favorable to the prosecution. Her opinion noted that the standard does not allow the appeals court to weigh the evidence in the case or ask whether the evidence should be believed. She explained that the appeals court must only determine whether the evidence, if believed by the jury, would be enough to convict Jordan. The lead opinion stated the Court needed to determine if under R.C. 2907.06(A)(2), Jordan knew that S.W. was unable to control his sexual contact by her blindness and inability to consent to sexual activity.

The term “substantial impairment” is not defined by the law, the Court noted, so it turned to Webster’s Third New International Dictionary to determine whether blindness is a form of substantial impairment under the plain meaning of the words. The Court found that “blindness substantially impairs a person because blindness is a substantive, nonimaginary diminution in the excellence or strength of a person’s vision.”

“In the context of R.C. 2907.06(A)(2), blindness diminishes the blind person’s ability to defend against unwanted sexual contact by another, because the blind person cannot see the impending, unwanted sexual contact,” the opinion stated.

The lead opinion clarified that “non-spousal sexual contact with a blind person” is not a “per se violation of R.C. 2907.06(A)(2).” The lead opinion stated that whether sexual contact with a blind person constitutes sexual imposition under the law must be determined on a case-by-case basis. For S.W., her blindness, coupled with her inability to consent to sexual activity, constituted substantial impairment, the Court stated.

The opinion stated that the jury was in the best position to determine whether the prosecution produced enough evidence to prove that Jordan knew S.W. was substantially impaired. The jury heard Jordan’s and S.W.’s versions of events as well as reviewed other evidence, the opinion noted. The Court concluded there was sufficient evidence for the jury to believe Jordan was guilty beyond a reasonable doubt.

Court Created Questionable Definition to Decide Case, Dissent Argues
In her dissent, Justice Stewart wrote that the lead opinion reached its desired outcome by using a statutory interpretation analysis to define blindness as substantial impairment “even though neither party has suggested that such an inquiry is necessary and that analysis creates more questions than it resolves.”

Justice Stewart noted it is unclear whether S.W.’s visual impairment would fall under the lead opinion’s definition of blindness because S.W. testified she could see six to 10 feet in front of her. In the context of the case, the prosecution presented no evidence that S.W.’s visual impairment played a role because nothing indicated that Jordan tried to use her visual impairment to catch her by surprise.

“Instead, the evidence shows that Jordan used the ruse of being concerned about S.W.’s weight to manufacture the encounter,” the dissenting opinion stated.

The dissent argued that the evidence shows S.W. could visually appraise Jordan’s conduct. She slapped his hand away when inappropriately touched and was able to leave the room. The Court was not asked to determine if Jordan knew that S.W.’s intellectual disability led to substantial impairment, which the Court used to reverse the First District’s opinion, the dissent stated. The prosecution only asked the Court to consider her blindness as a substantial impairment, and the Court was not justified in overruling the First District’s decision on that point, the dissent concluded.

2022-0736. State v. Jordan, Slip Opinion No. 2023-Ohio-3800.

View oral argument video of this case.

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