A person who has a permanent mental condition can be considered “substantially impaired” under a state rape law, the Supreme Court of Ohio ruled today.

In a unanimous opinion, the Supreme Court affirmed the conviction of Mark Gasper for raping a 32-year-old woman with cerebral palsy and intellectual disabilities. Gasper was indicted in 2019 on seven counts of rape. A Hamilton County Common Pleas Court jury found him guilty of one count and acquitted him of the other six.

In his appeal, Gasper argued the trial judge failed to properly instruct the jury. Gasper maintained the jury, without further explanation from the judge, determined the victim was impaired because muscle relaxers the woman took regularly made her drowsy.

Because the prosecutor never argued the victim was temporarily impaired by the medication, Gasper asserted he was entitled to a new trial where he could respond to the impact of the medication.

Writing for the Court, Justice Patrick F. Fischer explained the instructions to the jury regarding substantial impairment are based on a 1987 Supreme Court of Ohio decision. The decision found substantial impairment can be based on evidence of a permanent mental condition reducing, diminishing, or decreasing the victim’s abilities at the time of the offense.

The jury was not asked and did not explain its decision to convict Gasper, Justice Fischer wrote. The trial judge gave the correct jury instruction, and the jury could have concluded from the evidence the woman was substantially impaired by a permanent mental condition.

The Court affirmed the decision of the First District Court of Appeals, which upheld Gasper’s conviction.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined Justice Fischer’s opinion. Sixth District Court of Appeals Judge Charles E. Sulek also joined the opinion. Justice Joseph T. Deters did not participate in the case.

In a concurring opinion, Justice Donnelly wrote the Court only addressed Gasper’s claim the standard jury instructions violated state law. Gasper did not challenge whether the judge’s failure to further explain to the jury whether it could consider the effects of the medication on the victim violated Gasper’s right to a fair trial. Because Gasper did not raise the issue, the Court could not “reach those important claims,” he stated.

Justice Brunner joined Justice Donnelly’s opinion.

In-Home Nurse Charged With Rape
Gasper was employed by a family with disabled children to serve as an in-home licensed practical nurse. Also living in the home was the adult sister of the children under Gasper’s care. The woman, identified as “K.W.,” had a long-term sexual relationship with Gasper.

Gasper was charged with seven counts of rape in violation of R.C. 2907.02(A)(1)(c), which prohibits sexual conduct with a person whose ability to resist or consent is “substantially impaired because of a mental or physical condition.” The prosecutor’s office notified Gasper it was not relying on K.W.’s physical condition, but would pursue all charges based on a substantial mental impairment.

During the trial, the evidence presented regarding the first count of rape centered on Gasper and K.W.’s first sexual encounter when  K.W. took Baclofen, a medication she routinely used to reduce muscle spasms. The drug tended to make her drowsy.

The jury also heard from competing expert witnesses. One expert for the prosecution testified K.W.’s mental capacity was impaired, and she could not consent to sex. An expert for Gasper testified K.W. was intellectually able to consent.

Jury Questioned Instructions
The jury was presented with a standard jury instruction published in “Ohio Jury Instructions.” The publication notes the instruction regarding “substantial impairment” is based on the Supreme Court’s 1987 State v. Zeh decision. Based on Zeh, the instruction states, “’Substantially impaired’ means a present reduction, diminution, or decrease in the victim’s ability either to appraise the nature of [her] conduct or to control [her] conduct.”

As the jury deliberated on the charges against Gasper, jurors submitted a question to the trial judge. The jury asked, “Does medication come into consideration when evaluating or assessing mental condition?” The judge did not answer the question and directed the jury to use the instructions it had been given. About 30 minutes later, the jury found Gasper guilty on the first count, but not the rest of the charges.

Gasper requested the judge acquit him of the guilty charge or order a new trial. He asserted the verdicts were “substantially and logically inconsistent” and could not all be based on the prosecutor’s theory that K.W. suffered from a permanent mental impairment. He maintained the medication issue, which he was not prepared to address, is the only explanation for the inconsistent verdicts.

The trial court denied Gasper’s request, and he appealed to the First District. Gasper appealed the First District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Jury Instruction
Gasper’s single argument to the Supreme Court was that the standard jury instruction is flawed because it implies the term “substantial impairment” relates only to a temporary condition. Gasper maintained that instruction opened the door to the jury improperly considering K.W. as being drowsy based on taking her usual, prescribed medication. Impairment by medication was not the prosecutor’s theory of the case, and he was not given an opportunity to challenge a charge based on impairment by medication.

Justice Fischer explained Gasper’s argument that “substantial impairment” means only temporary impairment is based on the term “present” when the instructions explain that “substantial impairment” means “a present reduction, diminution, or decrease in the victim’s ability.”

The Court explained the ruling in Zeh did not indicate “present” means temporary, but rather “present” means the impairment existed at the time of the events in question.

“Gasper fails to identify any decision or other source (outside of his own argument) indicating that this language from Zeh has caused confusion for anyone in the 37 years since that decision was announced,” the opinion stated.

Substantial impairment is established when evidence shows a reduction, diminution, or decrease in the victim’s ability was present when the offense occurred. The impairment can be either temporary or permanent, the opinion stated, and the Court ruled there is no need for the jury instruction to elaborate any further.

The Court explained the evidence at the trial included expert testimony that K.W. was substantially impaired and Gasper knew or had reasonable cause to know K.W. was substantially impaired. The jury was not asked to explain why its verdicts differed on the charges, and Gasper did not object to the jury's instruction during the trial.

“We will not speculate about why the jury found Gasper guilty on Count 1 but not guilty on the other six counts,” the opinion stated.

Concurrence Questioned Basis For Appeal
In his concurrence, Justice Donnelly wrote separately to “express a certain frustration with the case’s outcome.”

After the jury presented the question whether it could consider the effects of the medication to the trial judge, the judge heard arguments from Gasper and the prosecutor regarding the jury instructions. Gasper told the judge to instruct the jury not to consider the medication’s effect because doing so would fundamentally change the prosecution’s theory about how K.W. was substantially impaired.

Citing the U.S. Supreme Court’s 1984 Strickland v. Washington decision, Justice Donnelly stated a constitutionally fair trial is one that tests the evidence based on issues defined in advance of the proceeding. And while Gasper had argued that the trial judge’s failure to answer the jury’s question whether it could consider the effect of the medication on the victim violated Gasper’s right to due process and a fair trial, Gasper’s appeal here only took issue with the language of the “substantial impairment” jury instruction.

“The question as presented does not implicate whether the trial court’s actions during the jury deliberations violated Gasper’s constitutional rights,” the concurrence stated.

Justice Donnelly urged “advocates preparing appeals” to the Supreme Court to avoid situations such as Gasper’s by crafting legal propositions that “properly and completely” address the legal errors that they will argue.

2023-0786. State v. Gasper, Slip Opinion No. 2024-Ohio-4782.

View oral argument video of this case.

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