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9th District appellate court reverses sexual battery verdict
TRACEY BLAIR
Legal News Reporter
Published: March 21, 2019
A Lorain County trial court erred by adopting the jury’s verdict finding a defendant guilty of sexual battery against the manifest weight of the evidence, the 9th District Court of Appeals ruled recently.
Defendant David K. Hansing owned two restaurants in Amherst that occupied a single building and shared a kitchen. One side of the business was called Stubby’s, a pub that specialized in craft beer. The other side was an upscale eatery known as Corks.
J.G. worked at Stubby’s as a bartender. Court records show that on Sept. 5, 2014, early in the morning after closing, Hansing asked J.G. to stay after her shift and do a liquor tasting so she could better describe the products to customers.
At the end of her shift before the tasting, J.G. had a beer and a shot of tequila. Over about an hour time span, Hansing served J.G. – who had a self-admitted high tolerance for alcohol - six or seven drinks of liquor and a few beers.
The two disagreed on the quantity of the samples. Hansing claimed it was a small sample of the liquors plus two shots of tequila, while J.G. said all the portions were equivalent to shots.
Before the last drink, Hansing put his hand on J.G.’s leg under her dress while she was standing on the bar to get a bottle from the top shelf. He again touched her leg under her dress while she was standing on the bar. Hansing then picked her up, put her on his shoulder and carried her around.
After putting her down, J.G. went to the bathroom. She claimed Hansing followed her in there and sexually assaulted her in a nearby hallway. Hansing said the conduct was consensual.
No one else was in the building at the time. The surveillance video in the business abruptly stopped recording just before J.G. went to the bathroom and did not begin recording again until almost 10 a.m.
Hansing was indicted on one count of rape, three counts of kidnapping and one count of sexual battery.
The jury found Hansing not guilty of rape and kidnapping but guilty of sexual battery. Hansing’s motion for a Crim.R. 29 acquittal was denied at sentencing, and he was sentenced to one year in prison.
On appeal, Hansing argued that the weight of the evidence does not support J.G. was substantially impaired or that he knew she was.
The appellate court agreed.
Ninth District Judge Donna J. Carr’s opinion noted that none of the surveillance video played for the jury had any audio, and that both the alleged victim and appellant denied turning the recording device off when it stopped recording.
However, in the surveillance video, Judge Carr noted that J.G. does not appear to be substantially impaired or have difficulty maintaining her balance while on the bar.
In addition, Angela, who was the banquet coordinator for Cork’s and Stubby’s, testified for the defense that she had seen J.G. intoxicated before and everyone agreed that J.G. could drink a lot.
J.G. admitted she was able to get up onto the bar with no problem, but maintained she was intoxicated.
Hansing testified in his own defense, claiming J.G. told him that “tequila makes (my) clothes fall off,” which he viewed as an “open invite.”
The panel found the totality of evidence makes it difficult to conclude J.G. was visibly impaired, let alone substantially impaired.
“J.G. did seem to have difficulty at trial recalling certain details and testified that she did not remember the specifics, such as the types of alcohol they consumed; instead, she only remembered events,” Judge Carr wrote. “Nonetheless, there is no question that J.G. did not black out before or after the alleged assault and the record is clear that she remembered quite a lot about the events of that early morning despite her assertions that she was very drunk and intoxicated.”
The weight of the evidence also does not support that Hansing knew or should have known that J.G.’s ability to control her conduct was substantially impaired.
“Multiple witnesses that knew J.G. testified that she did not even appear intoxicated or drunk,” Judge Carr said in her opinion. “While Hansing’s behavior that morning, especially as J.G.’s employer, was certainly not appropriate or admirable, our duty is to review whether the weight of the evidence amounts to a violation of a criminal statute. Here, we cannot say that it does. Thus, we can only conclude that the jury did lose its way in finding Hansing guilty of sexual battery as specified in R.C. 2907.03(A)(2).”
The case, cited State v. Hansing, 2019-Ohio-739, was remanded.
Appellate judges Thomas Teodosio and Jennifer Hensal concurred.