State v. Gasper

1

2023-Ohio-1500

STATE OF OHIO, Plaintiff-Appellee, v. MARK GASPER, Defendant-Appellant.

No. C-220218

Court of Appeals of Ohio, First District, Hamilton

May 5, 2023

Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1905677

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.

OPINION

Bock, Judge

{¶1} A jury found defendant-appellant Mark Gasper guilty of raping K.W. We affirm Gasper's conviction.

I. Facts and Procedure

{¶2} K.W., a 36-year-old woman, has cerebral palsy and intellectual disabilities. Her parents adopted multiple children with developmental disabilities. They hired Gasper to care for K.W.'s severely developmentally-challenged siblings.

{¶3} Gasper inadvertently sent a text message to K.W.'s father, which revealed that Gasper and K.W. were engaging in sexual conduct.

{¶4} In November 2019, the state indicted Gasper on seven counts of rape under R.C. 2907.02(A)(1)(c), which prohibits sexual contact with a person who cannot consent because of a substantial impairment. Specifically, the state accused Gasper of engaging in sexual contact with K.W., "and K.W.'s ability to resist or consent was substantially impaired because of a mental or physical condition * * * and [Gasper] knew or had reasonable cause to believe that K.W.'s ability to resist or consent was substantially impaired."

Both parties raised Daubert challenges

{¶5} The court appointed Dr. Thaddeus Nestheide, the Hamilton County Department of Disability Services ("DDS") supervising psychologist, to assess K.W.'s ability to consent to sexual activity. Gasper enlisted his own expert, Dr. Carla Dreyer.

{¶6} Both the state and Gasper asked the court to exclude the other party's expert. Gasper challenged Nestheide's use of the General Sexual Knowledge Questionnaire ("GSKQ") as a tool to determine whether K.W. possessed appropriate sexual knowledge to consent to sexual activity. The state asserted that Dreyer's testimony was inadmissible under Evid.R. 702(C) because she "did not perform a scientifically reliable evaluation of the victim."

{¶7} Dreyer assessed K.W. by reviewing court filings, Gasper's statements, investigation reports, an interview with K.W. at the Mayerson Center for Safe and Healthy Children at the Cincinnati Children's Hospital Medical Center, and Nestheide's report. She testified that she did not do any psychological testing, but "clinical interview and reviewed information [sic] [as this method is] consistent with the practice." Because Nestheide had conducted an intelligence test on K.W., Dreyer felt that there was "no indication that there would have been a change in [K.W.'s] intellectual or cognitive functioning since that assessment * * * [a]nd the Vineland was similar in that regard." Regarding Nestheide's reports, Dreyer only disapproved of Nestheide's use of the GSKQ as she believed that it was not widely accepted by psychology professionals. Though Dreyer agreed that K.W.'s "intellectual functioning, although not formally measured during [Dreyer's] assessment, is estimated to be in the Borderline range," she concluded that K.W. was able to consent to sexual activity because K.W. did not have a substantial impairment due to a mental condition.

{¶8} Dr. Nestheide conducted an updated I.Q. assessment and adaptive behavior tests to determine K.W.'s overall level of functioning and used several tests to determine whether K.W. could consent to sexual activity. The Mini-Mental Status Exam ("MMSE-2") is a "quick kind of screener to see how someone is functioning, if they're oriented to the situation." The Wechsler is "the most commonly used standardized intelligence test" and provides "a full-scale IQ score * * * across a bunch of domains," which are "verbal comprehension, working memory, and processing speed." The Vineland is "an adaptive behavior assessment that looks at daily living skills and intellectual assessment," which "is part of the DSM definition and criteria for intellectual disability." Adaptive behavior is "defined as the performance of daily activities required for personal and social sufficiency."

{¶9} Nestheide testified that the GSKQ is not used just for sex offenders, as stated by Dreyer. A 2017 paper entitled "Quantitative Assessment of Sexual Knowledge and Consent Capacity in People with Middle to Moderate Intellectual Disability" identified the GSKQ as a commonly-used tool to assess sexual knowledge.

{¶10} Nestheide testified that K.W. does not have the ability to consent to sexual activity, adding that K.W. "presents as quite normal," "will struggle socially" as she had not had a lot of relationships or experience with relationships, people "can overlook the challenges that she might have," and people like K.W. are "definitely" a "more vulnerable" group. Nestheide concluded that K.W. has borderline intellectual functioning, which impairs "her ability to deal with unfamiliar circumstances or stressful situations, such as those allegedly performed by [Gasper]." He further testified that K.W. is a "concrete thinker" and takes what people say literally. "If someone says I'm going to do this thing, I think that she would hear that as something will actually happen."

{¶11} The trial court permitted both Dreyer and Nestheide to testify about their respective tests and opinions involving K.W.'s ability to consent to sexual activity.

K.W. testified about Gasper's actions

{¶12} One evening in the fall of 2017, K.W. had taken Baclofen, her nightly medication to relieve muscle spasms, which made her sleepy. K.W. said that she had fallen asleep on the couch in the basement near her bedroom when:

** * the next thing I knew, I thought [Gasper] was getting me up to * **walk me to my room * * * as I thought he was walking me to my bed, we started walking over by the table. And I couldn't figure out * * * I was trying to figure out why.

{¶13} According to K.W., she turned her head away when Gasper tried to kiss her. He kept asking her to spread her legs and he put his hands down her pants but she "kept trying to hold them closed" and she could not "remember how many times." She stated, "Finally I just gave in because I knew he wasn't going to quit." K.W. testified that she kept saying, "Honor thy Father and Mother" as Gasper was pulling her pants down. Gasper performed oral sex on K.W. She testified that she "didn't ask for that first night when I thought he was taking me to my bedroom so I wouldn't fall because I had taken my medicine. I didn't know he was going to do that to me."

{¶14} Gasper and K.W. engaged in additional sexual encounters. Some were at her house and others were at his house. These encounters continued for more than a year.

{¶15} K.W. asserted that she did things which she was uncomfortable doing because of her fear. But she did not show her discomfort in order "to please him." She testified that she was concerned about pleasing him because, "I guess I was scared." K.W. did not tell her friends about the sexual encounters because she felt "ashamed for some reason." K.W. repeatedly said she was fearful, asserting that Gasper caused her to fear that he would do something to her siblings or mother.

{¶16} K.W. testified that Gasper wanted to take her to Tennessee to live, but she told him that she would miss her family and her dog, Candy. When Candy died, K.W. believed Gasper had killed Candy to get her out of the way so that K.W. would move to Tennessee with him. K.W. stated that Candy died trying to protect K.W. from Gasper. Eventually, Gasper's counsel objected to this line of testimony. The court overruled the objection, finding that the testimony was "part and parcel of the charges" due to K.W.'s testimony about Tennessee.

{¶17} Because K.W. was developmentally delayed as a child, DDS referred her to the Mayerson Center for an interview with a clinical social worker after her father learned of the sexual encounters.

State introduced evidence of K.W.'s intellectual disabilities

{¶18} A 2003 letter from K.W.'s pediatric neurologist stated that K.W.'s I.Q. was 66 and she "associates better with 12-year-old peers than same-aged peers."

{¶19} D.W. (K.W.'s father) testified that K.W. is "mentally about 14 years old." D.W. discussed the physical and developmental issues that K.W. had experienced growing up. He said that K.W. was in special classes in school, had participated in programs designed to help developmentally-disabled individuals get jobs and strive for independence, and had been collecting supplemental social security income ("SSI") since she was 21 (after the adoption subsidy ran out). D.W. testified that K.W. was unable to obtain a driver's license or employment despite the training due to her developmental delays.

{¶20} K.W. testified about her developmental delays, stating that she should never have been disconnected from DDS services. K.W. stated, "The thing with cerebral palsy and intellectual disabilities and mental challenges, I don't understand everything and I don't remember everything. I have short-term memory loss. I was in special classes at school." K.W. discussed Project Search and the Developmental Disabilities Behavioral Pediatrics Clinic, where she trained in hopes of becoming employed. K.W. had never been able to secure a job. K.W. was very involved with the Special Olympics.

{¶21} K.W. struggled to explain concepts. When explaining the first night that she and Gasper engaged in intercourse, she stated "Well this was the first night of actual-I guess everybody has been calling it intercourse." When...