Youngstown Daily Legal News

Rapist loses appeal as victim is ruled mentally impaired

JESSICA SHAMBAUGH
Special to the Legal News
Published: June 19, 2014

A 12th District Court of Appeals panel recently affirmed a man’s rape convictions after finding the state properly showed his victim had a mental condition that impaired his ability to consent.

Daniel Kilbarger was indicted on four counts of rape and five counts of gross sexual imposition in October 2012 based on his sexual relationship with a family member.

The alleged victim was a mentally impaired young man with an IQ below 70.

The state claimed that the young man was 16 years old when the abuse began and 19 years old when it stopped.

A jury in the Fayette County Court of Common Pleas found Kilbarger guilty of all counts as charged.

The trial court sentenced him to 22 years in prison and classified him as a Tier III sex offender.

Kilbarger appealed his convictions to the 12th District, assigning only one proposition of law.

“Appellant argues his conviction for rape and gross sexual imposition was against the manifest weight of the evidence because the state failed to prove that the victim’s ability to consent was substantially impaired because of a mental condition,” Judge Michael Powell wrote on behalf of the three-judge appellate panel.

After reviewing the applicable statutes, the panel determined that both rape and gross sexual imposition require the victim’s ability to resist or consent to be “substantially impaired because of a mental or physical condition” and the offender to be aware of that condition or have reasonable cause to suspect such a condition.

“Substantial impairment may be proven by the victim’s own testimony, allowing the trier of fact to observe the victim’s ability to either appraise or control his conduct, and by the testimony of others who have interacted with the victim,” Judge Powell stated.

In Kilbarger’s case, the court ordered David Hrinko, a psychologist, to evaluate the victim and determine his ability to consent with consideration for his mental conduction.

Hrinko testified the young man “suffered from a cognitive disability” and was significantly below the average level of cognitive functioning.

The doctor described him as “a little slow mentally” and retarded on some level, either mildly or moderately.

Hrinko explained that the victim had trouble grasping abstract ideas, such as whether a parent was a good parent or a bad one.

He emphasized that the victim struggled to understand the implications of his choices and would therefore have difficulty making reasonable decisions.

“As a result, I felt that he was not capable of making a reasonable and well informed decision about whether or not to engage in sexual activities,” Hrinko reported.

Peggy Zimmerman also testified for the state.

She said she was the special education director for Washington Court House City Schools and testified the victim started attending her schools in ninth or 10th grade.

She said the victim could not follow the core curriculum, make a grocery list and would write a simple letter rather than taking an English course.

Zimmerman testified the victim’s IQ was 70 or below and he had to take an alternate assessment form of the Ohio Graduation Test to graduate high school.

Upon his graduation, she said she recommended that he be placed under guardianship.

Nevertheless, Kilbarger asserted that the victim was not substantially impaired because he had a checking account and a cell phone, he could play basketball and understand the rules and he was an excellent video game player who could read the instructions and “look up advantageous codes online.”

Kilbarger also insisted the victim enjoyed his company and never told anyone otherwise, even after the sexual abuse started.

“We find that the foregoing evidence is ‘not particularly probative’ on the issue of whether, at the time of the rape and gross sexual imposition incidents, ‘the victim had the ability to appraise the nature of the sexual conduct that occurred,’” Judge Powell stated.

The judges also found the victim offered testimony that directly conflicted Kilbarger’s arguments.

Specifically, he said Kilbarger opened the checking account for him and he no longer had access to it or to his cell phone.

He told the court he did play basketball but it was for the Special Olympics and he was unsure if the rules were the same as those governing professional basketball.

Furthermore, he said Kilbarger sometimes helped him understand the instructions for his video games.

The victim told the court that he enjoyed “hanging out” with Kilbarger but the sexual activities were not “what he wanted to be doing.”

He insisted he did not tell on Kilbarger because he was afraid he would stop buying him clothes and video games or taking him to his favorite restaurants and the movie theater.

“Upon a thorough review of the record, we find the jury did not lose its way in finding that the victim was substantially impaired at the time of the offenses because of his mental condition,” Judge Powell wrote.

The judges noted the jury was in the best position to observe the victim’s mental condition and appraise his conduct.

They also found his testimony showed he gave simple answers and both parties had to rephrase certain questions so that he could understand them.

“We therefore find that appellant’s conviction for rape and gross sexual imposition was not against the manifest weight of the evidence.”

Presiding Judge Robert Ringland and Judge Robert Hendrickson joined Judge Powell to form the majority.

The case is cited State v. Kilbarger, 2014-Ohio-2341.

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