Scott Blazer v. KIMBERLY CLIPPER, Warden

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0032n.06
No. 14-3418
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SCOTT BLAZER,
Petitioner-Appellant,
v.
KIMBERLY CLIPPER, Warden,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Petitioner Scott Blazer appeals the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. The sole issue before this court is whether the exclusion
at trial of an answering machine recording had a “substantial and injurious effect or influence”
on the jury’s verdict. Following our review of the record, we hold that the evidentiary error was
harmless. We therefore affirm the judgment of the district court.
I.
The Ohio Court of Appeals described the relevant facts as follows:
In 2009, Blazer was charged with four counts of rape, two counts of kidnapping,
and one count of gross sexual imposition in the sexual assault of his brother’s
step-daughter, “T.L.”

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The matter proceeded to a trial by jury, at which the following evidence was
presented.
T.L. knew Blazer because her mother was married to his brother and she
considered Blazer her uncle. Life at home was rough for T.L. because her mother
and step-father did not get along, so T.L. began spending more time with her 42-
year-old uncle. In November 2006, 13-year-old T.L. spent the night at Blazer’s
house and stayed up late using the computer. The next morning, the state alleged
that Blazer climbed into the bed T.L. was sleeping in and performed oral sex on
her. After this incident, T.L. continued her friendship with Blazer and, at one
point, Blazer gave her a diamond “promise” ring. Blazer told T.L. that it meant
that he would keep everything she told him and everything that happened between
them a secret.
On January 26, 2008, T.L. went to Blazer’s house for a family dinner. After
everyone left, Blazer and T.L. began making vodka drinks. T.L., who was now
15 years old, testified she consumed at least a quarter of the bottle of vodka. She
was also smoking and she played on the computer while her uncle sat on a futon
and listened to music. After a while, T.L. felt sick, ran to the bathroom, and
vomited. Blazer followed her and helped her clean up her vomit, which was all
over the bathroom. She called a friend and told him that she had been drinking
and got sick. The friend recommended she eat some bread. At the time, T.L. was
wearing a shirt, underwear, boxer shorts over her underwear, and baggy sweat
pants.
T.L. testified that the next thing she remembered was waking up in Blazer’s bed,
with Blazer talking about “finishing.” Her uncle was naked and T.L. realized she
did not have any bottoms on, her bra was unhooked, and her shirt was pushed up.
T.L. testified that Blazer was on top of her and had his penis inside of her. She
told the jury she was scared and asked Blazer “what are you doing” and “what
time is it.” T.L. stated that after Blazer was “finished,” he gave T.L. the boxer
shorts she had been wearing. T.L. testified she was still drunk and tired so she
fell back asleep. At some point, she received a phone call from a friend and fell
back asleep. Blazer woke her up around 8:30 a.m., telling her breakfast was
ready. T.L. testified she got dressed and went into the kitchen, where Blazer was
sitting with his girlfriend, who had just arrived. At one point, Blazer told T.L. he
was “sorry,” but she just ignored him.
When T.L. got home the next day, she threw her underwear and boxers in her
trash can and showered. T.L. called a friend to tell her what happened, and also
tried to call Blazer. A few days later, the police came to her house to investigate
the incident after her friend’s mother reported what had happened to the police.
T.L.’s mother came home, and T.L. told her what happened. T.L.’s mother
retrieved T.L.’s underclothes from the trash can and turned them over to the
police. The Ohio Bureau of Criminal Investigation tested the underclothes, and

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the results showed that Blazer could not be excluded as a minor source of the
DNA found on the boxer shorts.
During cross-examination of T.L., defense counsel asked T.L. if she ever left a
provocative message on Blazer’s answering machine [in February 2009]. T.L.
stated she had not. Counsel sought permission from the court to play a tape
recording, which was allegedly a message T.L. left on Blazer’s answering
machine. The state objected, claiming they had not been provided the tape
recording during discovery. The trial court recessed the jury to discuss the
recording. On the recording, a girl is heard saying: “Hey, Scott, um, could you
call me back? I kind of miss you. I miss your big long d*** in me. So hot.
Anyways, just call me back. All right. Bye, baby.”
The trial court excluded the recording from evidence finding that 1) it was error
for the defense to fail to turn the tape over during discovery and 2) the tape had
not been properly authenticated.
At the close of the state’s case, the trial court dismissed one rape count pursuant
to Blazer’s Crim. R. 29 motion for acquittal.
Blazer testified in his own defense. He denied the 2006 incident ever happened.
As to the January 28, 2008, incident, he testified that he had fallen asleep and
woke up when he realized someone was in his bed. He testified that “someone”
began kissing him and fondling him, but he did not know who it was. He stated
he had sexual intercourse with the unknown person. He testified that he did not
know who he was having sex with, but it was not uncommon for him to have sex
with his girlfriend in the middle of the night. He further testified that he did not
know if it was his girlfriend he was having sex with because he had been
drinking. Finally, Blazer testified that he became aware he had sexual intercourse
with T.L. after he was called for a family meeting. He admitted he knew that
something had happened between him and T.L. but he did not know “how far it
went.”
The jury convicted Blazer of one count of rape, pursuant to [Ohio Revised Code
§ 2907.02(A)(1)(c)], which requires proof that the other party’s “ability to resist
or consent is substantially impaired,” and acquitted him on all other charges. The
trial court sentenced Blazer to nine years in prison.
State v. Blazer, No. 93980, 2010 WL 5487145, at *1−2 (Ohio Ct. App. Dec. 23, 2010) (footnotes
omitted). On direct appeal, Blazer challenged the trial court’s exclusion of the recording. The
Ohio Court of Appeals held that the trial court erred in excluding the recording but concluded
that any error was harmless:

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Since we have found that the trial court erred in excluding the tape from evidence,
we must next consider whether that error was harmless or if it affected Blazer’s
substantial rights.
Crim. R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.”
Blazer was convicted of rape under R.C. 2907.02(A)(1)(c), which states: “No
person shall engage in sexual conduct with another * * * when * * * [t]he other
person’s ability to resist or consent is substantially impaired because of a mental
or physical condition * * * and the offender knows or has reasonable cause to
believe that the other person’s ability to resist or consent is substantially impaired
* * *.”
The Ohio Supreme Court has held that substantial impairment must be established
by demonstrating a present reduction, diminution, or decrease in the victim’s
ability, either to appraise the nature of his conduct or to control his conduct. State
v. Zeh (1987), 31 Ohio St. 3d 99, 103–104, 509 N.E.2d 414. Substantial
impairment need not be proven by expert medical testimony; it may be proven by
the testimony of persons who have had some interaction with the victim and by
permitting the trier of fact to obtain its own assessment of the victim’s ability to
either appraise or control her conduct. Id. Furthermore, voluntary intoxication is
a “mental or physical condition” that could cause substantial impairment under
R.C. 2907.02(A)(1)(c). In re King, Cuyahoga App. Nos. 79830 and 79755, 2002-
Ohio-2313.
Blazer maintains that the taped message is clearly inconsistent with T.L.’s
allegation that she was so impaired that she was incapable of resisting or
consenting to sex with Blazer. But consent is not an element of rape under R.C.
2907.02(A)(1)(c). In other words, whether T.L. consented to sexual intercourse
with Blazer is not relevant to a finding of rape under R.C. 2907.02(A)(1)(c). All
the state was required to show was that T.L.’s ability to resist or consent was
impaired and the defendant knew or had reasonable cause to believe that her
ability to resist or consent was substantially impaired. (Emphasis added.)
T.L., who was 15 at the time of the rape, testified that she and Blazer made
drinks, and she drank a quarter bottle of vodka. She stated that after vomiting, she
called a friend before falling asleep. After the assault, T.L. called a friend and
then fell back to sleep until Blazer later woke her. Blazer admitted T.L. was
intoxicated, he acknowledged helping clean up her vomit, and he admitted he had
sexual intercourse with her. Although he denied he personally gave her anything
to drink, he admitted he knew she was intoxicated.
Based on the evidence presented at trial and because the tape recording was not
relevant to a finding of guilt under R.C. 2907.02(A)(1)(c), we conclude any error

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in excluding the tape did not affect Blazer’s substantial rights and was therefore
harmless. We do note that had Blazer been convicted of rape or gross sexual
imposition where an element of the crime was “force or threat of force,” our
analysis and conclusion based on this harmless error analysis would have been
different.
Id. at *6 (alterations in original) (footnote omitted).
Blazer then filed a motion for reconsideration, arguing that the court of appeals applied
the wrong harmless error standard. The court denied the motion for reconsideration. The Ohio
Supreme Court denied Blazer’s application for review. Blazer then filed a timely pro se petition
for a writ of habeas corpus under 28 U.S.C. § 2254, raising four grounds for relief. After
appointing counsel, the district court granted leave to amend to include a fifth claim:
Petitioner’s right to due process of law, as protected by the Due Process Clause of
the Fourteenth Amendment to the United States Constitution, was violated by the
application of a harmless error standard that did not consider the probable impact
of the excluded evidence upon the jury, which resulted in a decision that was
contrary to, or involved an unreasonable application of clearly established Federal
law, as determined by the Supreme Court of the United States.
A magistrate judge issued a Report and Recommendation advising the district court to deny
Blazer’s petition because the first four grounds were procedurally defaulted and the fifth claim
lacked merit. The district court adopted the Report and Recommendation over Blazer’s
objection and denied the petition. Nevertheless, the district court granted a certificate of
appealability on Blazer’s fifth claim.
II.
We review de novo the district court’s legal conclusions and rulings on mixed questions
of law and fact. Jalowiec v. Bradshaw, 657 F.3d 293, 301 (6th Cir. 2011). Under the
Antiterrorism and Death Penalty Act of 1996 (“AEDPA”), federal courts may not grant habeas
relief on any claim that was adjudicated on the merits in the state courts unless the adjudication

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resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court; or (2) was based on an
unreasonable determination of the facts in light of the evidence presented to the state courts. Id.
(citing 28 U.S.C. § 2254(d)). Under the “contrary to” clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law, or if the state court decides a case differently than the Supreme Court on
materially indistinguishable facts. Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008). Under
the “unreasonable application” clause, a federal habeas court may grant the writ if the state court
identifies the correct legal principle but unreasonably applies it to the facts of the petitioner’s
case. Id. “[T]o warrant habeas relief, the application must be found to be ‘objectively
unreasonable.’” Jalowiec, 657 F.3d at 301 (quoting Williams v. Taylor, 529 U.S. 362, 409
(2000)). “AEDPA thus imposes a highly deferential standard for evaluating state-court rulings.”
Id. (internal quotation marks omitted).
Since the Supreme Court’s landmark decision in Chapman v. California, 386 U.S. 18
(1967), in which the Court “adopted the general rule that a constitutional error does not
automatically require reversal of a conviction, the Court has applied harmless-error analysis to a
wide range of errors and has recognized that most constitutional errors can be harmless.”
Arizona v. Fulminante, 499 U.S. 279, 306 (1991). On direct review of constitutional errors, the
government has the burden of proving that the error was “harmless beyond a reasonable doubt.”
Chapman, 386 U.S. at 24. On collateral review, however, “[c]iting concerns about finality,
comity, and federalism,” the Supreme Court has “rejected the Chapman standard in favor of the
more forgiving standard of review applied to nonconstitutional errors on direct appeal from
federal convictions.” Fry v. Pliler, 551 U.S. 112, 116 (2007). We may only grant a writ if the

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error resulted in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted).
In determining whether the petitioner was actually prejudiced, courts ask whether the
error had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’” Id.
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). This is the standard for
reviewing all non-structural errors on collateral review; it applies “whether or not the state
appellate courts recognized the error.” Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir.
2009) (internal quotation marks omitted). The Brecht standard continues to apply after passage
of the AEDPA. Id. (citing Fry, 551 U.S. at 119−20). “[T]he determination of whether an error
had a substantially injurious effect on the jury’s verdict is broader and thus subsumes the
question whether the state court reasonably applied Chapman.” Id. at 412 (internal quotation
marks omitted). To satisfy the Brecht standard, there must be “more than a reasonable
possibility that the error contributed to the jury’s verdict. If . . . there is a reasonable probability
that a trial error affected or influenced the verdict, then the Brecht standard would be satisfied.”
Mitzel v. Tate, 267 F.3d 524, 534 (6th Cir. 2001) (internal quotation marks and citation omitted).
Blazer argues that the answering machine recording would have made it more likely that
the jury would have accepted his version of events for two reasons: (1) “the provocative nature
of the message evinced both an awareness of the act and an appreciation for it that is wholly
inconsistent with a claim that T.L. was too intoxicated, and substantially impaired, to be aware of
what was happening,” and (2) “the tape had substantial impeachment value.” In light of the
record as a whole, we cannot agree there is a reasonable probability that exclusion of the
recording affected the verdict.

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As a preliminary matter, the jury convicted Blazer of a rape of “substantial impairment,”
not rape by threat or force. The sole elements of the offense are that (1) two people who are not
spouses living together engaged in sexual conduct, (2) one person’s ability to resist or consent
was substantially impaired because of a mental or physical condition, and (3) the offender knew
or had reasonable cause to believe that the other person’s ability to resist or consent was
substantially impaired. Ohio Rev. Code § 2907.02(A)(1)(c). The Ohio Court of Appeals found
that “Blazer admitted T.L. was intoxicated, he acknowledged helping clean up her vomit, and he
admitted he had sexual intercourse with her. Although he denied he personally gave her
anything to drink, he admitted he knew she was intoxicated.” Blazer, 2010 WL 5487145, at *6.
Blazer does not challenge those factual findings on habeas review. Rather, Blazer contends that
the recording evinces an “awareness” of what occurred, thereby undermining that T.L. was
substantially impaired. Blazer’s argument is unpersuasive for multiple reasons. First, the
contents of the recording do not address whether T.L.’s ability to resist or consent was
substantially impaired at the time of the offense. A general “awareness” of events one year after
the offense does not disprove that T.L. was substantially impaired at the time of the offense.
Moreover, the recording is not actually inconsistent with T.L.’s testimony about her degree of
awareness: she testified that when she awoke she realized Blazer was on top of her and his penis
was inside of her. She never testified that she was unaware that such sexual activity occurred.
Second, consent―which can hardly be inferred from a message left one year later―is not an
element of the offense. The state court recognized as much, stating that its harmless-error
analysis would have been different “had Blazer been convicted of rape or gross sexual
imposition where an element of the crime was ‘force or threat of force.’” Id. However, as the
state court observed, “[a]ll the state was required to show was that T.L.’s ability to resist or

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consent was impaired and the defendant knew or had reasonable cause to believe that her ability
to resist or consent was substantially impaired.” Id. Accordingly, we cannot agree with Blazer
that the message evinces an “awareness” that undermines T.L.’s impairment at the time of the
offense.
Blazer also argues that the recording had “substantial impeachment value.” His argument
goes to T.L.’s general credibility. At trial, defense counsel asked T.L. whether she left “a
provocative telephone message” on Blazer’s answering machine earlier that year. She said “no.”
Blazer argues that the message would have undermined T.L.’s credibility because the jury’s
“view of her credibility would have been further diminished had they not only known of the
contents of the message, but heard her lie about it.”
In light of the entire state court record, it is not reasonably probable that the excluded
evidence would have affected the jury’s verdict. First, Blazer’s argument is highly tenuous. He
relies on the possibility that the jury would have believed that T.L. left the message and that her
denial of having left the message would have caused the jury to disbelieve her testimony about
the degree of her impairment. However, Blazer does not contest the state court’s factual findings
that T.L. had been drinking vodka to the point of vomiting, which Blazer witnessed. Nor does
Blazer contest the state court’s finding that he was aware of her intoxication. Second, T.L. was
subjected to extensive cross-examination on facts decidedly more relevant to the elements of the
offense. She was questioned, for example, about the telephone calls she made and received
during the course of the night. These questions tested the veracity of her testimony about the
course of events before and after the sexual conduct. She was also questioned about the nature
of her relationship with Blazer, such as whether she was “affectionate” toward Blazer during a
family vacation, and the fact that she continued to contact and spend time with Blazer, even after

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an alleged non-consensual sexual contact in 2006. These questions tested her credibility with
respect to her denial that she had feelings for Blazer or otherwise sought sexual contact. Third,
other testimony supported that Blazer had cultivated an unusually close relationship with T.L.,
including reading her a poem he wrote about her “chest” when she was 12 or 13 years old and
buying her a “promise” ring to signify that he would keep her secrets. This evidence supported
T.L.’s version of events and would not have been undermined by the answering machine
recording.
III.
For these reasons, we affirm the judgment of the district court.

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