| On the morning of December 30, 2017, a woman known as H.C. told police in Cleveland, Ohio, that she had been sexually assaulted at a hotel in the early morning. She said the assault occurred after a night of drinking, and that she had blacked out and woken up in a room with an older man having sex with her.
Video footage from the Residence Inn captured the woman entering the lobby with two men, 45-year-old Kurt Foster and his friend, Nicholas Reschke. They had come to the city from nearby Medina for a night on the town.
Two weeks later, police came to Foster’s home in Medina while he was at work. His wife called him, and Foster spoke to a detective. He said there was no sexual conduct between him and H.C. He then told his wife about the incident. In a second interview with the police, Foster said he had consensual oral and vaginal sex with H.C.
Foster was indicted March 6, 2018, on two counts of substantial impairment rape.
Foster’s first trial in the Cuyahoga County Court of Common Pleas ended with a mistrial on November 6, 2018, after jurors were unable to reach a unanimous decision. The second trial began on January 28, 2019.
Two of H.C.’s friends testified about the events of December 29 and 30. A friend who saw her around midnight said H.C. was “tipsy and intoxicated.”
Reschke testified for the state and said he and Foster spent the night bar-hopping and ended up at a place called the Dive Bar. They stayed there until closing time, around 2 a.m., and then went to catch a cab. H.C. was already in the cab’s front-passenger seat, and she appeared to be crying and upset, Reschke testified. He and Foster tried to go to a strip club, but it was closed, and the cab later took them to the wrong hotel. By then, Reschke said, H.C. was in better spirits and talking with them. He testified that when the cab pulled up at the Residence Inn, H.C. asked if Reschke and Foster had any champagne in their room, which was a suite.
Reschke testified that he told her they only had beer but said he didn’t actually invite her up. “I put the offer out there that we had Coors Light and just kind of left it at that,” he said.
By now, according to Reschke, it was about 3 a.m.. He testified that H.C. did not appear drunk. Reschke said he drank a beer, then went to the bedroom to go to sleep. While he was getting ready, Foster entered the bedroom and got a blanket to give H.C. Reschke said that made him uneasy, as he worried she might damage the room.
The next morning, Reschke testified, he woke up to the sound of snowplows. He went into the main room and saw H.C. asleep on the sofa. He woke her up, she muttered “Okay,” and then he went to gather his belongings. H.C. fell asleep again. Reschke said that when he woke her again, the woman asked where her friends were, and he told her that she had come to the hotel by herself. He testified that she then left the room but did not appear disoriented or hungover.
Reschke testified that he assumed H.C. had been drinking because she was out so late, but “she seemed like she was able to carry a conversation and seemed okay.”
H.C. testified that she had gotten drunk and that her cellphone died around midnight, preventing her from calling an Uber to take her home. She said she remembered being outside the Dive Bar and also in a yellow cab, but almost nothing after that. She was asked: “What’s your next — what’s your next memory after getting into the yellow cab?
She responded: “And then my next memory is in — I — sorry. My next memory is it’s the middle of the night, it’s dark, and this older man is on top of me and having sex with me.”
She testified that she woke up the next morning covered with a blanket. Her pants and underpants were all the way down and a younger guy was telling her she needed to leave. She said she gathered her belongings, left the room after “kind of realizing what’s going on,” and went to the hotel’s front desk to report that she had been assaulted in a room.
During H.C.’s testimony, the prosecutor showed the jury two videos. The first showed H.C., Foster, and Reschke getting out of the taxi and walking into the hotel. The other showed the three entering the lobby. H.C. acknowledged that she could walk on her own, but she described herself as a “drunken mess.”
Under cross-examination, the following exchange took place between H.C. and Foster’s attorney:
Q: I guess the one thing I really want to make clear here is in your words you don’t remember anything from the cab — being in the cab, to waking up with someone on top of you; is that right?
A: That’s right.
Q: The whole period is what you’re considering a blackout period; is that correct?
A: Yeah. Yeah.
H.C. denied that she propositioned, initiated, or consented to have sex with Foster.
At the first trial, H.C. had testified differently. She was asked: “Well, if you say you don’t remember, then there’s a possibility that it could have been initiated by you. Correct?”
She responded: “It could have been but I — I don’t think it was. And I don’t remember.”
Foster’s attorney attempted to use this prior testimony to impeach H.C. and moved to introduce the transcript of the first trial into evidence. The judge reprimanded the attorney for not providing the court with a copy prior to H.C.’s testimony. After reviewing the transcript, the judge barred its use, ruling that consent was not an issue in the case.
Szabolcs Sofalvi, a quality assurance officer and forensic scientist with the Cuyahoga County Medical Examiner’s Office, testified as an expert on using reverse extrapolation to estimate H.C.’s blood alcohol content (BAC) at the time she said she was assaulted by Foster. He testified that BAC reaches peak concentration about 30 to 40 minutes after the consumption of alcohol on an empty stomach. He also testified that ethanol is eliminated from the body at a fairly constant level. H.C.’s blood was drawn at 4:15 p.m. on December 30, and she had a BAC of .025, plus or minus .02. Working backwards and estimating that her peak concentration was between 2:15-3:15 a.m., Sofalvi testified that her BAC was around .235 at 2:15 a.m. and had dropped to .205 by 4:15 a.m. He testified that the legal limit for driving in Ohio was .08.
Dr. Robert Belloto, a clinical pharmacologist, testified as part of Foster’s defense and said that reverse extrapolation could give inaccurate results because of the large number of variables. He also testified that blacking out was different than being unconscious and occurred when there was no transfer of short-term memory to long-term memory.
Belloto also testified about the “dose-response curve,” using a chart to indicate that BAC is not always an accurate gauge of intoxication or the appearance of intoxication. As he explained the chart, the judge stopped his testimony and called for a sidebar. Although there had been no objection from the state, the judge disallowed any further testimony on this issue and the use of the chart.
Foster testified. He also described a night of drinking that ended with him, Reschke and H.C. in the hotel room. It was only when Reschke got ready for bed, Foster said, that he realized H.C. was planning on sleeping there. He testified that he got her a blanket from the bedroom and when he returned, she was struggling to unzip her knee-high boots. He said he stood in front of her and tried to help and she rubbed her leg on his shoulder and propositioned him. He testified that he demurred and said he was married, but she said she didn’t care. They then briefly had sex, he testified.
Foster’s wife also testified and said that she was surprised when a detective came to her house and said her husband was being investigated for rape. She said Foster admitted he cheated, but said he had not committed a rape. She testified that she was upset but believed him and that she told him to tell the police the truth.
The state played a video of Foster’s wife telling a detective to “take him away,” when she was told the reason for the officer’s visit. The jury also saw a video of Foster’s interview with a detective, where he said that he knew H.C. “definitely had been drinking.” He also said in that interview that he thought it was peculiar that a much younger woman would go to his hotel room and sleep on the couch.
In closing arguments, the prosecutor told jurors that H.C. had “passed out” on the couch. H.C. had only testified that she “blacked out.”
On February 1, 2019, the jury convicted Foster of two counts of substantial impairment rape. He was sentenced to six years in prison.
Foster appealed. He said the judge had erred in barring the introduction of H.C.’s previous testimony and Belloto’s testimony and chart about the dose-response curve. He also said the judge had erred in instructing the jury that members could consider H.C.’s ability to drive when determining if her ability to give consent was impaired.
On April 6, 2020, Ohio’s Eighth District Court of Appeals vacated Foster’s conviction and ordered the dismissal of his charges based on insufficient evidence. “The issue in this case is when one should know another individual is so intoxicated that they are substantially impaired and cannot consent,” the court wrote in a 2-1 decision authored by Presiding Judge Kathleen Ann Keough. “[T]here was no testimony from the state’s witnesses showing that H.C. exhibited any signs of substantial impairment, or that Foster was aware that she had consumed a large quantity of alcohol prior to their encounter.”
In a dissenting opinion, Judge Michelle Sheehan wrote that a jury – not the court – was in the best position to evaluate the sufficiency of the evidence. Despite the dissent, Sheehan also agreed that Foster deserved a new trial because of the judge’s error in barring the use of H.C.’s testimony from the first trial.
After the appellate ruling, Foster was released from prison on April 28, 2020. The Cuyahoga County Prosecutor appealed, but the Ohio Supreme Court declined to accept the case.
On November 30, 2021, Foster filed a claim against the state of Ohio, asking to be declared a wrongfully imprisoned individual. Initially, the state opposed Foster’s claim, arguing that a reversal based on insufficient evidence did not establish his innocence. But the parties settled on October 11, 2022. Judge Maureen Clancy of the Cuyahoga County Court of Common Pleas declared Foster to have been wrongfully imprisoned, and the state agreed to pay him $120,668 in attorney’s fees and $61,832 in compensation.
– Ken Otterbourg
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