A witness’s expertise was questioned in the rape case against a Bowling Green man.
Robert Belloto Jr., a pharmacist based in Beavercreek, has been called as a witness for the defense in the case of Justin Marx, who has been charged with rape and sexual battery.
Marx, 48, appeared Sept. 9 in the courtroom of Wood County Common Pleas Judge Molly Mack for a Daubert hearing.
The state requested the Daubert hearing to challenge Belloto’s opinion related to the alleged victim’s actions and evaluate its admissibility at trial.
Belloto testified that during a “grayout” — which is different from a “blackout” — a person may appear to be able to normally function, but short-term memory is inhibited by alcohol consumption.
Belloto has studied the pharmacology of ethanol and the side effects that occur when a person drinks, said defense attorney Lorin Zaner.
Mack qualified Belloto as an expert in pharmacokinetics and pharmacodynamics.
Belloto said he reviewed the Bowling Green Police Division report, text messages between the accused and the alleged victim, and transcripts of interviews both parties had with police detectives.
He said he looked at the statements to determine if there were any indications of alcohol-induced amnesia.
“That’s what it looks like,” Belloto said. “You don’t have to drink a lot of alcohol to have amnesia.”
He said when a person has a “grayout,” they can carry on a conversation and drive a car. Long-term memory gets blocked, and those memories are not going to come back.
“They can appear perfectly normal to you,” Belloto said about the person who is drinking.
Zaner asked that although a person may not remember events, that does not mean that action wasn’t consensual.
“The alleged victim had been drinking … she had partial memory loss … being in that position does not mean she did not consent,” he said. “The other person could have believed it was totally consensual.”
Belloto said he has seen a lot of intoxicated people over the years.
“You have no way of knowing what someone is going to forget in that block of time,” he said.
Defense attorney Jim Hoppenjans said that Belloto did not review medical records and no blood alcohol test of the alleged victim was taken.
“It doesn’t take much drinking to start forgetting,” Belloto said.
He said his report was based on her statements that pieces of her memory were missing.
Belloto said other drugs – including marijuana — could have been consumed since no toxicology test was taken, but he knows of no studies that show where marijuana impedes memory loss.
Hoppenjans said the alleged victim was on Zoloft, which is used to treat depression, the night of the alleged incident
He asked for Belloto’s opinion of the affect that may have had with alcohol.
Belloto said there is no pharmacological impact of alcohol and Zoloft.
He said that any lay person can make an arbitrary judgment as to if someone is intoxicated based on speech and balance.
“That is a judgment call,” Belloto said.
The 0.08 BAC is a legislated number used for drunk driving cases but saying everyone who has a 0.08 blood alcohol content is impaired is false, he said.
Belloto did agree with Hoppenjans’ statement that there is no correlation between blackouts, grayouts and consent.
Mack will decide on whether to allow the defense to introduce as evidence any of Belloto’s testimony.
A request to prohibit the use of the term “victim” had been granted, but the state has asked Mack to reconsider her decision,
A request to prevent the alleged victim from using the term “grooming” during trial has been denied.
Marx was indicted by a Wood County grand jury in September 2021 for rape, a first-degree felony, and sexual battery, a third-degree felony.
On or about Jan. 10, he was at his home when he allegedly engaged in sexual conduct with a woman whose ability to consent was impaired.
The sexual battery charge is for allegedly knowing the woman submitted because she was unaware the act was being committed.
Marx has pleaded not guilty to both charges.