State v. Nkoyi , 2024 Ohio 3144 ( 2024 )

[Cite as State v. Nkoyi, 2024-Ohio-3144.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-01-007
: OPINION
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:
LAMBERT NKOYI NKOYI, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2023-03-0431
Michael T. Gmoser, Butler County Prosecuting Attorney, and John Heinkel, Assistant
Prosecuting Attorney, for appellee.
Neal D. Schuett, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Lambert Nkoyi Nkoyi, appeals his conviction in the Butler County
Court of Common Pleas after a jury found him guilty of single counts of kidnapping and
rape, both first-degree felonies, for which the trial court sentenced him to serve an
aggregate, indefinite sentence of 12 to 16 years in prison. For the reasons outlined below,
we affirm Nkoyi's conviction.
Facts and Procedural History
{¶ 2} On March 29, 2023, the Butler County Grand Jury returned an indictment
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charging Nkoyi with single counts of first-degree felony kidnapping in violation of R.C.
2905.01(A)(4) and first-degree felony rape in violation of R.C. 2907.02(A)(2).1 According
to the bill of particulars, these charges arose after it was alleged Nkoyi grabbed the victim,
Alice, a then 13-year-old eighth-grade girl, by her wrist and pulled her into one of the two
bathrooms located within her family's Butler County apartment.2 It was alleged that once
Alice was inside the bathroom that Nkoyi then closed and locked the door behind him.
Nkoyi was alleged to have then lifted Alice's dress, pulled down her underwear, and
touched her breasts and digitally penetrated her vagina. The record indicates that this
incident occurred during the late afternoon or early evening hours of November 22, 2022.
Nkoyi was arraigned on April 11, 2023, and entered pleas of not guilty to both charges.
{¶ 3} On June 12, 2023, the state filed a motion requesting the trial court
determine the admissibility of ten video recorded excerpts of Alice's statements made to
Cecilia Hicks, a licensed independent social worker and forensic interviewer, while being
interviewed at the Mayerson Center for Safe & Healthy Children at Cincinnati Children's
Hospital on December 22, 2022.3 The trial court held a hearing on the state's motion on
August 2, 2023. During this hearing, the trial court noted that it was its understanding
that after Nkoyi's trial counsel had an opportunity to review a disc containing those ten
video excerpts that counsel, "on behalf of Mr. Nkoyi, would be stipulating to the
admissibility of those" video clips at trial under Evid.R. 803(4). When asked by the trial
1. The indictment also charged Nkoyi with single counts of unlawful sexual conduct with a minor and
abduction, both third degree felonies. Those two charges are not relevant to this appeal as they were
determined by the trial court to be allied offenses of similar import that merged with the kidnapping and rape
charges at Nkoyi's sentencing.
2. This court has changed the name of the victim for purposes of issuing this opinion.
3. "The Mayerson Center is a child-advocacy unit of the hospital that evaluates children who are suspected
victims of physical and sexual abuse." State v. Barnes, 2011-Ohio-5226, ¶ 41 (12th Dist.). The ten video
excerpts at issue last a total of just 5 minutes and 15 seconds, much of which is taken up by Hicks' questions
rather than Alice's answers.
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court if this was correct, Nkoyi's trial counsel responded by stating:
Your Honor, that is my understanding as well. I had an
opportunity to review said clips and the case law, and have no
objection to their admissibility under the current format, but
reserve the right to object at trial if they're at all modified.
Altered may have been the more appropriate term.
Given the parties' stipulation, the trial court thereafter issued an order granting the state's
motion finding the aforementioned ten video excerpts were admissible at trial pursuant to
Evid.R. 803(4). In so doing, the trial court noted that its decision was based "[u]pon
stipulation of the parties that the Mayerson excerpts offered by the State of Ohio are in
compliance with prevailing caselaw and therefore admissible…."
{¶ 4} On October 24 through October 26, 2023, a three-day jury trial was held on
the matter. During that trial, the jury heard testimony from a total of seven witnesses.
This included the jury hearing testimony from both the alleged victim, Alice, and the
defendant, Nkoyi. This also included the jury hearing testimony from Alice's 12-year-old
younger sister, Beth, as well as from Hicks, the social worker who interviewed Alice at the
Mayerson Center on December 22, 2022.4
{¶ 5} Alice, then a 14-year-old freshman in high school, testified that Nkoyi was
a close family friend whom she and her five siblings considered to be like an uncle given
their shared connections to the Congo in Africa. Alice testified that she and her younger
sister, Beth, had in fact lived with Nkoyi and his wife for several months in their
neighboring apartment across the street as a favor to help Nkoyi and his wife with their
three children. Alice testified that the rest of her family, her parents and five other siblings,
had also briefly lived with Nkoyi and his wife after a fire broke out in their apartment that
left her family without a place to stay for several weeks.
4. This court has also changed the name of the victim's younger sister for purposes of issuing this opinion.
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{¶ 6} Given their families' close relationship, Alice testified that on the day in
question, November 22, 2022, Nkoyi came over to her family's apartment to take a
shower. Alice testified that it was just her and four of her siblings who were home when
Nkoyi came over to shower that day, as her mother was at work and her father and older
brother were out of town in Louisville, Kentucky. Alice testified that Nkoyi coming to her
family's apartment to shower was "normal" at that time because the bathtub at his and his
wife's apartment "wasn't working" properly. Alice testified that it was unusual, however,
that it was just Nkoyi who came to the apartment to take a shower that day. This is
because, according to Alice, it was usually both Nkoyi and his wife who came to their
apartment together when they needed to take a shower.
{¶ 7} Alice testified that after Nkoyi was done showering he went into the living
room and told her younger sister, Beth, to go get her so that she could "[c]lose the door
after him." Alice testified that she then came out to the living room to see Nkoyi out of the
apartment when he "told [her] to give him a kiss before he left." To this, Alice testified that
she gave Nkoyi a kiss on the cheek. Alice testified that Nkoyi then told her, "no, on the
lips." Alice testified that Nkoyi then proceeded to kiss her on the lips with his hands on
her waist. Alice testified that Nkoyi then grabbed her around the wrist and "guided" her
into one of the apartment's two bathrooms, the one "without" the shower, and locked the
door behind him.
{¶ 8} Alice testified that after Nkoyi locked the bathroom door that he then took
off her dress, pulled down her underwear, and "started touching" the "inside" of her
"vagina" and her "boobs" with his hands. Alice testified that she felt "weird" when Nkoyi
touched the inside of her vagina and that, while Nkoyi was touching her, that she was
looking "[a]way, like, anywhere but him." Alice testified that Nkoyi then stopped, exited
from the bathroom, and left the apartment, telling her that "he'd be back" later that night
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at around 9:00 or 10:00 p.m. Alice also testified that Nkoyi promised her that "if [she] kept
it a secret, he would get [her] a phone."
{¶ 9} Alice testified that after Nkoyi left the apartment she went and told Beth what
had just happened to her. Beth testified and confirmed that shortly after Nkoyi left the
apartment that Alice came into the bedroom where she was watching TV visibly upset
and crying and said, "he kissed her, and he—he was touching her," and that "he said he
was coming back" a few hours later. Alice testified that Nkoyi then did, in fact, come back
to the apartment a few hours later. Alice testified that once there, Nkoyi proceeded to
knock on the apartment's front door, as well as on her bedroom window, calling out her
name, but that neither she nor any of her siblings opened the door to let him in. Alice
testified that this occurred at approximately 6:00 p.m., which, according to Alice, was
"earlier than he was supposed to come."
{¶ 10} Alice testified that later that night, upon her mother returning home from
work, she told her mother what Nkoyi had done to her. Alice also testified that prior to her
mother returning home from work that she and her siblings "were all sleeping in one
bedroom, the bedroom [that she] slept in" because they were "scared." Alice testified that
9-1-1 was then called and that, a short time later, two police officers arrived at the
apartment to speak with her. When asked what she told the responding officers, Alice
testified that she told them "what happened," which included her telling the officers that
Nkoyi had "touched" her "inappropriately." Nkoyi testified and denied Alice's allegations
levied against him. This included Nkoyi testifying that he was never alone with Alice and
that he never touched Alice inappropriately as she had alleged.
{¶ 11} Following deliberations, the jury returned a verdict finding Nkoyi guilty of the
kidnapping and rape offenses. After the jury issued its verdict, the trial court then
scheduled the matter for sentencing and ordered a presentence-investigative report to be
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completed. Just over one month later, on November 27 and 30, 2023, the trial court held
a sentencing hearing on the matter. At this hearing, the trial court sentenced Nkoyi to
serve an aggregate, indefinite sentence of 12 to 16 years in prison, less 234 days of jail-
time credit. The trial court also classified Nkoyi as a Tier III sex offender and notified
Nkoyi of his duties to enroll as a violent offender. Approximately two weeks later, on
December 13, 2023, Nkoyi filed his notice of appeal. Following briefing, Nkoyi's appeal
was submitted to this court for consideration on July 10, 2024. Nkoyi's appeal now
properly before this court for decision, Nkoyi has raised five assignments of error for
review.
Assignment of Error No. 1:
{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT
BY ADMITTING INADMISSIBLE HEARSAY EVIDENCE.
{¶ 13} In his first assignment of error, Nkoyi argues the trial court erred by admitting
into evidence certain "inadmissible" hearsay testimony at trial. To support this claim,
Nkoyi sets forth three arguments for this court's consideration. We review each of those
three arguments in turn.
Abuse of Discretion Standard of Review
{¶ 14} "The admission or exclusion of evidence is a matter committed to the sound
discretion of the trial court." State v. Singh, 2022-Ohio-3385, ¶ 31 (12th Dist.). "We review
a trial court's decision to admit or exclude evidence for an abuse of [that] discretion."
State v. Napier, 2017-Ohio-246, ¶ 21 (12th Dist.). An abuse of discretion connotes more
than an error of law or judgment; it implies the trial court's decision was unreasonable,
arbitrary, or unconscionable. State v. Grindstaff, 2014-Ohio-2581, ¶ 21 (12th Dist.). Most
cases where an abuse of discretion is asserted are claims alleging the trial court's
decision was unreasonable. State v. Cast, 2022-Ohio-3967, ¶ 7 (12th Dist.). "A decision
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is unreasonable where a sound reasoning process does not support it." State v. Miller,
2016-Ohio-7360, ¶ 7 (12th Dist.). "When applying the abuse of discretion standard, an
appellate court may not substitute its judgment for that of the trial court." State v. Williams,
2021-Ohio-2717, ¶ 11 (12th Dist.). "Therefore, absent an abuse of discretion that has
resulted in material prejudice, this court will not reverse a trial court's evidentiary decisions
regarding the admission or exclusion of evidence at trial." State v. Edwards, 2023-Ohio-
2632, ¶ 34 (12th Dist.).
Nkoyi's First Argument: State's Exhibit 30
{¶ 15} Nkoyi initially argues the trial court erred by admitting into evidence state's
Exhibit 30, the aforementioned disc containing the ten video recorded excerpts of the
statements that Alice had made during her interview with Hicks conducted at the
Mayerson Center on December 22, 2022. To support this claim, Nkoyi argues that the
trial court's admission of that disc into evidence allowed the state to introduce "forensic
statements" at trial in violation of Evid.R. 803(4). However, as the record indicates,
Nkoyi's trial counsel stipulated to the admissibility of state's Exhibit 30 into evidence so
long as the recordings included on that disc were not modified or altered from their original
format. The record is devoid of any evidence to indicate any such modification or
alteration occurred in this case. It is well established that "[a]greements, waivers and
stipulations made by the accused, or by the accused's counsel in his presence, during
the course of a criminal trial are binding and enforceable." State v. Post, 32 Ohio St.3d
380, 393 (1987).
{¶ 16} It is equally well established that "a party may not 'take advantage of an
error which he himself invited or induced.'" State v. Drain, 2022-Ohio-3697, ¶ 66, quoting
State v. Campbell, 90 Ohio St.3d 320, 324, 2000-Ohio-183. Therefore, even assuming
there was some merit to Nkoyi's argument, which, as discussed more fully below, there
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is not, because Nkoyi's trial counsel stipulated to the admissibility of state's Exhibit 30 into
evidence at trial, Nkoyi invited any error that may have occurred by the trial court admitting
that exhibit into evidence. The invited error doctrine does not permit Nkoyi to stipulate to
the admission of state's Exhibit 30 at trial only for him to then turn around and argue as
part of his appeal that the trial court erred by admitting that same exhibit into evidence.
State v. Harvey, 2020-Ohio-329, ¶ 55 (3d Dist.) ("[t]he doctrine of invited error does not
permit [appellant] to stipulate to the admission of Joint Exhibit One at trial and then argue
the trial court erred in admitting Joint Exhibit One on appeal"). Accordingly, Nkoyi's first
argument lacks merit.
Nkoyi's Second Argument: Hicks' Testimony
{¶ 17} Nkoyi next argues the trial court erred by allowing Hicks to testify and
describe what Alice told her during the December 22, 2022 interview about what Nkoyi
had done to her sexually. Specifically, by allowing Hicks to testify in response to the state
asking Hicks to describe what Alice told her had happened to her sexually, the following:
[Alice] described to me that [Nkoyi], who had come into her
house to take a shower because his plumbing wasn't working,
when he was leaving, he told her to give him a kiss, so she
kissed him on the cheek. And then he said no and pointed to
his lips.
And then—and she just stood there, she said. And then he
proceeded to kiss her with his lips and his tongue, and then
took her into the bathroom and lifted her skirt and pulled her
underwear down and touched her vagina with his hand, and
then inserted his finger in her vagina, and also put his hands
in her shirt or dress. I don't remember which one but
underneath her bra and touched her on her boobs.
{¶ 18} Just as with his first argument set forth above, Nkoyi argues that by allowing
Hicks to offer this testimony at trial, the trial court permitted the state to introduce "forensic
statements" into evidence in violation of Evid.R. 803(4). However, even assuming Nkoyi
had properly raised such an objection to the trial court, which the record indicates that he
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did not, Hicks' response to the state's question asking her to "describe" what Alice had
told her Nkoyi had done to her sexually did not include any testimony violative of Evid.R.
803(4). That is to say, Hicks' testimony specifically describing what Alice told her Nkoyi
had done to her sexually was nothing more than Hicks repeating what Alice had said to
her primarily for the purpose of providing Alice with the proper medical diagnosis and
treatment. "Evid.R. 803(4) provides an exception to the hearsay rule for statements made
by a declarant for purposes of medical diagnosis or treatment." State v. Burson, 2024-
Ohio-1834, ¶ 44 (12th Dist.). Specifically, Evid.R. 803(4) provides:
Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
{¶ 19} The Ohio Supreme Court has considered the admissibility of statements like
those testified to by Hicks in this case. State v. Arnold, 2010-Ohio-2742.5 In Arnold, "the
Ohio Supreme Court differentiated between statements made for medical diagnosis or
treatment and those for investigatory purposes during a forensic interview at a treatment
center." State v. Smith, 2020-Ohio-4008, ¶ 42 (12th Dist.). "The court held that the child-
victim's statements to the social worker were for the purpose of medical diagnosis when
the child identified the perpetrator, discussed the type of abuse alleged, gave a time frame
5. We note that, as part of his first assignment of error, Nkoyi argues that any reliance on the Ohio Supreme
Court's decision in Arnold "is misplaced and in error" because that case "addressed the testimonial nature
of statements made to a forensic investigator under the defendant's Confrontation Clause rights" and "did
not address the admissibility of such statements under Evid.R. 803(4)." However, while it may be true that
Arnold focused on the admissibility of these types of statements under the Confrontation Clause and not
under Evid.R. 803(4), this court has already determined that "Arnold is instructive in identifying whether
statements made to a social worker are primarily medical or forensic." State v. Warman, 2017-Ohio-244, ¶
48 (12th Dist.); see, e.g., State v. Pence, 2013-Ohio-1388, ¶ 37 (12th Dist.) (finding that, although not
presented with a Confrontation Clause issue, the Ohio Supreme Court's decision in Arnold nevertheless
"compels the conclusion that [the child-victim's] statements to [a forensic interviewer during an interview
conducted at a local child advocacy center] were for purposes of medical diagnosis and treatment, thus
they were admissible under Evid.R. 803[4]"). To the extent Nkoyi claims otherwise, such argument lacks
merit.
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of the alleged abuse, and identified the areas where the child had been touched." State
v. Turner, 2020-Ohio-1548, ¶ 53 (12th Dist.). "On the other hand, statements such as the
child's assertion that the offender shut and locked the door before raping her, the child's
description of where others were in the house at the time of the rape, the child's statement
that the offender removed her underwear, and the child's description of the offender's
boxer shorts, [the court] determined were statements relating primarily to the
investigation." State v. Warman, 2017-Ohio-244, ¶ 48 (12th Dist.).
{¶ 20} In this case, other than Hicks briefly mentioning that Alice told her Nkoyi had
lifted her skirt and pulled down her underwear prior to him raping her, the statements that
Hicks attributed to Alice in this case are essentially the same as those discussed and
found admissible by the Ohio Supreme Court in Arnold. "That the statements were made
to a social worker does not mean that the statements were not reliable or inadmissible
under Evid.R. 803(4)." Burson, 2024-Ohio-1834 at ¶ 55 (12th Dist.), citing State v.
Muttart, 2007-Ohio-5267, ¶ 56. Therefore, for the reasons set forth above, the trial court
did not err, plain or otherwise, by allowing Hicks to testify in the manner that she did.
Nkoyi's assertion otherwise lacks merit. Nevertheless, even if we were to find the trial
court erred by admitting into evidence Hicks' testimony set forth above, which we do not,
any such error would be harmless. This includes Hicks' testimony briefly mentioning the
fact that Alice had told her Nkoyi lifted her skirt and pulled down her underwear prior to
him raping her.
{¶ 21} "[T]he admission of hearsay evidence is harmless error where it is merely
cumulative." State v. Robinson, 2015-Ohio-4533, ¶ 30 (12th Dist.). Thus, "[a]n admission
is harmless when the declarant is examined at trial on the same matters as the hearsay
and the erroneous evidence is cumulative in nature." State v. Villani, 2019-Ohio-1831, ¶
23 (12th Dist.). That is to say, "in those cases 'where a declarant is examined on the
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same matters as contained in impermissible hearsay statements and where admission is
essentially cumulative, such admission is harmless.'" State v. Sims, 2009-Ohio-550, ¶ 17
(12th Dist.), quoting State v. Tomlinson, 33 Ohio App.3d 278, 281 (12th Dist.1986). That
is exactly what occurred here. Therefore, because Alice took the stand and testified
consistent with the statements attributed to her by Hicks, any error the trial court may
have made would constitute, at worst, harmless error. See, e.g., State v. Chisenhall,
2024-Ohio-1918, ¶ 20 (12th Dist.) (similarly holding that "because [the child-victim] took
the stand and testified consistent with the statements attributed to her by her forensic
interviewer, her high school friend, and her mother, any error the trial court may have
made by admitting the challenged testimony elicited from those three witnesses would
constitute, at worst, harmless error"). Accordingly, Nkoyi's second argument also lacks
merit.
Nkoyi's Third Argument: Beth's Testimony
{¶ 22} Nkoyi lastly argues the trial court erred by allowing Alice's 12-year-old
younger sister, Beth, to testify as to what Alice told her just after Nkoyi left their apartment
as an excited utterance under Evid.R. 803(2). Specifically, Nkoyi challenges the
admissibility of Beth's testimony that a short time after Nkoyi left the apartment that Alice
came into the bedroom where she was watching TV visibly upset and crying and told her
that Nkoyi had just "kissed her, and he—he was touching her." To support this claim,
Nkoyi argues that the state failed to provide a "sufficient foundation" to establish the
statements made by Alice to her younger sister Beth was done while Alice was "under the
stress of a startling event …." However, as the record indicates, Beth testified that Alice
made this statement shortly after Nkoyi left the apartment at a time when Alice was clearly
upset and crying.
{¶ 23} "An out-of-court statement qualifies as an excited utterance if '(1) the
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statement was made in reaction to a startling event; (2) the statement was made under
the stress of excitement caused by the event; and (3) the statement relates to the event.'"
State v. Cooperstein, 2019-Ohio-4724, ¶ 86 (12th Dist.), quoting State v. Nitz, 2004-Ohio-
6478, ¶ 20 (12th Dist.). The statement Alice made to Beth shortly after Nkoyi left their
apartment claiming Nkoyi had just "kissed her, and he—he was touching her" falls
squarely within that definition. See, e.g., State v. Haskell, 2015-Ohio-3095, ¶ (3d Dist.)
(finding a teenaged child-victim's statement that appellant "touched her in her private
area" made shortly after the touching was alleged to have occurred was an excited
utterance admissible under Evid.R. 803[2] "since she was still crying and visibly upset"
when the statement was made). Therefore, finding no error in the trial court's decision,
Nkoyi's third and final argument likewise lacks merit. Accordingly, finding no merit to any
of the three arguments raised by Nkoyi herein, Nkoyi's first assignment of error is
overruled.
Assignment of Error No. 2:
{¶ 24} MR. NKOYI'S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE.
{¶ 25} In his second assignment of error, Nkoyi argues the jury's verdicts finding
him guilty of kidnapping and raping Alice were not supported by sufficient evidence. We
disagree.
Sufficiency of the Evidence Standard
{¶ 26} A claim challenging the sufficiency of the evidence invokes a due process
concern that raises the question of whether the evidence was legally sufficient to support
the jury's verdict as a matter of law. State v. Clinton, 2017-Ohio-9423, ¶ 165, citing State
v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. Such a challenge "requires a
determination as to whether the state has met its burden of production at trial." State v.
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Boles, 2013-Ohio-5202, ¶ 34 (12th Dist.). "The relevant inquiry is 'whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.'"
State v. Roper, 2022-Ohio-244, ¶ 39 (12th Dist.), quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus. Therefore, "[i]n a sufficiency of the evidence
inquiry, appellate courts do not assess whether the prosecution's evidence is to be
believed but whether, if believed, the evidence supports the conviction." State v. Carter,
2018-Ohio-29, ¶ 7 (8th Dist.), citing State v. Yarbrough, 2002-Ohio-2126, ¶ 79-80.
Accordingly, when reviewing whether a jury's verdict finding the defendant guilty was
supported by sufficient evidence, "[t]his court merely determines whether there exists any
evidence in the record that the trier of fact could have believed, construing all evidence in
favor of the state, to prove the elements of the crime beyond a reasonable doubt." State
v. Brummett, 2024-Ohio-2332, ¶ 9 (12th Dist.).
Kidnapping and Rape in Violation of R.C. 2905.01(A)(4) and 2907.02(A)(2)
{¶ 27} As noted above, the jury found Nkoyi guilty of first-degree felony kidnapping
in violation of R.C. 2905.01(A)(4). That statute provides that no person, "by force, threat,
or deception," shall "remove another from the place where the other person is found or
restrain the liberty of the other person," to "engage in sexual activity, as defined in Section
2907.01 of the Revised Code, with the victim against the victim's will." "[I]t is well-
established through case law that the removal or restraint element requires a purposeful
act." State v. Menton, 2009-Ohio-4640, ¶ 90 (7th Dist.). R.C. 2907.01(C) defines the
term "sexual activity" as either "sexual conduct or sexual contact, or both."
{¶ 28} The jury also found Nkoyi guilty of first-degree felony rape in violation of
R.C. 2907.02(A)(2). That statute provides that "[n]o person shall engage in sexual
conduct with another when the offender purposely compels the other person to submit by
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force or threat of force." A person acts purposely "when it is the person's specific intention
to cause a certain result." R.C. 2901.22(A). The term "force" is defined by R.C.
2901.01(A)(1) to mean "any violence, compulsion, or constraint physically exerted by any
means upon or against a person or thing." Therefore, given the plain language found in
both R.C. 2905.01(A)(4) and 2907.02(A)(2), a guilty verdict can be had only where the
accused, in addition to the other essential elements set forth within those two statutes,
engaged in "sexual conduct" with the victim.
{¶ 29} The term "sexual conduct" is defined by R.C. 2907.01(A) to include "vaginal
intercourse" between a male and female. "Vaginal intercourse between a male and a
female means penetration of the vagina with the penis." State v. Kettles, 2023-Ohio-
4024, ¶ 24 (12th Dist.). The term "sexual conduct" is also defined by R.C. 2907.01(A) to
include "the insertion, however slight, of any part of the body" into the "vaginal opening"
of another. "Thus, when the phrases 'vaginal intercourse' and 'vaginal opening' are read
together, it is apparent that sexual conduct occurs when there is penetration of the vaginal
opening by a penis or other body part." State v. Strong, 2011-Ohio-4947, ¶ 53 (1st Dist.).
"This necessarily includes digital penetration of the victim's vaginal opening with a finger
or fingers." State v. Zamora, 2023-Ohio-1847, ¶ 7 (12th Dist.); State v. Sanchez-Sanchez,
2022-Ohio-4080 ¶ 120 (8th Dist.) ("[t]he insertion of a finger into another person's vaginal
opening—digital penetration—is 'sexual conduct'"). "This penetration need only be slight,
however." Id. at ¶ 9, citing State v. Remy, 2018-Ohio-2856, ¶ 27 (2d Dist.).
{¶ 30} The Ohio Revised Code does not define "vaginal opening" as that term is
used in R.C. 2907.01(A). Id. But, "although not defined by the Ohio Revised Code, it is
generally well established that penetration of the victim's "vaginal opening" has occurred
where there was some forceful spreading of the external female genitalia, or vulva, which
is comprised of lip-like folds of skin called the labia majora." Id., citing State v. McCoy,
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2020-Ohio-4511, ¶ 72 (3d Dist.); see, e.g., State v. Rowland, 2020-Ohio-2984, ¶ 20 (12th
Dist.) ("[b]ased upon [the victim's] testimony, a jury could find that [appellant's] conduct in
'using his fingers to go between the lips' and touch her clitoris, which she described as
'located inside her vaginal opening,' necessarily caused [the victim's] labia majora to
spread"). "Ohio courts have, in fact, 'consistently held that vaginal penetration is proved
when any object is applied with sufficient force to cause the labia majora to spread.'" Id.,citing State v. Patterson, 2021-Ohio-2387, ¶ 24 (5th Dist.). "Therefore, 'although perhaps
medically imprecise—legally, the vagina begins at the external genitalia, not some deeper
internal structure.'" State v. Jackson, 2023-Ohio-3749, ¶ 18, (12th Dist.), quoting State v.
Artis, 2021-Ohio-2965, ¶ 97 (6th Dist.).
Nkoyi's Argument and Analysis
{¶ 31} To support this assignment of error, Nkoyi argues the state failed to present
sufficient evidence to prove, beyond a reasonable doubt, that he either kidnapped or
raped Alice as she had alleged. Nkoyi claims that this must be the case when considering
the state did not present any "forensic, video, or audio evidence" to corroborate Alice's
trial testimony, nor did the state offer any "evidence or testimony" to rebut the testimony
that Nkoyi provided to the jury upon taking the stand and proclaiming his innocence.
{¶ 32} However, based on a simple review of the record, we find Alice's testimony,
if believed, presents sufficient evidence to support the jury's verdict finding Nkoyi guilty of
both kidnapping and rape offenses beyond a reasonable doubt. See, e.g., State v.
Dandridge, 2021-Ohio-3355, ¶ 99 (8th Dist.) (finding teenaged child-victim's testimony
that appellant locked her in a bedroom, forced her to lay down, and tried to "use" a vibrator
on her, if believed, presented sufficient evidence that appellant "used force in restraining
[the victim's] liberty to engage in sexual activity, particularly in light of the age difference"
and relationship with the victim so as to support the jury's verdict finding appellant guilty
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of kidnapping in violation of R.C. 2905.01[A][4]); and State v. Howard, 2014-Ohio-3373,
¶ (9th Dist.) (finding teenaged child-victim's testimony that appellant forced her into his
house where he then pushed her down to her knees and onto the ground and put his
penis into her mouth and vagina, if believed, presented sufficient evidence to support the
jury's verdict finding appellant guilty of rape in violation of R.C. 2907.02[A][2]).
{¶ 33} Alice's testimony, if believed, establishes that after Nkoyi kissed Alice on the
lips, Nkoyi then grabbed Alice by the wrist and forced her into one of the two bathrooms
located within her family's apartment and locked the door behind him. Alice's testimony
also establishes that, after forcing Alice into the bathroom and locking the bathroom door,
Nkoyi then engaged in sexual conduct with Alice, a then 13-year-old girl, by digitally
penetrating her vaginal opening against her will. The jury clearly found Alice's testimony
credible, whereas Nkoyi's opposing testimony was not. This was not an error "for it is
well established that the jury, as the trier of fact, was free to believe all, part, or none of
each witnesses' testimony who appears before it." State v. Cast, 2022-Ohio-3967, ¶ 23
(12th Dist.). To the extent Nkoyi argues otherwise, such argument lacks merit.
{¶ 34} In so holding, we note that, "In rape cases such as this, 'courts have
consistently held that the testimony of the victim, if believed, is sufficient to support a
conviction, even without further corroboration.'" State v. Hernandez, 2011-Ohio-3765, ¶
40 (12th Dist.), quoting State v. Dunn, 2005-Ohio-1270, ¶ 11 (9th Dist.). Therefore,
contrary to Nkoyi's claim, neither forensic nor physical evidence is required to corroborate
Alice's allegations before the jury could find him guilty of kidnapping and rape beyond a
reasonable doubt. See State v. Timmons, 2014-Ohio-3520, ¶ 23 (10th Dist.). The fact
that Nkoyi took the stand in his own defense and denied any wrongdoing does not change
this fact. This is because, as discussed more fully below, "the decision whether, and to
what extent, to credit the testimony of particular witnesses is within the peculiar
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competence of the factfinder, who has seen and heard the witness." State v. Bedsole,
2022-Ohio-3693, ¶ 35 (12th Dist.). Accordingly, finding the state satisfied its burden of
production at trial, thereby establishing Nkoyi's conviction for kidnapping and raping Alice
was supported by sufficient evidence, Nkoyi's second assignment of error also lacks merit
and is overruled.
Assignment of Error No. 3:
{¶ 35} MR. NKOYI'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 36} In his third assignment of error, Nkoyi argues the jury's verdict finding him
guilty of kidnapping and raping Alice was against the manifest weight of the evidence.
We again disagree.
Manifest Weight of the Evidence Standard
{¶ 37} "[A] manifest-weight-of-the-evidence standard of review applies to the
state's burden of persuasion." State v. Messenger, 2022-Ohio-4562, ¶ 26. "To determine
whether a conviction is against the manifest weight of the evidence, this court must look
at the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving the conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered." State v. Lewis,
2020-Ohio-3762, ¶ 18 (12th Dist.), citing State v. Wilks, 2018-Ohio-1562, ¶ 168. But,
even then, a determination regarding the witnesses' credibility is primarily for the trier of
fact to decide. State v. Baker, 2020-Ohio-2882, ¶ 30 (12th Dist.), citing State v. DeHass,
10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Therefore, given that it is
primarily the trier of fact who decides a witness' credibility, this court will overturn a
conviction on manifest-weight grounds "only in extraordinary circumstances when the
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evidence presented at trial weighs heavily in favor of acquittal." State v. Kaufhold, 2020-
Ohio-3835, ¶ 10 (12th Dist.). When reviewing a jury verdict, this may occur "only when
there is unanimous disagreement with the verdict." State v. Marcum, 2016-Ohio-263, ¶
10 (12th Dist.), citing State v. Gibbs, 134 Ohio App.3d 247, 255 (12th Dist.1999).
Nkoyi's Argument and Analysis
{¶ 38} To support this assignment of error, Nkoyi argues the jury's verdict finding
him guilty of kidnapping and raping Alice was against the manifest weight of the evidence
because certain aspects of the trial testimony elicited from Alice, Beth, and Hicks were
inconsistent and contradictory. These contradictions included, among others, a dispute
between Alice's and Beth's trial testimony as to what room three of their other siblings
were located in when Nkoyi arrived at their family's apartment to take a shower. Nkoyi
argues that these inconsistencies "harm[ed] the weight of the evidence" offered by the
state and effectively prevented the state from meeting its burden of persuasion. Nkoyi
argues that this is especially concerning in this case because, rather than three ancillary
witnesses to the alleged crimes, this was the testimony of the victim, Alice, which was
"substantially undermined."
{¶ 39} However, although there were some inconsistencies in the testimony
elicited from Alice, Beth, and Hicks at trial, it is well established that "[i]nconsistencies in
the evidence alone do not mean that a decision is against the manifest weight of the
evidence." State v. Gregory, 2023-Ohio-1700, ¶ 16 (12th Dist.). This is particularly true
here when considering the inconsistencies in the testimony offered by these three
witnesses were relatively minor, thus falling well short of what it would take to render their
testimony inherently unworthy of belief. See, e.g., State v. Freeman, 2023-Ohio-3745, ¶
12 (12th Dist.) (finding "the inconsistencies in the testimony offered by the state's two
crucial witnesses was minor, thus falling well short of what it would take to render either
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of those two witnesses' testimony inherently unworthy of belief"); and State v. Berry, 2004-
Ohio-6027, ¶ 12 (12th Dist.) (noting "the inconsistencies in the testimony of the state's
witnesses were minor, and they did not render their testimony inherently unworthy of
belief").
{¶ 40} Moreover, even assuming the inconsistencies in the testimony elicited from
Alice, Beth, and Hicks were something more than just minor contradictions, which the
record indicates that they predominantly were not, it is primarily the trier of fact who
decides a witness' credibility. Kaufhold, 2020-Ohio-3835 at ¶ 10. "We must defer to the
jury's determinations of the witnesses' credibility." State v. Reed, 2023-Ohio-878, ¶ 42
(12th Dist.). This is because it is the jury, and not this court on appeal, which is in the
best position to judge the credibility of the testimony elicited from each witness who was
called to the stand to testify at a trial. State v. Ndubueze, 2024-Ohio-1414, ¶ 24 (12th
Dist.). This includes, of course, when Nkoyi himself took the stand in his own defense to
proclaim his innocence. This is why a conviction is not against the manifest weight of the
evidence simply because the jury chose to believe the testimony and evidence presented
by the state as opposed to what was presented by the accused. State v. Sheldon, 2023-
Ohio-2998, ¶ 33 (12th Dist.).
{¶ 41} Rather, as stated previously, it is only in extraordinary circumstances where
the evidence presented at trial weighs heavily in favor of acquittal will this court overturn
a conviction on manifest-weight of the evidence grounds. State v. Ridenour, 2023-Ohio-
2713, ¶ 50 (12th Dist.). This is not one of those extraordinary cases where the evidence
presented at trial weighs heavily in favor of acquittal. But see State v. Roan, 2020-Ohio-
5179, ¶ 27-46 (8th Dist.) (finding appellant's conviction for rape in violation of R.C.
2907.02[A][1][c] was the exceptional case where the evidence weighed heavily against
the appellant's conviction, thus rendering appellant's conviction for rape against the
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manifest weight of the evidence). This is also not one of those extremely rare cases
where the jury's verdict causes this court to question the nature of the proceedings before
the trial court. See Gardner v. Melling, 2017-Ohio-7809, ¶ 10 (12th Dist.). This is instead
a case that amounts to little more than he-said, she-said, a standard grouping of cases
where the credibility of the witnesses' testimony is paramount. See State v. Chasteen,
2014-Ohio-4622, ¶ 14 (12th Dist.) ("[t]he credibility of the witnesses is paramount in cases
such as this where the evidence amounts to little more than a matter of 'he said, she
said'"). Therefore, finding the state also satisfied its burden of persuasion, Nkoyi's third
assignment of error likewise lacks merit and is overruled.
Assignment of Error No. 4:
{¶ 42} THE APPELLANT WAS DEPRIVED OF HIS RIGHT TO A COUNSEL
THROUGH INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 43} In his fourth assignment of error, Nkoyi argues his trial counsel provided him
with ineffective assistance. To support this claim, Nkoyi argues his trial counsel was
ineffective for: (1) not making a Crim.R. 29(A) motion for acquittal at the close of the
state's case; (2) stipulating to the admission of state's Exhibit 30; and (3) failing to object
to Hicks' testimony describing what Alice told her during Hicks' interview of Alice
conducted at the Mayerson Center on December 22, 2022.
{¶ 44} However, given this court's decisions set forth above overruling Nkoyi's
second and third assignments of error finding the jury's verdict finding him guilty of both
kidnapping and rape offenses, Nkoyi's trial counsel making a Crim.R. 29(A) motion for
acquittal at the close of the state's case would have been futile. "An attorney is not
ineffective for failing to make a futile or frivolous request." State v. White, 2022-Ohio-
2182, ¶ 14 (12th Dist.). "Trial counsel is [also] not ineffective for failing to make a futile
argument." State v. Trafton, 2023-Ohio-122, ¶ 29 (12th Dist.); see, e.g., Cleveland v.
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Casals, 2013-Ohio-5578, ¶ 11 (8th Dist.) (appellant's trial counsel's failure to make a
Crim.R. 29[A] motion for acquittal at the close of the state's case was not deficient where
the evidence presented at trial, if believed, was sufficient to establish appellant's guilt
beyond a reasonable doubt, thereby rendering any Crim.R. 29[A] motion for acquittal that
appellant's trial counsel may have filed futile); and State v. Fox, 2015-Ohio-3892, ¶ 31
(4th Dist.) (appellant's trial counsel's failure to make a Crim.R. 29[A] motion for acquittal
at the close of the state's case was not deficient where, as the court had already
determined in an earlier assignment of error, appellant's conviction was not against the
manifest weight of the evidence).
{¶ 45} Additionally, this court's decision overruling Nkoyi's first assignment of error
wherein he challenged the trial court's admission of certain alleged hearsay evidence also
demonstrates that Nkoyi's trial counsel was not deficient for stipulating to the admission
of state's Exhibit 30. The same holds true as it relates to Nkoyi's trial counsel failing to
object to Hicks' testimony describing what Alice told her Nkoyi did to her sexually during
Hicks' interview of Alice conducted at the Mayerson Center on December 22, 2022. This
is because, as discussed more fully above, both state's Exhibit 30 and Hicks' testimony
describing what Alice told her Nkoyi did to her sexually were admissible under Evid.R.
803(4).
{¶ 46} "Counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment." State
v. Burns, 2014-Ohio-4625, ¶ 7 (12th Dist.). Given this presumption, to prevail on an
ineffective assistance of counsel claim, the appellant must satisfy the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). State v. Ford, 2021-Ohio-782, ¶
13 (12th Dist.). "[U]nder Strickland, in order to prevail on a claim that counsel was
ineffective, a criminal defendant must show (1) that his counsel's performance was
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deficient and (2) that that performance prejudiced him." State v. Simpson, 2020-Ohio-
6719, ¶ 18, citing Strickland at 687. Therefore, to establish his ineffective assistance of
counsel claim in this case, Nkoyi was required to show that his trial counsel's performance
was deficient, and that his counsel's deficient performance subjected him to be prejudiced
as a result. See State v. Johnson, 2023-Ohio-879, ¶ 15 (12th Dist.). Nkoyi failed to
establish either of those two prongs. Accordingly, because the failure to make an
adequate showing on either prong is fatal to an ineffective assistance of counsel claim,
see State v. Jewell, 2022-Ohio-2727, ¶ 9 (12th Dist.), Nkoyi's fourth assignment of error
lacks merit and is overruled.
Assignment of Error No. 5:
{¶ 47} THE APPELLANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL
THROUGH CUMULATIVE ERROR.
{¶ 48} In his fifth assignment of error, Nkoyi argues the cumulative error doctrine
requires his conviction be reversed and this matter remanded to the trial court for a new
trial. However, for the cumulative error doctrine to apply, "an appellate court must find
that multiple errors, none of which individually rose to the level of prejudicial error, actually
occurred in the trial court." State v. Cramer, 2004-Ohio-1712, ¶ 67 (12th Dist.), citing
State v. DeMarco, 31 Ohio St.3d 191, 197 (1987); State v. Madrigal, 87 Ohio St.3d 378,
398, 2000-Ohio-448 (noting that "in order even to consider whether 'cumulative' error is
present, we would first have to find that multiple errors were committed in this case").
Given this court's decisions set forth above related to Nkoyi's first four assignments of
error, Nkoyi failed to establish that the trial court committed any single error, let alone
multiple errors, which would trigger the application of the cumulative error doctrine to this
case. Therefore, finding the cumulative error doctrine inapplicable to the case at bar,
Nkoyi's fifth assignment of error lacks merit and is overruled.
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{¶ 49} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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