State v. K.A.C. , 2024 Ohio 1139 ( 2024 )

[Cite as State v. K.A.C., 2024-Ohio-1139.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 23AP-86
(C.P.C. No. 20CR-2171)
v. :
(REGULAR CALENDAR)
[K.A.C.], :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 26, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and Darren
Burgess, for appellee.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, K.A.C., appeals from a judgment entered by the
Franklin County Court of Common Pleas following a jury trial in which he was found guilty
of two counts of rape of a person less than 13 years old in violation of R.C. 2907.02. For the
following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 22, 2020, appellant was indicted on four counts of rape in violation
of R.C. 2907.02, all first-degree felonies. Specifically, Count 1 charged appellant with rape
by digital penetration, occurring on or about May 1 to September 1, 2012, when the victim
was 8 or 9 years old. Count 2 charged appellant with rape by digital penetration, occurring
on or about May 1 to September 1, 2013, when the victim was 9 or 10 years old. Count 3
charged appellant with rape by digital penetration, occurring on or about May 1 to
No. 23AP-86 2
September 1, 2014, when the victim was 10 or 11 years old. Count 4 charged appellant with
rape by digital penetration, occurring on or about May 1 to September 1, 2015, when the
victim was 11 or 12 years old.
{¶ 3} The matter proceeded to a jury trial commencing December 5, 2022.
Plaintiff-appellee, State of Ohio, presented the testimony of O.A. (“the victim”), Jennifer
Yasho, a victim intake case worker of the Children Services Division of Jefferson County
Department of Job and Family Services, O.A.’s mother, and Officer John Ball with the city
of Columbus.
{¶ 4} O.A. testified that she was born in 2003 and her birthday falls in the middle
of the summer. O.A. was born in Columbus but moved with her mother to another Ohio
town when she was five and lived there until she graduated from high school. O.A. testified
that her father stayed in Columbus, and that she would visit him during school breaks,
including extended stays during summer breaks when she would visit her father for weeks
or the entire summer break, from around the end of May through August.
{¶ 5} According to O.A., when she visited her father in Columbus, her father and
uncle would work during the day and during that time her father would leave her at her
uncle and aunt’s apartment. O.A. testified that while other people would be in the
apartment when she was dropped off, it was very common for her to end up being left alone
with her older cousin, appellant, who she believed lived with her uncle and aunt. She was
not sure where her aunt would be during the day and did not recall other children staying
at her aunt’s apartment while she was there, although she did recall playing with her cousin,
L.W.1, who is roughly her same age. Occasionally, but not often, O.A.’s siblings would go
to her aunt and uncle’s apartment too, and when they left to go play at the park, appellant
would stay behind with her at the apartment.
{¶ 6} O.A. testified that appellant began to physically assault her and, beginning in
summer 2013, the assaults progressed to become sexual in nature. Specifically, according
to O.A., after everyone left the apartment, appellant would engage in what he called a
“game” whereby he hit her and would see how loud she could scream. (Tr. Vol. II at 107-
09.) When O.A. did not tell anyone about the “game,” appellant’s conduct “escalated” and
became more aggressive and sexual. (Tr. Vol. II at 109.) O.A. testified that during the
episodes appellant would pin her down, cover her mouth or put his fingers around her neck,
No. 23AP-86 3
and hit her. Appellant’s conduct became “sexual” shortly after O.A.’s tenth birthday. (Tr.
Vol. II at 107, 113, 123, 134.) During the first sexual incident, appellant put his fingers “in
my private areas. * * * My vagina.” (Tr. Vol. II at 110.) She was unsure how many times
this occurred during summer 2013: “[i]t happened so many times while I was there that it
got to the point I lost track.” (Tr. Vol. II at 111.)
{¶ 7} According to O.A., she did not alert anyone about the assaults due to “fear”
and appellant continued to assault her. (Tr. Vol. II at 113.) During Christmas break, when
she was still 10, she “would either be penetrated with * * * a finger or a genitalia.” (Tr. Vol.
II at 130.) She testified she did not go to her father’s house the following summer, in 2014
when she turned 11, but during the next Christmas break appellant again sexually assaulting
her. O.A. testified that the sexual assaults by appellant stopped at some point during
summer 2015 because she fought back: “it started to get physical, you know, to the abuse
and it went to start to get sexual, however, I fought back and it ended up stopping.” (Tr. Vol.
II at 133.)
{¶ 8} O.A. testified that the assaults occurred at her aunt and uncle’s apartment in
the living room and appellant’s bedroom. She was shown photographs of the apartment
and she testified to her understanding of the apartment layout, how rooms are connected,
and uses of various rooms and spaces. She identified the bedroom where the incidents
occurred and identified appellant in the courtroom as the person who assaulted her.
{¶ 9} After the sexual assaults stopped, O.A. still did not tell anyone what had
occurred—she was “scared” to—but she did not want to visit her father anymore and those
visits ceased. (Tr. Vol. II at 117.) She ultimately disclosed the sexual assaults to her mother
around fall 2019. Her mother “immediately * * * tried to press charges and get everything
situated and for me to seek help.” (Tr. Vol. II at 119.) Yasho then became involved, and
O.A. “told her everything that had happened.” (Tr. Vol. II at 120.) The video of the
discussion between O.A. and Yasho was played for the jury and submitted into evidence.
{¶ 10} On cross-examination, O.A. agreed that when in her aunt and uncle’s
apartment, you could hear noises from neighbors’ apartments. She testified that during
appellant’s “game” she would scream “[l]oud enough to where it would sound like a child
was playing games. Just a child scream,” and that it was possible neighbors could have
heard her. (Tr. Vol. II at 158-59.) Asked about appellant hitting her, O.A. specified that
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he hit her all over her body, but never did so hard enough to leave bruises. O.A. confirmed
that she bit appellant on the penis “hard enough that he got off of me,” that appellant then
hit her, and the incident prompted the assaults to stop. (Tr. Vol. II at 176-77.) She agreed
she disclosed this incident to Yasho. Regarding the disclosure to her mother, O.A. stated
her mother pressured her to talk in order to find out “why her child was acting so distant”
and agreed her mother wanted to have appellant charged and “go to court.” (Tr. Vol. II at
157, 160.) O.A. also agreed she had another relative with the same first name as appellant
on her mother’s side of the family.
{¶ 11} The state then called Yasho to testify. According to Yasho, after being
contacted by O.A.’s mother, she conducted a video-recorded forensic interview with O.A. in
December 2019 when O.A. was 16.
{¶ 12} Yasho testified that during the interview, O.A. remained “relatively calm” and
cried a little. (Tr. Vol. II at 199.) According to Yasho, O.A. disclosed that her cousin had
sexually assaulted her over the course of several years during O.A.’s visitations with her
father in Columbus. Specifically, O.A. stated during the interview that her father would
drop her off at his residence, which he shared with O.A.’s uncle, for babysitting by her
cousin. She stated that although other people came in and out of the apartment no one else
would be present when appellant assaulted her. O.A. told Yasho the assaults started when
she was about the age of 8 or 9 and continued for about 4 years until the age of 12, which
was the last time she had contact with her cousin. O.A. stated that appellant “told her that
they would play this fun game called the scream game,” which started out with * * * him
hitting her * * * and that if she would scream, he would put his hands over her mouth and
hold her down.” (Tr. Vol. II at 200.) Then, appellant “would use his hands or his private
parts to touch her underneath her clothing or take her clothing off and insert his hands or
private parts into her private parts.” (Tr. Vol. II at 200.) Yasho testified that O.A. stated
“on the last time it happened, that he actually put his private part into her mouth and she
bit it because she couldn’t scream.” (Tr. Vol. II at 217.)
{¶ 13} According to Yasho, O.A. was detailed in her disclosure of the sexual assaults
but did not identify particular dates the assaults occurred. In Yasho’s experience, it is not
uncommon for a victim to be unable to recall particular dates when the victim was abused
as a child and years pass before they are interviewed. Yasho testified that when a child
No. 23AP-86 5
chooses to disclose abuse depends on the child. Yasho stated that, after the interview with
O.A. ended, she provided a copy of the interview to the Columbus Police Department, and
that was the end of her involvement with the case.
{¶ 14} The prosecution then called O.A.’s mother to testify. According to O.A.’s
mother, beginning around 2009 O.A. would go to see her father and his side of the family
in Columbus during holidays and summer break. The visits to Columbus stopped in 2015
when O.A. was 12 years old and no longer wanted to go to Columbus. After that point, O.A.’s
mother noticed that O.A. was more withdrawn, changed her appearance, and had self-
esteem issues. O.A.’s mother questioned her about what was going on in her life and,
eventually, O.A. disclosed she was raped by her cousin at her aunt’s apartment after O.A.’s
father left for work and other adults left. O.A.’s mother called police, spoke with Jefferson
County Department of Job and Family Services, and found services to help O.A.
{¶ 15} Next, Officer John Ball testified on behalf of the prosecution. According to
Officer Ball, in 2019, when he worked in the sexual assault unit, he received a report of a
disclosure from O.A. asserting she was sexually assaulted by a relative. He spoke with
Yasho from children services, watched the videos of the interview, got a search warrant to
photograph the apartment, and interviewed appellant by phone. According to Officer Ball,
appellant acknowledged he knew O.A. and they were related, but did not recall his mother
babysitting O.A. and denied sexually assaulting her. Officer Ball walked through the
apartment himself and agreed the unit was small and “very loud”; there were a lot of people
in those apartment units and he had previously responded to noise complaints pertaining
to the building. (Tr. Vol. II at 281.) In his opinion, someone would be able to hear loud
noises like screaming in the next apartment. Due to the passage of time, he did not talk to
other witnesses or collect evidence beyond documenting the layout. He acknowledged it
was a mistake to not at least knock on a few doors to see if anyone knew about the alleged
incidents.
{¶ 16} At the close of the prosecution’s presentation of evidence, the prosecution
moved to amend Count 4 of the indictment under Crim.R. 7(D) to reflect evidence that the
conduct involved was not digital penetration but instead fellatio. The prosecution
additionally moved to admit the video of the interview with children services and
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photographs of the apartment. The exhibits were admitted without objection, and the state
rested its case.
{¶ 17} Defense counsel moved to acquit appellant, pursuant to Crim.R. 29, arguing
the evidence presented by the prosecution was insufficient to sustain the charges. The
prosecution conceded there was no evidence to support Count 1, which alleged appellant
raped O.A. during summer 2012 when she was 8 and 9 years old. The trial court dismissed
Count 1, but denied appellant’s motion as to Counts 2, 3, and 4 stating, “[o]bviously, comes
down to determinations of credibility, and certainly there is nothing in the testimony that
would prevent making it unreasonable for the jury to believe the State’s witnesses.” (Tr.
Vol. III at 298.) Appellant objected.
{¶ 18} The defense then called C.C., a friend of appellant’s mother (O.A.’s aunt) and
a neighbor, to testify. According to C.C., she moved into the apartment building in about
2011. From 2011 to about 2017, she lived in unit “1A,” which was located on “the other side
of the building” about four units away and a floor below appellant’s mother’s apartment.
(Tr. Vol. III at 337, 341-43.) C.C. then moved in March 2017 to unit “3E,” which was located
above and diagonal to appellant’s mother’s apartment, and lived there either through the
time of trial, since that was the address she provided the court, or less than six months prior
to trial based on her later testimony that she had moved out of the building in June 2022.
(Tr. Vol. III at 340-43.)
{¶ 19} C.C. testified she knew appellant through his parents. Appellant’s mother
was a babysitter for C.C.’s children for a long time and appellant’s father, now deceased,
would help her out around the house. The families would spend a lot of time together and
got to know each other well. As to appellant, C.C. testified that she did not know him as
well since she spent more time with his parents, and he did not live there the majority of
the time she did. She specified that she did know appellant lived in his mother’s apartment
“at some point,” that he did still live at that address in 2011, and that she did not know what
year appellant moved out of the apartment. (Tr. Vol. III at 311.) According to C.C., appellant
was “relatively a homebody” who kept to himself and was either at work or in his room. (Tr.
Vol. III at 314.)
{¶ 20} C.C. described the noise levels in the apartments as “loud” and the walls on
the apartments as “thin.” (Tr. Vol. III at 309.) “You pretty much hear everything coming
No. 23AP-86 7
and going, front door slams, people opening and closing their door. * * * [Y]ou can hear - -
pretty much hear throughout that whole building.” (Tr. Vol. III at 309.) C.C. stated that,
from her 3E apartment, she could hear yelling from appellant’s mother’s apartment and the
unit above appellant’s mother’s apartment could hear normal speaking voices. She also
testified that from her apartment on the other side of the building she would have been able
to hear screaming and loud noises from appellant’s mother’s apartment and, during the
period in question, she did not hear anyone screaming for help or anything along those
lines.
{¶ 21} C.V. was then called as a witness on behalf of appellant. C.V. testified he and
appellant are best friends and had been for over 10 years. The two spend time together
playing video games and watching movies. According to C.V., appellant lived with his
mother at her apartment “[b]efore he turned 18” and then appellant, C.V., and another
roommate lived together at an apartment on Greenfield Drive from 2013 to 2014. (Tr. Vol.
III at 322.) During the time at the Greenfield Drive apartment, C.V. testified that he and
appellant would spend most of their non-working hours together, mostly playing video
games. He testified he never met someone named O.A. during that time.
{¶ 22} The defense called three witnesses: L.W.1, L.W.2, and C.H., who were minors
at the time of trial, to testify as to their experiences in appellant’s mother’s apartment and
interactions with appellant. L.W.1 testified she was born in 2005 and is appellant’s niece.
According to L.W.1, because her father was in jail and her mother “wasn’t around,” she
began living with appellant’s mother and father (her grandparents) beginning when she
was 11 months old to when she was about 11 or 12 years old. (Tr. Vol. III at 348.) They
shared the apartment with appellant and, although she had contact with him, they did not
hang out since he mostly stayed in his room to play video games. She did not recall meeting
anyone named O.A. but did remember her grandfather’s brother (who is O.A.’s father)
coming to the apartment “occasionally.” (Tr. Vol. III at 365.) She also testified that she
would occasionally leave the apartment to stay with other family or visit her father in jail.
{¶ 23} L.W.1 testified she moved in with her father when she was around 11 or 12
years old and stayed with him for around one and one-half years before moving in with
appellant and his girlfriend when she was a freshman in high school around 2018 or 2019.
No. 23AP-86 8
L.W.1 then moved back in with appellant’s mother in the middle of her sophomore year of
high school.
{¶ 24} The second minor, L.W.2, testified she was approximately the same age as
her cousin L.W.1 and is also appellant’s niece. According to L.W.2, she had known
appellant since she was a baby and appellant watched her and L.W.1., “all the time” in
appellant’s mother’s apartment. (Tr. Vol. III at 372.) L.W.2 explained, “[m]y mom would
have to work and she would drop me off at the apartment and [appellant] would be - - he
would watch us when I would get there. It was probably early in the morning and he would
just watch me, and my cousin would be asleep. And he would just watch us and would take
* * * [m]aking sure we are safe and, you know, feeding us, taking care of us. He might play
with us” but “he might just check on us, * * * you know, he would just play his video games
because as we were younger, he was just in his teens.” (Tr. Vol. III at 372-73.) According to
L.W.2, appellant had watched her in this way “[f]rom the time I was, like, about six months
old till, like, 15, still sometimes now, but not as much.” (Tr. Vol. III at 375.) L.W.2.
confirmed that during this period, she would spend time with L.W.1 at appellant’s mother’s
apartment. L.W.2 agreed she was “specifically babysat by [appellant], not by his mother.”
(Tr. Vol. III at 379.)
{¶ 25} L.W.2 testified that, mostly, it was just her and L.W.1 there at the apartment
with appellant, but other children—all boys—would at times be there too. According to
L.W.2 she did not know anything about O.A., had never met O.A. or heard her name, and
had never seen her at the apartment. She confirmed that during 2013 she was 8 years old,
and nothing ever happened to her during the relevant period that she considered
frightening or inappropriate. She agreed she was not at the apartment every day and that
sometimes in the summer she would be at home with her mother.
{¶ 26} The third minor, C.H., testified to being approximately the same age as L.W.1
and L.W.2, and she lived in the same apartment building as appellant from the age of
“under one” to “around 12.” (Tr. Vol. III at 386.) Although her apartment was on the same
floor as appellant’s mother’s apartment, C.H. could not hear anything going on in the
apartment. According to C.H., “he babysat” her and L.W.1 “about three or four days a week
maybe.” (Tr. Vol. III at 391.) C.H. later testified it was appellant’s parents who watched
them while appellant was isolated in his room and specified it was “mostly” appellant’s
No. 23AP-86 9
mother who babysat them. She would see appellant in the hall and in the living room, but
he generally played video games. In addition to L.W.1, C.H. remembered seeing L.W.2, but
she testified she was not familiar with O.A. “I have no idea who that is.” (Tr. Vol. III at 396.)
{¶ 27} Appellant’s mother (O.A.’s aunt), was the next witness to take the stand on
behalf of the defense. Appellant’s mother testified that she still lives in the same apartment
and her husband died in 2020. According to appellant’s mother, appellant lived with her
“up until 2013.” (Tr. Vol. III at 404.) She testified she knows O.A. and had seen O.A. at her
apartment “[p]robably in 2009” when O.A. was about three years old and stayed at the
apartment for one night. (Tr. Vol. III at 406.) To her knowledge, O.A. had not been in her
apartment since then, and she has not seen O.A. at family functions. Appellant’s mother
testified that she does talk to O.A.’s father on the phone and sees him at family functions.
O.A.’s father would visit her apartment frequently, “maybe around [the] holidays.” (Tr. Vol.
III at 415.)
{¶ 28} Appellant’s mother testified that she babysits a lot and has 4 to 5 kids in her
house in a typical day. She raised L.W.1 since she was 11 months old and testified there has
never been a time when L.W.1 has not lived with her. She later testified L.W.1 did live with
her father at some point, but she still had custody and L.W.1 returned in 2020. She also
watched L.W.2, C.H., and all 4 of C.C.’s kids at her apartment. To the best of her knowledge,
appellant was not alone with C.H., L.W.1, or L.W.2 in her apartment.
{¶ 29} A.A., grandmother to both O.A. and appellant testified that she knows O.A.
and has a good relationship with her. According to A.A., she was able to see O.A. until O.A.
was about 3 or 4 years old when her mother moved to another Ohio town. She testified
O.A.’s father (her son), had lived with her recently but did not live with her in 2012.
{¶ 30} Appellant then testified as the final witness for the defense. According to
appellant, he was born in 1993 and lived in his mother’s apartment until the beginning of
2013, at which time he moved out and into an apartment on Greenfield Drive with a friend
and, part of the time, C.V. Appellant testified he lived in the Greenfield apartment for six
years, from 2013 to 2019.
{¶ 31} Defense counsel attempted to introduce a letter pertaining to appellant’s
residential history, which spurred an objection by the prosecution. Counsel for both parties
discussed the letter during a sidebar with the judge, during which the prosecution stated
No. 23AP-86 10
the letter appeared to be a “gas paper” and, “[i]t looks like there was confirmation that he
had gas at this address * * * from 2015 to 2017.” (Tr. Vol. III at 435.) As to grounds for
the objection, the prosecution claimed the gas letter was not provided in discovery and
asserted defense counsel never filed a notice of alibi. Defense counsel replied “[i]t may be
a minor problem,” but appellant had already testified about where he was living and the gas
letter was important to show he was living elsewhere at the time of the incidents. (Tr. Vol.
III at 435.) The trial court determined the defense could not present evidence of alibi since
they did not provide prior notice and agreed with the prosecution’s suggestion that the
defense “move on a different direction of questioning since he established there is a
different address.” (Tr. Vol. III at 436.)
{¶ 32} Shifting back to the time appellant lived with his mother, appellant agreed he
had contact with a lot of younger girls, including L.W.1, L.W.2, and C.H., since his mother
was their babysitter. Appellant testified he mostly saw the girls in passing and did not allow
anyone in his room. When asked if he would also babysit the girls, appellant responded:
Depends how you define babysitting. Like, if she had to run to
the store or something, she would open my door and say, hey,
I am running to the store, kids are out there, and I would just
acknowledge, okay. And 90 percent of the time, I never even
knew when she came back because I was too into my video
game.
***
If they got hungry or something, they would come and ask me
to make them something to eat, get them something to drink,
but most of the time they really didn’t bother me.
(Tr. Vol. III at 431-32.)
{¶ 33} Appellant acknowledged knowing O.A. and remembered “seeing her for the
first time when she was one year old” and O.A. and her parents living close to their
grandmother. (Tr. Vol. III at 433.) Appellant testified that, since seeing O.A. as a baby in
her parent’s home, he has seen O.A. “[n]ot often at all” and possibly could have seen her at
family gatherings. (Tr. Vol. III at 437.)
{¶ 34} On cross-examination, appellant testified that during summer 2013, he
would have been 19 going on 20 years old. He agreed that he would stay back in the
apartment if his brothers or sisters would go to the park and disagreed with L.W.2’s
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testimony that appellant babysat the younger girls. Appellant did not recall a night when
O.A. stayed with them when she was 3 years old and testified he would see O.A.’s father
“sometimes * * * [b]ut not very often.” (Tr. Vol. III at 442.) Appellant reiterated that he
had only seen O.A. when she was 1 year old at her parent’s house and, when asked how it is
possible O.A. knew where his bedroom was he replied “[m]ost people knew where my
bedroom is. * * * They know I never came out of it so most people knew the door was closed
90 percent of the time, that was my room. * * * I wouldn’t know if she was in the house or
not. Like I said, I didn’t come out very much. I played video games 90 percent of the time.”
(Tr. Vol. III at 444.)
{¶ 35} On re-direct examination, appellant testified that, to the best of his
knowledge, O.A. was never in his bedroom. Appellant denied O.A. screamed in his
bedroom and denied raping O.A. over a four-year period. He testified that, to the best of
his knowledge, other people would be in the apartment that could have, due to the
acoustics, heard what was going on in the apartment. Appellant, when asked by defense
counsel, denied that he paid anyone to come to court to lie for him.
{¶ 36} The defense rested its case, and the matter proceeded to closing arguments.
During closing arguments, the prosecution emphasized various contradictions between the
testimonies of the three girls, appellant’s mother, and appellant, and remarked “how do we
believe them at all? How do we believe they never saw [O.A.] in that apartment? It is all a
contradiction. It is a lie.” (Tr. Vol. IV at 462.) Defense counsel’s argument centered on the
lack of a quality investigation by police, which forced defense counsel to find witnesses, and
whether O.A. essentially “gave up” trying to tell people the truth and submitted to the
persistence of her mother and the caseworker in pursuing an untrue, “cooked up” narrative
that appellant raped her. (Tr. Vol. IV at 473-74.) In its rebuttal argument, the prosecution
responded by stating, “defense counsel said that he had to go out and hunt down these
witnesses to complete the investigation. An investigation is not bringing in witnesses who
are going to make up a story or lie about [O.A.] being there. That is just bringing in
witnesses to bolster something that is untrue.” (Tr. Vol. IV at 485.) The jury was instructed
that the evidence does not include the indictment or the opening or closing arguments of
counsel, that jury members are the sole judges of the facts, the credibility of the witnesses,
and the weight of the evidence, and that it is the jury’s “province to determine what
No. 23AP-86 12
testimony is worthy of belief.” (Tr. Vol. IV at 491-93; Dec. 8, 2022 Jury Instructions at 2-
4.)
{¶ 37} Following deliberation, the jury found appellant guilty of rape in Count 2 for
engaging in sexual conduct, digital penetration, with O.A. on or about May to September
2013 when she was less than 13 years old, with an additional finding that O.A. was not under
the age of 10 years old at the time of the offense, and guilty of rape in Count 4 for engaging
in sexual conduct, fellatio, with O.A. on or about May to September 2015 when she was less
than 13 years old. The jury further found appellant not guilty of rape in Count 3, which
involved sexual conduct on or about May to September 2014. Following a hearing, the trial
court sentenced appellant to an indefinite sentence of 10 years to life on each count, served
consecutively, for a total of 20 years to life in prison, and notified appellant of lifetime
sexual offender registration duties.
II. ASSIGNMENTS OF ERROR
{¶ 38} Appellant timely appeals and assigns the following five assignments of errors
for our review:
[I.] A criminal defendant is deprived of his right to effective
assistance of counsel when his counsel’s performance at trial is
objectively unreasonable by failing to disclose to the State his
intention to claim alibi in violation of the Sixth and Fourteenth
Amendments of the United States Constitution; Article I,
Sections 10 and 16 of the Ohio Constitution.
[II.] The trial court erred when it denied [appellant’s] Rule 29
Motion for Acquittal.
[III.] The verdicts of guilt as to all counts were against the
manifest weight of the evidence.
[IV.] The trial court erred when it, over objection, failed to
strike or otherwise instruct the jury to disregard certain
statements made by the prosecution during closing.
[V.] A sentence may not be sustained where the cumulative
errors that occurred in the trial deprived the [appellant] of a
fair trial.
No. 23AP-86 13
III. LEGAL ANALYSIS
{¶ 39} In this appeal, appellant asserts his trial counsel was ineffective concerning
the failure to disclose an intention to claim alibi, the trial court improperly denied his
Crim.R. 29 motion for acquittal and failed to strike a statement by the prosecutor during
closing argument, his convictions are against the manifest weight of the evidence, and
cumulative error. Having considered appellant’s assigned errors, we find each to lack merit
for the reasons described below.
A. Ineffective assistance of counsel
{¶ 40} In his first assignment of error, appellant asserts he was deprived of his right
to effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel,
appellant must satisfy a two-prong test; his failure to satisfy either part of the test is fatal to
the claim. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136, 143 (1989).
{¶ 41} First, appellant must demonstrate that his counsel’s performance was
deficient. State v. Nicholson, __ Ohio St.3d __, 2024-Ohio-604, ¶ 318; Strickland at 687.
This first prong requires appellant to show “that counsel’s performance fell below an
objective standard of reasonable representation.” Nicholson at ¶ 318. Courts review claims
of ineffective assistance of counsel with a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. State v. Abdullahi, 10th Dist.
No. 21AP-350, 2024-Ohio-418, ¶ 41, citing State v. Conway, 109 Ohio St.3d 412, 2006-
Ohio-2815, ¶ 101.
{¶ 42} Second, appellant must establish that he was prejudiced by the deficient
performance. Nicholson at ¶ 318; Strickland at 687. The second prong requires appellant
to show that “there is a reasonable probability that but for counsel’s errors, the proceeding’s
result would have been different.” Nicholson at ¶ 318. A “reasonable probability” is one
sufficient to undermine confidence in the outcome of the trial. Id., citing Strickland at 694.
{¶ 43} In his assignment of error, appellant contends his counsel’s performance at
trial was objectively unreasonable by failing to disclose to the state his intention to claim
alibi in violation of Crim.R. 12.1. He distinguishes State v. Smith, 17 Ohio St.3d 98 (1985),
which determined a trial court did not abuse its discretion in precluding a defendant or
other alibi witnesses from testifying under certain circumstances. He argues that “[a]
No. 23AP-86 14
reasonably prudent lawyer would have known that they were required to submit a notice of
alibi 30 days before trial.” (Appellant’s Brief at 9.) Moreover, appellant asserts this conduct
was prejudicial because “the jury was not able to hear [appellant] testify to his residence
beyond stating that he lived somewhere else.” (Appellant’s Brief at 9.)
{¶ 44} Crim.R. 12.1 states:
Whenever a defendant in a criminal case proposes to offer
testimony to establish an alibi on his behalf, the defendant
shall, not less than thirty days before trial in a felony case and
fourteen days before trial in a misdemeanor case, file and serve
upon the prosecuting attorney a notice in writing of the
defendant’s intention to claim alibi. The notice shall include
specific information as to the place at which the defendant
claims to have been at the time of the alleged offense. If the
defendant fails to file such written notice, the court may
exclude evidence offered by the defendant for the purpose of
proving such alibi, unless the court determines that in the
interest of justice such evidence should be admitted.
{¶ 45} In this case, defense counsel filed a notice a notice of alibi on May 4, 2022,
which would fall more than 30 days prior to the December 2022 trial. In this notice, which
appears in the appellate record, appellant through counsel asserted he intended to establish
that he did not live at the location where the offenses were alleged to have occurred and
claimed that he had been “living at a different address for what may be a significant portion
of this period, and [was] attempting to obtain rental and utility records to prove this.”
(May 4, 2022 Notice at 1-2.) Considering appellant’s counsel did file a notice of alibi, one
that references the attempt to procure evidence appellant lived at another address, the
assignment of error and arguments made by appellant are factually against the record.
{¶ 46} Moreover, appellant has not established the inability to admit and reference
the gas letter prejudiced him. Appellant and other witnesses called by the defense were not
precluded from testifying regarding appellant’s residence during the years in question. The
gas letter’s usefulness in corroborating this testimony is limited since, as gleaned from the
sidebar discussion at trial, it appears to have only concerned dates from sometime in 2015
onward, which does not necessarily cover the dates in question. (See Tr. Vol. III at 435) (“It
looks like there was confirmation that he had gas at this address * * * from 2015 to 2017.”).
Significantly, the gas letter itself does not appear in the appellate record, which precludes
us from evaluating how its exclusion impacted appellant’s case. See State v. Plymale, 4th
No. 23AP-86 15
Dist. No. 15CA1, 2016-Ohio-3340, ¶ 39 (stating the appellant could not prevail in a direct
appeal on a claim of ineffective assistance of counsel premised on his trial counsel’s failure
to file a notice of alibi where his argument was “based on evidence that is outside the
record”); In re T.T., 6th Dist. No. OT-15-037, 2016-Ohio-5075, ¶ 12 (determining ineffective
assistance of counsel claim failed, even where it was undisputed appellant’s trial counsel
failed to file a notice of appeal, where the appellant could “only speculate that such [alibi]
testimony would have aided him at trial”).
{¶ 47} Finally, even if the gas bill covered dates in question, having gas at another
address does not establish appellant was never at his mother’s residence during the
pertinent timeframe. See State v. Nicholson, 8th Dist. No. 85977, 2006-Ohio-1569, ¶ 59
(explaining that where testimony did not provide the defendant with an alibi, the defendant
did not suffer any prejudice even if the notice of alibi was filed late). As a result, appellant
has not established either prong of the test for ineffective assistance of counsel.
{¶ 48} Appellant’s first assignment of error is overruled.
B. Crim.R. 29 motion for acquittal
{¶ 49} Appellant’s second assignment of error challenges the trial court’s denial of
his Crim.R. 29 motion for acquittal. Crim.R. 29(A) provides that the court, “on motion of
a defendant or on its own motion, after the evidence on either side is closed, shall order the
entry of a judgment of acquittal of one or more offenses * * * if the evidence is insufficient
to sustain a conviction of such offense or offenses.” “Review of the denial of a Crim.R. 29
motion and the sufficiency of the evidence apply the same standard.” Abdullahi, 2024-
Ohio-418, at ¶ 22, citing State v. Fugate, 10th Dist. No. 12AP-194, 2013-Ohio-79, ¶ 5.
{¶ 50} “[W]hether the evidence is sufficient as a matter of law to support a
conviction involves a determination of whether the state met its burden of production at
trial.” State v. Harris, 10th Dist. No. 21AP-678, 2023-Ohio-3994, ¶ 14, citing State v.
Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 16; State v. Frazier, 10th Dist. No.
05AP-1323, 2007-Ohio-11, ¶ 7; State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The
relevant inquiry is whether the evidence presented, when viewed in a light most favorable
to the prosecution, would allow any rational trier of fact to find the essential elements of
the crime proven beyond a reasonable doubt. State v. Jordan, __ Ohio St.3d __, 2023-
Ohio-3800, ¶ 16; State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus,
No. 23AP-86 16
superseded by state constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4.
{¶ 51} “[A]n appellate court does not ask whether the evidence should be believed
but, rather, whether the evidence, ‘if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.’ ” State v. Pountney, 152 Ohio St.3d 474,
2018-Ohio-22, ¶ 19, quoting Jenks at paragraph two of the syllabus. “A verdict should not
be disturbed on appeal unless reasonable minds could not reach the trier of fact’s
conclusion.” Jordan at ¶ 16, citing State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, ¶ 74. Whether there is legally sufficient evidence to sustain a verdict is a question of
law. Thompkins at 386.
{¶ 52} In support of the assignment of error, appellant argues the trial court should
have granted his Crim.R. 29 motion because the only evidence to support each charge was
the victim’s testimony recounting events allegedly occurring nearly ten years prior to trial,
there was no physical evidence, such as fingerprints or DNA, to support the charges, and
no corroborating witnesses. Having reviewed the record, we agree with the trial court that
the state presented sufficient evidence related to the rape charges to overcome appellant’s
Crim.R. 29 motion for acquittal.
{¶ 53} Appellant was convicted of two counts of rape, pursuant to R.C. 2907.02, of
a person less than 13 years of age. In pertinent part, R.C. 2907.02(A)(1)(b) states:
No person shall engage in sexual conduct with another who is
not the spouse of the offender * * * when any of the following
applies:
***
The other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
The definition of “[s]exual conduct” includes fellatio and, “without privilege to do so, the
insertion, however slight, of any part of the body * * * into the vaginal or anal opening of
another.” R.C. 2907.01(A).
{¶ 54} In this case, O.A. testified in pertinent part that while she was visiting her
father during her 2013 summer break, during which time she was nine years old and turned
ten, she was left in her aunt’s apartment while her father worked. After other people left
No. 23AP-86 17
the apartment, O.A. testified that appellant would engage her in a “game” where he would
hit her and see how loud she could scream. (Tr. Vol. II at 107-09.) According to O.A., the
game escalated to being more aggressive and, after she turned ten that summer, it turned
sexual. O.A. testified that during the first sexual incident in 2013, appellant put his fingers
“in my private areas. * * * My vagina.” (Tr. Vol. II at 110.) During that summer, “[i]t
happened so many times * * * I lost track.” (Tr. Vol. II at 111.) O.A. further testified that
appellant did not stop sexually assaulting her until summer 2015 when she fought back.
Specifically, O.A.’s testimony and Yasho’s account of her interview with O.A., along with
evidence that during this last occurrence appellant put his penis in O.A.’s mouth and O.A.
bit his penis.
{¶ 55} Contrary to appellant’s position, “[u]nder Ohio law, ‘a rape victim’s testimony
alone, if believed, is enough evidence for a conviction.’ ” State v. D.E.M., 10th Dist. No.
15AP-589, 2016-Ohio-5638, ¶ 111, quoting State v. Fortson, 8th Dist. No. 92337, 2010-
Ohio-2337, ¶ 47. See also State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 177, citing
State v. Dawson, 5th Dist. No. 2008-CA-122, 2009-Ohio-2331, ¶ 33 (“the testimony of one
witness, although it may be contradicted by another, is sufficient to support the finding if
the trier of fact finds said witness more credible”). In the same vein, corroborating physical
evidence is not required to secure a rape conviction.1 State v. Johnston, 12th Dist. No.
CA2021-09-085, 2022-Ohio-2097, ¶ 24 (“Ohio courts have consistently held that physical
evidence is not required to support a conviction for a sex offense, and the lack of physical
evidence does not mean the offense did not occur as testified to by a victim.”). See also
State v. Rigsbee, 10th Dist. No. 22AP-370, 2023-Ohio-1494, ¶ 27 (“The absence of
corroborating physical evidence does not negate the testimony of a witness to a crime.”).
{¶ 56} On this record, we agree with the trial court that the evidence presented,
when viewed in a light most favorable to the prosecution, would allow a rational trier of fact
to find the essential elements of rape proven beyond a reasonable doubt. Jordan at ¶ 16.
Accordingly, the trial court did not err in denying appellant’s Crim.R. 29 motion for
acquittal.
{¶ 57} Appellant’s second assignment of error is overruled.
1 Compare R.C. 2907.06(B) (providing that “[n]o person shall be convicted of [the crime of sexual imposition]
solely upon the victim’s testimony unsupported by other evidence”) with R.C. 2906.02 (providing
requirements to support a rape conviction without requirement to corroborate victim’s testimony).
No. 23AP-86 18
C. Manifest weight of the evidence
{¶ 58} With his third assignment of error, appellant contends the jury’s guilty
verdicts were against the manifest weight of the evidence. “Challenges to the sufficiency of
the evidence and the weight of the evidence involve distinct legal concepts and different
standards of review.” Jordan at ¶ 15, citing Thompkins at paragraph two of the syllabus.
“A verdict can be against the manifest weight of the evidence even though legally sufficient
evidence supports it.” Nicholson, 2024-Ohio-604, at ¶ 70. In contrast to a sufficiency
challenge, a manifest weight claim “attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion.” Harris at ¶ 15, citing State v.
Richey, 10th Dist. No. 17AP-260, 2018-Ohio-3498, ¶ 50, citing Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, ¶ 11-13, citing Thompkins at 386-87. In reviewing
whether a judgment is against the manifest weight of the evidence, an appellate court “looks
at the entire record and ‘ “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed, and a new trial ordered.” ’ ” Jordan at ¶ 17, quoting
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 59} “Although an appellate court reviews credibility when assessing the manifest
weight of the evidence, the court must be mindful that determinations regarding witness
testimony and the weight of testimony are primarily for the trier of fact.” State v. Jamii,
10th Dist. No. 21AP-330, 2023-Ohio-4671, ¶ 47, citing Harris at ¶ 17, citing State v.
DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The trier of fact was able
“ ‘to view the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.’ ” Harris at ¶ 17,
quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). A conviction is
not against the manifest weight of the evidence because the trier of fact believed the state’s
version of the events over the appellant’s. State v. Gale, 10th Dist. No. 05AP-708, 2006-
Ohio-1523, ¶ 19.
{¶ 60} Overall, “[a] manifest-weight challenge should be sustained ‘ “only in the
exceptional case in which the evidence weighs heavily against the conviction.” ’ ”
Nicholson, 2024-Ohio-604, at ¶ 71, quoting Thompkins at 387, quoting Martin at 175.
No. 23AP-86 19
Further, reversal of a jury verdict on manifest weight grounds requires unanimous
concurrence of all three judges on the court of appeals panel reviewing the case. Harris at
¶ 18, citing Article IV, Section 3(B)(3) of the Ohio Constitution; Bryan-Wollman v.
Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at paragraph four
of the syllabus.
{¶ 61} Appellant contends that “[t]he only physical and testimonial evidence
presented at trial was [O.A.’s] testimony” and the case lacked evidence such as fingerprints,
DNA evidence, and corroborating witnesses. (Appellant’s Brief at 16.) Appellant further
argues O.A.’s testimony lacked specificity as to when the assaults occurred: “Her testimony
described events which occurred during a large time frame but could not point to any
particular date.” (Appellant’s Brief at 16-17.) As a result, appellant asserts there is
“reasonable doubt” in this case. (Appellant’s Brief at 17.)
{¶ 62} Having reviewed the record, we disagree. As provided in the second
assignment of error, appellant was convicted of two counts of rape, pursuant to R.C.
2907.02(A)(1)(b), for engaging in sexual conduct with a person less than 13 years of age.
“Sexual conduct” includes “fellatio” and, “without privilege to do so, the insertion, however
slight, of any part of the body * * * into the vaginal or anal opening of another.” R.C.
2907.01(A).
{¶ 63} In this case, the credibility of O.A’s contention that appellant raped her over
multiple years was strengthened by her consistent and detailed accounts of appellant’s
conduct, the testimonies of Yasho and her mother which were consistent with O.A.’s
testimony, and even, at times, the recollection of some of the defense witnesses. O.A.
described to her mother, to Yasho, and to the jury a generally consistent account of
escalating conduct by appellant during holiday and summer breaks when she visited her
father and was babysat at her aunt’s apartment—appellant started with a “game,” which
advanced to more aggressive physical actions, and then proceeded to sexual conduct. He
only stopped when O.A, as an 11- or 12-year-old, fought back in 2015. O.A. was able to
describe her aunt’s apartment in detail, including the uses of each room, the proximity of
the rooms to each other, and details of the rooms where the sexual conduct took place.
{¶ 64} Consistent with O.A.’s account, O.A.’s mother testified that, in 2015, O.A. no
longer wanted to come to Columbus. O.A.’s mother became concerned with changes in
No. 23AP-86 20
O.A.’s behavior and appearance, prompting her to attempt to get O.A. to talk about what
was going on with her. When O.A. disclosed the assaults, her mother took immediate action
in contacting police, children services, and in attempting to get O.A. other help. Yasho’s
testimony describing O.A.’s disclosure was consistent with O.A.’s testimony and, in Yasho’s
opinion, O.A.’s disclosure was detailed. Also consistent with O.A.’s description of her
experience, the three minor children (L.W.1, L.W.2, and C.H.) called by the defense testified
that they did go to appellant’s mother’s apartment for babysitting and that appellant, at
minimum, was present. L.W.2 testified that appellant—not his mother—actually babysat
them, and appellant himself admitted to being left in charge of the younger girls in his
mother’s absence.
{¶ 65} Moreover, the jury could have reasonably found that appellant and the
defense witnesses’ testimony concerning O.A. lacked credibility. See Jamii at ¶ 47 (“The
trier of fact is free to believe or disbelieve all or any of the testimony provided at trial.”).
Even though appellant testified O.A. had not been in his mother’s apartment or in his room,
and his mother testified O.A. had been in the apartment when she was about three years
old, appellant could not explain how O.A. knew detailed information about her aunt’s
apartment or his room there. L.W.1 denied not just that she had never seen O.A.—a family
member akin to a cousin around her same age—in O.A.’s aunt’s apartment but denied even
knowing O.A. existed. This stood in contrast to the testimony of appellant, his mother (who
raised L.W.1), and his grandmother, who all described knowing O.A. since she was a baby.
{¶ 66} Furthermore, while appellant and his mother contended appellant moved out
in 2013, there was evidence presented that he continued to babysit at his mother’s
apartment, whether he lived there or not. According to L.W.2, appellant had watched her
until she was 15 years old—around 2020—and confirmed that during this period, she would
spend time at appellant’s mother’s apartment. C.C.’s testimony was undermined by the
lack of clarity as to when she lived in the apartment above and diagonal to appellant’s
mother’s apartment, and her insistence that she still could have heard screams from
appellant’s mother’s apartment when she lived on the other side of the apartment building.
As to the acoustics of the building, many witnesses, including O.A., acknowledged that the
apartment building was very loud and neighbors could hear each other, to the point of
police having to respond to noise complaints at the building. But that fact cuts both ways—
No. 23AP-86 21
the jury could reasonably conclude that a perpetually loud building could mask or
normalize the screams of a child.
{¶ 67} Lastly, appellant does not provide any legal authority in support of his general
contention that O.A. “could not point to any particular date” the sexual conduct occurred.
(Appellant’s Brief at 17.) As such, he has not demonstrated error. See State v. Hubbard,
10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34 (“[a]n appellant must support their
assignments of error with an argument, which includes citation to legal authority”), citing
App.R. 16(A)(7) and 12(A)(2); J.W. v. D.W., 10th Dist. No. 19AP-52, 2019-Ohio-4018, ¶ 55
(noting that it is not the duty of an appellate court to create a legal argument on an
appellant’s behalf).
{¶ 68} Nevertheless, appellant’s point in this regard lacks merit. Generally, “[i]n
cases alleging sexual misconduct involving a child, the state need not prove the offense
occurred on an exact date.” State v. T.E.H., 10th Dist. No. 16AP-384, 2017-Ohio-4140,
¶ 61. See also State v. Reinhardt, 10th Dist. No. 04AP-116, 2004-Ohio-6443, ¶ 20 (noting,
“[t]he precise date and time a rape occurs is not an essential element of the crime”).
Furthermore, Yasho testified that in her experience, it is not uncommon for a victim to be
unable to recall particular dates when the victim was abused as a child and years pass before
they are interviewed.
{¶ 69} Our review of the testimony in this case shows that, at times, counsel for both
parties stated incorrect dates and ages. However, viewed in its entirety, the record shows
O.A. consistently testified that appellant put his fingers into her vagina while she was
visiting her father during her 2013 summer break, after she turned ten years old. After the
sexual incidents started, she started to “draw a blank” and “[i]t happened so many times
* * * I lost track.” (Tr. Vol. II at 110-11.) According to O.A., appellant did not stop sexually
assaulting her until summer 2015 when she fought back. Through O.A.’s testimony and
Yasho’s account of her interview with O.A., the record shows that during this last
occurrence in summer 2015, appellant put his penis in O.A.’s mouth and O.A. bit his penis.
We note the jury, in finding appellant not guilty of rape for the 2014 summer time frame
and not finding him guilty of rape of a minor under the age of ten, paid careful attention to
the evidence of when the sexual conduct occurred in this case. Our own review of the record
No. 23AP-86 22
likewise shows the testimony as to when the sexual conduct occurred supports the
convictions.
{¶ 70} Overall, the trier of fact did not clearly lose its way and create such a manifest
injustice that the conviction must be reversed and a new trial ordered. Rather, the manifest
weight of the evidence supported appellant’s convictions for rape with respect to both
counts.
{¶ 71} Accordingly, appellant’s third assignment of error is overruled.
D. Prosecutorial misconduct in closing argument
{¶ 72} In his fourth assignment of error, appellant argues the trial court erred when
it, over objection, failed to strike or otherwise instruct the jury to disregard certain
statements made by the prosecution during closing argument. Appellant has not
demonstrated the trial court erred in this regard.
{¶ 73} “Courts afford prosecutors wide latitude in closing arguments, and
prosecutors may draw reasonable inferences from the evidence at trial, commenting on
those inferences during closing arguments.” Abdullahi, 2024-Ohio-418, at ¶ 28, citing
State v. Hunt, 10th Dist. No. 12AP-1037, 2013-Ohio-5326, ¶ 18. “The test regarding
prosecutorial misconduct in closing arguments is whether the remarks were improper and,
if so, whether they prejudicially affected substantial rights of the defendant.” State v.
Encarnacion, 10th Dist. No. 16AP-817, 2017-Ohio-5530, ¶ 10, citing State v. Smith, 14 Ohio
St.3d 13, 14 (1984).
{¶ 74} In assessing whether the prosecutor’s comments were improper, an appellate
court must review a closing argument in its entirety to determine whether prejudicial error
occurred: “[a] prosecutor’s isolated comments are not to be taken out of context and given
their most damaging meaning.” Encarnacion at ¶ 10, citing State v. Noling, 98 Ohio St.3d
44, 2002-Ohio-7044, ¶ 94. If the remarks were improper, “prosecutorial misconduct is not
grounds for reversal unless the defendant has been denied a fair trial.” Abdullahi at ¶ 28,
citing State v. Maurer, 15 Ohio St.3d 239, 266 (1984). State v. Wilkerson, 10th Dist. No.
01AP-1127, 2002-Ohio-5416, ¶ 38, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982)
(“ ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.’ ”).
No. 23AP-86 23
{¶ 75} Through this assignment of error, appellant asserts the prosecutor, in the
rebuttal of the defense’s closing argument, made the following improper statement:
Additionally, defense counsel said that he had to go out and
hunt down these witnesses to complete the investigation. An
investigation is not bringing in witnesses who are going to
make up a story or lie about [O.A.] being there. That is just
bringing in witnesses to bolster something that is untrue.
(Tr. Vol. IV at 485.) According to appellant, “the problem lies [in] the suggestion to the jury
that the only reason why they testified was to support the defendant’s contention that he
did not rape O.A. and suggests that they were lying.” (Appellant’s Brief at 19.) Appellant
argued the trial court was “unreasonable” in overruling appellant’s objection and the error
justifies reversal. (Appellant’s Brief at 19.)
{¶ 76} For the following reasons, appellant has not met his burden in demonstrating
the trial court erred in this case. As provided above, a prosecutor is given considerable
latitude in closing arguments. Encarnacion at ¶ 9. While a prosecutor may not express his
or her personal belief or opinion as to the credibility of a witness, the prosecutor may
comment on the evidence presented at trial and reasonable inferences drawn from the
evidence. Id. In line with this general rule, this court has determined a defense counsel’s
suggestion in closing arguments that the victim was not to be believed and that the
defendant’s version of events was more credible was not improper where the comment
could be inferred from the testimony at trial and the case hinged on the credibility of the
witnesses. Abdullahi at ¶ 35-36. See also State v. Young, 10th Dist. No. 18AP-630, 2020-
Ohio-462, ¶ 50 (finding no plain error from prosecutor’s comments that the witness “didn’t
lie” and “[was] believable” because the defense argued, at least in part, that the case hinged
on the witness’s credibility and the comments could be linked to the evidence presented);
Smith, 14 Ohio St.3d at 13 (determining prosecutor’s reference to defense evidence as “lies,”
“garbage,” “garbage lies,” “[a] smoke screen,” and “a well conceived and well rehearsed lie”
to be improper where the statements were not based on evidence presented at trial).
{¶ 77} Here, our review of the closing arguments, as a whole, shows the prosecutor’s
statement regarding the witnesses was based on his interpretation of the evidence showing
multiple contradictions in the witnesses’ testimony, rather than a statement of his personal
opinion. (See Tr. Vol. IV at 460-63) (discussing, in the prosecution’s principal closing
No. 23AP-86 24
argument, that the defense witnesses contradicted each other regarding appellant
babysitting the girls and what girls were present in the apartment). This case, like
Abdullahi, hinged on the credibility of the witnesses and we note the defense attorney in
closing similarly suggested O.A. was lying.2 Moreover, appellant has not shown that even
if the statement was improper, it denied him a fair trial. The jury was told repeatedly that
closing arguments are not evidence and that they were the sole judges of the facts and
credibility of the witnesses. (See Tr. Vol. IV at 455, 456) (“As the Court instructed you,
closing arguments * * * are not evidence. The evidence is what you heard over the past few
days of testimony presented and * ** exhibits.”); (Tr. Vol. IV at 491; Dec. 8, 2022 Jury
Instructions at 2) (“The evidence does not include the indictment or the opening statements
or closing arguments of counsel. The opening statements and closing arguments are
designed to assist you. They are not evidence.”); (Tr. Vol. IV at 492; Dec. 8, 2022 Jury
Instructions at 3) (“You are the sole judges of the facts, the credibility of the witnesses, and
the weight of the evidence.”); (Tr. Vol. IV at 493; Dec. 8, 2022 Jury Instructions at 4) (“It is
your province to determine what testimony is worthy of belief.”). Where the trial court
instructs the jury that closing arguments are not evidence, a reviewing court presumes the
jury followed that instruction and that the verdict is not based on the content of the closing
arguments. Abdullahi at ¶ 36, citing State v. Nichols, 10th Dist. No. 19AP-113, 2020-Ohio-
4362, ¶ 28, citing State v. Fudge, 10th Dist. No. 16AP-821, 2018-Ohio-601, ¶ 52. Noling at
¶ 95 (concluding that no prejudicial error warranting reversal occurred based on potential
improprieties in the prosecutor’s argument where the court instructed the jury that
counsel’s arguments were not evidence).
{¶ 78} Considering all the above and noting that appellant failed to provide any legal
support for his argument, we conclude appellant has not met his burden to demonstrate
the trial court erred when it, over objection, failed to strike or otherwise instruct the jury to
disregard the statement at issue made by the prosecution during closing arguments. App.R.
16(A)(7) and 12(A)(2). As a result, appellant’s assignment of error lacks merit.
{¶ 79} According, appellant’s fourth assignment of error is overruled.
2 Defense counsel suggested O.A., after being pressured by her mother and Yasho, “gives up” on telling the
truth and starts saying what the adults “want to hear.” (Tr. Vol. IV at 473.)
No. 23AP-86 25
E. Cumulative error
{¶ 80} Appellant argues that cumulative errors and omissions in his case violated
his constitutional rights. Under the doctrine of cumulative error, “a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial
even though each of the numerous instances of trial-court error does not individually
constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 223.
{¶ 81} In order to consider whether cumulative error is present, we must first find
that multiple errors occurred in the case. State v. Blanton, 171 Ohio St.3d 19, 2022-Ohio-
3985, ¶ 80; State v. Shine-Johnson, 10th Dist. No. 17AP-194, 2018-Ohio-3347, ¶ 109. As
determined above, appellant’s claims of error lack merit and, therefore, he “ ‘cannot
establish a right to relief simply by joining those claims together.’ ” Nicholson, 2024-Ohio-
604, at ¶ 343, quoting Dean at ¶ 296.
{¶ 82} Appellant’s fifth assignment of error is overruled.
IV. CONCLUSION
{¶ 83} Having overruled appellant’s five assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and JAMISON, JJ., concur.