State v. McKinney , 2024 Ohio 4642 ( 2024 )

[Cite as State v. McKinney, 2024-Ohio-4642.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 23CA21
v. :
KEITH D. MCKINNEY, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Karyn Justice, Portsmouth, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and
Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting
Attorney, Ironton, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-17-24
ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment of conviction and sentence. A jury found Keith
D. McKinney, defendant below and appellant herein, guilty of
eight counts of rape, in violation of R.C. 2907.02(A)(1)(b).
Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE
IN HIS REPRESENTATION OF THE APPELLANT.”
LAWRENCE, 23CA21 3
SECOND ASSIGNMENT OF ERROR:
“APPELLANT’S CONVICTIONS ARE NOT SUPPORTED
BY THE EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“APPELLANT’S SENTENCE IS CONTRARY TO LAW.”
{¶2} On June 1, 2021, a Lawrence County Grand Jury returned
an indictment that charged appellant with 100 counts of first-
degree rape, in violation of R.C. 2907.02(A)(1)(b). The
indictment alleged that each offense involved a single victim
less than 13 years of age.
{¶3} On April 4 and 5, 2022, the trial court held a jury
trial. Before the trial began, the State asked the court to
amend the indictment and “to nolle counts eleven through one
hundred and proceed on counts one through ten.” The court
granted the State’s request and the case proceeded to trial.
{¶4} The State called the then-13-year-old victim, S.H., as
its first witness. S.H. testified that appellant, her mother’s
boyfriend, moved in with S.H.’s family around the end of 2019,
and continued to live with her family for almost two years.
S.H.’s mother worked evenings and appellant stayed home to watch
S.H. and her siblings.
{¶5} According to S.H., when appellant first moved into the
house, he seemed “pretty nice,” but later “became very violent”
LAWRENCE, 23CA21 4
and would beat her and her sisters if they “made him a little
bit angry.”
{¶6} One day in late March 2020, S.H. (then 11 years of
age) and appellant were in her mother’s bedroom while the other
children slept and S.H.’s mother was at work. Appellant had
been playing a video game, and then he began to touch S.H.,
first above her clothes and then under her clothes. Appellant
told S.H. that if she reported the event to anyone, she “would
lose [her] family.”
{¶7} A couple of days later, S.H. and appellant were again
in her mother’s bedroom, and this time, appellant asked S.H. “to
get on the bed.” S.H. said she complied because she “was
scared” that if she did not, appellant would “beat [her].” She
explained that he had beaten her in the past. Once on the bed,
appellant removed her clothes and began to touch her. Appellant
then placed his penis inside her vagina. S.H. remembers being
in “a lot of pain” and stated that the encounter lasted about
four or five minutes.
{¶8} Afterward, appellant continued to have intercourse
with S.H. “[f]our or five times a week, whenever [her] mom was
working.” S.H. stated that the events occurred either in her
room or in her mother’s bedroom. In total, appellant engaged in
LAWRENCE, 23CA21 5
sexual intercourse with S.H. “probably close to a hundred”
times.
{¶9} In addition to sexual intercourse, S.H. indicated that
appellant performed cunnilingus, the first time occurred on her
12th birthday. Appellant told her that “oral sex” “was going to
be [her] birthday present from him.” After appellant completed
this act, he engaged in vaginal intercourse with S.H. He also
kissed her for the first time and told her that “he loved
[her].”
{¶10} One time, when S.H.’s mother was home asleep, and S.H.
in the bathroom, appellant asked her “to perform oral sex on
him.” S.H. complied with his instruction, but her sisters
knocked on the bathroom door and interrupted the act.
{¶11} Near the end of 2020, S.H.’s mother kicked appellant
out of the house because she became tired of appellant “hitting
[her children].” Her mother later allowed appellant back into
the home, but first installed cameras throughout the house so
she would know if appellant “was hitting” the children. S.H.
stated that things improved after her mother installed the
cameras.
{¶12} One evening in 2021, after the cameras had been
installed, S.H. went outside to look at the stars. Appellant
LAWRENCE, 23CA21 6
also went outside and then engaged in vaginal intercourse with
S.H. S.H. stated that she “remember[ed] being on the ground and
then [her] mom called.” Appellant “quickly got off of top of”
S.H.
{¶13} Appellant’s sexual abuse eventually came to light when
one of S.H.’s friends “wanted a sex toy,” and the friend asked
S.H. to talk to appellant about obtaining one. S.H. stated that
she “really wanted” this friend to like her, so she asked
appellant. Appellant told S.H. “that it came at a price” and
told the friend that she must “have to have a threesome with”
him and S.H. Appellant stated that having a threesome “was his
dream.” They later went to a shopping mall and appellant
purchased a sex toy. S.H. later told the friend about
appellant’s inappropriate conduct.
{¶14} On cross-examination, defense counsel asked S.H. one
question: “Who’s your mom’s boyfriend now?” S.H. responded,
“[h]is brother.”
{¶15} The State’s next witness, Ironton Police Officer Joe
Ross (retired at the time of trial), testified that on April 25,
2021, S.H.’s friend reported the allegations to her
grandparents, who, in turn, reported the allegations to the
police. After speaking with S.H.’s friend, Ross talked with
LAWRENCE, 23CA21 7
appellant and S.H. and S.H. “was very distraught.” She was
“actually laying down in the street, uh, screaming and crying.”
Neither officers nor S.H.’s mother could “get her to do
anything” for 20 or 30 minutes. Ross eventually informed S.H.
that he was “going to leave” and then talked to appellant.
Appellant agreed to accompany Ross to the police station.
{¶16} Upon arriving at the police station, Officer Ross told
appellant about the allegations and stated that he would be
recording the interview. Near the start of the interview,
appellant advised Ross that he has been diagnosed with
schizophrenia, bipolar II disorder, anxiety, depression, and a
manic disorder.
{¶17} Initially, appellant denied any inappropriate behavior
with S.H. He explained that S.H. asked him if he would “do
stuff with her,” like “intercourse,” but he told her “no.”
Appellant later indicated that “if we were to do anything, it
would have been consensual.” Appellant then stated that he and
S.H. had engaged in consensual vaginal intercourse one time,
which he believed occurred two months ago or longer. Appellant
also disclosed that, before they started to have intercourse,
S.H. “gave [him] a blow job.” He reported that they only
engaged in sexual conduct this one time and afterwards, he told
LAWRENCE, 23CA21 8
S.H. he “can’t do this.” Appellant claimed that S.H. continued
to ask him to “have sex,” but he told her no.
{¶18} Appellant further asserted that “the intercourse
itself . . . was more of an accident.” He elaborated that he
has “certain boxers” that he no longer wears because his “junk
would come out easily.” Appellant explained that one day
(apparently when wearing these boxers), S.H. was not wearing any
shorts or underwear and he “walk[s] around in [his] underwear
all the time.” Appellant indicated that he “got up and she seen
it and then she tried to get it.” Appellant said, “Oh! Okay!”
So, in appellant’s view, the sex “was consensual.” Afterward,
appellant told S.H. they had made “a big mistake” and “we need
to stop.” Appellant admitted that he “knew it was wrong,” and
claimed that “[i]t was a one-time thing.”
{¶19} As the interview ended, Ross asked appellant if he had
“been accused of this before.” Appellant responded, “Yes.”
Appellant’s counsel objected and asked the trial court to strike
appellant’s statement. The court subsequently instructed the
jury “to disregard the statement, ‘Have you been accused of this
before?’” and appellant’s response. The court asked defense
counsel if “the instruction [was] sufficient,” and counsel
LAWRENCE, 23CA21 9
responded affirmatively. After the interview ended, Ross
arrested appellant and took him to jail.
{¶20} On cross-examination, defense counsel asked Ross
whether law enforcement officers had conducted any DNA testing.
Ross responded that officers had not tested any DNA.
{¶21} After Ross’s testimony, the State rested. Defense
counsel indicated that appellant would not testify and the
defense likewise rested.
{¶22} During the jury’s deliberations, the jury submitted a
question: “Do we need to have ten specific instances or dates to
find [appellant] guilty of all ten counts?” The court
instructed the jury: “You must consider each count and the
evidence applicable to each count separately. Therefore, you
must evaluate the testimony and exhibits and then determine
whether the defendant is guilty or not guilty as to each of the
ten counts.”
{¶23} The jury later asked for a transcript of S.H.’s
testimony. The court advised the jury that a transcript did not
exist.
{¶24} The jury later asked, “Is a witness’s testimony to be
considered to be proof beyond a reasonable doubt?” The court
instructed the jury:
LAWRENCE, 23CA21 10
Please refer to the jury instructions. You are not
required to believe the testimony of any witness simply
because the witness is under oath. You may believe or
disbelieve all or any part of the testimony of any
witness. It is your duty to decide what testimony to
believe and what testimony not to believe. The testimony
of one witness, if believed by you is sufficient to prove
any disputed facts.
{¶25} After deliberation, the jury returned and found
appellant guilty of counts one through eight and not guilty of
counts nine and ten.
{¶26} On April 25, 2022, the trial court sentenced appellant
to serve 25 years to life in prison for each of the eight rape
offenses. The court ordered the sentences for counts one
through four to be served consecutively to one another for a
total minimum stated prison term of 100 years to life in prison.
The court additionally found appellant to be a Tier Three Sexual
Offender.
{¶27} On May 6, 2022, appellant filed a notice of appeal
from the trial court’s April 25, 2022 judgment. However, on
April 27, 2023, we dismissed that appeal for a lack of a final,
appealable order. We noted that the trial court did not file an
entry that disposed of counts 11 through 100, the counts that
the State agreed to “nolle.” On May 9, 2023, the trial court
entered a judgment entry that dismissed counts 11 through 100.
This appeal followed.
LAWRENCE, 23CA21 11
I
{¶28} In his first assignment of error, appellant asserts
that trial counsel failed to provide the effective assistance of
counsel. In particular, appellant contends that trial counsel
was ineffective for failing to (1) meaningfully cross-examine
S.H., (2) request a mistrial after the jury heard inadmissible
statements, (3) present witnesses or evidence in appellant’s
defense, and (4) argue that the trial court should merge all of
the counts.
A
{¶29} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord Hinton v. Alabama, 571 U.S. 263, 272 (2014) (the Sixth
Amendment right to counsel means “that defendants are entitled
to be represented by an attorney who meets at least a minimal
standard of competence”).
LAWRENCE, 23CA21 12
{¶30} To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1) trial counsel’s
performance was deficient and (2) the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 2018-
Ohio-1903, ¶ 183; State v. Powell, 2012-Ohio-2577, ¶ 85.
“Failure to establish either element is fatal to the claim.”
State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Therefore, if
one element is dispositive, a court need not analyze both.
State v. Madrigal, 87 Ohio St.3d 378, 389 (2000) (a defendant’s
failure to satisfy one of the ineffective-assistance-of-counsel
elements “negates a court’s need to consider the other”).
{¶31} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.’” Padilla v. Kentucky, 559 U.S. 356, 366
(2010), quoting Strickland, 466 U.S. at 688; accord Hinton, 571
U.S. at 273. Prevailing professional norms dictate that “a
lawyer must have ‘full authority to manage the conduct of the
trial.’” State v. Pasqualone, 2009-Ohio-315, ¶ 24, quoting
Taylor v. Illinois, 484 U.S. 400, 418 (1988).
LAWRENCE, 23CA21 13
{¶32} Furthermore, “‘[i]n any case presenting an
ineffectiveness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.’” Hinton, 571 U.S. at 273, quoting Strickland,
466 U.S. at 688. Accordingly, “[i]n order to show deficient
performance, the defendant must prove that counsel’s performance
fell below an objective level of reasonable representation.”
State v. Conway, 2006-Ohio-2815, ¶ 95 (citations omitted).
{¶33} Moreover, when considering whether trial counsel’s
representation amounts to deficient performance, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Thus, “the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id.Additionally, “[a] properly licensed attorney is presumed to
execute his duties in an ethical and competent manner.” State
v. Taylor, 2008-Ohio-482, ¶ 10 (4th Dist.), citing State v.
Smith, 17 Ohio St.3d 98, 100 (1985). Therefore, a defendant
bears the burden to show ineffectiveness by demonstrating that
counsel’s errors were “so serious” that counsel failed to
function “as the ‘counsel’ guaranteed * * * by the Sixth
LAWRENCE, 23CA21 14
Amendment.” Strickland, 466 U.S. at 687; e.g., State v. Gondor,
2006-Ohio-6679, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156
(1988).
{¶34} To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “‘but for counsel’s
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine the outcome.’” Hinton, 571 U.S. at 275, quoting
Strickland, 466 U.S. at 694; e.g., State v. Short, 2011-Ohio-
3641, ¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989),
paragraph three of the syllabus; accord State v. Spaulding,
2016-Ohio-8126, ¶ 91 (prejudice component requires a “but for”
analysis). “‘[T]he question is whether there is a reasonable
probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.’” Hinton, 571 U.S. at
275, quoting Strickland, 466 U.S. at 695. Furthermore, courts
ordinarily may not simply presume the existence of prejudice
but, instead, must require a defendant to affirmatively
establish prejudice. State v. Clark, 2003-Ohio-1707, ¶ 22 (4th
Dist.); State v. Tucker, 2002 WL 507529 (4th Dist. Apr. 2,
2002).
LAWRENCE, 23CA21 15
{¶35} Additionally, we have repeatedly recognized that
speculation is insufficient to establish the prejudice component
of an ineffective assistance of counsel claim. E.g., State v.
Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Jenkins,
2014-Ohio- 3123, ¶ 22 (4th Dist.); State v. Simmons, 2013-Ohio-
2890, ¶ 25 (4th Dist.); State v. Halley, 2012-Ohio-1625, ¶ 25
(4th Dist.); State v. Leonard, 2009-Ohio-6191, ¶ 68 (4th Dist.);
accord State v. Powell, 2012-Ohio-2577, ¶ 86 (purely speculative
argument cannot serve as the basis for ineffectiveness claim).
B
{¶36} Appellant first asserts that trial counsel failed to
meaningfully cross-examine S.H. He points out that trial
counsel only asked S.H. to identify her mother’s current
boyfriend and did not ask S.H. any questions to test the
reliability or credibility of her testimony. Appellant argues
that counsel did not (1) challenge S.H.’s recollection of the
details surrounding the events, (2) question whether S.H. had a
motivation to exaggerate or fabricate her testimony, or (3)
inquire about the reason S.H. delayed telling anyone about the
incidents. Appellant contends that trial counsel’s decision not
to challenge S.H.’s testimony falls “outside the realm of trial
strategy” and thus constitutes deficient performance.
LAWRENCE, 23CA21 16
{¶37} Appellant additionally asserts that trial counsel’s
deficiency prejudiced his defense. He notes that during
deliberations, the jury asked the court about “the number of
counts and the evidence” and whether a witness’s testimony
constitutes “proof beyond a reasonable doubt.” Appellant
alleges that the jury’s questions show that the jury
“deliberated as to the number of events alleged and the number
of events testified to.” He observes that the jury did not find
appellant guilty of all ten counts and asserts that the jury
thus “did not believe S.H.’s allegation as [to] the number of
events she claimed occurred.”
{¶38} Appellant further faults trial counsel for asking S.H.
only one question about the identity of her mother’s current
boyfriend. Appellant contends that trial counsel “failed to
subject the prosecution’s primary witness to meaningful and
adversarial testing” and that this failure warrants a finding
that counsel’s performance was presumptively prejudicial.
1
{¶39} In most cases, a defendant’s failure to satisfy either
part of the Strickland test (deficient performance plus
prejudice) is fatal to an ineffective-assistance claim.
Madrigal, 87 Ohio St.3d at 389; State v. Jones, 2008-Ohio-968, ¶
LAWRENCE, 23CA21 17
14 (4th Dist.). The United States Supreme Court, however,
crafted a narrow exception to the general rule that a defendant
must prove that counsel’s deficient performance prejudiced the
outcome of the proceedings. Florida v. Nixon, 543 U.S. 175, 190
(2004) (noting that prejudice presumed in narrow circumstances);
United States v. Cronic, 466 U.S. 648, 658-59 (1984); see also
Garza v. Idaho, 586 U.S. 232, 237 (2019). For example, “the
complete denial of counsel” is “so likely to prejudice the
accused that the cost of litigating [its] effect in a particular
case is unjustified.” Cronic, 466 U.S. at 658-59. This
complete denial-of-counsel prejudice presumption typically
applies if an “accused is denied counsel at a critical stage” of
the proceedings. Id. Likewise, the prejudice presumption may
apply “if counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing.” Id. The prejudice
presumption also may apply if “counsel is called upon to render
assistance under circumstances where competent counsel very
likely could not.” Bell v. Cone, 535 U.S. 685, 695–98, (2002),
citing Cronic, 466 U.S. at 659–662, and Powell v. Alabama, 287
U.S. 45 (1932).
{¶40} A defendant who asserts that the presumption applies
because defense counsel failed to subject the prosecution’s case
LAWRENCE, 23CA21 18
to meaningful adversarial testing must show that “the attorney’s
failure [was] complete.” Bell, 535 U.S. at 697. Thus, a
defendant is not entitled to the presumption if the defendant
merely asserts that counsel failed to oppose the prosecution’s
case “at specific points.” Id. Instead, the presumption may
apply when “‘counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing.’” (Emphasis in
original.) Id., quoting Cronic, 466 U.S. at 659; accord State v.
Drain, 2022-Ohio-3697, ¶ 69. A defendant’s challenge to
counsel’s failure to oppose the prosecution’s case “at specific
points” thus is “plainly of the same ilk as other specific
attorney errors” that are “subject to Strickland’s performance
and prejudice components.” Bell, 535 U.S. at 697-698, citing
Burger v. Kemp, 483 U.S. 776, 788 (1987), and Darden v.
Wainwright, 477 U.S. 168, 184 (1986) (observing that Burger and
Darden applied Strickland standard, not Cronic, when defendants
challenged counsel’s decision at capital sentencing hearing not
to offer any mitigating evidence).
{¶41} In the case at bar, appellant does not argue that
counsel entirely failed to subject the prosecution’s case to
meaningful adversarial testing. Instead, he contends that trial
counsel failed at a specific point–counsel’s cross-examination
LAWRENCE, 23CA21 19
of the victim. Appellant asserts that during cross-examination,
counsel failed to subject the victim’s testimony to meaningful
adversarial testing. Consequently, because appellant does not
argue that counsel’s failure was complete, the presumed-
prejudice standard does not apply. Thus, appellant must
establish both that counsel’s decision to limit his cross-
examination of the victim constituted deficient performance and
that this deficient performance affected the outcome of the
proceedings.
2
{¶42} In general, “‘[t]he scope of cross-examination falls
within the ambit of trial strategy, and debatable trial tactics
do not establish ineffective assistance of counsel.’” State v.
Spaulding, 2016-Ohio-8126, ¶ 90, quoting State v. Conway, 2006-
Ohio-2815, ¶ 101. Furthermore, a defendant alleging that trial
counsel performed deficiently during cross-examination “must
identify the questions he believes [defense] counsel should have
asked and must provide some sense of the information that might
have been elicited. Otherwise, [courts] will presume that the
choice to forgo cross-examination ‘constituted a legitimate
tactical decision.’” State v. Beasley, 2018-Ohio-493, ¶ 155,
citing and quoting State v. Frazier, 2007-Ohio-5048, ¶ 220, and
LAWRENCE, 23CA21 20
citing State v. Foust, 2004-Ohio-7006, ¶ 90 (holding that
counsel made a legitimate tactical decision to forgo additional
cross-examination where the defendant “fail[ed] to explain how
further cross-examination of [the witness] would have made a
difference in his case”).
{¶43} In the case sub judice, appellant does not identify
any particular questions that he believes trial counsel should
have asked S.H. and does not provide any sense of the
information that counsel might have elicited if he had asked
additional questions. Instead, appellant generally asserts that
trial counsel should have (1) challenged “S.H.’s recollection of
details,” (2) inquired whether she had a motive “to exaggerate
or fabricate her testimony,” and (3) questioned why S.H. did not
tell anyone about the allegations for more than one year.
Appellant does not suggest that asking these types of questions
would have elicited information that would have helped his
defense, however. Indeed, asking these questions may have
elicited harmful information. The victim testified that she was
afraid of appellant and in the past he had beaten her and her
sisters. Moreover, the victim’s mother had installed cameras
around the home to keep watch over appellant’s behavior to
ensure that he did not harm the children, which tends to support
LAWRENCE, 23CA21 21
the victim’s statement that appellant beat her in the past and
was afraid of him. Thus, had defense counsel asked S.H. about
her delay in reporting the allegations, for example, the victim
may have responded that the delay was due to her fear of
appellant and his statement to her that if she told anyone, she
would “lose [her] family.”
{¶44} Furthermore, this court previously rejected
ineffective-assistance challenges a trial counsel’s decision to
limit cross-examination of a child victim of sexual assault.
State v. Vulgamore, 2021-Ohio-3147 (4th Dist.); State v.
Guysinger, 2017-Ohio-1167 (4th Dist.). In Guysinger, we
observed that trial counsel had “not meaningfully or forcefully
challenge[d the victim]’s recollection of the details of the
crimes, did not raise issues concerning any possible motivation
she may have had to fabricate her testimony, and did not contest
her reason for delaying her reporting of the crimes for
approximately two years.” Id. at ¶ 28. We nevertheless
concluded that trial counsel did not fail to provide the
effective assistance of counsel. We explained that trial
counsel’s cross-examination fell within “the realm of trial
strategy” and that any deficiency did not prejudice the
defendant. Id. at ¶ 29. We elaborated as follows:
LAWRENCE, 23CA21 22
In light of the very sensitive nature of this case, which
involves a child victim of sexual assault, counsels’
decision not to extensively cross-examine A.G. does not,
by itself, constitute ineffective assistance of trial
counsel. See, e.g., State v. Hughes, 10th Dist. Franklin
No. 14AP–360, 2015–Ohio–151, ¶ 60 (trial counsel’s
failure to cross-examine any of the state’s witnesses,
including the child victim, in a case involving rape and
gross sexual imposition, did not constitute ineffective
assistance, reasoning that “[t]rial counsel’s decision
not to cross-examine N.P. and F.H., both minors, is a
reasonable and understandable trial tactic given the
sensitive nature of this case”); State v. Diaz, 9th Dist.
Lorain No. 04CA008573, 2005–Ohio–3108, ¶ 20–23 (trial
counsel’s decision not to cross-examine child victims in
case involving rape and gross sexual imposition was
within the realm of sound trial strategy and did not
constitute ineffective assistance of counsel). Various
reasons exist to support the tactical decision to
conduct a very brief cross-examination of the child-
victim. Trial counsel could have been wary about a
contentious cross-examination of A.G., who had testified
emotionally on direct examination. A more rigorous
cross-examination could evoke more emotion and greater
sympathy by the jury. Also, trial counsels’ limited
cross-examination of A.G. did elicit a possible reason
for A.G. to be angry at appellant—she was forced, against
her wishes, to move her bedroom into the laundry room.
Moreover, it is not at all clear that additional
questioning of A.G. would have necessarily resulted in
favorable testimony concerning the details of the
offenses and her reason for not reporting the crimes
earlier than she did. A.G. testified on direct
examination that she did not report the crimes because
she was scared. Additional cross-examination on these
matters may have simply bolstered the state’s case. See
State v. Freeman, 8th Dist. Cuyahoga No. 92809, 2010–
Ohio–3714, ¶ 51 (decision not to cross-examine child
victims of rape and gross sexual imposition about why
they failed to come forward with their allegations
sooner did not constitute ineffective assistance when
they explained on direct examination because “[i]t would
have been foolish for defense counsel to re-elicit this
LAWRENCE, 23CA21 23
damning testimony and explanations from the children on
cross-examination”).
Id. at ¶ 29; accord Vulgamore at ¶ 58 (“in light of the
sensitive nature of the case involving a child victim of sexual
assault under the age of 13, trial counsel’s decision not to
conduct a more aggressive cross-examination of M.H. does not, by
itself, constitute ineffective assistance of trial counsel.
Trial counsel could have been wary about a contentious cross-
examination of M.H. who had the prior emotional response to
seeing Appellant exit the elevator after lunch break. A more
rigorous cross-examination could evoke more emotion and greater
sympathy by the jury”). We also “readily acknowledge[d] trial
counsel should ask questions to discern potential
inconsistencies or inaccuracies with a witness’ memory or
perception.” Guysinger at ¶ 31. We nevertheless concluded that
trial counsel justifiably may determine that additional cross-
examination of a child victim could “alienate[] the jury and
actually bolster[] the state’s case.” Id. “Also, by engaging
in a more limited cross-examination of a child victim,” trial
counsel “may prevent the state from engaging in a redirect
examination” that could reveal even more damaging information.
Id.; compare State v. Hammond, 2019-Ohio-4253, ¶ 43 (4th Dist.)
(pointing out that trial counsel’s cross-examination of the
LAWRENCE, 23CA21 24
child victim “backfired” because it revealed damaging
information).
{¶45} In the case at bar, trial counsel likewise justifiably
may have determined that further cross-examination of the then-
13-year-old victim might have alienated the jury or bolstered
the State’s case. Additionally, “whether further questioning
would have unearthed any useful information is speculative.”
State v. Frazier, 2007-Ohio-5048, ¶ 220. And speculation is
insufficient to establish an ineffective-assistance claim.
E.g., Guysinger at ¶ 31, citing Short, 2011–Ohio–3641, at ¶ 119
(mere speculation cannot support either the deficient-
performance or prejudice requirements of an ineffective-
assistance claim). We therefore do not agree with appellant’s
argument that trial counsel was ineffective for failing to
subject S.H. to additional cross-examination.
C
{¶46} Next, appellant asserts that trial counsel performed
ineffectively for failing to ask the court, before trial, to
redact an incriminating statement that appellant made during his
videotaped police interview. In the interview, appellant
admitted that he had “been accused of this” when he was 18 years
of age. Appellant contends that trial counsel’s failure to ask
LAWRENCE, 23CA21 25
the court to review and redact the statement before the jury
heard it prejudiced his defense because “[t]he jury could not
‘unhear’” the statements. Appellant argues that trial counsel
should have been aware of the statements before trial and should
have filed a motion in limine to ensure that the video had been
edited before playing it before the jury.
{¶47} Here, we believe that even if trial counsel performed
deficiently by failing to file a motion in limine to redact the
statement before trial, appellant cannot establish that failing
to redact the statement before trial affected the outcome of the
proceedings. Instead, as we explain in our discussion of
appellant’s second assignment of error, our review of the record
reveals overwhelming evidence of appellant’s guilt. Moreover,
appellant even admitted that he engaged in sexual conduct with
the victim. Thus, we do not see a danger that the jury found
appellant guilty based upon a fleeting statement that he had
“been accused of this” when he was 18 years of age. See State
v. Trimble, 2009-Ohio-2961, ¶ 175 (brief, isolated remark
regarding defendant’s prior conviction did not prejudice
defendant due to “the overwhelming evidence establishing his
guilt”); State v. Ellison, 2017-Ohio-284, ¶ 31 (4th Dist.) (in a
rape case involving a child victim, no prejudicial error
LAWRENCE, 23CA21 26
resulted from testimony that the defendant had been in prison
when the evidence that the defendant raped his daughter was “so
overwhelming”; the victim testified that the defendant raped
her, and the defendant confessed and apologized to the victim).
{¶48} Moreover, the trial court gave the jury a curative
instruction to disregard appellant’s statement. Courts will
generally presume that “curative instructions remove[] any
prejudice.” State v. McKnight, 2005–Ohio–6046, ¶ 220; see Greer
v. Miller, 483 U.S. 756, 766, fn. 8 (1987) (courts generally
presume that a jury follows instructions to disregard evidence
unless there is an “overwhelming probability” that the jury will
be unable to follow the instruction and a strong likelihood that
the evidence would be “devastating” to the defendant); Bruton v.
United States, 391 U.S. 123, 135 (1968) (stating that “there are
some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored”).
{¶49} Consequently, we do not agree with appellant’s
argument that trial counsel performed ineffectively for failing
to file a pretrial motion that asked the court to redact the
LAWRENCE, 23CA21 27
statement in which appellant indicated that he had “been accused
of this” in the past.
D
{¶50} Appellant also asserts that trial counsel performed
ineffectively for the failure to present evidence or testimony
in his defense. Specifically, appellant faults trial counsel
for the failure to present evidence regarding his mental health
to help show his mental state at the time of the acts, which
appellant characterizes as a “defense.”
{¶51} However, even if we accept the proposition that trial
counsel performed deficiently by failing to present this type of
evidence, appellant does not identify how evidence regarding his
mental state would have caused the jury to question whether he
could be held criminally responsible for raping S.H., who was
less than 13 years of age at the time of the offenses. Indeed,
the jury found appellant guilty of rape under R.C.
2907.02(A)(1)(b),1 which is a strict-liability offense. See In
R.C. 2907.02(A)(1)(b) provides as follows:
No person shall engage in sexual conduct with
another who is not the spouse of the offender or who
is the spouse of the offender but is living separate
and apart from the offender, when any of the following
applies:
LAWRENCE, 23CA21 28
re D.B., 2011-Ohio-2671, ¶ 30 (“The plain language of the
statute makes it clear that every person who engages in sexual
conduct with a child under the age of 13 is strictly liable for
statutory rape. . . .”); see also State v. Mole, 2016-Ohio-5124,
¶ 66 (lead opinion) (R.C. 2907.02(A)(1)(b) “eliminates scienter
from the offense of rape when the victim is under the age of
13”). Thus, an offender’s mental state is immaterial for
purposes of R.C. 2907.02(A)(1)(b). See State v. Alexander,
2023-Ohio-123, ¶ 16 (3d Dist.) (“R.C. 2907.02(A)(1)(b) only has
three relevant elements: (1) the victim was not the offender’s
spouse; (2) the victim was under the age of 13 at the time of
the sexual conduct; and (3) the offender engaged in sexual
conduct with the victim.”). Consequently, it does not appear
that appellant’s mental state at the time of the offenses would
have been relevant. As such, the failure to present this type
of evidence could not have been prejudicial.
. . . .
(b) The other person is less than thirteen years
of age, whether or not the offender knows the age of
the other person.
LAWRENCE, 23CA21 29
{¶52} Moreover, given its irrelevance, trial counsel could
have quite reasonably decided not to present any evidence
regarding appellant’s mental health. If counsel had, the trial
court would have been well within its discretion to exclude this
type of evidence. Trial counsel also reasonably may have
thought that the jury would not have a favorable view of
appellant if he sought to use his alleged mental-health issues
as an excuse for raping a child less than 13 years of age.
{¶53} Furthermore, to the extent that appellant’s
ineffectiveness claim relies upon evidence that is not contained
in the record, we may not consider it on direct appeal. State
v. Belton, 2016-Ohio-1581 (on direct appeal, defendant cannot
rely upon evidence outside of the record); State v. Hartman, 93
Ohio St.3d 274, 299 (2001) (if establishing ineffective
assistance of counsel requires proof outside the record, then
such claim is not appropriately considered on direct appeal);
State v. Ishmail, 54 Ohio St.2d 402, 406 (1978) (the appellate
court is limited to what transpired as reflected by the record
on direct appeal).
{¶54} Accordingly, based upon the foregoing reasons we
disagree with appellant’s argument that trial counsel performed
LAWRENCE, 23CA21 30
ineffectively for failing to present evidence regarding his
mental health.
E
{¶55} Appellant additionally contends that trial counsel
performed ineffectively for the failure to ask the trial court
to merge the offenses.2 He alleges that his conduct was similar
in import and committed with the same animus and motivation.
{¶56} As we explain in our discussion of appellant’s third
assignment of error, we believe that a review of the record does
not show that appellant committed eight acts of rape at the same
time and with the same animus. Instead, the evidence shows
eight distinct acts of rape. Thus, trial counsel did not
perform deficiently by failing to ask the court to merge the
offenses.
{¶57} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
2
In his brief, appellant claims that trial counsel should
have asked the court to merge counts one through ten. We note,
however, that the jury found appellant not guilty of counts nine
and ten. We therefore construe appellant’s argument to be a
challenge to counts one through eight.
LAWRENCE, 23CA21 31
II
{¶58} In his second assignment of error, appellant argues
that his convictions are against the manifest weight and
sufficiency of the evidence. He contends that the testimony
does not establish that he committed eight separate counts of
rape.
{¶59} Initially, we observe that “sufficiency” and “manifest
weight” present two distinct legal concepts. Eastley v.
Volkman, 2012-Ohio-2179, ¶ 23 (“sufficiency of the evidence is
quantitatively and qualitatively different from the weight of
the evidence”); State v. Thompkins, 78 Ohio St.3d 380 (1997),
syllabus; accord State v. Jordan, 2023-Ohio-3800, ¶ 15 (lead
opinion). A claim of insufficient evidence invokes a due
process concern and raises the question whether the evidence is
legally sufficient to support the verdict as a matter of law.
Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency
of the evidence, our inquiry focuses primarily upon the adequacy
of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable
doubt. Id. at syllabus. The “critical inquiry” on appeal “is
whether, after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the
LAWRENCE, 23CA21 32
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-
319 (1979); e.g., State v. Jenks, 61 Ohio St.3d 259, 273, 574
N.E.2d 492 (1991). Furthermore, a reviewing court is not to
assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would
support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook,
J., concurring).
{¶60} Thus, when reviewing a sufficiency of the evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. E.g., State v. Hill, 75 Ohio
St.3d 195, 205 (1996); State v. Grant, 67 Ohio St.3d 465, 477
(1993). A reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds could
not reach the conclusion that the trier of fact did. State v.
Tibbetts, 92 Ohio St.3d 146, 162 (2001); State v. Treesh, 90
Ohio St.3d 460, 484 (2001).
{¶61} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
LAWRENCE, 23CA21 33
at 387. “The question to be answered when a manifest weight
issue is raised is whether ‘there is substantial evidence upon
which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’” State v. Leonard,
2004-Ohio-6235, ¶ 81, quoting State v. Getsy, 84 Ohio St.3d 180,
193–194 (1998), citing State v. Eley, 56 Ohio St.2d 169 (1978),
syllabus; accord State v. Nicholson, 2024-Ohio-604, ¶ 71. A
court that is considering a manifest-weight challenge must
“‘review the entire record, weigh the evidence and all
reasonable inferences, and consider the credibility of
witnesses.’” State v. Beasley, 2018-Ohio-493, ¶ 208, quoting
State v. McKelton, 2016-Ohio-5735, ¶ 328. The reviewing court
must bear in mind, however, that credibility generally is an
issue for the trier of fact to resolve. State v. Issa, 93 Ohio
St.3d 49, 67 (2001); State v. Murphy, 2008-Ohio- 1744, ¶ 31 (4th
Dist.). “‘Because the trier of fact sees and hears the
witnesses and is particularly competent to decide “whether, and
to what extent, to credit the testimony of particular
witnesses,” we must afford substantial deference to its
determinations of credibility.’” Barberton v. Jenney, 2010-
Ohio-2420, ¶ 20, quoting State v. Konya, 2006-Ohio-6312, ¶ 6 (2d
LAWRENCE, 23CA21 34
Dist.), quoting State v. Lawson, 1997 WL 476684 (2d Dist. Aug.
22, 1997). As the Eastley court explained:
“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the
judgment and the finding of facts. * * *
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it
that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the
verdict and judgment.’”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 60, at 191–192 (1978). Thus, an
appellate court will leave the issues of weight and credibility
of the evidence to the fact finder, as long as a rational basis
exists in the record for its decision. State v. Picklesimer,
2012-Ohio-1282, ¶ 24 (4th Dist.); accord State v. Howard, 2007-
Ohio-6331, ¶ 6 (4th Dist.) (“We will not intercede as long as
the trier of fact has some factual and rational basis for its
determination of credibility and weight.”).
{¶62} Accordingly, if the prosecution presented substantial,
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established, the judgment of conviction
is not against the manifest weight of the evidence. E.g., Eley;
LAWRENCE, 23CA21 35
accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,
quoting Black’s Law Dictionary 1594 (6th ed.1990) (judgment not
against the manifest weight of evidence when “‘“the greater
amount of credible evidence”’” supports it). A court may
reverse a judgment of conviction only if it appears that the
fact finder, when it resolved the conflicts in evidence,
“‘clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial
ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); accord McKelton
at ¶ 328. A reviewing court should find a conviction against
the manifest weight of the evidence only in the “‘exceptional
case in which the evidence weighs heavily against the
conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting Martin,
20 Ohio App.3d at 175; accord State v. Clinton, 2017-Ohio-9423,
¶ 166; State v. Lindsey, 87 Ohio St.3d 479, 483 (2000).
{¶63} We also observe that when an appellate court concludes
that the weight of the evidence supports a defendant’s
conviction, this conclusion necessarily includes a finding that
sufficient evidence supports the conviction. E.g., State v.
Waller, 2018-Ohio-2014, ¶ 30 (4th Dist.). Thus, a determination
LAWRENCE, 23CA21 36
that the weight of the evidence supports a conviction also is
dispositive of an insufficient-evidence claim. Id.{¶64} In the case sub judice, R.C. 2907.02(A)(1)(b) contains
the essential elements of appellant’s rape offenses and provides
as follows:
No person shall engage in sexual conduct with
another who is not the spouse of the offender or who
is the spouse of the offender but is living separate
and apart from the offender, when any of the following
applies:
. . . .
(b) The other person is less than thirteen years
of age, whether or not the offender knows the age of
the other person.
R.C. 2907.01(A) defines “sexual conduct” as follows:
vaginal intercourse between a male and female; anal
intercourse, fellatio, and cunnilingus between persons
regardless of sex; and, without privilege to do so, the
insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the
vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or
anal intercourse.
{¶65} Here, appellant does not challenge the adequacy or
persuasiveness of the evidence to support the elements of rape.
Instead, he argues that the State did not present sufficient
evidence that he committed eight separate rape offenses and
argues, for this same reason, that his convictions for all eight
offenses are against the manifest weight of the evidence.
LAWRENCE, 23CA21 37
{¶66} After our review of the record, however, we do not
believe that appellant’s eight rape convictions are against the
manifest weight of the evidence. Instead, our review reveals
that the record contains substantial, competent and credible
evidence to support a finding that he committed eight distinct
offenses. For this same reason, sufficient evidence supports
appellant’s eight rape convictions.
{¶67} We first observe that “a rape conviction may rest
solely on the victim’s testimony, if believed.” State v.
Patterson, 2014-Ohio-1621, ¶ 40 (8th Dist.). Moreover, no
requirement exists “that a rape victim’s testimony be
corroborated as a condition precedent to conviction.” State v.
Lewis, 70 Ohio App.3d 624, 638 (4th Dist.1990); accord State v.
Johnson, 2006-Ohio-6404, ¶ 53 (“[c]orroboration of victim
testimony in rape cases is not required”); State v. Horsley,
2018-Ohio-1591, ¶ 74 (4th Dist.) (quoting Patterson and Lewis
for the foregoing two propositions); State v. Barnes, 2014-Ohio-
47, ¶ 31 (2d Dist.) (physical evidence need not corroborate
“testimonial evidence of sexual abuse”).
{¶68} Furthermore, simply because a victim may delay
reporting sexual abuse does not mean that the victim lacks
credibility. Instead, “the jury [i]s entitled to consider the
LAWRENCE, 23CA21 38
credibility of the victim’s testimony and [the victim’s]
explanation for the delayed disclosure.” State v. Lykins, 2019-
Ohio-3316, ¶ 50 (4th Dist.); see State v. Bones, 2015–Ohio–784,
¶ 33–34, 40 (2d Dist.) (concluding that defendant’s rape
convictions are not against the manifest weight of the evidence
even though victim did not report abuse until several years
later).
{¶69} In the case sub judice, the young victim testified to
extensive sexual abuse that appellant committed between March
2020 and early 2021. She recounted separate incidents in which
appellant engaged in sexual conduct with her, whether through
vaginal intercourse, fellatio, or cunnilingus. The victim
stated that the first encounter occurred in March 2020,
described the time of day that it occurred (nighttime) and the
location (her mother’s bedroom). She further indicated that
appellant touched her “lower-part areas” “under her clothes.”
We observe, however, that the victim did not specifically state
that appellant digitally penetrated her vagina with his
finger(s). Instead, she agreed with the prosecutor’s
characterization of appellant’s conduct as “inappropriate.”
{¶70} The second incident followed “a couple of days later.”
Like the first event, she and appellant were in her mother’s
LAWRENCE, 23CA21 39
bedroom. Appellant instructed her to get on the bed, remove her
clothes, and he placed his penis inside her vagina. She recalls
being in “a lot of pain.” The victim reported that from that
point on, appellant engaged in sexual conduct with her four to
five times per week.
{¶71} The victim also testified that additional acts of
intercourse occurred either in her mother’s bedroom or in the
victim’s bedroom, and that all of the events, except for one,
happened at night, when her mother was not home and her sisters
were sleeping. The victim indicated that appellant would ask
her to either enter his bedroom or he would enter her bedroom,
and then, he would start by “touching” her in her “lower part
areas” before he engaged in intercourse.
{¶72} The victim additionally described an occasion when
appellant told her that he would give her cunnilingus for her
12th birthday present. She stated that after he completed this
act, he engaged in vaginal intercourse. The victim reported
that appellant ejaculated on this occasion, but it was not the
first time that he had done so. She explained that appellant’s
pattern was to ejaculate on the floor and then clean it up the
next day. She stated that appellant ejaculated “[p]retty much
every time.”
LAWRENCE, 23CA21 40
{¶73} The victim further stated that appellant performed
cunnilingus on additional occasions, but she could not recall
the number–only that it “was more than twice.”
{¶74} Appellant also asked the victim to perform fellatio,
which she did, but “[o]nly once.” The victim explained that
this event occurred during the day, when her mother was asleep
and her sisters awake. She and appellant were in the bathroom,
and appellant asked her to perform fellatio. When she did so,
her sisters knocked on the door and interrupted.
{¶75} The victim further explained that after her mother
installed cameras inside the house to keep tabs on appellant’s
conduct, appellant had vaginal intercourse with her on the back
porch, outside the purview of the cameras. She reported that
this incident occurred in 2021 and was the last time appellant
sexually assaulted her.
{¶76} Furthermore, we point out that appellant admitted that
he engaged in vaginal intercourse with the victim, but claimed
it happened only once. He also incredulously claimed that the
vaginal intercourse was “an accident.” Appellant stated that it
occurred in the victim’s bedroom, but he could not recall when
he thought that it might have happened two months earlier.
LAWRENCE, 23CA21 41
Appellant additionally stated that the victim performed fellatio
on him before they engaged in intercourse.
{¶77} In total, the victim testified that appellant sexually
assaulted her “close to a hundred or over” times. Even if the
victim did not describe each event in excruciating detail, her
testimony contains enough detail regarding specific and distinct
events to establish that appellant committed many separate acts
of rape. Her testimony describes the following instances of
sexual conduct: (1) a few days after appellant first touched the
victim “inappropriately,” appellant had vaginal intercourse with
the victim; (2) additional acts of vaginal intercourse occurred
in her bedroom or in her mother’s bedroom “four or five times”
per week; (3) on the victim’s 12th birthday, appellant performed
cunnilingus; (4) also on the victim’s 12th birthday, appellant
engaged in vaginal intercourse with the victim, see generally
State v. Nicholas, 66 Ohio St.3d 431, 435 (1993) (three separate
instances of vaginal intercourse, cunnilingus, and digital
penetration of the vaginal cavity constitute separate crimes
with a separate animus, and thus, they do not constitute allied
offenses of similar import); (5) appellant performed cunnilingus
on at least two other occasions (i.e., “more than twice”); (6)
the victim performed fellatio on appellant; and (7) appellant
LAWRENCE, 23CA21 42
engaged in sexual intercourse with the victim on the back porch.
The victim’s testimony thus constitutes ample evidence to
establish, beyond a reasonable doubt, that appellant committed
eight distinct acts of rape. State v. Buckland, 2023-Ohio-2095,
¶ 16 (12th Dist.) (upholding conviction for three counts of
gross sexual imposition when victim “testified that she was
repeatedly subjected to sexual abuse, [and] she detailed three
distinct incidents of sexual abuse, in three distinct areas of
her home”); State v. Palmer, 2021-Ohio-4639, ¶ 28 (7th Dist.)
(upholding 12 rape convictions and five gross sexual impositions
convictions when victim testified that appellant “forced his
penis inside of her vagina at least 10 times, put his mouth on
her ‘private area’ more times than she could count, but more
than 10 times and less than 15, and digitally penetrated her
more than five times”); State v. Artz, 2015-Ohio-5291, ¶ 35 (2nd
Dist.) (victim’s testimony adequately showed that defendant
engaged in five distinct acts); State v. Clemons, 2011-Ohio-
1177, ¶ 42 (7th Dist.) (victim’s testimony that “sexual conduct
occurred ‘way over ten’ times” and that victim and defendant
engaged in “sexual intercourse on the living room couch more
than ten times” adequately supported defendant’s eight
convictions for sex-related offenses); State v. Willard, 144
LAWRENCE, 23CA21 43
Ohio App.3d 767, 771 (10th Dist.2001) (the victim’s testimony
that over a five-year period, the defendant sexually assaulted
her approximately one thousand times, along with further details
about some of those events, adequately supported eight rape
convictions).
{¶78} Additionally, appellant confessed that the victim
performed fellatio and that they subsequently engaged in vaginal
intercourse. Appellant stated that this event occurred about
two months earlier and that it occurred in the victim’s bedroom.
Thus, appellant actually admitted that he committed two distinct
acts of rape.
{¶79} We also observe that the record reflects that the jury
thoughtfully deliberated the matter before it reached its
verdict. The jury asked a question to clarify whether a
witness’s testimony constituted adequate evidence to find a
defendant guilty. The jury also asked whether it needed to find
“ten specific instances or dates” to find appellant guilty of
all ten counts. These questions show that the jury carefully
evaluated the evidence that pertained to each count. The jury
weighed the victim’s testimony, along with appellant’s
statements made during his police interview, and ultimately
LAWRENCE, 23CA21 44
found the testimony sufficiently credible to conclude that
appellant committed eight rape offenses.
{¶80} Here, we find nothing in the record to indicate that
the jury lacked a rational basis to credit the victim’s
testimony. In fact, the police officer’s description of the
victim’s reaction when the officer arrived at her house to
discuss the allegations lends credence to the victim’s account
that appellant subjected her to repeated acts of rape over a
prolonged period of time. The officer testified that the victim
was lying in the street and crying inconsolably for 20 to 30
minutes. The jury was entitled to infer that the victim’s
conduct established that she had experienced significant trauma
as a result of appellant’s repeated acts of rape.
{¶81} Additionally, the jury was entitled to discredit
appellant’s testimony that he and the victim had engaged in
“consensual” sexual conduct only once, especially given his
incredulous claim that it was “more of an accident.”
{¶82} Consequently, based upon the foregoing reasons, we do
not believe that the case at bar is one of those exceptional
cases in which the evidence weighs heavily against appellant’s
eight rape convictions. We therefore disagree with appellant
that his convictions are against the manifest weight of the
LAWRENCE, 23CA21 45
evidence. We likewise disagree that the record fails to contain
sufficient evidence to support his eight rape convictions.
{¶83} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶84} In his third assignment of error, appellant asserts
that his sentence is contrary to law. In particular, appellant
contends that, because the State failed to establish that
appellant committed the eight rape offenses separately and with
a separate animus, the trial court should have merged the
offenses and imposed “a single sentence.”3
{¶85} We initially observe that appellant did not argue at
sentencing that the trial court should merge any of the rape
offenses. Thus, appellant forfeited all but plain error. State
v. Bailey, 2022-Ohio-4407, ¶ 7; State v. Rogers, 2015-Ohio-
2459, ¶ 21, 28; State v. Linkous, 2013-Ohio-5853, ¶ 41 (4th
Dist.). Appellate courts, nevertheless, have discretion to
consider “[p]lain errors or defects affecting substantial
rights.” Crim.R. 52(B); e.g., Risner v. Ohio Dept. of Natural
3
Appellant limits his “contrary to law” argument to a claim
that the trial court should have merged the offenses. We limit
our review accordingly.
LAWRENCE, 23CA21 46
Resources, Ohio Div. of Wildlife, 2015-Ohio-3731, ¶ 27. “To
prevail under the plain-error standard, a defendant must show
that an error occurred, that it was obvious, and that it
affected his substantial rights,” i.e., the trial court’s error
must have affected the outcome of the trial. State v.
Obermiller, 2016-Ohio-1594, ¶ 62, citing State v. Barnes, 94
Ohio St.3d 21, 27 (2002). However, even when a defendant
demonstrates that a plain error or defect affected his
substantial rights, the Ohio Supreme Court repeatedly has
emphasized that courts should “notice plain error ‘with the
utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’” State v. Barnes,
94 Ohio St.3d 21, 27 (2002), quoting State v. Long, 53 Ohio
St.2d 91 (1978), paragraph three of the syllabus; e.g., State v.
Bailey, 2022-Ohio-4407, ¶ 14 (“the plain-error doctrine is
warranted only under exceptional circumstances to prevent
injustice”).
{¶86} R.C. 2941.25 specifies when a defendant may be
convicted of multiple counts under the same indictment or
information. The statute provides:
(A) Where the same conduct by [a] defendant can be
construed to constitute two or more allied offenses of
similar import, the indictment or information may
LAWRENCE, 23CA21 47
contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant’s conduct constitutes two
or more offenses of dissimilar import, or where his
conduct results in two or more offenses of the same or
similar kind committed separately or with a separate
animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant
may be convicted of all of them.
{¶87} The Ohio Supreme Court has “consistently recognized
that the purpose of R.C. 2941.25 is to prevent shotgun
convictions, that is, multiple findings of guilt and
corresponding punishments heaped on a defendant for closely
related offenses arising from the same occurrence.” State v.
Johnson, 2010–Ohio–6314, ¶ 43, citing Maumee v. Geiger, 45 Ohio
St.2d 238, 242 (1976). R.C. 2941.25(A) thus allows only a
single conviction when the same conduct constitutes allied
offenses of similar import.
{¶88} Courts that are determining whether offenses are
allied offenses of similar import within the meaning of R.C.
2941.25 must answer three essential questions: “(1) Were the
offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate
animus or motivation?” State v. Earley, 2015-Ohio-4615, ¶ 12,
citing Ruff at ¶ 31 and paragraphs one, two, and three of the
LAWRENCE, 23CA21 48
syllabus. “An affirmative answer to any of the above will
permit separate convictions.” Id.{¶89} Offenses are of dissimilar import “if they are not
alike in their significance and their resulting harm.” Ruff at
¶ 21. Additionally, “a defendant’s conduct that constitutes two
or more offenses against a single victim can support multiple
convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense.”
Id. at ¶ 26. Thus, “two or more offenses of dissimilar import
exist within the meaning of R.C. 2941.25(B) when the defendant’s
conduct constitutes offenses involving separate victims or if
the harm that results from each offense is separate and
identifiable.” Id. at ¶ 23.
{¶90} Different types of rape committed within the same
sexual assault such as “vaginal intercourse, cunnilingus, and
digital penetration constitute separate crimes” “with a separate
animus,” and thus, “they do not constitute allied offenses of
similar import.” Nicholas, 66 Ohio St.3d at 435; accord State
v. Stites, 2020-Ohio-4281, ¶ 87 (1st Dist.) (“Different sexual
acts are considered separate offenses.”); State v. Townsend,
2019-Ohio-1134, ¶ 70 (8th Dist.) (“rape involving different
types of sexual activity, such as vaginal intercourse, digital
LAWRENCE, 23CA21 49
penetration, and oral intercourse, arise from distinct conduct
and are not considered allied offenses, even when committed
during the same sexual assault”); State v. Prince, 2021-Ohio-
4475, ¶ 15 (3rd Dist.) (the defendant’s “act of forcing the
victim to perform fellatio on him followed by his act of forcing
the victim to have intercourse (with him) demonstrates distinct
and separate acts that occurred in a close proximity of time
during an extended assault on the victim.”); State v. Miller,
2017-Ohio-7986, ¶ 46 (6th Dist.) (noting “that it is well-
established that instances of vaginal rape and anal rape may
form the basis for two separate rape convictions”); see State v.
Jones, 2010-Ohio-2243 (5th Dist.) (unlawful sexual conduct with
a minor by digital penetration and cunnilingus were not allied
offenses of similar import even when committed in a short time
span); see also State v. Peace, 2018-Ohio-3742, ¶ 29 (11th
Dist.) (kissing a bruise on a child’s hip is a distinct act from
inserting tongue in child’s vagina); State v. Brindley, 2002-
Ohio-2425, ¶ 11, 13 (10th Dist.) (holding that touching the
victim’s breast, “sucking” the victim’s breast, and touching the
victim’s vaginal area supported three convictions for gross
sexual imposition).
LAWRENCE, 23CA21 50
{¶91} Furthermore, separate instances of rape do not
constitute allied offenses of similar import. See State v.
Koster, 2024-Ohio-57, ¶ 31 (4th Dist.) (30 counts of unlawful
sexual conduct with a minor were not allied offenses of similar
import when testimony established, in part, that the defendant
had engaged “in oral sex with [the victim] ‘over a hundred’
times,” “vaginal sexual conduct” “‘a hundred or more’ times,”
and “anal sex ‘twice’”); State v. Waters, 2003-Ohio-4624 (5th
Dist.) (evidence that the defendant repeatedly engaged in
vaginal intercourse, digital penetration, fellatio, and
cunnilingus with three different victims over a three-year
period established that the defendant committed separate acts of
rape and unlawful sexual conduct with a minor).
{¶92} In the case sub judice, as we explained in our
discussion of appellant’s second assignment of error, the
evidence adduced at trial supports a conclusion that appellant
committed eight distinct acts of rape. Appellant’s eight rape
convictions, therefore, are not allied offenses of similar
import that merge for purposes of sentencing. See State v.
Lykins, 2019-Ohio-3316, ¶ 63 (4th Dist.) (evidence established
that defendant committed three separate acts of rape, so the
trial court did not err by failing to merge offenses).
LAWRENCE, 23CA21 51
Consequently, we do not believe that the trial court erred by
convicting appellant of eight rape offenses rather than merging
some or all of the offenses.
{¶93} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
LAWRENCE, 23CA21 52
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Lawrence County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.