State v. N.S. ( 2020 )

[Cite as State v. N.S., 2020-Ohio-5318.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-66
(C.P.C. No. 18CR-4943)
v. : No. 20AP-67
(C.P. C. No. 19CR-0880)
[N.S.], :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 17, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Bellinger & Donahue, and Kerry M. Donahue, for
appellant.
APPEALS from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, N.S., appeals from judgments of the Franklin County
Court of Common Pleas convicting him of felonious assault in violation of R.C. 2903.11,
rape in violation of R.C. 2907.02, and kidnapping in violation of R.C. 2905.01. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This case arises out of the rape and kidnapping of two women in the Linden
area of Columbus, Ohio in April 2018. In the case of one of the victims, E.W., appellant was
also charged with felonious assault.
{¶ 3} Victim A.D. testified that in April 2018, she was addicted to opioids and
working as a prostitute in order to support her drug habit. On the date of trial, A.D. was in
Nos. 20AP-66 and 20AP-67 2
jail for drug-related charges. Though she admitted she was experiencing opiate withdrawal
while on the witness stand, she answered "yes" when the prosecutor asked her if she was
"at least relatively sober." (Tr. Vol. II at 139.) She identified appellant, as he sat in the
courtroom, as the man who picked her up in early April 2018 near the intersection of
Hudson Street and Duxberry Avenue for the purpose of exchanging money for sex.
According to A.D., in a typical transaction the parties agree to "[e]xchange the money, do
the deed, be done." (Tr. Vol. II at 140.) A.D. testified the customer, also known as a
"john[]," would pull his vehicle to the curb, flag her down, and drive the vehicle to a more
secluded area where the sex act would take place, usually in the vehicle.1 (Tr. Vol. II at 189.)
She also stated that she would "sometimes" agree to go wherever the john wanted, including
a private residence or other dwelling where the sex would take place. (Tr. Vol. II at 140.)
{¶ 4} When she was asked if she remembered the day when appellant picked her
up at the intersection of Hudson Street and Duxberry Avenue, she responded: "Kind of, ya."
(Tr. Vol. II at 141.) She stated that appellant was driving a blue "truck-ish thing" that looked
like a Ford Explorer. (Tr. Vol. II at 141.) A.D. recalled appellant took her to his home, and
she recognized the residence from a photograph shown to her by the prosecutor. (State's
Ex. D-1.) She remembered that after they entered the home, she observed appellant prop
a board against the front door to secure it. A.D. testified all the windows were "boarded up
from the inside out." (Tr. Vol. II at 143.)
{¶ 5} According to A.D., when they went upstairs to have sex, both she and
appellant removed their clothing, but appellant refused to pay. When A.D. told appellant
she was leaving and began putting her clothes back on, appellant told her: "No. You're
either going to do what I want you to do or I'm going to do it whether you like it or not."
(Tr. Vol. II at 144.) Appellant then "threatened me that the dogs he had were going to eat
me if I tried to run." (Tr. Vol. II at 144.) A.D. testified she never saw any dogs, but she could
hear them barking outside. Appellant then demanded she perform oral sex and pushed her
head down so violently that he split her lip. Appellant proceeded to have vaginal
intercourse with A.D. against her will and demanded she perform oral sex twice. She
believed he ejaculated during vaginal intercourse.
1The term "john[]," in reference to the customer, was used during E.W.'s cross-examination. (Tr. Vol. II at
189.)
Nos. 20AP-66 and 20AP-67 3
{¶ 6} A.D. recalled that it was "super cold" in the bedroom where the rape took
place "like nobody lived there" and that she remembered seeing a television and "[m]aybe
* * * shelves that were connected in the wall." (Tr. Vol. II at 146-47.) A.D. testified she was
held against her will in the bedroom from 2:00 or 3:o0 in the morning until daybreak and
that appellant was raping her "pretty much the entire time." (Tr. Vol. II at 147.) On cross-
examination, A.D. admitted she entered appellant's home with the intent to exchange sex
for money, but she withdrew her consent when appellant refused to pay.
{¶ 7} A.D. left appellant's home crying, and she told "people that I was living with"
about the crime. (Tr. Vol. II at 148.) A.D. maintained she did not go to the hospital or to
the police because she knew she had outstanding warrants. She stated that she eventually
told her counselor about the crime after she learned others had come forward. A.D. agreed
to testify against appellant "[b]ecause I don't think he should be able to do this to anyone
else." (Tr. Vol. II at 149.)
{¶ 8} On cross-examination, A.D. admitted that she did not ask for any money from
appellant until they went upstairs to his bedroom. According to A.D., she refused sex only
after he refused to pay her. A.D. testified appellant let her go after committing the rape
when she "told him a friend had took down his license plate." (Tr. Vol. II at 157.)
{¶ 9} Victim E.W. testified that in April 2018, she was addicted to heroin and crack
cocaine, and she had been working as a prostitute on Hudson Street for approximately one
year when she encountered appellant. E.W. stated she now lives in Chillicothe, Ohio, and
she graduated from drug rehabilitation about 8 months prior to trial. E.W. had been sober
for 14 months at the time she gave her testimony, and she stated she wants to train as a
paramedic to help other addicts.
{¶ 10} E.W. testified that in April 2018, her usual practice was to approach the john's
vehicle, get in, collect the money, and then pull over somewhere or go to the john's home
where she would "handle business, and then I'd leave." (Tr. Vol. II at 165.) She answered
"[y]es" when she was asked if she got paid up front. (Tr. Vol. II at 165.) E.W. identified
appellant as he sat in the courtroom as the man who picked her up on April 5, 2018 in a
navy blue Ford Explorer at the corner of Hudson Street and Hiawatha Street. She knew it
was a Ford Explorer because she had owned the same type of vehicle before she became
addicted to drugs.
Nos. 20AP-66 and 20AP-67 4
{¶ 11} E.W. testified when she got in appellant's vehicle, she said: "Oh it's cold. You
ain't got no heat?" (Tr. Vol. II at 168.) Appellant responded: "I got some at my house. Let's
go." (Tr. Vol. II at 168.) E.W. testified appellant took her to a residence on Duxberry
Avenue near Hamilton Avenue, approximately one block from where she was living. She
identified State's Exhibit D-1 as a photograph of appellant's home, but she stated there was
a chain link fence around the property when appellant took her there. She recalled the
windows of the home were boarded up and when she went inside, appellant propped a two
by four up against a metal bar attached to the inside of the front door.
{¶ 12} According to E.W., she asked for money before going upstairs, but appellant
told her: "Bitch, you know what it is." (Tr. Vol. II at 171.) E.W. testified she still believed
appellant would pay her when she asked him what he wanted. However, when she asked
for money a second time, appellant "started getting violent," and he told her "I'm going to
choke you. I'm going to choke you." (Tr. Vol. II at 172.) E.W. testified the last thing she
remembered before passing out was appellant on top of her on the couch with his hands
around her neck while she tried to kick him off. When E.W. regained consciousness, she
was in a bedroom, tied naked to the bed with cables wrapped around her hands and feet,
and duct tape over her mouth.
{¶ 13} E.W. testified appellant began raping her everywhere but in her anus, and he
only stopped for a moment to snort some cocaine and smoke a cigarette:
Q. Okay. Now, when you say he raped you, I don't want to
belabor the point, but where was his penis in relation to your
body?
A. Everywhere. In my mouth. Everywhere but anal.
Q. Okay.
A. Like he vaginally raped me. He had sat on top of me at one
point so I could give him oral sex. It lasted for hours.
Q. Did he do anything else to you?
A. No.
Q. So he forced oral sex on you?
A. Yes.
Q. Did he perform oral sex on you?
A. Yes.
Q. So he performed cunnilingus on you as well?
Nos. 20AP-66 and 20AP-67 5
A. Yes.
Q. Okay. Do you remember how long this went on?
A. Hours.
(Tr. Vol. II at 174-75.)
{¶ 14} E.W. stated at one point during the rape, appellant asked her to take a drag
from his cigarette and when she asked him to untie her he said: "You made me do this."
(Tr. Vol. II at 175.) E.W. testified about what happened next:
Q. Okay. So what happened? I mean, how did this end?
A. Well, I thought it was going to end. This part really gets to
me, and I still -- like, it hurts me because I, like, thanked him
and everything when he untied me, and I thought I was done.
He let me get dressed. And I'm at the door, and he throws me
back on the bed and ties me up again and continues to rape
me.
***
Q. Okay. At that point, did he just force vaginal intercourse
on you?
A. Yeah, but he kept on. Like, when I was, like, moving and
crying trying to squirm, he's, like, "Bitch, I'll rape you in your
ass if you don't stop."
I'm, like, "Please don't," like.
Q. Okay. So after you thought he was going to let you go but
he didn't and he kept doing this to you, what happened next?
How did you ultimately leave?
A. He said, "Real men have to go to work." He's, like, "I'm
going to have to let you go because real men have to go to
work."
Q. What happened next?
A. And then I did get dressed, and he said he'll give me a ride.
He gave me ride. He gave me his phone number and told me
to call him and that he'll pay me the next time I see him.
(Tr. Vol. II at 176-78.)
{¶ 15} E.W. testified she was held by appellant against her will and forcibly raped by
appellant from 2:00 a.m. or 3:00 a.m. on April 5, 2018 until 8:00 a.m. After being released
by appellant, E.W. called a friend and told him what happened. Her friend agreed to call
the police and take her to the hospital when he finished work. According to E.W., after
Nos. 20AP-66 and 20AP-67 6
speaking with her friend on the telephone, she had sex with another john for drug money
because she was "dope sick." (Tr. Vol. II at 193.) She did recall that she returned to
appellant's address with her friend and obtained the license plate number of the vehicle
parked outside the residence.
{¶ 16} At the hospital, appellant was seen by Brittany Nicole Rice, a Sexual Assault
Nurse Examiner. Rice interviewed E.W. and her medical report was admitted into evidence
as State's Exhibit A-1. Rice testified E.W. was tearful but calm during the interview. Though
E.W. showed no latent sign of a physical or internal injury, Rice stated that E.W. did refuse
consent to the customary head-to-toe examination. E.W. did permit Rice to obtain swabs
from her mouth, anus, and vaginal region for forensic testing. Rice also took a narrative
statement about the rape from E.W., and she read the statement to the jury. The narrative
statement Rice read into the record essentially sets forth the same details and sequence of
events described by E.W. in her trial testimony.
{¶ 17} In 2018, Earl Westfall worked as a detective in the sexual assault unit of the
Columbus Police Department ("CPD"). He testified he was contacted by another officer in
April 2018 who had received a report of a rape and kidnapping from a friend of the victim.
The officer gave Westfall the vehicle description, location, and license plate number
obtained from the victim's friend, and the information led him to appellant. The next day
Westfall interviewed the victim, E.W. When E.W. was able to pick appellant's photograph
out of a photo array administered by another detective, Westfall had enough information
to obtain a warrant for appellant's arrest. Appellant was eventually arrested in the state of
Washington in September 2018, and a DNA sample was obtained.
{¶ 18} Forensic scientist Lynndsey Simon is employed at the CPD crime lab. Simon
performed a forensic analysis of the material on the swabs Rice obtained from E.W.
According to Simon, only the vaginal swab contained interpretable DNA, and appellant was
excluded as a major contributor. Simon did state that appellant could not be excluded as a
minor contributor because the sample contained a mixture of DNA from three or four
individuals.
{¶ 19} On October 4, 2018, appellant was indicted by a Franklin County Grand Jury
for his crimes against E.W., including one count of felonious assault in violation of R.C.
2903.11, a felony of the second degree, three counts of rape in violation of R.C. 2907.02, all
Nos. 20AP-66 and 20AP-67 7
felonies of the first degree, and one count of kidnapping in violation of R.C. 2905.01, a
felony of the first degree.2 The case against appellant was subsequently assigned case No.
18CR-4943.
{¶ 20} On February 20, 2019, appellant was indicted by a Franklin County Grand
Jury for his crimes against A.D., including three counts of rape in violation of R.C. 2907.02,
all felonies of the first degree, and one count of kidnapping in violation of R.C. 2905.01, a
felony of the first degree. The case against appellant was subsequently assigned case No.
19CR-0880.
{¶ 21} The two cases against appellant were joined for a single jury trial. At the close
of the case-in-chief of plaintiff-appellee, State of Ohio, the trial court granted appellant's
Crim.R. 29 motion for acquittal as to the count of the indictment in case No. 19CR-0880
charging appellant with the rape of A.D. by anal intercourse, on finding that there was no
testimony to support a guilty verdict on that charge. The jury subsequently found appellant
guilty of all remaining charges in both cases.
{¶ 22} On January 31, 2020, the trial court conducted a sentencing hearing. As to
case No. 19CR-0880, the trial court sentenced appellant to concurrent 11-year prison terms
for each of the 2 rape convictions, consecutive to an 11-year prison term for kidnapping.
The trial court ordered appellant to serve his 22-year prison term in case No. 19CR-0880
consecutive to his sentence in case No. 18CR-4943.
{¶ 23} As to case No. 18CR-4943, the trial court sentenced appellant to a prison term
of 6 years for felonious assault as charged in Count 1 of the indictment consecutive to a 6-
year prison sentence for rape (cunnilingus) as charged in Count 2. The trial court also
sentenced appellant to concurrent prison terms of 6 years for rape (vaginal intercourse) as
charged in Count 3, 6 years for rape (fellatio) as charged in Count 4, and 6 years for
kidnapping as charged in Count 5. The trial court further ordered appellant to serve the
prison term for Counts 1 and 2 consecutive to the prison term for Counts 3, 4, and 5 for a
total of 28 years in prison. Consistent with the judgment entry in case No. 19CR-0880, the
trial court ordered appellant to serve the 28-year sentence in case No. 18CR-4943
2Appellant was also indicted for similar crimes against another victim, but the prosecution dismissed the
charges prior to trial. (Nov. 14, 2019 Jgmt. Entry at 2.)
Nos. 20AP-66 and 20AP-67 8
consecutive to the 22-year sentence in case No. 19CR-0880, for an aggregate prison term
of 50 years.
{¶ 24} Appellant timely appealed to this court from the judgments in both cases.
II. ASSIGNMENTS OF ERROR
{¶ 25} Appellant assigns the following as trial court error:
[1.] IT WAS ERROR FOR THE COURT TO JOIN THE TWO
SEPARATE CASES FOR TRIAL.
[2.] TO THE EXTENT THE ERROR OF JOINDER IS
REVIEWED ON A PLAIN ERROR BASIS COUNSEL WAS
INEFFECTIVE FOR NOT PRESERVING THE ARGUMENT.
[3.] THE GUILTY VERDICTS, PARTICULARLY THE
VERIDCT [sic] OF GUILTY AS TO COUNT THREE
INVOLVING [E.W.], WAS AGAINST THE SUBSTANTIAL
WEIGHT OF THE EVIDENCE.
a. THE JURY INSTRUCTION ON PENETRATION DID NOT
CLARIFY THAT PENETRATION IS A NECESSARY
ELEMENT FOR RAPE.
[4.] THE VERDICTS WERE AGAINST THE MANIFEST
WIGHT [sic] OF THE EVIDENCE.
III. LEGAL ANALYSIS
A. First Assignment of Error
{¶ 26} In his first assignment of error, appellant argues the trial court erred when it
joined the two indictments in a single trial. We disagree.
{¶ 27} Joinder is governed generally by Crim.R. 8(A), which provides in relevant
part as follows:
Two or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense
if the offenses charged, whether felonies or misdemeanors or
both, are of the same or similar character, or are based on the
same act or transaction, or are based on two or more acts or
transactions connected together or constituting parts of a
common scheme or plan, or are part of a course of criminal
conduct.
{¶ 28} Crim.R. 13 provides that "[t]he court may order two or more indictments * * *
to be tried together, if the offenses or the defendants could have been joined in a single
indictment or information. The procedure shall be the same as if the prosecution were
under such single indictment."
Nos. 20AP-66 and 20AP-67 9
{¶ 29} Crim.R. 14, which governs severance in a criminal matter, states: "If it
appears that a defendant or the state is prejudiced by a joinder of offenses * * * in an
indictment, * * * or by such joinder for trial together of indictments, * * * the court shall
order an election or separate trial of counts, grant a severance of defendants, or provide
such other relief as justice requires."
{¶ 30} Here, appellee moved the trial court, pursuant to Crim.R. 8 and 13, for an
order that the two indictments be tried together. Appellant filed a memorandum in
opposition to joinder. Though the trial court did not issue a written decision on the motion,
the record shows the trial court elected to combine the two indictments for a single trial.
Appellant did not, thereafter, file a motion for relief from the joinder of the two indictments.
{¶ 31} "Joinder is liberally permitted to conserve judicial resources, reduce the
chance of * * * incongruous results and excessive trials, and diminish inconvenience to
witnesses." State v. Armengau, 10th Dist. No. 14AP-679, 2017-Ohio-4452, ¶ 99,
discretionary appeal denied, 151 Ohio St.3d 1511, 2018-Ohio-365, citing State v. Schaim,
65 Ohio St.3d 51, 58 (1992), citing State v. Torres, 66 Ohio St.2d 340, 343 (1981). The
Supreme Court of Ohio has acknowledged, however, "that joinder of offenses of the same
or similar character 'creates a greater risk of prejudice to the defendant,' especially where
the benefits from consolidation are reduced because the otherwise-unrelated offenses
involved different times, locations, victims, and witnesses." Armengau at ¶ 99, quoting
Schaim at 58, fn. 6. "When a defendant claims that he was prejudiced by the joinder of
multiple offenses, a [trial] court must determine (1) whether evidence of the other crimes
would be admissible even if the counts were severed, and (2) if not, whether the evidence
of each crime is simple and distinct." Schaim at 59, citing State v. Hamblin, 37 Ohio St.3d
153, 158-59 (1988); Drew v. United States, 331 F.2d 85 (D.C.Cir.1964). "Because the two
tests are disjunctive, the satisfaction of one negates an accused's claim of prejudice without
consideration of the other." State v. Truss, 10th Dist. No. 18AP-147, 2019-Ohio-3579, ¶ 17,
citing State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, ¶ 38 (10th Dist.), citing
State v. Cameron, 10th Dist. No. 09AP-56, 2009-Ohio-6479, ¶ 35.
{¶ 32} Trial courts have considerable latitude in determining whether severance is
warranted, and an appellate court will not reverse a trial court's decision to deny severance
absent an abuse of discretion. State v. Sullivan, 10th Dist. No. 10AP-997, 2011-Ohio-6384,
Nos. 20AP-66 and 20AP-67 10
¶ 24, citing State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 41, citing State
v. Johnson, 10th Dist. No. 96APA06-751 (Mar. 4, 1997). When, however, a defendant has
"neither sought severance pursuant to Crim.R. 14 nor objected to the joinder, [the appellate
court does] not review the trial court's decision for an abuse of discretion; instead, * * * on
appeal [the appellate court applies] a plain-error standard of review to the trial court's
decision regarding joinder." State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259 ¶ 22.
Because appellant opposed appellee's pretrial motion to join the two indictments, we shall
apply an abuse of discretion standard in reviewing joinder on appeal. A trial court abuses
its discretion when its ruling is " ' "unreasonable, arbitrary, or unconscionable." ' " Sullivan
at ¶ 24, quoting State v. Vasquez, 10th Dist. No. 05AP-705, 2006-Ohio-4074, ¶ 6, quoting
State v. Adams, 62 Ohio St.2d 151, 157 (1980).
1. Other Crimes Evidence Test
{¶ 33} Evid.R. 404(B) categorically prohibits evidence of a defendant's other acts
when its only value is to show that the defendant has the character or propensity to commit
a crime. State v. Smith, __ Ohio St.3d __, 2020-Ohio-4441. Evid.R. 404(B) recognizes
that evidence of other crimes may "be admissible for * * * proof of motive, opportunity,
intent, preparation, plan." State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, ¶ 30.
The Supreme Court, in two recent opinions, provided guidance to trial courts in the proper
application of Evid.R. 404(B). See Smith; State v. Hartman, __ Ohio St.3d __, 2020-Ohio-
4440. In Smith, the Supreme Court set forth the analytical framework as follows:
Evid.R. 404(B) categorically prohibits evidence of a
defendant's other acts when its only value is to show that the
defendant has the character or propensity to commit a crime.
Other-acts evidence may, however, be admissible for another
non-character-based purpose, such as "motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Id. "The key is that the evidence must
prove something other than the defendant's disposition to
commit certain acts." State v. Hartman, __ Ohio St.3d __,
2020-Ohio-4440, __ N.E.3d __, ¶ 22.
In Hartman, we provided a guide for courts to evaluate
proposed other-acts evidence to determine whether the
evidence connects to a permissible purpose without relying on
any improper character inferences. The threshold question is
whether the evidence is relevant. Id. at ¶ 24; Evid.R. 401; see
also State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,
Nos. 20AP-66 and 20AP-67 11
983 N.E.2d 1278, ¶ 20. As we explained in Hartman, the
problem with other-acts evidence is rarely that it is irrelevant;
often, it is too relevant. Hartman at ¶ 25; see 1A Wigmore,
Evidence, Section 58.2, at 1212 (Tillers Rev.1983). In the
Evid.R. 404(B) context, the relevance examination asks
whether the proffered evidence is relevant to the particular
purpose for which it is offered, as well as whether it is relevant
to an issue that is actually in dispute. Hartman at ¶ 26-27; see
also Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988).
Thus, courts should begin by evaluating whether the evidence
is relevant to a non-character-based issue that is material to the
case. If the evidence is not premised on improper character
inferences and is probative of an issue in the case, the court
must then consider whether the evidence's value "is
substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury." Evid.R.
403(A); Hartman at ¶ 29. Because other-acts evidence
" 'almost always carries some risk that the jury will draw the
forbidden propensity inference,' " courts should be vigilant in
balancing the prejudicial impact of the evidence against its
probative value. Id. at ¶ 33, quoting United States v. Gomez,
763 F.3d 845, 857 (7th Cir.2014) (en banc).
Id. at ¶ 36-38.3
{¶ 34} Here, the rape offenses charged in the two indictments are specific-intent
crimes. See Hartman at ¶ 55. Appellant's initial defense at trial was that the evidence did
not establish, beyond a reasonable doubt, that he ever engaged in sexual conduct with either
victim. Appellant claimed alternatively, even if the evidence showed that he engaged in
sexual conduct with one or both of the victims, the sexual conduct was consensual. When
a defendant is charged with a specific-intent crime, such as rape, the specific intent becomes
a material issue in the case. Id. Because appellant defended against the charges involving
the two victims on the grounds that the encounters had been consensual, he placed his
intent at issue. Id. See also State v. Gardner, 59 Ohio St.2d 14, 20-21 (1979). Thus, the
testimony of the two victims would arguably be admissible if the indictments were tried
3 In Smith, the court also determined that there is no guarantee, either by constitution or by statute, that
evidence of other crimes of which the accused was acquitted may not be offered to prove a distinct but related
offense. Id., 2020-Ohio-4441, at ¶ 38-39.
Nos. 20AP-66 and 20AP-67 12
separately provided the other-acts testimony was offered to prove appellant's intent to
commit forcible rape. Schaim, 65 Ohio St.3d at 58.
{¶ 35} "To determine whether other-acts evidence is genuinely probative of the
intent of the accused to commit the charged crime, rather than merely the accused's
propensity to commit similar crimes, the question is whether, 'under the circumstances,
the detailed facts of the charged and uncharged offenses strongly suggest that an innocent
explanation is implausible.' " (Emphasis sic.) Hartman at ¶ 58, quoting Leonard, The New
Wigmore: Evidence of Other Misconduct and Similar Events, Section 7.5.2 (2d Ed.2019).
"Or to put it another way, the other-acts evidence 'must be so related to the crime charged
in time or circumstances that evidence of the other acts is significantly useful in showing
the defendant's intent in connection with the crime charged.' " Hartman at ¶ 58, quoting
1 Wharton's Criminal Evidence, Section 4:31 (15th Ed.2019). See also Gardner at 21 (In
prosecution of defendant for felonious assault, kidnapping, and forcible rape, evidence of
the prior sexual assaults was "so closely related in nature, time and place to the offense
charged" as to be probative of intent.). In Gardner, the court clarified that for other acts
evidence to be probative of intent, it " 'must have such a temporal, modal and situational
relationship with the acts constituting the crime charged that evidence of the other acts
discloses purposeful action in the commission of the offense in question.' " Gardner at 20,
quoting State v. Burson, 38 Ohio St.2d 157, 159 (1974). See also Hartman, 2020-Ohio-
4440, at ¶ 61
{¶ 36} Here, the evidence showed the two rapes occurred in or about April 2018,
both victims were drug-addicted prostitutes, appellant picked up both victims in his navy
blue Ford Explorer in the Linden area of Columbus, both victims entered appellant's vehicle
voluntarily under the assumption that appellant would be paying for sexual favors,
appellant took both victims to his rented home on Duxberry Avenue where the rapes took
place, and he used physical force to rape the victims when they withdrew consent.
Additional similarities include the victims' testimonies that appellant placed a board
against the front door after they entered the residence, the home was in deplorable
condition, dogs were heard barking outside the residence, and the rapes occurred in an
upstairs bedroom containing a small television set and little in the way of furniture.
Nos. 20AP-66 and 20AP-67 13
{¶ 37} In our view, the sexual assaults on each of the two victims were so similar as
to the time, place, and manner of commission that the evidence offered to prove the forcible
rape and kidnapping charges in one indictment disclosed purposeful action on the part of
appellant to commit forcible rape and kidnapping in the other. See State v. Morrison, 10th
Dist. No. 91AP-90 (Nov. 19, 1991) (in a case against defendant accused of raping prostitutes,
this court, following Gardner, upheld the admission of testimony concerning a prior assault
by defendant of another known prostitute when offered to show defendant intended to
forcibly rape the victim "whether or not [the victim] initially consented to accompany
defendant for the purpose of performing sex for money"); compare Hartman at ¶ 62
(evidence that the accused molested his stepdaughter is not probative when offered to prove
defendant's intent to rape the victim because the two victims are "not in the same class of
victims: one is an adult acquaintance, the other was a child relative"). Because the proffered
evidence in support of the rape and kidnapping convictions in case No. 19CR-0880 would
be admissible, under Evid.R. 404(B), when offered to prove appellant's intent to engage in
non-consensual sex with the victim in case No. 18CR-4943, the trial court did not abuse its
discretion when it joined the two indictments for trial over appellant's objection. Schaim,
65 Ohio St.3d at 58; Gardner, 59 Ohio St.2d at 21.
2. Simple and Distinct Evidence Test
{¶ 38} As previously noted, because the other-acts evidence test for joinder and the
simple and distinct evidence test are disjunctive, the satisfaction of one negates an
accused's claim of prejudice without consideration of the other. Truss, 2019-Ohio-3579, at
¶ 17; Gravely, 2010-Ohio-3379, at ¶ 38; Cameron, 2009-Ohio-6479, at ¶ 35. Nevertheless,
in Hartman, the Supreme Court issued the following advice to trial courts regarding the
admission of other-acts evidence:
Because other-acts evidence "almost always carries some risk
that the jury will draw the forbidden propensity inference,"
Gomez at 857, it will often present the dangers that Evid.R.
403(A) seeks to protect against. Thus, when such evidence is
only slightly probative of a nonpropensity theory but has a high
likelihood of unfairly prejudicing the defendant or confusing or
misleading the jury, the evidence must be excluded.
***
When a court determines that other-acts evidence should be
admitted, it must take steps to minimize the danger of unfair
Nos. 20AP-66 and 20AP-67 14
prejudice inherent in the use of such evidence and to ensure
that the evidence is considered only for a proper purpose.
Thus, a court should explain both the specific purpose for
which the evidence may be considered and the rationale for its
admission on the record. Doing so will ensure that trial
participants—as well as reviewing courts—are aware of the
permitted use of the other-acts evidence. Further, as we
explain in more detail below, an appropriate jury instruction
geared toward the specific purpose for which the evidence has
been admitted will help reduce the risk of confusion and unfair
prejudice.
Id. at ¶ 33-34.
{¶ 39} In light of the recent opinions of the Supreme Court in Smith and Hartman,
and because the trial court was never asked to provide, and did not provide, the jury with
an instruction regarding the purpose for which the jury could consider the testimony of one
victim in determining appellant's guilt of the charges involving the other victim, we shall
also review the propriety of joinder under the simple and distinct evidence test. Under the
simple and distinct evidence test, even if Evid.R. 404(B) would have precluded the
testimony of both victims if the two indictments had been tried separately, the defendant
cannot show prejudice arising from joinder of the indictments if the evidence relevant to
the charges in each case is simple and distinct. Armengau, 2017-Ohio-4452, at ¶ 99;
Schaim at 58.
{¶ 40} Though we have acknowledged in our Evid.R. 404(B) analysis that the
offenses charged in the two indictments are remarkably similar as to time, place, and
manner of commission, we find that the jury would have had little trouble separating the
evidence relevant to the charges in one indictment from the evidence relevant to the charges
in the other. The primary witness, and the only eyewitness to the crimes charged in case
No. 18CR-4943 is victim E.W. The primary witness and the only eyewitness to the crimes
charged in case No. 19CR-0880 is victim A.D. As will be discussed in connection with
appellant's third and fourth assignments of error, appellee relied almost exclusively on the
testimony of the respective victims to prove the charges in the separate indictments.
Though the additional evidence presented by appellee may have provided corroboration of
certain facts, it was the testimony of the two victims that provided the critical facts
supporting each of the separate indictments. Because the critical evidence supporting the
convictions was the testimony of the respective victims, we find that it would be a simple
Nos. 20AP-66 and 20AP-67 15
matter for the jury to distinguish between the evidence relevant to case No. 19CR-0880 and
the evidence relevant to case No. 18CR-4943.
{¶ 41} Based on the foregoing, we find the evidence offered by appellee to prove the
charges in the two indictments was simple and distinct, and there was little chance of jury
confusion.
{¶ 42} Appellant maintains that the opinion of the Supreme Court in Schaim
supports his claim that the trial court erred when it granted appellee's motion for joinder.
We disagree.
{¶ 43} The single indictment in Schaim included 5 different counts that alleged 3
different offenses committed against 3 different victims. Counts 1 and 2 charged the
defendant with the forcible rape of his 20-year-old adopted daughter on 2 different
occasions, Counts 3 and 4 charged the defendant with sexual imposition on an adult
employee, and Count 5 charged the defendant with gross sexual imposition on his daughter,
a child under 13 years of age. The trial court denied defendant's motion to sever the counts
into 3 different trials. Following a jury trial on all charges, defendant was convicted of the
forcible rapes of his adult daughter and gross sexual imposition on his minor daughter. The
defendant was acquitted of the sexual imposition charges involving the employee. The First
District Court of Appeals reversed the convictions of forcible rape but affirmed the
conviction of gross sexual imposition. Defendant appealed his conviction of gross sexual
imposition, and the state cross-appealed as to the reversal of the rape convictions.
{¶ 44} Applying the other-acts test, the Supreme Court ruled that defendant was
prejudiced by the joinder because the testimony of defendant's employee would not have
been admissible when offered to prove defendant committed any offenses against his
daughters. Id. at 60. The court also found the opposite to be true in that the testimony of
defendant's two daughters would not have been admissible when offered to prove the
charge of sexual imposition involving his employee. Id. at 60-61. The Schaim court did,
however, conclude that testimony from the older daughter that her father's backrubs were
a pretext for sexual fondling was admissible when offered to rebut defendant' s claim that
he had not touched his younger daughter for the purpose of sexual gratification. Id. The
Supreme Court concluded that "[i]f the charges were severed for trial based on the different
victims, the trial on the charge of gross sexual imposition involving [the minor daughter]
Nos. 20AP-66 and 20AP-67 16
would be the only trial where evidence of the defendant's sexual activity with [his adopted
daughter] would be admissible." Id., 65 Ohio St.3d at 61.
{¶ 45} Applying the simple and distinct test, the Schaim court concluded that
joinder was improper because "the record reflected confusion as to which of the crimes was
being referred to," it "allowed the state to circumvent the prohibition on other acts
testimony," and the other-acts evidence involving the minor victim was both
"inflammatory" and "at best thin." Id. at 62, 63.
{¶ 46} Contrary to appellant's assertion, our ruling in this case is consistent. Id.
Here, the charges in the two indictments involve crimes against the same class of victim, as
was the case with the charges involving defendant's daughters in Schaim. In Schaim,
evidence that defendant obtained sexual gratification by engaging in sexual activity with
the adopted daughter was relevant when offered to prove defendant's motive for engaging
in sexual activity with the other daughter. Such evidence was not relevant, however, when
offered to prove defendant's motive as to the employee victim because defendant's motive
was not at issue. Here, appellant's intent to engage in sexual activity with one victim, an
admitted prostitute who had withdrawn consent, was relevant when offered to rebut
appellant's defense of consent and to prove appellant's intent to rape the other victim, who
was also an admitted prostitute who initially consented to sexual activity. Morrison, 10th
Dist. No. 91AP-90; Hartman, 2020-Ohio-4440, at ¶ 62. Unlike the other-acts evidence
involving the employee victim in Schaim, the evidence in case No. 19CR-0880 would be
admissible, under Evid.R. 404(B), when offered to prove appellant's intent to commit rape
and kidnapping in case No. 18CR-4943. The opposite is also true.
{¶ 47} The Schaim court also found joinder improper under the simple and distinct
test because the evidence supporting the charges involving the minor victim was "at best
thin," the state was allowed "to circumvent the prohibition on other acts testimony," and
the "record reflected confusion as to which of the crimes was being referred to." Id. at 62,
63. The court cited the sheer volume of evidence admitted in support of the charges and
the inflammatory nature of the evidence as factors contributing to the confusion. Id.
{¶ 48} Here, unlike the evidence to support the charges against defendant in
Schaim, the evidence to support the rape and kidnapping charges against the two victims
in this case is both simple and distinct. Because appellant's guilt of the charges in the two
Nos. 20AP-66 and 20AP-67 17
indictments rested largely on the credibility of the two victims, the jury should not have had
a great deal of difficulty in segregating the evidence relevant to each case. Moreover, as will
be discussed in connection with appellant's third assignment of error, there is substantial
evidence of appellant's guilt as to all charges and, unlike the Schaim case, the record reveals
no confusion as to which charges the evidence was offered to prove.4
{¶ 49} We also find no merit in appellant's contention that the joinder of the two
indictments unfairly prejudiced his defense because it permitted the jury to consider the
testimony of one victim in determining the credibility of the other victim. The trial court
instructed the jury as follows:
You are the sole judges of the facts, the credibility of witnesses,
and the weight of the evidence.
To weigh the evidence, you must consider the credibility of
witnesses. You will apply the tests of truthfulness which you
apply in your daily lives.
These tests include: the appearance of each witness upon the
stand; the witness' manner of testifying; the reasonableness of
the testimony; the opportunity the witness had to see, hear,
and know the things concerning the testimony; the accuracy
of the witness' memory; frankness or lack of it; intelligence,
interest, and bias, if any; together with all the facts and
circumstances surrounding the testimony.
Applying these tests, you will assign to the testimony of each
witness such weight as you deem proper.
You are not required to believe the testimony of any witness
simply because he or she was under oath. You may believe or
disbelieve all or any part of the testimony of any witness. It
is your province to determine what testimony is worthy of
belief and what testimony is not worthy of belief.
(Emphasis added.) (Tr. Vol. III at 345.)
{¶ 50} The jury was properly instructed to determine the credibility of "each
witness" based on a generally accepted test for truthfulness. (Tr. Vol. III at 345.) As an
appellate court, we presume the jury followed the trial court's instruction and applied the
proper standard in assessing a witness's credibility. State v. Proby, 10th Dist. No. 14AP-
4 The Schaim court noted that even the First District Court of Appeals had been confused as to the evidence
relevant to the charges involving defendant's two daughters. Id. at 62.
Nos. 20AP-66 and 20AP-67 18
1067, 2015-Ohio-3364, ¶ 49, citing State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-
1942, ¶ 147.
{¶ 51} For the foregoing reasons, we hold that the trial court did not abuse its
discretion when it joined the two indictments for trial over appellant's objection.
Appellant's first assignment of error is overruled.
B. Second Assignment of Error
{¶ 52} Appellant's second assignment of error, as written, is both limited to
counsel's performance regarding the joinder of the two indictments for trial and
conditioned on our application of the plain-error standard of review with respect to joinder.
Because we applied the abuse of discretion standard in our review of appellant's first
assignment of error, appellant's second assignment of error is rendered moot. App.R.
12(A)(1)(c).
{¶ 53} Furthermore, because appellant's second assignment of error is limited to
counsel's performance regarding joinder, appellant's argument that trial counsel failed to
perform competently in other respects is not properly before this court. "Pursuant to
App.R. 12(A)(1)(c), courts of appeal decide appeals on assignments of error, not arguments
or issues contained in a brief." Wood v. Simmers, 10th Dist. No. 17AP-269, 2017-Ohio-
8718, ¶ 7, citing Hamilton v. Hamilton, 10th Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 9,
citing In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5. See also Bonn
v. Bonn, 10th Dist. No. 14AP-967, 2015-Ohio-3642, ¶ 15.
{¶ 54} Accordingly, appellant's second assignment of error is moot.
C. Third Assignment of Error
{¶ 55} In appellant's third assignment of error, appellant claims the convictions,
particularly the conviction of the vaginal rape of E.W., were not supported by "substantial
weight of the evidence." (Appellant's Brief at 4.) This court has treated claims that a
conviction is not supported by substantial evidence as a challenge to the sufficiency of the
evidence. Columbus v. Clark, 10th Dist. No. 14AP-719, 2015-Ohio-2046, ¶ 32; State v.
Wheat, 10th Dist. No. 05AP-30, 2005-Ohio-6958, ¶ 14; Columbus v. Reynolds, 10th Dist.
No. 78AP-843 (June 28, 1979).
{¶ 56} "Sufficiency of the evidence is a legal standard that tests whether the evidence
is legally adequate to support a verdict." State v. Kurtz, 10th Dist. No. 17AP-382, 2018-
Nos. 20AP-66 and 20AP-67 19
Ohio-3942, ¶ 15, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "Whether the
evidence is legally sufficient to support a verdict is a question of law, not fact." State v.
Cervantes, 10th Dist. No. 18AP-505, 2019-Ohio-1373, ¶ 24, citing Kurtz at ¶ 15, citing
Thompkins at 386. "In determining whether the evidence is legally sufficient to support a
conviction, ' "[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt." ' " Cervantes at ¶ 24, quoting
State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 57} "In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but whether, if believed, the evidence
supports the conviction." Kurtz at ¶ 16, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79-80. "The court essentially assumes the state's witnesses testified truthfully
and determines whether that testimony satisfies each element of the crime." State v. Davis,
10th Dist. No. 18AP-921, 2019-Ohio-4692, ¶ 38, citing State v. Bankston, 10th Dist. No.
08AP-668, 2009-Ohio-754, ¶ 4. " 'Further, "the testimony of one witness, if believed by the
jury, is enough to support a conviction." ' " Davis at ¶ 38, quoting State v. Patterson, 10th
Dist. No. 15AP-1117, 2016-Ohio-7130, ¶ 33, quoting State v. Strong, 10th Dist. No. 09AP-
874, 2011-Ohio-1024, ¶ 42.
{¶ 58} Felonious assault, as defined in R.C. 2903.11(A)(1), occurs when a "person
* * * knowingly * * * [c]ause[s] serious physical harm to another." Serious physical harm
includes "any physical harm that involves acute pain of such duration as to result in
substantial suffering." R.C. 2901.01(A)(5)(e).
{¶ 59} R.C. 2907.02 provides "[n]o person shall engage in sexual conduct with
another when the offender purposely compels the other person to submit by force or threat
of force. * * * Whoever violates this section is guilty of rape, a felony of the first degree."
R.C. 2907.02(A)(2) and(B). " 'Sexual activity' means sexual conduct or sexual contact, or
both." R.C. 2907.01(C). Pursuant to R.C. 2907.01(A), "[s]exual conduct" is defined in
relevant part as "vaginal intercourse between a male and female; * * * fellatio, and
cunnilingus between persons regardless of sex. * * * Penetration, however slight, is
sufficient to complete vaginal or anal intercourse."
Nos. 20AP-66 and 20AP-67 20
{¶ 60} R.C. 2905.01 provides in relevant part "[n]o person, by force * * * shall * * *
restrain the liberty of the [victim] * * * [t]o engage in sexual activity, as defined in section
2907.01 of the Revised Code, with the victim against the victim's will." R.C. 2905.01(A)(4).
"Whoever violates R.C. 2905.01 is guilty of kidnapping." R.C. 2905.01(C)(1).
{¶ 61} Here, the testimony of the two victims, if believed, provided the jury with
sufficient evidence to satisfy the elements of the charged offenses beyond a reasonable
doubt. With regard to the finding of guilt as to the felonious assault on E.W., she testified
that when she asked appellant for money in return for sex, he placed his hands around her
neck and began choking her until she lost consciousness. Ohio courts have consistently
held that being choked to the point of unconsciousness constitutes serious physical harm
because it causes the victim to be in a state of temporary, substantial incapacity. State v.
Redwine, 12th Dist. No. CA2006-08-011, 2007-Ohio-6413, ¶ 32; State v. Conant, 4th Dist.
No. 20CA1108, 2020-Ohio-4319; State v. Czajka, 101 Ohio App.3d 564, 574 (8th
Dist.1995); State v. Mushrush, 135 Ohio App.3d 99, 108 (1st Dist.1999). Accordingly,
E.W.'s testimony provided the jury with sufficient evidence to find appellant guilty of
felonious assault beyond a reasonable doubt.
{¶ 62} With regard to the guilty verdicts on the rape charges, both victims testified
they did not consent to any sexual activity with appellant after he refused to pay them. They
further testified appellant compelled them to engage in sexual conduct by use of force when
they refused to engage in such conduct without payment. E.W. testified appellant forced
her to engage in sexual conduct including fellatio, vaginal sex, and cunnilingus. A.D.
testified appellant forced her to engage in sexual conduct in the form of fellatio and vaginal
intercourse.
{¶ 63} We also disagree with appellant's claim that E.W. failed to testify that
appellant's penis or any other object penetrated her vagina, as is required for a conviction
of rape. As noted above, E.W.'s testimony included the following account:
Q. Okay. Now, when you say he raped you, I don't want to
belabor the point, but where was his penis in relation to your
body?
A. Everywhere. In my mouth. Everywhere but anal.
Q. Okay.
Nos. 20AP-66 and 20AP-67 21
A. Like he vaginally raped me. He had sat on top of me at one
point so I could give him oral sex. It lasted for hours.
(Tr. Vol. II at 174.)
{¶ 64} The trial court instructed the jury in relevant part as follows:
Before you can find the defendant guilty of rape, you must find
beyond a reasonable doubt that on or about the 5th day of
April, 2018, in Franklin County, Ohio, the defendant engaged
in sexual conduct, to wit: vaginal intercourse, with [E.W.] and
the defendant purposely compelled [E.W.] to submit by force
or threat of force.
(Tr. Vol. III at 351-52.)
Sexual conduct means 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
cavity of another.
Penetration, however slight, is sufficient to complete vaginal
or anal intercourse.
(Tr. Vol. III at 351.)
{¶ 65} Contrary to appellant's claims, the trial court's instruction to the jury tracks
the statutory language with respect to the offense of rape and the definition of sexual
conduct for purposes of that offense. Though appellant's trial counsel interposed objections
to other proposed jury instructions in this case, counsel did not object to the jury instruction
defining sexual conduct and did not ask for a more detailed instruction regarding
penetration for purposes of a rape offense. In our view, E.W.'s testimony provided
sufficient evidence to satisfy the elements of a rape offense, including vaginal penetration.
{¶ 66} The evidence also supports the separate guilty verdicts for kidnapping as both
victims testified that appellant prevented them from leaving his bedroom in order to engage
in sexual activity. The testimony of both victims provided the jury with evidence that
appellant used physical force to prevent them from leaving the bedroom, refused their pleas
to be released, threatened them with physical harm if they attempted to flee, and continued
to restrain their movements for several hours as he repeatedly engaged in various forms of
sexual conduct with the victims. In E.W.'s case, the evidence supports a finding that
appellant transported her from downstairs to the upstairs bedroom while she was
Nos. 20AP-66 and 20AP-67 22
unconscious. Thus, the testimony of the victims was sufficient to sustain the separate guilty
verdicts for kidnapping beyond a reasonable doubt.
{¶ 67} Based on the foregoing, we hold the record contains sufficient evidence to
support the guilty verdicts beyond a reasonable doubt. Appellant's third assignment of
error is overruled.
D. Fourth Assignment of error
{¶ 68} In appellant's fourth assignment of error, appellant contends the convictions
were against the manifest weight of the evidence. We disagree.
{¶ 69} In considering a claim that a jury verdict is against the manifest weight of the
evidence, this court reviews the entire record, 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. State
v. Guice, 10th Dist. No. 18AP-305, 2019-Ohio-1324, ¶ 23, quoting State v. Williams, 10th
Dist. No. 10AP-779, 2011-Ohio-4760, ¶ 20, quoting State v. Martin, 20 Ohio App.3d 172,
175 (1st Dist.1983). "Further, '[t]he discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.' " Williams at ¶ 20, quoting Martin at 175.
{¶ 70} " 'Unlike the standard of review for sufficiency of the evidence, "a reviewing
court does not construe the evidence most strongly in favor of the prosecution when using
a manifest-weight standard of review." ' " Guice at ¶ 24, quoting Williams at ¶ 21, quoting
State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 81 (2d Dist.). " 'A manifest
weight of the evidence challenge "questions the believability of the evidence and asks a
reviewing court to determine which of the competing inferences is more believable." ' "
Guice at ¶ 24, quoting Williams at ¶ 21, quoting Woullard at ¶ 81. " 'However, an appellate
court "may not substitute its judgment for that of the trier of fact on the issue of the
credibility of the witnesses unless it is patently apparent that the factfinder lost its way." ' "
Guice at ¶ 24, quoting Williams at ¶ 21, quoting Woullard at ¶ 81.
{¶ 71} As earlier stated, the testimony of the two victims, if believed, provided the
jury with sufficient evidence to satisfy the elements of the offenses beyond a reasonable
doubt. Appellant argues, however, that the testimony of the two victims was unworthy of
Nos. 20AP-66 and 20AP-67 23
belief and, in the absence of corroborating physical evidence, this court should exercise its
discretionary power to grant a new trial. We disagree.
{¶ 72} With regard to the guilty verdict on the felonious assault charge involving
E.W., appellant's trial counsel acknowledged in his closing argument that choking E.W. to
the point of unconsciousness would constitute serious physical harm. Appellant maintains,
however, that in the absence of any observable injury to her neck, the jury was required to
disregard E.W.'s testimony. Rice testified, however, that E.W. refused the head-to-toe
physical examination. Consequently, the absence of any evidence of bruises or marks on
E.W.'s neck did not preclude the jury from crediting her testimony about being choked to
the point of unconsciousness. E.W. testified as follows:
Q. Okay. You said he started getting violent at that point?
A. Yes.
Q. Were you still downstairs?
A. Yes.
Q. Did you walk up the stairs at any point?
A. No. I passed out because I was trying to kick him off, and
that made him mad. And he was, like, yelling at me, like, "I'm
going to choke you. I'm going to choke you." And I woke up
upstairs. Well, at the time, I didn't know I was upstairs. I
just knew I was in a bedroom --
(Emphasis added) (Tr. Vol. II at 172.)
{¶ 73} In our view, E.W.'s testimony about being choked to unconsciousness was
sufficiently compelling to convince the jury that she suffered serious physical harm at the
hands of appellant, even in the absence of evidence of an observable physical injury to her
neck.
{¶ 74} Appellant makes a similar argument with respect to the rape convictions
involving victim E.W. Appellant claims that in the absence of any evidence that E.W.
sustained an observable external or internal physical injury to her vaginal area, the weight
of the evidence does not support the guilty verdict on the charge of vaginal rape. Rice
estimated, however, that only 20 percent of rape victims sustain a physical injury.
Consequently, the lack of an observable external or internal physical injury to E.W.'s vaginal
area did not rule out a forceable rape conviction, provided the jury believed E.W.'s
testimony.
Nos. 20AP-66 and 20AP-67 24
{¶ 75} Similarly, the lack of DNA evidence linking appellant to the rape of E.W. did
not foreclose a guilty verdict if the jury found E.W.'s testimony to be truthful. E.W. testified
that she had sexual intercourse with another john after the rape and before she presented
to the hospital for examination. Though appellant was excluded as a major contributor of
the genetic material from the vaginal swab, forensic scientist Simon testified that appellant
could not be excluded as a minor contributor to the mixture of DNA on the vaginal swab
because it was uninterpretable. She also testified that if the victim of a vaginal rape engaged
in consensual vaginal intercourse around the time of the rape, it would "make sense" that
someone other than the suspect would be a major contributor of the recovered DNA. (Tr.
Vol. III at 286-87.)
{¶ 76} The remainder of appellant's manifest-weight argument focuses on the
credibility of the two victims. Appellant contends the victims' testimonies was not
believable because they were engaged in illegal prostitution at the time of the crimes and
admitted they were under the influence of illegal drugs. In response, appellee cites E.W.'s
testimony that she was "not high" at the time appellant committed the crimes against her.
(Tr. Vol. II at 183.) Furthermore, the jury was made aware of the relevant circumstances
affecting the credibility of the two victims on cross-examination. The jury was frequently
reminded of these circumstances during closing argument. The jury was also instructed by
the trial court as to their obligation to determine the credibility of each witness and their
prerogative to believe or disbelieve all or any part of each witness's testimony. The trial
court also instructed the jury as to the test for truthfulness they should apply in making
their assessment of witness credibility.
{¶ 77} Appellee points to testimony corroborating certain details in the victims'
accounts. For example, Robert Pitts testified that he is the owner of the property on
Duxberry Avenue where the rapes took place, and he recognized appellant at trial. Pitts
had leased the property to appellant for seven years before evicting him for nonpayment of
rent approximately one year prior to trial. Pitts confirmed State's Exhibits D-1 and D-2
depict a front and aerial view of the home. Pitts testified appellant owned a blue "SUV" and
two pit bull dogs. (Tr. Vol. III at 261.) He corroborated the victims' testimonies about the
deplorable condition of the home, inside and out; some of which would only be known to
someone who had recently been to the home. And, the narrative statement E.W. gave to
Nos. 20AP-66 and 20AP-67 25
Rice, which Rice read into the record, contained the same details and sequence of events as
E.W.'s trial testimony. Furthermore, the jury was also instructed: "Testimony has been
admitted indicating that the defendant may have fled the jurisdiction. You're instructed
that flight alone does not raise a presumption of guilt, but it may tend to indicate the
defendant's consciousness or awareness of guilt." (Tr. Vol. III at 348.) On this record, the
jury could have found appellant fled to the state of Washington because he had committed
crimes against the victims in Ohio.
{¶ 78} As we have noted, this court does not construe the evidence most strongly in
favor of the prosecution when conducting a manifest-weight analysis. Guice, 2019-Ohio-
1324, at ¶ 24; Williams, 2011-Ohio-4760, at ¶ 21. Rather, when faced with a manifest weight
of the evidence challenge, we must question the believability of the evidence and determine
which of the competing inferences is more believable. Guice at ¶ 24; Williams at ¶ 21;
Woullard, 2004-Ohio-3395, at ¶ 81. In making that determination, we may not substitute
our judgment for that of the trier of fact on the issue of the credibility of the witnesses unless
it is patently apparent that the factfinder " ' "lost its way." ' " Guice at ¶ 24, quoting Williams
at ¶ 21, quoting Woullard at ¶ 81.
{¶ 79} It is not apparent, on this record, the jury lost its way in making the required
credibility determinations and resolving competing inferences. Accordingly, we hold the
weight of the evidence supports the guilty verdicts reached by the jury, and the convictions
were not against the manifest weight of the evidence. Appellant's fourth assignment of
error is overruled.
IV. CONCLUSION
{¶ 80} Having overruled appellant's first, third, and fourth assignments of error and
having rendered appellant's second assignment of error moot, we affirm the judgments of
the Franklin County Court of Common Pleas.
Judgments affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
_____________