State v. August

2019 Ohio 4126

• Court: Ohio Court of Appeals
• Decided: October 7, 2019
• Docket: CA2018-12-136
• Status: Published

Opinion

[Cite as State v. August, 2019-Ohio-4126.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-12-136

: OPINION - vs - 10/7/2019 :

LENCY D. AUGUST, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 18CR33979

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Timothy J. McKenna, 125 East Court Street, Suite 950, Cincinnati, Ohio, 45202, for appellant

PIPER, J.

{¶ 1} Appellant, Lency D. August, appeals his conviction in the Warren County Court

of Common Pleas for rape.

{¶ 2} In December 2016, a woman (the "victim") met appellant through an online

dating website. The two eventually began living with each other in the victim's townhouse.

The victim would drive appellant in her minivan to and from her townhouse to his two jobs. Warren CA2018-12-136

On the night of February 22, 2017, the victim picked appellant up from one job to head home

for a short break before driving him to his second job. At some point on this trip, the two

began arguing and appellant repeatedly punched the victim in the head and about the body.

As they neared her townhouse, appellant ordered her to drive to Walmart. Before they made

it to Walmart, appellant changed his mind and commandeered the vehicle by grabbing the

steering wheel and using his foot on the pedals. Appellant then drove the vehicle into the

service entrance of a nearby shopping center. Appellant guided the vehicle behind the

shopping center and eventually to the side of the Kohl's building where the vehicle was

stopped. At this point, appellant demanded the victim perform fellatio. The victim, wary of

being beaten again and in fear of her safety, complied. Subsequently, appellant ordered the

victim to drive them back to her townhouse.

{¶ 3} After arriving at the victim's townhouse, appellant brandished a short-bladed

craft knife and told the victim he would hurt her and her three children if she did not comply

with him. The two went upstairs to her bedroom. Appellant closed the door and barricaded it

with a nearby dresser. Appellant then ordered the victim to have vaginal intercourse with

him. After the intercourse took place, the victim heard her seven-year-old daughter asking

for help outside the door. Appellant moved the dresser and the victim attended to her

daughter, closely supervised by appellant. The two then went back into the bedroom.

Appellant again barricaded the door and commanded the victim again perform oral and

vaginal intercourse with him.

{¶ 4} The next morning, appellant demanded the victim drive him to the bus station in

Dayton. A few miles from the residence, appellant changed his mind and told the victim to

drive back home because one of his family members had arranged for a taxi to pick him up at

the townhouse. The two came back and waited until the taxi arrived. Appellant left in the

taxi. A few hours after appellant's departure, the victim went to the Middletown police to

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report the offenses and then to the hospital where a medical examination and rape kit

collection were performed.

{¶ 5} Based on the foregoing, in February 2018, a Warren County Grand Jury

indicted appellant on five offenses: three counts of rape, all first-degree felonies in violation

of R.C. 2907.02(A)(2); and two counts of kidnapping with sexual motivation specifications,

both first-degree felonies in violation of R.C. 2905.01(A)(4) and 2941.147(A). Appellant filed

a pretrial motion to dismiss the indictment for preindictment delay. After conducting a

hearing on the matter, the trial court denied the motion.

{¶ 6} The case proceeded to a jury trial in November 2018. At the trial, the victim,

the sexual assault nurse examiner, the investigating police detective, and two Ohio Bureau of

Criminal Investigation ("BCI") laboratory analysts testified on behalf of the state. Appellant

presented testimony from the taxi company owner and a medical expert. At the conclusion of

the trial, the jury found appellant guilty of the rape that occurred in the victim's vehicle and not

guilty of the remaining charges which allegedly occurred later at the victim's residence. At

the end of November, the trial court sentenced appellant to a mandatory prison term of 10

years, designated him a Tier III sexual offender, and notified him of the requisite postrelease

control conditions.

{¶ 7} Appellant now appeals the conviction, raising five assignments of error for

review.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION

TO DISMISS DUE TO PRE-INDICTMENT DELAY.

{¶ 10} In the first assignment of error, appellant argues that the trial court violated his

right to due process when it denied the motion to dismiss the indictment. Appellant asserts

that he suffered actual prejudice when the state waited more than a year from the date of the -3- Warren CA2018-12-136

offense to indict him.

{¶ 11} An unjustifiable delay between the commission of a criminal offense and an

indictment for that offense that causes actual prejudice violates an accused's right to due

process of law as provided by the United States and Ohio Constitutions. State v. Luck, 15

Ohio St.3d 150 (1984), paragraph two of the syllabus. Nevertheless, the primary protection

against stale charges is the applicable statute of limitations. United States v. Lovasco, 431

U.S. 783, 789, 97 S.Ct. 2044 (1977); State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶

11. In reviewing a claim of preindictment delay, the court engages in a burden-shifting

framework. Initially, the accused bears the burden of establishing actual prejudice, then, the

burden shifts to the state to provide evidence to justify the delay. Jones at ¶ 13.

{¶ 12} Actual prejudice is determined by the circumstances of the case and evidence

is considered "as it exists when the indictment is filed" in relation to the prejudice the

defendant will suffer at trial due to the delay. State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-

5059, ¶ 52. As explained by the Ohio Supreme Court,

[a]ctual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state's evidence and bolster the defense.

Jones at ¶ 28. The prejudice advanced must be more than merely speculative. Id. at ¶ 20;

See also State v. Heath, 12th Dist. Warren No. CA96-04-035, 1997 Ohio App. LEXIS 351, at

*5 (Feb. 3, 1997) (proof of actual prejudice must be specific, particularized and non-

speculative). Appellant must show an exculpatory value of the alleged missing evidence in

establishing actual prejudice. State v. Fox, 12th Dist. Fayette No. CA2008-03-009, 2009-

Ohio-556, ¶ 37. Any claim of prejudice by a defendant must be balanced against the other

evidence in order to determine whether actual prejudice will impact the defendant at trial.

Only if actual prejudice will occur at trial will the court then determine whether the reason for

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the delay is unjustified. Id. A court will not presume prejudice merely because the delay

exceeds a particular length of time. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶

98; accord Fox at ¶ 37.

{¶ 13} Appellant identifies three matters to demonstrate actual prejudice: the length of

time it took to indict him, the death of the taxi driver who picked him up on the day after the

incident, and the unavailability of video recordings from surveillance cameras at the shopping

center. Again, we note that the length of time between the commission of the offense and

indictment does not create a presumption of prejudice. Adams at ¶ 98. Consequently, the

only factors relevant to this claim are the death of the potential witness and the unavailability

of video recordings. After review of the record, we find that the evidence offered by appellant

to prove actual prejudice is speculative at best.

{¶ 14} First, the death of a potential witness must be considered in relation to the other

evidence available at the time of the indictment and the witness's overall relevance to the

defense. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105 at ¶ 26. Appellant contends that the

taxi driver might have been able to testify as to the victim's demeanor and that his

interpretation of her demeanor might indicate that she was not fearful of appellant or

displaying the anxiety expected of one recently victimized. While we note that appellant does

not need to precisely establish what the witness's testimony will be to demonstrate the

requisite prejudicial effect, Id. at ¶ 28, appellant's suggested impact of the potential testimony

is unconvincing. Appellant relies only on a possibility that the witness was paying attention to

the interactions between the victim and appellant. At trial, the victim testified that appellant

hugged her prior to getting into the cab, but that she did not reciprocate the hug and merely

accepted it to facilitate appellant's peaceful departure. There is no reason to believe the taxi

driver remembered this particular customer among other fares he accepted in the days and

weeks following this event. The taxi driver's possible observation of the victim came several -5- Warren CA2018-12-136

hours after the alleged offenses occurred. Potential interpretation of the victim's demeanor

would have little weight, and would be speculative, especially when considering the victim

herself was subject to cross-examination. The taxi driver's testimony would not minimize or

eliminate the impact of the state's evidence and bolster the appellant's defense. Assuming

the existence of this potential testimony, it is speculative and only tangentially relevant,

therefore appellant cannot demonstrate actual prejudice.

{¶ 15} Second, while it is true that video recordings were no longer available for use at

trial, appellant has again failed to demonstrate how the video recordings would have

minimized the state's evidence and bolstered his defense. While there was one camera at

the front corner of the Kohl's building, it was not directed towards the area where the vehicle

was allegedly parked. Thus, no cameras covered the area where the crime occurred. At

best, the existence of other surveillance cameras at the shopping center might have filmed a

vehicle entering the area about the time specified by the victim. However, defense counsel's

closing argument elucidates appellant's defense that the sexual conduct was consensual.

Consequently, appellant has failed to establish that the unavailability of any potential

surveillance camera video recording caused actual prejudice to his defense.

{¶ 16} The failure to show actual prejudice makes it unnecessary to consider whether

the delay was unjustified. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954 at ¶ 107.

Accordingly, appellant's first assignment of error is overruled.

{¶ 17} Assignment of Error No. 2:

{¶ 18} THE TRIAL COURT ERRED WHEN IT ALLOWED IN STATEMENTS OF THE

DEFENDANT'S CRIMINAL HISTORY VIA MEDICAL RECORDS.

{¶ 19} In the second assignment of error, appellant argues that the trial court abused

its discretion when it allowed the state to introduce appellant's criminal history and bad prior

acts during the testimony of the nurse who conducted the sexual assault medical -6- Warren CA2018-12-136

examination. Appellant contends this evidence was inadmissible because it constituted

hearsay not within an exception provided by Evid.R 803, improper character evidence in

violation of Evid.R. 404(B), and the danger of unfair prejudice substantially outweighed the

probative value in violation of Evid.R. 403(A).

{¶ 20} At trial, a sexual assault nurse examiner testified about the medical examination

she conducted and the medical report she generated. The nurse then read from a portion of

the report entitled "assault history" in which the victim described all the events she alleged

occurred. The nurse testified that she recorded the victim's statement verbatim. During the

testimony, appellant objected when the nurse read the following statement which described

the offenses that occurred:

He asked if I knew why he'd been in prison, and I said no. He said he had 14 felonies and hurt his ex-girlfriend and her boyfriend. He claimed he's killed someone, but on accident.

The trial court overruled the objection. Before the close of the state's case-in-chief, appellant

again objected to the admission of this portion of the victim's statement included in the

medical report and asked the court to provide a curative instruction to the jury. The court

denied the motion for the curative instruction, but decided to redact these sentences from the

medical report submitted to the jury.

{¶ 21} A trial court has broad discretion to admit or exclude evidence. State v. Martin,

12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9. Therefore, a reviewing court

should not disturb evidentiary decisions unless it finds an abuse of discretion that has

created material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62. An

abuse of discretion is more than an error of law, it implies that the decision was

unreasonable, arbitrary, or unconscionable. State v. Perkins, 12th Dist. Clinton No. CA2005-

01-002, 2005-Ohio-6557, ¶ 8.

{¶ 22} Initially, appellant argues that this statement was inadmissible hearsay. We -7- Warren CA2018-12-136

disagree. Pursuant to Evid.R. 801(C), hearsay is defined as a "statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted." Thus, an out-of-court statement that has a relevant purpose

and is not offered for its truth is not hearsay. State v. Beasley, 153 Ohio St.3d 497, 2018-

Ohio-493, ¶ 170. Words constituting conduct or "verbal acts," such as making a threat, are

often offered, not to prove the truth of the words, but only to establish the words were

spoken. Testimony of this nature is not hearsay. State v. Lamb, 12th Dist. Butler Nos.

CA2002-07-171 and CA2002-08-192, 2003-Ohio-3870, ¶ 79; Wulf v. Bravo Brio Restaurant

Group, Inc., 12th Dist. Butler No. CA2018-12-238, 2019-Ohio-3434, ¶ 35.

{¶ 23} Appellant's out-of-court statement eluding to his past criminal behavior is not

hearsay. The statement was offered to prove appellant's "verbal act" of making the

statement. The statement is relevant to the charged offenses because it shows in the totality

of the circumstances how the victim was threatened. Such evidence was relevant to proving

an element of each offense charged. See R.C. 2907.02(A)(2) and 2905.01(A)(4). The state

did not offer the statement to prove that appellant actually had prior convictions or committed

past violent acts. As such, the statement was not offered for the truth of the matter asserted.

Instead, the statement was offered to establish that appellant bolstered his threats to hurt the

victim and her children by making her believe he had committed previous criminal offenses.

The intimidating statement was made under circumstances to further his threat in order to

control the victim and gain compliance in conjunction with the physical force used earlier.

{¶ 24} Next, appellant argues that this evidence violated Evid.R. 404(B). Pursuant to

Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not admissible to show a

person's character or that the person acted in conformity with that character. State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 68. This kind of evidence may be

admissible if it is offered for purposes other than proving character or conformity with -8- Warren CA2018-12-136

character, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

or the absence of a mistake or accident. Id. To determine admissibility a court must engage

in a three-part analysis: (1) determine whether the evidence is relevant under Evid.R. 401; (2)

determine whether the evidence is used for a legitimate purpose and not to show character

or conduct in conformity with that character; and (3) determine whether the probative value is

substantially outweighed by the danger of unfair prejudice under Evid.R. 403. State v.

Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶ 139. Unfair prejudice exists when the

evidence creates an improper basis for a jury decision. State v. Bowman, 144 Ohio App.3d

179, 185 (12th Dist.2001). Because this analysis necessarily includes the determination of

whether there was unfair prejudice, our resolution on this issue will be dispositive as to

appellant's separate claim of an Evid.R. 403(A) violation.

{¶ 25} Here, the statement was relevant to demonstrate that the victim had been

threatened and had reason to feel threatened. The state had a legitimate purpose for using

the statement by informing the jury that the threatening statement had been made.

Furthermore, the statement did not create unfair prejudice because establishing that the

victim had been threatened was not an improper matter in the jury's consideration of the

charges. Finally, the trial court took measures to lessen any undue emphasis upon this

testimony by redacting this statement from the medical report before it was submitted to the

jury as an exhibit.

{¶ 26} Therefore, the trial court did not err when it admitted this evidence because it

did not constitute hearsay or impermissible character evidence. Accordingly, appellant's

second assignment of error is overruled.

{¶ 27} Assignment of Error No. 3:

{¶ 28} THE TRIAL COURT ERRED WHEN IT DENIED A MOTION FOR MISTRIAL

AFTER THE JURY SAW THE DEFENDANT IN HANDCUFFS. -9- Warren CA2018-12-136

{¶ 29} In the third assignment of error, appellant argues the trial court abused its

discretion by denying his motion for a mistrial. Specifically, appellant argues that a mistrial

was required because several jurors saw appellant in handcuffs through a closed-circuit

television feed and this observation caused improper bias.

{¶ 30} It is within the sound discretion of the trial court to deny a motion for a mistrial.

State v. Kaaz, 12th Dist. Clinton No. CA2016-05-010, 2017-Ohio-5669, ¶ 64. This court has

previously held that

[a] trial court should not grant a motion for a mistrial unless it appears that some error or irregularity has been injected into the proceeding that adversely affects the substantial rights of the accused, and as a result, a fair trial is no longer possible.

State v. Thornton, 12th Dist. Clermont No. CA2008-10-092, 2009-Ohio-3685, ¶ 11. This

court will not overturn the trial court's decision denying a motion for a mistrial absent finding

an abuse of discretion. Id.

{¶ 31} A criminal defendant should be free of shackles or restraints in the presence of

the jury as part of his due process right to a fair trial. State v. Myers, 154 Ohio St.3d 405,

2018-Ohio-1903, ¶ 45. This is because "[v]isible shackling undermines the presumption of

innocence and the related fairness of the factfinding process." Deck v. Missouri, 544 U.S.

622, 630, 125 S.Ct. 2007 (2005). Nevertheless, this court has held that the right to a fair trial

"is not prejudiced by the use of handcuffs or shackles where the jurors' view of the defendant

is brief and inadvertent and there is no evidence that the jury was tainted." State v. Payton,

12th Dist. Fayette No. CA93-12-028, 1994 Ohio App. LEXIS 3429, *17 (Aug. 8, 1994), citing

State v. Kidder, 32 Ohio St.3d 279, 286 (1987) (danger of prejudice is slight where a juror's

view of defendants in custody is brief, inadvertent and outside of the courtroom).

{¶ 32} Here, upon retiring for final deliberation to the jury room, several of the jurors

acknowledged seeing appellant placed in handcuffs through a television monitor

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inadvertently left on. The trial court individually questioned each juror regarding what he or

she may have seen on the monitor. Several of the jurors saw appellant in handcuffs, while

others did not. However, each of the jurors told the court that it had no bearing on his or her

verdict. Based on the foregoing, the trial court did not abuse its discretion denying the motion

for a mistrial. The observation was brief and the trial court found no juror bias after an

individual inquiry. The record does not suggest the jury was in any way tainted in its

deliberations and therefore the trial court did not abuse its discretion in denying appellant's

motion for a mistrial.

{¶ 33} Accordingly, appellant's third assignment of error is overruled.

{¶ 34} Assignment of Error No. 4:

{¶ 35} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT AS THERE WAS INSUFFICIENT EVIDENCE TO CONVICT.

{¶ 36} Assignment of Error No. 5:

{¶ 37} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶ 38} In the fourth and fifth assignments of error, appellant argues there was

insufficient evidence to convict him for rape and the verdict was against the manifest weight

of the evidence. Specifically, appellant contends that the state failed to prove that the sexual

conduct was compelled by force.

{¶ 39} A sufficiency of the evidence challenge involves the determination of whether

the conviction can be supported as a matter of law. State v. Richardson, 150 Ohio St.3d

554, 2016-Ohio-8448, ¶ 13. The standard of review for a sufficiency of the evidence

challenge is whether any rational trier of fact, viewing the evidence in the light most favorable

to the prosecution, could have found the essential elements of the crime proven beyond a - 11 - Warren CA2018-12-136

reasonable doubt. State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15.

{¶ 40} On the other hand, a manifest weight of the evidence challenge looks at the

inclination of the greater amount of credible evidence to support one side over the other.

State v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 42. To determine

whether a conviction is against the manifest weight of the evidence, the reviewing court must

look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437, ¶ 42. In its review,

an appellate court "must be mindful the trier of fact has the primary role of weighing the

evidence and evaluating witness credibility." State v. Salinger, 12th Dist. Butler No. CA2014-

10-208, 2015-Ohio-2821, ¶ 15. Consequently, a reviewing court will overturn a conviction for

a manifest weight of the evidence challenge "only in extraordinary circumstances when the

evidence presented at trial weighs heavily in favor of acquittal." State v. Green, 12th Dist.

Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 26.

{¶ 41} This court's determination that a conviction is supported by the manifest weight

of the evidence will be dispositive of the sufficiency of the evidence challenge. State v.

Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

{¶ 42} To convict appellant for the rape offense, the state had to prove appellant

engaged in sexual conduct with the victim by purposely compelling the victim to submit by

force or threat of force. R.C. 2907.02(A)(2). Sexual conduct includes fellatio. R.C.

2907.01(A). This court has previously defined fellatio as a sexual act in which the mouth or

lips come into contact with the penis. State v. Warman, 12th Dist. Butler No. CA2016-02-

029, 2017-Ohio-244, ¶ 36. A person acts purposefully when it is the person's specific

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intention to cause a certain result. R.C. 2901.22(A).

{¶ 43} After our review of the record, the verdict was not against the manifest weight of

the evidence. Specifically, the jury heard testimony from the victim about what occurred that

night in her vehicle. She testified that appellant repeatedly struck her in the head and about

her body as she was driving and then took control of the moving vehicle to drive it through

the service entrance of the nearby shopping center and along the backside of the buildings.

Appellant then stopped at the side of a building and ordered the victim to sexually stimulate

his penis with her mouth. The victim testified that she initially refused but then complied

because she was afraid of appellant and did not want to be beaten further. Consequently,

this evidence showed that it was appellant's specific intent to compel sexual conduct by his

use of force and the threat of further force against the victim.

{¶ 44} In addition to this testimony, the state presented testimony from the

investigating police detective, the sexual assault nurse examiner, and the BCI analysts who

tested the rape kit specimens. The state also admitted into evidence the certified medical

record from the victim's hospital visit, photographs from the medical examination, the rape kit,

and the knife used by appellant. The police detective testified that she saw swelling and

redness on the victim's face and head and that the victim was visibly "shaken up" and began

crying during the interview.

{¶ 45} The nurse testified that she conducted a medical examination on the victim and

collected oral and vaginal specimens for a rape kit. During the medical examination, the

nurse saw bruising on the victim's head; specifically noting injuries behind the ear,

underneath the upper lip, and on the chin. The nurse also took photographs of the victim's

injuries. These photographs depict facial swelling and show the bruising on the victim's head

as described by the nurse.

{¶ 46} Finally, while it was not disputed that appellant had sexual relations with the - 13 - Warren CA2018-12-136

victim, the state provided expert testimony from two BCI laboratory analysts. One BCI

analyst testified that semen was identified in the oral specimens. The second BCI analyst

testified that she conducted testing on the specimens to determine whether she could identify

the source of the semen through the specific deoxyribonucleic acid ("DNA") profile. This

analyst confirmed that she found a mixture of DNA profiles in the oral specimens and this

mixture contained DNA profiles that matched both the victim and appellant.

{¶ 47} While appellant argues that the sexual conduct was consensual, a verdict is not

against the manifest weight because the jury chose to disbelieve the defense theory and

instead believe the state's version. See State v. Anglin, 12th Dist. Butler No. CA2018-03-

058, 2019-Ohio-588, ¶ 30. Furthermore, "it was within the province of the jury, as the trier of

fact, to take note of any inconsistencies in the testimony and resolve them accordingly,

believing all, part, or none of each witness's testimony." State v. Lark, 12th Dist. Fayette No.

CA2018-03-004, 2018-Ohio-4940, ¶ 29. In this case, the evidence is such that we do not

find that the jury clearly lost its way and created a manifest miscarriage of justice finding

appellant guilty of the rape that occurred in the vehicle.

{¶ 48} Our determination that the verdict was not against the manifest weight is also

dispositive of the issue that the evidence was sufficient to convict. Jones, 2013-Ohio-150 at

¶ 19. Accordingly, appellant's fourth and fifth assignments of error are overruled.

{¶ 49} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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