[Cite as State v. Barahona-Lara, 2024-Ohio-3048.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-10-069
: OPINION - vs - 8/12/2024 :
JOSE M. BARAHONA-LARA, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2022 CR 1093
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
PIPER, J.
{¶ 1} Appellant, Jose Barahona-Lara, appeals his conviction in the Clermont
County Court of Common Pleas after a jury found him guilty of seven counts of first-
degree felony rape and three counts of third-degree felony gross sexual imposition
("GSI"), all of which appellant perpetrated against an under 13-year-old child. Clermont CA2023-10-069
Facts and Procedural History
{¶ 2} On December 8, 2022, the Clermont County Grand Jury returned a multi-
count indictment against appellant. Counts 1 through 8 of the indictment charged
appellant with eight counts of first-degree felony rape in violation of R.C.
2907.02(A)(1)(b).1 Counts 9, 10, and 11 of the indictment charged appellant with three
counts of third-degree felony GSI in violation of R.C. 2907.05(A)(4). The charges arose
after the under 13-year-old victim, Rachel, disclosed to her teacher that appellant had
been sexually abusing her while they were both living in the same home located in
Clermont County, Ohio.2 This included Rachel alleging appellant had digitally raped her
multiple times with his fingers and had touched her breasts on at least three separate
occasions. Rachel alleged that during the assaults, appellant was "checking" her breasts
and vagina for cleanliness and signs of disease.
{¶ 3} The matter proceeded to a four-day jury trial, during which the jury heard
testimony from several witnesses. The testimony revealed that appellant became
romantically involved with Rachel's mother when Rachel was 5 years old. Since that time,
appellant was in loco parentis of Rachel in a role as her stepfather. In April 2021, when
Rachel was ten years old, her mother died of uterine cancer. Per her mother's wishes,
Rachel remained in appellant's custody after her mother's death.
{¶ 4} Prior to her mother's death, Rachel became "terrified" of appellant after
witnessing several instances of physical abuse between appellant and her mother. In
addition to observing appellant yell at her mother, Rachel also saw appellant strike her
with a belt, broom, and a charger cord. Appellant would also yell at and kick Rachel's
1. Count 2 of the indictment was dismissed after the state's case in chief.
2. For readability purposes, and to protect the victim's identity, we will not use the victim's name or initials, but will instead refer to the victim as "Rachel" throughout this opinion.
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dog. After her mother's death, Rachel described appellant as "more upset" and "angry a
lot." Appellant would tell Rachel he did not have a family and would call her a "piece of
shit." Rachel recalled one occasion where appellant grabbed a three-foot sword and
placed it on top of her head. Although appellant eventually took the sword down and did
not say anything, Rachel testified she believed she was going to die. Rachel further
testified that appellant would punish her with his belt, oftentimes hard enough to leave
scars on her shoulder, thighs, and legs. At some point, appellant's actions led Rachel to
engage in self-harm, which continued until she was placed in a foster home.
{¶ 5} Rachel, who was 12 years old at the time of trial, testified to the sexual
abuse that appellant had inflicted upon her. Regarding the allegations of digital
penetration, Rachel described multiple occasions where appellant had touched her body
in a way that she did not like. In so doing, Rachel testified that "[appellant] told [her] he
wanted to look at [her] privates to see if [she] was, like, wiping [herself] and, like, making
sure that it was clean." During these encounters, appellant would tell Rachel to take off
her pants and underwear, lay on his bed, and spread her legs. Appellant would then
"check" her vagina by using a "spreading motion" with his fingers on her vagina's "outside
lips" and "look[ing] around with his eyes and then mov[ing] to the smaller lips and look
around." During her testimony, Rachel demonstrated for the jury, using a tissue box, how
appellant touched her during these "checks."
{¶ 6} Rachel testified that, at one time, she suffered from a medical issue in her
vaginal area. Rachel informed a family friend of her vaginal issues, who suggested
Rachel see a doctor. After Rachel spiked a fever and became swollen "down there,"
appellant took Rachel to the doctor where she was diagnosed with Upschutz Ulcers, i.e.,
ulcers of the vagina. After using medication, the issue was resolved. Notwithstanding
Rachel's medical issue, the testimony revealed that appellant began conducting the
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vaginal "checks" on Rachel prior to the presentation of these ulcers and continued after
the ulcers should have been healed.
{¶ 7} Rachel testified to seven specific occasions where appellant performed a
"check" of her vagina, and explained that, although the checks occurred more than seven
times, she could not remember details. Rachel also described three occasions where
appellant checked her breasts for cancer, during which he commented that her nipple
looked like someone had bitten it, noted that she had stretch marks on her breasts, and
asked her if she was horny. Rachel testified that appellant asked her if she was horny
after he had "checked" her private and "then he looked to see" if she was "horny" by
touching her nipple. Rachel did not know what it meant to be "horny," but appellant told
her "something about . . . her nipple," and "that's how you know when a girl's horny."
{¶ 8} Rachel testified that the last time appellant assaulted her, she was lying
down in appellant's bed without any pants or underwear. At that point, "he touched [her]
vagina and got aggravated because [she] kept moving up . . . trying to get him off - - like
his hands off of [her] vagina . . . and he was, like, he moved away from [her] and he was
kind of close to his closet and the door and he took off his pants and his [penis] came
out . . ." At that time, Rachel was crying because she "just didn't want to do it anymore,"
and "thought that [she] was going to get raped."
{¶ 9} Shortly thereafter, Rachel disclosed the abuse to a close friend and her
homeroom teacher. Rachel's teacher reported the disclosure to Child Protective Services
of Clermont County ("CPS") and the Union Township Police Department was notified.
CPS opened an investigation into Rachel's allegations and concluded Rachel was not
safe in the home with appellant. Rachel was removed from the home that day and was
briefly placed in the home of a family friend before beginning a foster placement outside
of the school district.
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{¶ 10} Due to the nature of the allegations, CPS referred Rachel to the Mayerson
Center at Cincinnati Children's Hospital to complete a forensic interview. There, Rachel
was interviewed by medical professionals, including Ashley Cremeans, a social worker
and forensic interviewer who heard Rachel's account of the sexual abuse and recorded
the interview. A redacted version of the interview was played for the jury and admitted
into evidence without objection.
{¶ 11} CPS filed for emergency temporary custody of Rachel while an investigation
into Rachel's allegations ensued. CPS's complaint was based upon concerns that
appellant was "physically examining [Rachel], where he would take his fingers and check
the outside of her vagina as well as the inside of her vagina." According to CPS, appellant
told Rachel these checks were to "ensure that she was safe – and that she was not going
to become sick like her mother was." The matter was set for an adjudication hearing,
which was scheduled for December 8, 2022. A CPS intake investigator testified that the
adjudication hearing is a "very important part of the dependency process," as that is when
a parent would state why his child was not abused or neglected and the court would
decide the issue.
{¶ 12} An investigator with the Union Township Police Department testified that he
was responsible for investigating Rachel's allegations, and in so doing, learned that
appellant was "getting ready to leave the country." Based upon this information, in
addition to Rachel's statements during her forensic interview and to the police, the
investigator obtained a search warrant for appellant's home. On December 2, 2022, the
investigator and other officers executed the search warrant, which yielded items that
corroborated parts of Rachel's allegations, including a collection of knives and swords, as
well as medical cream next to her bed. Officers also discovered evidence that appellant
planned to leave the country, including suitcases packed with sentimental items and the
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fully executed titles for his vehicles. Officers also found a folder hidden under appellant's
bed sheet, which contained appellant's passport and Covid-19 vaccination card, as well
as flight details for a one-way ticket to El Salvador on December 4, 2022 in appellant's
name.
{¶ 13} In appellant's case-in-chief, Officer Keith Puckett with the Union Township
Police Department testified that he responded to appellant's home on November 18,
2022. When he arrived, he was briefed by CPS that he was there to remove a child due
to some sexual allegations. The officer described appellant as helpful, complicit, and non-
aggressive during their interaction.
{¶ 14} Appellant then took the stand and described his daughter and stepfather
relationship with Rachel. After Rachel's mother passed away, appellant's relationship
with Rachel became tougher, as Rachel became more involved with activities and friends
that did not meet with his approval. Appellant stated he typically punished Rachel by
"giving her the belt," and described a recent occasion where he did not do so, even though
Rachel had been caught vaping at school.
{¶ 15} Regarding Rachel's history of vaginal ulcers, appellant testified he became
aware of her medical condition when she began having high fevers, up to 100.3 degrees,
for two or three days. At that point, he told Rachel to take her clothes off and "get a cold
shower." Rachel informed appellant that she thought she had an infection, which
prompted appellant to purchase creams and wipes from the pharmacy. When he returned
home, he told Rachel: "I'm sorry, [Rachel] but I'm going to have to see . . . what this
infection is about . . . . I told her she needed to remove her pants and underwear so I
could see." At that point, appellant discovered Rachel's "lips" were "inflamed down there,"
and he immediately considered that it could be cancer. Appellant denied touching
Rachel, and stated he took her to the hospital at that point. The doctor informed appellant
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that Rachel was inflamed and that he found "sores" on her skin. The doctor prescribed
medication to reduce the inflammation.
{¶ 16} Appellant testified that, after her visit to the doctor, Rachel asked him to
check her because she "felt a sting." Appellant then described the following:
I said, okay well, let me – let me see. She then asked me, so how do I – how do I do it? And I'm sorry. As a father, that's something that you would want to do. Because - - but honestly, because of the fear for everything that had happened, I did ask her – ask her to open her legs. And I told her to use her fingers . . . I grabbed her hand and I told her to use her fingers to show me what she was referring to. And then I noticed that she has some scabs . . . and I reminded her that the gynecologist told us that this was going to happen.
Appellant unequivocally denied touching anywhere in between Rachel's legs.
{¶ 17} Appellant also testified he had "checked" an abnormal pimple on Rachel's
breast, at her request, and asked her if she was horny given the stimulated appearance
of her nipple. At that time, appellant told Rachel, "don't be like that. I am like your dad."
He then told Rachel to check herself often because she could get cancer.
{¶ 18} On cross-examination, appellant acknowledged he is not a doctor, but
claimed he was very worried about Rachel developing cancer. Appellant also discussed
asking Rachel if she was "horny," during which he indicated that Rachel was an
adolescent girl, and in terms of what he was able to do and see, he "[could] tell when
someone is attracted to someone." Although he did not "know for sure" whether his
stepdaughter, then 9, 10, or 11 years old, was attracted to him, he claimed a lot of "weird"
things were happening.
{¶ 19} Regarding the plane ticket, appellant testified he purchased the one-way
ticket to El Salvador because it had been 12 years since he had seen his mother. He
claimed she was all he had left since his wife was deceased and Rachel had been
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removed from his care. According to appellant, the reason he bought a one-way ticket
was because he is an illegal citizen and could not come back to the United States. Thus,
appellant acknowledged that if he went to El Salvador he would not be returning to care
for Rachel.
{¶ 20} After considering the evidence presented at trial, the jury found appellant
guilty of seven counts of rape and three counts of GSI. The trial court sentenced appellant
to an aggregate prison term of 75 years to life, with eligibility of parole after 25 years.
Appellant now timely appeals from his conviction and raises four assignments of error for
our review.
The Appeal
{¶ 21} Assignment of Error No. 1:
{¶ 22} BARAHONA'S CONVICTIONS FOR RAPE ARE NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE.
{¶ 23} Assignment of Error No. 2:
{¶ 24} BARAHONA'S CONVICTIONS FOR RAPE ARE NOT SUPPORTED BY
THE WEIGHT OF THE EVIDENCE.
{¶ 25} In his first and second assignments of error, appellant argues his
convictions for rape were not supported by sufficient evidence and were against the
manifest weight of the evidence. Appellant does not challenge the weight or sufficiency
of the evidence with respect to his convictions for GSI.
{¶ 26} The concepts of sufficiency of the evidence and weight of the evidence are
legally distinct. State v. Wright, 2014-Ohio-985, ¶ 10 (12th Dist.). Nonetheless, as this
court has observed, a finding that a conviction is supported by the manifest weight of the
evidence is also dispositive of the issue of sufficiency. State v. Jones, 2013-Ohio-150, ¶
19 (12th Dist.). "Because sufficiency is required to take a case to the jury, a finding that
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a conviction is supported by the weight of the evidence must necessarily include a finding
of sufficiency." State v. Hart, 2012-Ohio-1896, ¶ 43 (12th Dist.).
{¶ 27} A manifest weight challenge scrutinizes the proclivity of the greater amount
of credible evidence, offered at a trial, to support one side of the issue over another. State
v. Barnett, 2012-Ohio-2372, ¶ 14 (12th Dist.). In assessing whether a conviction is
against the manifest weight of the evidence, a reviewing court examines the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of the
witnesses, and determines whether, in resolving 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. Morgan, 2014-Ohio-2472, ¶ 34 (12th
Dist.).
{¶ 28} As noted above, appellant was convicted of seven counts of rape in violation
of R.C. 2907.02(A)(1)(b), which provides in relevant part that "[n]o person shall engage
in sexual conduct with another who is not the spouse of the offender . . . when . . . [t]he
other person is less than thirteen years of age, whether or not the offender knows the age
of the other person."
{¶ 29} The term "sexual conduct" is defined by R.C. 2907.01(A) to include "the
insertion, however slight, of any part of the body" into the "vaginal opening" of another. As
this court has noted, "it is apparent that sexual conduct occurs when there is penetration
of the vaginal opening by a penis or other body part." State v. Zamora, 2023-Ohio-1847,
¶ 7 (12th Dist.), citing State v. Strong, 2011-Ohio-4947, ¶ 53 (1st Dist.). This necessarily
includes digital penetration of the victim's vaginal opening with a finger or fingers. State
v. Boles, 2013-Ohio-5202, ¶ 38 (12th Dist.).
{¶ 30} Although not defined by the Ohio Revised Code, it is generally well
established that penetration of a victim's "vaginal opening" has occurred where there was
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some forceful spreading of the external female genitalia, or vulva, which is comprised of
lip-like folds of skin called the labia majora. Zamora at ¶ 9. "'This penetration need only
be slight, however,'" as "'[v]aginal penetration is proved when any object is applied with
sufficient force to cause the labia majora to spread.'" State v. Jackson, 2023-Ohio-3749,
¶ 18 (12th Dist.), quoting Zamora at ¶ 9; see also State v. Patterson, 2021-Ohio-2387,
¶ 24 (5th Dist.). The labia majora is part of the external female genitalia. Id. Therefore,
"although perhaps medically imprecise—legally, the vagina begins at the external
genitalia, not some deeper internal structure." State v. Artis, 2021-Ohio-2965, ¶ 97 (6th
{¶ 31} Based upon the definition of "sexual conduct" under R.C. 2907.01(A),
appellant argues his rape convictions are against the manifest weight of the evidence and
are not supported by sufficient evidence because the state failed to prove penetration of
Rachel's vaginal opening occurred. Instead, appellant claims the evidence showed he
simply "spread [Rachel's] labia and visually examined her without any penetration." We
disagree with appellant's interpretation of the evidence.
{¶ 32} During her testimony, Rachel detailed seven separate encounters during
which appellant conducted a "check" of her vagina. First, Rachel recalled appellant
checking her while her mother was alive (Count 1). At that time, Rachel wanted to tell
her mother, but did not because her mother "already had so much stuff on her . . . like,
[appellant] hitting her and her dealing with cancer." Rachel also testified appellant
instructed her not to tell her mother. Rachel next described appellant checking her vagina
in her bedroom, as opposed to his bedroom as usual. (Count 3). During that check,
appellant told her to take off her pants and proceeded to touch the "top lip" and "bottom
lip" of her vagina. Rachel further testified to a time where, during his check, appellant
"got [his finger] into the hole but then took it out and asked [Rachel] if [s]he was okay."
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(Count 4). According to Rachel, this specific check was memorable because it hurt due
to appellant's sharp nails.
{¶ 33} Rachel continued on to describe an occasion where appellant was touching
the lips of her vagina during a check before he went "fast with his hand to try to put his
finger up [her] private." (Count 5). Rachel indicated appellant was trying to get his finger
in "her hole," but she stopped him. Another day, Rachel had finished playing with her
friends at the park when appellant indicated he needed to "check [her] again, so [she] just
did the same, take off [her] pants. Get on the bed. Spread [her] legs and he would touch
[her] in [her] private." (Count 6).
{¶ 34} Rachel further testified that, during another instance where appellant was
checking her vagina "like normal," i.e., that his fingers were in between the lips of her
vagina, appellant discovered something white in Rachel's vagina (Count 7). Appellant
took a photograph of her vagina and ultimately discovered the item was a piece of toilet
paper. Lastly, Rachel detailed the final check conducted by appellant, where he was
"check[ing] [her] like he normally" did before becoming aggravated and taking his pants
off. (Count 8).
{¶ 35} Based upon Rachel's testimony, appellant claims the evidence is legally
insufficient to show that he engaged in sexual conduct sufficient to prove a penetration
finding. To support his claim, appellant initially highlights Rachel's testimony that
appellant simply separated her "big lips" to look around, and "touched" the top and bottom
lips of her vagina. However, when testifying about the rape underlying Count 4, Rachel
specifically stated that appellant was conducting a check of her vagina when he placed
his finger inside of her "hole." Rachel recalled this being painful. Similarly, in describing
the rape underlying Count 7, Rachel testified that appellant's fingers were "between her
lips" when he located the toilet paper in her vagina. The same is true for the rape
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underlying Count 6, where Rachel testified appellant stated he needed to check her
vagina, so she spread her legs, and he touched her "in" her private. This testimony, if
believed, establishes appellant forcibly used his fingers to cause Rachel's labia majora to
spread.
{¶ 36} Regarding Counts 3 and 5, appellant argues the events underlying those
counts of the indictment do not constitute rape because Rachel was able to stop appellant
from inserting his finger into "her hole" in Count 5 and merely described the touching of
her vaginal lips in Count 3. However, throughout her testimony, Rachel consistently
described what occurred during appellant's "checks" of her vagina. Rachel specifically
stated that during a "normal" check of her vagina, Rachel would get on the bed, take off
her pants, and appellant would use a spreading motion with his fingers to spread the
"bigger lips," and then would "move" to the "smaller lips" and look around. Rachel also
described this as appellant "opening her vagina" and specifically noted that a "normal"
check of her vagina included appellant placing his fingers between her vaginal lips. In
addition to the "normal checks," Rachel stated that appellant sometimes tried to put his
finger "up [her] privates" or into her "hole" out of aggravation.
{¶ 37} Pursuant to this testimony, it is evident that each of the seven "checks"
described by Rachel included, at a minimum, the spreading of her labia majora by
appellant's fingers, but sometimes also included appellant's attempt to penetrate his
fingers further into her vaginal opening or into her vaginal cavity. Because Rachel was
able to stop appellant from further penetrating her vaginal opening does not render the
initial penetration via the spreading of her labia majora with his fingers insufficient
evidence of penetration under R.C. 2907.01(A). As noted above, "the vagina begins at
the external genitalia, not some deeper internal structure." Artis, 2021-Ohio-2965 at ¶ 97.
To the extent appellant claims otherwise, such argument lacks merit.
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{¶ 38} Moreover, we reject appellant's argument that Rachel's testimony merely
established appellant touched Rachel's vaginal lips, not that he inserted any body part or
object into her vaginal opening. Although Rachel occasionally used the term "touch," as
opposed to insert, when describing appellant's actions during the digital rapes, a jury
could reasonably conclude that appellant necessarily inserted part of his finger into
Rachel's vaginal opening when he "opened" her vagina by spreading the lips of her vagina
with his fingers. See State v. Rowland, 2020-Ohio-2984, ¶ 21 (12th Dist.). Such an action
would undoubtedly cause the labia majora to spread.
{¶ 39} Regarding the remaining allegations of rape underlying Counts 1 and 8 of
the indictment, we acknowledge that Rachel did not expressly state that appellant had
either touched or inserted his fingers "in between" her vagina's lips. This is of no
consequence, however, given that Rachel testified that appellant conducted a normal or
typical check of her vagina during those encounters. See Zamora, 2023-Ohio-1847 at ¶
12 (the victim's failure to expressly state that digital penetration occurred "in between" her
vagina's lips was inconsequential where she testified that each of the rapes were the
same). As discussed above, Rachel consistently described appellant's typical check of
her vagina, which involved appellant checking "the cleanliness" of her vagina after she
took off her pants, lay on his bed, and spread her legs. Appellant would then conduct the
check by using a spreading motion with his finger to "open" her vagina. Rachel utilized a
tissue box to demonstrate the spreading motion for the jury. Although appellant would
simply "look around" after the spreading occurred, this fact does not negate that he used
his fingers beforehand and forcibly caused the labia majora to spread.
{¶ 40} After reviewing the record, weighing inferences and examining the
credibility of the witnesses, we conclude the jury's verdicts are supported by sufficient
evidence and are not against the manifest weight of the evidence. The jury did not clearly
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lose its way in concluding that appellant was guilty of rape. While appellant argues that
the "weight of the evidence on the majority of the rape counts shows that there was no
penetration as a matter of law," we find that the record contains sufficient credible
evidence from which the jury could reasonably conclude that appellant was guilty.
Specifically, the state presented the testimony of the victim, which, if believed, supports
the conclusion that penetration, which need only be slight, occurred on at least seven
occasions. The victim's testimony was partially corroborated by other witnesses at trial,
including appellant himself. Although appellant denied touching Rachel between her legs,
the jury, as trier of fact, was in the best position to weigh the credibility of the witnesses.
Following the presentation of all the evidence, the jury found the victim to be more credible
than appellant. The jury sitting as factfinder was in a better position to observe the
demeanor of the witness and determine the weight to be afforded her testimony. In so
doing, the jury must have found Rachel's description of the events more credible than that
of appellant's. "[W]hen conflicting evidence is presented at trial, a conviction is not
against the manifest weight of the evidence simply because the tier of fact believed the
prosecution testimony." State v. Doyle, 2021-Ohio-4243, ¶ 47 (12th Dist.).
{¶ 41} Accordingly, we find that appellant's convictions for rape are supported by
sufficient evidence and are not against the manifest weight of the evidence.
Appellant's first and second assignments of error are therefore, overruled.
{¶ 42} Assignment of Error No. 3:
{¶ 43} THE TRIAL COURT PLAINLY ERRED WHEN IT ALLOWED THE STATE
TO PRESENT EVIDENCE OF BARAHONA'S TRAVEL ARRANGEMENTS.
{¶ 44} In his third assignment of error, appellant argues the trial court plainly erred
when it allowed the state to present evidence of his travel arrangements.
{¶ 45} When properly objected to, this court reviews a trial court's decision to admit
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or exclude evidence under an abuse of discretion standard. State v. Gerde, 2017-Ohio-
7464, ¶ 8 (12th Dist.). Appellant, however, did not object to any of the testimony and
evidence of which he now complains. By failing to object, appellant has waived all but
plain error on appeal. State v. Grimm, 2019-Ohio-2961, ¶ 21 (12th Dist.). Pursuant to
Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court." An error does not rise to the
level of a plain error unless, but for the error, the outcome of the trial would have been
different. State v. Palmer, 2014-Ohio-5491, ¶ 21 (12th Dist.). "'Notice of plain error under
Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.'" State v. Harner, 2020-Ohio-3071,
¶ 24 (12th Dist.), quoting State v. Landrum, 53 Ohio St.3d 107, 111 (1990).
{¶ 46} In this case, the state presented testimony from several witnesses that
appellant planned to flee the country. This included the investigator's testimony regarding
the search of appellant's home, during which officers located several items suggesting
that appellant planned to travel to El Salvador indefinitely just two days later. Specifically,
officers discovered and photographed two suitcases packed full of sentimental items like
pictures, cards, and notes from his former-wife and Rachel, as well as toiletries and other
necessities; three fully executed car titles; and a hidden folder containing appellant's
Covid-19 vaccination record, appellant's passport, and flight details in appellant's name
for an upcoming trip to El Salvador. The investigator testified he later confirmed there
was no existing return flight for appellant from El Salvador. Throughout the investigator's
testimony, the state presented several photographs taken by the officers executing the
search warrant, which were admitted into evidence without objection.
{¶ 47} Defense counsel questioned appellant during direct examination regarding
the plane ticket, during which appellant conceded he purchased the plane ticket but
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claimed he simply wanted to visit his mother. During cross-examination, appellant
acknowledged he planned to travel to El Salvador despite the ongoing investigation and
that he could not return to the United States if he went to El Salvador due to his illegal
status.
{¶ 48} At the close of the state's presentation of the evidence, the trial court noted
on the record that it was inclined to include a flight instruction based upon the evidence
presented. At that point, defense counsel objected to the inclusion of any flight instruction
given appellant's lack of actual flight. The trial court overruled defense counsel's objection
and instructed the jury that it could consider appellant's preparation to flee the country as
evidence of his consciousness or awareness of guilt.
{¶ 49} On appeal, appellant does not challenge the flight instruction provided by
the trial court, but instead argues the trial court erred in admitting evidence concerning
his plans to travel to El Salvador. Appellant claims the evidence should not have been
permitted because he was not charged with a fleeing offense and his alleged attempt to
flee was not an element of rape or GSI. Appellant further argues the introduction of such
evidence was barred by Evid.R. 403, as it was highly prejudicial to appellant, and only
suggested to the jury that his efforts to leave the country were evidence of his guilt. After
our review, we find no merit to appellant's claim.
{¶ 50} Although appellant is correct that an attempt to flee is not an element of
rape or GSI, it is "universally conceded" that evidence of flight is admissible as evidence
of consciousness of guilt. State v. Williams, 79 Ohio St. 3d 1, 11, 1997-Ohio-407; see
also State v. Hand, 2006-Ohio-18, ¶ 167 ("an accused's flight . . . and related conduct,
are admissible as evidence of consciousness of guilt, and thus guilt itself"). "Flight means
some escape or affirmative attempt to avoid apprehension." State v. Herrell, 2017-Ohio-
7109, ¶ 24 (6th Dist.), citing State v. Wesley, 2002-Ohio-4429, ¶ 19 (8th Dist.). To
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constitute "flight," the defendant must "appreciate that he has been identified as a person
of interest in a criminal offense and is taking active measures to avoid being found." State
v. Sanchez-Sanchez, 2022-Ohio-4080, ¶ 177 (8th Dist.). Flight need not be immediately
after the crime and includes flight from subsequent arrest. State v. McDonall, 2018-Ohio-
2065, ¶ 47 (8th Dist.).
{¶ 51} When considering the evidence presented by the state, it is clear appellant
was planning to flee to avoid apprehension and subsequent arrest. Although it is true
that appellant had not been formally charged when officers discovered appellant's
intention to flee the country, the record reflects appellant was aware of the nature of
Rachel's allegations against him at that time. In fact, by December 2, 2022 CPS had
initiated proceedings to remove Rachel from appellant's care based upon her allegations.
Moreover, appellant made comments to a family friend that he was either going to jail or
back to his home country, which suggests he was aware of the forthcoming charges and
his inevitable arrest. While executing the search warrant, officers located several items
indicating appellant intended to leave for El Salvador indefinitely, and appellant himself
confirmed his travel plans. This evidence establishes appellant's intention to avoid
apprehension, which was admissible to establish a material issue in dispute, i.e.,
appellant's consciousness of guilt or guilt itself. Williams at 11.
{¶ 52} Although appellant argues this evidence is highly prejudicial and outweighs
its probative value, merely unfavorable evidence is not equivalent to unfairly prejudicial
evidence. State v. Bowman, 144 Ohio App. 3d 179, 185 (12th Dist. 2001). "The exclusion
of relevant evidence under Evid.R. 403(A) requires more than mere prejudice, because
anything adverse to a party's case could be deemed prejudicial to that party." State v.
Worley, 2021-Ohio-2207, ¶ 125. Instead, unfair prejudice is "that quality of evidence
which might result in an improper basis for a jury decision. Consequently, if the evidence
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arouses the jury's emotional sympathies, evokes a sense of horror, or appeals to an
instinct to punish, the evidence may be unfairly prejudicial." State v. Crotts, 2004-Ohio-
6550, ¶ 24.
{¶ 53} Here, appellant has not shown that the evidence unfairly prejudiced him or
appealed to the jury's emotions. Although the evidence is not particularly favorable to
appellant, it is not of such quality that it could result in an improper basis for the jury's
decision. This is especially true where the jury could have found appellant guilty based
upon the victim's testimony alone. State v. Woodward, 2011-Ohio-6019, ¶ 23 (12th Dist.).
{¶ 54} Moreover, the record reflects the trial court took steps to minimize the
danger of unfair prejudice and to ensure that the evidence was considered only for the
proper purpose. State v. Hartman, 2020-Ohio-4440, ¶ 34. As the Ohio Supreme Court
has held, "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. The trial court issued such an instruction in this case, and specifically
instructed the jury to consider the pertinent evidence only to prove appellant's
consciousness of guilt, and not for any other purpose. The jury is presumed to have
followed that instruction. State v. Tyree, 2017-Ohio-4228, ¶ 16, 20 (12th Dist.).
{¶ 55} Accordingly, we conclude that the probative value of the relevant evidence
was not outweighed by the danger of unfair prejudice to appellant. As such, the trial court
did not commit plain error in admitting evidence concerning appellant's travel plans to
establish his consciousness of guilt.
{¶ 56} Therefore, appellant's third assignment of error is overruled.
{¶ 57} Assignment of Error No. 4:
{¶ 58} BARAHONA'S DEFENSE WAS PREJUDICED BY INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.
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{¶ 59} In his remaining assignment of error, appellant argues that his trial counsel
was ineffective because he (1) failed to move for a mistrial based upon prosecutorial
misconduct, (2) failed to object to evidence that appellant wanted to leave the country,
and (3) failed to object to the playing and admission of the redacted version of Rachel's
forensic interview at the Mayerson Center.
{¶ 60} To establish ineffective assistance of counsel, appellant must show (1)
deficient performance by counsel, that is, performance falling below an objective standard
of reasonable representation, and (2) prejudice, that is, a reasonable probability that but
for counsel's errors, the result of the proceedings would have been different. Strickland
v. Washington, 466 U.S. 668, 687-688, 694 (1984); State v. Mundt, 2007-Ohio-4836, ¶
62. A "reasonable probability" is a probability that is "sufficient to undermine confidence
in the outcome." Strickland at 694. An appellate court must give wide deference to the
strategic and tactical choices made by trial counsel in determining whether counsel's
performance was constitutionally ineffective. Id. at 689. The failure to satisfy either prong
of the Strickland test is fatal to an ineffective assistance of counsel claim. State v. Petit,
2017-Ohio-633, ¶ 39 (12th Dist.).
{¶ 61} Appellant initially argues his counsel was ineffective because he failed to
move for a mistrial after the prosecutor engaged in an inappropriate conversation with a
courtroom spectator. The record reveals that on the second day of trial, after Rachel's
testimony and in the presence of the jury, an unidentified spectator asked the trial judge
if he objected to the spectator's presence in the courtroom. The spectator stated that "the
prosecuting counselor said that [the court] found it weird" that he was present. The trial
judge responded that this was not the prosecutor's courtroom, and that he did not object
to the spectator's presence, as the courtroom is a public place where the spectator was
allowed to visit. Later, outside the presence of the jury, the prosecutor discussed the
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spectator's presence in the courtroom, and clarified that the spectator was a friend of a
defendant in another case and was present that day because his friend's case was
continued. The prosecutor stated that she told the spectator that it was weird that he
watched Rachel testify. The prosecutor later learned that the spectator "announced to
the jury and the entire courtroom" that she had said something to him. In response, the
trial judge reprimanded the prosecutor for speaking to the spectator, and indicated if she
had an issue with someone, she was to speak with court personnel.
{¶ 62} The trial court later, at the prosecutor's request, discussed the spectator's
presence in the courtroom with the jurors. The trial court explained that the spectator was
in the courtroom for sentencing on a case that was completely unrelated to appellant's
case and was continued to another day. The trial court then instructed the jurors to
disregard any comments they may have heard about a discussion with the prosecutor, as
well as any comments made by the spectator and the trial judge in response. At that
point, the proceedings continued without any objection by either party.
{¶ 63} Appellant contends his trial counsel was deficient when he "stood silent"
and "did not object or move for a mistrial" throughout the above interactions between the
prosecutor, the trial judge, and the jurors, which appellant categorizes as "prosecutorial
misconduct." After our review, we disagree.
{¶ 64} "[W]hether or not to move for a mistrial is a tactical decision and is well
within the range of competent assistance of counsel." State v. Gilbert, 2011-Ohio-4340,
¶ 83 (12th Dist.). Mistrials are only declared "when the ends of justice so require and a
fair trial is no longer possible." State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168.
{¶ 65} Similarly, "the focus of an inquiry into allegations of prosecutorial
misconduct is upon the fairness of the trial, not upon the culpability of the prosecutor."
State v. Gray, 2012-Ohio-4769, ¶ 57 (12th Dist.). Notably, the failure to object to
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prosecutorial misconduct "does not constitute ineffective assistance of counsel per se, as
that failure may be justified as a tactical decision." State v. Gumm, 73 Ohio St.3d 413,
428, 1995-Ohio-24. A finding of prosecutorial misconduct will not be grounds for reversal
unless the defendant has been denied a fair trial because of the prosecutor's prejudicial
remarks. State v. Layne, 2010-Ohio-2308, ¶ 60 (12th Dist.).
{¶ 66} In this case, appellant has failed to prove that the prosecutor's comments
to the spectator prevented appellant from receiving a fair trial or otherwise affected the
outcome of trial. A review of the interactions between the spectator, the trial judge, and
the prosecutor indicates the encounter in front of the jury was de minimis and immaterial
to the outcome of the trial. The spectator did not reveal any information regarding the
case, nor did he offer his opinion on the evidence, issues, parties, or possible outcome.
Instead, the spectator simply asked the trial judge if he was permitted to remain in the
courtroom, to which the trial court responded affirmatively. Accordingly, because the
interaction that occurred was very brief and had no relevancy to appellant's trial, we see
no grounds for a mistrial.
{¶ 67} Furthermore, appellant has not shown that counsel's failure to object to the
prosecutor's comments prejudiced his defense. Instead, appellant speculates that by
allowing a curative instruction without any objection, defense counsel permitted the
prosecutor to remain in a favorable light with the jury. This claim is entirely premised on
speculation, which is insufficient to establish an ineffective assistance claim. State v.
Short, 2011-Ohio-3641, ¶ 119 (mere speculation cannot support either the deficient-
performance or prejudice requirements of an ineffective-assistance claim). Moreover,
such speculation is simply not supported by the record where the trial court plainly
reprimanded the prosecutor for her comments in front of the jury, allowed the spectator
to remain in the courtroom against the prosecutor's wishes, and instructed the jury to
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disregard any comments about the spectator's presence in the courtroom.
{¶ 68} Lastly, contrary to appellant's claim otherwise, any prejudice suffered by
appellant was remedied by the trial court's supplemental instruction to the jury. It is well
settled that curative instructions "are presumed to be an effective way to remedy errors
that occur during trial." State v. Trzeciak, 2015-Ohio-2219, ¶ 24 (12th Dist.). A jury is
presumed to follow the court's instructions, including curative instructions, and the record
reveals no evidence that the jury failed to follow the trial court's instructions or gave any
thought to the spectator's comments. Tyree, 2017-Ohio-4228 at ¶ 20. Therefore,
appellant's counsel was not ineffective for choosing not to object to, or move for a mistrial
based upon, the prosecutor's comments.
{¶ 69} Appellant next argues he received ineffective assistance of counsel when
his trial counsel failed to object to evidence that appellant prepared to leave the country.
However, as this court has already discussed more fully above in appellant's third
assignment of error, the trial court did not err in admitting evidence of appellant's plan to
evade law enforcement by fleeing the country. Counsel cannot be ineffective for failing
to object to admissible evidence. State v. Skatzes, 2004-Ohio-6391, ¶ 218. As such,
counsel could not have been deficient in failing to object to the admission of the flight
evidence.
{¶ 70} Appellant lastly contends that his counsel was ineffective in agreeing to a
playback of the redacted version of Rachel's forensic interview at trial. Specifically,
appellant claims that, although some of Rachel's statements during the video were made
for medical diagnosis or treatment, some were clearly inadmissible hearsay. However,
regardless of whether the statements made during the forensic interview constitute
hearsay or not, appellant has failed to establish he was prejudiced by their admission. In
fact, appellant fails to identify any particular statement which he claims to be prejudicial,
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only that the statements were made during the forensic interview. It is not this court's
responsibility to identify the testimony and evidence to determine which statements
appellant believes were objectionable. State v. Philpot, 2024-Ohio-2596, ¶ 32 (12th
Dist.). Rather, it is appellant's burden to establish prejudice. Strickland, 466 U.S. at 687.
This court will not construct an argument on his behalf. See App.R. 16(A)(7) (requiring
appellant's brief to include an argument containing the appellant's contentions with
respect to each assignment of error presented for review and "the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies"). Because appellant has not met his burden, this court rejects his
argument regarding counsel's failure to timely object to the alleged hearsay statements.
{¶ 71} We furthermore note that, insofar as the contents of the redacted forensic
interview may have been inadmissible, any such admission constitutes harmless error
where Rachel testified at trial and was subject to cross-examination. State v. Davis, 2024-
Ohio-1504 (5th Dist.). Additionally, because Rachel testified and the statements elicited
during her forensic interview were merely cumulative of statements Rachel made during
her testimony, their admission would be harmless even if they had been admitted in
error. Philpot at ¶ 32, citing State v. Smith, 2020-Ohio-4008, ¶ 46 (12th Dist.). Thus,
appellant cannot demonstrate that but for the admission of the interview, the jury verdict
would be different. Accordingly, trial counsel's failure to object to the playback and
admission of the forensic interview did not amount to ineffective assistance of counsel.
{¶ 72} Based on all the foregoing, we conclude that appellant has failed to show
that his counsel's performance was deficient or that he suffered any prejudice as a result
of the alleged deficiencies. Accordingly, we overrule appellant's fourth assignment of
error.
{¶ 73} Finding no merit to any of appellant's arguments raised on appeal, we affirm
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the judgment of the trial court.
{¶ 74} Judgment affirmed.
S. POWELL, P.J., and BYRNE, J., concur.
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