[Cite as State v. Barber, 2025-Ohio-5061.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : C.A. No. 30342 Appellee : : Trial Court Case No. 2023 CR 03363 v. : : (Criminal Appeal from Common Pleas SETH DAVID BARBER : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on November 7, 2025, the judgment of
the trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
ROBERT G. HANSEMAN, JUDGE
EPLEY, P.J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30342
ROBERT ALAN BRENNER, Attorney for Appellant SARAH H. CHANEY, Attorney for Appellee
HANSEMAN, J.
{¶ 1} This case is before us on the appeal of defendant-appellant, Seth Barber, from
his convictions of two counts of rape of a child under the age of ten. Following a jury trial,
Barber was found guilty of these offenses, as well as two counts of sexual battery, which
were merged into the rape convictions at sentencing. According to Barber, his due process
rights were violated because the indictment charged him with multiple identical counts, but
the victim testified to only one specific incident. Barber also contends his convictions on one
count of rape and one count of sexual battery were based on insufficient evidence. Finally,
Barber asserts that the trial court erred in imposing consecutive sentences. Barber failed to
object on any of these grounds in the trial court. As a result, plain error analysis applies.
{¶ 2} After reviewing the record and applicable law, we conclude that Barber’s due
process rights were not violated when the indictment charged him with multiple identical
charges of rape and sexual battery. Ohio law permits use of statutory language in charging
instruments, and the child victim described multiple incidents of the charged crimes during
her forensic interview and at trial. Barber was also informed of the basis of the indictment
when the court held a pretrial hearing concerning the admissibility of the victim’s forensic
interview.
{¶ 3} Furthermore, Barber’s sufficiency challenge is based on an alleged
contradiction in the victim’s testimony. This involves credibility, which does not apply to
sufficiency analysis. The State established the elements of the crimes, and the victim
2 testified to multiple incidents of rape and sexual battery. Consequently, the jury’s guilty
findings on Barber’s second rape and sexual battery offenses were based on sufficient
evidence. 1 Finally, the court did not err in imposing consecutive sentences for the two
charges of rape of a child under ten years of age. Because no plain error, or even any error,
occurred in the trial court, the judgment is affirmed.
I. Facts and Course of Proceedings
{¶ 4} In January 2024, Barber was indicted with two counts of rape of a child under
the age of 10, first-degree felonies, and two counts of sexual battery (parent/child under 13),
second-degree felonies. The indictment alleged that the offenses occurred between August
1, 2023, and September 20, 2023, and involved A.B., Barber’s seven-year-old daughter.
Barber’s trial was initially set for June 24, 2024, but in May 2024, the State filed a motion
seeking a pretrial ruling concerning the admissibility of A.B.’s forensic interview. The court
continued the trial and set a hearing on the matter for July 22, 2024.
{¶ 5} Following the hearing and submission of memoranda from the parties, the court
granted the State’s motion, concluding that disclosures made at three intervals in the
interview impacted medical treatment and mental health counseling for the child. Decision
Granting State’s Motion for Admission of Forensic Interview, p. 4.
{¶ 6} Barber’s jury trial began on November 13, 2024, and upon its conclusion, the
jury found Barber guilty of all charges. At the sentencing hearing, the parties agreed that
Counts II and IV (sexual battery) merged into Counts I and III (rape), and the State elected
1 Barber’s rape and sexual battery offenses were merged by the trial court, so he was convicted of only two counts of rape. State v. Whitfield, 2010-Ohio-2, ¶ 12 (“a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty”). Yet Barber’s assignment of error is directed at his convictions of rape and sexual battery, to which the State has responded urging affirmance of both “convictions.” To facilitate our analysis, we address the parties’ arguments as to both charges, understanding they pertain to the sufficiency of the evidence supporting the jury’s guilty verdicts.
3 to have the court sentence Barber on the two rape counts. The count sentenced Barber to
15 years to life on each count and imposed the sentences consecutively for an aggregate
sentence of 30 years to life in prison. Barber timely appealed from his convictions.
II. Adequate Notice of Offenses
{¶ 7} Barber’s first assignment of error states:
THE TRIAL COURT DENIED BARBER’S RIGHT TO DUE PROCESS UNDER
ARTICLE I, SECTION 16 OF THE CONSTITUTION OF THE STATE OF OHIO
AND AMENDMENTS V AND XIV OF THE CONSTITUTION OF THE UNITED
STATES OF AMERICA.
{¶ 8} Under this assignment of error, Barber contends that his due process rights
were violated because the indictment charged him with multiple identical counts, but A.B.
testified to only one specific incident.
{¶ 9} “An individual accused of a felony is entitled to an indictment setting forth the
‘nature and cause of the accusation’ pursuant to Section 10, Article I of the Ohio Constitution
and the Sixth Amendment to the United States Constitution. The purpose of an indictment
is twofold. By compelling the government to aver all material facts constituting the essential
elements of an offense, an accused is afforded with adequate notice and an opportunity to
defend. . . . An indictment, by identifying and defining the offense, also enables an accused
to protect himself from any future prosecutions for the same offense.” State v. Sellards,
17 Ohio St.3d 169, 170 (1985), citing Redmond v. State, 35 Ohio St. 81, 82-83 (1878), and
Harris v. State, 125 Ohio St. 257 (1932). Under Crim.R. 7(B), a statement in an indictment
“may be made in ordinary and concise language without technical averments or allegations
not essential to be proved. The statement may be in the words of the applicable section of
the statute, provided the words of that statute charge an offense, or in words sufficient to
4 give the defendant notice of all the elements of the offense with which the defendant is
charged.”
{¶ 10} “An indictment meets constitutional requirements if it ‘first, contains the
elements of the offense charged and fairly informs a defendant of the charge against which
he must defend, and, second, enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.’” State v. Childs, 88 Ohio St.3d 558, 565 (2000), quoting
Hamling v. United States, 418 U.S. 87, 117 (1974). Defendants who wish for more
information are entitled, both by statute and under the Criminal Rules, to request a bill of
particulars. State v. Haynes, 2022-Ohio-4473, ¶ 19, citing Crim.R. 7(E) and R.C. 2941.07.
If a proper request is made, or upon court order, the prosecutor has a mandatory duty to
provide a bill of particulars. Id. at ¶ 20. “A bill of particulars has a limited purpose—to
elucidate or particularize the conduct of the accused alleged to constitute the charged
offense.” Sellards at 171.
{¶ 11} In the case before us, Counts I and III of the indictment charging rape both
alleged that between August 1, 2023, and September 20, 2023, Barber “did engage in sexual
conduct with another, not the spouse of the offender, and the other person was less than
thirteen years of age, to wit: a person less than ten years of age, whether or not the offender
knows the age of the person, contrary to the form of the statute (in violation of Section
2097.02(A)(1)(b) of the Ohio Revised Code).”
{¶ 12} Counts II and IV charging sexual battery alleged that between August 1, 2023,
and September 20, 2023, Barber “did engage in sexual conduct with another, not the spouse
of the offender, said offender being the other person’s natural or adoptive parent or a
stepparent or guardian, custodian, or person in loco parentis of the other person, and the
other person was less than thirteen (13) years of age, contrary to the form of the statute
5 (in violation of Section 2907.03(A)(5) of the Ohio Revised Code).” All four counts tracked
the language of the relevant statutes.
{¶ 13} Barber did not object to the indictment’s language, nor did he ask for a bill of
particulars. As a result, Barber has forfeited all but plain error, “which requires proof of an
obvious error and a reasonable probability that the error was prejudicial.” State v. Perry,
2025-Ohio-1486, ¶ 42 (2d Dist.), citing State v. Moore, 2024-Ohio-6050, ¶ 51 (2d Dist.).
{¶ 14} In arguing that his due process rights were violated, Barber relies on Valentine
v. Konteh, 395 F.3d 626 (6th Cir. 2005). In Valentine, a habeas action challenging the
defendant’s convictions under Ohio law, the Sixth Circuit Court of Appeals found that an
indictment charging the defendant with “with multiple, identical and undifferentiated counts
[20 counts of child rape and 20 counts of felonious sexual penetration of a minor] violated
the constitutional requirements imposed by due process.” Id. at 629, 636. Recently, in Perry,
we considered Valentine and found it had no binding effect. We also concluded it was
distinguishable.
{¶ 15} In Perry, the defendant, Mack Perry, had been convicted of one count of rape,
eight counts of gross sexual imposition (“GSI”), and five counts of disseminating matter
harmful to juveniles in connection with abusing his three daughters. The acts allegedly took
place between January 1, 2000, and December 31, 2003, but the indictments were not filed
until January 2023, when Perry’s daughters were adults. Perry at ¶ 1, 4. We reversed the
convictions on the five counts of disseminating harmful materials, as the State agreed they
were time-barred. Id. at ¶ 13-19. However, we found the eight GSI charges were not time-
barred. Id. at ¶ 20.
{¶ 16} Concerning two of the eight GSI charges, Perry argued that his convictions of
two identically-worded charges violated his due process rights. This factual situation is
6 similar to the case before us, which involves two occurrences of sexual conduct.2 To support
his position, Perry relied on Valentine. Perry, 2025-Ohio-1486, at ¶ 32-34 (2d Dist.). As here,
the two GSI counts in Perry followed the statutory language of the offense. A bill of
particulars was also filed, which added the child’s name and the fact that the defendant had
directed this victim to touch his penis at a particular address in Dayton, Ohio. Id. at ¶ 32.
We found Perry’s failure to object to the indictment or to the bill of particulars mandated
review for only plain error. Id. at ¶ 42.
{¶ 17} At trial, the victim in Perry testified that “‘several incidents’ of sexual touching
occurred on Fernwood Avenue at ‘several locations’ in the house, both upstairs and in a
basement bathroom. When asked what happened in the basement bathroom, she
responded: ‘I specifically remember Mack [Perry] pulling out his penis and making me touch
his penis in that bathroom.’ The prosecutor then asked whether acts of sexual touching that
she had described, including being instructed to touch her father's penis, each had
happened more than one time on Fernwood Avenue. A.P. responded: ‘Absolutely.’ In its
closing argument, the prosecutor told the jury that count six ‘deals with the causing [A.P.] to
touch the Defendant's penis.’ Regarding count eight, the prosecutor stated that it involved
‘causing [A.P.] to touch the Defendant's penis another time.’ The jury found Perry guilty on
both counts.” Id. at ¶ 33.
{¶ 18} In considering the due process argument, we extensively discussed Valentine,
including its later reception by the Sixth Circuit and Ohio state courts, which had either
rejected or distinguished Valentine. Perry at ¶ 34-44. Without reiterating the entirety of our
discussion, we noted the Sixth Circuit's concern with the defendant’s prosecution of two
2 Although the indictment contained four counts (two of rape and two of sexual battery), the
parties agreed the sexual battery convictions merged into the rape convictions. Therefore, only two incidents were at issue.
7 crimes committed twenty times rather than forty separate criminal acts; the prosecution’s
failure to lay out in the charges and the evidence the factual bases of those forty incidents;
the child’s description of “typical abusive behavior” and testimony that the “typical abuse”
had occurred fifteen or twenty times; and considering the way the defendant was indicted
and tried, the great difficulty the jury would have had in deciding each count on its own.
(Cleaned up.) Id. at ¶ 36, quoting Valentine, 395 F.3d at 632-633.
{¶ 19} In Valentine, the Sixth Circuit stressed that “the constitutional error in this case
[was] traceable not to the generic language of the individual counts of the indictment but to
the fact that there was no differentiation among the counts.” Valentine at 636. Even before
Perry was decided, we had interpreted this remark about constitutional error to mean that
“Valentine does not stand for the proposition that the indictment must contain detailed
allegations about the nature of each offense.” State v. Ross, 2010-Ohio-843, ¶ 143 (2d Dist.).
This is consistent with the Sixth Circuit's later explanation of why it doubted that Valentine
could support federal habeas relief. See Coles v. Smith, 577 Fed.Appx. 502, 508 (6th Cir.
2014). In Perry, we noted the Sixth Circuit’s observation but did not discuss the underlying
reasoning in detail. See Perry, 2025-Ohio-1486, at ¶ 39 (2d Dist.).
{¶ 20} The Sixth Circuit’s observation was based on the difference in the application
of the Fifth and Sixth Amendments in federal criminal proceedings as opposed to Ohio
criminal proceedings. Specifically, the United States Supreme Court has not extended the
Fifth Amendment indictment requirement to the states; instead, it has only applied Sixth
Amendment protections to the states through the Fourteenth Amendment. Coles at 506
(summarizing applicable Supreme Court precedent). The Sixth Circuit explained that “[i]n
federal prosecutions where the Fifth Amendment applies, the Supreme Court has instructed
that a grand jury indictment must contain the elements of the offense charged, it must
8 sufficiently apprise the defendant of what he must be prepared to meet, and it must
accurately demonstrate to what extent he may plead a former acquittal or conviction to avoid
double jeopardy if subsequent proceedings are brought against him for a similar offense.”
Id., citing Hamling, 418 U.S. at 117-118, and Russell v. United States, 369 U.S. 749, 763-
764 (1962).
{¶ 21} A federal indictment, therefore, “must provide more than conclusions of law; it
must ‘descend to particulars’ to inform the defendant of the facts alleged ‘with reasonable
particularity of time, place, and circumstances.’” Id. at 506-507, quoting United States v.
Cruikshank, 92 U.S. 542, 558 (1875). Contrasting the rule for federal indictments, the Sixth
Circuit has noted that “[b]ecause the Supreme Court has not imposed the Fifth Amendment
requirements for federal indictments on state charging instruments, our court has recognized
that ‘there is no constitutional right in a state prosecution to a grand jury indictment with
particular specificity.’” Id. at 507, quoting Williams v. Haviland, 467 F.3d 527, 534 (6th Cir.
2006).
{¶ 22} The Sixth Circuit also has observed that its analysis in Valentine was based
on cases involving federal indictments and “a few circuit court cases,” two of which were
decided before enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Coles, 577 Fed.Appx. at 507. The AEDPA sets out the standard for granting
habeas relief, which may be granted on a claim adjudicated on the merits in state court if
adjudication of the claim “‘resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.’” Id. at 505, quoting 28 U.S.C. 2254(d)(1).
{¶ 23} The other two circuit court cases on which Valentine relied were decided prior
to a 2010 decision of the United States Supreme Court, which had admonished that “‘clearly
9 established Federal law’ means relevant Supreme Court precedent and not circuit court
opinions.” Id. at 507, citing Renico v. Lett, 559 U.S. 766, 778-779 (2010). The Sixth Circuit
has stressed that “‘no Supreme Court case has ever found the use of identically worded and
factually indistinguishable [state] indictments unconstitutional.’” (Bracketed text and
emphasis in original.) Id. at 507-508, quoting Valentine, 395 F.3d at 639 (Gilman, J.,
dissenting). Consequently, Valentine was not supported by relevant Supreme Court
precedent.
{¶ 24} In view of the above discussion, an indictment under Ohio law does not violate
a defendant’s constitutional rights by solely using the language of the applicable criminal
statute. That does not mean, of course, that no particularity is needed. As noted in Sellards,
if accused parties seek more specific information, they may request a bill of particulars.
Sellards, 17 Ohio St.3d at 170. Nonetheless, this is a statutory or criminal rule requirement;
it is not constitutionally mandated.
{¶ 25} Perry and other Ohio state cases have found that Valentine is not binding and
that sufficient differentiation may be made through a bill of particulars, trial testimony, or
other means by which details of the charges are revealed. E.g., Perry, 2025-Ohio-1486, at
¶ 43 (2d Dist.), State v. Artz, 2015-Ohio-5291, ¶ 34-35 (2d Dist.), and State v. Schwarzman,
2014-Ohio-2393, ¶ 11 (8th Dist.) (all citing trial testimony). See also State v. Eal, 2012-Ohio-
1373, ¶ 79-80 (10th Dist.) (defendant received actual notice from discovery, prosecutor's
meeting with defense counsel to discuss images that went with counts of the indictment, and
suppression hearing that occurred) and State v. Bryant, 2021-Ohio-2806, ¶ 19, 23 (9th Dist.)
(relying on discovery provided, defendant's withdrawal of his request for bill of particulars,
and victim’s trial testimony).
10 {¶ 26} Turning to the case before us, the charges involved Barber’s daughter, who
was seven years old at the time of the alleged crimes. The indictment specified a limited
time period of approximately six weeks, from August 1 through September 20, 2023. At trial,
the State presented testimony from the following people: Jane, who lived across the street
from Barber; Robert Schneider, a deputy sheriff and detective with the Montgomery County
Sheriff’s Office; Dr. Micelli, a child abuse expert; Ashley B., a family counselor at CARE
House who conducted A.B.’s forensic interview; April D., a nurse practitioner at CARE Clinic;
Kayla H., a therapist at the child advocacy center Isaiah’s Place; A.B.; and Walter Bender,
a detective with the Montgomery County Sheriff’s Office. Barber presented testimony from
his mother, sister, and niece.3
{¶ 27} The alleged abuse came to light based on statements that A.B. made to Jane.
When Jane first noticed someone living in the residence across the street, Barber was living
there with a girlfriend and four children, including A.B., her brother Tommy, and two younger
children. At some point, the girlfriend moved out. Jane first met Barber in September 2022
because her son, John, was playing with A.B. and Tommy, who were a few years younger
than John. The children played together in the yard and in Jane’s home, and John would go
over to Barber’s house. Jane and her family (which included John, Jane’s ex-husband, and
another son who was 19 years old), invited Barber to their home because Barber’s children
were coming over, and Jane wanted to get to know the children’s father. Barber seemed
nice and they all became really close. Tr. 120-122, 124-125, 146.
{¶ 28} The children went to school together and rode the bus together. This
progressed to the children spending the night together. This began about a week or two after
3 Most witness names are pseudonyms, which are being used to protect the identity of
people who are neither medical professionals nor law enforcement officers.
11 the children started hanging out together and took place especially when Barber would be
working. Barber had a job at Frito-Lay, working from around 2:00 a.m. to about 10:00 a.m.
At first, Barber’s children did not come over to Jane’s house at night. They came over to her
house in the morning so Jane could take them to the bus stop, or she would have to get
them from Barber’s house. Tr. 126.
{¶ 29} Barber’s children spent nights at Jane’s before September 2023. Sometimes
this occurred a few times a week or on every other weekend, especially if Barber had to
work on the weekend. Jane was aware the children were alone at night when Barber worked.
If they were not with her, she constantly looked outside to make sure no one was going into
the house; if anyone was outside, she let Barber know immediately. On September 18, 2023,
Children Protective Services (“CPS”) visited Barber’s house and left a note on the door.
Someone had called CPS because Barber had been leaving the children alone at night. As
a result, Barber asked Jane if she would keep the children while he worked at night. Jane
agreed to do so. Barber also told Jane that CPS would call her because Jane was the one
the children would be staying with at night. Tr. 126-127, 145, 147-149, 152-153.
{¶ 30} Barber brought the children over to Jane’s house that night, September 18,
and they stayed over until the next day, a school day. Jane’s normal routine when the
children spent the night was that they would get dressed, and she would fix them breakfast.
The morning of September 19, Jane asked the children what they wanted for breakfast, and
they all wanted something different. A.B. wanted pancakes, Tommy wanted oatmeal, and
John wanted waffles. The boys also wanted sausages. The kind of sausage Jane always
used was Brown ’N Serve links. When Jane took the sausages to the dining table, A.B.
looked at her and said “something to [her] about those sausages that” caused Jane to take
some further action. The general nature of what was said was that “something not right had
12 happened, and [Jane] needed to go to somebody and let them know.” Tr. 131. Jane could
hardly believe what she had heard. At that point, she went to John’s room to get his clothes
ready. A.B. came with her and repeated what she had said before. Jane then followed her
normal course of taking the children to the bus stop, where they got on the bus and went to
school. Tr. 128-129, 131-132.
{¶ 31} Afterwards, Jane went to work and confided in her boss. They decided she
should call the police, and Jane called the Harrison Township police, who told her to come
in that day after work. Jane went to the police station at around 4:30 or 5:00 p.m. and told
the police what had happened. When Jane arrived home around 5:18 p.m., CPS and the
police were at Barber’s house. At around 6:54 p.m., Jane texted Barber and asked if the
children were coming over to her house. Barber said they were not coming, and Jane asked
if things were okay; Barber responded that two things had been reported on him and that
his mother was there with the kids to get them to the school bus and do everything in
between. He also said he would not be able to have contact with the kids or the house until
everything was sorted out. Tr. 133-134, 137, 139, 140, and 151; see also State’s Exs. 4-6
(text messages).
{¶ 32} Detective Schneider, then a deputy sheriff, interviewed Jane. After talking to
her, he called Children Services and went to Barber’s house to conduct a law enforcement
removal of the children in the home and inform Barber that an investigation had ensued.
Ultimately, Barber’s mother, Linda, arrived and stayed with the children. Although Schneider
did not inform Barber of the nature of the allegations, Children Services told Barber the
allegations were of a sexual nature. Tr. 160, 162-164, 166-167, 169-170.
{¶ 33} On September 29, 2023, Ashley B. conducted a forensic interview with A.B. at
CARE House. During the interview, A.B. disclosed sexual abuse. As a result, Ashley referred
13 A.B. for mental health services and a CARE Clinic examination. Tr. 216-218. A DVD of A.B.’s
interview was played at trial. Tr. 218-219; State’s Ex. 30.
{¶ 34} Before trial, the State filed a motion on May 30, 2024, seeking a court ruling
on the admissibility of A.B.’s forensic interview. The court scheduled a hearing on the matter
for July 22, 2024. Barber did not provide a transcript of the hearing, but it was held, and both
sides filed post-hearing memoranda. See Defendant’s Memorandum (Aug. 12, 2024), and
State’s Memorandum Regarding Forensic Interview (Aug. 12, 2024). The State’s
memorandum discussed the interview in detail and mentioned specific instances where A.B.
had disclosed details about the timeframe and location of the acts of sexual abuse, as well
as the fact that the sexual conduct had happened more than once. State’s Memorandum,
p. 2-5. The interview itself appears to have lasted more than 70 minutes. Id. at 4.
{¶ 35} In its decision, the court noted that defense counsel and Barber were present
for the hearing, that the forensic interviewer had testified, and that two exhibits were admitted
during the hearing: the DVD of the forensic interview and a Dayton Children’s Advocacy
referral form. Decision Granting State’s Motion for Admission of the Forensic Interview, p. 1.
After considering the testimony and the applicable law, the court found that the State should
be allowed to admit approximately 11 minutes of the interview because the disclosures made
during those segments of the interview would impact the medical treatment and mental
health counseling of A.B. Id. at 4.
{¶ 36} We reviewed the DVD admitted during trial as State’s Ex. 30. It contains three
clips. During the first clip, A.B. stated that her father had put his “middle” in her mouth, that
it happened more than one time, that it happened in second grade when she started school
(which was during the time frame listed in the indictment), and that her father had done it at
night sometimes when she was sleeping in his bed. In a second clip, A.B. described how it
14 felt in her mouth, that it went under her tongue and in her cheek, and hurt. She further said
that her father “takes” off his pants and underwear and “puts” his middle in her mouth. During
these clips, A.B. clarified that when she spoke about her father’s “middle,” she was referring
to his private part.
{¶ 37} At trial, A.B. testified consistently with her forensic interview. At the time of the
November 2024 trial, A.B. was eight years old and would turn nine years old the following
week. She stated that she was in the second grade the prior year, 2023-2024. Tr. 243-244.
A.B. identified her father in the courtroom, identified a picture of his bedroom, and identified
a picture of a pink Frito-Lay t-shirt that he had used to cover her eyes, after which he had
put his middle in her mouth. She described the “middle” as her father’s privates, and said
she knew it was his middle because she felt it. She also identified a picture of the pink t-
shirt. Id. at 249, 255; State’s Ex. 27. A.B. stated that this never happened anywhere other
than in her father’s bedroom. She twice indicated that it had happened more than one time.
Tr. 250, 255.
{¶ 38} After A.B. was referred to the CARE Clinic, April D. examined her on October
26, 2023. When April asked A.B. why she was there, A.B. stated that her father had put his
middle in her mouth. When asked clarifying questions about what her father’s middle was,
A.B. pointed to her genitals. A.B. was given a test for gonorrhea and chlamydia, which was
negative. Tr. 227, 231-232. As noted, A.B. was also referred for mental health counseling.
During the initial intake appointment in March 2024, A.B. disclosed sexual abuse to her
therapist, Kayla, where she stated that her father had put his middle in her mouth. Tr. 235-
236, 238.
{¶ 39} Detective Bender was the last state witness to testify. He observed A.B.’s
September 29 forensic interview from a separate room, after which he obtained a search
15 warrant for Barber’s house. During the search, Bender found the pink Frito-Lay shirt in
Barber’s dresser. Tr. 262, 264-266.
{¶ 40} When moving for acquittal under Crim.R. 29, Barber's only claim was that
although the indictment alleged occurrences between Aug 1 and Sept 20, the State failed to
present evidence proving when the alleged incidents took place. The trial court overruled
both motions for acquittal. See Tr. 273-274, 321-322.
{¶ 41} In light of the preceding discussion, we find Valentine inapplicable. Unlike
Valentine, only two incidents were at issue here, and the victim stated, both during her
forensic interview and at trial, that Barber had abused her more than one time. In addition,
A.B. also said in her forensic interview that the abuse started in second grade and that
Barber did it “sometimes” when she was sleeping in his bed. See Ex. 30, clip one. These
statements clearly indicate that the abuse occurred more than once, which is all that was
necessary to support the State’s charges regarding two separate incidents. Barber further
lacks any viable objection that he had not been informed of the basis for the indictment. As
indicated, the court held a hearing on admissibility of the forensic interview, and Barber and
his counsel were aware of the content of the interview disclosing the nature of his conduct.
Because no plain error or any error occurred, the first assignment of error lacks merit and is
overruled.
III. Insufficient Evidence
{¶ 42} Barber’s second assignment of error states:
INSUFFICIENT EVIDENCE WAS PRESENTED TO SUPPORT
CONVICTIONS ON COUNTS III AND IV.
{¶ 43} Under this assignment of error, Barber contends that insufficient evidence
existed for his convictions on Counts III and IV, the second set of rape and sexual battery
16 charges, because the State failed to provide any evidence for these convictions. Barber
relies on A.B.’s testimony under direct examination that the conduct occurred more than one
time and later statement under cross-examination that she did not know how many times it
happened. Appellant’s Br., p. 7.
{¶ 44} Before the trial court, Barber’s motion for acquittal at the close of the State’s
case asserted that although the indictment alleged occurrences between August 1, 2023,
and September 20, 2023, no evidence was presented proving when the alleged conduct
actually occurred. Tr. 273. In responding to the acquittal motion, the State noted that during
the portion of the forensic interview that was admitted at trial, A.B. said the abuse happened
at the beginning of second grade. Id. This is correct. The State also stressed the common
knowledge that the school year begins in August. Finally, the State explained that it had
narrowed the indictment to the time frame in September 2023 when Barber had access to
his daughter. Id. None of this has anything to do with Barber’s present argument on appeal.
As Barber moved for acquittal during trial based on the State’s alleged failure to prove when
the sexual abuse occurred, we review this issue only for plain error.
{¶ 45} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or sustain the verdict as a matter of law.” State v. Wilson, 2009-Ohio-525, ¶ 10 (2d Dist.),
citing State v. Thompkins, 78 Ohio St.3d 380 (1997). “An appellate court's function when
reviewing the sufficiency of the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if believed, would convince
the average mind of the defendant's guilt beyond a reasonable doubt. The 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
17 reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 259-160 (1991), paragraph two of the
syllabus.
{¶ 46} Our review of the evidence, as stated above, reveals that the State presented
sufficient evidence to prove the elements of the crimes that were charged. As noted, the
indictment follows the statutory language for elements of the crimes of rape and sexual
battery. For purposes of both crimes, “sexual conduct” means “vaginal intercourse between
a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless
of sex.” R.C. 2907.01(A).
{¶ 47} Barber’s challenge lies in the inconsistency he perceives between A.B.’s
testimony during her direct- and cross-examinations, which goes to her credibility. However,
“witness credibility is not a proper matter on review of the sufficiency of the evidence.”
State v. Wilks, 2018-Ohio-1562, ¶ 162, citing State v. Dean, 2015-Ohio-4347, ¶ 169.
“The credibility of the witnesses and the weight to be given to their testimony is a matter for
the trier of facts, the jury here, to resolve.” State v. White, 2005-Ohio-212, ¶ 65 (2d Dist.),
citing State v. DeHass, 10 Ohio St.2d 230 (1967). Thus, Barber’s argument would be
relevant to a manifest weight challenge, which he did not make, but not to an analysis of
sufficiency.
{¶ 48} After considering the facts and applicable law, we conclude that the jury’s
verdicts finding Barber guilty of rape and sexual battery were based on sufficient evidence,
and there was no error, plain or otherwise. Accordingly, the second assignment of error is
18 IV. Sentencing
{¶ 49} Barber’s third assignment of error states:
THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
SENTENCES.
{¶ 50} Under this assignment of error, Barber asserts the trial court erred in imposing
consecutive sentences because he was young—27 years old at the time of sentencing—
and had no prior criminal record. Barber further argues that the State failed to present
evidence that the harm caused by his two offenses was so great or unusual that consecutive
sentences were warranted.
{¶ 51} “Ohio law presumes that a defendant convicted of multiple crimes will serve
his sentences concurrently.” State v. Glover, 2024-Ohio-5195, ¶ 38, citing R.C. 2929.41(A).
But trial courts may impose consecutive sentences when a law specifically permits them to
do so. Id. Under R.C. 2929.14(C)(4), courts may impose consecutive sentences after
engaging in a three-step analysis. Id. Under this statute, a court first must find consecutive
sentences “are necessary to protect the public from future crime to punish the offender.” The
next step is to find “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public.” In the final step,
the court must find that any one of three circumstances enumerated under
R.C. 2929.14(C)(4)(a)-(c) applies. As relevant here, the trial court found that “at least two of
the multiple offenses were committed as part of one or more courses of conduct[,] and the
harm caused by two or more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part of any of the courses of
conduct . . . adequately reflects the seriousness of Mr. Barber’s conduct.” Tr. 381.
19 See R.C. 2929.14(C)(4)(b). The court repeated these findings in its final judgment entry
sentencing Barber.
{¶ 52} In considering sentences, appellate courts are required to “‘review the record,
including the findings underlying the sentence or modification given by the sentencing
court.’” State v. Marcum, 2016-Ohio-1002, ¶ 9, quoting R.C. 2953.08(G)(2). Under this
statute,
“[t]he appellate court’s standard for review is not whether the sentencing court abused
its discretion. The appellate court may take any action authorized by this division if it
clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under division
(B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division
(I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; [or]
(b) That the sentence is otherwise contrary to law.”
(Emphasis in original.) Id., quoting R.C. 2953.08(G)(2).
{¶ 53} “Clear and convincing evidence” means “that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 54} “In order to impose consecutive terms of imprisonment, a trial court is required
to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry, but it has no obligation to state reasons to
support its findings.” State v. Bonnell, 2014-Ohio-3177, syllabus. Accord State v. Thompson,
2025-Ohio-2168, ¶ 83 (2d Dist.). This standard is deferential, and appellate courts are not
20 permitted to “simply substitute” their judgment for that of trial courts. State v. Gwynne, 2023-
Ohio-3851, ¶ 15.
{¶ 55} As indicated, the trial court made the findings required to impose consecutive
sentences during the sentencing hearing and in the judgment entry. The court did not
provide reasons beyond reciting the language in the statute, as it was not required to do so.
Notably, during the sentencing hearing, in discussing the purposes and principles of
sentencing, the court mentioned the following factors that made the crime more serious:
(1) A.B.’s physical or mental injury was exacerbated due to her age, which was only seven
or eight at time; and (2) the relationship between Barber and A.B. facilitated the offense as
she was his daughter, he was a sole parent, and there was no one else there to help her.
Tr. 387-388.
{¶ 56} The possible sentences for a single conviction of rape of a child under 10 years
of age are 15 years to life or life without parole. See R.C. 2907.02(B) and 2971.03(B)(1)(b).
The trial court did not sentence Barber to the maximum prison sentence authorized for his
offenses—two consecutive sentences of life without parole. Having reviewed the record,
including the trial transcript, exhibits, and presentence investigation report, we cannot clearly
and convincingly find that the record fails to support the trial court’s sentence, Consequently,
the third assignment of error is overruled.
V. Conclusion
{¶ 57} All of Barber’s assignments of error having been overruled, the judgment of
.............
EPLEY, P.J., and HUFFMAN, J., concur.