[Cite as State v. Flynn, 2026-Ohio-2820.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, : No. 115654 v. :
BILLY FLYNN, :
Defendant-Appellant. : _______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 23, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-689577-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Sarah J. Denney and Daniel T. Van, Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
MICHELLE J. SHEEHAN, A.J.:
Defendant-appellant Billy Flynn (“Flynn”) appeals from the judgment
of his convictions for multiple counts of rape and gross sexual imposition (“GSI”)
involving four minor female victims. Flynn alleges (1) the evidence presented at trial was insufficient to support his convictions, (2) his convictions are against the
manifest weight of the evidence, and (3) the trial court erred by allowing the State
to amend the indictment over his objection.
After a thorough review of the record and applicable law, we overrule
each assignment of error and affirm his convictions
I. Background Overview
A. Relevant Facts
1. Victim T.F.
T.F. was born in 2002. She testified that in 2012, when she was 9 years
old, she and her sister, M.F., would often go to her Grandma Rose’s house so that
she could watch them. Flynn was married to Rose, and T.F. stated that she thought
of him as her grandpa. He was often around when her grandmother was watching
them. At times, her grandmother would leave the house to play bingo, leaving the
girls with Flynn.
T.F. testified that one day, she was sitting on the couch in the living
room when Flynn began inappropriately touching her vagina. She stated that Flynn
used his hand to touch the inside of her vagina. They were both clothed while this
occurred.
Afterwards, T.F. said she “was freaking out” and that the first person
she told what happened to her was her dad. She then told her mother who took T.F.
to the hospital where a sexual assault kit was done. DNA foreign to T.F. was found,
but the amount was so low that no conclusions about that individual could be made. The Cleveland Division of Police was contacted on July 4, 2012, concerning this
offense. T.F. testified that she and her sisters never went back to her grandmother’s
house again and that she never saw Flynn after that day.
2. Victim S.D.
S.D. was born in 1996. She stated that when she was younger, she
began living with her grandmother and Flynn during the summers. She stated that
she would sleep in their living room, either on the couch, a recliner, or the floor.
S.D. testified that when she was 5 years old, she was in the living room
with Flynn. Flynn was sitting in the brown recliner that he sat in every day. She
stated that Flynn pulled his “private area” out and started “playing with it” and asked
S.D. to help him. Flynn wanted S.D. to “jerk him off” and “put it in [her] mouth,”
which S.D. did. S.D. stated that she was 5 years old at the time and thought this was
normal. This went on until she was about 11 years old. S.D. testified that this would
happen “every day, multiple times a day” and sometimes they would be fully naked
when this happened.
S.D. testified that after she finished performing this sexual act on
Flynn, he would perform oral sex on her. She stated that she would sit on the top
part of the recliner and Flynn would kneel in front of her and put her vagina in his
mouth. Flynn would sometimes also do this while they were on the floor. S.D.
testified that Flynn’s tongue “did go inside me.” She further stated that sometimes
her grandmother would be home when this occurred. S.D. said that she believed
Flynn was going to be her husband one day. S.D. testified that when she was 7 or 8 years old, she would go into the
attic with Flynn. She stated that she would take her clothes off and that they would
perform oral sex on each other.
S.D. testified with respect to a specific incident that occurred when
she was 9 years old. She stated that she and Flynn were on the recliner and Flynn
was performing a “sex act” on her and the recliner fell. She stated that even though
the recliner had just fallen, “it didn’t stop what was happening when I fell.” She
stated that “this was a funny memory,” which is how she remembered it.
S.D. also testified that when she was 11 years old, she and Flynn were
lying in a bed Flynn made on the floor. They were watching television when Flynn
told her that “we’re going to try for penetration now.” S.D. stated that she was not
“opening her legs,” but Flynn was “attempting to just go in through [her] butt” but
that it “wouldn’t go.” S.D. stated that she was so scared that she jumped up and ran,
fully naked, to her grandmother and laid down with her. S.D. told her grandmother
what occurred, but her grandmother told her just to lay down.
S.D. stated that she eventually became aware of the case pending
against Flynn concerning her cousin, T.F. In 2022, S.D. came forward with her
account.
3. Victim K.D.
K.D. was born in 1995. K.D. testified that when she was 4 years old,
Flynn started babysitting her. Flynn used to be married to K.D.’s aunt Darlene but
when he started babysitting K.D., Flynn was married to Rose. When K.D. was 4 years old, Flynn was babysitting her. While there,
she stated Flynn took her into his room, laid her down on the bed, lifted up her skirt,
and began to touch her vaginal area, as well as her buttocks. She stated that she did
not know what part of his body he was using when he touched her, but that she
would “feel him, just, like grinding against me but other times I would feel
penetration, but I don’t know what it was from.” K.D. testified that she was lying on
her stomach and Flynn would be on top of her. She stated that she was scared while
this was happening but also did not understand that it was wrong because she was
so young and trusted Flynn.
K.D. stated that when it was over, Flynn went to the bathroom and
gave her a washcloth to clean herself up with it. Flynn told her not to tell anybody
what happened, telling her that nobody would believe her. While cleaning herself,
K.D. said she saw blood but was unsure where it had come from, either her vagina
or anus.
K.D. testified that there were other incidents that occurred when
other kids were also present in the home. She stated that she would go into Flynn’s
room with him and the same thing would happen. She stated that these incidents
would occur with some frequency. K.D. said that she would go along with it because
she did not want anybody else to have to go through it. She testified that sometimes
when this occurred, Rose would be in the house.
K.D. stated that when she was older, she saw a presentation
concerning sexual assault, which triggered memories of what had happened to her. She eventually told her Aunt Jaden what had happened to her. However, when she
first disclosed what had happened, she said it was her uncle’s friend who did it,
rather than Flynn. She stated that she was scared and did not want to get Flynn in
trouble.
4. Victim M.F.
M.F. was born in 2004 and is the sister of T.F. M.F. testified that
Flynn had been married to her grandmother Rose. M.F. testified that they would
often go to her grandmother’s house so that she could babysit them and that Flynn
would often watch them. M.F. stated that at first “it was fine,” then Flynn started
taking T.F. into a room by herself. Flynn eventually started taking her as well.
M.F. stated that one day, when Flynn was the only adult in the house,
Flynn wanted to give T.F. a shower. M.F. stated that she could not remember how
old she was at this time, but that she “was a little bit older” than a kindergartner.
M.F. stated that she knew what taking T.F. into the shower meant “because he was
already doing it before,” so she started crying, and told Flynn to take her into the
shower instead, in order to protect T.F.
M.F. stated that she knew what Flynn wanted to do to T.F. because
previously Flynn had taken her (M.F.) into his bedroom to “do things.” M.F. stated
that on the day before the “shower incident,” Flynn took her into his room, pulled
his pants down, and told M.F. to “suck his penis,” which she did. M.F. stated that
the first time anything sexual had taken place was in an office-type room. She stated that Flynn would have her sit on his lap and he would start whispering into and
licking her ear.
The following day, the “shower incident” took place, where M.F. went
into the shower with Flynn in order to protect T.F. She stated that Flynn was
touching the inside and outside of her vagina and remembered Flynn “moving his
fingers around inside of my body.” Flynn then asked M.F. to touch his penis, which
she did. M.F. testified that she was scared while this was happening, but happy that
it was happening to her instead of her sister.
M.F. said that there was another incident that occurred in the office
in which Flynn was trying to touch her when she ran into the kitchen by her
grandmother. As a result, nothing happened that day. M.F. also testified that she
would go on walks with Flynn and he would take her under “these hanging trees”
and “make me kiss him.”
M.F. testified that she finally told her cousin about what happened to
her and her cousin eventually told M.F.’s mother.
B. Indictment
In 2024, Flynn was charged by the Cuyahoga County Grand Jury in a
17-count indictment. The indictment charged Flynn as follows.
Counts 1 and 2 pertain to victim T.F.1
1. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of
1 The indictment initially referred to T.F. as Jane Doe 1. age, with a sexual violent predator specification, to wit: digital penetration Date of offense: On or about July 2, 2012
2. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: vaginal intercourse Date of offense: On or about July 2, 2012
Counts 3 through 11 pertain to victim S.D.2
3. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: fellatio Date of offense: On or about September 1, 2001 through September 30, 2001
4. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: cunnilingus Date of offense: On or about September 1, 2001 through September 30, 2001
5. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: fellatio Date of offense: On or about June 1, 2002 through August 31, 2002
6. Gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: rubbed genitals Date of offense: On or about June 1, 2002 through August 31, 2002
7. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age,
2 The indictment initially referred to S.D. as Jane Doe 2. with a sexual violent predator specification, to wit: digital penetration of vagina Date of offense: On or about July 1, 2007 through July 15, 2007
8. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: fellatio Date of offense: On or about July 1, 2007 through July 15, 2007
9. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: anal intercourse Date of offense: On or about July 1, 2007 through July 15, 2007
10. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: fellatio Date of offense: On or about June 1, 2008 through August 31, 2008
11. Gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: rubbed genitals Date of offense: On or about June 1, 2008 through August 31, 2008
Counts 12 through 14 pertain to victim K.D.3
12. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: digital penetration of vagina Date of offense: On or about May 1, 2010 through August 31, 2010
13. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of
3 The indictment initially referred to K.D. as Jane Doe 3. age, with a sexual violent predator specification, to wit: digital penetration of anus Date of offense: On or about May 1, 2010 through August 31, 2010
14. Gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: rubbed body with penis Date of offense: On or about May 1, 2010 through August 31, 2010
Counts 15 through 17 pertain to victim M.F.4
15. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: digital penetration of vagina Date of offense: On or about June 1, 2011 through August 31, 2011
16. Rape, a felony of the first degree, in violation of R.C. 2907.02(A)(1)(b), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: fellatio Date of offense: On or about June 1, 2011 through August 31, 2011
17. Gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4), the victim less than thirteen years of age, with a sexual violent predator specification, to wit: rubbed genitals Date of offense: On or about June 1, 2011 through August 31, 2011
C. Trial and Verdict
A bench trial began on June 30, 2025. At the conclusion of the trial,
the State moved to amend the dates set forth in the indictment. In addition, the
4 The indictment initially referred to M.F. as Jane Doe 4 State moved to amend the “to wit” clauses in Counts 12 and 13, removing the word
“digital” and replacing it with “penetration of vagina” in Count 12 and “penetration
of anus” in Count 13. The State moved to amend the “to wit” clause in Count 14 to
remove the words “with penis.” Flynn objected to the State’s amendments.
Flynn also moved for a judgment of acquittal pursuant to Crim.R. 29
with respect to Counts 1 and 2. The State responded, agreeing that Count 2 should
be dismissed. The trial court agreed, dismissing Count 2 and overruling Flynn’s
Crim.R. 29 motion with respect to the other counts.
The trial court returned a verdict finding Flynn guilty of the following
offenses:
Counts 1, 9, 12, 13, and 15: Gross Sexual Imposition (lesser included), of a child less than 13 years of age, felonies of the third degree;
Counts 6, 11, 14, and 17: Gross Sexual Imposition, of a child less than 13 years of age, felonies of the third degree; and
Counts 7, 8, and 10: Rape, felonies of the first degree.
The court found Flynn not guilty of the remaining offenses.
A sexually violent predator hearing was held on September 3, 2025.
At the conclusion of the hearing, the court found Flynn to be a sexual violent
predator with respect to the sexual violent predator specifications attached to
Counts 1, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 17.
D. Sentencing
Sentencing was held on September 3, 2025. The court imposed terms
of life without the possibility of parole for the rape offenses and terms of five years in prison for each offense of GSI. Flynn was also designated a Tier III sex
offender/child offender.
E. Appeal
Flynn appeals his convictions, presenting three assignments of error
for our review:
1. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.
2. The convictions for [sic] were against the manifest weight of the evidence.
3. Allowing the State to amend the indictment pursuant to Crim.R. 7(D) and over defense objection violated due process and the right to a fair trial.
II. Law and Analysis
A. First Assigned Error for Review — Crim.R. 29 Sufficiency
In his first assigned error for review, Flynn argues that the evidence
presented at trial is insufficient evidence to support his convictions and that the trial
court should have granted his Crim.R. 29 motion for acquittal. After a thorough
review of the record, we find that the evidence was sufficient to support his multiple
convictions for rape and GSI.
1. Standard of Review
A motion for judgment of acquittal under Crim.R. 29 “questions
whether the evidence is sufficient to establish beyond a reasonable doubt the
elements necessary to support the convictions.” State v. Walker, 2026-Ohio-1767, ¶ 38 (8th Dist.). As such, “‘[w]e apply the same standard of review to a trial court’s
ruling on a Crim.R. 29 motion as we do in reviewing challenges to the sufficiency of
the evidence presented at trial.’” Id., quoting State v. McQuisition, 2024-Ohio-3011,
¶ 24 (8th Dist.).
“The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial.” State v. Wilborn, 2024-Ohio-
5003, ¶ 37 (8th Dist.), citing State v. Cottingham, 2020-Ohio-4220, ¶ 32 (8th Dist.).
In reviewing a challenge based on sufficiency, we must “‘determine whether the
evidence, if believed, would convince the average person of the defendant’s guilt
beyond a reasonable doubt.’” State v. Webb, 2025-Ohio-456, ¶ 9 (8th Dist.), quoting
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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 reasonable doubt.” Jenks at paragraph two of the
syllabus. A sufficiency review “is not a factual determination, but a question of law.”
State v. Jackson, 2025-Ohio-109, ¶ 25 (8th Dist.), citing State v. Thompkins, 78
Ohio St.3d 380, 386 (1997).
When reviewing the evidence, we must keep in mind that “[p]roof of
guilt may be supported ‘by circumstantial evidence, real evidence, and direct
evidence, or any combination of all three, and all three have equal probative value.’”
Wilborn at ¶ 38, quoting State v. Radano, 2017-Ohio-1034, ¶ 35 (8th Dist.). And
although each type of evidence has their obvious differences, “those differences are irrelevant to the probative value of the evidence, and circumstantial evidence carries
the same weight as direct evidence.” Id., citing State v. Cassano, 2012-Ohio-4047,
¶ 13 (8th Dist.). Our review of the evidence is not to determine “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” Thompkins at 390.
2. Analysis
a. Rape Convictions – Counts 7, 8, and 10
Flynn was convicted of rape in violation of R.C. 2907.02(A)(1)(b),
which provides, in relevant part:
(A)(1) No person shall engage in sexual conduct with another when any of the following applies:
...
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
R.C. 2907.01(A) defines “sexual conduct” as “vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another.” The statute makes clear, “[p]enetration,
however slight, is sufficient to complete vaginal or anal intercourse.” Id.
Count 7 charged Flynn with rape, alleging digital penetration of S.D.’s
vagina. Flynn alleges that S.D. did not provide any testimony that Flynn digitally
penetrated her vagina. S.D. testified that when she was 5 years old, she started engaging in
sexual activity with Flynn. She testified that until she was 11 years old, almost every
day, multiple times a day, she would put Flynn’s penis in her mouth and, when she
was finished, Flynn would perform oral sex on her. She testified in detail that she
would sit on the top part of the recliner and Flynn would kneel in front of her and
put her vagina in his mouth. He would sometimes do this while on the floor. S.D.
testified that Flynn’s tongue “did go inside me.”
We agree that the evidence does not demonstrate Flynn penetrated
S.D. with his fingers. Nonetheless, this evidence is sufficient to demonstrate a rape
occurred under R.C. 2907.02(A)(1)(b). We have recognized that the type of sexual
conduct is not an element of the offense of rape. State v. Palmer-Tesema, 2020-
Ohio-907, ¶ 70 (8th Dist.). Here, S.D.’s testimony alone is sufficient to support the
trial court’s finding that Flynn raped S.D., either by cunnilingus or another form of
penetration. State v. Jones, 2020-Ohio-3367, ¶ 71 (8th Dist.) (noting that “[a]
conviction may rest solely on the testimony of a single witness, if believed, and there
is no requirement that a witness’ testimony be corroborated to be believed”), citing
State v. Flores-Santiago, 2020-Ohio-1274, ¶ 38 (8th Dist.).
We have recognized that “cunnilingus” is defined as “a sexual act
committed with the mouth and the female sex organ.” State v. Al-Shami, 2026-
Ohio-453, ¶ 39 (8th Dist.), citing Ohio Jury Instructions, 2 CR § 507.02(A)(1) (Rev.
Jan. 22, 2011). Penetration of the vagina “is not required to demonstrate
cunnilingus occurred.” Id. at ¶ 41, citing State v. Lynch, 2003-Ohio-2284, ¶ 86. Nonetheless, R.C. 2907.01(A) provides that “[p]enetration, however slight, is
sufficient to complete vaginal or anal intercourse.” As such, the evidence presented
at trial was sufficient to support a conviction of rape in Count 7.
With respect to the rape convictions in Counts 8 and 10, the
indictment alleged sexual conduct via fellatio. Flynn claims that S.D.’s testimony
“does not provide evidence tying each count to a separate, identifiable incident of
rape-level conduct . . . as opposed to a generalized description and sweeping
numerical estimates.” Flynn is incorrect.
S.D. testified that from the age of 5 until she was 11 years old, she
engaged in sexual activity with Flynn daily. But contrary to Flynn’s claim, she
testified to specific identifiable incidents she recalled, each with differentiating
details. For example, S.D. testified that when she was 7 or 8 years old, she would go
up into the attic with Flynn. Flynn would take her clothes off, and they would
S.D. testified that another time, when she was 9 years old, she and
Flynn were on the recliner and Flynn was performing a sex act on her and the
recliner fell. She stated that even though the recliner had just fallen, they did not
stop. S.D. testified that she remembered the story because it “was funny at that
moment but it didn’t stop what was happening when I fell. We just continued.”
S.D. testified with respect to separate identifiable acts of oral sex that
Flynn engaged in with her. The details differed concerning her age, when the acts
occurred, where the acts occurred, and how they occurred. As such, we disagree with Flynn’s description of S.D.’s testimony as a “generalized description and
sweeping numerical estimates.” For these reasons, we find that S.D.’s testimony was
sufficient to support the trial court’s guilty verdicts concerning Flynn’s rape
convictions.
b. Gross-Sexual-Imposition Convictions
Flynn was also convicted of multiple counts of GSI, with respect to
each minor female victim, in violation of R.C. 2907.05(A)(4). R.C. 2907.05(A)(4)
provides:
(A) No person shall have sexual contact with another; cause another to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
R.C. 2907.01(B) defines “sexual contact” as “any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock,
pubic region, or, if the person is a female, a breast, for the purpose of sexually
arousing or gratifying either person.” “While the Ohio Revised Code does not define
sexual arousal or sexual gratification, R.C. 2907.01(B) “‘contemplate[s] any
touching of the described areas which a reasonable person would perceive as
sexually stimulating or gratifying.”’” State v. Boyd, 2024-Ohio-1059, ¶ 29 (8th
Dist.), quoting State v. Tate, 2013-Ohio-370, ¶ 18 (8th Dist.), quoting State v. Astley,
36 Ohio App.3d 247, 250 (10th Dist. 1987). i. GSI Conviction — Victim T.F. — Count 1
With respect to his conviction for GSI against T.F., to the extent Flynn
challenges T.F.’s credibility, “the credibility of witnesses is a matter primarily for
the trier of fact and is not to be considered in a sufficiency argument as credibility
goes to the weight of the evidence.” State v. Erker, 2019-Ohio-3185, ¶ 83 (8th Dist.).
As a result, whether T.F.’s testimony was credible “has no bearing on our sufficiency
analysis.” Id.
Flynn claims that even if some touching had occurred between T.F.
and Flynn, there was “no evidence that it was intentional or that it was done for
purpose of sexually arousing or gratifying either person.”
To prove GSI, the State must present sufficient evidence that the
contact was for a sexual purpose. However, in doing so, ‘“there is no requirement
that there be direct testimony regarding sexual arousal or gratification.’” Tate, 2013-
Ohio-370, ¶ 19 (8th Dist.), quoting State v. Meredith, 2005-Ohio-2664, ¶ 13 (12th
Dist.). Rather, in determining whether sexual contact occurred, “the trier of fact
may infer from the evidence presented at trial whether the defendant’s contact with
the areas of the body outlined in R.C. 2907.01 was for the purpose of sexual arousal
or gratification.” State v. Fears, 2017-Ohio-6978, ¶ 65 (8th Dist.). “The purpose of
the contact may be inferred from the type, nature, and circumstances of the contact.”
Id., citing Tate at ¶ 20. “Accordingly, ‘[i]f the trier of fact determines that the
defendant was motivated by desires of sexual arousal or gratification, and that the
contact occurred, then the trier of fact may conclude that the object of the defendant’s motivation was achieved.’” Id., quoting State v. Cobb, 81 Ohio App.3d
179, 185 (9th Dist. 1991).
Here, T.F. testified that she was sitting on the couch in the living room
when Flynn began inappropriately touching her vagina. She stated that Flynn used
his hand, touching the inside of her vagina. We conclude from this evidence that the
trial court could rationally infer that Flynn touched T.F.’s vagina, which is listed as
an “erogenous zone” under R.C. 2907.01(B), for his own sexual arousal or
gratification. As such, the evidence presented was sufficient to support Flynn’s
conviction of GSI against T.F.
ii. GSI Convictions — Victim S.D. — Counts 6, 9, and 11
Count 9 originally charged Flynn with rape, alleging that Flynn
engaged in anal intercourse with S.D. Flynn is correct when he claims that there was
no testimony that anal intercourse occurred. However, the trial court did not find
Flynn guilty of rape under this count. Rather, the trial court found him guilty of the
lesser-included offense of GSI, in violation of R.C. 2907.05(A)(4).
While a conviction for rape would require proof that Flynn penetrated
S.D.’s anus, GSI does not require a proof of penetration. Instead, GSI only requires
evidence that Flynn touched an erogenous zone of S.D., which includes “the thigh,
genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose
of sexually arousing or gratifying either person.” R.C. 2907.01(B). See State v.
Garner, 2008-Ohio-1949, ¶ 16 (8th Dist.) (“Merely touching a covered erogenous
zone is sufficient.”). As discussed above, S.D. testified about separate identifiable acts of
oral sex that she and Flynn engaged in. The details differed concerning her age,
when the acts occurred, where the acts occurred, and how they occurred. And the
trial court was permitted to infer, because of the nature of the acts S.D. testified to,
including the contact with her vagina, that the purpose was for Flynn’s own sexual
arousal. For these reasons, the evidence was sufficient to support Flynn’s
convictions of GSI against S.D.
iii. GSI Convictions — Victim K.D. — Counts 12, 13, and 14
Counts 12 and 13 originally charged Flynn with rape, alleging that
Flynn digitally penetrated K.D.’s vagina and anus respectively. The trial court found
Flynn guilty of the lesser-included offense of GSI on each count. The court also
found Flynn guilty of GSI as originally charged in Count 14.
Flynn alleges that with respect to Counts 12 and 13 there was
“insufficient evidence to conclude Flynn penetrated [K.D.] vaginally or anally with
anything.” Again, Flynn was not convicted of rape under these counts. Rather, he
was convicted of GSI and, as discussed above, the charge of GSI does not require
proof of penetration. Here, K.D. testified that when she was 4 years old, Flynn took
her into his room, laid her down on the bed, lifted her skirt, and began to touch her
vaginal area and her buttocks. K.D. testified she did not know what part of his body
he was touching her with but that she would feel him grinding against her, while at
other times, she would feel penetration, but did not know from what. When it
ended, Flynn told her not to tell anybody what happened because he told her nobody would believe her. While she was cleaning herself, she saw blood. She stated that
she was unsure whether the blood had come from her vagina or anus. K.D. testified
there were other times that this occurred in Flynn’s room and these incidents
occurred frequently.
A rational factfinder could infer that Flynn touched K.D.’s vaginal
area and buttocks for his own sexual arousal. As such, there was sufficient evidence
to support Flynn’s GSI convictions on Counts 12 and 13.
With respect to Count 14, Flynn claims that there was insufficient
evidence to support a conviction for GSI because K.D. did not know what had
penetrated her when Flynn was grinding against her. However, a conviction for GSI
only requires proof that the defendant touched an erogenous zone of the victim for
the purpose of sexual gratification. What the defendant used to make contact with
the victim is not an element of the offense. K.D. testified that Flynn was grinding
against her and, at times, she felt penetration but did not know what from. Further,
she testified that Flynn touched her vaginal area and her buttocks. This testimony
was sufficient to support Flynn’s conviction for GSI on Count 14.
Flynn also challenges K.D.’s credibility. However, as discussed above,
a victim’s credibility has no bearing in our sufficiency analysis. Erker, 2019-Ohio-
3185, at ¶ 83 (8th Dist.). iv. GSI Convictions — Victim M.F. — Counts 15 and 17
Count 15 charged Flynn with the rape of M.F. Count 17 charged Flynn
with GSI concerning M.F. The trial court found him guilty of the lesser-included
offense of GSI on Count 15 and guilty of GSI as charged in Count 17.
Flynn first argues that M.F.’s testimony is insufficient to demonstrate
that Flynn’s actions were done for a sexual purpose. M.F. testified that when she
was a little older than a kindergartner, Flynn took her into his bedroom to “do
things.” She stated that Flynn brought her to his room, pulled his pants down, and
told M.F. to “suck his penis,” which she did. M.F. testified that Flynn would have
her sit on his lap and he would start whispering into and licking her ear.
M.F. testified that the following day, she went into the shower with
Flynn. She stated Flynn was touching the inside and outside of her vagina and that
he was “moving his fingers around inside of my body.” Flynn then asked M.F. to
touch his penis, which she did. M.F. also testified that she would go on walks with
Flynn and he would take her under “these hanging trees” and “make [her] kiss him.”
A rational trier of fact could infer from M.F.’s testimony that Flynn
touched her vagina and M.F. had to “suck his penis,” that Flynn did this for the
purpose of his own sexual gratification. Furthermore, M.F. testified concerning at
least two separate incidents that occurred on two separate and identifiable days.
M.F.’s testimony was sufficient to support Flynn’s convictions for GSI on Counts 15
and 17. For the foregoing reasons, we find that the evidence presented was
sufficient to support Flynn’s convictions for rape and GSI against M.F. Accordingly,
Flynn’s first assignment of error is overruled.
B. Second Assigned Error for Review — Manifest Weight
In his second assigned error for review, Flynn alleges that his
convictions are against the manifest weight of the evidence. For the following
reasons, we disagree.
In contrast to a sufficiency challenge, a challenge with respect to the
“‘[w]eight of the evidence concerns “the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other. . . .
Weight is not a question of mathematics, but depends on its effect in inducing
belief.”’” State v. Hughes-Davis, 2025-Ohio-3151, ¶ 24 (8th Dist.), quoting Eastley
v. Volkman, 2012-Ohio-2179, ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387. The
Ohio Supreme Court has stated that when conducting a manifest-weight review, the
reviewing court “must weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether, in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new trial ordered.”
In re Z.C., 2023-Ohio-4703, ¶ 14, citing Eastley at ¶ 20. As such, a manifest-weight-
of-the-evidence challenge will be sustained “‘“only in the exceptional case in which
the evidence weighs heavily against the conviction.”’” State v. Dodson, 2025-Ohio- 1733, ¶ 12 (8th Dist.), quoting Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist. 1983).
Flynn’s challenge primarily focuses on the credibility of the minor
victims, alleging that their testimony was inconsistent and indicative of collusion
between them.
When conducting a review under a manifest-weight challenge, we are
mindful of the presumption in favor of the finder of fact and, “‘[i]f the evidence is
susceptible of more than one construction, the reviewing court is bound to give it
that interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.’” Parma Hts. v. Brett, 2025-Ohio-
4, ¶ 21 (8th Dist.), quoting Z.C. at ¶ 14. The underlying rationale of giving deference
to the finder of fact is that “the finder of fact is in the ‘best position to view the
witnesses and observe their demeanor, gestures, and voice inflections that are
critical observations in determining the credibility of a witness and his or her
testimony.’” State v. Jones, 2025-Ohio-2866, ¶ 47 (8th Dist.), quoting State v.
Sheline, 2019-Ohio-528, ¶ 100 (8th Dist.).
Here, Flynn alleges that the testimony of the victims was inconsistent
and that their stories tended to “evolve” over time. For example, Flynn alleges that
K.D.’s trial testimony “materially differed” from her recorded interviews. He also
alleges that M.F.’s testimony “evolved” by including earlier incidents that she did
not disclose in earlier interviews. With respect to T.F.’s testimony, Flynn claims she is not credible because days after the alleged incident, she denied any penetration
had occurred.
It is well established that “‘inconsistencies or contradictions in a
witness’s testimony do not entitle a defendant to a reversal of a trial.’” State v.
Gilmore, 2026-Ohio-577, ¶ 26 (8th Dist.), quoting State v. Rentas, 2024-Ohio-732,
¶ 16 (8th Dist.), citing State v. Solomon, 2021-Ohio-940, ¶ 62 (8th Dist.). “Nor does
the presence of conflicting testimony render a verdict against the manifest weight of
the evidence.” State v. Clark, 2025-Ohio-5342, ¶ 52 (8th Dist.), citing State v. Pace,
2025-Ohio-2874, ¶ 62 (10th Dist.); accord State v. Fluker, 2026-Ohio-1278, ¶ 64
(8th Dist.). As such, “[t]he trier of fact is free to accept or reject any or all testimony
of any witness.” Parma v. Singh, 2018-Ohio-5235, ¶ 21 (8th Dist.), citing State v.
Smith, 2010-Ohio-4006, ¶ 16 (8th Dist.).
Flynn also alleges that with respect to T.F.’s testimony, the lack of
corroborating DNA or physical evidence strengthens a finding that his conviction
concerning T.F. was against the manifest weight of the evidence. However, we have
recognized that “[p]hysical evidence is not required to sustain a conviction against a
manifest weight challenge.” Flores-Santiago, 2020-Ohio-1274, at ¶ 37 (8th Dist.),
citing State v. Robertson, 2018-Ohio-2934, ¶ 32 (8th Dist.). Rather, “[a] conviction
may rest solely on the testimony of a single witness, including the victim, if believed,
and there is no requirement that a victim’s testimony be corroborated to be
believed.” Id. at ¶ 38, citing State v. Black, 2019-Ohio-4977, ¶ 43 (8th Dist.). And finally, Flynn claims that “it is not insignificant S.D. and K.D. had
identified different perpetrators that were not Flynn.” However, K.D. explained that
the reason she initially claimed it was her uncle’s friend who had abused her was
because, at the time, she still cared about Flynn and did not want him to get in
trouble. S.D. stated that she projected the abuse onto someone other than Flynn but
admitted that the other person had never even been in the same room with her
alone. In short, S.D. changed her story when she realized the other person could go
to jail.
Here, the trial court was in the best position to evaluate the veracity
and credibility of the victims’ testimonies. The court was likewise free to “accept or
reject any or all testimony of any witness.” Singh, 2018-Ohio-5235, at ¶ 21 (8th
Dist.), citing Smith, 2010-Ohio-4006, at ¶ 16 (8th Dist.). After reviewing the entire
record, particularly the testimony of the witnesses presented, we cannot say the
finder of fact lost its way in believing the testimony of the victims, whether in full or
in part, in support of its verdict. This is not one of those extraordinary cases where
the convictions are against the manifest weight of the evidence.
Accordingly, Flynn’s second assignment of error is overruled.
C. Third Assigned Error for Review — Amendment of the Indictment
In his third assigned error for review, Flynn argues that the trial court
erred in allowing the State to amend the indictment concerning the date ranges set
forth in certain counts, as well as amending the type of sexual conduct alleged in specific counts. After a thorough review of the record, we find that the trial court
did not err in allowing the State to amend the indictment.
1. Applicable Law and Standard of Review
Crim.R. 7(D) provides that the trial court may “at any time before,
during, or after a trial amend the indictment . . . in respect to any defect,
imperfection, or omission in form or substance, or of any variance with the evidence,
provided no change is made in the name or identity of the crime charged.” “A change
in the name or identity of a crime charged occurs when the offense alleged in the
indictment and the offense alleged in the amended indictment contain different
elements that require independent proof.” State v. Buchanan, 2017-Ohio-1361, ¶ 22
(8th Dist.), citing State v. Mullins, 124 Ohio App.3d 112, 114 (12th Dist. 1997).
“Where the amendment does not change the name or identity of the
offense, a reviewing court will not disturb the trial court’s decision to permit the
amendment absent an abuse of discretion and a showing of prejudice.” Palmer-
Tesema, 2020-Ohio-907, at ¶ 69 (8th Dist.), citing Buchanan at ¶ 22, citing State v.
Moore, 2016-Ohio-2836, ¶ 29 (8th Dist.). “The term ‘abuse of discretion’ means a
ruling that is unreasonable, arbitrary, or unconscionable.” State v. McAlpin, 2026-
Ohio-148, ¶ 14. However, “[c]ourts do not have discretion to erroneously apply the
law.” Shiftmed, L.L.C. v. Westchester Parkway Consulting, L.L.C., 2025-Ohio-
1554, ¶ 18 (8th Dist.), citing Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39. We are
reminded that “when applying the abuse-of-discretion standard[,] ‘we should not substitute our judgment for that of the trial court.’” T.C. v. R.B.C., 2025-Ohio-1544,
¶ 10 (8th Dist.), quoting Mills v. Mills, 2025-Ohio-452, ¶ 28 (8th Dist.).
Flynn claims that there were two types of amendments to the
indictment that were improper. These amendments included the alleged date
ranges set forth in the indictment with respect to certain counts, as well as the types
of sexual conduct alleged with respect to specific counts. Each type of amendment
will be addressed separately.
a. Amendments to the Date Ranges
Flynn claims that the trial court erred in allowing the State to amend
the alleged dates of the offenses as set forth in Counts 1, 2, 3, 7, 8, 9, 15, 16, and 17 of
the indictment.
It is well established that the specificity with respect to the time and
date of an offense is not required in an indictment. State v. Williams, 2013-Ohio-
4471, ¶ 12 (8th Dist.), quoting State v. Bogan, 2005-Ohio-3412, ¶ 10 (8th Dist.). Nor
does amending the dates in an indictment change the name or the identity of the
alleged offense. Moore, 2016-Ohio-2836, at ¶ 30 (8th Dist.). Rather, “the [S]tate’s
only responsibility is to present proof of offenses alleged in the indictment,
reasonably within the time frame alleged.” Williams at ¶ 12, citing Bogan at ¶ 10.
“This is especially the case where the victim is a child victim of repeated sexual
assault[.]” Id. at ¶ 13, citing State v. Yaacov, 2006-Ohio-5321, ¶ 17 (8th Dist.). We
have reasoned that “[t]his is partly due to the fact that the specific date and time of the offense are not elements of the crimes charged.” Yaacov at ¶ 17, citing State v.
Gus, 2005-Ohio-6717, ¶ 6 (8th Dist.). “Moreover, many child victims are unable to
remember exact dates and times, particularly where the crimes involved a repeated
course of conduct over an extended period of time.” Id., citing State v. Mundy, 99
Ohio App.3d 275, 296 (2d Dist. 1994). In short, “when dealing with the memory of
a child, reasonable allowances for inexact dates and times must be made.” Williams
at ¶ 13, citing State v. Barnecut, 44 Ohio App.3d 149, 152 (5th Dist. 1988).
Nonetheless, “an exception to this general rule exists when the failure
to allege a specific date ‘results in material detriment to the accused’s ability to fairly
defend himself, as where the accused asserts an alibi or claims that he was
indisputably elsewhere during part, but not all, of the interval specified.’” Yaacov at
¶ 18, quoting State v. Morgan, 2001 Ohio App. LEXIS 2104, *4 (6th Dist. May 11,
2001).
Here, changing the alleged dates set forth in the indictment did not
change the name or identity of the offenses. Nor does Flynn claim that changing the
dates prevented him from presenting an alibi witness or claim that he was
somewhere else at the time of the dates alleged.
Since the amendment of the indictment with respect to the alleged
dates did not change the name or identity of the offenses charged or prejudice Flynn
in a manner that materially affected his alleged defense, the trial court did not abuse
its discretion in allowing the State to amend the date ranges set forth in the
indictment. b. Amendments Concerning Alleged Sexual Conduct
Flynn also alleges that the trial court erred in allowing the State to
amend the specific types of sexual conduct alleged in Counts 12, 13, and 14 of the
indictment. Particularly, the “to wit” clauses in Counts 12 and 13 were amended,
removing the word “digital” and replacing it with “penetration of vagina” in Count 12
and “penetration of anus” in Count 13. Count 14 was also amended, removing the
words “with penis” from the “to wit” clause.
These amendments did not change the name or the identity of the
offenses charged. We have recognized that amending a sex-offense charge in an
indictment from one form of sexual conduct to another type of sexual conduct does
not change the name or the identity of the offense. Palmer-Tesema, 2020-Ohio-
907, at ¶ 70 (8th Dist.), citing State v. Abdullah, 2006-Ohio-5412, ¶ 24 (10th Dist.)
(recognizing that “[a]mending a rape charge from one type of sexual conduct to
another type of sexual conduct changes neither the name nor the identity of the
offense”).
Rape, in violation of R.C. 2907.02(A)(1)(b), as charged in Counts 12
and 13 of the indictment, requires proof that the defendant “engaged in sexual
conduct with another[.]” R.C. 2907.01(A) defines “sexual conduct” to include “the
insertion, however slight, of any part of the body or any instrument, apparatus, or
other object into the vaginal or anal opening of another.” As such, “the type of sexual
conduct was not an element of the offense, and the state’s amendment to the specific type of sexual conduct did not contain any different elements that required
independent proof.” Palmer-Tesema at ¶ 71.
GSI, in violation of 2907.05(A)(4), as charged in Count 14, requires
proof that the defendant “had sexual contact with another[.]” R.C. 2907.01(B)
defines “sexual contact” as “any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.”
Sexual contact does not require such contact be made with one’s penis and therefore
is not an element of the offense which required independent proof. As such, the
deletion of “with penis” from the “to wit” clause in Count 14 did not change the name
or identity of the offense.
Nonetheless, Flynn alleges these amendments violated his due
process rights because the facts presented to the grand jury were different with
respect to the amended counts. He directs us to our decision in State v. Vitale, 96
Ohio App.3d 695 (8th Dist. 1994). His reliance on Vitale is misplaced.
In Vitale, we held that an amendment to the defendant’s indictment
was prejudicial because the amendment encompassed a different potential offense,
occurring at a different address, over an expanded period of time and that this
different offense relied on evidence not presented to the grand jury that issued the
indictment. In Palmer-Tesema, we distinguished Vitale on a fact pattern similar to
the case at bar, finding that the amendment “did not allow the state to argue a
different rape, at a different address, at a different date. Nor did it allow the jury to find [the defendant] guilty of a different offense than indicted.” Palmer-Tesema,
2020-Ohio-907, at ¶ 73 (8th Dist.). Rather, the amendment in Palmer-Tesema
merely changed the type of sexual conduct alleged. Id.
Finally, the amendment did not prejudice Flynn’s defense because
Flynn’s defense was not based on the distinctions between the types of sexual
conduct that may have occurred nor when the alleged offenses occurred. Rather,
Flynn’s defense rested on the credibility of the victims challenging whether the
alleged conduct occurred at all.
Since the amendments made to the indictment did not change the
name or identity of the offenses charged, we find that the trial court did not abuse
its discretion by amending the indictment. Accordingly, Flynn’s third and final
assignment of error is overruled.
III. Conclusion
Following a thorough review of the record and applicable law, we
overrule Flynn’s three assigned errors for review. His convictions are affirmed.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to the
trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________________ MICHELLE J. SHEEHAN, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and TIMOTHY W. CLARY, J., CONCUR