State v. McKinney

2024 Ohio 4642

• Court: Ohio Court of Appeals
• Decided: September 17, 2024
• Docket: 23CA21
• Status: Published

Opinion

[Cite as State v. McKinney, 2024-Ohio-4642.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 23CA21

v. :

KEITH D. MCKINNEY, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Karyn Justice, Portsmouth, Ohio, for appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:9-17-24 ABELE, J.

{¶1} This is an appeal from a Lawrence County Common Pleas

Court judgment of conviction and sentence. A jury found Keith

D. McKinney, defendant below and appellant herein, guilty of

eight counts of rape, in violation of R.C. 2907.02(A)(1)(b).

Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE IN HIS REPRESENTATION OF THE APPELLANT.” LAWRENCE, 23CA21 3

SECOND ASSIGNMENT OF ERROR:

“APPELLANT’S CONVICTIONS ARE NOT SUPPORTED BY THE EVIDENCE.”

THIRD ASSIGNMENT OF ERROR:

“APPELLANT’S SENTENCE IS CONTRARY TO LAW.”

{¶2} On June 1, 2021, a Lawrence County Grand Jury returned

an indictment that charged appellant with 100 counts of first-

degree rape, in violation of R.C. 2907.02(A)(1)(b). The

indictment alleged that each offense involved a single victim

less than 13 years of age.

{¶3} On April 4 and 5, 2022, the trial court held a jury

trial. Before the trial began, the State asked the court to

amend the indictment and “to nolle counts eleven through one

hundred and proceed on counts one through ten.” The court

granted the State’s request and the case proceeded to trial.

{¶4} The State called the then-13-year-old victim, S.H., as

its first witness. S.H. testified that appellant, her mother’s

boyfriend, moved in with S.H.’s family around the end of 2019,

and continued to live with her family for almost two years.

S.H.’s mother worked evenings and appellant stayed home to watch

S.H. and her siblings.

{¶5} According to S.H., when appellant first moved into the

house, he seemed “pretty nice,” but later “became very violent” LAWRENCE, 23CA21 4

and would beat her and her sisters if they “made him a little

bit angry.”

{¶6} One day in late March 2020, S.H. (then 11 years of

age) and appellant were in her mother’s bedroom while the other

children slept and S.H.’s mother was at work. Appellant had

been playing a video game, and then he began to touch S.H.,

first above her clothes and then under her clothes. Appellant

told S.H. that if she reported the event to anyone, she “would

lose [her] family.”

{¶7} A couple of days later, S.H. and appellant were again

in her mother’s bedroom, and this time, appellant asked S.H. “to

get on the bed.” S.H. said she complied because she “was

scared” that if she did not, appellant would “beat [her].” She

explained that he had beaten her in the past. Once on the bed,

appellant removed her clothes and began to touch her. Appellant

then placed his penis inside her vagina. S.H. remembers being

in “a lot of pain” and stated that the encounter lasted about

four or five minutes.

{¶8} Afterward, appellant continued to have intercourse

with S.H. “[f]our or five times a week, whenever [her] mom was

working.” S.H. stated that the events occurred either in her

room or in her mother’s bedroom. In total, appellant engaged in LAWRENCE, 23CA21 5

sexual intercourse with S.H. “probably close to a hundred”

times.

{¶9} In addition to sexual intercourse, S.H. indicated that

appellant performed cunnilingus, the first time occurred on her

12th birthday. Appellant told her that “oral sex” “was going to

be [her] birthday present from him.” After appellant completed

this act, he engaged in vaginal intercourse with S.H. He also

kissed her for the first time and told her that “he loved

[her].”

{¶10} One time, when S.H.’s mother was home asleep, and S.H.

in the bathroom, appellant asked her “to perform oral sex on

him.” S.H. complied with his instruction, but her sisters

knocked on the bathroom door and interrupted the act.

{¶11} Near the end of 2020, S.H.’s mother kicked appellant

out of the house because she became tired of appellant “hitting

[her children].” Her mother later allowed appellant back into

the home, but first installed cameras throughout the house so

she would know if appellant “was hitting” the children. S.H.

stated that things improved after her mother installed the

cameras.

{¶12} One evening in 2021, after the cameras had been

installed, S.H. went outside to look at the stars. Appellant LAWRENCE, 23CA21 6

also went outside and then engaged in vaginal intercourse with

S.H. S.H. stated that she “remember[ed] being on the ground and

then [her] mom called.” Appellant “quickly got off of top of”

S.H.

{¶13} Appellant’s sexual abuse eventually came to light when

one of S.H.’s friends “wanted a sex toy,” and the friend asked

S.H. to talk to appellant about obtaining one. S.H. stated that

she “really wanted” this friend to like her, so she asked

appellant. Appellant told S.H. “that it came at a price” and

told the friend that she must “have to have a threesome with”

him and S.H. Appellant stated that having a threesome “was his

dream.” They later went to a shopping mall and appellant

purchased a sex toy. S.H. later told the friend about

appellant’s inappropriate conduct.

{¶14} On cross-examination, defense counsel asked S.H. one

question: “Who’s your mom’s boyfriend now?” S.H. responded,

“[h]is brother.”

{¶15} The State’s next witness, Ironton Police Officer Joe

Ross (retired at the time of trial), testified that on April 25,

2021, S.H.’s friend reported the allegations to her

grandparents, who, in turn, reported the allegations to the

police. After speaking with S.H.’s friend, Ross talked with LAWRENCE, 23CA21 7

appellant and S.H. and S.H. “was very distraught.” She was

“actually laying down in the street, uh, screaming and crying.”

Neither officers nor S.H.’s mother could “get her to do

anything” for 20 or 30 minutes. Ross eventually informed S.H.

that he was “going to leave” and then talked to appellant.

Appellant agreed to accompany Ross to the police station.

{¶16} Upon arriving at the police station, Officer Ross told

appellant about the allegations and stated that he would be

recording the interview. Near the start of the interview,

appellant advised Ross that he has been diagnosed with

schizophrenia, bipolar II disorder, anxiety, depression, and a

manic disorder.

{¶17} Initially, appellant denied any inappropriate behavior

with S.H. He explained that S.H. asked him if he would “do

stuff with her,” like “intercourse,” but he told her “no.”

Appellant later indicated that “if we were to do anything, it

would have been consensual.” Appellant then stated that he and

S.H. had engaged in consensual vaginal intercourse one time,

which he believed occurred two months ago or longer. Appellant

also disclosed that, before they started to have intercourse,

S.H. “gave [him] a blow job.” He reported that they only

engaged in sexual conduct this one time and afterwards, he told LAWRENCE, 23CA21 8

S.H. he “can’t do this.” Appellant claimed that S.H. continued

to ask him to “have sex,” but he told her no.

{¶18} Appellant further asserted that “the intercourse

itself . . . was more of an accident.” He elaborated that he

has “certain boxers” that he no longer wears because his “junk

would come out easily.” Appellant explained that one day

(apparently when wearing these boxers), S.H. was not wearing any

shorts or underwear and he “walk[s] around in [his] underwear

all the time.” Appellant indicated that he “got up and she seen

it and then she tried to get it.” Appellant said, “Oh! Okay!”

So, in appellant’s view, the sex “was consensual.” Afterward,

appellant told S.H. they had made “a big mistake” and “we need

to stop.” Appellant admitted that he “knew it was wrong,” and

claimed that “[i]t was a one-time thing.”

{¶19} As the interview ended, Ross asked appellant if he had

“been accused of this before.” Appellant responded, “Yes.”

Appellant’s counsel objected and asked the trial court to strike

appellant’s statement. The court subsequently instructed the

jury “to disregard the statement, ‘Have you been accused of this

before?’” and appellant’s response. The court asked defense

counsel if “the instruction [was] sufficient,” and counsel LAWRENCE, 23CA21 9

responded affirmatively. After the interview ended, Ross

arrested appellant and took him to jail.

{¶20} On cross-examination, defense counsel asked Ross

whether law enforcement officers had conducted any DNA testing.

Ross responded that officers had not tested any DNA.

{¶21} After Ross’s testimony, the State rested. Defense

counsel indicated that appellant would not testify and the

defense likewise rested.

{¶22} During the jury’s deliberations, the jury submitted a

question: “Do we need to have ten specific instances or dates to

find [appellant] guilty of all ten counts?” The court

instructed the jury: “You must consider each count and the

evidence applicable to each count separately. Therefore, you

must evaluate the testimony and exhibits and then determine

whether the defendant is guilty or not guilty as to each of the

ten counts.”

{¶23} The jury later asked for a transcript of S.H.’s

testimony. The court advised the jury that a transcript did not

exist.

{¶24} The jury later asked, “Is a witness’s testimony to be

considered to be proof beyond a reasonable doubt?” The court

instructed the jury: LAWRENCE, 23CA21 10

Please refer to the jury instructions. You are not required to believe the testimony of any witness simply because the witness is under oath. You may believe or disbelieve all or any part of the testimony of any witness. It is your duty to decide what testimony to believe and what testimony not to believe. The testimony of one witness, if believed by you is sufficient to prove any disputed facts.

{¶25} After deliberation, the jury returned and found

appellant guilty of counts one through eight and not guilty of

counts nine and ten.

{¶26} On April 25, 2022, the trial court sentenced appellant

to serve 25 years to life in prison for each of the eight rape

offenses. The court ordered the sentences for counts one

through four to be served consecutively to one another for a

total minimum stated prison term of 100 years to life in prison.

The court additionally found appellant to be a Tier Three Sexual

Offender.

{¶27} On May 6, 2022, appellant filed a notice of appeal

from the trial court’s April 25, 2022 judgment. However, on

April 27, 2023, we dismissed that appeal for a lack of a final,

appealable order. We noted that the trial court did not file an

entry that disposed of counts 11 through 100, the counts that

the State agreed to “nolle.” On May 9, 2023, the trial court

entered a judgment entry that dismissed counts 11 through 100.

This appeal followed. LAWRENCE, 23CA21 11

I

{¶28} In his first assignment of error, appellant asserts

that trial counsel failed to provide the effective assistance of

counsel. In particular, appellant contends that trial counsel

was ineffective for failing to (1) meaningfully cross-examine

S.H., (2) request a mistrial after the jury heard inadmissible

statements, (3) present witnesses or evidence in appellant’s

defense, and (4) argue that the trial court should merge all of

the counts.

A

{¶29} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984);

accord Hinton v. Alabama, 571 U.S. 263, 272 (2014) (the Sixth

Amendment right to counsel means “that defendants are entitled

to be represented by an attorney who meets at least a minimal

standard of competence”). LAWRENCE, 23CA21 12

{¶30} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) trial counsel’s

performance was deficient and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 2018-

Ohio-1903, ¶ 183; State v. Powell, 2012-Ohio-2577, ¶ 85.

“Failure to establish either element is fatal to the claim.”

State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Therefore, if

one element is dispositive, a court need not analyze both.

State v. Madrigal, 87 Ohio St.3d 378, 389 (2000) (a defendant’s

failure to satisfy one of the ineffective-assistance-of-counsel

elements “negates a court’s need to consider the other”).

{¶31} The deficient performance part of an ineffectiveness

claim “is necessarily linked to the practice and expectations of

the legal community: ‘The proper measure of attorney

performance remains simply reasonableness under prevailing

professional norms.’” Padilla v. Kentucky, 559 U.S. 356, 366

(2010), quoting Strickland, 466 U.S. at 688; accord Hinton, 571

U.S. at 273. Prevailing professional norms dictate that “a

lawyer must have ‘full authority to manage the conduct of the

trial.’” State v. Pasqualone, 2009-Ohio-315, ¶ 24, quoting

Taylor v. Illinois, 484 U.S. 400, 418 (1988). LAWRENCE, 23CA21 13

{¶32} Furthermore, “‘[i]n any case presenting an

ineffectiveness claim, the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances.’” Hinton, 571 U.S. at 273, quoting Strickland,

466 U.S. at 688. Accordingly, “[i]n order to show deficient

performance, the defendant must prove that counsel’s performance

fell below an objective level of reasonable representation.”

State v. Conway, 2006-Ohio-2815, ¶ 95 (citations omitted).

{¶33} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. Thus, “the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id.

Additionally, “[a] properly licensed attorney is presumed to

execute his duties in an ethical and competent manner.” State

v. Taylor, 2008-Ohio-482, ¶ 10 (4th Dist.), citing State v.

Smith, 17 Ohio St.3d 98, 100 (1985). Therefore, a defendant

bears the burden to show ineffectiveness by demonstrating that

counsel’s errors were “so serious” that counsel failed to

function “as the ‘counsel’ guaranteed * * * by the Sixth LAWRENCE, 23CA21 14

Amendment.” Strickland, 466 U.S. at 687; e.g., State v. Gondor,

2006-Ohio-6679, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156

(1988).

{¶34} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting

Strickland, 466 U.S. at 694; e.g., State v. Short, 2011-Ohio-

3641, ¶ 113; State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph three of the syllabus; accord State v. Spaulding,

2016-Ohio-8126, ¶ 91 (prejudice component requires a “but for”

analysis). “‘[T]he question is whether there is a reasonable

probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.’” Hinton, 571 U.S. at

275, quoting Strickland, 466 U.S. at 695. Furthermore, courts

ordinarily may not simply presume the existence of prejudice

but, instead, must require a defendant to affirmatively

establish prejudice. State v. Clark, 2003-Ohio-1707, ¶ 22 (4th

Dist.); State v. Tucker, 2002 WL 507529 (4th Dist. Apr. 2,

2002). LAWRENCE, 23CA21 15

{¶35} Additionally, we have repeatedly recognized that

speculation is insufficient to establish the prejudice component

of an ineffective assistance of counsel claim. E.g., State v.

Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Jenkins,

2014-Ohio- 3123, ¶ 22 (4th Dist.); State v. Simmons, 2013-Ohio-

2890, ¶ 25 (4th Dist.); State v. Halley, 2012-Ohio-1625, ¶ 25

(4th Dist.); State v. Leonard, 2009-Ohio-6191, ¶ 68 (4th Dist.);

accord State v. Powell, 2012-Ohio-2577, ¶ 86 (purely speculative

argument cannot serve as the basis for ineffectiveness claim).

B

{¶36} Appellant first asserts that trial counsel failed to

meaningfully cross-examine S.H. He points out that trial

counsel only asked S.H. to identify her mother’s current

boyfriend and did not ask S.H. any questions to test the

reliability or credibility of her testimony. Appellant argues

that counsel did not (1) challenge S.H.’s recollection of the

details surrounding the events, (2) question whether S.H. had a

motivation to exaggerate or fabricate her testimony, or (3)

inquire about the reason S.H. delayed telling anyone about the

incidents. Appellant contends that trial counsel’s decision not

to challenge S.H.’s testimony falls “outside the realm of trial

strategy” and thus constitutes deficient performance. LAWRENCE, 23CA21 16

{¶37} Appellant additionally asserts that trial counsel’s

deficiency prejudiced his defense. He notes that during

deliberations, the jury asked the court about “the number of

counts and the evidence” and whether a witness’s testimony

constitutes “proof beyond a reasonable doubt.” Appellant

alleges that the jury’s questions show that the jury

“deliberated as to the number of events alleged and the number

of events testified to.” He observes that the jury did not find

appellant guilty of all ten counts and asserts that the jury

thus “did not believe S.H.’s allegation as [to] the number of

events she claimed occurred.”

{¶38} Appellant further faults trial counsel for asking S.H.

only one question about the identity of her mother’s current

boyfriend. Appellant contends that trial counsel “failed to

subject the prosecution’s primary witness to meaningful and

adversarial testing” and that this failure warrants a finding

that counsel’s performance was presumptively prejudicial.

{¶39} In most cases, a defendant’s failure to satisfy either

part of the Strickland test (deficient performance plus

prejudice) is fatal to an ineffective-assistance claim.

Madrigal, 87 Ohio St.3d at 389; State v. Jones, 2008-Ohio-968, ¶ LAWRENCE, 23CA21 17

14 (4th Dist.). The United States Supreme Court, however,

crafted a narrow exception to the general rule that a defendant

must prove that counsel’s deficient performance prejudiced the

outcome of the proceedings. Florida v. Nixon, 543 U.S. 175, 190

(2004) (noting that prejudice presumed in narrow circumstances);

United States v. Cronic, 466 U.S. 648, 658-59 (1984); see also

Garza v. Idaho, 586 U.S. 232, 237 (2019). For example, “the

complete denial of counsel” is “so likely to prejudice the

accused that the cost of litigating [its] effect in a particular

case is unjustified.” Cronic, 466 U.S. at 658-59. This

complete denial-of-counsel prejudice presumption typically

applies if an “accused is denied counsel at a critical stage” of

the proceedings. Id. Likewise, the prejudice presumption may

apply “if counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing.” Id. The prejudice

presumption also may apply if “counsel is called upon to render

assistance under circumstances where competent counsel very

likely could not.” Bell v. Cone, 535 U.S. 685, 695–98, (2002),

citing Cronic, 466 U.S. at 659–662, and Powell v. Alabama, 287

U.S. 45 (1932).

{¶40} A defendant who asserts that the presumption applies

because defense counsel failed to subject the prosecution’s case LAWRENCE, 23CA21 18

to meaningful adversarial testing must show that “the attorney’s

failure [was] complete.” Bell, 535 U.S. at 697. Thus, a

defendant is not entitled to the presumption if the defendant

merely asserts that counsel failed to oppose the prosecution’s

case “at specific points.” Id. Instead, the presumption may

apply when “‘counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing.’” (Emphasis in

original.) Id., quoting Cronic, 466 U.S. at 659; accord State v.

Drain, 2022-Ohio-3697, ¶ 69. A defendant’s challenge to

counsel’s failure to oppose the prosecution’s case “at specific

points” thus is “plainly of the same ilk as other specific

attorney errors” that are “subject to Strickland’s performance

and prejudice components.” Bell, 535 U.S. at 697-698, citing

Burger v. Kemp, 483 U.S. 776, 788 (1987), and Darden v.

Wainwright, 477 U.S. 168, 184 (1986) (observing that Burger and

Darden applied Strickland standard, not Cronic, when defendants

challenged counsel’s decision at capital sentencing hearing not

to offer any mitigating evidence).

{¶41} In the case at bar, appellant does not argue that

counsel entirely failed to subject the prosecution’s case to

meaningful adversarial testing. Instead, he contends that trial

counsel failed at a specific point–counsel’s cross-examination LAWRENCE, 23CA21 19

of the victim. Appellant asserts that during cross-examination,

counsel failed to subject the victim’s testimony to meaningful

adversarial testing. Consequently, because appellant does not

argue that counsel’s failure was complete, the presumed-

prejudice standard does not apply. Thus, appellant must

establish both that counsel’s decision to limit his cross-

examination of the victim constituted deficient performance and

that this deficient performance affected the outcome of the

proceedings.

{¶42} In general, “‘[t]he scope of cross-examination falls

within the ambit of trial strategy, and debatable trial tactics

do not establish ineffective assistance of counsel.’” State v.

Spaulding, 2016-Ohio-8126, ¶ 90, quoting State v. Conway, 2006-

Ohio-2815, ¶ 101. Furthermore, a defendant alleging that trial

counsel performed deficiently during cross-examination “must

identify the questions he believes [defense] counsel should have

asked and must provide some sense of the information that might

have been elicited. Otherwise, [courts] will presume that the

choice to forgo cross-examination ‘constituted a legitimate

tactical decision.’” State v. Beasley, 2018-Ohio-493, ¶ 155,

citing and quoting State v. Frazier, 2007-Ohio-5048, ¶ 220, and LAWRENCE, 23CA21 20

citing State v. Foust, 2004-Ohio-7006, ¶ 90 (holding that

counsel made a legitimate tactical decision to forgo additional

cross-examination where the defendant “fail[ed] to explain how

further cross-examination of [the witness] would have made a

difference in his case”).

{¶43} In the case sub judice, appellant does not identify

any particular questions that he believes trial counsel should

have asked S.H. and does not provide any sense of the

information that counsel might have elicited if he had asked

additional questions. Instead, appellant generally asserts that

trial counsel should have (1) challenged “S.H.’s recollection of

details,” (2) inquired whether she had a motive “to exaggerate

or fabricate her testimony,” and (3) questioned why S.H. did not

tell anyone about the allegations for more than one year.

Appellant does not suggest that asking these types of questions

would have elicited information that would have helped his

defense, however. Indeed, asking these questions may have

elicited harmful information. The victim testified that she was

afraid of appellant and in the past he had beaten her and her

sisters. Moreover, the victim’s mother had installed cameras

around the home to keep watch over appellant’s behavior to

ensure that he did not harm the children, which tends to support LAWRENCE, 23CA21 21

the victim’s statement that appellant beat her in the past and

was afraid of him. Thus, had defense counsel asked S.H. about

her delay in reporting the allegations, for example, the victim

may have responded that the delay was due to her fear of

appellant and his statement to her that if she told anyone, she

would “lose [her] family.”

{¶44} Furthermore, this court previously rejected

ineffective-assistance challenges a trial counsel’s decision to

limit cross-examination of a child victim of sexual assault.

State v. Vulgamore, 2021-Ohio-3147 (4th Dist.); State v.

Guysinger, 2017-Ohio-1167 (4th Dist.). In Guysinger, we

observed that trial counsel had “not meaningfully or forcefully

challenge[d the victim]’s recollection of the details of the

crimes, did not raise issues concerning any possible motivation

she may have had to fabricate her testimony, and did not contest

her reason for delaying her reporting of the crimes for

approximately two years.” Id. at ¶ 28. We nevertheless

concluded that trial counsel did not fail to provide the

effective assistance of counsel. We explained that trial

counsel’s cross-examination fell within “the realm of trial

strategy” and that any deficiency did not prejudice the

defendant. Id. at ¶ 29. We elaborated as follows: LAWRENCE, 23CA21 22

In light of the very sensitive nature of this case, which involves a child victim of sexual assault, counsels’ decision not to extensively cross-examine A.G. does not, by itself, constitute ineffective assistance of trial counsel. See, e.g., State v. Hughes, 10th Dist. Franklin No. 14AP–360, 2015–Ohio–151, ¶ 60 (trial counsel’s failure to cross-examine any of the state’s witnesses, including the child victim, in a case involving rape and gross sexual imposition, did not constitute ineffective assistance, reasoning that “[t]rial counsel’s decision not to cross-examine N.P. and F.H., both minors, is a reasonable and understandable trial tactic given the sensitive nature of this case”); State v. Diaz, 9th Dist. Lorain No. 04CA008573, 2005–Ohio–3108, ¶ 20–23 (trial counsel’s decision not to cross-examine child victims in case involving rape and gross sexual imposition was within the realm of sound trial strategy and did not constitute ineffective assistance of counsel). Various reasons exist to support the tactical decision to conduct a very brief cross-examination of the child- victim. Trial counsel could have been wary about a contentious cross-examination of A.G., who had testified emotionally on direct examination. A more rigorous cross-examination could evoke more emotion and greater sympathy by the jury. Also, trial counsels’ limited cross-examination of A.G. did elicit a possible reason for A.G. to be angry at appellant—she was forced, against her wishes, to move her bedroom into the laundry room. Moreover, it is not at all clear that additional questioning of A.G. would have necessarily resulted in favorable testimony concerning the details of the offenses and her reason for not reporting the crimes earlier than she did. A.G. testified on direct examination that she did not report the crimes because she was scared. Additional cross-examination on these matters may have simply bolstered the state’s case. See State v. Freeman, 8th Dist. Cuyahoga No. 92809, 2010– Ohio–3714, ¶ 51 (decision not to cross-examine child victims of rape and gross sexual imposition about why they failed to come forward with their allegations sooner did not constitute ineffective assistance when they explained on direct examination because “[i]t would have been foolish for defense counsel to re-elicit this LAWRENCE, 23CA21 23

damning testimony and explanations from the children on cross-examination”).

Id. at ¶ 29; accord Vulgamore at ¶ 58 (“in light of the

sensitive nature of the case involving a child victim of sexual

assault under the age of 13, trial counsel’s decision not to

conduct a more aggressive cross-examination of M.H. does not, by

itself, constitute ineffective assistance of trial counsel.

Trial counsel could have been wary about a contentious cross-

examination of M.H. who had the prior emotional response to

seeing Appellant exit the elevator after lunch break. A more

rigorous cross-examination could evoke more emotion and greater

sympathy by the jury”). We also “readily acknowledge[d] trial

counsel should ask questions to discern potential

inconsistencies or inaccuracies with a witness’ memory or

perception.” Guysinger at ¶ 31. We nevertheless concluded that

trial counsel justifiably may determine that additional cross-

examination of a child victim could “alienate[] the jury and

actually bolster[] the state’s case.” Id. “Also, by engaging

in a more limited cross-examination of a child victim,” trial

counsel “may prevent the state from engaging in a redirect

examination” that could reveal even more damaging information.

Id.; compare State v. Hammond, 2019-Ohio-4253, ¶ 43 (4th Dist.)

(pointing out that trial counsel’s cross-examination of the LAWRENCE, 23CA21 24

child victim “backfired” because it revealed damaging

information).

{¶45} In the case at bar, trial counsel likewise justifiably

may have determined that further cross-examination of the then-

13-year-old victim might have alienated the jury or bolstered

the State’s case. Additionally, “whether further questioning

would have unearthed any useful information is speculative.”

State v. Frazier, 2007-Ohio-5048, ¶ 220. And speculation is

insufficient to establish an ineffective-assistance claim.

E.g., Guysinger at ¶ 31, citing Short, 2011–Ohio–3641, at ¶ 119

(mere speculation cannot support either the deficient-

performance or prejudice requirements of an ineffective-

assistance claim). We therefore do not agree with appellant’s

argument that trial counsel was ineffective for failing to

subject S.H. to additional cross-examination.

C

{¶46} Next, appellant asserts that trial counsel performed

ineffectively for failing to ask the court, before trial, to

redact an incriminating statement that appellant made during his

videotaped police interview. In the interview, appellant

admitted that he had “been accused of this” when he was 18 years

of age. Appellant contends that trial counsel’s failure to ask LAWRENCE, 23CA21 25

the court to review and redact the statement before the jury

heard it prejudiced his defense because “[t]he jury could not

‘unhear’” the statements. Appellant argues that trial counsel

should have been aware of the statements before trial and should

have filed a motion in limine to ensure that the video had been

edited before playing it before the jury.

{¶47} Here, we believe that even if trial counsel performed

deficiently by failing to file a motion in limine to redact the

statement before trial, appellant cannot establish that failing

to redact the statement before trial affected the outcome of the

proceedings. Instead, as we explain in our discussion of

appellant’s second assignment of error, our review of the record

reveals overwhelming evidence of appellant’s guilt. Moreover,

appellant even admitted that he engaged in sexual conduct with

the victim. Thus, we do not see a danger that the jury found

appellant guilty based upon a fleeting statement that he had

“been accused of this” when he was 18 years of age. See State

v. Trimble, 2009-Ohio-2961, ¶ 175 (brief, isolated remark

regarding defendant’s prior conviction did not prejudice

defendant due to “the overwhelming evidence establishing his

guilt”); State v. Ellison, 2017-Ohio-284, ¶ 31 (4th Dist.) (in a

rape case involving a child victim, no prejudicial error LAWRENCE, 23CA21 26

resulted from testimony that the defendant had been in prison

when the evidence that the defendant raped his daughter was “so

overwhelming”; the victim testified that the defendant raped

her, and the defendant confessed and apologized to the victim).

{¶48} Moreover, the trial court gave the jury a curative

instruction to disregard appellant’s statement. Courts will

generally presume that “curative instructions remove[] any

prejudice.” State v. McKnight, 2005–Ohio–6046, ¶ 220; see Greer

v. Miller, 483 U.S. 756, 766, fn. 8 (1987) (courts generally

presume that a jury follows instructions to disregard evidence

unless there is an “overwhelming probability” that the jury will

be unable to follow the instruction and a strong likelihood that

the evidence would be “devastating” to the defendant); Bruton v.

United States, 391 U.S. 123, 135 (1968) (stating that “there are

some contexts in which the risk that the jury will not, or

cannot, follow instructions is so great, and the consequences of

failure so vital to the defendant, that the practical and human

limitations of the jury system cannot be ignored”).

{¶49} Consequently, we do not agree with appellant’s

argument that trial counsel performed ineffectively for failing

to file a pretrial motion that asked the court to redact the LAWRENCE, 23CA21 27

statement in which appellant indicated that he had “been accused

of this” in the past.

D

{¶50} Appellant also asserts that trial counsel performed

ineffectively for the failure to present evidence or testimony

in his defense. Specifically, appellant faults trial counsel

for the failure to present evidence regarding his mental health

to help show his mental state at the time of the acts, which

appellant characterizes as a “defense.”

{¶51} However, even if we accept the proposition that trial

counsel performed deficiently by failing to present this type of

evidence, appellant does not identify how evidence regarding his

mental state would have caused the jury to question whether he

could be held criminally responsible for raping S.H., who was

less than 13 years of age at the time of the offenses. Indeed,

the jury found appellant guilty of rape under R.C.

2907.02(A)(1)(b),1 which is a strict-liability offense. See In

R.C. 2907.02(A)(1)(b) provides as follows:

No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: LAWRENCE, 23CA21 28

re D.B., 2011-Ohio-2671, ¶ 30 (“The plain language of the

statute makes it clear that every person who engages in sexual

conduct with a child under the age of 13 is strictly liable for

statutory rape. . . .”); see also State v. Mole, 2016-Ohio-5124,

¶ 66 (lead opinion) (R.C. 2907.02(A)(1)(b) “eliminates scienter

from the offense of rape when the victim is under the age of

13”). Thus, an offender’s mental state is immaterial for

purposes of R.C. 2907.02(A)(1)(b). See State v. Alexander,

2023-Ohio-123, ¶ 16 (3d Dist.) (“R.C. 2907.02(A)(1)(b) only has

three relevant elements: (1) the victim was not the offender’s

spouse; (2) the victim was under the age of 13 at the time of

the sexual conduct; and (3) the offender engaged in sexual

conduct with the victim.”). Consequently, it does not appear

that appellant’s mental state at the time of the offenses would

have been relevant. As such, the failure to present this type

of evidence could not have been prejudicial.

. . . . (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. LAWRENCE, 23CA21 29

{¶52} Moreover, given its irrelevance, trial counsel could

have quite reasonably decided not to present any evidence

regarding appellant’s mental health. If counsel had, the trial

court would have been well within its discretion to exclude this

type of evidence. Trial counsel also reasonably may have

thought that the jury would not have a favorable view of

appellant if he sought to use his alleged mental-health issues

as an excuse for raping a child less than 13 years of age.

{¶53} Furthermore, to the extent that appellant’s

ineffectiveness claim relies upon evidence that is not contained

in the record, we may not consider it on direct appeal. State

v. Belton, 2016-Ohio-1581 (on direct appeal, defendant cannot

rely upon evidence outside of the record); State v. Hartman, 93

Ohio St.3d 274, 299 (2001) (if establishing ineffective

assistance of counsel requires proof outside the record, then

such claim is not appropriately considered on direct appeal);

State v. Ishmail, 54 Ohio St.2d 402, 406 (1978) (the appellate

court is limited to what transpired as reflected by the record

on direct appeal).

{¶54} Accordingly, based upon the foregoing reasons we

disagree with appellant’s argument that trial counsel performed LAWRENCE, 23CA21 30

ineffectively for failing to present evidence regarding his

mental health.

E

{¶55} Appellant additionally contends that trial counsel

performed ineffectively for the failure to ask the trial court

to merge the offenses.2 He alleges that his conduct was similar

in import and committed with the same animus and motivation.

{¶56} As we explain in our discussion of appellant’s third

assignment of error, we believe that a review of the record does

not show that appellant committed eight acts of rape at the same

time and with the same animus. Instead, the evidence shows

eight distinct acts of rape. Thus, trial counsel did not

perform deficiently by failing to ask the court to merge the

offenses.

{¶57} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

2 In his brief, appellant claims that trial counsel should have asked the court to merge counts one through ten. We note, however, that the jury found appellant not guilty of counts nine and ten. We therefore construe appellant’s argument to be a challenge to counts one through eight. LAWRENCE, 23CA21 31

II

{¶58} In his second assignment of error, appellant argues

that his convictions are against the manifest weight and

sufficiency of the evidence. He contends that the testimony

does not establish that he committed eight separate counts of

rape.

{¶59} Initially, we observe that “sufficiency” and “manifest

weight” present two distinct legal concepts. Eastley v.

Volkman, 2012-Ohio-2179, ¶ 23 (“sufficiency of the evidence is

quantitatively and qualitatively different from the weight of

the evidence”); State v. Thompkins, 78 Ohio St.3d 380 (1997),

syllabus; accord State v. Jordan, 2023-Ohio-3800, ¶ 15 (lead

opinion). A claim of insufficient evidence invokes a due

process concern and raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law.

Thompkins, 78 Ohio St.3d at 386. When reviewing the sufficiency

of the evidence, our inquiry focuses primarily upon the adequacy

of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable

doubt. Id. at syllabus. The “critical inquiry” on appeal “is

whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the LAWRENCE, 23CA21 32

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-

319 (1979); e.g., State v. Jenks, 61 Ohio St.3d 259, 273, 574

N.E.2d 492 (1991). Furthermore, a reviewing court is not to

assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would

support a conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook,

J., concurring).

{¶60} Thus, when reviewing a sufficiency of the evidence

claim, an appellate court must construe the evidence in a light

most favorable to the prosecution. E.g., State v. Hill, 75 Ohio

St.3d 195, 205 (1996); State v. Grant, 67 Ohio St.3d 465, 477

(1993). A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could

not reach the conclusion that the trier of fact did. State v.

Tibbetts, 92 Ohio St.3d 146, 162 (2001); State v. Treesh, 90

Ohio St.3d 460, 484 (2001).

{¶61} “Although a court of appeals may determine that a

judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is

against the weight of the evidence.” Thompkins, 78 Ohio St.3d LAWRENCE, 23CA21 33

at 387. “The question to be answered when a manifest weight

issue is raised is whether ‘there is substantial evidence upon

which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt.’” State v. Leonard,

2004-Ohio-6235, ¶ 81, quoting State v. Getsy, 84 Ohio St.3d 180,

193–194 (1998), citing State v. Eley, 56 Ohio St.2d 169 (1978),

syllabus; accord State v. Nicholson, 2024-Ohio-604, ¶ 71. A

court that is considering a manifest-weight challenge must

“‘review the entire record, weigh the evidence and all

reasonable inferences, and consider the credibility of

witnesses.’” State v. Beasley, 2018-Ohio-493, ¶ 208, quoting

State v. McKelton, 2016-Ohio-5735, ¶ 328. The reviewing court

must bear in mind, however, that credibility generally is an

issue for the trier of fact to resolve. State v. Issa, 93 Ohio

St.3d 49, 67 (2001); State v. Murphy, 2008-Ohio- 1744, ¶ 31 (4th

Dist.). “‘Because the trier of fact sees and hears the

witnesses and is particularly competent to decide “whether, and

to what extent, to credit the testimony of particular

witnesses,” we must afford substantial deference to its

determinations of credibility.’” Barberton v. Jenney, 2010-

Ohio-2420, ¶ 20, quoting State v. Konya, 2006-Ohio-6312, ¶ 6 (2d LAWRENCE, 23CA21 34

Dist.), quoting State v. Lawson, 1997 WL 476684 (2d Dist. Aug.

22, 1997). As the Eastley court explained:

“‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * * If 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.’”

Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 60, at 191–192 (1978). Thus, an

appellate court will leave the issues of weight and credibility

of the evidence to the fact finder, as long as a rational basis

exists in the record for its decision. State v. Picklesimer,

2012-Ohio-1282, ¶ 24 (4th Dist.); accord State v. Howard, 2007-

Ohio-6331, ¶ 6 (4th Dist.) (“We will not intercede as long as

the trier of fact has some factual and rational basis for its

determination of credibility and weight.”).

{¶62} Accordingly, if the prosecution presented substantial,

credible evidence upon which the trier of fact reasonably could

conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction

is not against the manifest weight of the evidence. E.g., Eley; LAWRENCE, 23CA21 35

accord Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387,

quoting Black’s Law Dictionary 1594 (6th ed.1990) (judgment not

against the manifest weight of evidence when “‘“the greater

amount of credible evidence”’” supports it). A court may

reverse a judgment of conviction only if it appears that the

fact finder, when it resolved the conflicts in evidence,

“‘clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial

ordered.’” Thompkins, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); accord McKelton

at ¶ 328. A reviewing court should find a conviction against

the manifest weight of the evidence only in the “‘exceptional

case in which the evidence weighs heavily against the

conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting Martin,

20 Ohio App.3d at 175; accord State v. Clinton, 2017-Ohio-9423,

¶ 166; State v. Lindsey, 87 Ohio St.3d 479, 483 (2000).

{¶63} We also observe that when an appellate court concludes

that the weight of the evidence supports a defendant’s

conviction, this conclusion necessarily includes a finding that

sufficient evidence supports the conviction. E.g., State v.

Waller, 2018-Ohio-2014, ¶ 30 (4th Dist.). Thus, a determination LAWRENCE, 23CA21 36

that the weight of the evidence supports a conviction also is

dispositive of an insufficient-evidence claim. Id.

{¶64} In the case sub judice, R.C. 2907.02(A)(1)(b) contains

the essential elements of appellant’s rape offenses and provides

as follows:

No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, 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 follows:

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. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

{¶65} Here, appellant does not challenge the adequacy or

persuasiveness of the evidence to support the elements of rape.

Instead, he argues that the State did not present sufficient

evidence that he committed eight separate rape offenses and

argues, for this same reason, that his convictions for all eight

offenses are against the manifest weight of the evidence. LAWRENCE, 23CA21 37

{¶66} After our review of the record, however, we do not

believe that appellant’s eight rape convictions are against the

manifest weight of the evidence. Instead, our review reveals

that the record contains substantial, competent and credible

evidence to support a finding that he committed eight distinct

offenses. For this same reason, sufficient evidence supports

appellant’s eight rape convictions.

{¶67} We first observe that “a rape conviction may rest

solely on the victim’s testimony, if believed.” State v.

Patterson, 2014-Ohio-1621, ¶ 40 (8th Dist.). Moreover, no

requirement exists “that a rape victim’s testimony be

corroborated as a condition precedent to conviction.” State v.

Lewis, 70 Ohio App.3d 624, 638 (4th Dist.1990); accord State v.

Johnson, 2006-Ohio-6404, ¶ 53 (“[c]orroboration of victim

testimony in rape cases is not required”); State v. Horsley,

2018-Ohio-1591, ¶ 74 (4th Dist.) (quoting Patterson and Lewis

for the foregoing two propositions); State v. Barnes, 2014-Ohio-

47, ¶ 31 (2d Dist.) (physical evidence need not corroborate

“testimonial evidence of sexual abuse”).

{¶68} Furthermore, simply because a victim may delay

reporting sexual abuse does not mean that the victim lacks

credibility. Instead, “the jury [i]s entitled to consider the LAWRENCE, 23CA21 38

credibility of the victim’s testimony and [the victim’s]

explanation for the delayed disclosure.” State v. Lykins, 2019-

Ohio-3316, ¶ 50 (4th Dist.); see State v. Bones, 2015–Ohio–784,

¶ 33–34, 40 (2d Dist.) (concluding that defendant’s rape

convictions are not against the manifest weight of the evidence

even though victim did not report abuse until several years

later).

{¶69} In the case sub judice, the young victim testified to

extensive sexual abuse that appellant committed between March

2020 and early 2021. She recounted separate incidents in which

appellant engaged in sexual conduct with her, whether through

vaginal intercourse, fellatio, or cunnilingus. The victim

stated that the first encounter occurred in March 2020,

described the time of day that it occurred (nighttime) and the

location (her mother’s bedroom). She further indicated that

appellant touched her “lower-part areas” “under her clothes.”

We observe, however, that the victim did not specifically state

that appellant digitally penetrated her vagina with his

finger(s). Instead, she agreed with the prosecutor’s

characterization of appellant’s conduct as “inappropriate.”

{¶70} The second incident followed “a couple of days later.”

Like the first event, she and appellant were in her mother’s LAWRENCE, 23CA21 39

bedroom. Appellant instructed her to get on the bed, remove her

clothes, and he placed his penis inside her vagina. She recalls

being in “a lot of pain.” The victim reported that from that

point on, appellant engaged in sexual conduct with her four to

five times per week.

{¶71} The victim also testified that additional acts of

intercourse occurred either in her mother’s bedroom or in the

victim’s bedroom, and that all of the events, except for one,

happened at night, when her mother was not home and her sisters

were sleeping. The victim indicated that appellant would ask

her to either enter his bedroom or he would enter her bedroom,

and then, he would start by “touching” her in her “lower part

areas” before he engaged in intercourse.

{¶72} The victim additionally described an occasion when

appellant told her that he would give her cunnilingus for her

12th birthday present. She stated that after he completed this

act, he engaged in vaginal intercourse. The victim reported

that appellant ejaculated on this occasion, but it was not the

first time that he had done so. She explained that appellant’s

pattern was to ejaculate on the floor and then clean it up the

next day. She stated that appellant ejaculated “[p]retty much

every time.” LAWRENCE, 23CA21 40

{¶73} The victim further stated that appellant performed

cunnilingus on additional occasions, but she could not recall

the number–only that it “was more than twice.”

{¶74} Appellant also asked the victim to perform fellatio,

which she did, but “[o]nly once.” The victim explained that

this event occurred during the day, when her mother was asleep

and her sisters awake. She and appellant were in the bathroom,

and appellant asked her to perform fellatio. When she did so,

her sisters knocked on the door and interrupted.

{¶75} The victim further explained that after her mother

installed cameras inside the house to keep tabs on appellant’s

conduct, appellant had vaginal intercourse with her on the back

porch, outside the purview of the cameras. She reported that

this incident occurred in 2021 and was the last time appellant

sexually assaulted her.

{¶76} Furthermore, we point out that appellant admitted that

he engaged in vaginal intercourse with the victim, but claimed

it happened only once. He also incredulously claimed that the

vaginal intercourse was “an accident.” Appellant stated that it

occurred in the victim’s bedroom, but he could not recall when

he thought that it might have happened two months earlier. LAWRENCE, 23CA21 41

Appellant additionally stated that the victim performed fellatio

on him before they engaged in intercourse.

{¶77} In total, the victim testified that appellant sexually

assaulted her “close to a hundred or over” times. Even if the

victim did not describe each event in excruciating detail, her

testimony contains enough detail regarding specific and distinct

events to establish that appellant committed many separate acts

of rape. Her testimony describes the following instances of

sexual conduct: (1) a few days after appellant first touched the

victim “inappropriately,” appellant had vaginal intercourse with

the victim; (2) additional acts of vaginal intercourse occurred

in her bedroom or in her mother’s bedroom “four or five times”

per week; (3) on the victim’s 12th birthday, appellant performed

cunnilingus; (4) also on the victim’s 12th birthday, appellant

engaged in vaginal intercourse with the victim, see generally

State v. Nicholas, 66 Ohio St.3d 431, 435 (1993) (three separate

instances of vaginal intercourse, cunnilingus, and digital

penetration of the vaginal cavity constitute separate crimes

with a separate animus, and thus, they do not constitute allied

offenses of similar import); (5) appellant performed cunnilingus

on at least two other occasions (i.e., “more than twice”); (6)

the victim performed fellatio on appellant; and (7) appellant LAWRENCE, 23CA21 42

engaged in sexual intercourse with the victim on the back porch.

The victim’s testimony thus constitutes ample evidence to

establish, beyond a reasonable doubt, that appellant committed

eight distinct acts of rape. State v. Buckland, 2023-Ohio-2095,

¶ 16 (12th Dist.) (upholding conviction for three counts of

gross sexual imposition when victim “testified that she was

repeatedly subjected to sexual abuse, [and] she detailed three

distinct incidents of sexual abuse, in three distinct areas of

her home”); State v. Palmer, 2021-Ohio-4639, ¶ 28 (7th Dist.)

(upholding 12 rape convictions and five gross sexual impositions

convictions when victim testified that appellant “forced his

penis inside of her vagina at least 10 times, put his mouth on

her ‘private area’ more times than she could count, but more

than 10 times and less than 15, and digitally penetrated her

more than five times”); State v. Artz, 2015-Ohio-5291, ¶ 35 (2nd

Dist.) (victim’s testimony adequately showed that defendant

engaged in five distinct acts); State v. Clemons, 2011-Ohio-

1177, ¶ 42 (7th Dist.) (victim’s testimony that “sexual conduct

occurred ‘way over ten’ times” and that victim and defendant

engaged in “sexual intercourse on the living room couch more

than ten times” adequately supported defendant’s eight

convictions for sex-related offenses); State v. Willard, 144 LAWRENCE, 23CA21 43

Ohio App.3d 767, 771 (10th Dist.2001) (the victim’s testimony

that over a five-year period, the defendant sexually assaulted

her approximately one thousand times, along with further details

about some of those events, adequately supported eight rape

convictions).

{¶78} Additionally, appellant confessed that the victim

performed fellatio and that they subsequently engaged in vaginal

intercourse. Appellant stated that this event occurred about

two months earlier and that it occurred in the victim’s bedroom.

Thus, appellant actually admitted that he committed two distinct

acts of rape.

{¶79} We also observe that the record reflects that the jury

thoughtfully deliberated the matter before it reached its

verdict. The jury asked a question to clarify whether a

witness’s testimony constituted adequate evidence to find a

defendant guilty. The jury also asked whether it needed to find

“ten specific instances or dates” to find appellant guilty of

all ten counts. These questions show that the jury carefully

evaluated the evidence that pertained to each count. The jury

weighed the victim’s testimony, along with appellant’s

statements made during his police interview, and ultimately LAWRENCE, 23CA21 44

found the testimony sufficiently credible to conclude that

appellant committed eight rape offenses.

{¶80} Here, we find nothing in the record to indicate that

the jury lacked a rational basis to credit the victim’s

testimony. In fact, the police officer’s description of the

victim’s reaction when the officer arrived at her house to

discuss the allegations lends credence to the victim’s account

that appellant subjected her to repeated acts of rape over a

prolonged period of time. The officer testified that the victim

was lying in the street and crying inconsolably for 20 to 30

minutes. The jury was entitled to infer that the victim’s

conduct established that she had experienced significant trauma

as a result of appellant’s repeated acts of rape.

{¶81} Additionally, the jury was entitled to discredit

appellant’s testimony that he and the victim had engaged in

“consensual” sexual conduct only once, especially given his

incredulous claim that it was “more of an accident.”

{¶82} Consequently, based upon the foregoing reasons, we do

not believe that the case at bar is one of those exceptional

cases in which the evidence weighs heavily against appellant’s

eight rape convictions. We therefore disagree with appellant

that his convictions are against the manifest weight of the LAWRENCE, 23CA21 45

evidence. We likewise disagree that the record fails to contain

sufficient evidence to support his eight rape convictions.

{¶83} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶84} In his third assignment of error, appellant asserts

that his sentence is contrary to law. In particular, appellant

contends that, because the State failed to establish that

appellant committed the eight rape offenses separately and with

a separate animus, the trial court should have merged the

offenses and imposed “a single sentence.”3

{¶85} We initially observe that appellant did not argue at

sentencing that the trial court should merge any of the rape

offenses. Thus, appellant forfeited all but plain error. State

v. Bailey, 2022-Ohio-4407, ¶ 7; State v. Rogers, 2015-Ohio-

2459, ¶ 21, 28; State v. Linkous, 2013-Ohio-5853, ¶ 41 (4th

Dist.). Appellate courts, nevertheless, have discretion to

consider “[p]lain errors or defects affecting substantial

rights.” Crim.R. 52(B); e.g., Risner v. Ohio Dept. of Natural

3 Appellant limits his “contrary to law” argument to a claim that the trial court should have merged the offenses. We limit our review accordingly. LAWRENCE, 23CA21 46

Resources, Ohio Div. of Wildlife, 2015-Ohio-3731, ¶ 27. “To

prevail under the plain-error standard, a defendant must show

that an error occurred, that it was obvious, and that it

affected his substantial rights,” i.e., the trial court’s error

must have affected the outcome of the trial. State v.

Obermiller, 2016-Ohio-1594, ¶ 62, citing State v. Barnes, 94

Ohio St.3d 21, 27 (2002). However, even when a defendant

demonstrates that a plain error or defect affected his

substantial rights, the Ohio Supreme Court repeatedly has

emphasized that courts should “notice plain error ‘with the

utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” State v. Barnes,

94 Ohio St.3d 21, 27 (2002), quoting State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus; e.g., State v.

Bailey, 2022-Ohio-4407, ¶ 14 (“the plain-error doctrine is

warranted only under exceptional circumstances to prevent

injustice”).

{¶86} R.C. 2941.25 specifies when a defendant may be

convicted of multiple counts under the same indictment or

information. The statute provides:

(A) Where the same conduct by [a] defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may LAWRENCE, 23CA21 47

contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶87} The Ohio Supreme Court has “consistently recognized

that the purpose of R.C. 2941.25 is to prevent shotgun

convictions, that is, multiple findings of guilt and

corresponding punishments heaped on a defendant for closely

related offenses arising from the same occurrence.” State v.

Johnson, 2010–Ohio–6314, ¶ 43, citing Maumee v. Geiger, 45 Ohio

St.2d 238, 242 (1976). R.C. 2941.25(A) thus allows only a

single conviction when the same conduct constitutes allied

offenses of similar import.

{¶88} Courts that are determining whether offenses are

allied offenses of similar import within the meaning of R.C.

2941.25 must answer three essential questions: “(1) Were the

offenses dissimilar in import or significance? (2) Were they

committed separately? and (3) Were they committed with separate

animus or motivation?” State v. Earley, 2015-Ohio-4615, ¶ 12,

citing Ruff at ¶ 31 and paragraphs one, two, and three of the LAWRENCE, 23CA21 48

syllabus. “An affirmative answer to any of the above will

permit separate convictions.” Id.

{¶89} Offenses are of dissimilar import “if they are not

alike in their significance and their resulting harm.” Ruff at

¶ 21. Additionally, “a defendant’s conduct that constitutes two

or more offenses against a single victim can support multiple

convictions if the harm that results from each offense is

separate and identifiable from the harm of the other offense.”

Id. at ¶ 26. Thus, “two or more offenses of dissimilar import

exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if

the harm that results from each offense is separate and

identifiable.” Id. at ¶ 23.

{¶90} Different types of rape committed within the same

sexual assault such as “vaginal intercourse, cunnilingus, and

digital penetration constitute separate crimes” “with a separate

animus,” and thus, “they do not constitute allied offenses of

similar import.” Nicholas, 66 Ohio St.3d at 435; accord State

v. Stites, 2020-Ohio-4281, ¶ 87 (1st Dist.) (“Different sexual

acts are considered separate offenses.”); State v. Townsend,

2019-Ohio-1134, ¶ 70 (8th Dist.) (“rape involving different

types of sexual activity, such as vaginal intercourse, digital LAWRENCE, 23CA21 49

penetration, and oral intercourse, arise from distinct conduct

and are not considered allied offenses, even when committed

during the same sexual assault”); State v. Prince, 2021-Ohio-

4475, ¶ 15 (3rd Dist.) (the defendant’s “act of forcing the

victim to perform fellatio on him followed by his act of forcing

the victim to have intercourse (with him) demonstrates distinct

and separate acts that occurred in a close proximity of time

during an extended assault on the victim.”); State v. Miller,

2017-Ohio-7986, ¶ 46 (6th Dist.) (noting “that it is well-

established that instances of vaginal rape and anal rape may

form the basis for two separate rape convictions”); see State v.

Jones, 2010-Ohio-2243 (5th Dist.) (unlawful sexual conduct with

a minor by digital penetration and cunnilingus were not allied

offenses of similar import even when committed in a short time

span); see also State v. Peace, 2018-Ohio-3742, ¶ 29 (11th

Dist.) (kissing a bruise on a child’s hip is a distinct act from

inserting tongue in child’s vagina); State v. Brindley, 2002-

Ohio-2425, ¶ 11, 13 (10th Dist.) (holding that touching the

victim’s breast, “sucking” the victim’s breast, and touching the

victim’s vaginal area supported three convictions for gross

sexual imposition). LAWRENCE, 23CA21 50

{¶91} Furthermore, separate instances of rape do not

constitute allied offenses of similar import. See State v.

Koster, 2024-Ohio-57, ¶ 31 (4th Dist.) (30 counts of unlawful

sexual conduct with a minor were not allied offenses of similar

import when testimony established, in part, that the defendant

had engaged “in oral sex with [the victim] ‘over a hundred’

times,” “vaginal sexual conduct” “‘a hundred or more’ times,”

and “anal sex ‘twice’”); State v. Waters, 2003-Ohio-4624 (5th

Dist.) (evidence that the defendant repeatedly engaged in

vaginal intercourse, digital penetration, fellatio, and

cunnilingus with three different victims over a three-year

period established that the defendant committed separate acts of

rape and unlawful sexual conduct with a minor).

{¶92} In the case sub judice, as we explained in our

discussion of appellant’s second assignment of error, the

evidence adduced at trial supports a conclusion that appellant

committed eight distinct acts of rape. Appellant’s eight rape

convictions, therefore, are not allied offenses of similar

import that merge for purposes of sentencing. See State v.

Lykins, 2019-Ohio-3316, ¶ 63 (4th Dist.) (evidence established

that defendant committed three separate acts of rape, so the

trial court did not err by failing to merge offenses). LAWRENCE, 23CA21 51

Consequently, we do not believe that the trial court erred by

convicting appellant of eight rape offenses rather than merging

some or all of the offenses.

{¶93} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. LAWRENCE, 23CA21 52

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Lawrence County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.