[Cite as State v. Freeman , 2021-Ohio-734.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY STATE OF OHIO Plaintiff-Appellee

v. ANTHONY L. FREEMAN Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-33 Trial Court Case No. 2019-CR-521 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 12th day of March, 2021.

. . . . . . . . . . . MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecut ing Attorney, Greene County Prosecutor’s Office, Appellate Division, Greene C ounty Courts Building, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 2541 Shiloh Spring s Road, Dayton, Ohio 45426 Attorney for Defendant-Appellant

. . . . . . . . . . . . . EPLEY, J.-2-

{¶ 1} Defendant-Appellant Anthony L. Freeman was found guilty by a Gr eene County jury of rape, in violation of R.C. 2907.02(A)(2), and se ntenced to three years in prison. Freeman alleges that the trial court erred in denying h is motions for a mistrial and then a new trial, that the guilty verdict was not supported by sufficient evidence and was against the manifest weight of the evidence, and that the court erred by admitting certain evidence. Finally, he avers that the accumulation of all the er rors deprived him of a fair trial. For the following reasons, the trial court’s judgment wi ll be affirmed. I. Facts and Procedural History {¶ 2} On February 20, 2019, C.B., a then-18-year-old freshman at Cent ral State University, was in the math building on campus when she met Fre eman, another Central State student. The two started talking, decided to exchange num bers, and then C.B. went to class. {¶ 3} Later that day, C.B. and Freeman exchanged texts and Freeman su ggested that she come over to his apartment later to watch a movie. C.B . was apprehensive about meeting up at his residence because they had just met, but afte r more texts back and forth, the plan was made for C.B. to come over. It also was dec ided that C.B. would spend the night, however she made it clear that they would not be “sl eeping with each other.” Trial Tr. at 691. {¶ 4} That evening, Freeman picked C.B. up at her dorm and drove back to the apartment he shared with several other people. They entered thr ough a back door, and while C.B. did not see any other people there at the time, she heard what she believed to be someone in another room playing video games. After a brief c hat about having a-3- roommate who attended Wright State University, Freeman escorted C.B. to his room and closed the door behind them. C.B. testified at trial that all t he lights were out in the room and the temperature was quite warm. The temperature in the room led C.B. to shed her jacket and sweatpants, leaving her wearing a pair of running sh orts (with a built-in liner) and a t-shirt. Evidence was presented at trial that she was not wearing a bra or panties. {¶ 5} C.B. and Freeman started watching a movie on his computer. She was sitting on the bed and Freeman was positioned laying down behind her. T he two chatted throughout the first part of the movie. C.B. testified that the y talked about where they were from, their birthdays and astrological signs, and that she had recently done her own hair, leading to a sore back. Freeman offered a massage, but C.B. rej ected the overture. {¶ 6} After watching the movie a li ttle longer, Fr eeman, still behind C.B., removed her shirt, leaving her unclothed from the waist up because she was not wearing a bra. C.B. was surprised by the action and promptly laid down on her stomach so that she would not be exposed. With C.B. laying down on her stomach, Fre eman straddled her back and began to massage her. Next, he tried to take off her s horts, but this action was met with resistance from C.B., who told him to get off. Freeman complied, which allowed C.B. to get off the bed. She retrieved her shirt and positioned herself facing the wall so that she could get dressed with some degree of privacy. {¶ 7} Freeman then got off the bed and walked toward C.B. He managed to relocate her so that she fell backward onto the bed, and he for cefully removed her clothes. For the next 10-15 minutes, Freeman engaged in vaginal intercou rse with C.B. She testified that, throughout the encounter, she attempted to push him away and told him to stop, but to no avail. When the ordeal was over, Freeman went t o the bathroom and C.B.-4- got dressed. When he came back, C.B. told Freeman to take her h ome. Once back on campus, Freeman said, “I’m sorry that tonight was rough for you , but I had a good time.” {¶ 8} When she arrived back in her dorm room, C.B. made several phone calls. The first person she talked to was her friend named Jazzy. She and another friend, TJ, quickly got to her room. C.B. also contacted her mother, who ru shed over from out of town. Campus police and Greene County deputies were then notifi ed, and the decision was made to drive to Greene Memorial Hospital for a sexual assa ult examination. {¶ 9} Based on the identification and information received from C.B., Greene County deputies, led by Detective Jonathan Emery, were able to obtain search warrants for Freeman’s apartment and DNA. The information gained from th e execution of those warrants ultimately led to Freeman’s arrest and indictment on r ape (R.C. 2907.02(A)(2)) and gross sexual imposition (GSI) (R.C. 2907.05) charges. {¶ 10} After several COVID-19 related delays, the case proceeded to tr ial on July 7, 2020. Almost immediately defense counsel alleged irregularit ies. Before any witnesses were called, defense counsel moved for a mistrial due to allege d misconduct between a potential juror and a State’s witness. The motion was denied, a nd a jury was selected. The State presented nine witnesses, including law enforcement, two forensic scientists, a sexual assault nurse examiner (SANE), a social worker, a frie nd of C.B., and C.B. herself. {¶ 11} Defense counsel made several motions during trial. At the close of the State’s case-in-chief, Freeman’s trial counsel made a partially successful Crim.R. 29 motion. The GSI count was dismissed, but the rape charge remain ed. He also unsuccessfully objected to the admission of several pieces of e vidence, including the-5- SANE kit and its contents. Freeman did not testify. {¶ 12} After deliberating, the jury found Freeman guilty of rape and a disposition date was set. In the meantime, defense counsel filed a motion f or a new trial, alleging irregularity in creating the jury pool. Both sides briefed and argued the matter, but the court ultimately denied Freeman’s motion. The court then senten ced him to three years in prison and classified him as a Tier III sex offender. Freema n now raises five assignments of error.

II. Jury pool selection {¶ 13} In his first assignment of error, Freeman contends that he shou ld have been granted a new trial because the pr ocedures used to create the j ury pool, which excused some people 65 years and older, violated his Sixth Amendment ri ghts. We disagree. {¶ 14} R.C. 2313.16 and Crim.R. 24 control the selection of juries. Cr im.R. 24(F) states that either side “may challenge the array of petit juror s on the ground that it was not selected, drawn or summoned in accordance with the law. A c hallenge shall be made before the examination of the jurors pursuant to division (B) o f this rule and shall be tried by the court.” Crim.R. 24(F). Neither an array of petit jurors nor a jury’s verdict can be set aside because the jury commissioner has returned such a jury or juror in any informal or irregular manner, “if in the opinion of the court the irregular ity is unimportant and insufficient to vitiate the return.” Id

. {¶ 15} There is no question that Freeman’s challenge to the jury array was made after the examination of the jurors. In fact, it was not raised unti l after the trial had been completed. Because the challenge was untimely, Freeman has waiv ed the issue. See-6- Sate v. Curry , 2d Dist. Greene No. 2012-CA-50, 2014-Ohio-3836, ¶ 30. Neverth eless, even if the argument were not waived, the argument fails on the merits. {¶ 16} Selecting a jury from a representative cross-section of the com munity is an important element of the Sixth Amendment right to jury trial. Taylor v. Louisiana , 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Sixth Amendm ent does not, however, require that juries “mirror the community and reflect the vario us distinctive groups in the population.” Id . at 538. It does demand, though, that the “jury wheels, pools of names, panels or venires from which the juries are drawn must not syst ematically exclude distinctive groups in the community.” Id

. {¶ 17} The United States Supreme Court in Duren v. Missouri , 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), held that to establish a prim a facie violation of the cross-section requirement, a defendant must demonstrate that (1 ) the group purported to be excluded is a “distinctive” group in the community; (2) the representation of the group in venires from which juries are picked is not fair and reasona ble in relation to the number of those persons in the community; and (3) the underrepresentat ion is because of the systematic exclusion of the group in the selection process. Id . at 364. If there is a prima facie showing, the State bears the burden of “justifying this i nfringement by showing attainment of a fair cross section to be incompatible with a si gnificant state interest.” Id

. at 368. {¶ 18} Freeman cannot meet even the first Duren prong. Freeman seems to argue that the 65 years and older age bracket is a “distinctive” grou p in the community. He does not, however, provide any information to demonstrate its distin ctiveness. For instance, in Duren , the appellant established that 54% of the adults in the count y were women but-7- that only about half that number were summoned for jury duty in the months immediately preceding his trial. Id . at 357. He further demonstrated that his male-only jury was c hosen from a panel of 53, of whom only five were females. Id . Freeman, on the other hand, simply states that jurors over 65 who expressed COVID concerns were systematically excluded. {¶ 19} The Ohio Supreme Court has given further guidance. “In determin ing whether a group excluded from jury service is a distinctive one , courts have looked to community prejudices toward the group.” State v. Puente , 69 Ohio St.2d 136, 139, 431 N.E.2d 987 (1982). See also Herdandez v. Texas , 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). There is nothing in the record that demonstrates ol der Greene County residents who have COVID-19 concerns are distinctive or that th ere is prejudice toward them. See also Ellis v. State , 867 P.2d 1289, 1294 (Ok.App.1992) (persons over 70 years of age are not a distinctive group). {¶ 20} Finally, it cannot be said that the trial court abused its disc retion. The decision to grant a new trial is within the sound discretion of the trial court, and this Court will not disturb the decision absent an abuse of discretion. State v. Hartman , 2016-Ohio2883, 64 N.E.3d 519, ¶ 35 (2d Dist.). “An abuse of discretion i mplies an arbitrary, unreasonable, or unconscionable attitude on the part of the cou rt.” Id . This decision was none of those. {¶ 21} On March 9, 2020, Governor Mike DeWine declared a state of emer gency (Executive Order 2020-01D) in response to the COVID-19 pandemic . A few weeks later, on March 20, 2020, the Ohio Supreme issued a document entitled: Guidance to Local Courts COVID-19 Public Health Emergency. The Supreme Court foll owed up with a-8- series of guidance bulletins that left “[to] the sound discreti on of the local judiciary how best to manage the daily challenges that the COVID-19 pandemic ha[d] foisted on local courts.” State ex rel. McArtor v. Kovack , 158 Ohio St.3d 1472, 2020-Ohio-1489, 143 N.E.3d 508, ¶ 14 (Kennedy, J., dissenting). {¶ 22} The Chief Justice, along with the Ohio Jury Trial Advisory Grou p, also released a report that gave recommendations on how to best resu me jury trials amid the pandemic. The report recommended that jurors share health conce rns before trial, that remote juror questionnaires be used, that COVID concerns should allow for deferment as a medical condition, and that older and high risk jurors should be excused. Standards and Practices Essential to the Resumption of Jury Trials in Ohio at 10-12. {¶ 23} In this case, the steps the trial court took to ensure the heal th and safety of all parties involved were reasonable. According to the testimon y of the jury commissioner and the statements made by the court, all potential jurors were called to discuss COVID19 precautions and to ensure there were no concerns. Jurors age d 65 and older with concerns about the disease were excused. However, if they did n ot have safety concerns, they reported for duty as scheduled. Jurors under 65 with conce rns were dismissed with a doctor’s note. The court reasoned that this procedure was ado pted for two reasons – the health and safety of all parties involved, and so that ther e were no distracted jurors worrying about their health and not the testimony being present ed to them. {¶ 24} We take no position on the propriety of these steps in normal t imes, but in the midst of a pandemic, the actions were reasonable, and the t rial court did not abuse its discretion. The first assignment of error is overruled.-9- III. Allegations of Jury Misconduct {¶ 25} Freeman next argues that he was entitled to a mistrial based on alleged misconduct by a prospective juror and a witness for the State. “Mistrials need to be declared only when the ends of justice so require, and a fair t rial is no longer possible.” State v. Patterson , 188 Ohio App.3d 292, 2010-Ohio-2012, 935 N.E.2d 439, ¶ 69 (2d Dist.). The decision is within the trial court’s discretion, an d to overturn it, an appellant must demonstrate the decision was arbitrary, unreasonable, or u nconscionable. Id

. {¶ 26} According to the record, at some point during the lunch break – between when the jury was selected and when testimony began – the attor neys from both sides observed a State’s witness sitting on a bench outside of the co urtroom talking to another man. Because the man was wearing a mask, neither attorney recog nized him, but both felt the need to investigate further. {¶ 27} The lead detective in the case, Jonathan Emery, who was also in the hallway at that time, went to inquire. He was informed that the individual talking with the witness was a juror. Detective Emery told the man that he could not be sitting next to the witness, so the juror got up and went into the jury room. {¶ 28} Detective Emery walked into the jury room (where several empane led jurors were waiting) to further inquire about the situation. The detec tive returned to the hallway with the man a short time later and reported to the attorneys t hat the man was Juror Number 12, someone who had already been excused. {¶ 29} After Juror Number 12 left the building, the court was informed , and the jury was brought back into the courtroom. Once seated inside, the co urt asked who had been in the jury room when Juror Number 12 and Detective Emery came in. Three jurors raised-10- their hands and were questioned individually. All three testifi ed that Juror Number 12 said nothing about the case, and that the incident would not keep th em from being fair and impartial. Further, all three testified that they did not hear Detective Emery say anything when he was in the room. After the testimony of the jurors, def ense counsel asked for a mistrial. The court denied the motion but did give a curative i nstruction to the jury about the incident. {¶ 30} Freeman argues that the conversations - between the excused jur or and the State’s witness in the hallway; between the excused juror a nd the empaneled jurors in the jury room; and between Detective Emery and the excused j uror – all were prejudicial. The record, however, belies that argument. {¶ 31} First, whatever was said between the State’s witness and Juror Number 12 was not a conversation with an actual, empaneled juror. It is u ndisputed that Juror Number 12 had already been dismissed by that time. With regard to conversations that took place in the jury room, one of the jurors present testifie d that Juror 12 said “nothing to do with why we’re here.” Trial Tr

. at 164. Another juror present testified that: He was talking about – he was, he said he was outside sitting o n a bench and a sheriff or someone from – a deputy came and sat near him; and even though they weren’t talking about the case at all, it sounded l ike he was going to have to be removed. That’s the extent of the conversation. Trial Tr. at 166-167. Finally, a third juror told the court, “I heard nothing about the case. I heard the gentleman outside saying, he had been called and canc eled. Then he came in and sat down. * * * I heard nothing about the case.” Trial Tr. at 167-168. {¶ 32} None of the jurors heard Detective Emery say anything.-11- {¶ 33} The interactions between Juror Number 12, the witnesses, and th e three empaneled jurors, while arguably improper, were not prejudicial to Freeman. The conversations could not have been about the case (testimony had not yet begun), and while there should not be co-mingling between witnesses and jur ors, Freeman has failed to demonstrate that a fair trial was no longer possible. The tr ial court’s decision to deny the mistrial motion was not an abuse of discretion. The second assignment of error is overruled.

IV. Sufficiency and Weight of the Evidence {¶ 34} In his third assignment of error, Freeman argues that his convi ction was not supported by sufficient evidence and was against the manifest w eight of the evidence. {¶ 35} “[S]ufficiency is a term of art meaning that legal standard whi ch is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). It is essentially a test of ad equacy. “Whether the evidence is legally sufficient to sustain a verdict is a questi on of law.” Id. {¶ 36} “An appellate court’s function when reviewing the sufficiency o f the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant's guilt beyond a reasonable doubt.” State v. Marshall , 191 Ohio App.3d 444, 2010-Ohio-5160, 946 N.E.2d 762, ¶ 52 (2d Dist.). “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime proven bey ond a reasonable doubt.”-12- Id. {¶ 37} “A weight of the evidence argument challenges the believabilit y of the evidence and asks which of the competing inferences suggested b y the evidence is more believable or persuasive.” (Citation omitted.) State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio2179, 972 N.E.2d 517, ¶ 19. When reviewing an argument challen ging the weight of the evidence, an appellate court may not substitute its view for th at of the trier of fact. Rather, we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, i n resolving conflicts in the evidence, the finder of fact “clearly lost its way and created such a manifest miscarriage of justice” that the conviction must be reversed and a new tria l ordered. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 38} Because the trier of fact sees and hears the witnesses at trial , we must defer to the factfinder’s decisions whether, and to what extent, to c redit the testimony of particular witnesses. State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The fact that the evidence is subj ect to different interpretations does not render the conviction against the mani fest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstanc es. Martin at 175. {¶ 39} Although sufficiency and manifest weight are separate legal con cepts, manifest weight can subsume sufficiency in conducting the analy sis – finding that a conviction is supported by the manifest weight of the evidence necessarily comprises a-13- finding of sufficiency. State v. Sizemore , 2d Dist. Montgomery No. 28151, 2019-Ohio4186, ¶ 16. As a result, “a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficien cy.” State v. Braxton , 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

A. Sufficiency {¶ 40} Both sides agree that Freeman and C.B. engaged in sexual conduc t on the late night or early morning hours of February 20-21, 2019. Free man asserts that the conduct was consensual. {¶ 41} Freeman was charged with rape, a violation of R.C. 2907.02(A)(2 ). According to the statute, “[n]o person shall engage in sexual c onduct with another when the offender purposely compels the other person to submit by fo rce or threat of force.” R.C. 2907.02(A)(2). A victim does not need to prove physical re sistance. R.C. 2907.02(C). Accordingly, the crime is completed “only if the pe rpetrator purposely compels the other to submit by force or threat of force.” State v. Wilkins , 64 Ohio St.2d 382, 385, 415 N.E.2d 313 (1980). {¶ 42} We have previously held in rape cases that to prove the defenda nt acted purposely, “the State must prove that it was the defendant’s in tention to engage in sexual conduct by forcefully compelling the other person to submit to the sexual conduct.” State v. Hartman , 2016-Ohio-2883, 64 N.E.3d 519, ¶ 26 (2d Dist.); In re S.W.E ., 2d Dist. Greene No. 2020-CA-27, 2021-Ohio-80, ¶ 31. Evidence of consent (or lac k thereof) is important to the inquiry. It is not a static concept, though. Rape can be established when the two participants start the encounter on a consensual basis, “but th e consent is revoked by-14- words, actions or conduct that clearly communicates non-consent , the defendant fails to respect the change in consent, and purposely p roceeds to engage in sexual conduct through force or threat of force evidenced by violence, physica l restraint, or some type of coercive or threatening conduct that creates a belief or fear t hat physical force will be used if the victim does not consent.” Id . at 32. {¶ 43} Here, the State’s evidence established that C.B. did not consen t to the sexual encounter and that she made that fact clear from the ear ly stages of their communication, texting that they would not be “sleeping with ea ch other.” She testified that her text meant they would not be having sex. Once at Freem an’s apartment, when he straddled C.B. and attempted to remove her shorts, she told him to get off. When he pushed her back onto the bed and removed her clothes, C.B. test ified that she told Freeman to stop. When he vaginally penetrated her, C.B. told hi m to stop and tried to push him away. {¶ 44} Throughout her time on the stand, C.B. maintained that Freeman did not have consent to do any of the things he did to her, as illustra ted in the following exchange with the prosecutor: Prosecutor: [In the] late night hours of February 20th, early m orning hours of February 21st of 2019, did you want to engage in sex with De fendant? C.B.: No. Prosecutor: What did you tell him to indicate you did not want to have sex with him? C.B.: I told him I didn’t want to have sex with him. I told him no. I told him to stop.-15- Prosecutor: Once? C.B.: Multiple times. Trial Tr. at 758. {¶ 45} Freeman, though, argues that he had consent; he points to the facts that C.B. was not wearing a bra or panties and that she packed an ov ernight bag to buttress his assertion. Even if there were not innocent explanations – C .B. testified that she packed the bag because she had class early in the morning, and the sho rts were running shorts that had a built-in liner that acted as underwear – Freeman did not stop his advances when C.B. asked him to, then told him to, then pleaded with him to. Neither did he stop when she tried to push him off. {¶ 46} He also contends that the physical evidence did not point to fo rce being applied, rather it demonstrated a consensual encounter. While F reeman is correct that there did not appear to be vaginal injuries, this topic was add ressed by Samantha Griffith, the SANE nurse who examined C.B. shortly after the incident. Sh e testified that a lack of visible, physical injuries, did not mean there was no assault. “Most of the time we do not see vaginal injuries. * * * Younger women have a higher estroge n level. * * * The skin is more elastic, and there is a lot more lubrication in that area, so most of the time you won’t see * * * vaginal injuries on younger women.” Trial Tr. at 322. {¶ 47} Freeman also argues that C.B.’s actions after the incident – ch atting with Freeman on the car ride home, not alerting a nearby security gu ard, texting Freeman once she returned to her room – were signs of a consensual enco unter. This contention was addressed at trial as well. Debbie Matheson, the executive director of the Family Violence Prevention Center, testified that there is a range of ways that someone might-16- behave after sexual violence. “A victim’s experience is their o wn * * * and when they feel safe and ready, they will communicate with someone that they be lieve they are safe to communicate with, so that may not be the first person they see. It may not be the first person that is, you know, near them.” Trial Tr. at 621. {¶ 48} The jury had before it ample evidence that C.B. did not consent to sex of any kind, and that Freeman purposely compelled her to submit by force. The verdict was supported by sufficient evidence. B. Manifest Weight {¶ 49} We turn now to the manifest weight of the evidence. Because the re were no issues in this case regarding identity – Freeman fully admit s he was there and had sex with C.B. – the dispositive issue for the jury was simply if C. B. was credible. They apparently found her testimony credible and convicted Freeman o f rape. {¶ 50} A case should not be reversed as being against the manifest wei ght of the evidence except “in the exceptional case in which the evidence weighs heavily against the conviction.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. This Court has said that it will not substitute its judgment for that of the trier of fact on the issue of witness credibility “unless it is paten tly apparent that the trier of f act lost its way in arriving at its verdict.” State v. Smith , 2d Dist. Montgomery No. 25462, 2013-Ohio-5345, ¶ 16. {¶ 51} We cannot say that the jury lost its way. C.B. maintained throu ghout her testimony that she did not consent to sex with Freeman. Her sto ry remained substantially the same from the time she first met with Detective Emery short ly after the incident, all the way through cross examination at trial. The jury believed h er and we will not second guess that determination.-17- {¶ 52} The verdict was neither based in insufficient evidence nor agai nst the manifest weight of the evidence. The third assignment of error is overruled.

V. Admission of exhibits {¶ 53} Freeman’s fourth argument is that the trial court committed rev ersible error when it admitted the SANE kit and its contents into evidence. {¶ 54} “The admission or exclusion of evidence rests within the sound discretion of the trial court.” State v. Sage , 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Disagreements about the admission of evidence are decided under an abuse of discretion standard. Id . at paragraph two of the syllabus. “A trial court abuses its d iscretion when it makes a decision that is unreasonable, unconscionable, or arbit rary.” State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. This i s a deferential review and “does not permit an appellate court to simply substitute it s judgment for that of the trial court.” Id

. {¶ 55} When it comes to physical evidence, authentication or identific ation is a condition precedent to admissib ility. Evid.R. 901(A). This cond ition can be satisfied with a showing that the matter in question is what its proponent cla ims. Id

. {¶ 56} At the close of the State’s case-in-chief, defense counsel obje cted to the admission of the SANE kit and its contents (Exhibits 9, 11, 12, 13, 14), arguing that the witness who completed the examination on C.B. had insufficient recollection to properly authenticate it. While it is true that the witness had little m emory about the details of this specific exam, she was able to explain the process she always g oes through when collecting the evidence and giving the exams, recognized her si gnature (signifying she-18- did indeed do the exam), and remembered sealing the contents af ter its completion. In other words, she testified that she knew she collected the SANE kit based on the signature and notes. Based on this record, we cannot say the tr ial court abused its discretion in admitting Exhibits 9, 11, 12, 13, and 14. {¶ 57} Freeman also argues that it was error for the court to admit th e Ohio Bureau of Criminal Investigation report, Exhibits 19A and B. These doc uments, though, were only used to refresh the recollection of the witness, and the State did not move to admit them into the evidence. {¶ 58} Finally, assuming, even for the sake of argument, it was error for the exhibits to be admitted into evidence, it was harmless error. The SANE k it contained DNA used to identify Freeman, but his identity was not an issue in this case. Freeman fully admitted to engaging in sexual conduct with C.B.; he just contended it w as consensual. Exhibits 9, 11, 12, 13, and 14 were superfluous, and their admission was no t prejudicial. {¶ 59} The admission of the contested exhibits was not an abuse of dis cretion. The fourth assignment of error is overruled.

VI. Cumulative Error {¶ 60} Finally, Freeman argues that the cumulative effect of all the p urported errors deprived him of a fair trial. The cumulative error doctrine sta tes that a conviction will be reversed where “the cumulative effect of errors in a trial depr ives a defendant of the constitutional right to a fair trial even though each of numero us instances of trial court error does not individually constitute cause for reversal.” State v. Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). This doctrine, however, only app lies where there are-19- “multiple instances of harmless error.” Id

. {¶ 61} To find cumulative we must find: (1) that multiple errors were committed at trial, and (2) there is a reason able probability that but for t he multiple errors, the outcome of the trial would have been different. State v. Goldblum , 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 58. {¶ 62} After exploring the record, Freeman has not demonstrated that m ultiple errors occurred. That necessarily eliminates the possibility of reversal due to cumulative error. The fifth assignment of error is overruled.

VII. Conclusion {¶ 63} The trial court’s judgment will be affirmed.

. . . . . . . . . . . . .

TUCKER, P. J. and HALL, J., concur.

Copies sent to: Marcy A. Vonderwell Nicole Rutter-Hirth Successor of Judge Stephen Wolaver