[Cite as State v. Kalka , 2018-Ohio-5030.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106339

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. NIKOLAY KALKA

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615264-A

BEFORE: Laster Mays, J., E.A. Gallagher, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: December 13, 2018 -i-ATTORNEYS FOR APPELLANT

Michael A. Partlow 112 South Water Street, Suite C Kent, Ohio 44240

Sarah Thomas Kovoor Ford, Gold, Kovoor & Simon Law Group 8872 East Market Street Warren, Ohio 44484

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Jennifer A. Driscoll Daniel T. Van Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

ANITA LASTER MAYS, J.: {¶1} Appellant Nikolay Kalka (“Kalka”) appeals the jury verdict finding him guilty of two counts of gross sexual imposition, R.C. 2907.05( A)(4), and one count of kidnapping for the purpose of engaging in sexual activity, R.C. 2905.01( A)(4). With the merger of the kidnapping and gross sexual imposition counts, the state pr oceeded with sentencing on the gross sexual imposition counts. Kalka was sentenced to five years of imprisonment on Counts 1 and 2 to be served concurrently. We affirm. I. Background and Facts {¶2} The trial in this case commenced in May 2017. An interpreter was provided for75-year-old Kalka whose nativ e language is Ukrainian. {¶3} Ten-year-old friends EM and MM were at a public recreation swimming facility that

contained several interc onnected water features including an adult pool area, kiddie pool, lazy water river feature, large and small water slides, therapeutic waterfall, and a small open-ended whirlpool area that created a vortex-type water current. EM and MM tes tified that Kalka was sitting in the whirlpool where the girls were pl aying. Kalka said hello to them and they responded because he seemed friendly, and they continued playing. {¶4} MM testified that, as they were getting out of the whirlpool, Kalka “grabbed me and EM at the same time. I got away, then I pulle d EM out of the whirlpool.” (Tr. 234.) MM admitted that the trial testimony was the first time she stated that Kalka touched her at the whirlpool because she “thought he was goofing around” and “didn’t know it was part of what happened.” (Tr. 253.) {¶5} MM helped EM exit the whirlpool and they played in the lazy river feature and then went to the kiddie pool area. EM testifie d that Kalka followed the girls to the kiddie pool and pulled EM under the therapeutic waterfall 1 that he was sitting under when they moved past him to get to the water slide. EM said Kalka was touching her breast area and squeezing her vaginal area and later that Ka lka was rubbing her chest and vaginal area and “he kept on changing spots.” (Tr. 225.) EM said that she was unable to escape Kalka’s grasp until MM helped her pull away. They told the lifeguard and MM’s grandmother. {¶6} EM and MM reviewed a rather grainy video recording of the events compiled from the pool’s multiple security cameras that provided shifting views of the areas. The video did not

1 The therapeutic waterfall “pours down water really hard, like a back massage.” (Tr. 235-236.) The water pressure is adjustable and could also be turned off. (Tr. 241.)support their testimony that Kalka “pulled them” at the whirlpool but EM stated that it “felt like” Kalka pulled her. (Tr. 207.) The video depict ed Kalka remaining in the whirlpool area and splashing at the girls while the girls swam toward the lazy river feature. The video shows that Kalka exited the whirlpool and went dir ectly to the therapeutic waterfall. {¶7} The girls later returned to the whirlpool and then moved in Kalka’s direction who was still sitting under the waterfall. As EM reaches Kalka, he grabs EM as though trying to pull her under the waterfall. Kalka is holding EM a nd “dunking her under” the waterfall. (Tr. 258.) MM stated she tried to pull EM away, then MM stated that she moved a few feet away to turn off the water “that was coming down [from the wate rfall] so I could see what was going on, and I tried to pull her [EM], but I pulled so hard to where I fell over. “He was squeezing her over her vagina. And I went to tell th e lifeguard and the guy left.” (Tr. 231.) The video shows MM approaching the lifeguard, EM disengaging herself, and EM also moving toward the lifeguard. {¶8} Together, EM and MM wrote a statement for the police. The statement said that they were talking to “this guy with an accent” who was “pulling [EM] up to his chest” and “he was being socially awkward,” defi ned by EM as “a little weird to me .” (Tr. 214.) EM also said that she thought Kalka was friendl y and that when Kalka grabbed her he was trying to pull her

under the waterfall. EM felt uncomfortable because he began touching her. {¶9} During redirect, the state attributed the absence of video evidence depicting Kalka pulling the girls at the whirlpool to the fact th at the views were compri sed of various angles recorded by several security cameras. {¶10} The lifeguard on duty noticed the girl s and Kalka communicating and splashing each other in the whirlpool and they seemed to be enjoying themselves. The lifeguard saw no

cause for concern. Kalka moved to the kiddie area to sit under the therapeutic waterfall where“it’s common for elderly men to sit under th ere because it feels good on their back and shoulders.” (Tr. 276.) {¶11} Later, the lifeguard’s “attention was drawn to the children moving over back to the elderly man’s area [under the waterfall]. They [K alka and the girls] began to splash and so forth, so that drew my attention.” (Tr. 276.) The splashing and conversation stopped when Kalka grabbed one of the girls by the waist and “brought one of the girls onto his lap.” (Tr. 277.) {¶12} Describing the waterfall encounter on the video, the lifeguard stated: The child could not necessarily get out. From where I was standing, she did not seem to have fun. She no longer had a s mile on her face. She wasn’t laughing as she was prior. * * * So I looked at the child. She looked at me. She broke free and ran over to myself. She explained the s ituation to me. I then told her, okay, do not go over there. I will get my supervisor. (Tr. 279-280.) The girl told the lifeguard that Kalka “touched [her] in her vagina and breast area.” (Tr. 283.) {¶13} During cross-examination, the lifeguard acknowledged that he could only see what was going on above the water and could not act ually see Kalka’s legs. He did not hear the girls calling for help and did not mention in his report to police that the girls’ faces during the waterfall encounter expressed to him a “stunned look for help.” (Tr. 287.) He was advised of the potential issue when the girls approached him. {¶14} Officer Valukievic of the Middleburg Heights Police Department interviewed the girls at the recreation center who appeared to be shaken. The girls’ mothers and MM’s grandmother were present. The state was unabl e to have the officer review a police report

because he was not the author.{¶15} The state rested. Kalka’s Crim.R. 29 motion for judgment of acquittal was denied on the grounds that the question of sexu al motivation should be decided by a jury. {¶16} The defense presented seve ral witnesses to testify on Kalka’s behalf. Roman Skalsky (“Skalsky”) met Kalka in 1990 in co mmunist-ruled Ukraine where Kalka founded and pastored a Christian church. Skalsky also knows Kalka’s wife, childre n, and grandchildren. Skalsky testified about Kalka’ s benevolent work in the comm unity and support and advice to

others. {¶17} Yaroslav Boyechko (“Boyechko”), origin ally from the Ukraine, is the senior pastor of a Pentecostal chur ch in Kentucky. Boyechko has known Kalka since 1970 when his family began attending Kalka’s church. The two always communicate in their native language and Boyechko did not know that Kalka spoke Eng lish. Boyechko opined that Kalka is a “[v]ery good man” who he is proud to ha ve as a friend. (Tr. 314.) {¶18} The families of Jerry Romasco (“Romasco”) and Kalka migrated to the Ukraine

in 1990 and became friends. Romasco said that “I respect and adore him.” (Tr. 319.)

Romasco is close friends with tw o of Kalka’s sons. Communicati ons were always in Ukrainian and many elderly Ukrainians do not speak English. {¶19} Kalka testified with the use of an interpreter. Kalka stated that he was at the “cold jacuzzi” standing by the water streams to ma ssage his back. (Tr. 331.) One girl splashed him, he splashed back, and they both began pourin g water on him. This continued shortly, then he left the whirlpool and went to the waterfall, and the girls approached. Kalka: So I wanted to kind of show them what it was like to get splashed all the time, so I wanted to pick [EM] up and put her up by the fountain where the water was pouring. And I took her by the hand and I was pulling her and my point was to get her under the fountain so she would know what it felt like.And then I pulled her toward this fountain so that it would pour on her. I didn’t grab her or touch he r anywhere near her breast. It wouldn’t have even come into my mi nd to touch her there. I lived 70 years and I’ve never had this kind of accusation against me. It couldn’t have even come to my mind to do such a thing. It would never occur to me. I’ve lived my life in a certain way. I’ve been a pastor. (Tr. 331-333.) Kalka stated he ne ver intentionally touched EM in the vaginal or breast area. {¶20} During cross-examination, Kalka maintained that he was playing with the girls as he does his grandchildren. He maintained that he was playfully pulling EM to the waterfall and that she may have fallen on his lap because she was slippery. “It wasn’t on my knees. I was just pulling her to get under the fountain. I didn’t have her on my knees at all.” (Tr. 335.) {¶21} Kalka’s Crim.R. 29 motion for judgment of acquittal was again denied. Jury found him guilty on both counts. Kalk a timely appeal the convictions. II. Assignments of Error and Analysis {¶22} Kalka’s first two assigned errors challeng e the sufficiency of the evidence and the manifest-weight of the evidence. Kalka’s th ird assigned error charges that counsel was

ineffective because: Counsel permitted an individual to serve on the jury that was an attorney, was personally familiar with both trial counsel and counsel for the prosecution, had previously been a prosecutor in [sic] serv ed as boss for the prosecutor in the case and the juror did not feel, as a result of th ese factors, that he should sit on the jury; and [T]he record reveals that counsel failed to argue that two separate and distinct counts of gross sexual imposition should be merged for sentencing purposes and the facts of the case clearly reveal that the counts did not involve separate harm, a separate animus or a separate motivation. Appellant’s brief, p. iv. A. Sufficiency and Manifest-Weight of the Evidence{¶23} We combine the related first and second assi gned errors for response. A challenge to the sufficiency of the evid ence questions whether the state met its burden of production. A manifest-weight challenge asks whether th e state met its burden of persuasion. {¶24} “‘A claim that a conviction is unsupported by sufficient evidence tests whether the

state has met its burden of production at trial.’” State v. Rudd , 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 32, quoting State v. Hunter , 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20. {¶25} The question is not whether the prosecu tion’s evidence “is to be believed, but whether, if believed, the evidence admitte d at trial supported the conviction.” Rudd at ¶ 32, citing State v. Starks , 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375. The court must view the evidence in a light most favorable to the prosecution and determine whether “‘any rational trier

of fact could have found the e ssential elements of the crime proven beyond a reasonable doubt.’”

State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v.

Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). {¶26} In entertaining a manifest-weight challenge, we sit as a thirteenth juror and intercede only where it is apparent that “a jury has ‘lost its way.’” State v. Stewart , 8th Dist. Cuyahoga No. 86411, 2006-Ohio-813, ¶ 11, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The weight-of-the-evide nce standard “‘addresses the evidence’s effect of inducing belief.’” Rudd at ¶ 61, quoting State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264.1. Gross Sexual Imposition {¶27} Kalka was charged with two counts of gross sexual imposition pursuant to R.C. 2905.07(A)(4): (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more ot her persons to have sexual contact when any of the following applies:

* * * (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offende r knows the age of that person. {¶28} “Sexual contact” is defined as [A]ny touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. {¶29} The charges included a sexual motivation specification pursuant to R.C. 2941.147(B): (A) Whenever a person is charged with an offense that is a violation of section 2903.01, 2903.02, 2903.11, or 2905.01 of the Revise d Code, a violation of division (A) of section 2903.04 of the Revi sed Code, an attempt to violate or complicity in violating section 2903.01, 2903.02, 2903.11 or 2905.01 of the Revised Code when the attempt or complicity is a felony, or an attempt to violate or complicity in violating division (A ) of section 2903.04 of the Revised Code when the attempt or complicity is a felony, the indictment, count in the indictment, information, or complaint charging the offense may include a specification that the person committed the offense with a sexual motivation. * * * (B) As used in this section, “sexual mo tivation” has the same meaning as in section 2971.01 of the Revised Code. “[A] sexual motivation specifica tion requires the state to show that the underlying offense was committed with ‘a purpose to gratify the sexual needs or desires of the offender.’” State v.

Dove , 8th Dist. Cuyahoga No. 101809, 2015-Ohio-2761, ¶ 38, quoting R.C. 2941.147.{¶30} This court has held that “[s]exual cont act, an element of gross sexual imposition, means any nonconsensual physical t ouching, even through clothing, of the body of another. State v. Ackley , 120 Ohio Misc.2d 60, 2002-Ohio-6002, 778 N.E.2d 676.” State v. Jones , 8th Dist. Cuyahoga No. 87411, 2006-Ohio-5249, ¶ 15. {¶31} Kalka argues that the convictions must be reversed because the state failed to prove sexual motivation. Proof of a sexual gratification purpose does not require direct evidence of arousal or gratificati on. A “trier of fact may infer th at a defendant was motivated by a desire for sexual arousal or gratification from the totality of the circumstances.” State v.

Edwards , 8th Dist. Cuyahoga No. 81351, 2003-Ohio-998, ¶ 22, citing State v. Oddi , 5th Dist.

Delaware No. 02C AA01005, 2002-Ohio-5926. {¶32} Kalka states that incons istencies between the test imony of EM and MM should weigh heavily against the conviction but that is not necessarily the case. Inconsistencies in testimony do not translate into entitlement to have a conviction reversed as against the sufficiency or manifest-weight of the evidence. State v. Hill , 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 37. {¶33} EM and MM testified that, while Ka lka was sitting under the waterfall, he grabbed EM and would not let her go. MM turn ed the water off and observed that Kalka was touching EM in the breast and vaginal areas. EM testified that Kalka was squeezing and pinching her in the breast and vaginal areas. {¶34} The lifeguard observed EM, MM, and Kalka splashing each other in the whirlpool and did not observe an y behaviors of concern. Howeve r, that was not the case when the encounter under the waterfall took place. The lifeguard stated that EM made eye contact

with him and looked distressed. “As lifeguards, we are traine d to see different faces fordrowning victim purposes.” (Tr. 286.) “So we’re trained to see if you have really, really wide eyes and like you have almost like a pale face * * * that’s like a big red flag to us.” (Tr. 286-287.) “[T]hat did kind of tri gger I need help.” (Tr. 287.) {¶35} The video depicts Kalka sitting under the waterfall and subseque ntly appears to be holding EM. Kalka’s back is to the camer a and a frontal view of the activities cannot be observed during the encounter with EM. MM can al so be seen turning off the water supply to the waterfall, as she testified, as well as leaving and returning to the scene. MM stated that she notified the lifeguard and returned to the scene. {¶36} EM went directly to the lifeguard after pulling away from Kalka and reported that Kalka touched her in the breast and vaginal areas as the lifeguard testified. The lifeguard said that EM was upset, unhappy, and her demeanor was one of disbelief of what ha d just transpired.

{¶37} The evidence demonstrates that Kalka grabbed EM, held her against her will and

moved his hands over her breast and vaginal areas. Viewing this evidence in a light most favorable to the state, we find that the “record demonstrates * * * [that] a rational trier of fact could conclude beyond a reasonable doubt” that th e evidence is sufficien t to find that Kalka restrained EM with a sexual purpose. Dove , 8th Dist. Cuyahoga No. 101809, 2015-Ohio-2761, at ¶ 39; see also State v. Gilliam , 9th Dist. Lorain No. 97CA006757, 1998 Ohio App. LEXIS 3668 (Aug. 12, 1998). {¶38} We further find that, viewed from the perspective of a “thirteenth juror,” we cannot say that “‘the jury clearly lost its way a nd created such a manifest miscarriage of justice

that the conviction mu st be reversed.’” Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541,citing Tibbs v. Florida , 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), and quoting State v.

Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). 2. Kidnapping {¶39} R.C. 2905.01(A)(4) kidnapping provides: (A) No person, in the case of a victim unde r the age of thirteen, shall remove another from the place where the other pers on is found or restrain the liberty of the other person, for any of the following purposes:

* * * (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim’s will. {¶40} This court has previously explained that Ohio law is clear that “[a]n offe nse under R.C. 2905.01 does not depend on the manner in which an individual is restra ined. * * * Rather, it depends on whether the restraint ‘is such as to place the victim in the offender’s power and beyond immediate help, even though temporarily.’ * * * The restraint ‘need not be actual confinement, but may be merely compelling the victim to stay where he is.’” State v. Mosley , 178 Ohio App.3d 631, 2008-Ohio-5483, 899 N.E.2d 1021, citing State v. Wilson , 10th Dist. Franklin No. 99AP-1259, 2000 Ohio App. LEXIS 5057 (Nov. 2, 2000). State v. Wright , 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 24. {¶41} As stated previously in our analysis, a sexual motivation specification “requires

that the state show that the underlying offense was committed w ith ‘a purpose to gratify the

sexual needs or desires of the offender.’” Dove , 8th Dist. Cuyahoga No. 101809, 2015-Ohio-2761, at ¶ 38, quoting R.C. 2941.147. {¶42} In this case, the underlying offense is kidnapping, and the question is whether Kalka’s restraint of EM was for the purpose of engaging in sexual activity against the victim’s

will. We find that it was.{¶43} “R.C. 2905.01(A)(4) requires only that the restraint or removal occur for the purpose of non-consensual sexual activity.” State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 196; Dove at ¶ 37. “[T]he kidnapping stat ute punishes certain removal or restraint done with a certain purpose.” State v. Cope , 12th Dist. Butler No. CA2009-11-285, 2010-Ohio-6430, ¶ 68; R.C. 2941.147. {¶44} EM and MM testified that Kalka grabbed and held EM while touching her breasts and vaginal area. EM stated that Kalka refu sed her repeated request s to let her go. MM testified that she pulled EM to release her from Kalka’s grasp but could not and that she also requested that Kalka release EM. The testimony of the lifeguard supports the girls’ testimony as well as the period of time that Kalka may be observed holding onto EM in the video. {¶45} Viewed in a light most favorable to the prosecution, we cannot say that the evidence was insufficient to support the conviction or that the trier of fact in this case truly lost its way. Based on our review of the entire record, Kalka’s claim that the verdict was not supported by the sufficiency or weight of the evidence fails. {¶46} Kalka’s first and second assign ments of error are overrruled.

B. Ineffective Assistance of Counsel {¶47} Kalka’s third and final assigned error a sserts that Kalka was denied the effective assistance of counsel. We disagree. {¶48} To substantiate a claim of ineffective assistance of couns el, Kalka must show that: (1) “counsel’s performance was de ficient, and [(2)] the defici ent performance prejudiced the defendant so as to deprive him of a fair trial.” State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of defense counsel’s performance must behighly deferential.” Strickland at 694. In Ohio, there is a pr esumption that a properly licensed attorney is competent. State v. Calhoun , 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

1. Juror {¶49} First, Kalka charges that counsel was ine ffective for allowing an attorney to serve on the jury who: (1) was formerly a prosecutor who supervised the prosecutor in the instant case, (2) was personally familiar with both counsel , and (3) expressed a pe rsonal belief that he should not sit on the jury. {¶50} We do observe that during jury selection, the juror’s tenure with the prosecutor’s office was disclosed. The juror worked as an assistant county prosecuto r in the economic crimes unit handling white collar crimes from 1986 to 1991. The juror left the pr osecutor’s office to serve with the Bureau of Workers’ Compensation and later returned to the prosecutor’s office to serve as an administrator from 2000 to 2007. During his administrative tenure, the juror worked primarily on civil matters and possibly one or two criminal cases. {¶51} The juror also disclosed that he was formerly the supervisor of the state’s trial counsel and that, while they had a good rela tionship, that “would have no bearing on my obligation [to be fair and impartial].” (Tr. 103.) {¶52} The juror assured the trial court that he would be a fair and impartial juror and that he could effectively interpret the eviden ce from the perspective of a nonattorney.

Juror No. 8: Because I do understand the gravity of what’s happening here. And I — you know, I’ve done crimin al defense before. I’ve done prosecution before. And I did private practice from, like, 1991 through 2000, including criminal defense work, and so I understand the difficulties of making some of these determinations and that’s the reason why. And that’s the reason why to both questions, yes, I could — if I was sitting there, I would be comfortable w ith me serving as a juror, and,two, in answer to your other que stion, do you want to be on this jury, the answer is no. (Tr. 102-103.) {¶53} Kalka has failed to point to any ev idence demonstrating that counsel’s performance was deficient and that he was prejudi ced as a result of the juror’s presence on the jury. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 98, citing Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The record reveals that the juror made full disclosure of his employment, abilities, and his desire not to sit as a juror. An appellate court “will ordinarily refrain from sec ond-guessing strategic decisions counsel makes at trial.” State v. Myers , 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 151.

2. Merger {¶54} Kalka argues here that his counsel’s failu re to argue that the two counts of gross sexual imposition should be merged for senten cing purposes also constituted ineffective

assistance. Kalka offers that th e facts of the case clearly reveal that the counts did not involve separate harm, a sepa rate animus, or a se parate motivation. {¶55} “The reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under R.C. 2941.25(A) must first take into account

the conduct of the defendant.” State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defenda nt may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance — in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.

Id

.{¶56} In the instant case, one count of gr oss sexual imposition was relating to the touching of the victim’s breasts, and the second c ount was for touching the vaginal area. These acts do not merge. [D]ifferent sexual acts occurring in the sa me encounter are not allied offenses of similar import. State v. Jones , 5th Dist. Licking No. 09-CA-95, 2010-Ohio-2243 (unlawful sexual conduct with a minor by digital penetration and cunnilingus were not allied offenses of similar import when committed in a short time span); State v. Waters , 5th Dist. Ashland No. 03-C OA-002, 2003-Ohio-4624 (finding that unlawful sexual conduct with a minor by vaginal intercourse and/or digital penetration and fellatio or cunnilingus were not allied offenses of similar import); see also State v. Brown , 3rd Dist. Marion No. 9-09-15, 2009-Ohio-5428; and State v. Ludwick , 11th Dist. Ashtabula No. 2002-A-0024, 2004-Ohio-1152.

State v. Daniels , 5th Dist. Tuscarawas No. 10AP070023, 2011-Ohio-4899, ¶ 39

. “‘Each act was a separate and distinct offense. Each act violated a different ar ea of the victim’s body.’” State v. Bascomb, 8th Dist. Cuyahoga No. 46073, 1983 Ohio App. LEXIS 13711, 3 (Aug. 18, 1983), quoting State v. Barnes, 68 Ohio St.2d 13, 427 N.E.2d 517 (1981). {¶57} The gross sexual imposition counts in this case do not merge. Defense counsel was not ineffective for failing to object. {¶58} Kalka’s third and fourth assignments of error are therefore overruled.

III. Conclusion {¶59} The trial court’s judg ment is affirmed. It is ordered that appellee recover fro m appellant the cost s herein taxed.

The court finds there were reasona ble grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Th e defendant’s conviction having been affirmed, any bail pending appeal is terminated.A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

__________________________________________ ANITA LASTER MAYS, JUDGE EILEEN A. GALLAGHER, A.J., and MARY J. BOYLE, J., CONCUR