[Cite as State v. Austin , 2017-Ohio-7845.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. DANIEL D. AUSTIN Appellant C.A. No. 28199

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 03 0889

DECISION AND JOURNAL ENTRY Dated: September 27, 2017

CARR, Judge. {¶1} Defendant-Appellant, Daniel Austin, app eals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.

I. {¶2} In January 2015, three women came forward and accused Austin of having sexually assaulted them in their youth. Relevant to this appeal, Austin’s half-sister, K.R., accused him of sexually assaulting her when sh e was between the ages of five and ten. Meanwhile, his cousin, L.B., accused him of sexually assaulting her when she was between the ages of five and thirteen. It is undisputed th at, at the time Austin allegedly committed the sexual assaults, he was between the ages of ten and nineteen. {¶3} A grand jury indicted Austin on thirty-fiv e counts: (1) ten counts of rape and eight counts of gross sexual imposition (“GSI”) that pert ained to L.B.; (2) six counts of rape and six counts of GSI that pertained to K.R.; and (3) fo ur counts of rape and one count of GSI that2

pertained to a third accuser. Each count of ra pe or GSI spanned a designated time period. The counts involving L.B. spanned from December 1999 until December 2008. The counts involving K.R. spanned from January 2003 until January 2009. Finally, the counts involving the third accuser spanned from July 2003 until July 2007. {¶4} Austin moved to dismiss the indictment, in whole or part, on the basis of preindictment delay. He further cl aimed that subjecting him to prosecution as an adult for crimes he allegedly committed at such a young age offended the Due Process Clause. The State filed a brief in opposition to his motion, and the trial cour t held a hearing. Following the hearing, the court granted Austin’s motion in part and dismisse d four of the rape counts and three of the GSI counts involving L.B. The remaining twenty-eight counts remained for trial, but, at the close of its case-in-chief, the State dismissed an additi onal eight counts as a result of the evidence presented at trial and successful amendments to the dates in the indictment. Specifically, the State dismissed one of the rape c ounts pertaining to K.R., three of the rape counts pertaining to L.B., three of the rape counts pertaining to the third accuser, and the GSI count pertaining to the third accuser. The jury heard the remaining twenty counts. {¶5} The jury found Austin not guilty of the sole remaining rape count involving the third accuser and one of the GSI counts involving K. R. The jury found Austin guilty of his other eighteen counts, and the court sentenced him on each count. The court imposed a total sentence of life in prison with parole eligibility after thirty-five years. {¶6} Austin now appeals from his convictions a nd raises seven assignments of error for

our review.3

II. ASSIGNMENT OF ERROR I R.C. 2152.02(C)(3) AND R.C. 2152.12(J) ARE UNCONSTITUTIONAL AS APPLIED TO DANIEL AUSTIN AS TO COUNTS 1, 6, 12, 15 WHEN THE TRIAL COURT PREVIOUSLY RULED THAT TO THE EXTENT THAT THEY REQUIRE MR. AUSTIN TO BE TREATED AND PUNISHED AS AN ADULT FOR CRIMES THAT OCCURRED WHEN HE WAS UNDER 14 YEARS OLD AND INELIGIBLE FOR ADULT PROSECUTION VIOLATING HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL AND SENTENCING. {¶7} In his first assignment of error, Au stin argues that R.C. 2152.02(C)(3) and 2152.12(J) are unconstitutional as app lied to him with respect to three of his convictions. 1 For the reasons that follow, we reject his ar gument as to two of those convictions. {¶8} “[E]nactments of the General Assemb ly enjoy a strong presumption of constitutionality. Thus, a statute will be upheld unless proven beyond a reasonable doubt to be unconstitutional.” (Internal citations omitted.) State v. Romage , 138 Ohio St.3d 390, 2014- Ohio-783, ¶ 7. “A party may challenge a statute as unconstitutional on its face or as applied to a particular set of facts.” Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 37. “In an asapplied challenge, the challenger ‘c ontends that application of the st atute in the particular context in which he has acted * * * [is] unconstitutional.’” (Bracketed alteration sic.) State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists , 506 U.S. 1011 (1992) (Scalia, J., dissenting) . It is the challenger’s burden to “‘present[] clear and convincing evidence of a presently existing set of facts that make the statute[] unconstitutional and void when applied to those facts.’” Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, ¶ 181, quoting Harrold at ¶ 38.

1 Austin’s quoted assignment of error and the body of his brief attack four of his convictions (i.e., count 1 and renumbered counts 6, 12, and 15). In his reply brief, however, he concedes that renumbered count 12 is not at issue. Accord ingly, we need not address that conviction.4

{¶9} There is no dispute that Austin was twenty-five years old when arrested and

indicted. There also is no dis pute that his indictment charge d him with conduct he allegedly committed when he was between the ages of te n and nineteen. R.C. 2152.12(J) provides that [i]f a person under eighteen years of age allegedly commits an act that would be a felony if committed by an adult and if the person is not taken into custody or apprehended for that act until after the person attains twenty-one years of age, the juvenile court does not have jurisdiction to hear or determine any portion of the case charging the person with committing that act. In those circumstances, * * * the case charging the person with committing the act shall be a criminal prosecution commenced and heard in the a ppropriate court havi ng jurisdiction of the offense as if the person had been eighteen years of age or older when the person committed the act. Likewise, the Revised Code provides that “[a]ny person who, while under eighteen years of age, commits an act that would be a felony if committed by an adult and who is not taken into custody or apprehended for that act until after the person attains twenty-one years of age is not a child in relation to that act.” R.C. 2152.02(C)(3). {¶10} Before trial, Austin filed a motion to dismiss his indictment, in whole or part, on the basis of pre-indictment delay. He also argued that prosecuting him as an adult for crimes he allegedly committed when he was less than fourteen years of age “raise[d] a due process

fundamental fairness issue” because he would not have been subject to bindover at that age. See R.C. 2152.12(B)(1). While the tria l court rejected his pre-indic tment delay argument, the court agreed that it would be “fundamentally unfair an d an arbitrary and unreasonable abridgment of his due process rights” to apply R.C. 2152.02(C)(3) and 2152.12(J) to him for conduct he allegedly committed befo re turning fourteen. The court, ther efore, dismissed seven counts in the indictment, all of which were alleged to have occurred between December 21, 1999, and December 20, 2002. The court held in abeyance its ruling on several additional counts because it could not determine, without hearing the evidence at trial, whether Austin was under fourteen5

when those offenses allegedly occurred. The tria l court never revisited it s ruling, and the jury ultimately found Austin guilty of the three count s at issue in this assignment of error. {¶11} Austin argues that R.C. 2152.02(C)(3 ) and 2152.12(J) are unconstitutional as applied to him with respect to his three c ounts because the evidence does not support the

conclusion that he was at least fourteen wh en he committed them. Count 1 was for rape, concerned K.R., and was alleged to have oc curred between January 12, 2003, and January 11, 2004. Renumbered count 6 was for GSI, concerne d K.R., and was alleged to have occurred during that same time period. Renumbered coun t 15 was for GSI, concerned L.B., and was alleged to have occurred between Decembe r 21, 2002, and December 20, 2003. Austin turned fourteen on October 14, 2003. Accordingly, with respect to the counts involving K.R., Austin

was fourteen for almost three months of th e indictment period (i.e., between October 14, 2003, and January 11, 2004). With respect to the count involving L.B, he was fourteen for just over two months of the indictment period (i.e ., between October 14, 2003, and December 20, 2003). {¶12} Notably, this Court need not address the trial court’s ultimate conclusion that it would be “fundamentally unfair and an arbitrar y and unreasonable abridgment of [Austin’s] due process rights” to apply R.C. 2152.02(C)(3) a nd 2152.12(J) to him for conduct he allegedly committed before turning fourteen. The trial court ruled in Austin’s favor on that issue, and the State has not appealed from the trial court’s ruling. Austin’s statutory argument hinges entirely upon his assertion that there was no proof he committed count 1, re numbered count 6, and

renumbered count 15 when he was at least fourt een. Accordingly, this Court will assume for purposes of its analysis that the trial court’s underlying ruling was correct and limit its review to the issue of whether Austin was at least fourteen when he committed the foregoing offenses.6

K.R.: Count 1 and Renumbered Count 6 {¶13} K.R. testified that she was born in January 1998 and is Austin’s half-sibling. She stated that she was five years old when she star ted kindergarten and that Austin began raping her during that school year. The first rape occurred in the midst of a game that Austin invented, which he called “the wormy game.” K.R. explaine d that Austin had them remove their clothes, roll up in blankets, and try to get into each other’s blankets. During the game, K.R. stated that “you would touch the other person on their penis or their vagina and then it turned into sex after that.” She testified that, after the first time, the game “seemed to happen almost on a daily basis” through kindergarten and first grade. She stated that, while in first grade, the game stopped and “it just went right into the sex.” She estimated that Austin raped her “three to four times a week” between kindergarten and third grade. {¶14} When Austin turned fourteen, K.R. was a pproximately five years and nine months old. The indictment period encapsulated in co unt 1 and renumbered count 6 ended when she turned six years old in January 2004. K.R. specifical ly testified that she was five years old when she started kindergarten and that the sexual en counters with Austin began in kindergarten and continued until third grade. She also specified that the encounters occurred several times each

week. K.R. described her sexual encounters with Austin as encompassing both genital touching and vaginal intercourse. Accordingly, with rega rd to count 1 and renumbered count 6, there was evidence that Austin committed at least one rape and one instance of GSI against K.R. between his fourteenth birthday (October 14, 2003) and January 11, 2004. He has not, therefore, demonstrated that R.C. 2152.02(C)(3) and 2152.12(J) are unconstitutional as applied to him with respect to those two counts. See Groch , 117 Ohio St.3d 192, 2008-Ohio-546, at ¶ 181, quoting7

Harrold , 107 Ohio St.3d 44, 2005-Ohio-5334, at ¶ 38. Austin’s first assignment of error is overruled insofar as it pertains to K.R.

L.B.: Renumbered Count 15 {¶15} With respect to renumbered count 15, the St ate concedes that it failed to present evidence that Austin committed GSI against L.B. between October 14, 2003, and December 20, 2003. Accordingly, this Court accepts the State’s concession and vacates Austin’s conviction on renumbered count 15. Austin’s first assignment of error is sustained insofar as it concerns L.B.

ASSIGNMENT OF ERROR II

THE ADMISSION OF POLYGRAPH TESTIMONY VIOLATED DANIEL AUSTIN’S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO STATE CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTIONAND HIS 5TH AMENDMENT PRIVILEGE AGAINST SELFINCRIMINATION. {¶16} In his second assignment of error, Austin argues that the trial court erred when it admitted testimony, offered to prove consciousness of guilt, that he asked his half-brother to assume his identity and take a polygraph examinati on in his stead. We do not agree that the trial court erred in its evidentiary ruling. {¶17} The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage , 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court, therefore, reviews the trial c ourt’s decision regarding evidentiary matters under an abuse of

discretion standard of review.” State v. Aguirre , 9th Dist. Lorain No. 13CA010418, 2015-Ohio922, ¶ 6. An abuse of discretion indicates that the trial court’s attit ude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621 (1993).8

{¶18} As a general rule, courts heavily guard against the admission of evidence pertaining to polygraph examinations. See State v. Souel , 53 Ohio St.2d 123 (1978). The law favors neither “the admissibility of test resu lts [nor] statements re garding an individual’s willingness or lack of willingness to submit to a test.” State v. Byrd , 9th Dist. Lorain No. 03CA008230, 2003-Ohio-7168, ¶ 33. Accord State v. Key , 2d Dist. Montgomery No. 27199, 2017-Ohio-4098, ¶ 6-12; State v. Gilliam , 4th Dist. Pickaway Nos. 15CA19, 15CA20, 2016- Ohio-2950, ¶ 34. This is so because polygraph test s “have not attained sc ientific or judicial acceptance as an accurate and reliable me ans of ascertaining truth or deception.” State v. Rowe , 68 Ohio App.3d 595, 609 (10th Dist.1990). Evidence that an accused expressed his unwillingness to submit to a polygraph test is inex orably linked to the supposition that the test, had it been performed, would have accurately meas ured the truthfulness of his statements. See State v. Hegel , 9 Ohio App.2d 12, 14 (2d Dist.1964), quoting State v. Mottram , 158 Me. 325, 330 (1962). The State, therefore, generally may not tender such evidence for the purpose of establishing guilt. See Rowe at 609. But see Souel at syllabus (polygraph results admissible in certain circumstances if offered for purposes of corroboration or impeachment). In certain instances, however, the State may offer statements made or actions taken by an accused in connection with a polygraph test if the statements or actions themselves demonstrate a consciousness of guilt. {¶19} “[A]n accused’s ‘flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.’” State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 167, quoting

State v. Eaton , 19 Ohio St.2d 145, 160 (1969). Likewise, “[ p]rosecutors may elicit testimony on direct examination that the defendant asked a witness ‘to fabricate an alibi for him,’9

Commonwealth v. Young , 561 Pa. 34, 61-62, (2000), because such evidence ‘strongly indicates consciousness of guilt,’ State v. Campbell , 69 Ohio St.3d 38, 47 (1994).” State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 135. See also United States v. Poulsen , 655 F.3d 492, 508- 509 (6th Cir.2011) (spoliation evidence, including an attempt to bribe or ta mper with a witness, admissible to show consciousness of guilt). In the same vein, numerous courts have held that the State may offer evidence of an accused’s attempt to “beat” a polygraph examination as proof of his consciousness of guilt. See, e.g., People v. Samuels , 36 Cal.4th 96, 128 (2005) (witness permitted to testify abou t “statements defendant made to her about how to ‘beat’ a polygraph test”); People v. Enfield , Mich.Ct.App. No. 224369, 2002 WL 31160299, *2-3 (Sept. 27, 2002) (evidence that defendant asked a “jailhouse lawyer” how to “‘b eat’ a polygraph test” admissible to show consciousness of guilt); United States v. Bellomo , 944 F.Supp. 1160, 1167 (S.D.N.Y.1996) (evidence that accused tried to pr ocure and probably ingested lithium in attempt to deceive the polygraph examiners and influence his results admissible to show consciousness of guilt); State v. McDowell , 266 S.C. 508, 515-516 (1976) (volunt ary statements of defendant, “concerning ways in which detection of his guilt might be avoided [i]f he subjected himself to the polygraph test,” admissible to show consciousness of guilt). “A defendant’s statements, ‘like other conduct following the comple tion of a crime, may be relevant evidence of consciousness of guilt.’” State v. Cepec , 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 115, quoting State v. Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, ¶ 72. {¶20} During its case-in-chief, the State introduced the testimony of Austin’s halfbrother. He testified that he had a close relationship with Austin and, at some point in 2015, spoke with Austin on the phone. During that p hone conversation, Austin asked him to take a polygraph test for him. Austin’s half-brother specified that Austin proposed a meeting between10

the two so that he (Austin) could provide him with his (Austin’s) identification to take with him to the test. He testified that he initially agreed to take the test for Austin, but changed his mind shortly thereafter and let Austin know that he woul d not be willing to take the test. According to Austin’s half-brother, he could not tell if Austin was being sarcastic or joking during their discussion about the polygraph. {¶21} Before allowing Austin’s half-brother to testify, the trial court spoke with him outside the presence of the jury. The court advised him that, at no point during his testimony, would he be permitted to volunteer information about any polygraph tests Austin might have taken in the past, whether any polygraph test wa s actually completed, or the results of any polygraph testing. With those restrictions in mind, the court overruled Austin’s objection to the testimony. The court determined that the tes timony was not unduly prejud icial and, if believed, could indicate consciousness of guilt. The court later instructed the jury: [T]estimony has been admitted that [Austin] asked another individual to take a polygraph test for him. You are instruct ed that such conduct alone does not raise a presumption of guilt, but it may tend to indicate [Austin’s] consciousness of guilt. If you find that the facts do not support [Austin] attempte d to cause another individual to take a polygraph test for him, or if you find that some other motivation prompted [his] request, or if y ou are unable to decide [his] motivation, then you should not consider the evidence for any purpose. However, if you find that the facts support that [he] did attempt to cause another individual to take a polygraph test for him and if you decide that [he] was motivated by a consciousness of guilt, you may, but are not required to, consider this evidence in deciding whether [he] is guilty of the crime with which he is charged. You alone will decide what weight, if any, to give to this evidence. Accordingly, in its instruction, the court “emphasi zed repeatedly the jury’s role as factfinder.”

State v. Nichols , 9th Dist. Summit No. 24900, 2010-Ohio-5737, ¶ 12. {¶22} Having reviewed the record, we cannot conc lude that the trial court abused its discretion when it allowed the State to present the testimony of Austin’s half-brother in its case-11

in-chief. There was no evidence that Austin ever took a polygraph test or even that he was asked

to do so. The evidence was that Austin voluntaril y broached the subject of a polygraph test with his half-brother because he wanted his half-brother to impersonate him and take the test on his behalf. Austin’s statements do not simply reflect an unwillingness to submit to a polygraph. Rather, if believed, they tend to show an attempt to deceive law enforcement and impede an investigation through purposeful manipulation. While the law generally disfavors testimony pertaining to polygraphs, the particular facts and circ umstances in this case are in accord with the

cases outlined above where courts have admitted ev idence of an accused’s attempt to “beat” a polygraph examination as bear ing upon consciousness of guilt. See, e.g., Samuels , 36 Cal.4th at 128; Enfield , 2002 WL 31160299, at *2-3; Bellomo , 944 F.Supp. at 1167; McDowell , 266 S.C. at 515-516. The trial court, in its br oad discretion, could ha ve determined that Austin’s statements were admissible to show consciousness of guilt and were not more prejudicial than probative. See Cepec , 149 Ohio St.3d 438, 2016-Ohio-8076, at ¶ 115, quoting Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, at ¶ 72. As such, Austin’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

DANIEL AUSTIN’S RIGHT TO DUE PROCESS WAS VIOLATED AS A RESULT OF PROSECUTORIAL MISCONDUCT. {¶23} In his third assignment of error, Aus tin argues that prosecutorial misconduct deprived him of a fair trial. We disagree. {¶24} In deciding whether a prosecutor’s conduct rises to the leve l of prosecutorial misconduct, a court de termines if the prosecutor’s actions we re improper, and, if so, whether the defendant’s substantial rights were actually prejudiced. State v. Smith , 14 Ohio St.3d 13, 14 (1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper conduct deprives the defenda nt of a fair trial.” State v. Knight , 9th Dist. Lorain No.12

03CA008239, 2004-Ohio-1227, ¶ 6, citing State v. Carter , 72 Ohio St.3d 545, 557 (1995). The defendant must show that, but for the prosecutor’s misconduct, the trier of fact would not have

convicted him. State v. Lollis , 9th Dist. Summit No. 24826, 2010-Ohio-4457, ¶ 24. “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”

State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 140, quoting Smith v. Phillips , 455 U.S. 209, 219 (1982). {¶25} Austin argues that the prosecutor engaged in misconduct when he presented the testimony of Austin’s half-brother, who testified that Austin asked him to take a polygraph test on his behalf. He further argues that the prosec utor engaged in misconduct when he repeatedly commented on that same testimony during closing argument. {¶26} This Court has already determined that the testimony of Austin’s half-brother was admissible at trial. Because that testimony was admissible, the prosecutor did not engage in misconduct when he presented it or when he later referenced it in closing argument. As Austin has not pointed this Court to any instances of misconduct on the part of th e prosecutor, his third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THERE WAS INSUFFICIENT EVIDENCE FOR THE JURY TO FIND IN AMENDED COUNT 13 THAT THE DEFENDANT CAUSED SERIOUS PHYSICAL HARM IN THE COMMISSION OF THE OFFENSE OF RAPE. {¶27} In his fourth assignment of error, Austin argues that one of the findings the jury made with respect to one of hi s rape convictions is based on insufficient evidence. Specifically, he argues there was no evidence that he cause d L.B., the victim in that count, any serious physical harm. Upon review, we re ject his assignment of error.13

{¶28} The rape statute prohibits any person from “engag[ing] in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other person is less than thirteen years of age, whether or not the offe nder knows the age of the other person.” R.C. 2907.02(A)(1)(b). Before the enactment of Am .Sub.S.B. No. 260 in January 2007, any offender who violated R.C. 2907.02(A)(1)(b) and, in doing so, “purposely compel[led] the victim to submit by force or threat of force” automatic ally received a life sentence. Former R.C. 2907.02(B). After the bill’s enactment, an offende r who caused his youthful victim serious physical harm during the commission of a rape coul d be sentenced to eith er life without parole,

see R.C. 2907.02(B), or an indefinite sentence of 25 years to life, 2 see R.C. 2971.03(B)(1)(c). An offender who did not cause his youthful victim serious physical harm could be sentenced to an indefinite term of ten years to life so long as his victim was at least ten years of age. See R.C. 2971.03(B)(1)(a), (b). Meanwhile, the bill exempted offenders who were under the age of sixteen at the time of their offense from any of the foregoing penalties so long as they satisfied certain other criteria, including that they did not subject their victims to any serious physical

harm. See R.C. 2907.02(B). The bill directed trial cour ts to sentence those exempted offenders “as otherwise provided in the rape statute.” Bill Analys is, 126th Leg., 2007 Am.Sub.S.B. No.

260. See also R.C. 2907.02(B) (exempted offenders shall not be sentenced under R.C. 2971.03, but instead “as otherwise provided in this division”). {¶29} At issue in this assignment of error is renumbered count 13. That count charged Austin with raping L.B., in violation of R.C. 2907.02(A)(1)(b), between December 21, 2004, and December 20, 2007. The jury found Austin guilty of renumbered count 13 and further found that

2 The indefinite sentence option was not availa ble if the offender also was convicted of a sexually violent predator specification.14

he (1) was between the ages of fourteen and seventeen when he committed the offense, (2) used force when he engaged in sexual conduct with L. B., and (3) caused her serious physical harm. Austin argues that the jury’s third finding is based on insufficient evidence because the State failed to set forth any evidence of serious physical harm. {¶30} It is well settled that, “[t]o demonstrate reversible error, an aggrieved party must demonstrate both error and resulting prejudice.” Princess Kim, L.L.C. v. U.S. Bank, N.A. , 9th Dist. Summit No. 27401, 2015-Ohio-4472, ¶ 18. With re spect to renumbered count 13, the trial court sentenced Austin to life in prison with parole eligibility after ten years. Accordingly, the court did not impose one of the sentences author ized upon a finding of serious physical harm.

See R.C. 2907.02(B) (authorizing sentence of life without parole); R.C. 2971.03(B)(1)(c) (authorizing an indefinite sentence of 25 years to life). Austin concedes that, were this Court to sustain his assignment of error, that conclusion “[would] not alter his sentence.” Further, Austin has not demonstrated any particular way in wh ich the jury’s finding could result in actual prejudice to him. He argues that this Court should nonetheless address his argument because his “conviction should accurately reflect the eviden ce presented.” This Court will not, however, reverse a judgment in the absence of resulting prejudice. Princess Kim, L.L.C. at ¶ 18. Even assuming that the jury erred in finding serious physical harm to L.B., “such error would be

harmless.” State v. Walton , 9th Dist. Medina No. 3199-M, 2002 WL 86434, *2 (Jan. 23, 2002). Because the trial court did not rely on the jury’s finding when it fashioned Austin’s sentence on renumbered count 13, his argument lacks merit. His fourth assignment of error is overruled.15

ASSIGNMENT OF ERROR V

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND/OR PLAIN ERROR IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION WHEN IT FAILED TO MERGE THE SENTENCES FOR RAPE AND GROSS GROSS (sic) SEXUAL IMPOSITION. {¶31} In his fifth assignment of error, Austin argues that the trial court committed plain error when it failed to merge as allied offenses of similar import (1) five counts of rape with five counts of GSI, all of which involved K.R., and (2 ) three counts of rape with four counts of GSI, 3

all of which involved L.B. {¶32} In addressing Austin’s assignment of error, the State has conceded that seven of

his GSI convictions must be vaca ted due to lack of sufficient ev idence. Those convictions are: (1) renumbered count 8, a GSI c ount pertaining to K.R.; (2) renumbered count 9, a GSI count pertaining to K.R.; (3) renumbered count 10, a GSI count pertaining to K.R.; (4) renumbered count 15, a GSI count pertaining to L.B.; (5) renumbered count 16, a GSI count pertaining to L.B.; (6) renumbered count 18, a GSI count pertai ning to L.B.; and (7) renumbered count 19, a GSI count pertaining to L.B. This Court accep ts the State’s concession and vacates Austin’s convictions on the seven foregoing counts. A ccordingly, we only consider whether his two remaining GSI counts, renumbered counts 6 and 7, should have merg ed with the two rape counts stemming from the same time frames. Because bo th remaining GSI counts pertain to K.R., this Court will not discuss the evidence the State presented with regard to L.B. {¶33} The failure to timely assert an allied offenses objection limits appellate review of that issue to plain error. State v. Dodson , 9th Dist. Medina No. 16CA0020-M, 2017-Ohio-350, ¶

3 Austin concedes that his conviction on a fifth GSI count for conduct he committed between December 21, 2004, and December 20, 2005, should not be merged. Consequently, we do not address that count (r enumbered count 17).16

10, quoting State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. To demonstrate plain error, “an accused has the burden to demonstrate a reasonable probability that the convictions are

for allied offenses of similar import committed with the same c onduct and without a separate

animus * * *.” Rogers at ¶ 3. “[A] defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of th e following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct show s that the offenses we re committed separately, or (3) the conduct shows that the offenses were committed with separate animus.” State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, para graph three of the syllabus. {¶34} With respect to K.R., Austin was convi cted of committing (1) one count of rape and one count of GSI between January 12, 2003, a nd January 11, 2004; and (2 ) one count of rape and one count of GSI between January 12, 2004, and January 11, 2005. Austin argues that each set of his rape and GSI convictions should have merged beca use “[t]here was no distinguishing evidence presented at trial to establish that the offenses were separately committed, resulted in[ ]separate identifiable harm, or were committed with a separate motivation * * *.” {¶35} As noted in our discussion of Austin’s first assignment of error, K.R. testified that she was five years old when she started kindergar ten and when Austin began raping her. She stated that Austin raped her during “the wormy game” while she was in kindergarten and first grade and that the game included “touch[ing] the other person on their penis or their vagina * *

*.” She testified that her fa mily moved during first grade and the abuse continued at her new

house. She described how Austin would call her to his room after school, would instruct her to undress, and then “would start to touch [her]” befo re engaging in vaginal intercourse with her. She stated that Austin sexually assaulted her in the foregoing manner “three to four times a week” until she was in the third grade.17

{¶36} A defendant may be convicte d of multiple offenses if his “conduct shows that the offenses were committed separately * * *.” Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, at paragraph three of the syllabus. K.R. specifically testified that “the wormy game” Austin forced her to play in kindergarten and first grade en compassed both the “touch[ing] [of] the other person on their penis or their vagina” and vaginal intercourse. She also testified that, from first to third grade, Austin would touch her after sh e had removed her clothes and would then engage in vaginal intercourse with her. She estimated that Austin sexually assaulted her in the foregoing manners three to four times a week between kindergarten and third grade. Accordingly, even assuming that one particular inci dent of sexual assault should not have resulte d in separate convictions for rape and GSI, Austin has not show n that his convictions for any given year stem from a single incident. The record reflects that the jury could have convicted him for rape as to

one incident and for GSI as to a separate incident, occurring on a di fferent day or week. As such,

Austin has not shown that there exists “a reas onable probability that [his] convictions are for allied offenses of similar import committe d with the same conduct * * *.” Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, at ¶ 3. {¶37} Austin’s fifth assignment of error is sustained only to the extent that the State has conceded error. It is overruled with respect to his claim that his two remaining GSI convictions should have merged with his rape convictions.

ASSIGNMENT OF ERROR VI

DANIEL AUSTIN’S CONVICTIONS FOR RAPE AND GROSS SEXUAL IMPOSITION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶38} In his sixth assignment of error, Austin argues that his convictions are against the manifest weight of the evidence. We disagree.18

{¶39} When considering whether a conviction is against the manifest weight of the evidence, this Court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the convicti on must be reversed and a new trial ordered. State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the conflicting testimony.” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.

Florida , 457 U.S. 31, 42 (1982). An a ppellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases in which the evidence weighs heavily against the conviction. Otten at 340. {¶40} Austin argues that the jury lost its way in convicting him and in choosing to believe K.R. and L.B., despite their failure to disclose the alleged sexual assaults for a number of years. He notes that the two described virtually all the sexual assaults as having occurred in places where other family members could have seen. According to Austin, “[i]t is simply

unbelievable that a minor would commit these acts against other minors in such public places, sometimes with other people present, and that they were never caught.” He further argues that, contrary to K.R.’s and L.B.’s testimony, there was testimony that he was not frequently alone with either girl. {¶41} This Court has previously outlined much of K.R.’s testimony in the preceding assignments of error. She described how Austin sexually abused her numerous times over the years, taking advantage of instances when he was alone with her. She testified that she did not19

disclose the abuse to anyone at first becau se she did not understa nd that it was abnormal behavior for brothers and sisters. When she did learn the truth, she still did not disclose the

abuse because Austin threatened to kill their mother if she told. K.R. testified that she was hospitalized for a week at age ten because she atte mpted suicide. She stated that she tried to hang herself so that the abuse would stop and sh e would not have to worry about her mother. According to K.R., she ultimately told her mother about the abuse at age seventeen because she

overheard a conversation between Austin and th eir mother. During the conversation, Austin became angry with their mother for taking his daughter to an unfamiliar man’s house when he did not know whether the man “[did] drugs * * * [o r] touche[d] little girls.” K.R. testified that the sheer hypocrisy of Austin’s statement caused her to breakdown and tell her mother about the

abuse. {¶42} After K.R.’s disclosure, her mother contacted the police. Her mother confirmed

that K.R. told her about the sexual abuse afte r the aforementioned conversation with Austin in which he accused her of exposing his daughter to a potential pedophile. She confirmed that there were many instances when K.R. and Austin we re alone growing up because she had to work. She testified that, at one point, she also attende d night school a few nights a week and left the children with their cousins, including L.B. Additionally, K.R.’s mother stated that L.B. walked K.R. home from school when she was in first gr ade and that the girls and Austin would be unsupervised for about one hour each day. {¶43} Much like K.R., L.B. testified to a pattern of abuse that began when she was about five years old. She testified that, when she wa s “probably seven, maybe eight,” Austin briefly had vaginal intercourse with her on the carpeted stairs at her house. When she was “[p]robably eight or nine” and the weather was warm, she r ecalled that he made he r sit on his lap on the20

couch so that he could have va ginal intercourse with her. When she was “[p]robably nine, maybe ten,” she recalled Austin having intercour se with her in the pool outside by pulling her bathing suit to the side and having her on top of him while attempting to support himself from

behind. {¶44} L.B. testified that she was in fourth grad e (i.e., between nine and ten years of age) when Austin and his family moved to a new hous e, and she began walking his younger sister, K.R., home from school each day. She recalled an incident during that school year when Austin called her to his room, had her undr ess, and had vaginal in tercourse with her. She testified that Austin bit her breast during the incident before “he pulled out and [] ejaculated all over [her] chest, [her] stomach, [and her] legs.” She furthe r testified that he kisse d her and put his tongue in her mouth after she had dressed and was attempting to leave. She stated that there were

“several incidents like th at at that location that same school year.” {¶45} L.B. testified that, during he r seventh grade year (i.e., between twelve and thirteen years of age), Austin lived with her family for several months. While he lived there, Austin pushed L.B. onto the couch one day after school and had vaginal intercour se with her. She

recalled another incident at the house when he ha d vaginal intercourse with her in her bedroom. Further, she recalled instances of Aus tin wanting her to perform oral sex. {¶46} L.B. stated that incidents of penetration would occur whenever Austin “had the opportunity * * * [to] get [her] alone * * *.” Sh e specified that, between the fall of 2002 and the fall of 2008, Austin penetrated her “[w]eek ly, maybe biweekly, just depending on the opportunity at the time.” She also testified: “ev ery time that we were not in school, [Austin] did not always penetrate me, but there was always so me sort of sexually inappropriate conduct.”21

{¶47} L.B. testified that she did not initially disclose the sexual assaults because she was

afraid no one would believe her and that they would think she just wanted attention. L.B. indicated that the abuse caused her to engage in self-harm as a teenager and ultimately to tell two very close friends what had happened. She did not officially come forward, however, until after

she learned that others were maki ng accusations against Austin. She testified that, at that point, she realized Austin had been harming ot hers as well and “it needed to stop.” {¶48} Austin testified in his own defense a nd vehemently denied ever sexually assaulting either K.R. or L.B. He testified that he was rarely alone with either girl growing up because he preferred to be around his older, male cousins and he played a lot of football after school. According to Austin, he was “heartbroke n” and “terrified” when he learned of the allegations because he did not understand why K.R. and L.B. had wrongfully accused him. Although Austin acknowledged that he suggested hi s half-brother take a polygraph in his stead, he claimed that he made the statement sarcastically. He also presented the testimony of several other family members who testified that they were close with K.R. and L.B. and that the girls had never given any indications of abuse. {¶49} Having reviewed the record, we cannot concl ude that the jury lost its way when it found Austin guilty. Although both K.R. and L.B. waited several years to disclose the abuse, they explained their reasons for not disclosing at an earlier date. Further, while Austin claimed that he was rarely alone with either girl and presented some evidence to that effect, the State presented conflicting evidence, including the testimony of Austin’s mother. The jury was in the “best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson , 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. This Court has repeatedly held that it “will not overturn a convi ction as being against the manifest weight of22

the evidence simply because the trier of fact chose to believe the State’s version of events over

another version.” State v. Barger , 9th Dist. Medina No. 14CA0074-M, 2016-Ohio-443, ¶ 29.

The record reflects that this is not the ex ceptional case where the ev idence weighs heavily against Austin’s convictions. See Otten , 33 Ohio App.3d at 340. As such, his sixth assignment

of error is overruled.

ASSIGNMENT OF ERROR VII

DANIEL AUSTIN WAS DENIED HIS FUNDAMENTAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE CONSTI TUTION OF THE UNITED STATES OF AMERICA AND MADE APPLICABLE TO THE STATES BY AND THROUGH THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA. {¶50} In his seventh assignment of error, Aus tin argues that he received ineffective assistance of counsel. We disagree. {¶51} In order to prevail on a claim of ineff ective assistance of counsel, Austin must show that his “counsel’s performance fell below an objective standard of reasonableness and that prejudice arose from counsel’s performance.” State v. Reynolds , 80 Ohio St.3d 670, 674 (1998), citing Strickland v. Washington , 466 U.S. 668, 687 (1984). “The benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial pr ocess that the trial cannot be re lied on as having produced a just

result.” Strickland at 686. Thus, a two-prong test is necessary to examine such claims. First, Austin must show that counsel’s performance was objectively deficient by producing evidence that counsel acted unreasonably. State v. Keith , 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second, he must demonstr ate that, but for counsel’s er rors, there is a reasonable probability that the results of his trial would have been different. Keith at 534.23

{¶52} Austin argues that his counsel was ineff ective for two reasons. First, he argues

that his counsel was ineffective because he di d not renew Austin’s motion to dismiss three counts of the indictment (i.e., c ount 1 and renumbered counts 6 and 15 ). Austin argues that those three counts ought to have been dismissed because there was no evidence that he committed them when he was at least fourteen years old. Second, he argues that hi s counsel was ineffective for not objecting to the imposition of allied offenses of similar import. {¶53} This Court has already vacated renumbe red count 15. Moreover, in analyzing Austin’s previous assignments of error, this Court has already determined that he (1) was not

entitled to a dismissal on count 1 and renumbered counts 6, and (2 ) was not sentenced to allied offenses of similar import. Accordingly, even assuming his counsel should have either renewed his motion to dismiss or objected to allied offe nses at sentencing, Au stin cannot demonstrate prejudice as a result of hi s counsel’s performance. See id. Austin’s seventh assignment of error

is overruled on that basis.

III. {¶54} Austin’s first and fifth assignments of e rror are sustained in part and overruled in part. His remaining assignments of error are overruled. Austin’s convictions under renumbered count 8, renumbered count 9, renumbered count 1 0, renumbered count 15, renumbered count 16, renumbered count 18, and renumbe red count 19 are vacated. The judgment of the Summit County Court of Common Pleas is affirmed in part , reversed in part, and the cause is remanded for the trial court to enter a judgment of c onviction in accordance with the foregoing opinion. Judgment affirmed in part, reversed in part, and cause remanded.24

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: BARBARA J. ROGACHEFSKY, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.