[Cite as State v. Sims, 2023-Ohio-1179.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ATHENS COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case 

No. 21CA15

v. :

GRANT ADRIAN MYQUAL SIMS, : DECISION AND JUDGMENT ENTRY 

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Kort Gatterdam and Erik P. Henry, Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and 

Merry M. Saunders, Athens County Assistant Prosecuting Attorney, 

Athens, Ohio, for appellee.

________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:4-3-23

ABELE, J.

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

Court judgment of conviction and sentence. A jury found Grant 

Adrian Myqual Sims, defendant below and appellant herein, guilty 

of two counts of rape, in violation of R.C. 2907.02(A)(2) and 

R.C. 2907.02(A)(1)(c). 

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S MOTION TO SEVER THE RAPE CHARGES 

INTO SEPARATE TRIALS AND VIOLATED 
Athens App. No. 21CA15 2

APPELLANT’S DUE PROCESS AND FAIR TRIAL 

RIGHTS GUARANTEED BY THE UNITED STATES AND 

OHIO CONSTITUTIONS.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN ADMITTING HEARSAY 

STATEMENTS AND VIOLATED APPELLANT’S RIGHTS 

TO DUE PROCESS AND TO A FAIR TRIAL AS 

GUARANTEED BY THE UNITED STATES AND OHIO 

CONSTITUTIONS.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN ADMITTING MEDICAL 

RECORDS AND EVIDENCE COLLECTION KITS THEREBY 

VIOLATING APPELLANT’S RIGHTS TO DUE PROCESS 

AND TO A FAIR TRIAL AS GUARANTEED BY THE 

UNITED STATES AND OHIO CONSTITUTIONS.”

FOURTH ASSIGNMENT OF ERROR:

“THE ADMISSION OF OTHER ACTS TESTIMONY AND 

EVIDENCE REGARDING OFFENSES TO WHICH 

APPELLANT PLED GUILTY TO VIOLATED RULES 403 

AND 404 AND APPELLANT’S RIGHTS TO DUE 

PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY 

THE UNITED STATES AND OHIO CONSTITUTIONS.”

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN ADMITTING RECORDS 

FROM THE BUREAU OF CRIMINAL INVESTIGATION 

THEREBY VIOLATING APPELLANT’S RIGHTS TO DUE 

PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY 

THE UNITED STATES AND OHIO CONSTITUTIONS.”

SIXTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS 

TO DUE PROCESS AND A FAIR TRIAL WHEN IT 

ENTERED A JUDGMENT OF CONVICTION BASED ON 

INSUFFICIENT EVIDENCE AND AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION 

OF APPELLANT’S RIGHTS UNDER THE UNITED 

STATES AND OHIO CONSTITUTIONS.”

SEVENTH ASSIGNMENT OF ERROR:
Athens App. No. 21CA15 3

“THE TRIAL COURT IMPOSED A SENTENCE CLEARLY 

AND CONVINCINGLY CONTRARY TO LAW, THE RECORD 

CLEARLY AND CONVINCINGLY DOES NOT SUPPORT 

THE TRIAL COURT’S SENTENCING FINDINGS, AND 

THE SENTENCE IMPOSED IS INCONSISTENT WITH 

THE PURPOSES AND PRINCIPLES OF SENTENCING 

CONTRARY TO R.C. 2929.11 AND R.C. 2929.12 

AND APPELLANT’S RIGHTS TO DUE PROCESS 

GUARANTEED BY SECTION 10, ARTICLE I OF THE 

OHIO CONSTITUTION AND THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION.

{¶3} This appeal involves two separate encounters that 

occurred between appellant and J.K. and K.H.1 Appellant does not 

deny sexual encounters with the individuals, but instead 

contends that the encounters were consensual.

{¶4} On October 24, 2018, appellant met J.R. at a hookah 

lounge. The next day, J.R. told friends she had been sexually 

assaulted, and later sought an examination at a local hospital.

{¶5} On September 18, 2019 or the early morning hours of 

September 19, 2019, appellant met K.H. after she spent many 

hours drinking alcohol. When K.H. awoke the next day, she 

thought she had been raped and visited a hospital for 

examination. The results of each examination identified 

appellant as the individual who had engaged in sexual contact 

1 Appellant also was charged with rape that involved a third 

individual, K.K. The jury found appellant not guilty of this 

offense. We therefore do not include additional details of 

appellant’s encounter with K.K. unless relevant to appellant’s 

assignments of error. 
Athens App. No. 21CA15 4

with J.R. and K.H. 

{¶6} On February 24, 2020, an Athens County Grand Jury 

returned an indictment that charged appellant with (1) three 

counts of rape, in violation of R.C. 2907.02(A)(2), (2) one 

count of rape in violation of R.C. 2907.02(A)(1)(c), (3) one 

count of theft, in violation of R.C. 2913.02(A)(1), and (4) one 

count of identity fraud, in violation of R.C. 2913.49(B)(1). 

Appellant pleaded not guilty to all charges.

{¶7} Subsequently, appellant filed a motion to sever the 

charges for trial. Appellant asserted that trying the cases 

together, with three different victims, would cause undue 

prejudice and allow the state to, in effect, introduce “other 

acts” evidence. Appellant argued that trying the offenses 

together would cause him to suffer the following unfair 

prejudice: (1) the jury would hear “inflammatory accusations” 

that three individuals accused appellant of rape before hearing 

any evidence, which would “create an image of an individual 

predisposed to preying on women”; (2) the facts regarding “each 

incident contain slight similarities that present a strong 

likelihood the jury will confuse the incidents”; and (3) 

appellant’s “ability to testify may be severely hampered.” 

Appellant further asserted that the state could not overcome his 

showing of prejudice because the state could not establish that 

the evidence regarding the joined offenses would be admissible 
Athens App. No. 21CA15 5

as other-acts evidence, or that the evidence concerning each 

offense is simple and direct. 

{¶8} The state, however, asserted that trying the offenses 

together would not prejudice appellant’s right to a fair trial. 

The state disputed appellant’s claim that joining the offenses 

would impede his ability to testify and claimed that the 

evidence would be simple and direct.

{¶9} After consideration, the trial court overruled 

appellant’s motion to sever the charges into separate trials and 

stated that appellant “failed to furnish sufficient information 

to establish that his rights would be prejudiced by trying 

separate counts together at trial.” 

{¶10} On July 20 to July 23, 2020, the trial court held a 

jury trial. Before the trial began, appellant pleaded guilty to 

counts five and six: (1) theft, in violation of R.C. 

2913.02(A)(1); and (2) identity fraud, in violation of R.C. 

2913.49(B)(1). 

{¶11} At trial, J.R. testified that, while she talked to a 

friend at a local hookah lounge, she noticed appellant enter the 

lounge. After they spoke and exchanged contact information, 

appellant unexpectedly kissed her. J.R. indicated she “was 

extremely uncomfortable and embarrassed.”

{¶12} As J.R. prepared to leave the lounge, appellant asked 

her for a ride and she agreed. When they reached appellant’s 
Athens App. No. 21CA15 6

residence, which happened to be very near to the lounge, 

appellant told J.R. to pull into a driveway. Once in the 

driveway, appellant “insisted” J.R. move to the vehicle’s 

backseat. J.R. stated she became scared and did not exit the 

vehicle because “there would have been nowhere to go to.” 

Additionally, J.R. stated that her car belonged to her 

grandfather and she did not feel she could abandon it.

{¶13} After J.R. followed appellant’s instructions and 

crawled into the backseat, appellant removed her pants and 

undergarments, then began to perform cunnilingus and inserted 

his fingers into her vagina. J.R. told appellant “no” and that 

she did not want him to do that, but appellant did not stop. 

J.R. related that she “was panicking,” her “body shut down,” and 

she was crying. Appellant then began to place his penis inside 

her vagina. 

{¶14} At that point, a car stopped next to them in the 

driveway and appellant exited. Before he did go, he told J.R. 

that “he thought that it might have been a kink for [her] to say 

no.” J.R. responded, however, that she “really did mean no.” 

J.R. then pulled up her pants, returned to the front seat and 

drove away. As she drove home, she stated she “was in a state 

of shock.” 

{¶15} J.R. explained that she went to work the day after the 

incident, but did not remember going to work and could not focus 
Athens App. No. 21CA15 7

on her job. When a co-worker asked J.R. if she was okay, J.R. 

said she was not and told the co-worker that she should have 

called off work.

{¶16} When the state introduced into evidence a copy of 

Facebook messages that J.R. exchanged with the manager of the 

hookah lounge, appellant objected and claimed the messages are 

hearsay. The state asserted, however, that the messages are 

present sense impressions or excited utterances. The trial 

court overruled appellant’s objection. J.R. then reviewed the 

exhibit that contained a copy of her Facebook message to the 

lounge owner, Maj. In the message, J.R. asked Maj if he could 

“ban someone for [her],” and she “was just sexually assaulted.”

{¶17} The state also attempted to introduce into evidence 

another Facebook message that J.R. exchanged with a friend. 

After appellant objected, the trial court asked about the amount 

of time that elapsed between the incident and J.R.’s messages, 

and the state indicated that J.R. made the statements the next 

day. The court then overruled the objection and J.R. testified 

that on October 25, 2018 she messaged her friend that she “was 

just sexually assaulted.” 

{¶18} After J.R.’s testimony, the state informed the trial 

court that it intended to present testimony and evidence 

regarding J.R.’s medical records, and that appellant planned to 

object to the admission of those records. Appellant argued that 
Athens App. No. 21CA15 8

the medical records did not fall within any hearsay exception, 

and instead, fell more within the realm of law enforcement 

investigative effort than statements related to medical 

treatment. The trial court, however, overruled the objection.

{¶19} At that point, registered Nurse Rachel Burns Carter 

testified that she performed J.R.’s intake examination. During 

her testimony, Carter read directly from J.R.’s incident 

narrative and recited a direct quote from J.R. Appellant did 

not object when Carter read directly from J.R.’s narrative. 

After Carter obtained J.R.’s narrative, she began the evidencecollection process. When the state introduced the sexualassault evidence-collection kit, appellant objected and wished 

to “renew the objection with the same basis.” The court noted, 

then overruled, appellant’s objection.

{¶20} K.H. testified that on September 18, 2019, she 

celebrated a friend’s birthday and, throughout the night, 

consumed multiple alcoholic beverages. K.H. stated that she 

does not remember every part of the evening and does not 

remember leaving the last bar she visited, but does remember 

sitting on her porch listening to music. As K.H. sat on her 

porch, appellant approached her and commented on the music and 

“that’s really all that [K.H.] remember[s].” K.H. indicated 

that she does not remember anything else except “[t]he next 

thing” “is waking up the next day.” 
Athens App. No. 21CA15 9

{¶21} K.H. testified that when she eventually awoke around 

1:30 p.m., she “was completely naked” and “like covered in 

piss.” When K.H. visited the bathroom she also discovered 

bleeding from her anus. She then looked for her belongings and 

discovered her purse had been rummaged through and her debit 

card missing. K.H. then left her house and visited a 

restaurant. As she waited in line at the restaurant, she told a 

friend about the previous night’s events and stated, “I think I 

got raped last night actually.” At that point, K.H. went home 

to call her mother.

{¶22} The state next introduced into evidence a text message 

from K.H. to her boss the day after the encounter. Appellant 

objected and asserted the message constitutes inadmissible 

hearsay, but the state argued that the statement is an excited 

utterance. The trial court overruled appellant’s objection, but 

determined the state could not introduce the printed text 

message into evidence. The prosecutor then asked K.H. to read 

her text message, “hey something really traumatic happened to me 

last night and I do not (inaudible). Will you please work my 

five to close tonight?” After she sent the text message, K.H. 

visited the hospital.

{¶23} K.H. later discovered that someone had used her debit 

card at multiple locations and spent approximately $1,500. The 

state introduced evidence that appellant had used the debit 
Athens App. No. 21CA15 10

card, but appellant objected regarding the specific locations 

and the use of the debit card. In particular, appellant argued 

that because he had pleaded guilty to theft and identity fraud, 

any evidence regarding the debit card is not relevant. The 

state asserted, however, that the evidence is relevant to show 

how police apprehended appellant. The trial court agreed and 

overruled appellant’s objection.

{¶24} After K.H.’s testimony, the state indicated that it 

intended to present evidence regarding K.H.’s medical records. 

Although appellant again argued that the medical records did not 

fall within any hearsay exception, the trial court overruled the 

objection. Registered Nurse Jennifer Young then testified that 

on September 19, 2019, she performed K.H.’s sexual-assault 

examination. During her testimony, Young read directly from 

K.H.’s incident narrative and stated that it is a direct quote 

from K.H. Appellant did not object.

{¶25} After the state presented the individual accounts of 

each incident and each individual’s nurse’s testimony, the state 

introduced testimony from forensic scientists who tested DNA 

obtained from the medical kits. Shortly after Bureau of 

Criminal Investigation forensic scientist Devonie Herdeman began 

to testify, appellant objected to the BCI reports, as well as 

the corresponding testimony, and asserted that because the 

reports and testimony contain the words “offense” and “victim,” 
Athens App. No. 21CA15 11

the use of those terms suggests “a rape has occurred and that 

[appellant] did it.” Appellant also argued that the reports 

constitute inadmissible hearsay and Evid.R. 803(8) prohibits the 

reports because they are similar to a police officer’s report of 

an investigation. The trial court, however, overruled 

appellant’s objection. Herdeman and other BCI forensic 

scientists then testified that the DNA obtained during the 

medical examinations matched appellant’s DNA profile. 

{¶26} The state next called to testify forensic toxicologist 

Dr. George Behonick, who stated that K.H. had a .146% blood 

ethanol concentration when submitted on September 19, 2019 at

5:00 p.m. Dr. Behonick also explained the effects alcohol has 

on the nervous system and, as the blood-alcohol concentration 

surpasses .3%, a person can appear to be “in a stupor” or 

“comatose,” and the person’s memory impaired.

{¶27} Appellant testified in his defense and admitted he 

engaged in sexual contact with J.R. and K.H., but maintained the 

contact had been consensual. Appellant explained that he met 

J.R. at the hookah lounge and thought they made a connection, so 

he kissed her. When the lounge closed, he asked J.R. for a ride 

home, and she agreed. When he and J.R. arrived in his driveway 

he told J.R. he did not like the front seat and that he 

“want[ed] to get in the backseat with [her],” J.R. agreed. Once 

in the backseat, appellant told J.R. she looked beautiful and he 
Athens App. No. 21CA15 12

wanted to kiss her. Appellant then engaged in oral sex with 

J.R. and he thought “it was okay for us to have sex,” but when 

he placed his penis on J.R., she began to cry and, when she 

started to cry, he “immediately put [his] penis away.” 

Appellant told J.R. that he was “sorry” if she thought it was 

“too much.” According to appellant, J.R. responded, “no I just 

feel like I’m a hoe.” Appellant said that he and J.R. then 

exchanged contact information and J.R. left. 

{¶28} The next day, appellant messaged J.R. to ask if he 

left his marijuana inside her car. When J.R. did not 

immediately respond, he called her. J.R. later messaged 

appellant to ask where he thought he left his marijuana. 

Appellant, however, eventually found his marijuana in his house 

and then texted J.R. to let her know and to apologize for the 

previous night. 

{¶29} Appellant also testified that he met K.H. while he 

urinated in an alley. Appellant claimed that K.H. tapped him on 

the shoulder, invited him to her residence, and once at the

residence, he visited and exited the bathroom and K.H. was 

“naked and ready to engage in sex.” Appellant stated that he 

engaged in “anal, oral, [and] vaginal” sex with K.H. 

{¶30} Appellant further stated that, after he engaged in 

sexual relations, he used the bathroom. When he again exited 

the bathroom and found K.H. asleep, he decided to leave the 
Athens App. No. 21CA15 13

residence. Before doing so, he took K.H.’s debit card and cash.

{¶31} On July 23, 2021, after hearing the evidence and 

counsels’ arguments, the jury found appellant (1) guilty of the 

rape offense that involved J.R., (2) not guilty of an alleged 

rape offense that involved K.K., (3) not guilty of the R.C. 

2907.02(A)(2) rape offense that involved K.H., and (4) guilty of 

the R.C. 2907.02(A)(1)(c) rape offense that involved K.H.

{¶32} The trial court sentenced appellant to serve (1) 11 

years in prison for each rape count, with a possible maximum 

term of 16 years and 6 months, (2) 12 months for the theft 

offense, and (3) 18 months for the identity fraud offense. The 

court further ordered the sentences for the rape offenses and 

the identity fraud offense to be served consecutively to one 

another for a total minimum term of 23 years and 6 months, with 

a maximum term of 29 years. This appeal followed.

I

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

that the trial court erred by denying his Crim.R. 14 motion to 

sever the rape charges, which involved three different victims, 

into separate trials. In particular, appellant asserts that to 

allow the cases to be tried together caused him prejudice 

because it (1) permitted the state to introduce inadmissible 

other-acts evidence that would not have been admissible if the 

cases had been tried separately, (2) impacted his “right to 
Athens App. No. 21CA15 14

testify” in that “he would be required to ‘testify as to all of 

the allegations against him’ or risk the jurors questioning why 

he would testify to some, but not all, of the allegations,” and 

(3) included evidence regarding the three encounters that is not 

simple or direct.

{¶34} The state argues that the trial court did not abuse 

its discretion because it could have introduced evidence 

regarding each occurrence as other-acts evidence or, 

alternatively, the evidence regarding each crime is simple and 

direct.

{¶35} Crim.R. 8(A) specifies that “[t]wo or more offenses 

may be charged in the same indictment, information or complaint 

in a separate count for each offense if the offenses charged * * 

* are of the same or similar character * * *.” The rule further 

permits the joinder of offenses that “are based on the same act 

or transaction, or are based on two or more acts or transactions 

connected together or constituting parts of a common scheme or 

plan, or are part of a course of criminal conduct.” 

{¶36} As a general rule, the law favors joinder and the 

avoidance of multiple trials. E.g., State v. Gordon, 152 Ohio 

St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 18. Joint trials 

“conserve[] judicial and prosecutorial time, lessen[] the not 

inconsiderable expenses of multiple trials, diminish[] 

inconvenience to witnesses, and minimize[] the possibility of 
Athens App. No. 21CA15 15

incongruous results in successive trials before different 

juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400 N.E.2d 

401 (1980); accord Zafiro v. United States, 506 U.S. 534, 537, 

113 S.Ct. 933, 122 L.Ed.2d 317 (1993), quoting Richardson v. 

Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) 

(joint trials “promote efficiency and ‘serve the interests of 

justice by avoiding the scandal and inequity of inconsistent 

verdicts’”). If, however, joinder prejudices a defendant, 

Crim.R. 14 gives a trial court discretion to sever the trials: 

“If it appears that a defendant * * * is prejudiced by a joinder 

of offenses * * *, the court shall order an election or separate 

trial of counts, * * *, or provide such other relief as justice

requires.”

{¶37} Appellate courts review trial court decisions 

regarding a Crim.R. 14 motion to sever criminal charges under 

the abuse of discretion standard. State v. Ford, 158 Ohio St.3d 

139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 106; State v. Hand, 107 

Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. An abuse 

of discretion implies that a court’s attitude is unreasonable, 

arbitrary or unconscionable. “‘A decision is unreasonable if 

there is no sound reasoning process that would support that 

decision.’” Ford at ¶ 106, quoting AAAA Ents., Inc. v. River 

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 

161, 553 N.E.2d 597 (1990). “[A]n ‘arbitrary’ decision is one 
Athens App. No. 21CA15 16

made ‘without consideration of or regard for facts [or] 

circumstances.’” State v. Beasley, 152 Ohio St.3d 470, 2018-

Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black’s Law Dictionary 125 

(10th Ed.2014), and citing Dayton ex rel. Scandrick v. McGee, 67 

Ohio St.2d 356, 359, 423 N.E.2d 1095 (1981), quoting Black’s Law 

Dictionary 96 (5th Ed.1979) (“arbitrary” means “‘without 

adequate determining principle; * * * not governed by any fixed 

rules or standard’”). An unconscionable decision is one 

“showing no regard for conscience” or “affronting the sense of 

justice, decency, or reasonableness.” Black’s Law Dictionary 

(11th ed. 2019). An unconscionable decision also may be 

characterized as “[s]hockingly unjust or unfair.” Black’s Law 

Dictionary (11th ed. 2019). Moreover, when reviewing for an 

abuse of discretion, appellate courts must not substitute their

judgment for that of the trial court. E.g., State v. Grate, 164 

Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 187; In re Jane 

Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). 

{¶38} “A defendant who appeals the denial of relief bears a 

heavy burden” to establish that a trial court abused its 

discretion. Ford at ¶ 106. To establish that a trial court’s 

refusal to sever a trial constitutes an abuse of discretion, a 

defendant must establish that holding combined trials prejudiced 

the defendant’s rights. Gordon at ¶ 21; State v. Schaim, 65 

Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). The test is
Athens App. No. 21CA15 17

whether a joint trial is so manifestly prejudicial that 

the trial judge is required to exercise his or her 

discretion in only one way — by severing the trial. * * 

* A defendant must show clear, manifest and undue 

prejudice and violation of a substantive right resulting 

from failure to sever.

State v. Schiebel, 55 Ohio St.3d 71, 89, 564 N.E.2d 54 (1990), 

quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir. 

1989). A defendant must provide “the trial court with 

sufficient information so that it [can] weigh the considerations 

favoring joinder against the defendant’s right to a fair trial.” 

State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), 

syllabus; accord Ford at ¶ 106. Consequently, “a trial court 

does not abuse its discretion in refusing to grant severance 

where the prejudicial aspects of joinder are too general and 

speculative.” State v. Payne, 10th Dist. Franklin App. No. 

02AP–723, 2003–Ohio–4891. 

{¶39} If a defendant presents sufficient information to show 

that joining offenses for trial will prejudice the defendant’s 

rights, the state can overcome the defendant’s claim of 

prejudicial joinder by showing either: (1) the state could have 

introduced evidence of the joined offenses as other acts under 

Evid.R. 404(B) (the other-acts test); or (2) the “evidence of 

each crime joined at trial is simple and direct” (the joinder 

test). E.g., State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 

293 (1990). “‘The two tests are disjunctive, so that the 
Athens App. No. 21CA15 18

satisfaction of one negates a defendant’s claim of prejudice 

without consideration of the other.’” State v. Wright, 4th 

Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶ 51, quoting State v. 

Sullivan, 10th Dist. Franklin No. 10AP–997, 2011–Ohio–6384, ¶ 

23. Accordingly, “‘[i]f the state can meet the joinder test, it 

need not meet the stricter ‘other acts’ test.’” State v. 

Johnson, 88 Ohio St.3d 95, 109, 723 N.E.2d 1054 (2000), quoting 

State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991). 

{¶40} Evidence of joined offenses is simple and direct when 

(1) the jury is capable of readily separating the proof required 

for each offense; (2) the evidence is unlikely to confuse the 

jurors, (3) the evidence is straightforward and easy to 

understand; (4) the offenses involve different victims, 

different incidents, and different witnesses; and (5) little 

danger exists that the jury would improperly consider testimony 

on one offense as corroborative of the other. State v. 

Freeland, 4th Dist. No. 12CA3352, 2015-Ohio-3410, ¶ 14; accord

State v. Pate, 2021-Ohio-1838, 173 N.E.3d 567, ¶ 57 (2nd Dist.); 

State v. Wright, 4th Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶ 

52; State v. Dantzler, 10th Dist. Franklin No. 14AP-907, 2015-

Ohio-3641, ¶ 23; State v. Clifford, 135 Ohio App.3d 207, 212, 

733 N.E.2d 621 (1st Dist.1999). Furthermore, “‘Ohio appellate 

courts routinely find no prejudicial joinder where the evidence 

is presented in an orderly fashion as to the separate offenses 
Athens App. No. 21CA15 19

or victims without significant overlap or conflation of proof.’” 

State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, 

¶ 16, quoting State v. Lewis, 6th Dist. No. L-09-1224, 2010-

Ohio-4202, ¶ 33. 

{¶41} We additionally note that the purposes of the joinder 

test are (1) “to prevent the finder of fact from confusing the 

offenses,” State v. Varney, 4th Dist. Hocking No. 07CA18, 2008–

Ohio–5283, ¶ 19, and (2) “to prevent juries from combining the 

evidence to convict” the defendant of multiple crimes, “instead 

of carefully considering the proof offered for each separate 

offense.” State v. Mills, 62 Ohio St.3d 357, 362, 582 N.E.2d 

972 (1992). 

{¶42} In the case sub judice, we agree with the appellee 

that the evidence of each crime joined at trial is simple and 

direct. The prosecution presented the evidence that related to 

each offense in a simple and direct manner, and separately 

presented the circumstances of each individual’s encounter with 

appellant. The state first presented J.K.’s testimony and the 

testimony of the nurse who conducted her examination. Next, the 

state presented K.K’s testimony, the testimony of the nurse who 

conducted her examination, and the testimony of a witness with 

K.K. during the evening of K.K.’s encounter with appellant. 

After the state presented the evidence that surrounded K.K.’s 

encounter with appellant, the state presented K.H.’s testimony 
Athens App. No. 21CA15 20

and the testimony of the nurse who conducted her examination. 

After the state presented testimony from law enforcement 

officers involved in the investigations, the state introduced 

the forensic evidence involved with the three individuals. All 

forensic evidence identified appellant as the contributor of the 

DNA recovered during the examinations.

{¶43} After our review, we conclude that the evidence 

adduced at trial is not complicated or confusing, and the state 

presented the evidence in a logical manner. The evidence is, in 

fact, simple and direct. See State v. Kuck, 2016-Ohio-8512, 79 

N.E.3d 1164, ¶ 43 (2nd Dist.) (evidence simple and direct when 

prosecution first presented evidence that involved one victim 

then presented evidence that involved other victim); State v. 

Clyde, 6th Dist. Erie No. E–14–006, 2015–Ohio–1859, ¶ 38, 

quoting State v. Lewis, 6th Dist. Lucas Nos. L–09–1224, L–09–

1225, 2010–Ohio–4202, ¶ 33 (evidence simple and direct when 

“each victim testified as to his or her own experiences with 

[the defendant]” and stating joinder not prejudicial when “‘the 

evidence is presented in an orderly fashion as to the separate 

offenses or victims without significant overlap or conflation of 

proof’”); State v. Meeks, 5th Dist. Stark No.2014CA17, 2015–

Ohio–1527, ¶ 99 (evidence simple and direct when state “clearly 

laid out [the offenses] for the jury” and “[e]ach victim 

testified separately”); State v. Hillman, 10th Dist. Franklin 
Athens App. No. 21CA15 21

Nos. 14AP–252 and 14AP–253, 2014–Ohio–5760, 26 N.E.2d 1236, ¶ 40 

(evidence simple and direct when incidents “involved a simple 

set of facts and a limited number of witnesses whose testimony 

was straightforward”); State v. Moshos, 12th Dist. Clinton No. 

CA2009–0608, 2010–Ohio–735, ¶ 82 (evidence simple and direct 

when each victim “provided a detailed description of her own 

unwanted sexual encounters with appellant”); State v. Kissberth, 

2nd Dist. Montgomery No. 20500, 2005–Ohio–3059, ¶ 62 (evidence 

simple and direct when witnesses “testified only to their own 

experiences with” the defendant); State v. Ahmed, 8th Dist. 

Cuyahoga No. 84220, 2005–Ohio–2999, ¶ 26 (evidence simple and 

direct when “[e]ach victim testified as to the specific facts 

giving rise to her separate charges against” the defendant).

{¶44} Furthermore, we find nothing in the record to suggest 

that the jury could not separate the evidence with respect to 

each offense, or that the jury could have been confused. Most 

notably in the case at bar, we emphasize that the jury sifted 

through all the evidence and found appellant not guilty of the 

rape allegation that involved one victim, K.K., and not guilty 

of the R.C. 2907.02(A)(2) rape allegation that involved K.H. 

See State v. Sutton, 8th Dist. Cuyahoga No. 102300, 2015-Ohio4074, ¶ 25 (“[T]he jury’s not guilty verdicts on several of the 

charges demonstrated the jury’s ability to apply the evidence 

separately to each offense.”); State v. Evans, 4th Dist. Jackson 
Athens App. No. 21CA15 22

No. 10CA1, 2012-Ohio-1562, ¶ 38 (“Because the jury acquitted 

[the defendant] of one of the charges, we cannot find that the 

jury was confused by the evidence, overwhelmed by the number of 

counts, or influenced by the cumulative effect of the 

joinder.”); State v. Villa, 2d Dist. Montgomery No. 18868, 2002-

Ohio-2939, ¶ 51 (“[A] jury’s acquittal of a defendant on one or 

two charges establishes that the defendant was not prejudiced by 

the joinder of the charges against him”). Thus, in light of the 

jury’s verdict in the case sub judice, we believe that the 

record indicates that the jury considered each of the three 

individual’s encounters with appellant separately, and could 

appropriately separate the state’s proof with respect to each 

charge.

{¶45} Moreover, we do not agree with appellant that the

failure to sever the charges negatively impacted his right to 

testify. Appellant argues that, if the trial court separated 

the offenses into separate trials, he could have chosen to 

testify in some of the trials and remain silent in others 

without jeopardizing his defense concerning other offenses. 

Appellant thus argues that the failure to separate the offenses 

into separate trials forced him to testify regarding all alleged 

offenses, even though he may have chosen to remain silent if the 

offenses had been separated for trial.

{¶46} To establish that the failure to separate offenses for 
Athens App. No. 21CA15 23

trial prejudiced a defendant’s right to testify, a “defendant 

must make a convincing showing that he has important testimony 

to give concerning one cause, and a strong need to refrain from 

testifying in the other.” State v. Roberts, 62 Ohio St.2d 170, 

176, 405 N.E.2d 247 (1980). Additionally, the defendant “must 

produce sufficient information regarding the nature of the 

testimony he wishes to give in the one case, and his reasons for 

not wishing to testify in the other, so as to satisfy the court 

that his claim of prejudice is genuine.” Id.

{¶47} After our review in the case sub judice, we do not 

believe appellant presented any convincing reasons to support 

his argument that he might have chosen to testify in some of the 

cases, but not others. See generally State v. Dean, 146 Ohio 

St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 66 (“defendant’s mere 

desire to testify to only one count is an insufficient reason to 

require severance”). Here, appellant did not establish “a 

strong need to refrain from testifying” in one case, and 

“important testimony” to give in any other case. Thus, 

appellant has not established sufficient prejudice to warrant 

separate trials.

{¶48} We further note that courts have determined that any 

prejudice that may result from the joinder of offenses is 

minimized when a trial court cautions a jury before 

deliberations to consider each count, and the evidence 
Athens App. No. 21CA15 24

applicable to each count, separately, and to state its findings 

as to each count uninfluenced by its verdict on any other 

counts. State v. Freeland, 4th Dist. Ross No. 12CA3352, 2015-

Ohio-3410, ¶ 16, citing State v. Gibson, 6th Dist. Lucas No. L–

13–1223 and L–13–1222, 2015–Ohio–1679, ¶ 30. In the case at 

bar, we recognize that the trial court instructed the jury to 

consider each count, and the evidence applicable to each count, 

separately. Specifically, the trial court stated:

The four charges set forth in this case constitute 

separate and distinct matters. You must consider each 

charge and the evidence applicable to each charge 

separately. And you must state your findings as to each 

charge uninfluenced by your verdict as to the other 

charges. The Defendant may be found guilty or not guilty 

of any or all of the charged offenses.

Thus, we believe the trial court’s instruction minimized any 

possible prejudice that could result from the joinder of the 

offenses for trial. 

{¶49} Consequently, after our review in the case sub judice 

we do not believe that the trial court abused its discretion by 

overruling appellant’s motion to separate the trials. Here, a 

review of the record reveals that the evidence is simple and 

direct, and the jury could segregate the evidence when it 

determined whether the state had established, beyond a 

reasonable doubt, that appellant committed the charged offenses. 

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

overrule appellant’s first assignment of error.
Athens App. No. 21CA15 25

II

{¶51} In his second assignment of error, appellant asserts 

that the trial court erred by admitting into evidence certain 

hearsay statements. In particular, appellant contends that the 

court abused its discretion by admitting into evidence the 

following messages: (1) Facebook messages that J.R. exchanged 

with the hookah bar owner and with her friend; and (2) text 

message K.H. sent to her boss. 

{¶52} Appellant argues these statements are not relevant and 

their prejudicial effect substantially outweigh any probative 

value. Appellant further alleges that the statements should not 

be admitted into evidence under the present-sense-impression or 

excited-utterance exceptions to the hearsay rule because, 

appellant reasons, neither J.R. nor K.H. sent the messages at 

the time they perceived the events or while under the stress of 

excitement. Instead, appellant contends that both J.R. and K.H. 

sent their messages after sufficient time passed to reflect upon 

events. 

A

{¶53} Initially, we observe that trial courts typically 

enjoy broad discretion to determine whether a declaration falls 

within a hearsay exception. State v. McKelton, 148 Ohio St.3d 

261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97 (hearsay rulings 

ordinarily reviewed for abuse-of-discretion unless 
Athens App. No. 21CA15 26

constitutional rights implicated under Confrontation Clause); 

State v. Dever, 64 Ohio St.3d 401, 410, 596 N.E.2d 436 (1992) 

(“trial court has broad discretion to determine whether a 

declaration should be admissible as a hearsay exception”). 

Appellate courts, therefore, generally will not disturb a trial 

court’s evidentiary ruling unless the court “‘has clearly abused 

its discretion and the defendant has been materially prejudiced 

thereby.’” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio1594, 63 N.E.3d 93, ¶ 61, quoting State v. Issa, 93 Ohio St.3d 

49, 64, 752 N.E.2d 904 (2001). As we noted earlier, an abuse of

discretion implies that a court’s attitude is unreasonable, 

arbitrary or unconscionable. E.g., State v. Clinton, 153 Ohio 

St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 60 citing Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶54} In the case sub judice, as we explain below, we do not 

believe that the trial court abused its discretion by allowing 

the state to introduce J.R.’s and K.H.’s out-of-court 

statements.

B

{¶55} Appellant argues that the statements in question are 

not relevant under Evid.R. 401 and, even if relevant, the 

prejudicial effect substantially outweighs any probative value. 

We first note, however, that appellant does not point to the 

record where he objected to the statements based on relevancy or 
Athens App. No. 21CA15 27

prejudicial impact. Instead, as noted in appellant’s brief, 

appellant objected to J.R.’s out-of-court statements for the 

following reasons: “the messages constituted out-of-court 

declarations, an attempt to bolster J.R.’s credibility, and 

extrinsic evidence of her character, and also lacked 

foundation.” Appellant’s Brief at 13. Moreover, when appellant 

objected to K.H.’s testimony, he objected on the basis of 

hearsay and further argued it is “duplicative and redundant 

extrinsic evidence.” Trial Transcript Day Two at 82. Thus, 

because appellant did not argue before the trial court that the 

statements are not relevant or are unfairly prejudicial, he may 

not raise these issues for the first time on appeal. See 

generally State v. Russell, 4th Dist. Ross No. 21CA3750, 2022-

Ohio-1746, ¶ 90 (objecting on one basis does not preserve other 

unmentioned grounds); Independence v. Office of the Cuyahoga 

Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 

1182, ¶ 30 (may not raise argument on appeal not raised in trial 

court).

{¶56} Appellate courts may, however, consider a forfeited 

argument using a plain-error analysis. See Risner v. Ohio Dept. 

of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278, 

2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (reviewing court has 

discretion to consider forfeited constitutional challenges); see 

also Hill v. Urbana, 79 Ohio St.3d 130, 133–34, 679 N.E.2d 1109 
Athens App. No. 21CA15 28

(1997), quoting In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 

(1988), syllabus (“‘[e]ven where [forfeiture] is clear, 

[appellate] court[s] reserve[] the right to consider 

constitutional challenges to the application of statutes in 

specific cases of plain error or where the rights and interests 

involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning 

No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th 

Dist. No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (plain-error doctrine 

“‘is a wholly discretionary doctrine’”); DeVan v. Cuyahoga Cty. 

Bd. of Revision, 8th Dist. Cuyahoga, 2015-Ohio-4279, 45 N.E.3d 

661, ¶ 9 (appellate court retains discretion to consider 

forfeited argument); see Rosales-Mireles v. United States, ___ 

U.S. ___, 138 S.Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) (court 

has discretion whether to recognize plain error).

{¶57} For the plain error doctrine to apply, the party 

claiming error must establish (1) that “‘an error, i.e., a 

deviation from a legal rule’” occurred, (2) that the error was 

“‘an “obvious” defect in the trial proceedings,’” and (3) that 

this obvious error affected substantial rights, i.e., the error 

“‘must have affected the outcome of the [proceedings].’” State 

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 

22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 

1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 

209, 436 N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious 
Athens App. No. 21CA15 29

and prejudicial although neither objected to nor affirmatively 

waived which, if permitted, would have a material adverse affect 

on the character and public confidence in judicial 

proceedings”). 

{¶58} In the case before us, we do not believe that the 

trial court obviously erred by failing to conclude that the 

statements are irrelevant, or that the prejudicial effect of the 

statements substantially outweighed any probative value. 

Consequently, the plain-error doctrine does not apply to 

appellant’s relevancy and prejudicial-effect arguments.

C

{¶59} Appellant next argues that the statements constitute 

inadmissible hearsay. Appellant disputes the state’s assertion 

that the trial court properly admitted the statements under the 

excited-utterance exception.

{¶60} Hearsay is “a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.” Evid.R. 

801(C). Hearsay is inadmissible in evidence at trial, unless it 

falls under an exception to the Rules of Evidence. Evid.R. 802; 

State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 

930 (2014), ¶ 129; State v. Lykins, 4th Dist. Adams No. 

18CA1079, 2019-Ohio-3316, ¶ 92.

{¶61} Evid.R. 803(2) contains the excited-utterance 
Athens App. No. 21CA15 30

exception. This rule permits a trial court to admit a hearsay 

statement into evidence “if it relates ‘to a startling event or 

condition made while the declarant was under the stress of 

excitement caused by the event or condition.’” State v. Fry, 

125 Ohio St.3d 163, 2010–Ohio–1017, 926 N.E.2d 1239, ¶ 100, 

quoting Evid.R. 803(2). A court may admit a hearsay statement 

under the excited utterance exception under the following 

circumstances:

“(a) there was some occurrence startling enough to 

produce a nervous excitement in the declarant, which was 

sufficient to still his reflective faculties and thereby 

make his statements and declarations the unreflective 

and sincere expression of his actual impressions and 

beliefs, and thus render his statement of declaration 

spontaneous and unreflective,

(b) the statement or declaration, even if not 

strictly contemporaneous with its exciting cause, was 

made before there had been time for such nervous 

excitement to lose a domination over his reflective 

faculties so that such domination continued to remain 

sufficient to make his statements and declarations the 

unreflective and sincere expression of his actual 

impressions and beliefs,

(c) the statement or declaration related to such 

startling occurrence or the circumstances of such 

starling occurrence, and

(d) the declarant had an opportunity to observe 

personally the matters asserted in his statement or 

declaration.”

State v. Jones, 135 Ohio St.3d 10, 2012–Ohio–5677, 984 N.E.2d 

948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 

N.E.2d 140 (1955), paragraph two of the syllabus.

{¶62} The excited-utterance “‘exception derives its guaranty 

of trustworthiness from the fact that declarant is under such 
Athens App. No. 21CA15 31

state of emotional shock that his reflective processes have been 

stilled. Therefore, statements made under these circumstances 

are not likely to be fabricated.’” State v. Taylor, 66 Ohio 

St.3d 295, 300, 612 N.E.2d 316 (1993), quoting McCormick, 

Section 297 (2d ed. 1972). Additionally, excited utterances

“are considered more trustworthy than hearsay generally 

on the dual grounds that, first, the stimulus renders 

the declarant incapable of fabrication and, second, the 

impression on the declarant’s memory at the time of the 

statement is still fresh and intense. Accordingly, Rule 

803(2) assumes that excited utterances are not flawed by 

lapses of memory or risks of insincerity.” 

Id., quoting 1 Weissenberger’s Ohio Evidence (1992), Section 

803.16.

{¶63} In the case sub judice, appellant challenges the 

state’s assertion that J.R. and K.H. made their statements while 

under stress of nervous excitement. Appellant asserts that 

because J.R. and K.H. made their statements the day after the 

events, the evidence fails to show that nervous excitement 

continued until the time of the statements. Instead, appellant 

argues that both J.R. and K.H. had sufficient time to reflect 

upon events and their statements constitute a narration of 

events, rather than excited utterances.

{¶64} The amount of time that elapses “between the statement 

and the event is relevant but not dispositive of” whether a 

declarant’s statement occurred while still under the stress of 

the startling occurrence. Jones at ¶ 168, quoting Taylor, 66 
Athens App. No. 21CA15 32

Ohio St.3d at 303; State v. Wallace, 37 Ohio St.3d 87, 90, 524 

N.E.2d 466 (1988). In fact, “‘[t]here is no per se amount of 

time after which a statement can no longer be considered to be 

an excited utterance.’” Jones at ¶ 168, quoting Taylor, 66 Ohio 

St.3d at 303. Instead, “‘[t]he central requirements are that 

the statement must be made while the declarant is still under 

the stress of the event and the statement may not be a result of 

reflective thought.’” Id., quoting Taylor, 66 Ohio St.3d at 

303; Stough v. Indus. Comm., 142 Ohio St. 446, 52 N.E.2d 992 

(1944), paragraph one of the syllabus (“A declaration or 

statement, to be admissible as part of the res gestae, is not 

required to be exactly simultaneous with the primary fact in 

controversy, but it must be a spontaneous or an impulsive 

declaration or statement and not the mere narration of a past 

transaction”). 

{¶65} A court that must determine whether a declarant’s 

statement occurred while under stress of the startling 

occurrence must examine the particular facts of the case and not 

“‘“attempt to formulate an inelastic rule delimiting the time 

limits within which an oral utterance must be made in order that 

it be termed a spontaneous exclamation.”’” Jones at ¶ 168, 

quoting Taylor, 66 Ohio St.3d at 303, quoting State v. Duncan, 

53 Ohio St.2d 215, 219–220, 373 N.E.2d 1234 (1978). 

Furthermore, reviewing courts should affirm a trial court’s 
Athens App. No. 21CA15 33

conclusion that a statement fits the excited-utterance exception 

when its “‘decision appears to be a reasonable one, even though 

the reviewing court, if sitting as a trial court, would have 

made a different decision.’” Taylor, 66 Ohio St.3d at 305, 

quoting Potter, 162 Ohio St. at 499–500. In Jones, the court 

determined the declarant’s statement to be an excited utterance 

when the evidence showed that the declarant “was highly upset 

and screaming” when she “blurted out” the circumstances of the 

startling event (i.e., learning that defendant killed a person). 

Id. at ¶ 169. The court concluded that the declarant’s 

demeanor, when making the statement, showed that she remained 

“under the influence of the startling occurrence when she made 

her excited utterance.” Id., citing State v. Wallace, 37 Ohio 

St.3d 87, 90–91, 524 N.E.2d 466 (1988) (statement excited 

utterance even though 15–hour interval between startling 

occurrence and utterance and declarant unconscious for part of 

that time), and State v. Baker, 137 Ohio App.3d 628, 649, 739 

N.E.2d 819 (12th Dist.2000) (several-hour interval between 

startling occurrence and utterance); State v. Huertas, 51 Ohio 

St.3d 22, 31, 553 N.E.2d 1058 (1990) (statement excitedutterance when “declarant was ‘very agitated,’ ‘in serious pain’ 

and ‘had not calmed down’ from the stress of” startling event, 

i.e., a stabbing).

{¶66} However, simply remaining “upset” after a startling 
Athens App. No. 21CA15 34

occurrence “does not meet the standard for admissibility under 

Evid.R. 803(2).” Taylor, 66 Ohio St.3d at 303. In Taylor, the 

circumstances that surrounded the declarant’s statement 

suggested he had time to reflect on the event and to give “a 

narrative account” of the event. Id. In that case, the 

declarant was murdered, but days before his death he spoke with 

Robert Adams, a plumber who performed repairs at the residence 

of the declarant’s paramour and the defendant’s grandmother, 

Viola Thomas. At trial, Adams testified that the declarant told 

Adams that he spent the night at Viola’s residence while the 

defendant also stayed overnight and, during the night, he 

discovered the defendant rummaging through the declarant’s 

clothing. When the declarant asked the defendant why, the 

defendant told the declarant that he was looking for cigarettes, 

but the declarant explained to Adams that he told the defendant 

that the defendant knew that the declarant “smoked cigars, not 

cigarettes.” Id. at 297. The declarant also informed Adams 

that the defendant “was going to do something to [the declarant] 

then but [Viola] prevented it.” Id. The declarant also told 

Adams that the defendant “had threatened to kill him.” Id. The 

declarant further advised Adams that the defendant “was 

mistreating [Viola], had broken into her house, and because of 

his laziness, was a burden on her.” Id. Later, the defendant 

was convicted of multiple offenses and sentenced to death.
Athens App. No. 21CA15 35

{¶67} On appeal to the Ohio Supreme Court, the defendant 

asserted that the trial court erred by allowing Adams’s hearsay 

testimony and argued that Adams’s testimony did not fit the 

excited-utterance exception to the hearsay rule. The supreme 

court agreed, and pointed out that the primary dispute concerned 

whether the declarant made the statements while still “under the 

stress of the startling occurrence.” Id. at 301. The court 

noted that the appellate court had concluded that the “startling 

occurrence” happened when the declarant found the defendant 

searching his pants and when the defendant threatened to kill 

the declarant. Id. The appellate court thus determined that 

these circumstances placed the declarant “in a state of nervous 

excitement” and that the declarant’s “nervous excitement 

continued to dominate” until the next day when he “relayed the 

events to Adams.” Id. The Ohio Supreme Court, however, 

concluded that the appellate court’s conclusion lacked 

“evidentiary support.” Id. The court observed that the 

declarant made several similar statements to Adams throughout 

the course of the day – beginning at 8:00 a.m. and ending 

sometime in the afternoon and, during each recounting of the 

occurrence, the declarant stated that the defendant threatened 

to kill him. In deciding whether the declarant’s statements fit 

the excited-utterance exception, the court noted that the record 

contained only one reference to the declarant’s “state of 
Athens App. No. 21CA15 36

agitation.” Id. at 303. The court pointed out that when Adams 

responded to a question about whether the declarant appeared 

“real upset,” Adams stated that the declarant “was upset. He 

just said he loved [Viola], and if he didn’t care for her he 

wouldn’t come around.” Id. The court explained, however, that 

“[m]erely being ‘upset’ clearly does not meet the standard for 

admissibility under Evid.R. 803(2) because it does not show that 

[the declarant’s] statements were not the result of reflective 

thought.” Id. The court wrote:

Indeed the balance of Adams’s testimony regarding [the 

declarant’s] statements indicates just the opposite: 

that [the declarant] was reflecting on the event and 

giving a narrative account to Adams which was the result 

of his reflective thought. [The declarant] commented on 

[the defendant’s] laziness for remaining asleep all day 

instead of assisting Adams to reduce [Viola’s repair] 

bill. The statements included other grievances [the 

declarant] had against [the defendant] which had 

occurred long before the “startling occurrence” as well 

as conduct by [the defendant] that [the declarant] 

considered to be detrimental to * * * Viola Thomas. The 

comments also included [the declarant’s] conclusion that 

were it not for the fact of his love for Viola Thomas, 

he would not continue to visit her home.

Id.

The court concluded that the declarant’s 

statements clearly indicate that [he] was reflecting on 

the events of the previous night, considering other 

aspects of his relationship with [the defendant] and 

[the defendant’s] relationship with his grandmother as 

well as the effect on [the declarant’s] relationship 

with [Viola].

Id.
Athens App. No. 21CA15 37

{¶68} Thus, the Taylor court determined that the evidence 

failed to show that the declarant’s “reflective faculties were 

still dominated by ‘nervous excitement.’” Id. Consequently, 

the declarant’s statement did not fall within the excitedutterance exception.

{¶69} Appellant contends that Taylor should govern the 

outcome in the case sub judice because the circumstances that 

surrounded J.R.’s and K.H.’s statements demonstrate that each 

had sufficient time to reflect upon the occurrences and their 

statements appear to be a narrative account of events rather 

than a continuation of nervous excitement. We believe, however, 

that the traumatic nature of a sexual assault, and the ensuing 

reaction to that assault, may not quickly dissipate and may, in 

fact, continue for an extended period of time after the 

traumatic event. For that reason, those determinations must be 

made on a case-by-case basis in light of the unique facts 

present in each case. Courts may recognize that a sexual 

assault victim may suffer more than some typical nervous 

excitement, but instead suffer from severe, life-changing 

trauma. Nevertheless, after our review in the case sub judice, 

we conclude that any error that the trial court may have 

arguably committed when it admitted the statements in question 

constitutes harmless error. 

{¶70} Crim.R. 52(A) provides: “Any error, defect, 
Athens App. No. 21CA15 38

irregularity, or variance which does not affect substantial 

rights shall be disregarded.” An error is harmless when the 

error did not impact the verdict, the error was harmless beyond 

a reasonable doubt, and after excising the erroneously admitted

evidence, the remaining evidence establishes the defendant’s 

guilt beyond a reasonable doubt. State v. Harris, 142 Ohio 

St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37. Additionally, 

“the admission of hearsay is harmless error where the declarant 

was also a witness and examined regarding matters identical to 

those contained in the hearsay statements.” State v. Williams, 

2d Dist. Montgomery No. 26369, 2016–Ohio–322, ¶ 37.

{¶71} In the case sub judice, J.R. testified and gave direct 

testimony that closely mirrored the statements contained in her 

Facebook messages. Thus, J.R.’s testimony about her Facebook 

messages was cumulative to her in-court statements that 

appellant sexually assaulted her. K.H. likewise gave direct 

testimony that appellant sexually assaulted her. Her text 

message to her boss is simply cumulative to her direct 

testimony. Consequently, any arguable error in this regard 

constitutes, at most, harmless error. State v. Blanton, 4th 

Dist. Adams No. 16CA1031, 2018-Ohio-1275, ¶ 71, citing State v.

L.E.F., 10th Dist. Franklin No. 13AP–1042, 2014–Ohio–4585, ¶ 14 

(“[I]nsofar as [victim]’s statements may have been 

[inadmissible], we conclude such admission constitutes harmless 
Athens App. No. 21CA15 39

error because the statements were cumulative of [victim]’s live 

trial testimony, which was subject to cross-examination.”); 

State v. Williams, 2d Dist. Montgomery No. 26369, 2016–Ohio–322, 

¶ 37 (“the admission of hearsay is harmless error where the 

declarant was also a witness and examined regarding matters 

identical to those contained in the hearsay statements”); State 

v. Deanda, 2014-Ohio-3668, 17 N.E.3d 1232, ¶ 39 (3rd Dist.) 

(“[h]earsay statements admitted that are repetitious of 

admissible statements and are supported by overwhelming evidence 

are not prejudicial”); State v. Stone, 4th Dist. Scioto No. 

11CA3462, 2013-Ohio-209, ¶ 14 (victim’s hearsay testimony that 

person assaulted her harmless error when victim presented incourt testimony of sexual assault); see State v. Williams, 38 

Ohio St.3d 346, 350, 528 N.E.2d 910 (1988) (admission of hearsay 

that was cumulative testimony constitutes harmless error).

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

overrule appellant’s second assignment of error.

III

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

that the trial court erred by admitting (1) J.R.’s and K.H.’s 

sexual-assault medical records and evidence collection kits, and 

(2) their respective nurses’ testimony regarding the statements 

that each individual made during the sexual-assault 

examinations. Appellant contends that (1) this evidence does 
Athens App. No. 21CA15 40

not fall within the Evid.R. 803(4) medical-diagnosis-andtreatment exception, and (2) the reading of the narration of the 

events constitutes the needless presentation of cumulative 

evidence under Evid.R. 403(B). 
Athens App. No. 21CA15 41

A

{¶74} Once again, we note that the admission of evidence 

generally falls within a trial court’s sound discretion and an 

appellate court will not reverse a trial court’s evidentiary 

decision absent an abuse of that discretion.

B

{¶75} Evid.R. 803(4) contains a hearsay exception for 

“[s]tatements made for purposes of medical diagnosis or 

treatment and describing medical history, or past or present 

symptoms, pain, or sensations, or the inception or general 

character of the cause or external source thereof insofar as 

reasonably pertinent to diagnosis or treatment.”

{¶76} The hearsay rules except statements made for the 

purpose of medical diagnosis or treatment due to the inherent 

reliability underlying the nature of those statements.

[A] fundamental assumption underlying the medicaltreatment exception is that that particular hearsay is 

reliable. Dever, 64 Ohio St.3d at 410–411, 596 N.E.2d 

436. “[The] exception is premised on the theory that a 

patient’s statements to her physician are likely to be 

particularly reliable,” United States v. Tome (C.A.10, 

1995), 61 F.3d 1446, 1449, and “carr[y] special 

guarantees of credibility,” White v. Illinois (1992), 

502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848. 

State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 

944, ¶ 39.

{¶77} Additionally, statements made for the purpose of 
Athens App. No. 21CA15 42

medical diagnosis and treatment are considered reliable because 

“‘facts reliable enough to be relied on in reaching a diagnosis 

have sufficient trustworthiness to satisfy hearsay concerns.’” 

State v. Dever, 64 Ohio St.3d 401, 411, 596 N.E.2d 436 (1992), 

quoting 2 McCormick on Evidence (4th Ed.1992) 250; accord 

Muttart at ¶ 41. Thus, “[i]f a statement is made for purposes 

of diagnosis or treatment, it is admissible pursuant to Evid.R. 

803(4).” Muttart at ¶ 34, quoting Dever, 64 Ohio St.3d at 414.

{¶78} In general, statements made while a medical 

professional obtains a victim’s history, such as whether a 

defendant’s penis entered the victim’s vagina, generally fall 

within the medical-diagnosis-and-treatment exception. State v. 

Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 

37-38. For example, statements that identify a defendant as the 

perpetrator of a crime, where the defendant touched the victim, 

and how sexual contact occurred ordinarily are statements 

obtained for medical diagnosis and treatment. State v. Felts, 

2016-Ohio-2755, 52 N.E.3d 1223 (4th Dist.), ¶ 39, citing Arnold

at ¶ 32, 38 (“information regarding the identity of the 

perpetrator, the type of abuse alleged, and the time frame of 

the abuse allows the doctor or nurse to determine whether to 

test the child for sexually transmitted infections”); State v. 

Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 27, 

quoting In re D.L., 8th Dist. Cuyahoga No. 84643, 2005-Ohio-
Athens App. No. 21CA15 43

2320, ¶ 21 (“‘courts have consistently found that a description 

of the encounter and identification of the perpetrator are 

within scope of statements for medical treatment and 

diagnosis’”); State v. Williams, 1st Dist. Hamilton No. C–

140199, 2015-Ohio-3968, ¶ 31 (“Obtaining a thorough history 

regarding the causation and nature of the injury is an important 

component of medical diagnosis and treatment”); State v. Taylor, 

8th Dist. Cuyahoga No. 101704, 2015-Ohio-2513, ¶ 44 (“statements 

regarding the identity of the perpetrator, the type of abuse 

alleged, the time frame of the abuse, and the identification of 

the areas where the child had been touched, were all for medical 

diagnosis”).

{¶79} On the other hand, statements merely serve an 

investigative purpose when they do not help the treatment 

provider diagnose a medical condition or recommend treatment. 

Thus, a rape victim’s statement that the defendant “shut and 

locked the bedroom door before raping her; her descriptions of 

where her mother and brother were while she was in the bedroom 

with [the defendant], of [the defendant]’s boxer shorts, of him 

removing them, and of what [the defendant]’s “pee-pee” looked 

like; and her statement that [the defendant] removed her 

underwear” “likely were not necessary for medical diagnosis or 

treatment.” Arnold at ¶ 34.

{¶80} In the case sub judice, we first point out that 
Athens App. No. 21CA15 44

appellant objected before the state introduced each nurse’s 

testimony and each medical kit. When he objected, however, 

appellant broadly asserted that the nurses’ testimony and 

medical kits are inadmissible under Evid.R. 803(4). 

Additionally, appellant did not object when the nurses read each 

individual’s narrative statement, and did not attempt to 

distinguish between statements contained within those narratives 

that may have been made for medical diagnosis and treatment and 

those solely for investigative purpose. 

{¶81} We observe that for each assignment of error presented 

for review, an appellant must identify the specific parts of the 

record where the alleged error occurred. See App.R. 16(A)(7)

(brief must include “[a]n argument containing the contentions of 

the appellant with respect to each assignment of error presented 

for review and the reasons in support of the contentions, with 

citations to the authorities, statutes, and parts of the record 

on which appellant relies”). “This rule is designed ‘to aid the 

reviewing court in determining whether any reversible error 

occurred in the lower court by having the complaining party 

specify the exact location(s) where such a determination can be 

made.’” Mayfair Village Condominium Owners Assn. v. Grynko, 8th 

Dist. Cuyahoga No. 99264, 2013-Ohio-2100, ¶ 6, quoting Hildreth 

Mfg. v. Semco, Inc., 151 Ohio App.3d 693, 2003-Ohio-741, 785 

N.E.2d 774, ¶ 32 (3d Dist.). Consequently, an appellate court 
Athens App. No. 21CA15 45

may disregard an assignment of error when an appellant fails to 

identify the relevant portions of the record upon which an 

assignment of error is based. See App.R. 12(A)(2) (“The court 

may disregard an assignment of error presented for review if the 

party raising it fails to identify in the record the error on 

which the assignment of error is based * * *.”); see also 

Mayfair Village Condominium Owners Assn. at ¶ 6 (appellate court 

“not obliged to scour the record in search of evidence to 

support an appellant's assignment of error.”), citing Nob Hill 

E. Condominium Assn. v. Grundstein, 8th Dist. Cuyahoga No. 

95919, 2011-Ohio-2552, ¶ 11.

{¶82} In the case before us, appellant cites to parts of the 

record that contain broad objections to the nurses’ testimony 

and medical kits. Appellant does not, however, cite to the 

location that contains objections to particular statements that 

he believes served an investigative purpose, rather than an 

Evid.R. 803(4) medical-diagnosis-or-treatment purpose. Without 

citation to the specific parts of the nurses’ testimony that 

appellant believes fall outside of the Evid.R. 803(4) medicaldiagnosis-or-treatment exception, we need not parse the 

testimony to determine whether the trial court properly admitted 

each statement contained in the narratives. 

{¶83} Additionally, although we recognize that appellant’s 

reply brief points to specific, objectionable statements, 
Athens App. No. 21CA15 46

appellant did not raise these same specific objections during 

the trial court proceedings. See State v. S.A.A., 10th Dist. 

Franklin No. 17AP-685, 2020-Ohio-4650, ¶ 20 (declining to review 

argument regarding admissibility of statements contained in 

videotaped interview when appellant “did not specifically 

outline the same questions before the trial court” and instead 

“argued generally at trial that the entire video interviews were 

for purposes of forensic investigation”). We therefore decline 

to review them for the first time on appeal.

{¶84} Moreover, to the extent that appellant may have lodged 

a continuing objection to the evidence, we observe that “[t]he 

purpose of a continuing or standing objection is to relieve a 

party who has unsuccessfully raised an objection from having to 

repeat the objection every time ‘testimony of the same class’ is 

offered.” State ex rel. Holwadel v. Hamilton Cty. Bd. of 

Elections, 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶ 

48, quoting Brady v. Stafford, 115 Ohio St. 67, 152 N.E. 188 

(1926), paragraph two of the syllabus. A single continuing 

objection is not, however, sufficient to preserve objections to 

multiple pieces of evidence when the admissibility 

determinations turn on different facts. State v. Henness, 79 

Ohio St.3d 53, 59, 679 N.E.2d 686 (1997) (“[t]he existence of 

the marital privilege turns on the specific circumstances 

surrounding each allegedly privileged communication, e.g., 
Athens App. No. 21CA15 47

whether a third party was present” and thus, continuing 

objection insufficient to preserve error). See generally State 

v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 

41 (same interview or interrogation might contain both 

admissible and inadmissible statements). 

{¶85} Thus, even if the record suggests that appellant may 

have raised a continuing objection to the nurses’ testimony, 

this continuing objection, in our view, did not sufficiently 

preserve objections to each statement when the admissibility of 

each statement required the trial court to separately analyze 

whether the statement was made for medical diagnosis or 

treatment, or whether the statement was made for investigative 

purposes. Importantly, appellant does not cite any authority to 

require the wholesale exclusion of a nurse’s testimony when it 

contains a mix of statements made for medical diagnosis or 

treatment, and statements arguably made for investigative 

purposes. 

{¶86} Therefore, for all of the foregoing reasons, we do not 

believe that appellant properly preserved his Evid.R. 803(4) 

objections to the nurses’ testimony. However, even if he had 

properly preserved those objections, we believe that any 

arguable error the trial court committed in the admission of 

that testimony into evidence, to the extent that it relayed 

statements made for an investigative purpose, constitutes 
Athens App. No. 21CA15 48

harmless error. Here, the nurses’ testimony simply repeated 

what each individual victim stated during their direct in-court 

testimony at trial: “[a]ny error in the admission of hearsay is 

generally harmless where the declarant of the hearsay statement 

is cross-examined on the same matters and the seemingly 

erroneous evidence is cumulative in nature.” In re M.E.G., 10th 

Dist. Franklin Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1263, 

06AP-1264, and 06AP-1265, 2007-Ohio-4308, ¶ 32; accord State v. 

Bender, 3rd Dist. Union No. 14-19-22, 2020-Ohio-722, ¶ 17. 

{¶87} In the case at bar, the individuals who were the 

subject of the nurses’ testimony testified at trial in open 

court, and subject to cross-examination. Bender at ¶ 17; State 

v. Clegg, 5th Dist. Delaware No. 20 CAA 09 0035, 2021-Ohio-2736, 

¶ 59. The jury had the opportunity to view the witnesses and to 

assess their credibility. See Bender at ¶ 17; State v. Ceron, 

8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 61. 

{¶88} Thus, we believe that any arguable error that may have 

occurred in this case concerning the testimony of the nurses and 

the medical records constitutes harmless error that we must 

disregard.

C

{¶89} Appellant further contends that the testimony of the 

nurses was needlessly cumulative. 

{¶90} Evid.R. 403(B) provides: “Although relevant, evidence 
Athens App. No. 21CA15 49

may be excluded if its probative value is substantially 

outweighed by considerations of undue delay, or needless 

presentation of cumulative evidence.” We note that “Evid.R. 

403(B) does not require exclusion of cumulative evidence. The 

court has discretion to admit or exclude it.” State v. 

Campbell, 69 Ohio St.3d 38, 51, 630 N.E.2d 339 (1994). “The 

mere fact that evidence is repetitive will not be considered 

reversible error unless the defendant was unfairly prejudiced 

thereby.” State v. Baker, 2d Dist. Montgomery No. 23933, 2011-

Ohio-1820, ¶ 16, citing State v. Smith, 80 Ohio St.3d 89, 108-

109, 684 N.E.2d 668 (1997). “The pertinent question is whether 

the evidence was unfairly prejudicial to the defendant, not 

whether it was unfavorable to him.” Id.

{¶91} In the case sub judice, we do not believe that the 

trial court abused its discretion by allowing the state to 

introduce cumulative evidence. Nothing in the record shows that 

the cumulative evidence unfairly prejudiced appellant. Each 

witness testified about their personal encounter with a victim 

and related to the trier of fact the nature of that encounter.

D

{¶92} Next, appellant argues that the nurses’ testimony is 

improper because it bolstered J.R.’s and K.H.’s testimony. 

Appellant does not, however, cite any authority that prevents a 

party from using another witness’s testimony to bolster a
Athens App. No. 21CA15 50

complaining witness’s testimony. In fact, courts have held that 

“‘[a] party may introduce testimony to “bolster” or corroborate 

another witness’s testimony as long as the testimony is relevant 

and not objectionable on specific evidentiary grounds.’” State 

v. Watkins, 10th Dist. Franklin No. 12AP-345, 2013-Ohio-804, ¶ 

22, quoting State v. Hurst, 10th Dist. Franklin No. 98AP–1549 

(Mar. 7, 2000); State v. Culp, 9th Dist. Summit No. 26188, 2012–

Ohio–5395, ¶ 30 (evidence corroborating victim’s testimony is 

relevant to the victim’s credibility). We therefore reject 

appellant’s argument that the trial court erred by admitting the 

nurses’ testimony on the basis that it improperly bolstered the 

complaining witnesses’ testimony. Here, the witness related the 

factual nature of their examination and did not offer opinion 

about a victim’s veracity.

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

overrule appellant’s third assignment of error.

IV

{¶94} In his fourth assignment of error, appellant asserts 

that the trial court erred by allowing the state to introduce 

other-acts evidence for the two offenses (theft and identity 

fraud) to which he pled guilty. Appellant asserts that the 

evidence was not relevant to prove an element in dispute and 

that this evidence is needlessly cumulative.
Athens App. No. 21CA15 51

Evid.R. 404(B)2 provides:

Evidence of other crimes, wrongs or acts is not 

admissible to prove the character of a person in order 

to show action in conformity therewith. It may, however, 

be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.

R.C. 2945.59 similarly states:

In any criminal case in which the defendant’s 

motive or intent, the absence of mistake or accident on 

his part, or the defendant’s scheme, plan, or system in 

doing an act is material, any acts of the defendant which 

tend to show his motive or intent, the absence of mistake 

or accident on his part, or the defendant’s scheme, plan, 

or system in doing the act in question may be proved, 

whether they are contemporaneous with or prior or 

subsequent thereto, notwithstanding that such proof may 

show or tend to show the commission of another crime by 

the defendant.

2 On July 1, 2022, Evid.R. 404(B) was amended to read as follows:

(B) Other Crimes, Wrongs or Acts.

(1) Prohibited Uses. Evidence of any other crime, 

wrong or act is not admissible to prove a person’s 

character in order to show that on a particular occasion 

the person acted in accordance with the character.

(2) Permitted Uses; Notice. This evidence may be 

admissible for another purpose, such as proving motive, 

opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident. The 

proponent of evidence to be offered under this rule 

shall:

(a) provide reasonable notice of any such evidence 

the proponent intends to introduce at trial so that an 

opposing party may have a fair opportunity to meet it;

(b) articulate in the notice the permitted purpose 

for which the proponent intends to offer the evidence, 

and the reasoning that supports the purpose; and

(c) do so in writing in advance of trial, or in any 

form during trial if the court, for good cause, excuses 

lack of pretrial notice. 
Athens App. No. 21CA15 52

{¶95} Evid.R. 404(B) and R.C. 2945.59 “preclude[] the 

admission of evidence of other crimes, wrongs, or acts offered 

to prove the character of an accused in order to show that the 

accused acted in conformity therewith, but it does not preclude 

admission of that evidence for other purposes.” State v. 

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, 

syllabus. In other words, other-acts evidence is not admissible 

when the sole purpose of the evidence “is to show the accused’s 

propensity or inclination to commit crime.” State v. Hartman, 

161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 20, 

quoting State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 

(1975), citing 1 Underhill’s Criminal Evidence, Section 205, at 

595 (6th Ed.1973). Other-acts evidence is admissible, however, 

so long as the evidence relates to a permissible purpose such as 

“motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.” Evid.R. 404(B). 

Accordingly, other-acts evidence is admissible when (1) the 

evidence is relevant, (2) the evidence is not used “to prove a 

person’s character to show conduct in conformity,” (3) the 

evidence is offered “for a legitimate other purpose,” and (4) 

the danger of unfair prejudice does not substantially outweigh 

the probative value of the evidence. State v. Graham, 164 Ohio 

St.3d 187, 2020-Ohio-6700, 172 N.E.2d 841, ¶ 72, citing State v. 

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 
Athens App. No. 21CA15 53

20.

{¶96} Appellate courts review a trial court’s determination 

regarding whether other-acts evidence constitutes impermissible 

propensity evidence or permissible nonpropensity evidence using 

the de-novo standard of review. Hartman at ¶ 22, citing 

Leonard, The New Wigmore: Evidence of Other Misconduct and 

Similar Events, Section 4.10 (2d Ed.2019) (“[d]etermining 

whether the evidence is offered for an impermissible purpose 

does not involve the exercise of discretion * * *, an appellate 

court should scrutinize the [trial court’s] finding under a de 

novo standard” of review); State v. Ludwick, 4th Dist. Highland 

No. 21CA17, 2022-Ohio-2609, ¶ 18; State v. McDaniel, 2021-Ohio724, 168 N.E.3d 910, ¶ 17 (1st Dist.). If the proffered otheracts evidence is for a permissible purpose, trial courts have 

discretion, under Evid.R. 403(A), to determine whether the 

danger of unfair prejudice substantially outweighs the probative 

value of the evidence. Hartman at ¶ 30; Williams at ¶ 17 

(Evid.R. 404(B) affords courts discretion to allow other-acts 

evidence when offered for a permissible purpose). Appellate 

courts thus review a trial court’s decision under Evid.R. 403 

for an abuse of discretion. Hartman at ¶ 30; State v. Graham, 

164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 72; 

Ludwick at ¶ 18. Other-acts evidence is relevant if it tends 

“to make the existence of any fact that is of consequence to the 
Athens App. No. 21CA15 54

determination of the action more probable or less probable than 

it would be without the evidence.” Evid.R. 401. Propensity 

evidence “almost always * * * will have some relevance.” State 

v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, 

¶ 25. In fact, propensity “evidence is excluded ‘not because it 

has no appreciable probative value but because it has too 

much.’” Id., quoting 1A Wigmore, Evidence, Section 58.2, at 1212 

(Tillers Rev.1983). The relevancy inquiry in Evid.R. 404(B) 

cases thus does not focus upon “whether the other-acts evidence 

is relevant to the ultimate determination of guilt.” Id. at ¶ 

26. Instead, courts must determine whether the evidence is 

relevant to a “‘purpose other than the person’s character or 

propensity to behave in a certain way.’” Id., quoting United 

States v. Gomez, 763 F.3d 845, 860 (7th Cir.2014). 

{¶97} Both Evid.R. 404(B) and R.C. 2945.59 permit other-acts 

evidence when the evidence is relevant to establishing a 

defendant’s intent. Other-acts evidence is relevant to 

establish intent if the evidence tends “‘[t]o show, by similar 

acts or incidents, that the act in question was not performed 

inadvertently, accidentally, involuntarily, or without guilty 

knowledge.’” Id. at ¶ 52, quoting McCormick, Evidence, Section 

190, at 804 (4th Ed.1994). “[T]he other-acts evidence ‘must be 

so related to the crime charged in time or circumstances that 

evidence of the other acts is significantly useful in showing 
Athens App. No. 21CA15 55

the defendant’s intent in connection with the crime charged.’” 

Id. at ¶ 58, quoting 1 Wharton’s Criminal Evidence at Section 

4:31. The evidence “‘“must have such a temporal, modal and 

situational relationship with the acts constituting the crime 

charged”’” that it “‘“discloses purposeful action in the 

commission of the offense in question.”’” Id. at ¶ 61, quoting 

State v. Gardner, 59 Ohio St.2d 14, 20, 391 N.E.2d 337 (1979), 

quoting State v. Burson, 38 Ohio St.2d 157, 159, 311 N.E.2d 526 

(1974). 

{¶98} Additionally, evidence of other acts is admissible 

when “the challenged evidence plays an integral part in 

explaining the sequence of events and is necessary to give a 

complete picture of the alleged crime.” State v. Thompson, 66 

Ohio St.2d 496, 498, 422 N.E.2d 855 (1981); accord State v. 

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 140; 

Hartman at ¶ 41. Furthermore, evidence regarding other acts 

“may be presented when ‘they are so blended or connected with 

the one on trial as that proof of one incidentally involves the 

other; or explains the circumstances thereof; or tends logically 

to prove any element of the crime charged.’” State v. 

Wilkinson, 64 Ohio St.2d 308, 317, 18 O.O.3d 482, 415 N.E.2d 

261, 269 (1980), quoting United States v. Turner, 423 F.2d 481, 

483-84 (C.A.7, 1970) (citation omitted).

{¶99} In the case at bar, we believe that evidence regarding 
Athens App. No. 21CA15 56

appellant’s other contemporaneous acts was relevant to establish 

appellant’s intent by disproving his claim that his sexual 

encounters with the victim was consensual. See State v. Gardner, 

59 Ohio St.2d 14, 20, 13 O.O.3d 8, 391 N.E.2d 337 (1979) (when 

defendant claims sexual encounter consensual, defendant’s intent 

is a material issue). The evidence that appellant took the 

victim’s debit card immediately after the rape, then later used 

the card at multiple locations, helped to demonstrate 

appellant’s guilty knowledge and negate his consent defense. 

The other acts evidence shared a temporal and situational 

relationship with K.H.’s rape so as to disclose his purposeful 

action in committing rape. This evidence tended to make it more 

probable that appellant did not commit rape inadvertently, 

accidentally, involuntarily, or without guilty knowledge. 

{¶100} Moreover, the other-acts evidence constituted an 

integral component to help to explain the sequence of events and 

necessary to provide the trier of fact with a complete picture 

of the rape – the evidence flowed directly and immediately from 

appellant’s interaction with K.H. and helped to explain the 

entire sequence of events. 

{¶101} Additionally, even if we accept for purposes of 

argument that the trial court erred by allowing the state to 

introduce evidence concerning appellant’s theft and identityfraud offenses, we believe that any such error is harmless error 
Athens App. No. 21CA15 57

that we must disregard. State v. Morris, 141 Ohio St.3d 399, 

2014-Ohio-5052, 24 N.E.3d 1153, ¶ 32 (“[A]n improper evidentiary 

admission under Evid.R. 404(B) may be deemed harmless error on 

review when, after the tainted evidence is removed, the 

remaining evidence is overwhelming”). In the case sub judice, 

even without the evidence regarding appellant’s theft and 

identity-fraud offenses, the record contains overwhelming firstperson accounts and evidence that appellant raped J.R. and K.H. 

Both victims testified at trial. J.R. stated that appellant 

engaged in unwanted sexual contact with her and that she told 

appellant, “no.” K.H. testified that due to excessive alcohol 

consumption she had very little recollection of the encounter, 

but when she awoke the next day, she discovered that she had 

been raped. Appellant did not deny sexual encounters with both 

J.R. and K.H. Instead, appellant asserted that they engaged in 

consensual sex. As we further explain in appellant’s sixth 

assignment of error, we believe that the state presented ample 

evidence to establish appellant’s guilt beyond a reasonable 

doubt. Moreover, we again point out that after hearing the 

evidence the jury found appellant not guilty of one of the three 

charged rape offenses. Thus, any arguable error that stemmed 

from the admission of evidence that appellant stole K.H.’s debit 

card and then used it to purchase items that totaled 

approximately $1,500 did not impact the jury’s verdict. We do 
Athens App. No. 21CA15 58

not believe that any danger exists that the jury convicted 

appellant of the two counts of rape based upon evidence that he 

stole K.H.’s debit card and made purchases. Consequently, any 

error did not affect appellant’s substantial rights and is 

harmless error that we must disregard. See Crim.R. 52(A) (“Any 

error, defect, irregularity, or variance which does not affect 

substantial rights shall be disregarded”).

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

overrule appellant’s fourth assignment of error.

V

{¶103} In his fifth assignment of error, appellant asserts 

that the trial court erred by admitting into evidence records 

from the Bureau of Criminal Investigation. Appellant points out 

that at trial, he objected to admitting the reports into 

evidence because the reports “included boilerplate language 

suggest[ing] the rape offenses had occurred and each accuser was 

in fact a ‘victim.’” Appellant claims that the use of the term 

“victim” is unfairly prejudicial and bolstered the testimony of 

J.R. and K.H. Appellant additionally objected at trial because 

the reports are “no different than giving jurors a police report 

that tracks what a witness told a police officer.” On appeal, 

appellant argues that the “BCI employees certainly qualified as 

law enforcement personnel” under Evid.R. 803(8) and, thus, the 

rule should preclude admitting the reports into evidence.
Athens App. No. 21CA15 59

A

{¶104} Once again, we note that the admission of evidence at 

trial generally falls within the trial court’s sound discretion, 

and an appellate court will not reverse a court’s evidentiary 

decision absent an abuse of that discretion. In State v. 

Madden, 2017-Ohio-8894, 100 N.E.3d 1203, (10th Dist.), the court 

rejected the argument that the use of the word “victim” during a 

criminal trial constitutes prejudicial error when (1) “the fact 

of an assault was not in dispute,” (2) the “witnesses used the 

term ‘victim’ as synonymous with complainant,” (3) the witnesses 

“did not express an opinion as to appellant’s guilt,” and (4) 

the prosecutor did not “intentionally [seek] to elicit 

prejudicial testimony from the witnesses at issue.” Id. at ¶ 

34. In reaching its decision, the court explained:

This court has noted that “[a] ‘victim’ is a ‘person 

harmed by a crime, tort, or other wrong.’” State v. 

Morock, 10th Dist. No. 14AP-559, 2015-Ohio-3152, ¶ 25, 

citing Black’s Law Dictionary (10th Ed.2014). 

Similarly, it has been held that use of the term 

“‘victim’ is not the same as expressing an opinion that 

the defendant was guilty of a crime; the term ‘victim 

applies to anyone who suffers either as a result of 

ruthless design or incidentally or accidentally.’” 

State v. Chism, 130 Wash.App. 1054, Wash.App. No. 54895–

6–I (Dec. 27, 2005), quoting Webster’s Third New 

International Dictionary 2550 (1993).

Courts in other jurisdictions have held that “[t]he 

term ‘victim’ is used appropriately during trial when 

there is no doubt that a crime was committed and simply 

the identity of the perpetrator is in issue.” Jackson 

v. State, 600 A.2d 21, 24 (Del.1991). See also In re 

Welfare of P.J.K., Minn.App. No. A15–0115 (Sept. 8, 

2015) (where issue at trial was not whether an armed 
Athens App. No. 21CA15 60

robbery actually occurred but, rather, whether the state 

could prove beyond a reasonable doubt who committed it, 

occasional reference to individual as “victim” was 

“accurate and not prejudicial”).

As noted above, most of the references to “victim” 

in the present case are in the context of law enforcement 

officers recounting their role in the investigation. 

Courts have observed that “the term ‘victim,’ to law 

enforcement officers, is a term of art synonymous with 

‘complaining witness.’” Jackson at 24–25. Thus, courts 

have found a lack of prejudice where a law enforcement 

officer uses the term “victim” in such a manner. See 

State v. Frey, Iowa App. No. 7–205/06–1081, 2007 WL 

1827423 (June 27, 2007) (defense counsel not ineffective 

in failing to object to use of the term victim where 

detective “used the term ‘victim’ as synonymous with the 

term ‘complainant’”); see also State v. Wigg, 179 Vt. 

65, 70, 889 A.2d 233 (2005) (finding harmless error where 

a law enforcement officer uses the term victim as 

synonymous with complainant and “never expressed an 

opinion” that the defendant was guilty); State v. 

Harvey, 167 Wash.App. 1026, Wash.App. No. 29513–3–III 

(Mar. 29, 2012) (questions by prosecutor that elicited 

police officers to refer to individuals shot as 

“victims” not improper; “referring to the men who died 

from gunshot wounds as victims does not amount to opinion 

testimony”).

Appellant relies on this court’s decision in State 

v. Almedom, 10th Dist. No. 15AP-852, 2016-Ohio-1553, in 

support of his contention that reversible error 

occurred. That case, however, is distinguishable from 

the facts of this case. At issue in Almedom was whether 

a crime took place, i.e., whether the defendant had 

sexual conduct with girls under the age of 13. Further, 

under the facts of Almedom, “the trial court judge 

consistently referred to the girls as ‘victims,’” which 

this court deemed analogous to “telling the members of 

the jury that the girls were truthful when they claimed 

that sexual abuse occurred.” Id. at ¶ 2. By contrast, 

in the present case there was no dispute that A.S. was 

physically assaulted and seriously injured, and the 

record contains no victim references by the trial court.

Id. at ¶ 30-33. 

{¶105} After our review in the case sub judice, we agree with 
Athens App. No. 21CA15 61

the Madden court’s holding and rationale. Applying this 

rationale to the instant case, we do not believe that use of the 

word “victim” on BCI forms unfairly prejudiced appellant. 

First, no one disputed that sexual encounters had, in fact, 

occurred between appellant and the three individuals. Second, 

the forms “used the term ‘victim’ as synonymous with 

complainant.” Third, appellant did not point to anything in the 

record to suggest that any witness used the term “victim” to 

“express an opinion as to appellant’s guilt.” Last, the record 

does not indicate that the prosecutor “intentionally sought to 

elicit prejudicial testimony” regarding the three individuals’ 

status as “victims.” Id. at ¶ 34.

{¶106} Consequently, we do not agree with appellant that the 

trial court abused its discretion by admitting the BCI reports 

into evidence.

B

{¶107} Appellant next asserts that the trial court should 

have excluded the BCI reports because they do not fall within an 

exception to the hearsay rule. Appellant contends that under 

Evid.R. 803(8), the BCI reports are inadmissible as “matters 

observed by police officers and other law enforcement 

personnel.” The state, however, argues that the BCI reports are 

business records and admissible under Evid.R. 803(6).

Evid.R. 803(8) provides as follows: 
Athens App. No. 21CA15 62

Records, reports, statements, or data compilations, 

in any form, of public offices or agencies, setting forth 

(a) the activities of the office or agency, or (b) 

matters observed pursuant to duty imposed by law as to 

which matters there was a duty to report, excluding, 

however, in criminal cases matters observed by police 

officers and other law enforcement personnel, unless 

offered by defendant, unless the sources of information 

or other circumstances indicate lack of trustworthiness.

{¶108} Thus, “[i]n criminal cases, Evid.R. 803(8)(b) excludes 

from the public-records-and-reports exception to hearsay police 

reports that ‘recite an officer’s observations of criminal 

activities or observations made as part of an investigation of 

criminal activities.’” State v. Leonard, 104 Ohio St.3d 54, 

2004-Ohio-6235, 818 N.E.2d 229, ¶ 111, quoting State v. Ward, 15 

Ohio St.3d 355, 358, 474 N.E.2d 300 (1984).

{¶109} In the case sub judice, appellant has summarily 

asserted that the BCI reports fall within the Evid.R. 803(8)(b) 

exclusion, but does not cite authority to support his 

proposition. Under App.R. 16(A)(7), an appellant’s brief shall 

include “[a]n argument containing the contentions of the 

appellant with respect to each assignment of error presented for 

review and the reasons in support of the contentions, with 

citations to the authorities, statutes, and parts of the record 

on which appellant relies.” Appellate courts should not perform 

independent research to create an argument for a litigant. 

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 

N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 
Athens App. No. 21CA15 63

2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring 

in part and dissenting in part), quoting Carducci v. Regan, 714 

F.2d 171, 177 (D.C. Cir. 1983) (“‘“appellate courts do not sit 

as self-directed boards of legal inquiry and research, but 

[preside] essentially as arbiters of legal questions presented 

and argued by the parties before them”’”); accord State v. 

Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 57. 

“[W]e cannot write a party’s brief, pronounce ourselves 

convinced by it, and so rule in the party’s favor. That’s not 

how an adversarial system of adjudication works.” Xue Juan Chen 

v. Holder, 737 F.3d 1084, 1085 (7th Cir. 2013). 

{¶110} In view of the absence of authority to support 

appellant’s position, we reject his argument that the BCI 

reports are inadmissible under Evid.R. 803(8)(b). See In re 

Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-

Ohio-2638, 951 N.E.2d 751, ¶ 14 (failure to cite legal authority 

or present argument that a legal authority applies is grounds to 

reject a claim); Robinette v. Bryant, 4th Dist. Lawrence No. 

14CA28, 2015-Ohio-119, ¶ 33 (“It is within our discretion to 

disregard any assignment of error that fails to present any 

citations to cases or statutes in support”).

C

{¶111} Appellant next contends that “the probative value of 

the reports was substantially outweighed by the danger of unfair 
Athens App. No. 21CA15 64

prejudice, confusion of the issues, or of misleading the jury.” 

He asserts that the reports “bolstered” the accusers’ testimony 

by labeling them “victims” and that the reports “were needlessly 

cumulative” when the BCI forensic scientists’ trial testimony 

already reported that the DNA analysis matched appellant. 

{¶112} We again note that because appellant does not point to 

the place in the record where he raised specific objections, he 

has forfeited the right to raise this issue on appeal. 

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

admitting the BCI reports.

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

overrule appellant’s fifth assignment of error.

VI

{¶114} In his sixth assignment of error, appellant asserts 

that sufficient evidence does not support his conviction and his 

conviction is against the manifest weight of the evidence.

A

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

weight” present two distinct legal concepts. Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 

23 (“sufficiency of the evidence is quantitatively and 

qualitatively different from the weight of the evidence”); State 

v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), 

syllabus. A claim of insufficient evidence invokes a due 
Athens App. No. 21CA15 65

process concern and raises the question whether the evidence is 

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

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

of the evidence, our inquiry focuses primarily upon the adequacy 

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

reasonably could support a finding of guilt beyond a reasonable 

doubt. Id. at syllabus. The standard of review is whether, 

after viewing the probative evidence and inferences reasonably 

drawn therefrom in the light most favorable to the prosecution, 

any rational trier of fact could have found all the essential 

elements of the offense beyond a reasonable doubt. E.g., 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 

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

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

whether, if believed, the evidence against a defendant would 

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

J., concurring).

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

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

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

St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio 

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will

not overturn a conviction on a sufficiency-of-the-evidence claim 
Athens App. No. 21CA15 66

unless reasonable minds could not reach the conclusion that the 

trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 

749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,

739 N.E.2d 749 (2001).

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

judgment of a trial court is sustained by sufficient evidence, 

that court may nevertheless conclude that the judgment is 

against the weight of the evidence.” Thompkins, 78 Ohio St.3d 

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

issue is raised is whether ‘there is substantial evidence upon 

which a jury could reasonably conclude that all the elements 

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

104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting 

State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866 

(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 

(1978), syllabus. A court that considers a manifest weight 

challenge must “‘review the entire record, weigh the evidence 

and all reasonable inferences, and consider the credibility of 

witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio493, 108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio 

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. Reviewing 

courts must also bear in mind, however, that credibility 

generally is an issue for the trier of fact to resolve. State 

v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. 
Athens App. No. 21CA15 67

Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. 

“‘Because the trier of fact sees and hears the witnesses and is 

particularly competent to decide “whether, and to what extent, 

to credit the testimony of particular witnesses,” we must afford 

substantial deference to its determinations of credibility.’” 

Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 

N.E.2d 1047, ¶ 20, quoting State v. Konya, 2d Dist. Montgomery 

No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2d 

Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley

court explained:

“‘[I]n determining whether the judgment below is 

manifestly against the weight of the evidence, every 

reasonable intendment must be made in favor of the 

judgment and the finding of facts. * * *

If the evidence is susceptible of more than one 

construction, the reviewing court is bound to give it 

that interpretation which is consistent with the verdict 

and judgment, most favorable to sustaining the verdict 

and judgment.’”

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

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio 

Jurisprudence 3d, Appellate Review, Section 60, at 191–192 

(1978). Thus, an appellate court will leave the issues of 

evidence weight and witness credibility to the fact finder, as 

long as a rational basis exists in the record for its decision. 

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 

2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier 
Athens App. No. 21CA15 68

of fact has some factual and rational basis for its 

determination of credibility and weight”).

{¶118} Accordingly, if the prosecution presented substantial 

credible evidence upon which the trier of fact reasonably could 

conclude, beyond a reasonable doubt, that the essential elements 

of the offense had been established, the judgment of conviction 

is not against the manifest weight of the evidence. E.g., Eley; 

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

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

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

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

reverse a judgment of conviction only if it appears that the 

fact-finder, when it resolved the conflicts in evidence, 

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

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

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

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983);

accord McKelton at ¶ 328. A reviewing court should find a 

conviction against the manifest weight of the evidence only in 

the “‘exceptional case in which the evidence weighs heavily 

against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 

quoting Martin, 20 Ohio App.3d at 175; accord State v. Clinton, 

153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 166; State 

v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
Athens App. No. 21CA15 69

{¶119} We further note that “‘“[w]hen conflicting evidence is 

presented at trial, a conviction is not against the manifest 

weight of the evidence simply because the jury believed the 

prosecution testimony.”’” State v. Cooper, 170 Ohio App.3d 418, 

2007–Ohio–1186, 867 N.E.2d 493, ¶ 17 (4th Dist.), quoting State 

v. Mason, 9th Dist. Summit No. 21397, 2003–Ohio–5785, ¶ 17, 

quoting State v. Gilliam, 9th Dist. Lorain No. 97CA006757, 1998 

WL 487085, *4 (Aug. 12, 1998). Moreover, a conviction is not 

against the manifest weight of the evidence even if the 

“evidence is subject to different interpretations.” State v. 

Adams, 2d Dist. Greene Nos. 2013CA61, 2013–CA–62, 2014–Ohio–

3432, ¶ 24. 

{¶120} We also observe that, when an appellate court 

concludes that the weight of the evidence supports a defendant’s 

conviction, this conclusion necessarily includes a finding that 

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

Waller, 4th Dist. Adams No. 17CA1044, 2018-Ohio-2014, ¶ 30. 

Thus, a determination that the weight of the evidence supports a 

conviction is also dispositive of the issue of sufficiency. Id.

B

{¶121} After our review of the evidence adduced at trial in 

the case sub judice, we do not believe that the evidence weighs 

heavily against appellant’s rape convictions under R.C. 

2907.02(A)(1)(c) and (A)(2). Those provisions read:
Athens App. No. 21CA15 70

(A)(1) No person shall engage in sexual conduct 

with another who is not the spouse of the offender or 

who is the spouse of the offender but is living separate 

and apart from the offender, when any of the following 

applies:

* * * *

(c) The other person’s ability to resist or consent 

is substantially impaired because of a mental or 

physical condition or because of advanced age, and the 

offender knows or has reasonable cause to believe that 

the other person’s ability to resist or consent is 

substantially impaired because of a mental or physical 

condition or because of advanced age. 

(2) No person shall engage in sexual conduct with 

another when the offender purposely compels the other 

person to submit by force or threat of force.

1

{¶122} Appellant first asserts that the evidence fails to

support his 2907.02(A)(2) conviction because the evidence does 

not establish that he purposely compelled J.R. to submit to 

sexual contact by force or threat of force. In particular, 

appellant alleges that J.R. could have left at any time, or 

declined to crawl into the backseat with him, and once J.R. 

moved to the backseat, she “reasonably signaled” she “wished to 

engage in sexual activity with him.” Appellant further argues 

that J.R. merely felt regret over the incident and that he did 

not purposely compel her to engage in sexual contact.

{¶123} The state, on the other hand, contends that 

appellant’s conviction is not against the manifest weight of the 

evidence. The state points to testimony that J.R. did not want 

to engage in sexual contact with appellant, that she told 
Athens App. No. 21CA15 71

appellant to stop, and that appellant did not stop his advances.

{¶124} After our review, we agree with the state’s view of 

the evidence. Because J.R.’s testimony contains ample competent 

and credible evidence that appellant purposely compelled her to

engage in sexual contact by force or threat of force, 

appellant’s R.C. 2907.02(A)(2) rape conviction is not against 

the manifest weight of the evidence. The jury was in the best 

position to hear the testimony, to assess witness credibility 

and the jury chose to believe the prosecution’s witness when it 

resolved conflicts in the evidence. This is the function of the 

trier of fact. A jury is free to believe all, part or none of 

the testimony from any witness who testifies before the jury. 

Likewise, we believe that the record contains sufficient 

evidence to support the conviction.

2

{¶125} Appellant next argues that his R.C. 2907.02(A)(1)(c) 

rape conviction is against the manifest weight of the evidence. 

In particular, he contends that the evidence fails to support a 

finding that (1) K.H.’s alcohol consumption substantially 

impaired her ability to resist or consent, or (2) appellant 

“knew or had reasonable cause to believe K.H.’s ability to 

resist or consent was substantially impaired.” Appellant claims 

that, because K.H. was conscious enough to invite appellant into 

her home, undress, and engage in sexual contact with him, the 
Athens App. No. 21CA15 72

evidence fails to show that K.H. was substantially impaired, or, 

if so, that appellant knew, or had reasonable cause to believe, 

that her ability to resist or consent was substantially 

impaired. 

{¶126} In State v. Canterbury, 4th Dist. Athens No. 13CA34, 

2015-Ohio-1926, we discussed the meaning of “substantial 

impairment”:

“The phrase ‘substantial impairment’ is not defined 

in R.C. 2907.02, nor has the Ohio Supreme Court provided 

any definition.” State v. Keeley, [4th Dist. Washington 

No. 11CA5, 2012-Ohio-3564] at ¶ 16; citing State v. 

Daniels, Summit No. 25808, 2011-Ohio -6414, ¶ 6. 

However, the Ohio Supreme Court has stated, in regards 

to a sexual battery charge against a youth victim alleged 

to have an impairment due to alleged mental retardation, 

as follows:

“The phrase ‘substantially impaired,’ in that it is 

not defined in the Ohio Criminal Code, must be given the 

meaning generally understood in common usage. As 

cogently stated by the appellate court, substantial 

impairment must be established by demonstrating a 

present reduction, diminution or decrease in the 

victim’s ability, either to appraise the nature of his 

conduct or to control his conduct.” State v. Zeh, 31 

Ohio St.3d 99, 103–104, 509 N.E.2d 414 (1987).

* * * *

Further, “[w]hether a person is substantially 

impaired ‘does not have to be proven by expert medical 

testimony; rather, it can be shown to exist by the 

testimony of people who have interacted with the victim, 

and by allowing the trier of fact to do its own 

assessment of the person’s ability to appraise or 

control his or her conduct.’” State v. Lasenby, 3rd 

Dist. Allen No. 1-13-36, 2014-Ohio-1878, ¶ 27; quoting 

State v. Brady, 8th Dist. Cuyahoga No. 87854, 2007-Ohio1453, ¶ 78; State v. Brown, 3rd Dist. Marion No. 9-09-

15, 2009-Ohio-5428, ¶ 21. Thus, the determination of 

substantial impairment is made “on a case-by-case basis, 

providing great deference to the fact-finder.” Lasenby
Athens App. No. 21CA15 73

at ¶ 27; citing Brown at ¶ 22.

{¶127} Additionally, voluntary intoxication or impairment 

is included in the terms “mental or physical condition” as 

used in R.C. 2907.02(A)(1)(c). Lasenby at ¶ 28; citing State 

v. Harmath, 3rd Dist. Seneca No. 13-06-20, 2007-Ohio-2993, ¶ 

14; see also State v. Boden, 9th Dist. Summit No. 26623, 2013-

Ohio-4260, ¶ 20; State v. Cedeno, 8th Dist. Cuyahoga No. 

98500, 2013-Ohio-821, ¶ 20. Further, courts have held that 

“[t]he consumption of large amounts of alcohol in a short 

period of time is evidence that voluntary intoxication caused 

substantial impairment.” Lasenby at ¶ 28; citing State v. 

Hatten, 186 Ohio App.3d 286, 2010–Ohio–499, ¶ 22 (2nd Dist.); 

see also State v. Lindsay, 3rd Dist. Logan No. 8–06–24, 2007–

Ohio–4490, ¶ 20. 

State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio1926, ¶ 57-59.

{¶128} Factors that courts identify as evidence of 

substantial impairment due to intoxication include: (1) the 

victim consumed large quantities of alcohol; (2) the victim 

“passed out”; and (3) the victim cannot recall, or has 

difficulty remembering, the incident. State v. Dailey, 4th 

Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 51 (rape victim 

consumed large quantity of alcohol and stated she “passed out”);

State v. Kuck, 2016-Ohio-8512, 79 N.E.3d 1164, ¶ 95 (2nd Dist.) 
Athens App. No. 21CA15 74

(substantial impairment established when victim “consumed at 

least ten alcoholic drinks”); State v. Lasenby, 3rd Dist. Allen 

No. 1-13-36, 2014-Ohio-1878, ¶ 28 (consuming large quantity of 

alcohol in short time period and inability to recall events 

constitutes evidence of substantial impairment); State v. 

Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 24 

(2d Dist.) (“stumbling, falling, slurred speech, passing out, or 

vomiting” evidence of substantial impairment).

{¶129} We also note that evidence that a rape victim 

displayed some awareness, or could ambulate from one location to 

another, does not negate a finding of substantial impairment. 

Dailey at ¶ 52; State v. Bentz, 2017-Ohio-5483, 93 N.E.3d 358 

(3rd Dist.), ¶ 105 (rejecting argument that weight of evidence 

showed victim “not substantially impaired because she was able 

to ambulate out of [defendant]’s bedroom, to [a] vehicle, and to 

the police department without assistance”). In Dailey, for 

example, the rape victim showed some awareness by feigning sleep 

in the hope that the defendant would cease the activity. Id. at 

¶ 5. We, nonetheless, upheld the defendant’s substantialimpairment rape conviction because we did not believe that the 

victim’s ability to be sufficiently aware to feign sleep negated 

the substantial-impairment element. Rather, being aware does 

not equate to a finding that the victim failed to “experience[] 

a ‘reduction, diminution or decrease’ in her abilities to 
Athens App. No. 21CA15 75

appraise the nature of, or control, her conduct.” Id. at ¶ 52, 

quoting Zeh, 31 Ohio St.3d at 103–104.

{¶130} In the case sub judice, after our review we believe 

that the record contains ample competent and credible evidence 

of K.H.’s substantial impairment at the time appellant engaged

in sexual conduct with her. K.H. testified she spent several 

hours consuming numerous alcoholic beverages and she does not 

remember how she returned home. She explained she remembers 

sitting on her porch and talking with appellant, but after that 

point, she could not remember what occurred. Instead, she 

indicated that her next recollection is waking up the following 

day. The inability to recall what transpired throughout the 

night illustrates that K.H. experienced a “reduction, diminution 

or decrease in [her] ability, either to appraise the nature of 

[her] conduct or to control [her] conduct.” Zeh, 31 Ohio St.3d 

at 103–104. If K.H. cannot recall her conduct, the jury 

reasonably could have inferred that she had a reduction, 

diminution, or decrease in her ability to either assess the 

nature of her conduct or to control her conduct. 

{¶131} Appellant, however, contends that he did not know, or 

have reasonable cause to believe, that K.H.’s ability to resist 

or consent was substantially impaired. To support this claim,

appellant relies upon (1) his testimony that he did not think 

that K.H. appeared to be under the influence of alcohol, and (2) 
Athens App. No. 21CA15 76

the lack of testimony from K.H.’s companions on the night in 

question to suggest that K.H. had displayed signs of impairment.

{¶132} Under R.C. 2907.02(A)(1)(c), an accused’s conduct is 

not criminal unless, inter alia, the accused engages in sexual 

conduct with another when the accused knows, or has reasonable 

cause to believe, that the person’s ability to consent or resist 

is substantially impaired due to a mental or physical condition. 

{¶133} According to R.C. 2901.22(B), 

[a] person acts knowingly, regardless of his 

purpose, when he is aware that his conduct will probably 

cause a certain result or will probably be of a certain 

nature. A person has knowledge of circumstances when he 

is aware that such circumstances probably exist.

We observe that “intent, lying as it does within the 

privacy of a person’s own thoughts, is not susceptible of 

objective proof.” State v. Garner, 74 Ohio St.3d 49, 60, 656 

N.E.2d 623 (1995). Thus, “[i]ntent ‘“can never be proved by the 

direct testimony of a third person and it need not be. It must 

be gathered from the surrounding facts and circumstances.”’” 

State v. Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998), 

quoting State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 

(1990), quoting State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313, 

paragraph four of the syllabus (1936). Consequently, “whether a 

person acts knowingly can only be determined, absent a 

defendant’s admission, from all the surrounding facts and 

circumstances * * *.” State v. Huff, 145 Ohio App.3d 555, 563, 
Athens App. No. 21CA15 77

763 N.E.2d 695 (1st Dist.2001).

{¶134} Accordingly, whether an accused knew, or had 

reasonable cause to believe, that a victim was substantially 

impaired for purposes of R.C. 2907.02(A)(1)(c) may be inferred 

from the surrounding facts and circumstances, including the 

victim’s demeanor. State v. Jones, 8th Dist. Cuyahoga No. 

101311, 2015-Ohio-1818, ¶ 43, citing State v. Novak, 11th Dist. 

Lake No. 2003-L-077, 2005-Ohio-563, ¶ 25. Evidence that should 

alert an accused of a victim’s substantial impairment may 

include evidence that the victim was “stumbling, falling, 

slurr[ing] speech, passing out, or vomiting.” State v. Hatten, 

186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 24 (2d 

Dist.). Additionally, “[a] jury can reasonably conclude that 

the defendant knew the victim was substantially impaired and 

unable to object to the defendant’s conduct if there was 

evidence that the victim was in a state of deep sleep or 

drunkenness.” State v. Anderson, 6th Dist. Wood No. WD-04-035, 

2005-Ohio-534, ¶ 41; accord State v. Palmer-Tesema, 8th Dist. 

Cuyahoga No. 107972, 2020-Ohio-907, ¶ 60 (“sleep constitutes a 

mental or physical condition that substantially impairs a person 

from resisting or consenting to sexual conduct.”); State v. 

Graves, 8th Dist. Cuyahoga No. 88845, 2007-Ohio-5430, ¶ 22 

(“sleep is a mental or physical condition that substantially 

impairs a person from resisting or consenting to sexual 
Athens App. No. 21CA15 78

conduct”).

{¶135} For example, a victim’s testimony that she “passed 

out” and awoke to the defendant “in between [her] legs and [her] 

pants and underwear down and him licking [her] on [her] vagina” 

permits a finding that the defendant knew or had reasonable 

cause to believe that the victim’s ability to resist or consent 

was substantially impaired because of a physical condition. 

State v. Miller, 3rd Dist. Logan No. 8-19-02, 2019-Ohio-4121, ¶ 

38. Additionally, a victim who testifies that she experienced 

“blackouts” suggests that the victim was unconscious. Kuck at ¶ 

97. A victim’s unconscious state, being obviously 

ascertainable, also permits a finding that the defendant knew or 

had reasonable cause to believe that the victim’s ability to 

resist or consent was substantially impaired because of a 

physical condition. State v. Eberth, 7th Dist. Mahoning No. 07-

MA-196, 2008-Ohio -6596, ¶ 49 (evidence victim unconscious 

during sexual contact “more than enough to prove that she was 

substantially impaired”); see State v. Williams, 9th Dist. 

Lorain App. No. 02CA008112, 2003-Ohio-4639 (defendant’s 

awareness victim passed out after ingesting a substantial amount 

of alcohol is evidence that he knew, or should have known, that 

the victim substantially impaired). Being unconscious does “not 

simply impair [a victim] from resisting or consenting.” Kuck at 

¶ 97. Instead, it precludes the victim from taking any action 
Athens App. No. 21CA15 79

at all. Id.

{¶136} In contrast, when a rape victim testifies that she 

“was aware of her surroundings and coherent enough to make 

decisions about the extent of her participation in the events in 

question,” courts have concluded that this evidence fails to 

show that the defendant knew, or had reasonable cause to 

believe, that the victim was substantially impaired. State v. 

Rivera, 8th Dist. Cuyahoga No. 97091, 2012-Ohio-2060, ¶ 28.

{¶137} After our review in the case sub judice, we believe 

that the state presented ample competent and credible evidence 

to establish that appellant knew, or had reasonable cause to 

know, that K.H. was substantially impaired. K.H. stated she has 

no memory of what happened between the time that she spoke with 

appellant outside of her residence and when she awoke the next 

day. Also, the forensic toxicologist testified that K.H.’s 

blood-alcohol content, when submitted at 5:00 p.m. the following 

day, was .146%. He explained that the rate of alcohol 

dissipation for women is .018% per hour and the varying degrees 

of intoxication: (1) intoxication becomes life-threatening once 

the blood-alcohol level approaches .35 or .4, and (2) at the 

lower concentrations, between .05 and .1, a person’s inhibitions 

and critical-thinking skills become impaired. A person with a 

.1 blood-alcohol concentration will display some deficits in 

reaction time and exhibit coordination difficulties, and when a 
Athens App. No. 21CA15 80

person’s content reaches .2, the person can become “confused” 

and “disoriented.” At the higher levels, around a .3 and 

beyond, a person may have memory problems, and once a person 

reaches “a .3 and beyond,” the person “enter[s] a stage of 

intoxication that can be associated with stupor or being 

comatose.” The toxicologist indicated that a person will not be 

“forming memory very well if they’re in a stupor or they’re 

unresponsive or unconscious.”

{¶138} Here, K.H.’s testimony, in addition to the forensic 

toxicologist’s testimony, permitted the jury to infer that K.H. 

was unconscious or passed out when appellant engaged in sexual 

conduct with her. K.H. stated she has no memory of the events 

(or very little memory according to the SANE report) between the 

moment she spoke with appellant while she sat on her front porch 

and when she awoke the next day at 1:30 p.m. Her memory lapse, 

according to the forensic toxicologist, indicates either “in a 

stupor,” “unresponsive[,] or unconscious.” For appellant to 

claim to be unaware that K.H. was in any of these states is 

specious, and the jury obviously did not find appellant’s 

testimony credible. As the trier of fact, it is well within the 

jury's province to discredit appellant’s testimony. 

{¶139} Consequently, in the case at bar it appears that the 

jury opted to believe K.H.’s testimony that she did not consent 

to engaging in sexual conduct with appellant and that she was 
Athens App. No. 21CA15 81

unaware of, or had scant memory of, the nature of any sexual 

contact that had occurred until she awoke the next day when she 

noticed that her body displayed indicators of sexual activity. 

We find nothing manifestly unjust with the jury’s decision to 

discredit appellant’s testimony that he and K.H. engaged in 

consensual sexual conduct. Once again, a trier of fact may 

choose to believe all, part or none of the testimony of any 

witness who appears before it. Here, the jury believed K.H.’s 

testimony and discounted appellant’s testimony. Obviously, the 

jury is in the best position to observe the witnesses and to 

assess their credibility. 

{¶140} Therefore, we do not agree with appellant that his 

R.C. 2707.02(A)(1)(c) conviction is against the manifest weight 

of the evidence. The state presented substantial competent and 

credible evidence that K.H. was substantially impaired and that 

appellant knew, or had reasonable cause to believe, that K.H. 

was substantially impaired. For these same reasons, we believe 

that the record contains sufficient evidence to support 

appellant’s R.C. 2707.02(A)(1)(c) rape conviction.

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

overrule appellant’s sixth assignment of error.

VII

{¶142} In his seventh assignment of error, appellant asserts 

that the trial court’s sentence is clearly and convincingly 
Athens App. No. 21CA15 82

contrary to law. Appellant does acknowledge that his sentences 

“fall within the applicable [statutory} ranges available,” but 

asserts that the trial court did not correctly consider “the 

purposes and principles of felony sentencing set forth in R.C. 

2929.11 and the seriousness and recidivism factors set forth in 

R.C. 2929.12.” Id.

{¶143} When reviewing felony sentences, appellate courts 

apply the standard of review outlined in R.C. 2953.08(G)(2). 

State v. Prater, 4th Dist. Adams No. 18CA1069, 2019-Ohio-2745, ¶ 

12, citing State v. Graham, 4th Dist. Adams No. 17CA1046, 2018-

Ohio-1277, ¶ 13. Under R.C. 2953.08(G)(2), “[t]he appellate 

court’s standard for review is not whether the sentencing court 

abused its discretion.” Instead, R.C. 2953.08(G)(2) specifies 

that an appellate court may increase, reduce, modify, or vacate 

and remand a challenged felony sentence if the court clearly and 

convincingly finds either:

(a) That the record does not support the sentencing 

court’s findings under division (B) or (D) of section 

2929.13, division (B)(2)(e) or (C)(4) of section 

2929.14, or division (I) of section 2929.20 of the 

Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶144} A defendant bears the burden to establish, by clear 

and convincing evidence, (1) that a sentence is either contrary 

to law or (2) that the record does not support the specified 

findings under R.C. 2929.13(B), R.C. 2929.13(D), R.C. 
Athens App. No. 21CA15 83

2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 2929.20(I). State v. 

Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 48; 

State v. Shankland, 4th Dist. Washington Nos. 18CA11 and 18CA12, 

2019-Ohio-404, ¶ 20. 

[C]lear and convincing evidence is that measure or 

degree of proof which is more than a mere ‘preponderance 

of the evidence,’ but not to the extent of such certainty 

as is required ‘beyond a reasonable doubt’ in criminal 

cases, and which will produce in the mind of the trier 

of facts a firm belief or conviction as to the facts 

sought to be established.

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), 

paragraph three of the syllabus.

{¶145} “A court reviewing a criminal sentence is required by 

R.C. 2953.08(F) to review the entire trial-court record, 

including any oral or written statements and presentenceinvestigation reports.” State v. Bryant, ___ Ohio St.3d ___, 

2022-Ohio-1878, ___ N.E.3d ___, ¶ 20, citing R.C. 2953.08(F)(1) 

through (4). We additionally observe, however, that “[n]othing 

in R.C. 2953.08(G)(2) permits an appellate court to 

independently weigh the evidence in the record and substitute 

its judgment for that of the trial court concerning the sentence 

that best reflects compliance with R.C. 2929.11 and 2929.12.” 

State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 

649, ¶ 42. In other words, “R.C. 2953.08(G)(2) does not allow 

an appellate court to modify or vacate a sentence based on its 

view that the sentence is not supported by the record under R.C. 
Athens App. No. 21CA15 84

2929.11 and 2929.12.” Bryant at ¶ 22. Consequently, appellate 

courts cannot review a felony sentence when “the appellant’s 

sole contention is that the trial court improperly considered 

the factors of R.C. 2929.11 or 2929.12 when fashioning that 

sentence.” State v. Stenson, 6th Dist. Lucas No. L-20-1074, 

2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; accord State v. 

Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13 

(“In light of Jones, assigning error to the trial court’s 

imposition of sentence as contrary to law based solely on its 

consideration of R.C. 2929.11 and 2929.12 is no longer grounds 

for this court to find reversible error.”); State v. Loy, 4th 

Dist. Washington No. 19CA21, 2021-Ohio-403, ¶ 30. We also 

observe that “neither R.C. 2929.11 nor 2929.12 requires a trial 

court to make any specific factual findings on the record.” 

Jones at ¶ 20.

{¶146} Furthermore, “an appellate court’s determination that 

the record does not support a sentence does not equate to a 

determination that the sentence is ‘otherwise contrary to law’ 

as that term is used in R.C. 2953.08(G)(2)(b).” Jones at ¶ 32. 

“[O]therwise contrary to law” means “‘in violation of statute or 

legal regulations at a given time.’” Id. at ¶ 34 quoting 

Black's Law Dictionary 328 (6th Ed.1990), cited with approval in 

Bryant at ¶ 22. Thus, for example, “when a trial court imposes 

a sentence based on factors or considerations that are 
Athens App. No. 21CA15 85

extraneous to those that are permitted by R.C. 2929.11 and 

2929.12, that sentence is contrary to law.” Bryant at ¶ 22. 

{¶147} In the case sub judice, appellant has not argued that 

the record fails to support the findings under R.C. 2929.13(B), 

R.C. 2929.13(D), R.C. 2929.14(B)(2)(e), 2929.14(C)(4), or R.C. 

2929.20(I). Appellant agrees that his sentences “fall within 

the applicable ranges available,” but instead asserts that the 

issue is “whether the trial court considered the purposes and 

principles of felony sentencing set forth in R.C. 2929.11 and 

the seriousness and recidivism factors set forth in R.C. 

2929.12.” 

{¶148} As we pointed out above, however, R.C. 2953.02(G)(2) 

does not allow this court to independently review the record to 

determine whether the trial court chose an appropriate sentence 

based on the R.C. 2929.11 and R.C. 2929.12 factors. See Jones, 

supra; State v. Hughes, 4th Dist. Adams No. 21CA1127, 2021-Ohio3127, ¶ 41 (“R.C. 2953.08(G)(2) does not give appellate courts 

broad authority to review sentences to determine if they are 

supported by the record”). Therefore, we may not consider the 

issue of whether the trial court properly considered the 

purposes and principles of felony sentencing listed in R.C. 

2929.11 and the seriousness and recidivism factors listed in 

R.C. 2929.12. We note, however, that the trial court did, in 

fact, indicate that it did fully consider the factors listed in 
Athens App. No. 21CA15 86

each section. Furthermore, we find nothing in the record to 

suggest that the trial court’s sentencing decision is contrary 

to law. Rather, appellant agrees that his prison sentence is 

authorized under the relevant statutes. 

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

overrule appellant’s seventh assignment of error and affirm the 

trial court’s judgment.

JUDGMENT AFFIRMED.
Athens App. No. 21CA15 87

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that 

appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this 

appeal.

It is ordered that a special mandate issue out of this 

Court directing the Athens County Common Pleas Court to carry 

this judgment into execution.

If a stay of execution of sentence and release upon bail 

has been previously granted, it is continued for a period of 60 

days upon the bail previously posted. The purpose of said stay 

is to allow appellant to file with the Ohio Supreme Court an 

application for a stay during the pendency of the proceedings in 

that court. The stay as herein continued will terminate at the 

expiration of the 60-day period.

The stay will also terminate if appellant fails to file a 

notice of appeal with the Ohio Supreme Court in the 45-day 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Ohio Supreme Court. Additionally, if the Ohio Supreme Court 

dismisses the appeal prior to the expiration of said 60 days, 

the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that 

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ 

 Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.