[Cite as State v Dubose, 2016-Ohio-7883.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals No. L-15-1194 

 

 Appellee Trial Court No. CR0201501380 

v. 

Bobby C. Dubose DECISION AND JUDGMENT

Appellant Decided: November 23, 2016 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and Dexter L. Phillips, 

 Assistant Prosecuting Attorney, for appellee. 

 Clayton M. Gerbitz, for appellant. 

* * * * * 

JENSEN, P.J. 

{¶ 1} Following a jury trial, defendant-appellant, Bobby C. Dubose, appeals the 

June 18, 2015 judgment of the Lucas County Court of Common Pleas, convicting him of 

two counts of rape. For the reasons that follow, we affirm. 

 
2. 

I. Background 

{¶ 2} On March 3, 2015, Dubose was indicted on three counts of rape, violations 

of R.C. 2907.02(A)(2) and (B). The facts giving rise to these charges were established at 

trial as follows. 

{¶ 3} On February 22, 2015, 15-year-old S.C. was at Dubose’s apartment on 

Western Avenue in Toledo, Lucas County, Ohio, with her mother and three younger 

siblings. Dubose, then 23 years old, was dating S.C.’s mother, H.C., and was the father 

of H.C.’s two youngest children. S.C. was sleeping in the living room with her brother 

and two sisters when she was awoken by Dubose pulling the covers off of her. Dubose 

turned S.C. onto her hands and knees, removed her pants, and put his penis in S.C.’s 

vagina. He stopped, walked away, did something on his phone, then returned and did it 

again. He then went into his room and lay down. 

{¶ 4} S.C. went to the kitchen and called 9-1-1. She waited for the police to 

arrive, but Dubose awoke because he heard something. He asked S.C. what it was. She 

said she didn’t know, but she could hear that the police had arrived, so she ran into the 

bathroom, locked the door, and attempted to barricade the door with her feet. Dubose 

knocked on the door and told her to open it. She yelled for her mother as Dubose tried to 

break the door down. He finally succeeded, confronted her for calling the police, and 

punched her in the forehead. The police forcibly entered the apartment and S.C. was 

transported to St. Vincent Hospital by ambulance. Dubose was transported to Toledo 

Hospital. 
3. 

{¶ 5} A sexual assault nurse (“SANE”) examined S.C., performed a rape kit, and 

photographed S.C.’s head wound. She took a number of swabs from her vagina, anus, 

forehead, and mouth, and collected hair and urine samples. Also collected were S.C.’s 

underwear and tissues she used to wipe herself after the rape. Meanwhile, at Toledo 

Hospital, Dubose ultimately consented to a rape kit. A SANE nurse swabbed his mouth, 

hands, penis, and scrotum. 

{¶ 6} S.C. revealed to investigators that the February 22, 2015 incident was not the 

first time Dubose had raped her. She said he first started raping her when she was 13, the 

day after Dubose’s twenty-first birthday. She said they were living at Eastpointe 

Apartments in Northwood, Ohio. He pulled her off the couch, took her to her room, put 

her on the bed, and inserted his penis into her vagina. He also raped her on her fourteenth 

birthday. At that point they were living on Packard Street in Toledo, Ohio. Again, he 

pulled her off the couch, turned her around, and inserted his penis into her vagina. S.C. 

recalled a second incident while they were living on Packard Street. Dubose asked S.C. 

to help him look for some clothing in the basement. He then made her get on her hands 

and knees, pulled down her pants, and put his penis in her vagina. 

{¶ 7} The Bureau of Criminal Investigation (“BCI”) analyzed the rape kits. 

Semen was identified on the anal samples and vaginal samples taken from S.C. Her 

underwear and the tissues she used to wipe herself tested presumptive positive for semen. 

No semen was identified in the oral sample. 
4. 

{¶ 8} BCI performed more extensive DNA testing of S.C.’s vaginal and anal 

samples and Dubose’s penal samples. That testing revealed the presence of both S.C.’s 

and Dubose’s DNA in all three samples. As to the presence of Dubose’s DNA in the 

vaginal and anal samples taken from S.C., BCI calculated the frequency of the population 

that cannot be excluded as contributors of the DNA to be one in sextillion 478 quintillion 

unrelated individuals. As to S.C.’s DNA taken from Dubose’s penile sample, the 

frequency was calculated at one in three quadrillion 858 trillion. 

{¶ 9} The jury convicted Dubose of counts two and three of the indictment. Count 

one pertained to the incident at Eastpointe Apartments, located in Wood County, thus the 

trial court dismissed that count of the complaint for lack of jurisdiction. The court 

sentenced Dubose to a prison term of nine years on each count, to be served concurrently, 

and Dubose was designated a Tier III sex offender. Dubose appealed and he assigns the 

following errors for our review: 

I. THE VERDICT OF THE TRIAL COURT WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

APPELLANT BY DENYING HIS CRIM.R. 29 MOTION FOR 

JUDGMENT OF ACQUITAL [sic] ON COUNT 3 OF THE 

INDICTMENT AND PERMITTING THE APPELLEE TO AMEND THE 

BILL OF PARTICULARS IN VIOLATION OF APPELLANT’S DUE 

PROCESS RIGHTS. 
5. 

II. Law and Analysis 

A. Manifest Weight of the Evidence. 

{¶ 10} In his first assignment of error, Dubose argues that the verdict was against 

the manifest weight of the evidence. He contends that the evidence in support of count 

three of the indictment consisted of three sentences from S.C. He claims that Dubose’s 

denial of that allegation, and a discrepancy between the date S.C. testified the rape 

occurred versus the date provided in the bill of particulars, should have been enough for a 

defense verdict. Dubose submits that the jury’s verdict was influenced by other “bad 

acts” that the jury was permitted to hear. Once such bad act was an uncharged allegation 

of rape. He also claims that the evidence supporting count one—dismissed because it 

occurred outside Lucas County—in essence constituted other bad acts evidence which 

prejudiced him. Finally, he insists that the scientists who testified were unable to negate 

Dubose’s testimony that DNA had been transferred between he and S.C. because they 

shared a bath towel. 

{¶ 11} When reviewing a claim that a verdict is against the manifest weight of the 

evidence, the appellate court must weigh the evidence and all reasonable inferences, 

consider the credibility of witnesses, and determine whether the jury clearly lost its way 

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice 

that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light 

most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the 
6. 

factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas 

No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest 

weight grounds is reserved for “the exceptional case in which the evidence weighs 

heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 12} Although under a manifest-weight standard we consider the credibility of 

witnesses, we must nonetheless extend special deference to the jury’s credibility 

determinations given that it is the jury who has the benefit of seeing the witnesses testify, 

observing their facial expressions and body language, hearing their voice inflections, and 

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. 

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. 

{¶ 13} The jury clearly disbelieved Dubose’s “bath towel” explanation as to why 

his DNA was found in S.C.’s vagina and anus, and why her DNA was on his penis. It 

believed S.C.’s explanation for the transfer of DNA. We defer to its credibility 

determination. 

{¶ 14} With respect to the discrepancy in dates, S.C. testified at trial that Dubose 

raped her on her fourteenth birthday. The bill of particulars, however, described that 

Dubose had raped S.C. on her fifteenth birthday. Dubose confronted S.C. with this 

discrepancy on cross-examination, and this discrepancy was resolved by the jury. Again, 

we defer to its credibility determination. 
7. 

{¶ 15} Finally, with respect to the victim’s testimony relevant to count one—

which was dismissed because it occurred in Wood County—and evidence concerning a 

fourth, uncharged rape, we observe that Dubose failed to assign error in the court’s 

evidentiary rulings. He has alleged in this assignment of error only that the verdict is 

against the manifest weight of the evidence. Accordingly, we decline to address this 

argument. 

{¶ 16} We find Dubose’s first assignment of error not well-taken. 

B. The Denial of Dubose’s Motion for Acquittal. 

{¶ 17} In his second assignment of error, Dubose argues that the trial court erred 

when it denied his motion for acquittal. Specifically, he claims that the bill of particulars 

provided by the state specified that the incident described in count three occurred on 

S.C.’s fifteenth birthday—November 9, 2014. At trial, however, S.C. testified that it 

occurred on her fourteenth birthday—November 9, 2013. Instead of granting Dubose’s 

motion for acquittal, the trial court granted the state’s motion to amend the bill of 

particulars to conform to the evidence. Dubose contends that this was error. 

{¶ 18} We review a Crim.R. 29 motion for acquittal under the same standard used 

to review a sufficiency of the evidence claim. State v. Hollstein, 6th Dist. Lucas No. L08-1184, 2009-Ohio-4771, ¶ 28. “Accordingly, the relevant inquiry is whether any 

rational fact finder, after reviewing the evidence in a light most favorable to the state, 

could have found the essential elements of the crime proven beyond a reasonable doubt. 

(Citations and quotations omitted.) Id. With respect to a trial court’s decision granting 
8. 

the state’s motion to amend a bill of particulars, however, we apply an abuse-ofdiscretion standard of review. State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-

Ohio-461, ¶ 52. “[F]or the amendment to constitute reversible error, the defendant must 

demonstrate that the amendment hampered [his] defense or otherwise prejudiced [him].” 

(Internal citations and quotations omitted.) Id. 

 Ohio Crim. R. 7(D) provides that a court may “at any time before, during, or after 

a trial amend the indictment, information, complaint, or bill of particulars, in respect to 

any defect, imperfection, or omission in form or substance, or of any variance with the 

evidence, provided no change is made in the name or identity of the crime charged.” In 

State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985), the Ohio Supreme 

Court explained that “[o]rdinarily, precise times and dates are not essential elements of 

offenses.” It further explained that “[a] bill of particulars has a limited purpose -- to 

elucidate or particularize the conduct of the accused alleged to constitute the charged 

offense.” Id. Inexactitude as to the time the offense was committed may prove fatal, 

however, if it “truly prejudices” a defendant from defending himself. Id. at 172. 

{¶ 19} Here, Dubose was charged with rape, a violation of R.C. 2907.02(A)(2) 

and (B). The precise time and date of the offense are not essential elements of the 

offense under the circumstances provided here, where neither the offender nor the 

victim’s age would alter the nature of the offense or the possible penalty. As to the 

inconsistency between the date provided in the bill of particulars and the date provided by 

S.C. at trial, Dubose fails to show that he was “truly prejudiced.” See State v. Grewell, 
9. 

45 Ohio St.3d 4, 10, 543 N.E.2d 93 (1989) (“Although the defendant could hypothetically 

have been prejudiced by a variance on counts two and four, the record does not indicate 

prejudice in this case.”) . 

{¶ 20} In State v. Garfield, 9th Dist. Lorain No. 09CA009741, 2011-Ohio-2606, ¶ 

49, the court found that the defendant was not prejudiced in his ability to prepare a 

defense where the original indictment indicated that the crimes occurred between June 1, 

2004, to August 31, 2004, but the court allowed the state to amend it to June 1, 2003, to 

August 1, 2004. Id. at ¶ 49. In doing so, the court pointed out that the defendant did not 

move for a continuance or to discharge the jury. 

{¶ 21} Here, on the afternoon of the first day of trial, defense counsel brought to 

the court’s attention that there was a discrepancy in the date. The state moved to amend 

the bill of particulars, and the trial court took the matter under advisement overnight, 

issuing its decision the next morning. Dubose offered no evidence or information 

indicating that his defense would have differed if he had known earlier that S.C. was 

claiming that the rape occurred on her fourteenth birthday instead of her fifteenth 

birthday. He presented no evidence that he had an alibi for November 9, 2013, that he 

was incarcerated on that date, or any other defense that would have been specific to the 

date and time. He also did not request a continuance or ask to discharge the jury. 

{¶ 22} We also observe that the bill of particulars indicates that the rape on S.C.’s 

birthday occurred on Packard Street. Dubose testified that he lived on Packard Street 

from August of 2013 through August of 2014. This is consistent with the offense having 
10. 

occurred on S.C.’s fourteenth birthday. Dubose testified but offered nothing to counter 

S.C.’s allegations concerning the incident on Packard Street. We find no abuse of 

discretion in the trial court’s decision to grant the state’s motion to amend the bill of 

particulars to conform to the evidence. 

{¶ 23} Finally, we find that the state offered evidence going to each essential 

element of the offenses. We, therefore, conclude that the trial court properly denied 

Dubose’s motion for acquittal. 

{¶ 24} We find Dubose’s second assignment of error not well-taken. 

III. Conclusion 

{¶ 25} We find Dubose’s assignments of error not well-taken, and affirm the June 

18, 2015 judgment of the Lucas County Court of Common Pleas. Dubose is ordered to 

pay the costs of this appeal under App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Stephen A. Yarbrough, J. 

_______________________________ 

James D. Jensen, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE