[Cite as State v. Hardy, 2024-Ohio-1107.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HENRY COUNTY

STATE OF OHIO,

CASE NO. 7-23-10

 PLAINTIFF-APPELLEE,

 v.

THOMAS J. HARDY, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court

Trial Court No. 22 CR 0100

Judgment Affirmed

Date of Decision: March 25, 2024

APPEARANCES:

Austin C. Buchholz for Appellant

Gwen Howe-Gebers for Appellee
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WILLAMOWKSI, P.J. 

{¶1} Defendant-appellant Thomas Hardy (“Hardy”) brings this appeal from 

the judgment of the Henry County Court of Common Pleas finding him guilty of 

one count of rape and sentencing him to prison. Hardy challenges the conviction 

claiming that it was not supported by sufficient evidence and was against the 

manifest weight of the evidence. For the reasons set forth below, the judgment is 

affirmed.

{¶2} On July 27, 2022, the Henry County Grand Jury indicted Hardy on one 

count of rape in violation of R.C. 2907.02(A)(2), (B), a felony of the first degree. 

A jury trial was held on May 18 and 19, 2023. At trial, the following testimony was 

presented.

{¶3} The victim in this case testified that in June of 2021, she had been at a 

party with her family members and Hardy. Afterwards, Hardy and the victim’s 

sister, who was Hardy’s fiancé at that time, took the victim back to their home. The 

victim admitted that on the night of the alleged rape, she had been drinking. The 

victim went into a bedroom and began texting with a friend when Hardy entered the 

room and started kissing her. The victim testified that she attempted to push Hardy 

away, but he did not stop. Hardy then pulled down her shorts and inserted his penis 

into her vaginal cavity. Hardy then flipped her onto her stomach and inserted his 

penis into her vaginal cavity again. The victim indicated that Hardy ejaculated onto 
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her body. Afterwards, Hardy pulled up his shorts and left the room. The victim 

then texted her friend that something had happened and changed from pink and 

white shorts into blue and white shorts. The victim indicated that although she did 

not say anything while the alleged rape was occurring, she was crying. The victim 

later went home and put the shorts in a bag. 

{¶4} In April of 2022, the victim was babysitting for Hardy and her sister. 

Once everyone returned to the house, the victim was sleeping on the couch in the 

living room. Hardy came into the living room and attempted to touch her, but the 

victim pushed him away. The victim then texted her brother who called the victim’s 

parents. The victim’s parents then came to get the victim. The victim admitted that 

she did not tell her parents everything that had happened until after the police 

arrived. After speaking with the police, the victim turned over the shorts. The 

victim identified the shorts as exhibits 1 and 1A during the trial. The victim testified 

that she did not wish to engage in sexual conduct with Hardy and the intercourse 

was not voluntary. The victim also indicated that when the alleged rape began she 

tried to push him away. 

{¶5} On cross-examination the victim stated that she did not remember 

giving a statement to the doctor at the hospital, just that the doctor performed an 

exam. The victim admitted to having two or three drinks and smoking marijuana at 

the party before the alleged rape. The victim testified that she was drinking shots 

of a clear liquid. Before the victim reached Hardy’s home, she was getting sick 
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because of drinking too much. The victim testified that she borrowed the blue and 

white shorts from her sister. When Hardy entered the bedroom, the victim was 

wearing the pink and white shorts. When questioned about the penetration, the 

victim admitted that she had previously stated she did not know if there was 

penetration. However, the victim testified that she was sure there was penetration, 

but not sure if it was vaginal or anal. The victim also admitted that she did not cry 

out when Hardy began assaulting her. The only person the victim told at that time 

was a friend. The shorts sat in a corner of the victim’s room for the months between 

when the alleged rape occurred and when the victim told her parents. 

{¶6} Kaitlyn S. (“Kaitlyn”) testified that she and the victim are “best 

friends.” In April of 2022, the victim sent Kaitlyn a text message telling her that 

Hardy “was trying to make a move on [the victim] and [the victim] was 

uncomfortable and wanted somebody to call her so that he would stop.” Tr. 184. 

Kaitlyn was not able to call because it was late. Eventually, the victim called her 

brother and her family went to Hardy’s home. Prior to that night, the victim had 

told Kaitlyn about the alleged rape the morning after it happened, indicating that 

Hardy had raped the victim. Kaitlyn told the victim to keep her clothes as evidence. 

The victim had also told another friend of theirs. After the alleged rape, the victim’s 

behavior changed and she seemed to stop caring about herself. Once Hardy was 

arrested, the victim seemed to be more herself. On cross-examination Kaitlyn 

testified that the text messages from the victim were sent on Snapchat and were 
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automatically erased. The victim’s original statements about Hardy occurred in the 

summer of 2021. 

{¶7} Deputy Logan Clevidence (“Clevidence”) of the Henry County 

Sheriff’s Department testified he received items of clothing from the victim’s 

mother. The clothing was identified as two pairs of shorts – one pink and white and 

the other blue and white. Clevidence testified that the shorts were both in the same 

bag. 

{¶8} Khalia L. (“Khalia”) testified that she was Hardy’s fiancé at the time in 

question and was the victim’s sister. On the night in question, Khalia, Hardy, and 

the victim were at a party to celebrate her father’s business. When the party ended, 

Khalia drove the victim and Hardy back to the house. At her home, the victim went 

into the kids bedroom while Khalia and Hardy went into the master bedroom. 

Khalia testified that neither pair of shorts that the victim wore belonged to Khalia. 

On the night the rape was alleged to have occurred, the victim did not wake her up 

and she did not hear anything. 

{¶9} In April of 2022, the victim was again at Khalia’s home and was 

sleeping on the couch. When Khalia woke up, the victim told her what Hardy had 

done. Khalia then took the victim to the garage to wait while Khalia went inside to 

speak with Hardy. Hardy denied doing anything. Khalia called 9-1-1. On crossexamination Khalia testified that on the night of the alleged rape, Hardy went to bed 
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at the same time she did. She did not hear anything in the night. The day after the 

alleged rape, the victim did not say anything to Khalia. 

{¶10} Doctor Randall Scott Schlievert (“Schlievert”) testified that he was a 

child abuse pediatrician in Toledo, Ohio. On June 1, 2022, Schlievert examined the 

victim. The victim told Schlievert that Hardy had raped her. When asked why she 

disclosed the alleged rape at that time after remaining silent for so long, the victim 

stated it was because Hardy had tried to kiss her again. The physical examination 

of the victim showed nothing abnormal, which was to be expected given the history 

provided. On cross-examination, Schlievert testified that the exam results do not 

indicate one way or the other that a rape occurred. 

{¶11} Deputy Blake Musshel (“Musshel”) of the Henry County Sheriff’s 

Department testified that he responded to a call on April 24, 2022, regarding a 

possible sexual assault. Upon his arrival, Musshel made contact with the victim and 

her mother. The victim was crying and emotional and her mother was hugging her. 

Musshel also spoke with Hardy who claimed that the victim’s parents made it up 

because they did not like him. Hardy denied the allegations. 

{¶12} Andrea B. (“Andrea”) testified that she is the mother of the victim. 

Andrea testified that in June 2021, there was a party at her husband’s business that 

was attended by Hardy and the victim along with other members of the family, 

employees, and customers. Andrea admitted that she knew the victim was drinking 

that night. Andrea did not find out for almost a year that something had occurred 
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between the victim and Hardy. The night of the alleged rape, the victim called 

Andrea asking to be picked up because she did not feel good. Eventually, the victim 

indicated that she would be fine until morning when Khalia brought her home. The 

morning the victim came home she started bleeding and asked Andrea why it was 

happening. Andrea thought it was just the victim starting her period, but the 

bleeding stopped after a few hours. Andrea chalked it up to just spotting and did 

not give it any more thought. 

{¶13} In April of 2022, Andrea’s son called her at around four in the morning 

about the victim. Andrea, along with her husband, left immediately to go to the 

victim without even bothering to get out of her pajamas. Andrea drove and tried to 

get there as fast as possible. Andrea learned that the victim had kept the clothing 

the victim wore in June of 2021 in her closet following the alleged rape. When they 

returned to their home, Andrea and the victim retrieved the bag of clothing from the 

victim’s closet and took the bag to the police. Before June 2021, the victim was 

described as spunky and outgoing. After June 2021, the victim became quiet and 

withdrawn. The victim’s grades went from being straight As to C’s and lower. 

Andrea testified that since June of 2021, the victim had lost substantial weight. On 

cross-examination, Andrea admitted that she did not suspect sexual assault when 

the victim’s behavior changed. The victim did not tell Andrea because she was 

afraid. 
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{¶14} Detective Sergeant Arlen Cohrs (“Cohrs”) testified that he is a 

certified Master Criminal Investigator and was trained in conducting forensic 

interviews with juveniles. According to Cohrs, it is common for victims of sexual 

assault to delay disclosure. Cohrs listened to the forensic interview conducted with 

the victim and found her demeanor to be quiet and emotional. Cohrs testified that 

teens like to communicate with friends on Snapchat because the conversation 

disappears and it is not easily retrieved. Cohrs also testified that there had been no 

probable cause to obtain a warrant for Hardy’s phone. When Andrea dropped off 

the shorts, the evidence was placed in a temporary locker before being taken to the 

Ohio Bureau of Criminal Investigation (“BCI”). In addition to the shorts, DNA 

samples from Hardy and the victim were submitted for comparison. Cohrs 

identified exhibits 6 and 7 as the reports from BCI regarding the shorts. On crossexamination, Cohrs admitted that he did not put his attempt to speak with Hardy in 

his report because he was unable to make contact. Cohrs testified that Hardy 

voluntarily gave a DNA sample. 

{¶15} Emily Feldenkris (“Feldenkris”) testified that she is a forensic scientist 

in the DNA section at BCI. Feldenkris conducted the testing in this case. On the 

blue and white shorts, a test for semen was conducted and the result was positive. 

However, the sample on those shorts was too small to allow for comparisons. The 

pink and white shorts were also positive for semen. That sample indicated a mixture 

of the victim’s DNA and a DNA profile consistent with Hardy. “[I]n particular that 
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DNA profile was located in the sperm fraction of [the] testing.” Tr. 323. Feldenkris

testified that the “estimated frequency of occurrence of the DNA profile that was 

observed in the sperm fraction of that profile was rarer than 1 in 1 trillion unrelated 

individuals.” Tr. 329. On cross-examination, Feldenkris admitted that she did not 

know with 100% certainty that the DNA came from Hardy’s semen, but it was 

“highly likely” given the strength of the profile and the biology results. Although a 

microscopic evaluation could be done to verify it was actually semen, BCI skips 

that and goes directly to the DNA results which do not change. According to 

Feldenkris, the extraction method used was developed to isolate sperm cells, and in 

her experience other substances to not behave the same way as sperm cells when 

DNA is extracted. 

{¶16} After this testimony, the State moved to admit its exhibits and then to 

rest. Hardy’s counsel then moved for a Criminal Rule 29 motion for judgment of 

acquittal. The State argued that given the testimony of the victim and the DNA 

information showing that there was a 1 in 1 trillion chance of the contributor of the 

sperm faction being anyone other than Hardy, the State had met its burden of making 

a prima facia case. The trial court agreed and overruled Hardy’s motion. Hardy 

then presented his case.

{¶17} Julie Heinig (“Heinig”) testified that she works at the DNA Diagnostic 

Center in Fairfield, Ohio. Heinig testified that part of her job is to perform case 

reviews, primarily for defense attorneys, to make sure the State’s testing was done 
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correctly. Heinig was hired to review the processes and opinions rendered by 

Feldenkris in this case. According to Heinig, BCI should have tested for sperm cells 

specifically rather than just the DNA. Heinig testified that the DNA could have 

come from anything, such as sweat and saliva as well as semen and sperm. Without 

the separate tests, the only conclusion that can be made is that male DNA was 

present, not that it came from sperm. On cross-examination Heinig admitted that 

her center did not conduct the tests she alleged BCI should have done. Heinig also 

agreed that the findings in Feldenkris’s report were accurate and that the male DNA 

with sperm fraction was found in the crotch area of the victim’s shorts. 

{¶18} Hardy took the stand in his own defense and testified that in April of 

2022, he did not interact with the victim as he was outside with a friend before 

entering the house and going to bed. Hardy stated that when he went in the house, 

the victim, Khalia, and the children were sleeping in the living room. The next thing 

he remembers is being woken up by Khalia telling him that the victim claimed he 

had tried to kiss her and that her parents were coming with a gun. Hardy told Khalia 

to call the police and she did. The police asked Hardy if he had tried to kiss the 

victim and he denied it. Eventually the officers started to ask about the alleged rape

in 2021. Hardy denied that he had raped the victim or that any sexual conduct had 

occurred between he and the victim. 

{¶19} When questioned about the alleged rape in 2021, Hardy admitted that 

he went to the party with Khalia. Hardy admitted that he had been drinking and was 
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slightly intoxicated, but denied being drunk. The victim had been drinking and 

smoking marijuana at the party. Hardy described her as drunk by the end of the 

evening. When Hardy left the party with Khalia, the victim went with them. During 

the drive to their home, the victim started vomiting on herself and the car. Then the 

car broke down and they had to wait for the tow truck. Soon after, a police car 

stopped beside them to see if they needed help and the officer remained until after 

the tow truck left and they were ready to leave with a family member. Hardy denied 

sexually assaulting the victim in the rear of the vehicle as was claimed by the victim. 

{¶20} Once they arrived at the home, Khalia took the victim into the 

bathroom to get her cleaned up. Hardy testified that he went outside to help clean 

up the vehicle after the victim had been sick in it again. When Hardy went inside, 

the victim was already in the children’s bedroom and Hardy went to his room. 

Hardy changed into shorts and a t-shirt and then went to bed with Khalia. Hardy 

denied going into the other bedroom or any interaction with the victim on that night. 

Hardy claimed that the shorts in question here have been in his laundry before and 

Khalia would wear the victim’s clothing at times. Hardy testified that in his opinion, 

his DNA was found on the victim’s shorts from when he “did them in the laundry” 

because he folds the clothes. When asked how his sperm fracture appeared in the 

crotch area of the shorts, Hardy indicated that he had no idea. 

{¶21} Following Hardy’s testimony, the defense rested its case. Closing 

arguments were made and the jury was given its instructions before leaving to 
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deliberate. Hardy did not renew his Criminal Rule 29 motion. The jury returned a 

verdict of guilty as to the charge of rape. On July 7, 2023, the trial court sentenced 

Hardy to an indefinite prison term of 9 to 131⁄2 years. Hardy appeals from this 

judgment and raises the following assignments of error.

First Assignment of Error

[Hardy’s] conviction was not supported by sufficient evidence 

presented at trial.

Second Assignment of Error

[Hardy’s] conviction was against the manifest weight of the 

evidence presented at trial.

Third Assignment of Error

The trial court erred by failing to grant a judgment of acquittal, 

pursuant to Crim.R. 29(A) on the rape charge and thereafter 

entering a judgment of conviction on this offense [that] was not 

supported by sufficient evidence.

Sufficiency of the Evidence

{¶22} In the first and third assignments of error, Hardy alleges that his 

conviction was not supported by sufficient evidence. This Court recognizes that 

Hardy failed to renew his Criminal Rule 29 motion at the conclusion of the case and 

this would usually, absent plain error, result in a waiver of appeal on the issue. State 

v. Brentley, 3d Dist. Allen Nos. 1-22-61 and 1-22-60, 2023-Ohio-2530 (failure to 

renew a Crim.R. 29(A) motion at the conclusion of all evidence waives all but plain 

error on appeal). However, in this case Hardy also claims in the first assignment of 
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error that the conviction is not supported by sufficient evidence. Since the analysis 

are identical, we will address the third assignment of error as well.

A sufficiency analysis “‘determine[s] whether the case may go to the 

jury or whether the evidence is legally sufficient to support the jury 

verdict as a matter of law.’” State v. Thompkins, 78 Ohio St.3d 380, 

386, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1433 

(6th Ed.1990). If the state fails to present sufficient evidence on every 

element of an offense, then convicting a defendant for that offense 

violates the defendant's right to due process of law. Id. at 386-387, 

678 N.E.2d 541; see also Jackson v. Virginia, 443 U.S. 307, 316, 99 

S.Ct. 2781, 61 L.Ed.2d 560 (1979).

State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, ¶ 13, 216 N.E.3d 653. 

The question of whether the evidence presented at trial is legally sufficient to 

support a verdict is a question of law and questions the adequacy of the evidence. 

State v. Hulbert, 3d Dist. Van Wert No. 15-19-07, 2021-Ohio-2298, ¶ 5. “An 

appellate court's function when reviewing the sufficiency of the evidence to support 

a criminal conviction is to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the 

defendant's guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 

574 N.E.2d 492 (1991) superseded by constitutional amendment on other grounds. 

Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light 

most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding 

if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the 
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credibility of witnesses, as both are functions reserved for the trier of fact.” State v. 

Jones, 1st Dist. Hamilton No. C-120570, 20130Ohio-4775, ¶ 33.

{¶23} Here, the State was required to prove that Hardy 1) engaged in sexual 

conduct with another while 2) purposely compelling the person to submit by force. 

R.C. 2907.02(A)(2). “Sexual conduct” includes vaginal intercourse as part of its 

definition. R.C. 2907.01(A). “Force” is defined as “any violence, compulsion, or 

constraint physically exerted by any means upon or against a person or thing.” R.C.

2901.01. In determining whether force is present, the key inquiry is whether the 

victim’s will was overcome by fear or duress. State v. Stevens, 3d Dist. Alen No. 

1-14-58, 2016-Ohio-446, ¶ 20, 58 N.E.3d 584.

{¶24} Here, the victim was a 14 year old girl and Hardy was the fiancé of her 

older sister. The victim testified that Hardy came into the room and started kissing 

her. She attempted to push him away, but he did not stop. The victim testified that 

Hardy then pushed down her shorts and put his penis into her vagina. This testimony 

is evidence of sexual conduct. The victim also testified that she was crying and 

Hardy did not stop. Given the age of the victim, the relationship between the victim 

and Hardy, and his failure to stop when she tried to push him away, a reasonable 

juror could find that Hardy had engaged in force sufficient to overcome her will by 

fear or duress. Viewing the evidence in a light most favorable to the State, it was 

sufficient to support a conviction for rape. The first and third assignments of error 

are overruled.
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Manifest Weight of the Evidence

{¶25} Hardy claims in his second assignment of error that his conviction was 

against the manifest weight of the evidence.

When reviewing a judgment to determine if it is against the manifest 

weight of the evidence, an appellate court “review[s] the entire record, 

weighs the evidence and all reasonable inferences, considers the 

credibility of witnesses and determines whether in resolving conflicts 

in the evidence, the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed 

and a new trial ordered.” State v. Mendoza, 137 Ohio App.3d 336, 738 

N.E.2d 822 (2000). See, also, State v. Thompkins, 78 Ohio St.3d 380, 

387, 678 N.E.2d 541 (1997). A new trial should be granted only in the 

exceptional case in which the evidence weighs heavily against 

conviction. Thompkins at 387, 678 N.E.2d 541. Although the 

appellate court acts as a “thirteenth juror,” due deference to the 

findings made by the fact-finder must still be given. State v. Moorer, 

3d Dist. 13–12–22, 2013-Ohio-650, 2013 WL 684735, ¶ 29.

Hulbert, supra at ¶ 23.

{¶26} Hardy claims that his conviction is against the manifest weight of the 

evidence because the testimony of the victim lacks credibility and the evidence 

presented by Hardy was more credible. In this case, the only two people who knew 

for sure what happened in that room were Hardy and the victim. The victim testified 

that Hardy raped her. Hardy denied that he was even in the room. However, this 

was not all the evidence. The DNA tests showed an indication that there was sperm 

found in the shorts of the victim. The two DNA profiles were identified as 

belonging to the victim and Hardy. The results showed that the odds of the male 

DNA belonging to someone other than Hardy were 1 in a trillion. Although Hardy 
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presented his own expert who testified that BCI should have conducted additional 

tests to verify the male DNA came from the sperm cells and not another bodily fluid, 

the expert agreed that the preliminary testing indicated that sperm was present and 

that further testing identified the male DNA as belonging to Hardy. When 

questioned on cross-examination, Hardy claimed his DNA was found because he 

folded the laundry. However, he had no answer as to how sperm was found in the 

victim’s shorts and only two DNA contributors were found with one being the 

victim and the other being him. A review of the record before this Court does not 

show that the jury clearly lost its way, that the evidence weighs heavily against 

conviction, or that a manifest miscarriage of justice occurred. Thus, the conviction 

is not against the manifest weight of the evidence and the second assignment of error 

is overruled.

{¶27} Having found no prejudicial errors in the particulars assigned and 

argued, the judgment of the Henry County Court of Common Pleas is affirmed.

Judgment Affirmed

WALDICK and MILLER, J.J., concur.

/hls