[Cite as State v. Trout , 2020-Ohio-3940.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA3866 : vs. : : SHERI K. TROUT : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. :

_____________________________________________________________ APPEARANCES: Anna Villarreal, Chillicot he, Ohio, for Appellant. Shane A. Tieman, Scioto County Prosecuting Attorney, Jay Willis , Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

_____________________________________________________________ Smith, P. J. {¶1} Sheri K. Trout, (“Appellant”), appeals the judgment entry of the Scioto County Court of Common Pleas dated January 30, 2019. At the close of a jury trial, Appellant was convicted of three counts of rap e and one count of endangering children. After merging several of the counts, the trial court imposed a consecutive prison sentence of eighteen years to life . On appeal, Appellant asserts that (1) the trial court abused its discretio n in finding the minor child victim competent to testify at trial; (2) trial cou nsel was ineffective for failing to submit proposed questions prior to t he childScioto App. No. 19C3866 2 victim’s competency h earing; (3) trial cou nsel was ineffective for failing to cross-examine eight of the State’ s witnesses; and (4) the evide nce at trial was insufficient or in the alternative the conviction was again st the manifest weight of the evidence. Upon review, we find no merit to any o f Appellant’s assignments of error. Accordingly, all assignments of error are overruled and the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY {¶2} On February 28, 2018, Appellant and Brian E. Powers were jointly indicted as follows: Count One, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of the first degree; Count Two, Illegal Use of Minor in Nudity-Oriented Material or Performance, R.C. 2907.323(A)(3), 2907.323(B), a felony of the fifth degree; Count Three, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of the first degree; Count Four, Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a felony o f the first degree; Count Five, Kidnapping, R.C. 2905.01(A)(4), 2905.01(C)(1), a fe lony of the first degree;Scioto App. No. 19C3866 3 Count Six, Kidnapping, R.C.2905.01(A)(4), 2905.01(C)(3), a felo ny of the first degree; Count Seven, Endangering Children, R.C. 2919.22(A), 2919.22(E)(2)(c), a felony of the third degree; and, Count Eight, Intimidation of an Attorney, Victim, or Witness in a Criminal Case, R.C. 2921.04(B)(1), 2921.04(D), a felony of the third degree. 1 The alleged victim, A.C., is Appellant’s granddaughter. A.C. was four years old at the time of the alleged crimes. Powers, the co-defendant, was Appellant’s boyfriend. The allegations of sexual misconduc t came to light when A.C.’s father, Brian Carver, and her step-mother, Mi chelle Carver, took her to the emergency room for an unrelated medical condition. {¶3} Appellant was subsequently served with the indictment, arraigned, and appointed counsel. The matter was scheduled for a jury trial and continued several times. The State filed several motions, including a motion to consolidate the defendants’ cases for purposes of tri al; a motion permitting the State of Ohio to provide the testimony of the mi nor victim via closed-circuit television; and a memorandum regarding introduct ion of hearsay in child abuse cases. Defense counsel also filed a Mem orandum Contra to State’s Motion to Consolidate; a motion to dismiss ba sed on

1 Appellant was not joined as to Counts Two and Eight. Several counts also contained specifications for Powers as a sexually violent predator.Scioto App. No. 19C3866 4 failure to provide discovery; and a motion to dismiss based on speedy trial violations. {¶4} On September 25, 2018, the trial court held a hearing in chambers to determine the issue of A.C.’s competence to testify . The trial court found A.C. to be a competent witness. {¶5} The matter proceeded to trial. The prosecution’s theory o f Appellant’s guilt was through her complicity to Powers’ acts of sexual abuse. A court order issued from the Scioto County Common Plea s Court, Juvenile Division, dated April 21, 2017, contained provisions m odifying Appellant’s visitation with A.C. In particular, the order cont ained provisions explicitly stating that: (1) Hannah Giles, A.C.’s mother, had n o visitation privileges; and, (2) Brian Powers was not to be present for any visits. The prosecutor argued that Appellant was complicit with Powers’ cri minal conduct by failing to comply with the juvenile court’s order an d permitting Powers to be present in her home when A.C. visited. The State of Ohio presented 16 witnesses, including A.C. {¶6} The following facts were introduced into evidence at trial : On July 20, 2017, Brian Carver left A.C. at Appellant’s house purs uant to the visitation order. The next morning, Alice Hamilton, Appellant’ s mother, appeared at Carver’s home with A. C. She informed Carver that A ppellantScioto App. No. 19C3866 5 and Powers had gotten into an argument and “it was just best th at [A.C.] came home. A.C. had bug bites on her legs. {¶7} Later in the day, Brian and Michelle Carver took A.C. to Mercy Urgent Care to have the bug bites examined. According to Brian Carver, when the doctor left the room, A.C. put her hand on her breast and vaginal area. She had never done that before. When she was asked what was wrong, A.C. turned white. She appeared scared and upset. Then A.C. told them, “Peter does that to [me].” Michelle Carver recalled the revelation slightly differently. She testified that when the doctor stepp ed out, A.C. told them that they were “playing doctor and Peter hurt me. He touc hed me down there.” Michelle Carver left the room, found the doctor, and advised that they thought A.C. had been molested. Carver further testi fied that after the allegations surfaced, A.C. exhibited turbulent behavior suc h as crying, hiding, and having tantrums in their home. {¶8} The Carvers were advised to take A.C. to Southern Ohio Medical Center’s (SOMC) Emergency Room. SOMC called the Portsm outh Police Department and Detective Michael Hamilton arrived to int erview A.C. From there, the Carvers were advised to take A.C. to Aden a “where they specialized in sexual assault.”Scioto App. No. 19C3866 6 {¶9} At Adena, A.C. was examined by Ashley King, a SANE 2 nurse who collected the rape kit evidence from A.C. Ms. King specifi cally remembered A.C. and the difficulty of performing the physical e xamination. A.C. was scared and crying hysterically. At one point, A.C. sa t up, looked at King and said, “That’s why I popped up when he did it, because it hurt so bad.” King testified there was redness in the vaginal area; ab rasions, redness, and swelling; redness and swelling down into the recta l area; and a “beefy red and swollen” hymen. The Carvers and A.C. were refer red to the Child Protection Center in Ross County, Ohio for further evalua tion. {¶10} At the Child Protection Center, Ashley Muse-Gigley, anoth er SANE nurse, interviewed A.C. and recorded the interview, which was played for the jury. Dr. Zoran Naumvoski, a director at the Ch ild Protection Center, testified he interviewed A.C. two weeks later. In spea king with A.C., she told Dr. Naumvoski that “Pappaw Brian hurt her.” Upo n doing so, A.C. immediately pointed to her genital area. {¶11} In addition to the specifics of the abuse as reported, A. C. testified that “Peter” wasn’t real. * * * Brian Powers told [me ]to say that.” A.C. testified she told the l ie “because he told me to.”

2 Sexual Assault Nurse Examiner.Scioto App. No. 19C3866 7 {¶12} Cynthia Justice testified she treated A.C. from August 20 17 to June 2018. She diagnosed A.C. with post-traumatic stress disor der. Although Justice was aware of the allegations of child abuse, s he did not learn of them from A.C. until March 16, 2018, during a home vis it. Justice read from her therapy note of that date as follows: While discussing her daily activities she blurted out details - - details of the alleged sexual abuse by grandmother’s boyfriend. She stated, I yelled for Sheri to help and she came in and told me - - or told him, referring to Brian Powers, as she called hi m by name, to get off my daughter, referring to self, this is in parenthesis [sic], or I will smack you in the face. He once busted the bathroom door. He came back and made her bleed. She called the cops. She protected me. {¶13} In addition to witness testimony, the State offered 34 ex hibits which were admitted into evidence, including: the juvenile cou rt’s entry; medical records of A.C. from Adena Health System, the Child Pro tection Center, and Mahajan Therapeutics; A.C.’s rape kit; oral swabs; the interview of A.C. from the Child Protection Center; a DNA analy sis report from the Ohio Bureau of Criminal Investigation (“BCI”); photogr aphs of Appellant’s home; and chain of custody forms from the Portsmout h PoliceScioto App. No. 19C3866 8 Department and BCI. At the close of trial, Appellant was convi cted of three counts of rape, R.C. 2907.02(A)(1)(b) and one count of endanger ing children, R.C. 2919.22(A)/R.C. 2919.22(E)(2)(c). {¶14} The trial court stated as follows: [T]he defendant has been convicted by the jury of Count 1: Rape, in violation of Ohio Revised Code Section 2907.02(A)(1)(b), a felony of the first degree. The Jury further found, beyond a reasonable doubt, that the victim was under the age of ten (10). Count 3: Rape, in violation of
Ohio Revised Code Section 2907 .02(A)(1)(b), a felony of the first degree. The Jury further found, beyond a reasonable doubt, that the victim was under the age of thirteen (13), and resulting in serious physical harm. Count 4: Rape, in violation of Ohio Revised Code Section 2907.02(A)(1)(b), a felony of the first degree. The Jury further found, beyond a reasonable doubt, that the victim was under the age of thirteen (13), and force or threat of force. Count 7: Endangering Children, in violation of Ohio Revised Code Section 2919.22(A), 2919.22(E)(2)(c), a felony of the thirdScioto App. No. 19C3866 9 degree. The Jury further found, beyond a reasonable doubt, resulting in serious physical harm. The trial court then sentenced Appellant to fifteen years to li fe on Count 1 rape. The court further found that Counts 3 and 4, also rape, merged with Count 1. Appellant was sentenced to a thirty-six month prison term on Count 7, Endangering Children. Appellant’s consecutive sentenc e was a total aggregate prison term of 18 years to life. {¶15} This timely appeal followed. Where pertinent, additiona l facts are set forth below.
ASSIGNMENTS OF ERROR
“I. THE TRIAL JUDGE ABUSED HIS DISCRETION IN FINDING A.C. COMPETENT TO TESTIFY AT TRIAL.
II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBMIT PROPOSED QUEST IONS PRIOR TO A.C.’S COMPETENCY HEARING. THIS FAILURE PREJUDICED APPELLANT, AFFECTED THE OUTCOME OF THE COMPETENCY HEARING, AND AFFECTED THE OUTCOME AT TRIAL.
III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CROSS-EXAMINE EIGHT OF THE SIXTEEN WITNESSES PRESENTED BY THE STATE, INCLUDING A.C. THIS FAILURE UNFAIRLY PREJUDICED APPELLANT, AND UNDERMINED THE RESULT AT TRIAL.
IV. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF RAPE AND CHILD ENDANGERMENT; OR IN THE ALTERNATIVEScioto App. No. 19C3866 10
THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR ONE - WITNESS COMPETENCY
A. STANDARD OF REVIEW {¶16} “ ‘A determination of competency is within the sound discretion of the trial court and will not be reversed on appea l absent a clear abuse of discretion.’ ” State v. Hammond , 4th Dist. Ross No. 18CA3662, 2019-Ohio-4253, at ¶ 36, quoting, State v. Maxwell, 139 Ohio St. 3d 12, 2014-Ohio-1019, 9 N.E. 3d 390, at ¶ 100. An abuse of discretio n is more than an error of law or of judgm ent. Instead, it implies that the court acted in an unreasonable, arbitrary or unconscionable manner. See , e.g., Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Wilson v. Wilson, 4th Dist. Lawrence No. 19CA1, 2009-Ohio-4978, at ¶ 17.
B. LEGAL ANALYSIS {¶17} Appellant asserts that A.C., age four at the time of the alleged sexual conduct, did not have an ability to accurately r eceive, recollect, and communicate information. Furthermore, it is ass erted that even when A.C. testified at age five at the competency hearing, and at age six by the time of trial, she was not able to appreciate the he avy responsibility and weight of the oath. Appellant asserts the t rial court failedScioto App. No. 19C3866 11 to make the minimum required determination and unreasonably and arbitrarily found A.C. competent to testify. Appellant argues the record reflects only 13 pages of testimony (which was “small talk” or brief answers), and argues that the trial court did not ask sufficien t questions regarding the consequences for telling lies under oath. Appell ant concludes this decision amounted to an error of law and constitutes an ar bitrary and unreasonable abuse of discretion. {¶18} The trial court found as follows: The Court finds that the child victim is under ten years of age

. The child was interviewed, on the record, in chambers, without the presence of the Defendant, Counsel for the Defendant, or the State. This Court, prior to the interview, invited the submission of proposed questions. Proposed questions were not submitted by the Defendant or the State. The Court finds upon reviewing the briefs of counsel and considering the child’ s interview by this Court, that the child victim is competent to testify at trial. The Court further finds that the child victi m has the ability to receive accurate impressions of fact, has the ability to accurately recollect the impressions, and has the ability to relate the impressions truthfully.Scioto App. No. 19C3866 12 {¶19} R.C. 2317.01 provides that, “All persons are competent witnesses except those of unsound mind and children under ten y ears of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Evidence Rule 601 also provides the general rule governing the competency of witnesses. Hammond, supra, at ¶ 36. It states, in relevant part, “[e]very person is competent to be a witness except: (A) ... children un der ten years of age, who appear incapable of receiving just impressions of t he facts and transactions respecting which they are examined, or of relating them truly.” Evid.R. 601(A). “A trial court must conduct a voir dire examin ation of a child under ten years of age to determine the child’s competenc e to testify.” Maxwell, supra, at ¶ 100. The court must consider the following factors in making this determination: (1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify; (2) the child’s ability to recollect those impressions or observations; (3) the child’s ability to communicate what was observed; (4) the child’s understanding of truth and falsity; and, (5) the child’s appreciation of his or her responsibility to be truthfu l.Scioto App. No. 19C3866 13

Id .; citing State v. Frazier , 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). {¶20} At the hearing to determine A.C.’s competence to testify, the trial court inquired as follows: The Court: Okay. Now, I don’t want you to tell me about anything that happened, but what I want to know is, do you know what it is to tell the truth? Do you know what that means? Minor Female: Yes. The Court: Do you know what it means to tell a lie? Minor Female: Yes.
*** The Court: Now, if I took this fi le here - - this is - - this i s - - it’s called a file, and told you that file is red would I be telling you the truth? Minor Female: No. The Court: Would I be telling you a lie? Minor Female: Yes. The Court: I would? Minor Female: Yes.Scioto App. No. 19C3866 14 The Court: Okay. That’s not red? Minor Female: Nope. The Court: Okay. Are you sure? Minor Female: Y es. It’s not. The Court: All right. If I told you right now it - - it was - - it’s dark outside is that the truth or a lie? Minor Female: A lie.
* * * The Court: Okay. If I told you my shoe was brown is that the truth? Minor Female: Yes. The Court: Okay. If I said your shoes are brown is that the truth? Minor Female: No.
* * * The Court: Okay. All right. Okay. Now, do you know that you’re not supposed to tell lies? Minor Female: Yes, I know.
* * *Scioto App. No. 19C3866 15 The Court: Okay. Would you ever lie to anybody about anything that ever happened to you? Minor Female: No. The Court: Okay. All right. Have you ever lied about anything that had ever happened to you? Minor Female: I never lie.
* * * The Court: Okay. So, at some time probably, you’re going to be asked some questions about what happened to you. Do you understand that? Do you know - - what are you supposed to do when you’re asked those questions? Do you know what you’re supposed to do? Minor Female: Yes. The Court: What? Minor Female: Tell the truth. The Court: Tell the truth. Can you do that? Minor Female: Um hmmm. The Court: I think you know the difference between the truth - - a truth and a lie, don’t you?Scioto App. No. 19C3866 16
Minor Female: Uh huh. {¶21} Appellant argues that the trial court failed to focus on the consequences for telling lies under oath. The transcript does reveal the trial court’s failure to ask an explicit question relating to the con sequences for lying and the meaning of the oat h. We also observe that after the trial court found A.C. competent to testify, neither defense counsel interp osed an objection after the court issued its ruling, prior to A.C.’s te stimony, or at any point during the trial. {¶22} “ ‘Any errors not brought to the attention of the trial c ourt by objection or otherwise are waived and may not be raised on appe al unless they rise to the level of plain error.’ ” State v. Cook, 4th Dist. Gallia No. 18CA11, 2019-Ohio-4745, at ¶ 28, quoting, State v. Swint, 2018-Ohio-5384, ¶ 25. “To constitute plain error, a reviewing court must find (1) an error in the proceedings, (2) the error must be a plain, obvious or clea r defect in the trial proceedings, and (3) the error must have affected ‘substa ntial rights’ (i.e., the trial court’s error must have affected the trial’s o utcome).” Cook,

supra , at ¶ 29, quoting State v. Dickess , 174 Ohio App.3d 658, 2008-Ohio39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill , 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “Furthermore, notice of plain error must b e taken withScioto App. No. 19C3866 17 the utmost caution, under exceptional circumstances, and only t o prevent a manifest miscarriage of justice.” State v. Landrum , 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “A reviewing cour t should notice plain error only if the er ror seriously a ffects the fair ness, integrity, or public reputation of judicial proceedings.” Id . Based upon our review of this case, we find the trial court did not commit plain error in fin ding A.C. competent to testify. {¶23} The competency hearing transcript reveals that A.C. answe red questions which demonstrated an ability to receive accurate imp ressions of fact, an ability to recollect impressions and observations, and the ability to communicate her knowledge. A.C. was able to tell the trial cou rt her full name, the month and day of her bir th, street of residence, pare nts’ names, grade in school, name of school, teacher’s name, and siblings’ names. She testified she liked to eat, watch television, and play outside. The record does not reveal an inordinate use of leading questions or that A.C. was unable to recollect or communicate her answers. While the judge gave A.C . a couple pieces of candy, nothing indicates this was used to “reward” he r for “correct” answers to questions.Scioto App. No. 19C3866 18 {¶24} While we agree that the trial court could have asked exp licit questions regarding her understanding of negative consequences for lying or her understanding of the oath, we find that A.C.’s answers impl icitly demonstrate that she understood there may be negative consequen ces for lying. For instance, after being asked “Would you ever lie?” a nd a followup, “Have you ever lied?” A.C. answered: “I never lie.” Addit ionally, “ ‘[t]he child's appearance, fear or composure, general demeano r and manner of answering, and any indication of coaching or instruction as to answers to be given are as significant as the words used in answering duri ng the examination to determine competency.’ ” State v. Azbell, 5th Dist. Fairfield No. 04CA11, 2005-Ohio-1704, at ¶ 21, quoting, State v. Wilson, 156 Ohio St. 525, 103 N.E.2d 552 (1952). See also State v. Mayer, 4th Dist. Highland No. 99CA8, 200-Ohio-2014, at *2. As to the above-referenced in dicators, the trial court was in the best position to observe A.C.’s deme anor and manner of answering. See also State v. Cobb, 81 Ohio App.3d 179, 182, 610 N.E.2d 1009 (9th Dist.1991), (Trial court is in a far better position to determine the competency of a child witness, particularly in li ght of the child’s testimony at trial.) {¶25} This conclusion is further bolstered by A.C.’s testimony at trial. The trial transcript reflects that after being given the oath, the prosecutorScioto App. No. 19C3866 19 asked A.C.: “Do you know what that means? A.C. replied “No.” Thereafter, the following exchange occurred: Q: Okay. The Judge is asking you to tell the truth in here. Okay. A: Um hmm. Q: Do you know what that - - what it means to tell the truth?
A: Yes. Q: What does that mean? A: You tell the truth and don’t lie. Q: Okay. What happens if you tell a lie? A: You get grounded. Q: You get grounded. Okay. So, if I told you my hair is hot pink right now would that be the truth or a lie? A: A lie. Q: That would be a - - it’s not pink?
A: No. {¶26} A.C.’s answers above demonstrate an awareness of the nega tive consequences for lying. In State v. Lee , 90 Ohio App. 3d 282, 459 N.E.2d 910 (9th Dist.1983), the trial court found that the child’s inability to define “oath” was not dispositive of the question of her competency in light of herScioto App. No. 19C3866 20 testimony at trial. See also, State v. Larie , 5th Dist. Licking No. 96CA51, 1996 WL 753171 (Dec. 16, 1996), at *2, wherein the appellate co urt found that certain dialogue on truthfulness and what it means to be t ruthful fulfilled the requirement regarding the meaning of the oath. {¶27} Appellant has directed us to A.C.’s cross-examination, where counsel for Brian Powers inquired as follows: Q: Do you remember a year and a half ago back in July when all this was supposed to happen?
A: No. Q: NO. A: Huh uh. Q: You don’t remember that?
A: No. Q: Well, the reason I asked, is Julie asked you if you remembered the Judge and you said you didn’t. This summer you would have gone into his office and talked with him a little bit, told him about Teen Titans. Does that sound familiar?
A: No. Later during cross-examination:Scioto App. No. 19C3866 21 Q: Okay. They took you to a doc tor and you talked to a nurse lady - -
A: Yes. Q: - - in a room with a little table? A: Yeah. Q: Do you remember talking with her?
A: No. Q: Okay. So, if I play a little video of that would that help you remember? A: Yeah. {¶28} We do not find A.C.’s inability to recall certain past de tails as fatal. In State. V. Lee, 90 Ohio App.3d 282, 459 N.E.2d 910 (9th Dist.1983), the appellate court found that the child victim’s inability to accurately assign a date to past events did not hinder her ability to competently render testimony, as the date of the offense, material to conviction, was testified to by other witnesses. Id . at 282. In this case, co-defense counsel played the video of A.C. speaking with SANE nurse Ashley Muse-Gigley, and actually rehabilitated A.C.’s testimony as follows: Q: Okay. [A.C.], do you remember that? A: Yeah. Now I do.Scioto App. No. 19C3866 22 {¶29} “When determining a child's reasoning ability, as when determining a child's competency, ‘[a] trial court is not requi red * * * to make express findings on the considerations outlined in Frazier . * * * Instead, the trial court is merely required to consider the Frazier factors while making the * * * determination.’ ” State v. Rizer, 4th Dist. Meigs No. 10CA3, 2011-Ohio-5702, at ¶ 21, quoting, Schulte v. Schulte, 71 Ohio St.3d 41, 43, 641 N.E.2d 719 (1994). See also Wilson v. Wilson, 4th Dist. Lawrence No. 09CA1, 2009-Ohio-4978, at ¶ 16. In the absence of evidence to the contrary, we presume that the trial court properly appli ed the Frazier factors and that it did not abuse its discretion or commit plai n error by finding A.C. to be competent as a witness despite her young age

. {¶30} Based on the foregoing, we find no merit to Appellant’s f irst assignment of error. Though not explicitly stated in terms of consequences, A.C. was able to recall, recognize, and communicate a negative consequence for untruthfulness, i.e. “you get grounded.” Our conclusion is further bolstered by A.C.’s direct examination testimony at trial. As such, we overrule the first assignment of error.
ASSIGNMENTS OF ERROR TWO AND THREEINEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEWScioto App. No. 19C3866 23 {¶31} To prevail on a claim of ineffective assistance of counse l, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probabili ty that, but for counsel's errors, the result of the proceeding would have been different. State v. Wilson, 4th Dist. Lawrence No. 18CA15, 2019-Ohio-2754, at ¶ 25;
State v. Short , 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio a properly licensed attorney is pr esumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Thus, in reviewing the claim of ineffective a ssistance of counsel, we must indulge in “a strong presumption that counsel' s conduct falls within the wide range of reasonable professional assistan ce; that is, the defendant must overcome the presumption that, under the circums tances, the challenged action ‘might be considered sound trial strategy,’ ” Wilson,

supra, quoting Strickland at 697, 104 S.Ct. 2052. Failure to satisfy either part of the test is fatal to the claim. Id. ; State v. Bradley , 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989); State v. Ruble , 2017-Ohio-7259, 96 N.E.3d 792, ¶ 47 (4th Dist.).
B. LEGAL ANALYSISScioto App. No. 19C3866 24

1. Was defense counsel ineffective for failing to submit proposed questions prior to A.C.’s competency hearing? {¶32} R.C. 2317.01, set forth above, also provides that the court may allow the prosecutor, guardian ad litem, or attorney for any party to submit questions for use by the court in determining whether a minor child is a competent witness. Appellant asserts that trial cou nsel failed to submit any proposed questions prior to the competency hearing a nd thereby prejudiced Appellant and affected the outcome of the competency hearing, which in turn affected the outcome of the trial. Appellant ass erts that had trial counsel submitted proposed questions, the trial judge cou ld have been directed to the minimum determinations he needed to make in ord er to find A.C. competent or to the shortc omings of her competency. {¶33} Appellant argues that had questions been submitted, A.C. would likely not have been fou nd competent to testify. Appella nt concludes that by not eliminating A.C. as a witness, watching the six-yea r-old child testify via closed-circuit television had an effect on the juro rs and the outcome of the trial. For the reasons which follow, we disagre e.{¶34} Neither defense counsel for Appellant, counsel for codefendant Powers, nor the State of Ohio submitted proposed ques tions for the trial court. In State v. Cobb, supra, the appellate court noted the provision for submission of questions pursuant to R.C. 2317.01 and alsoScioto App. No. 19C3866 25 observed that the statute does not require the trial court to u se these questions. Our research has yielded no authority to the contra ry. {¶35} Given that the trial court had discretion whether or not to utilize proposed questions, we find it to be pure speculation to conclu de that defense counsel’s failure to submit proposed questions constitu ted deficient performance or otherwise affected the outcome of the competency hearing and the outcome of the trial. As explained above, the record r eflects that at the competency hearing, A.C. testified “I never lie.” At trial , the prosecutor asked her if she understood the oath and began a dialogue regar ding truthfulness and untruthfulness. A.C. was able to articulate t he negative consequences for untruthfulness, which in her experience was, “ You get grounded.” {¶36} Based on the foregoing, we find Appellant failed to satis fy either prong of the Strickland test necessary to support a claim of ineffective assistance of counsel for counsel’s failure to submit proposed questions. As such we find no merit to Appellant’s argument herein.
2. Was defense counsel ineffective for failing to cross-examine eight of the State’s sixteen w itnesses presented at trial? {¶37} Appellant also asserts counsel was ineffective for failin g to cross-examine eight of the witnesses at trial, including A.C . Appellant argues counsel failed to call into question these witnesses’ te stimony,Scioto App. No. 19C3866 26 competency, or motives. Appellant concludes that trial counsel did not take an active role and that this was not a tactical decision but in stead, the omission fell below the standard of reasonable representation. For the reasons which follow, w e again disagree. {¶38} “Generally, ‘[t]he extent and scope of cross-examination clearly fall within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.’ ” State v. Guysinger, 4th Dist. Ross No. 15CA3514, 2017-Ohio-1167, at ¶ 27, quoting, State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 146. Moreover, “ ‘[a]n appellate court reviewing an ineffective assi stance of counsel claim must not scrutinize trial counsel's strategic dec ision to engage, or not engage, in a particular line of questioning on cross-exa mination.’ ” State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 22, quoting In re Brooks, 10th Dist. Franklin No. 04AP164, 2004-Ohio-3887, ¶ 40; see also State v. Allah, 4th Dist. Gallia No. 14CA12, 2015-Ohio-5060, ¶ 23. In this case, the State of Ohio called sixteen witnesses . The witnesses were presented at trial as follows:
1. Brian Carver, A.C.’s father;
2. Andrea Crace, a staff nurse at Adena Health System and part-time coordinator of SANE nurses;Scioto App. No. 19C3866 27

3. Ashley King, a registered nurse at Adena Health System and a trained SANE nurse;
4. A.C.;
5. Dr. Zoran Naumvoski, a medical doctor and administrative director of the Child Protection Center;
6. Michelle Carver, A.C.’s step-mother;
7. Ashley Muse-Gigley, the SANE nurse, interviewer and victim’s advocate at the Child Protection Center who interviewed A.C.;
8. Detective Michael Hamilton, PPD;
9. Detective Steve Brewer, PPD;
10. Valerie Pinson, Records Clerk, PPD;
11. Officer Lee Bower, PPD;
12. Timothy Augsback, a forensic scientist employed by BCI;
13. Dylan Waggy, a computer forensic specialist employed by BCI;
14. Rachel Gray, a case worker and investigator with Scioto County Children’s Services;
15. Detective Chuck Crapyou, PPD, who investigated the case; and,Scioto App. No. 19C3866 28

16. Cynthia Justice, a Licensed Independent Social Worker who provided therapy to A.C. at Mahajan Therapeutics and at A.C.’s home. {¶39} The transcript reveals that Appellant’s trial counsel cross-examined Brian Carver, Ashley King, Dr. Naumvosi, Michell e Carver, Ashley Muse-Gigley, Rachel Gray, Detective Crapyou, and Cynthia Justice. As indicated above, the prosecution pursued a theory of complic ity based on Appellant’s failure to abide by the court order which did not p ermit Powers to be in her home when A.C. was present, thus giving Powers acc ess to A.C. In defense counsel’s cross-examination of Brian Carver, Appella nt’s counsel was able to elicit testimony wherein Carver admitted that there were times when he left A.C. at Trout’s home for visitation, knowing that Brian Powers was present in the home. This testimony may have served to les sen the impact of Appellant’s failure to abide by the court order by de monstrating A.C.’s father was also lax as to the terms of the court order. {¶40} On cross-examination, Appellant’s counsel also elicited testimony wherein Carver admitted that he could not remember ce rtain information, such as which law enforcement agency showed up at the E.R. to take a report; the name of A.C.’s therapist; the name of the person who examined A.C. at Adena E.R.; and where the Child Protection Cen ter wasScioto App. No. 19C3866 29 located. All of this testimony could have cast doubt as to Car ver’s parenting skills and as to the reliability of his testimony as to other m aterial facts. {¶41} Appellant’s counsel was also able to get Carver to adm it that he and his wife Michelle, not A.C., did much of the explaining to the E.R. doctor, casting doubt on the allegations of sexual abuse. Appe llant’s counsel was also able to emphasize uncomplimentary facts through Carver ’s crossexamination. Carver testified that A.C.’s mother Hannah, whom Carver chose to be in a relationship with at one time, was on drugs; t hat she was many years younger than Carver; and that Carver and his current wife, Michelle, together received SSI, disability, and government fin ancial assistance for A.C. and an older child, Breanne. This cross-ex amination appears to have been vigorous at times. {¶42} Appellant’s counsel also cross-examined Dr. Naumvoski, focusing on the Child Protection Center records. Counsel was a ble to elicit testimony again demonstrating that the history and circumstance s of suspected abuse was obtained from A.C.’s father. Counsel empha sized Dr. Naumvoski’s note in the records that two weeks after intake at the hospital, A.C.’s physical examination was normal, possibly attempting to create reasonable doubt as to the required element of “serious physica l harm.”Scioto App. No. 19C3866 30 {¶43} On cross-examination of Michelle Carver, A.C.’s step-mot her, Appellant’s counsel was able to emphasize that A.C.’s mother ha d obtained visitation rights and that the Carvers had a contempt motion fi led against them by the mother. Counsel also elicited testimony about the on and off again nature of the Carvers’ relationship, and the fact they ma rried just one week after the allegations of sexual abuse surfaced. Counsel’s relentless questioning also caused Michelle Carver confusion as to when A. C. first reported “Papaw Brian” as the pe rpetrator—either at Adena or th e SOMC E.R. The testimony adduced had the potential to damage Michell e Carver’s credibility. {¶44} On cross-examination of Ashley Muse-Gigley, the intervie wer and victim’s advocate who interviewed A.C., Appellant’s counsel was able to elicit many “I don’t know” or “I don’t recall” answers. On crossexamination of Rachel Gray, the Children’s Services caseworker, counsel was able to emphasize Gray’s previous testimony on direct that A.C. had told Gray she was sorry for “fibbing.” This testimony could ha ve damaged the credibility of A.C. {¶45} On cross-examination of Detective Crapyou, counsel elicit ed testimony that he received “unsolicited” phone calls from Miche lle Carver wherein she misrepresented her name and marital status. The de tective alsoScioto App. No. 19C3866 31 testified it was through a July 24, 2017 call from Michelle Car ver that Brian Powers’ name first emerged as perpetrator. Counsel also elicit ed testimony that Powers was first arrested on an unrelated incident of dome stic violence with Appellant as the victim on July 29, 2017. {¶46} Appellant’s counsel further elicited testimony from Detec tive Crapyou that Appellant had been cooperative with him and she ha d provided the Playstation piece of evidence. 3 Detective Crapyou agreed with defense counsel on cross-examination that if it wasn’t for Appellant, “ it [the Playstation] wouldn’t be here today.” All this testimony had t he potential of placing Appellant in a sympathetic light as another victim of B rian Powers. It also demonstrated at least some degree of cooperation with l aw enforcement. {¶47} Finally, Appellant’s counsel also cross-examined Cynthia Justice, A.C.’s therapist. During cross-examination, counsel w as able to emphasize the frequency of Justice’s sessions with A.C.; the fa ct that one of the Carvers was always present during therapy; and the fact tha t, not until the 30th session did A.C. “blurt out” allegations of sexual abuse. Just ice could not testify with accuracy how many sessions she had, and she also admitted that Michelle Carver was the main source of her inform ation.

3 Again, Powers was charged with illegal use of a minor in nudit y-oriented material or performance. The Playstation which Appellant provided to Detective Crapyou was u sed solely in the case presented against Powers for the illegal use of a minor charge.Scioto App. No. 19C3866 32 Counsel also emphasized a note in the Mahajan Therapeutics reco rds where A.C. told Justice that Appellant “protects her.” Our review re veals these individual cross-examinations, including Justice’s, appear to h ave been thoughtfully-planned, appropriat e, and vigorous where necessary

. {¶48} As to the other witnesses which Appellant’s counsel chos e not to cross-examine, we find this to be a matter of trial strategy and not indicative of deficient performance. This is especially compel ling in light of the above discussion of the cross-examination of the witnesses defense counsel did choose to cross-examine, as set forth above. We begin with A.C., age 6 at the time of trial. In Guysinger, supra, we stated at ¶ 29: In light of the very sensitive nature of this case, which invol ves a child victim of sexual assault, counsel’s decision not to extensively cross-examine A.G. does not, by itself, constitute ineffective assistance of trial counsel. See , e.g., State v. Hughes , 10th Dist. Franklin No. 14AP-360, 2015-Ohio-151, ¶ 60 (trial counsel's failure to cross-examine any of the state 's witnesses, including the child victim, in a case involving rape and gross sexual imposition, did not constitute ineffective assistance, reasoning that “[t]rial counsel's decision not to cross-examine N.P. and F.H., both minors, is a reasonable andScioto App. No. 19C3866 33 understandable trial tactic given the sensitive nature of this case”); State v. Diaz , 9th Dist. Lorain No. 04CA008573, 2005-Ohio-3108, ¶ 20-23 (trial counsel's decision not to crossexamine child victims in case involving rape and gross sexual imposition was within the realm of sound trial strategy and did not constitute ineffective assistance of counsel). {¶49} In Guysinger , supra, we also discussed various reasons supporting the tactical decision to conduct a very brief cross- examination of the child-victim.Trial counsel could have been wary about a contentious crossexamination of A.G., who had testified emotionally on direct examination. A more rigorous cross-examination could evoke more emotion and greater sympathy by the jury. * * * Moreover, it is not at all clear that additional questioning of A.G. would have necessarily resulted in favorable testimony concerning the details of the o ffenses and her reason for not reporting the crimes earlier than she did. A.G. testified on direct examination that she did not report the crimes because she was scared. Additional cross-examination on these matters may have simply bolstered the state's case. See State v.Scioto App. No. 19C3866 34
Freeman, 8th Dist. Cuyahoga No. 92809, 2010-Ohio-3714, ¶ 51 (decision not to cross-examine child victims of rape and gross sexual imposition about why they failed to come forward with their allegations sooner did not constitute ineffective assista nce when they explained this on direct examination because “[i]t would have been foolish for defense counsel to re-elicit this damning testimony and explanations from the children on cross-examination”). {¶50} In this case, A.C. was cross-examined by counsel for Appellant’s co-defendant, Brian Powers. Powers’ counsel elicit ed testimony from A.C. that she had been friends for a while with the female prosecutor; that she did not remember a year and a half ago back in July wh en all this was supposed to happen; that she didn’t remember going into Jud ge’s chambers to talk to him. Defense counsel was able to elicit de tailed testimony about “Peter,” the first named perpetrator. A.C. tes tified that “Pappy Brian” and Appellant “fought” around her at times and sh e wished they wouldn’t fight. She also testified about staying at her f ather’s house; how “crowded” it was; and how she “had to sleep naked” there. {¶51} All of the above testimony challenged A.C.’s credibility. It also effectively planted the idea within the jurors’ minds that A.C. mightScioto App. No. 19C3866 35 have been “coached” to testify or that she might be testifying in order to “please” her new prosecutor friend. Additionally, the testimon y regarding all the people at her father’s house allowed both defense couns el to make the argument that someone other than Powers had the opportunity to have abused A.C. Trial counsel for Powers engaged in an effective c rossexamination. As in Guysinger , had Appellant’s counsel undertaken additional cross-examination, it could have “undone” any succes ses achieved by Powers’ counsel, and may have bolstered the State’s case or may have evoked more sympathy for the child victim. {¶52} We view Appellant’s counsel’s decision not to cross-exami ne A.C. as an obvious strategic decision. As to the decisions not to crossexamine Andrea Crace, Detective Hamilton, Detective Brewer, Val erie Pinson, Officer Bower, Timothy Augsback, and Dylan Waggy—it als o appears these decision s not to cross-examine may be considered sound trial strategy. {¶53} Andrea Crace testified as to the chain of custody of the rape kit that was used to collect any evidence from A.C. at the SOMC ER. On crossexamination, counsel for Powers elicited testimony that althoug h the rape kit was placed into a safe, it was not refrigerated. Detective Ham ilton testified as to the chain of custody of the rape kit, the swabs attached thereto, and theScioto App. No. 19C3866 36 Portsmouth Police Department’s property routing form. Powers c ounsel also elicited testimony that the evidence locker at the police department was not refrigerated. {¶54} Detective Brewer also testified regarding chain of custo dy for the rape kit as well as the Playstation and the property invent ory sheet for the Playstation. Valerie Pinson, the records clerk, and Office r Bower also testified as to chain of custody. We do not find Appellant’s c ounsel’s performance to be deficient for failing to cross-examine the ab ove witnesses. Powers’ trial counsel had conducted effective cross-examination s, raising evidentiary concerns with the DNA storage. Had Appellant’s cou nsel chosen to also pursue these topics, he may have annoyed the jur ors and the trial court with nee dless repetition. {¶55} Timothy Augsback, the forensic scientist, testified as to the chain of custody process at BCI. He identified the rape kit, t he oral swabs from Brian Powers, and the DNA anal ysis report he prepared. Au gsback tested the swabs and determined male DNA was present. On cross

examination, counsel for co-defendant Powers elicited testimony that delay in testing DNA “could” be a problem. He also testified that, t hough unlikely, it is possible that DNA could be tra nsmitted by touch , such asScioto App. No. 19C3866 37 falling off a person as they folded another’s clothes. Appella nt’s DNA was never an issue in this case. {¶56} Dylan Waggy, a computer forensic specialist, also testif ied as to custody of evidence logged in at BCI. He analyzed the Plays tation’s hard drive, took photographs, and reviewed the web search history. On crossexamination, counsel for Powers emphasized that the report was not about the original hard drive but about a cloned drive, and that the Playstation was an older model. Waggy admitted it was possible that the websit es accessed were “popup” websites. When Appellant’s counsel was offered th e opportunity to cross-examine Waggy, counsel stated: “I’m not in volved in this.” Given that Appellant was not charged with illegal use o f a minor in nudity-oriented material or performance, we construe Appellant’ s counsel’s decision not to cross-examine Dylan Waggy as entirely reasonabl e. {¶57} Based on the foregoing comprehensive review of witness testimony, we conclude that trial counsel’s failure to cross-ex amine 8 of 16 witnesses appears to have been trial strategy. We find Appella nt’s claim of ineffective assistance on this basis is pure speculation. Spec ulation is insufficient to establish either the deficient performance or p rejudice requirements of an ineffective assistance claim. See Guysinger, supra, at ¶ 31, citing State v. Short , 129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.Scioto App. No. 19C3866 38 2d 1121, at ¶ 119. For the foregoing reasons, we find no merit to the second and third assignments of error. Accordingly, those assignments of error are hereby overruled.
ASSIGNMENT OF ERROR FOUR - WEIGHT OF THE EVIDENCE
A. STANDARD OF REVIEW {¶58} A claim of insufficient evidence invokes a due process co ncern and raises the question whether the evidence is legally suffici ent to support the verdict as a matter of law. State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, at ¶ 22, citing, State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficienc y of the evidence, our inquiry focuses primarily upon the adequacy of th e evidence; that is, whether the evidence, if believed, reasonably could su pport a finding of guilt beyond a reasonable doubt. Thompkins , syllabus. The standard of review is whether, after viewing the probative evidence and inf erences reasonably drawn therefrom in the light most favorable to the p rosecution, any rational trier of fact could have found all the essential e lements of the offense beyond a reasonable doubt. 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, i f believed, theScioto App. No. 19C3866 39 evidence against a defendant would support a conviction

. ” Thompkins , 78 Ohio St.3d at 390 (Cook, J., concurring). {¶59} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate court must construe the evidence in a light most favo rable to the prosecution. Wickersham, supra, at ¶ 23; 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 convic tion on a sufficiency-of-the-evidence claim 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). {¶60} “ ‘Although a court of appeals may determine that a judgm ent of a trial court is sustained by sufficient evidence, that cour t may nevertheless conclude that the judgment is against the weight o f the evidence.’ ” Wickersham, supra , at ¶ 24, quoting, Thompkins, 78 Ohio St.3d at 387. “ ‘Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, i f, on weighing the evidence in their minds, they shall find the greater amount of credibleScioto App. No. 19C3866 40
evidence sustains the issue which is to be established before t hem. Weight is not a question of mathematics, but depends on its effect in inducing belief.” ’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387, quoting Black's Law Dictionary 1594 (6th ed.1990). {¶61} When an appellate court considers a claim that a convicti on is against the manifest weight of the evidence, the court must dut ifully examine the entire record, weigh the evidence, and consider the credibility of witnesses. The reviewing cour t must bear in mind, however, that credibility generally is an issue for the trier of fact to reso lve. Wickersham,

supra, at ¶ 25; State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because the trier of fact see s and hears the witnesses and i s 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, 2nd Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson , 2nd Dist. Montgomery No. 16288 (Aug. 22, 1997). As the Eastley court explained:Scioto App. No. 19C3866 41 “ ‘[I]n determining whether the judgment below is manifestly against the weight of the evidenc e, every reasonable intendment must be made in favor of the judgment and the finding of facts.
* * * If the evidence is sus ceptible of more than one construction, t he reviewing court is bound to give it that interpretation which i s consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’ ” Eastley 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 weight and cr edibility of the evidence 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–Ohio–1282,¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 2007–Ohio–6331, ¶ 6 (“We will not intercede as long as the trier of fact has some factual and rational basis f or its determination of credibility and weight.”). {¶62} Once the reviewing court finishes its examination, the c ourt may reverse the judgment of conviction only if it appears that the fact-finder,Scioto App. No. 19C3866 42 when resolving 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 .” ’ ” W ickersham, supra, ¶ 26, quoting, 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). A reviewing court should find a co nviction against the manifest weight of the evidence only in the “ ‘exce ptional case in which the evidence weighs heavily against the conviction.’ ” Id ., quoting Martin, at 175; State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000). {¶63} When an appellate court concludes that the weight of the evidence supports a defendant's conviction, this conclusion nec essarily includes a finding that sufficient evidence supports the convic tion. Wickersham, supra, at ¶ 27; State v. Pollitt , 4th Dist. Scioto No. 08CA3263, 2010-Ohio-2556, ¶ 15. “ ‘Thus, a determination that [a] convic tion is supported by the weight of the evidence will also be dispositiv e of the issue of sufficiency.’ ” S tate v. Lombardi, 9th Dist. Summit No. 22435, 2005- Ohio-4942, ¶ 9, quoting State v. Roberts, 9th Dist. Lorain No. 96CA006462 (Sept. 17, 1997). In the case s ub judice, therefore, we first consider Appellant's argument that her convictions are against the manif est weight of the evidence.Scioto App. No. 19C3866 43

B. LEGAL ANALYSIS {¶64} Appellant was convicted on three counts of rape and one c ount of endangering children upon a theory of complicity. Appellant as serts that the evidence adduced at trial was legally insufficient and also the verdicts were against the manifest weight of the evidence. The complicity st atute, R.C. 2923.03(A)(2), states in pertinent part: “No person, acting wi th the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense[.]” Under R.C. 2923.03( F), “ ‘[a] charge of complicity may be stated in terms of [that] section, or in terms of the principal offense.’ ” State v. Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-1644, at ¶ 65, quoting State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 244. In Ohio, when an individ ual acts to aid or abet a principal in the commission of an offense, the in dividual and principal are equally guilty and the individual is prosecuted a nd punished as if he were a principal offender. Wingfield, supra . See R.C. 2923.03(F). Thus, to sustain Appellant's complicity to rape and endangering children, the evidence must show that Appellant knowingly aided or abetted Br ian Powers in committing rape and endangering children. {¶65} Appellant contends that A.C.’s testimony is “unreliable a t best.” Appellant also points to the fact that she actually pro videdScioto App. No. 19C3866 44 incriminating evidence against P owers to the police. While App ellant concedes she failed to abide perfectly by the juvenile court’s order, she argues that the evidence does not support the conclusion that s he aided Powers. For the reasons which follow, we disagree with Appella nt. {¶66} “ ‘To support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, adv ised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may b e inferred from the circumstances surrounding the crime.’ ” State v. Pickett , 4th Dist. Athens No. 15CA13, 2016-Ohio-4593, at ¶ 32, quoting, State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; accord In re T .K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13. “ ‘Parti cipation in criminal intent may be inferred from presence, companionship an d conduct before and after the offense is committed.’ ” Johnson, 93 Ohio St.3d at 245, 754 N.E.2d 796, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). However, “ ‘the mere presence of an accus ed at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’ ” Id. at 243, quoting State v. Widner , 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to prote ct innocentScioto App. No. 19C3866 45 bystanders who have no connection to the crime other than simpl y being present at the time of its commission.” Id

. See also State v. Louis, 2016- Ohio-7596, 73 N.E.3d 917 (4th Dist.), at ¶ 54. {¶67} Count 1, rape, alleged: On or about July 20, 2017,at Scioto County, Ohio, * * * Sheri K. Trout (B), unlawfully, did engage in sexual conduct with A.C. 10/29/2012, who was not the spouse of the offender, whose age at the time of the said sexual conduct was less than thirteen years of age, to wit: dob: 10/29/12, whether or not th e offender knew the age of A.C. 10/29/2012. Furthermore, the victim was less than ten years of age. In violation of Ohio Revised Code 2907.02(A)(1)(b), 2907.02(B), and against the peace and dignity of the State of Ohio. {¶68} Count 3, rape, contained the exact allegations as Count 1 , adding that “the offender did cause serious physical harm to th e victim.” Count 4, rape, contained the exact allegations as Counts 1 and 3, adding that “[T]he offender purposely compelled the victim to submit by for ce or threat of force.” {¶69} Count 7, endangering children, alleged:Scioto App. No. 19C3866 46 On or about July 20, 2017, at Scioto County, Ohio * * *, Sheri K. Trout (B), unlawfully, was a parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age, who did create a substantial risk to the health or safety of A.C. 10/29/2012, by violating a duty of care, protection, or support. * * * [T]he violation resulted in serious physical harm to A.C. 10/29/2012. In violation of Ohio Revised Code 2919.22(A), 2919.22(E)(2)(c), and against the peace and dignity of the State of Ohio. {¶70} As indicated, the State of Ohio pursued a theory of comp licity against Appellant. The trial court instructed the jury as to t he legal definition of complicity as follows: The Defendant, Sheri Trout, is charged with complicity in the commission of the offense of Rape and Kidnapping * * *. Before you can find the Defendant, Sheri Trout guilty, you must find beyond a reasonable doubt, that on or about the 20 th day of July, 2017, and in Scioto County, the Defendant aided or abetted another in committing the offense of Rape and Kidnapping. A person acts knowing, regardless of purpose, when the person is aware that the person’s conduct willScioto App. No. 19C3866 47 probably cause a certain result or be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. Because you cannot look in to the mind of another, k nowledge is determined from all the facts and circumstances in evidence. You will determine from these facts and circumstances whether there existed at the time in the - - in the mind of the Defendant, Sh eri Trout, an awareness of the probability that Defendant Brian Powers committed the crimes of Rape and Kidnapping. Before you can find the Defendant guilty of complicity by aiding or abetting * * *, you must find beyond a reasonable doubt that th e Defendant supported, assisted, encouraged, coop erated with, advised, or incited the principal offender in the commission of the offense and that the Defendant shared the criminal intent o f the principal offender. Such intent may be inferred from the circumstances surrounding the offense including but not limited to presence, companionship, and conduct before and after the offense was committed. The mere presence of the Defendant at the scene of the offense is not sufficient to prove, in and of itself, that the Defendant was an aider and abettor. TheScioto App. No. 19C3866 48 Defendant cannot be found guilty of complicity unless the offense was actually committed. {¶71} State v. Louis , supra , involved a particularly egregious example of complicity to criminal acts, also involving a grandmother wh o assisted a boyfriend in sexual abuse of her grandchildren and was convicte d. In Louis, the state presented evidence that Louis knew Sanchez was repeat edly raping her granddaughters, Jm.L. and Jn.L. because both girls testifie d that they repeatedly told Louis about Sanchez’s crimes. Jm.L. testified that she told Louis in November 2013 and “we said it a lot and my grandma nev er did nothing.” Id . at ¶ 55. Louis provided Sanche z with a place to carry out th e rapes, tied and chained Sanchez's victims, and provided Sanchez with unlimited continuous access to the victims. Id . She was present in the home while the rapes were occurring, only yards away in a room with no doors.
Id

. {¶72} In Louis, we found that in weighing the evidence and all reasonable inferences and considering the credibility of witnes ses, the jury did not clearly lose its way when it found Louis had supported and assisted Sanchez in the rapes. Nor did it lose its way when it found Lo uis had shared Sanchez's criminal intent by inference from her presence, compa nionshipScioto App. No. 19C3866 49 and conduct before, during and after the rapes. Louis was “far from being just an innocent bystander in the wrong place at the wrong time .” Id . at ¶ 56. {¶73} In Appellant’s case, the evidence used to convict her of complicity to rape and child enda ngering was not as direct. Ho wever, it is well established that the elements of an offense may be proven by direct evidence, circumstantial evidence, or both. State v. Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-1644, at ¶ 51. See State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Direct evidence exists when “ a witness testifies about a matter within the witness's personal knowledg e such that the trier of fact is not required to draw an inference from the evi dence to the proposition that it is offered to establish.” State v. Cassano , 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Circumstantial evide nce, on the other hand, is evidence that requires “the drawing of infer ences that are reasonably permitted by the evidence.” Id. See also State v. Hartman , 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37 (“[c]ircumstanti al evidence is the proof of facts by direct evidence from which th e trier of fact may infer or derive by reasoning other facts in accordance with the common experience of mankind”). {¶74} Circumstantial and direct evidence are of equal evidentia ry value. Wingfield, supra, at ¶ 52; State v. Santiago, 8th Dist. Cuyahoga No.Scioto App. No. 19C3866 50 95333, 2011-Ohio-1691, ¶ 12. “Although there are obvious diffe rences between direct and circumstantial evidence, those differences a re irrelevant to the probative value of the evidence.” Cassano at ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some cases, circumstantial evidence may be “ ‘more certain, satisfying and persuasive than direct evidence.’ ” State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). See also , State v. Dunn , 4th Dist. Jackson No. 15CA1, 2017-Ohio-518, at ¶ 67; State v. Grube , 2013-Ohio-692, 987 N.E.2d 287 (4th Dist.), ¶ 30. {¶75} In this case, much of the evidence used to convict both P owers and Appellant was circumstantial, hinging on A.C.’s credibility . However, “ ‘[i]t is well settled that a rape conviction may rest solely on the victim's testimony, if believed, and that “[t]here is no requirement tha t a rape victim's testimony be corroborated as a condition precedent to convictio n.” ’ ” State v. Schroeder, 4th Dist. Adams No. 18CA1077, 2019-Ohio-4136, at ¶ 84; State v. Horsley, 2018-Ohio-1591, 110 N.E.3d 624 (4th Dist.) at ¶ 74; State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, 2015 WL 2452024, at ¶ 62; quoting State v. Patterson, 8th Dist. Cuyahoga No.Scioto App. No. 19C3866 51 100086, 2014-Ohio-1621, 2014 WL 1513893, at ¶ 40; quoting State v. Lewis, 70 Ohio App.3d 624, 638, 591 N.E.2d 854 (4th Dist. 1990). {¶76} We have set forth the pertinent facts above. The jury apparently found A.C. and the other State’s witnesses to be cre dible and compelling. Powers was convicted as the principal offender. I n closing, the prosecutor argued Appellant’s complicity by the fact that Appel lant failed to comply with the juvenile court’s order, which gave Powers acces s to A.C. The prosecutor also emphasized the smallness of the house in wh ich Appellant lived. Furthermore, the jury heard Ashley Muse-Gigle y’s testimony that “Sheri knew and they fought.” {¶77} A.C. testified on direct that when she met with the prose cutor, they talked “about what Brian Powers did” at Appellant’s house, in A.C.’s own room behind a chair. A.C. testified she “screamed for Mamm aw Sheri,” and Appellant came in and said “don’t touch my granddau ghter again.” Cindy Justice’s testim ony corroborated A.C.’s as to Ap pellant’s knowledge. This evidence demonstrated that Appellant was aware of the sexual abuse and did nothing to stop it, save a verbal warning. A.C. also testified her mother, Hannah Giles, told her to say “Mammaw She ri didn’t come in” because “she wants this court over so I can go over to her house.”Scioto App. No. 19C3866 52 {¶ 

### 78} A jury is in the best position to view the witnesses and to observe witness demeanor, gestur es and voice inflections, and t o use those observations to weigh credibility. Dunn, supra, at ¶ 75. See Myers v.
Garson , 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). While this case is a far cry from the factual scenario which convicted Lou is for complicity, the jury apparently found the facts warranted Appel lant’s convictions for three counts of rape on a theory of complicity. Appellate courts should not generally second-guess juries on matters of w eight and credibility. See State v. Vance , 4th Dist. Athens No. 03CA27, 2004-Ohio5370, at ¶ 10. We decline to do so. The jury was in the best position to view A.C. and the other witnesses and to determine their credib ility. Based on the foregoing, we find the jury did not lose its way and App ellant’s convictions for rape are not against the manifest weight of the evidence. In addition, based on the facts set forth at length above, Appella nt’s conviction for endangering children is also not against the manifest weigh t of the evidence. {¶79} Having found Appellant’s convictions for rape and child endangering are not against the manifest weight of the evidence , we necessarily find her convictions are supported by sufficient ev idence. AsScioto App. No. 19C3866 53 such, we find no merit to the fourth assignment of error. As s uch, it is hereby overruled.
CONCLUSION {¶80} We have found no merit to a ny of Appellant’s four assignm ents of error. Accordingly, all assignments of error are overruled. The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.Scioto App. No. 19C3866 54
JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Scioto County Common Pleas Court to carry this judgment int o execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period n ot to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme C ourt of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the ear lier of the expiration of the sixty day period, or the failure of the Appel lant to file a notice of appeal with the Supreme Court of Ohio in the forty-fi ve day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dism isses the appeal prior to expiration of sixty days, the stay will termina te as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and Hess, J. concur in Judgment and Opinion. For the Court,

__________________________________ Jason P. Sm ith Presiding Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time perio d for further appeal commences from the date of filing with the clerk.