[Cite as State v. Solomon, 2021-Ohio-940.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109535 

 v. : 

 

DEMITRUS SOLOMON, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 25, 2021 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-18-631697-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Ronni Ducoff and Chadwick Cleveland, 

Assistant Prosecuting Attorneys, for appellee. 

Allison S. Breneman, for appellant. 

FRANK D. CELEBREZZE, JR., J.: 

Defendant-appellant Demitrus Solomon brings this appeal challenging 

his convictions and the trial court’s sentence for rape and gross sexual imposition. 

Appellant argues that his convictions were not supported by sufficient evidence and 

are against the manifest weight of the evidence, the trial court erred in denying 
defense counsel’s motion for a mistrial, and that the trial court abused its discretion 

in imposing a sentence that is contrary to law. After a thorough review of the record 

and law, this court affirms. 

I. Factual and Procedural History 

The instant matter arose from several sexual-related incidents that 

occurred between the victim, D.S. (hereinafter “victim”), and appellant. The victim 

is appellant’s daughter. 

The incidents occurred between November 2017 and May 2018. During 

the first incident, appellant asked the victim to help her apply lotion to her feet. 

Appellant grabbed the victim’s foot and put one of her toes into his mouth. This 

incident occurred in the dining room of a house on Scovill Avenue in Cleveland, 

Ohio. 

According to the victim, subsequent incidents occurred when she and 

her younger brother, D.S.J., were visiting appellant at a motel. During these 

subsequent incidents, the victim alleged that appellant (1) touched and sucked the 

victim’s breast, (2) forced his penis into the victim’s mouth, (3) forced his penis into 

the victim’s vagina, and (4) forced his penis into the victim’s anus. These incidents 

will be addressed in further detail below. 

Appellant’s girlfriend at the time of the toe incident, Marshay 

Shackelford (“Marshay”), walked into the dining room of her home and saw the 

victim’s toe in appellant’s mouth. Marshay eventually discussed her observation 

with the victim’s mother, Latisha Griffith (“Latisha”), and Latisha’s boyfriend, 
Antonio Poole. Latisha spoke with the victim and asked if anything was going on 

with appellant. The victim initially denied that anything had occurred with 

appellant, but later opened up to her mother and confirmed that appellant touched 

her and had sex with her. 

Latisha took the victim to University Hospitals, Rainbow Babies and 

Children’s Hospital, on May 27, 2018. Latisha and the victim also spoke with 

Detective Richard Jackson, with the Cleveland Police Department’s Sex Crimes 

Unit, and Cierra Lewis, a social worker with Cuyahoga County’s Department of 

Children and Family Services’ Sexual Abuse Unit. 

On September 25, 2018, appellant was charged in a six-count 

indictment with (1) rape, in violation of R.C. 2907.02(A)(1)(b) (anal penetration); 

(2) rape, in violation of R.C. 2907.02(A)(1)(b) (vaginal penetration); (3) rape, in 

violation of R.C. 2907.02(A)(1)(b) (fellatio); (4) kidnapping, in violation of R.C. 

2905.01(A)(4), with a furthermore clause alleging that the victim was under the age 

of 18 and a sexual motivation specification; (5) gross sexual imposition, in violation 

of R.C. 2907.05(A)(4) (sucking breasts); and (6) gross sexual imposition, in 

violation of R.C. 2907.05(A)(4) (sucking toes). 

Counts 1, 2, and 3 contained a furthermore clause alleging that 

appellant purposely compelled the victim who was less than 13 years old to submit 

by force or threat of force. Counts 1, 2, 3, and 4 contained notice of prior conviction 

and repeat violent offender specifications. Counts 1-5 were committed between 

January 1, 2018, and May 11, 2018. Count 6 was committed on or about November 1, 
2017, to November 30, 2017. Appellant pled not guilty to the indictment during his 

March 5, 2019 arraignment. 

A jury trial commenced on February 4, 2020. The following witnesses 

testified on behalf of the state at trial: (1) Latisha, (2) the victim, (3) the victim’s 

younger brother D.S.J., (4) Doctor Regina Yaskey, (5) Marshay (6) social worker 

Cierra Lewis (7) appellant’s grandmother Beverly Holder, (8) Antonio Poole, and (9) 

Detective Richard Jackson. The testimony of the state’s witnesses will be set forth 

in further detail below in the analysis of appellant’s assignments of error. 

At the close of the state’s case in chief, defense counsel moved for a 

Crim.R. 29 judgment of acquittal on all charges. Specifically, regarding the gross 

sexual imposition offense charged in Count 6, defense counsel argued that “toes” are 

not included in the list of erogenous zones under R.C. 2907.01(B), defining sexual 

contact. Defense counsel further argued that the state did not present any evidence 

that the purported sucking of the toes was done for sexual gratification. 

The state opposed defense counsel’s Crim.R. 29 motion, arguing that 

the list of erogenous zones set forth in R.C. 2907.01(B) is nonexhaustive, and that it 

was up to the jury to determine whether the victim’s toes constituted an erogenous 

zone that appellant touched for the purpose of sexual arousal or gratification. The 

trial court denied defense counsel’s Crim.R. 29 motion. 

The defense did not call any witnesses at trial. After the parties 

discussed the jury instructions, defense counsel renewed the Crim.R. 29 motion. 

The trial court denied the renewed motion. 
Trial concluded on February 10, 2020. On February 14, 2020, the jury 

returned its verdict. The jury found appellant guilty of rape on Counts 2 and 3, but 

not guilty on the furthermore clauses alleging that appellant compelled the victim to 

submit by force or threat of force. The jury found appellant guilty of gross sexual 

imposition on Count 6. The jury found appellant not guilty of rape on Count 1, 

kidnapping on Count 4, and gross sexual imposition on Count 5. 

The trial court proceeded immediately to sentencing. The trial court 

sentenced appellant to a prison term of 23 years to life: indefinite prison terms with 

a minimum term of ten years and a maximum term of life imprisonment on Counts 

2 and 3, and three years on Count 6. The trial court ordered the counts to run 

consecutively to one another. The trial court ordered appellant to pay a fine in the 

amount of $750. The trial court classified appellant as a Tier III sex offender/child 

victim offender on Counts 2 and 3, and a Tier II sex offender/child victim offender 

on Count 6. The trial court reviewed appellant’s reporting requirements. 

On February 21, 2020, appellant filed the instant appeal challenging 

the trial court’s judgment. 

The trial court’s February 20, 2020 sentencing entry did not specify 

the minimum prison term for the indefinite sentences imposed on Counts 2 and 3. 

The trial court issued a nunc pro tunc sentencing entry on April 3, 2020, correcting 

this clerical error. In the nunc pro tunc sentencing entry, the trial court clarified that 

appellant was sentenced to a prison term of “23 years minimum to life”: a sentence 

of life with a minimum of ten years on Count 2; a sentence of life with a minimum 
of ten years on Count 3; and three years on Count 6. The trial court ordered 

appellant to serve the counts consecutively. 

In this appeal, appellant assigns four errors for review: 

I. The jury found, against the manifest weight of the evidence, that the 

appellant committed the acts charged in the indictment. 

II. The evidence was not legally sufficient to sustain a guilty verdict. 

III. The court failed to declare a mistrial after a witness attacked the 

defendant in front of the jury. 

IV. The trial court abused [its] discretion by imposing a prison 

sentence contrary to R.C. 2929.14 and the purposes and principles of 

the felony sentencing guidelines and erred by imposing consecutive 

sentences. 

For ease of discussion, we will address appellant’s assignments of 

error out of order. 

II. Law and Analysis 

A. Sufficiency 

In his second assignment of error, appellant argues that his 

convictions were not supported by sufficient evidence. 

Crim.R. 29 mandates that the trial court issue a judgment of acquittal 

where the prosecution’s evidence is insufficient to sustain a conviction for the 

offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis. 

State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134. “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. Driggins, 8th Dist. Cuyahoga No. 98073, 

2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 

N.E.2d 541 (1997). 

The 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. State v. Vickers, 

8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991). 

In the instant matter, appellant references the arguments raised in his 

first assignment of error challenging the manifest weight of the evidence. 

“Sufficiency” and “manifest weight” challenges present two distinct legal concepts. 

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23. See 

Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14, citing 

App.R. 16(A)(7) (overruling appellant’s assignment of error relating to a sufficiency 

challenge pursuant to App.R. 16(A)(7) because the appellant did not make a specific 

argument regarding why the convictions were not supported by sufficient evidence, 

and only addressed the issues relating to the manifest weight challenge). 

In support of his sufficiency challenge, appellant argues that “[t]he 

only evidence that the [s]tate provides to show that [he] raped [the victim] was the 

testimony of the [victim] and an observation by his ex-girlfriend [Marshay] of an 

innocent interaction into whether [the victim] was maintaining her hygiene.” 

Appellant’s brief at 11. Appellant contends that the testimony of the victim and 
Marshay is not enough to support his convictions “considering the lack of any other 

evidence.” Id. 

Appellant’s “innocent interaction” argument pertains to the manifest 

weight of the evidence, not the sufficiency of the evidence. Appellant’s argument 

regarding the lack of any other corroborating evidence is also misplaced. The issue 

before this court is whether the testimony of the victim and Marshay, if believed, 

sufficiently established that appellant committed the offenses of rape and gross 

sexual imposition. 

As noted above, appellant was convicted on Counts 2 and 3 of rape, in 

violation of R.C. 2907.02(A)(1)(b). Count 2 alleged vaginal penetration, and Count 

3 alleged fellatio. R.C. 2907.02(A)(1)(b) provides, “[n]o person shall engage in 

sexual conduct with another * * * when [t]he other person is less than thirteen years 

of age, whether or not the offender knows the age of the other person.” 

R.C. 2907.01(A) defines “sexual conduct” as 

vaginal intercourse between a male and female; anal intercourse, 

fellatio, and cunnilingus between persons regardless of sex; and, 

without privilege to do so, the insertion, however slight, of any part of 

the body or any instrument, apparatus, or other object into the vaginal 

or anal opening of another. Penetration, however slight, is sufficient to 

complete vaginal or anal intercourse. 
Regarding the victim’s age, she testified that she was 14-years-old at 

the time of trial in February 2020. At the time of the incidents between November 

2017 and May 2018, the victim would have been under the age of 13.1 

Regarding the rape offense charged in Count 3, the victim testified 

that she and her younger brother were visiting appellant at the motel. She was 

sitting on the side of the bed in the motel room watching television. Appellant stood 

in front of her. She did not recall whether appellant said anything to her. Appellant 

took his pants and his underwear off. He told the victim to open her mouth. She 

said she would not. He told her to open her mouth again. She did not comply. 

Appellant took his thumb and used it to push the victim’s mouth open. 

This caused her mouth to open. He held his thumb in this position and put his penis 

in her mouth. Appellant grabbed the victim’s head and pushed her head close to his 

penis. Appellant did not say anything to her when his penis was in her mouth. 

Appellant began moving back and forth. She did not recall how the incident ended. 

The victim’s brother was in the shower when appellant forced his 

penis into her mouth. Appellant told her brother to stay in the bathroom. When 

appellant was done, he told the brother he could come out of the bathroom. The 

victim explained that this was not the first “unusual” thing that appellant did to her 

at the motel. 

 1 The victim identified her date of birth at trial, and the record reflects that the state 

sufficiently established the victim’s age at the time of the offenses. (Tr. 458.) Appellant 

does not dispute this aspect of his convictions. 
Regarding the rape offense charged in Count 2, the victim testified that 

her brother was in the bathroom of the motel room, and appellant instructed him to 

stay in the bathroom “[un]til I tell you to come out.” (Tr. 496.) She turned the 

shower water on for her brother and went back and laid in the bed to watch 

television. Appellant walked over and was standing next to the bed. Appellant took 

off the victim’s pants and underwear. Appellant took his clothes off completely and 

got into the bed and laid beside the victim. 

The victim was laying on her back. Appellant got on top of her. She 

did not feel like she could get away from him. Appellant’s hands were on both sides 

of her near her waist. Appellant “pulled open” the victim’s legs. She tried to hold 

her legs together but she was unable to stop appellant from spreading them. After 

her legs were pulled apart, appellant “put [his penis] inside [the victim’s] vagina.” 

(Tr. 504.) 

The victim testified that appellant’s penis felt hard when it was inside 

her and it hurt her. Appellant’s body was moving back and forth when his penis was 

inside her. Appellant was not saying anything to her. Appellant eventually got off 

of her and she put her clothes back on. The victim recalled feeling or seeing a white 

and gooey substance on her stomach when appellant was done. 

The next day, appellant drove the victim and her brother to Latisha’s 

house. The victim did not tell anybody what happened at the motel. 

After reviewing the record, we find that the testimony of the victim, if 

believed, satisfied all the elements of rape in violation of R.C. 2907.02(A)(1)(b), and 
sufficiently established that appellant committed the offenses of rape on Counts 2 

and 3. Accordingly, appellant’s rape convictions were supported by sufficient 

evidence. 

As noted above, appellant does not specifically address his gross 

sexual imposition conviction in challenging the sufficiency of the evidence. “The 

appellant bears the burden of demonstrating error on appeal by reference to the 

record of the proceedings below.” Davis v. Wesolowski, 2020-Ohio-677, 146 N.E.3d 

633, ¶ 29 (8th Dist.), citing Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 2012-

Ohio-1955, see App.R. 16(A)(7). Although it is not this court’s duty to construct an 

argument on appellant’s behalf, we find that appellant’s conviction on Count 6 for 

gross sexual imposition was supported by sufficient evidence. 

Appellant was also convicted of gross sexual imposition, in violation 

of R.C. 2907.05(A)(4), which provides, “[n]o person shall have sexual contact with 

another * * * when * * * [t]he other person * * * is less than thirteen years of age, 

whether or not the offender knows the age of that person.” R.C. 2907.01(B) defines 

“sexual contact” as “any touching of an erogenous zone of another, including 

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a 

female, a breast, for the purpose of sexually arousing or gratifying either person.” 

(Emphasis added.) Count 6 alleged that appellant sucked on the victim’s toes. 

The victim testified that she went into the dining room of Marshay’s 

house to put lotion on her feet because they were dry. Appellant was also in the 

dining room. He was sitting at the table facing the victim. Marshay was in the 
basement and the other children were upstairs. She had put lotion on in the dining 

room before. Appellant asked the victim to help her put the lotion on. She agreed. 

Appellant rubbed lotion into his hands and put the lotion on the victim’s feet. When 

he was done applying lotion to the victim’s feet, he put one of the victim’s toes in his 

mouth. He did not say anything when this occurred. 

Marshay came into the dining room and saw the victim’s toe in 

appellant’s mouth. Appellant took her foot out of his mouth. The victim did not say 

anything to Marshay. The victim went upstairs and got ready for school. She heard 

Marshay and appellant talking before they left for school. Marshay was upset. She 

did not tell anybody at school what happened with appellant. The victim was 

supposed to go back to Marshay’s house after school. Marshay called her cell phone 

and changed plans. The victim and her brother went back to Latisha’s house after 

school, not Marshay’s house. They never returned to Marshay’s house after this 

incident. 

Marshay testified that she was in an off and on relationship with 

appellant between 2013 and 2017. Their relationship ended in 2017. They broke up 

because she saw “inappropriate behavior between [appellant] and [the victim].” 

(Tr. 686.) 

Before encountering appellant and the victim in the dining room, 

Marshay was in the basement. She crept upstairs because she “felt like something 

was goin[g] on.” (Tr. 689.) She crept around the corner and saw the following: 
[Appellant] and [the victim] was both sitting in the chair. Her foot and 

— her leg, he had her foot, and her toes was in his mouth. I seen it and 

kind of stepped back, and I had to kinda catch my breath and gather 

myself, and then I kinda — I walked back out. 

And so when I walked back out, I kind of directed my questions toward 

[the victim]. I asked her, you know, what is going on, baby? Are you 

okay? What’s going on? She was just kinda like, you know, ain’t 

nothing going on. Come on, let’s go. 

When she said that, the situation kinda got a little hostile. [Appellant] 

was like — he started calling me names and saying what was I saying? 

I said, what was going on? Her foot was in your mouth. He said, I was 

checking her toes and making sure something. This is my daughter. 

What are you sayin’? 

(Tr. 687-688.) 

When she saw the victim’s toe in appellant’s mouth, Marshay pulled 

back and caught her breath because she “wanted to proceed with caution.” Marshay 

explained, “I didn’t want — I did not want to make the wrong decision. I did not 

want to — I was just kinda thrown off from the whole situation, and I didn’t expect 

to see what I seen when I hit the corner. And I just didn’t know how to react. So I 

wanted to make sure that I did not do the wrong thing.” (Tr. 690.) 

Appellant did not return to her house after this incident. Their 

relationship ended. 

Marshay tried to tell Latisha and Poole about what she witnessed in 

the dining room. Marshay went to Latisha’s house and attempted to speak with 

Latisha about “what I had witnessed and what I thought was goin[g] on between 

[appellant] and [the victim].” (Tr. 694.) After she went to Latisha’s house, Marshay 
spoke with Latisha on the phone and relayed her concerns to Latisha about what she 

had seen. 

Appellant claimed that he had been checking the victim’s toes. 

Marshay confirmed, however, that she did not consider what she observed in the 

dining room as having anything to do with appellant checking or giving hygiene 

instructions to the victim. 

The testimony of the victim and Marshay, if believed, sufficiently 

established that appellant committed the offense of gross sexual imposition on 

Count 6. 

Although R.C. 2907.01(B) does not specifically identify feet or toes as 

erogenous zones, the list set forth therein is non-exhaustive. 

Since R.C. 2907.01(B) contains the phrase, “including without 

limitation,” it is reasonable to conclude “that the legislature intended 

that body parts that are not traditionally viewed as erogenous zones, 

may, in some instances, be considered erogenous zones.” State v. 

Miesse, 2d Dist. Clark No. 99-CA-74, 2000 Ohio App. LEXIS 3719 

(Aug. 18, 2000). 

Indeed, Ohio courts have typically found that the list of erogenous 

zones in R.C. 2907.01 is a non-exhaustive list. See State v. Stair, 12th 

Dist. Warren No. CA2001-03-017, 2002 Ohio [App. LEXIS 87 (Jan. 14, 

2002)] (finding that victim’s hips constituted an erogenous zone); 

Miesse, supra (holding that the defendant’s kissing, touching, and 

blowing of the victim’s stomach was sexual contact); State v. Young, 

4th Dist. Athens No. 96CA1780, 1997 Ohio App. LEXIS 3882 (Aug. 15, 

1997) (holding that touching a victim’s buttock through her clothing 

constituted sexual contact); State v. Watkins, 10th Dist. Franklin No. 

92AP-1546, 1993 Ohio App. LEXIS 2412 (May 4, 1993) (finding that the 

rubbing of the back of the victim’s leg was sexual contact). 

State v. Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 15-16. “Sexual 

contact, an element of gross sexual imposition, means any nonconsensual physical 
touching, even through clothing, of the body of another.” (Emphasis added.) State 

v. Jones, 8th Dist. Cuyahoga No. 87411, 2006-Ohio-5249, ¶ 15, citing State v. Ackley, 

120 Ohio Misc.2d 60, 2002-Ohio-6002, 778 N.E.2d 676. 

The state was not required to present direct evidence proving the 

element of sexual arousal or gratification. State v. Kalka, 8th Dist. Cuyahoga No. 

106339, 2018-Ohio-5030, ¶ 31. Rather, the jury “may infer that a defendant was 

motivated by a desire for sexual arousal or gratification from the totality of the 

circumstances.” State v. Edwards, 8th Dist. Cuyahoga No. 81351, 2003-Ohio-998, 

¶ 22, citing State v. Oddi, 5th Dist. Delaware No. 02CAA01005, 2002-Ohio-5926. 

[O]ne with a fetish for navels or feet could be in violation of [R.C. 

2907.05(A)] for touching the navel or feet of another, not his or her 

spouse, for the purpose of sexual arousal or gratification. Although the 

body parts, namely navel or feet, are not specifically listed in the “sexual 

contact” definition [under R.C. 2907.01(B)], if the state is able to prove 

beyond a reasonable doubt that, in the mind of the offender, or in the 

mind of the victim, or in the mind of a reasonable person, those body 

parts are sensitive to sexual stimulation, or are apt to cause sexual 

arousal or gratification in either the offender or the victim, and if it was 

the purpose of the offender in the touching to obtain sexual arousal or 

gratification for himself or the victim, then the state has carried its 

burden of proof. 

Ackley at ¶ 15. 

Whether the touching or contact was performed for the purpose of 

sexual arousal or gratification is a question of fact to be inferred from 

the type, nature, and circumstances of the contact. [State v. Meredith, 

12th Dist. Warren No. CA2004-06-062, 2005-Ohio-2664, ¶ 13], citing 

[In re Anderson, 116 Ohio.App.3d 441, 443, 688 N.E.2d 545 (12th 

Dist.1996)], and State v. Mundy, 99 Ohio App.3d 275, 289, 650 N.E.2d 

502 [(2d Dist.1994)]. In determining the defendant’s purpose, the trier 

of fact may infer what the defendant’s motivation was in making 

physical contact with the victim. Meredith, citing Mundy and [State v. 

Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991)]. “If 
the trier of fact determines that the defendant was motivated by desires 

of sexual arousal or gratification, and that the contact occurred, then 

the trier of fact may conclude that the object of the defendant’s 

motivation was achieved.” Cobb [at 185]. 

In re A.L., 12th Dist. Butler No. CA2005-12-520, 2006-Ohio-4329, ¶ 20. 

In the instant matter, the jury could have reasonably inferred, from 

the type, nature, and circumstances of the contact between appellant’s mouth and 

the victim’s toe, that the contact was performed for the purpose of sexual arousal or 

gratification. Appellant put the victim’s toe in his mouth when they were alone in 

the dining room. No one else was around. Marshay was in the basement, and the 

other children were upstairs. Appellant offered to apply the lotion for the victim, 

and she agreed. Appellant exceeded the scope of the victim’s consent by putting her 

toe into his mouth. The victim confirmed that appellant did not merely “kiss” her 

toe, he actually inserted her toe into his mouth. Finally, the victim testified that 

appellant took her toe out of his mouth when Marshay came into the dining room 

and saw what was happening. 

Marshay, with whom appellant had been romantically involved 

between 2013 and 2017, was thrown off when she saw the victim’s toe in appellant’s 

mouth. So much so that she had to catch her breath and collect herself. Marshay’s 

observation led her to believe that something “was goin’ on between [appellant] and 

[the victim].” (Tr. 694.) Marshay was so concerned by her observation and belief 

that she made arrangements for the victim and her brother to go to Latisha’s house 

after school, rather than returning to Marshay’s house, and Marshay relayed her 
concerns that something “was goin’ on between [appellant] and [the victim]” to 

Latisha and Poole. 

Furthermore, the jury could have reasonably inferred that appellant 

performed the contact for the purpose of sexual arousal or gratification from his 

escalation from sexual contact to sexual conduct. The victim testified that appellant 

put her toe in his mouth while he was living with Marshay. The victim never 

returned to Marshay’s house after this initial incident, but she continued to see 

appellant at the motel. Subsequent incidents occurred at the motel during which 

appellant escalated from sexual contact to sexual conduct, forcing his penis into the 

victim’s mouth and vagina. 

Viewing the testimony of the victim and Marshay in a light most 

favorable to the state, we find that a rational trier of fact could have reasonably 

inferred that appellant put the victim’s toe in his mouth for the purpose of sexual 

arousal or gratification. Based on the foregoing analysis, appellant’s gross sexual 

imposition conviction was supported by sufficient evidence. 

For all of the foregoing reasons, appellant’s second assignment of 

error is overruled. Appellant’s rape and gross sexual imposition convictions were 

supported by sufficient evidence. 
B. Manifest Weight 

In his first assignment of error, appellant argues that his convictions 

are against the manifest weight of the evidence. 

A manifest weight challenge questions whether the state met its 

burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio3598, ¶ 12. A reviewing court “‘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.’” Thompkins, 

78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 

175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed as against the 

manifest weight of the evidence only in the most “exceptional case in which the 

evidence weighs heavily against the conviction.” Id. 

In support of his manifest weight challenge, appellant appears to 

argue that his convictions were against the manifest weight of the evidence because 

they were based on the victim’s testimony alone without any corroboration or 

supporting physical evidence. Appellant appears to challenge the credibility of “the 

only witness” Marshay and her testimony on the basis that she “was already on the 

outs with [appellant.]” Appellant’s brief at 10. 

Regarding appellant’s argument that Marshay was not credible, 

Marshay testified that her relationship with appellant was “[o]n and off since 2013.” 

The relationship ended in 2017. Marshay testified that the relationship ended 
because she saw “inappropriate behavior between [appellant] and [the victim].” 

(Tr. 686.) 

Marshay acknowledged that her and appellant were already on the 

rocks before she witnessed the incident in the dining room. She had already been 

living downstairs in the basement for approximately one month. They did not have 

plans to officially split up, however. Nor were they trying to reconcile with one 

another. They were just “seein[g] what was goin[g] on” and she was giving appellant 

some space. (Tr. 705.) 

Accordingly, the jury had sufficient information about the 

relationship between Marshay and appellant to assess the credibility of Marshay. 

The jury also had sufficient information to assess the credibility of all the witnesses. 

See State v. Davis, 8th Dist. Cuyahoga No. 107925, 2019-Ohio-4672, ¶ 66; State v. 

Sumlin, 8th Dist. Cuyahoga No. 108000, 2020-Ohio-1600, ¶ 58. 

Appellant appears to argue that the victim’s testimony was not 

credible because “[m]any additional facts came out during trial that the victim failed 

to provide in her initial statement.” Appellant’s brief at 10. Defense counsel 

emphasized and thoroughly explored these discrepancies between the victim’s 

initial statement to Detective Jackson and her trial testimony on cross-examination. 

In fact, a 29-minute video of the victim’s initial interview was played for the jury at 

trial. 

After reviewing the record, we acknowledge that there were, in fact, 

some minor inconsistencies between the victim’s initial statement to police and trial 
testimony. For instance, the victim asserted in her initial statement that she 

showered at the motel before her brother; the victim testified at trial, however, that 

her brother would take the first shower at the motel. The victim testified that her 

brother was in the shower every time that appellant assaulted her in the motel room; 

in her initial statement, however, the victim stated that her brother was either in the 

shower or asleep when she was assaulted. The victim testified that appellant had 

taken his pants off when he forced his penis into her mouth; in her initial statement, 

however, the victim stated that appellant’s clothes were on when he put his penis in 

her mouth. During the initial interview, the victim stated that the incidents began 

in January 2018; she could not, however, remember the date of the first or the last 

incident. The victim testified at trial that she had an idea of when the incidents 

happened, the months in which they happened, and how old she was and what grade 

she was in at the time. Although she did not know the dates on which the incidents 

occurred, the victim was able to determine when the incidents occurred in relation 

to holidays, including Christmas, Easter, and Martin Luther King, Jr., Day. 

Although there were minor inconsistencies between the victim’s 

initial statement to police and her trial testimony, the victim’s account of the 

incidents were largely consistent in all material respects. 

[A] defendant is not entitled to reversal on manifest weight grounds 

merely because certain aspects of a witness’ testimony are inconsistent 

or contradictory. See, e.g., [State v. Nitsche, 2016-Ohio-3170, 66 

N.E.3d 135, ¶ 45 (8th Dist.)]; see also State v. Wade, 8th Dist. Cuyahoga 

No. 90029, 2008-Ohio-4574, ¶ 38 (“‘A conviction is not against the 

manifest weight of the evidence solely because the [factfinder] heard 

inconsistent testimony.’”), quoting State v. Asberry, 10th Dist. 
Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11; State v. Mann, 10th 

Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (“‘While [a 

factfinder] may take note of the inconsistencies and resolve or discount 

them accordingly, * * * such inconsistencies do not render defendant’s 

conviction against the manifest weight or sufficiency of the evidence.’”), 

quoting State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 

Ohio App. LEXIS 2245, 7 (May 28, 1996). 

State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 40. 

In the instant matter, although there were some minor 

inconsistencies between the victim’s initial statements to police and trial testimony, 

the record reflects that the victim’s statements and testimony were consistent in 

many material respects. The victim’s testimony is credible and consistent that 

appellant committed the rape offenses charged in Counts 2 and 3, and the gross 

sexual imposition offense charged in Count 6. 

Additionally, we find that the aforementioned inconsistencies 

regarding the order in which the children showered at the motel, whether the 

brother was in the bathroom or asleep when appellant assaulted the victim, and 

whether appellant’s pants were off or on when he forced his penis into the victim’s 

mouth should not control the outcome of this case. “Minor inconsistencies in 

witness testimony will not render a conviction so against the manifest weight of the 

evidence as to cause a miscarriage of justice.” State v. McNamara, 8th Dist. 

Cuyahoga No. 104168, 2016-Ohio-8050, ¶ 38. The weight of the evidence supports 

appellant’s convictions, and the jury did not lose its way and create a manifest 

miscarriage of justice. 
While we acknowledge the inconsistencies in the testimony of the 

victim and her statements to police, a thorough review of the record reveals that the 

victim provided consistent and generally credible testimony as to the critical 

questions in this case — appellant’s sexual contact and Marshay’s house, and 

appellant’s sexual conduct at the motel. See State v. Johnson, 8th Dist. Cuyahoga 

No. 107929, 2019-Ohio-5335, ¶ 12. The victim testified in detail about appellant’s 

sexual abuse. The abuse the victim suffered at the hands of appellant was 

undoubtedly traumatic. It is not reasonable to expect the victim to remember every 

single detail about appellant’s actions and the circumstances under which they 

occurred, particularly because there were multiple incidents that occurred over a 

period of time. The record reflects that the victim testified consistently about the 

important aspects of appellant’s conduct. 

Finally, appellant contends that the investigation into the victim’s 

allegations was “flawed and inadequate[.]” Appellant’s brief at 10. Defense counsel 

thoroughly explored and confronted Detective Jackson with the purported 

deficiencies in his investigation on cross-examination. 

Detective Jackson testified about the investigation he conducted after 

the matter was reported on May 27, 2018. Detective Jackson testified that he 

interviewed the victim and her brother. He stated that he also spoke with or reached 

out to Latisha, appellant’s grandmother, appellant’s mother, and Marshay. 

Detective Jackson reviewed the victim’s medical records from University Hospitals. 
Detective Jackson also reviewed the text messages between Latisha 

and appellant that Latisha provided to him. In the text messages, Latisha told 

appellant she was going to take the victim to the hospital. Appellant replied, “[when] 

they tell [you the victim is] cool, don’t call my phone” and “[d]on’t try to put me [i]n 

jail[.]” Appellant also replied, “[l]isten[,] just keep them away I’m moving out of 

town[.]” Latisha responded to appellant, “[y]ou sick [as f**k].” Appellant replied, 

“[m]an all I ever did was make [the victim] smell herself cause she come out smelling 

like boo boo[.]” Latisha testified about these text messages at trial. The final text 

message sent by appellant pertained to the incident that occurred in the dining room 

of Marshay’s house. (Tr. 425.) 

Detective Jackson acknowledged that he did not conduct a phone 

dump2 of Latisha’s cell phone. He did not look at text messages on Latisha’s phone 

from the day before or the day after she texted appellant; he explained there was no 

need to do a phone dump of Latisha’s phone because of the text messages on her 

phone from appellant 

Detective Jackson went to the motel where the incidents involving 

appellant took place. He attempted to get photographs of the motel rooms involved. 

The motel’s staff was unable to identify the exact rooms appellant and the children 

occupied because the victim could not recall the exact dates on which the incidents 

took place. Detective Jackson did not take pictures of the various rooms and room 

 2 A phone dump is a process of retrieving data and information, such as call logs, 

from a phone. See State v. Mathis, 8th Dist. Cuyahoga No. 107986, 2019-Ohio-4887, 

¶ 27; State v. Clark, 2018-Ohio-521, 106 N.E.3d 256, ¶ 28 (6th Dist.). 
configurations from the motel to show to the victim. He explained that these 

photographs would not accurately show the crime scene because the configurations 

of each room could be entirely different. 

He did not come across anything during the course of his investigation 

that suggested there was any bad blood between the parties that testified in this case, 

which included the victim, Latisha, and Marshay, that led him to believe that it was 

necessary to look at additional text messages or conduct a phone dump. (Tr. 782.) 

Detective Jackson confirmed again that none of the parties showed any bad blood 

towards each other. Finally, Detective Jackson testified that he did not come across 

anything during the course of his investigation that led him to suspect that anyone 

was trying to do harm to appellant by bringing false allegations against him. 

Accordingly, the jury had sufficient information about Detective 

Jackson’s investigation to assess his credibility and the credibility of his testimony. 

The state’s theory of the case at trial was that appellant put the victim’s 

toe in his mouth for the purpose of sexual arousal or gratification, and that appellant 

raped the victim in the motel. On the other hand, the defense’s theory of the case 

was that the incident involving the victim’s foot was an innocent interaction between 

appellant and the victim, during which appellant was inquiring about the victim’s 

hygiene and smelling her foot. The defense’s theory was that Marshay made up a 

false claim because her and appellant were “already on the outs[.]” Appellant’s brief 

at 10. Regarding the sexual conduct at the motel, the defense’s theory was that the 
sexual conduct did not occur because if it had, the victim’s younger brother would 

have noticed. 

“‘[A] conviction is not against the manifest weight of the evidence 

simply because the [finder of fact] rejected the defendant’s version of the facts and 

believed the testimony presented by the [prosecution].’” State v. Jallah, 8th Dist. 

Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross 

No. 13CA3391, 2014-Ohio-2959, ¶ 2. The jury, as the finder of fact, did not lose its 

way in resolving the conflicting theories based on the evidence presented at trial. 

After reviewing the record, we find appellant’s convictions are not 

against the manifest weight of the evidence. We do not find in resolving conflicts in 

the evidence that the jury, as the trier of fact, clearly lost its way in finding appellant 

guilty of rape and gross sexual imposition. Furthermore, this is not the exceptional 

case in which the evidence weighs heavily against appellant’s convictions. 

For all of the foregoing reasons, appellant’s first assignment of error 

is overruled. Appellant’s convictions are not against the manifest weight of the 

evidence. 

C. Motion for Mistrial 

In his third assignment of error, appellant argues that the trial court 

erred in failing to declare a mistrial after appellant was “attacked” by a witness in 

front of the jury. Appellant’s argument pertains to the testimony of Poole. 
Poole lives with his two children, his girlfriend Latisha, and her two 

children. Appellant is the father of Latisha’s children. As he testified, Poole stared 

at appellant and directed offensive language towards him. (Tr. 738.) 

Following his testimony, and as he stepped down from the witness 

stand, Poole attempted to physically attack appellant at the defense table and in 

front of the jury. As he was escorted out of the courtroom, Poole shouted additional 

obscenities. (Tr. 751.) 

The trial court ordered the jury to exit the courtroom. After Poole and 

the jury were out of the courtroom, defense counsel moved for a mistrial, arguing: 

Your Honor, based upon the outburst in the court not caused by the 

Judge, not caused by the prosecutor, not caused by the Defendant, or 

Defense counsel, we still had an outburst where the witness attempted 

to attack the Defendant in front of the jury, and it took about five 

deputies to restrain the gentleman, and there was a fight. 

I’m going to move for a mistrial because it has a highly inflammatory 

and prejudicial effect upon their ability to consider this case on the 

merits, so I will move for a mistrial. 

(Tr. 751-752.) 

The state argued that because the trial court and the state were not 

responsible for the outburst, a mistrial was not necessary and a curative instruction 

would “suffice to serve as a counterbalance to what happened in court.” (Tr. 752.) 

In support of the motion for a mistrial, defense counsel argued, “we’re 

entitled to a fresh jury, and not have the taint of that violence against the Defendant 

in front of the jury.” (Tr. 752.) 

The trial court denied defense counsel’s motion for a mistrial: 
The Court makes the following finding with reference to your motion. 

The Court finds that the actions that occurred not as a result of any 

action by any of the agents of the State of Ohio, nor by any of the 

members of the Bar Association, for which we are all officers. 

The Court doesn’t feel any of those individuals engaged in any conduct 

that caused this to arise. That this was an honest spur reaction that was 

generated by a Defendant’s witness, and that none of the officers of the 

Court had anything to do with it. 

It was the — Fortunately, the Cuyahoga County Sheriff’s Department 

was here to suppress the attack and it was suppressed. 

The unfortunate thing is that it did occur in front of the jury. However, 

they also had the opportunity to hear his testimony, and to witness his 

anger, and his state of mind. I believe a curative instruction will satisfy 

a fair and just trial. 

And, therefore, the motion will be denied. 

(Tr. 752-753.) 

In this appeal, appellant argues that the incident that occurred in 

front of the jury was “highly traumatic.” He further speculates that it is “highly 

probable that many of the jurors never have experienced an act of violence in person 

and were negatively affected. Upon experiencing this traumatic event, it would be 

highly unlikely that the average juror would be capable of continuing in their duty 

to provide a fair trial to Mr. Solomon.” Appellant’s brief at 13. 

The trial court should declare a mistrial “only when the ends of justice 

so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 

118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463, 

93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). A trial court enjoys broad discretion in ruling 

on a motion for a mistrial. State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 
(2001). This court will not reverse a trial court’s ruling on a motion for a mistrial 

absent an abuse of that discretion. State v. Benson, 8th Dist. Cuyahoga No. 87655, 

2007-Ohio-830, ¶ 136. 

In support of his argument that the trial court erred by not declaring 

a mistrial following Poole’s outburst, appellant directs this court to State v. Scott, 

101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, State v. White, 85 Ohio St.3d 

433, 440, 709 N.E.2d 140 (1999), and State v. Morales, 32 Ohio St.3d 252, 513 

N.E.2d 267 (1987). 

In Scott, involving a capital murder trial, defense counsel moved for a 

mistrial on the basis that the victim’s family members crying during trial “enhanced 

jury sympathy for [the victim] and his family, thereby depriving [the defendant] of 

a fair trial.” Id. at ¶ 43. On one of the occasions in which defense counsel moved for 

a mistrial, defense counsel asserted that a victim’s mother and some of the jurors 

had been crying during the testimony of a state’s witness. Id. at ¶ 46. 

The Ohio Supreme Court set forth the following test regarding 

emotional outbursts during trial: 

a trial court must determine, as a question of fact, whether an 

emotional outburst [during trial] deprived the defendant of a fair trial 

by improperly influencing the jury. State v. Benge[, 75 Ohio St.3d 136, 

144, 661 N.E.2d 1019 (1996)]; [Morales at 255]; State v. Bradley[, 3 

Ohio St.2d 38, 209 N.E.2d 215 (1965)], syllabus. “In the absence of 

clear, affirmative evidence to the contrary, the trial court’s 

determination will not be disturbed.” Morales [at 255]. 

Scott at ¶ 44. “Only the trial judge can authoritatively determine whether the jury 

was disturbed, alarmed, shocked, or moved by the demonstration.” Morales at 255 
After reviewing the record, we find no basis upon which to conclude 

that the trial court’s ruling denying defense counsel’s motion was unreasonable, 

arbitrary, or unconscionable. In this case, unlike Scott, Poole’s violent outburst and 

attempt to attack appellant is unlikely to elicit any sympathy for the victim or Poole, 

much less the same sympathy elicited by a victim’s mother and family members 

crying. In fact, the argument can be made that the incident benefitted appellant 

rather than prejudiced him. 

Poole’s outburst and attempt to attack appellant was more likely to 

have a negative impact on the jury’s perception of Poole and his testimony than on 

the jury’s perception of appellant. Poole’s outburst may have even elicited sympathy 

for appellant, as Poole was the perpetrator of the attempted attack, and appellant 

was the victim. 

Furthermore, there is no indication that the jury was improperly 

influenced by Poole’s outburst, or that the jury’s verdict was the product of passion 

or prejudice that resulted therefrom. As noted above, the jury did not find appellant 

guilty on all counts and specifications charged in the indictment. It is evident that 

the jury was capable of following the trial court’s instructions and considering the 

evidence as it pertained to each individual count. 

Unlike Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, 

where a victim’s mother and members of the jury were purportedly crying during 

the testimony of a state’s witness, there is no evidence in this case that the incident 

had any effect on the jury, or any evidence indicating that any of the jurors displayed 
any emotions during or after Poole’s outburst. Although appellant speculates that 

the incident negatively impacted the jurors, he fails to identify anything in the record 

in support of his claim (i.e. jurors that were crying, jurors that were reluctant to 

continue serving on the jury after the outburst, jurors that asked to be removed from 

the jury after the incident out of fear, jurors that had health- or medical-related 

issues as a result of the incident). See State v. Trimble, 122 Ohio St.3d 297, 2009-

Ohio-2961, 911 N.E.2d 242, ¶ 126 (holding that the trial court did not abuse its 

discretion in denying defense counsel’s motion for a mistrial because “[n]othing in 

the record shows that the outburst had any effect on the jury” and “the trial court’s 

admonitions focused the jury on the evidence and away from the outburst.”). 

Finally, in Scott, the trial court “cautioned jurors to focus on the 

evidence and to disregard extrinsic matters in their decision making.” Id. at ¶ 48. 

Similarly, in this case, the trial court provided the following curative instruction to 

the jury following the incident: 

Ladies and gentlemen of the jury, the Court would, first of all, like to 

issue an apology to you both professionally and personally for the 

display that occurred in the courtroom. 

That isn’t the way we like to conduct ourselves. We consider ourselves 

as holding a formal proceeding where dignity and respect is shown 

throughout the course of the proceedings. 

However, sometimes emotional things occur. They occur in people’s 

personal lives as well as their professional lives. We ask that you 

understand that, and certainly ask that you do not take that into 

consideration for your finding of what the facts of this case to be. 

We ask, ladies and gentlemen of the jury, that you base your findings 

solely on the facts as you find them to be in this case, and the law that 

will be applied to you by the Judge. 
I would also like to indicate for the record, the statute does require 

every time that you leave the courtroom that I give you what’s called an 

admonition. And because of the emergency situation that I did not 

want you to be here in the event of something further occurring, I just 

asked you to leave. So I want to apologize for that as well. 

While it is unusual, like I said, it doesn’t happen like that all the time. 

And it certainly cannot have any impact on what you find the facts of 

this case to be. 

Now, because our schedule has been interrupted, we are going to recess 

for the evening. 

(Emphasis added.) (Tr. 754-755.) 

This court has explained that “[c]urative instructions have been 

recognized as an effective means of remedying errors or irregularities that occur 

during trial.” State v. Williams, 8th Dist. Cuyahoga No. 94242, 2010-Ohio-5484, 

¶ 21, citing State v. Ghaster, 8th Dist. Cuyahoga No. 91576, 2009-Ohio-2134, citing 

State v. Zuern, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Furthermore, a jury is 

presumed to follow instructions provided by the trial court, including curative 

instructions. Id., citing State v. Henderson, 39 Ohio St.3d 24, 33, 528 N.E.2d 1237 

(1988). 

For all of the foregoing reasons, we find that appellant has failed to 

provide clear and affirmative evidence demonstrating that Poole’s outburst 

improperly influenced the jury, materially affected the merits of the case, or 

deprived appellant of a fair trial. See State v. Williams, 8th Dist. Cuyahoga No. 

106266, 2018-Ohio-3368, ¶ 41. Therefore, we find no basis upon which to conclude 

that the trial court’s judgment denying defense counsel’s motion for a mistrial, and 
determination that a curative instruction to the jury was more appropriate than 

granting a mistrial, was arbitrary, unreasonable, or unconscionable. 

Appellant’s third assignment of error is overruled. 

D. Consecutive Sentences 

In his fourth assignment of error, appellant argues that the trial court 

abused its discretion and erred in imposing consecutive sentences. 

As an initial matter, we note that this court does not review felony 

sentencing for an abuse of discretion. Rather, we review felony sentences under the 

standard set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 16. 

R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a 

reviewing court may overturn the imposition of consecutive sentences where the 

court “clearly and convincingly” finds that (1) “the record does not support the 

sentencing court's findings under R.C. 2929.14(C)(4),” or (2) “the sentence is 

otherwise contrary to law.” 

R.C. 2929.14(C)(4) provides that in order to impose consecutive 

sentences, the trial court must find that consecutive sentences are (1) necessary to 

protect the public from future crime or to punish the offender, (2) that such 

sentences would not be disproportionate to the seriousness of the conduct and to 

the danger the offender poses to the public, and (3) that one of the following applies: 

(a) The offender committed one or more of the multiple offenses while 

the offender was awaiting trial or sentencing, was under a sanction 
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the 

Revised Code, or was under postrelease control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one 

or more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the 

courses of conduct adequately reflects the seriousness of the offender’s 

conduct. 

(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

Conformity with R.C. 2929.14(C)(4) requires the trial court to make 

the statutory findings at the sentencing hearing, which means that “‘the [trial] court 

must note that it engaged in the analysis’ and that it ‘has considered the statutory 

criteria and specifie[d] which of the given bases warrants its decision.’” State v. 

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. 

Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). To this end, a reviewing 

court must be able to ascertain from the record evidence to support the trial court’s 

findings. Bonnell at ¶ 29. “A trial court is not, however, required to state its reasons 

to support its findings, nor is it required to [recite verbatim] the statutory language, 

‘provided that the necessary findings can be found in the record and are 

incorporated in the sentencing entry.’” State v. Sheline, 8th Dist. Cuyahoga No. 

106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37. 

In the instant matter, appellant does not further develop his 

argument that the trial court erred in imposing consecutive sentences and that 

consecutive sentences were contrary to R.C. 2929.14 and “the felony sentencing 
guidelines[.]” For instance, appellant does not argue that the trial court failed to 

make the requisite findings under R.C. 2929.14(C)(4) or that the record clearly and 

convincingly does not support the trial court’s findings. Nevertheless, after 

reviewing the record, we find that the trial court did not err in imposing consecutive 

sentences. 

The record reflects that the trial court made the requisite findings 

pursuant to R.C. 2929.14(C)(4) in imposing consecutive sentences. In making the 

first finding under R.C. 2929.14(C)(4), the trial court stated, “[t]he Court finds 

consecutive sentences are necessary to protect the public from future crime. The 

Court finds that consecutive sentences are necessary to punish the offender.” 

(Tr. 945-946.) The trial court made a thorough and detailed proportionality finding: 

The Court finds that consecutive sentences are not disproportionate to 

the seriousness of the offender’s conduct. 

When the Court makes that finding, the Court does find that Mr. 

Solomon used his parental relationship with [the victim] to weaponize 

his penis and use it against her, and he continued to weaponize his 

penis on a regular basis, and he never, ever, ever relented. He 

continued to weaponize his penis and use it against [the victim]. 

The Court further finds that consecutive sentences are not 

disproportionate to the danger the offender poses to the public. 

When I arrived at that conclusion, the Court does take into 

consideration the relationship that existed between he [the victim]. 

The harm that was caused, that he reduced her to nothing, and made 

her think she was unimportant. And that he never, ever, ever showed 

any kindness to her once he weaponized his penis and used it against 

her. 

(Tr. 946.) 
Regarding the third finding, the trial court determined that R.C. 

2929.14(C)(4)(c) applied: 

The Court further finds the offender’s history of criminal conduct 

demonstrates that consecutive sentences are necessary to protect the 

public from future crime by the offender. 

The Court does find that he has a prior history in front of Judge Robert 

McClelland in Case No. CR 12-567455 where he was convicted of 

robbery. 

The Court further finds that he has a prior in front of Judge Robert 

McClelland in Case CR 12-563540 where he pled guilty to trafficking in 

drugs. 

Further, in front of Judge Robert McClelland, Case No. CR 12-562666, 

he entered a plea of guilty to drug possession. 

Additionally, in front of Judge Robert McClelland, in Case No. CR 12-

561866-B, he entered a plea of guilty to a trafficking offense. 

Lastly, in front of Judge Bridget M. McCafferty, in Case No. CR 9-

521197 he entered a plea of carrying a concealed weapon. 

The Court further finds that his conduct over the course of this trial 

where he had people contact the witnesses in this case, and his conduct, 

once the verdict was read, where he openly yelled out in court about he 

was innocent indicates that he has no remorse for his conduct. 

And, therefore, the Court believes that consecutive sentences are 

necessary and justified. 

(Tr. 945-948.) 

Accordingly, the record reflects that the trial court made the requisite 

findings during the sentencing hearing under R.C. 2929.14(C)(4) in imposing 

consecutive sentences. The trial court incorporated the consecutive sentence 

findings into its sentencing journal entry, as required by Bonnell. The trial court’s 

April 3, 2020 sentencing entry provides, in relevant part, 
Consecutive sentence is necessary to protect the public from future 

crimes and is necessary to punish he offender. Consecutive sentences 

are not disproportionate to the seriousness of the offender’s conduct 

and are not disproportionate to the danger the offender poses to the 

public. Offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

For all of the foregoing reasons, we find that the trial court made the 

requisite findings during the sentencing hearing under R.C. 2929.14(C)(4) in 

imposing consecutive sentences, and incorporated the findings into its sentencing 

journal entry. 

After reviewing the record, we cannot say that the record clearly and 

convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4). 

Appellant expressed no remorse whatsoever, either during trial or at sentencing, for 

his conduct or the devastating impact it had on the victim. Appellant failed to accept 

any responsibility for his actions. Rather, appellant asserted that he was innocent, 

that “no evidence or nothing” had been found, and that the jury’s verdict was “crazy.” 

(Tr. 937.) 

The victim’s mother, Latisha Griffith, addressed the trial court. 

Griffith described the impact appellant’s actions had on the victim’s life, and how 

appellant took something from the victim that she will never get back. Appellant’s 

actions also “tore [their] family apart, our lives, our sanity.” (Tr. 939.) The victim 

will be dealing with the impact of appellant’s actions for the rest of her life. 

For all of the foregoing reasons, we find that the record before this 

court clearly and convincingly supports the trial court’s R.C. 2929.14(C)(4) findings. 
Because the trial court made the requisite findings during the sentencing hearing 

under R.C. 2929.14(C)(4), incorporated the findings into its sentencing journal 

entry, and the findings are clearly and convincingly supported by the record, the trial 

court did not err in imposing consecutive sentences. 

Finally, appellant also appears to argue that the trial court’s 

imposition of consecutive sentences was contrary to “the felony sentencing 

guidelines,” R.C. 2929.11 and 2929.12. Appellant’s brief at 14. Appellant argues that 

the trial court “abused its discretion in failing to properly weigh the seriousness and 

recidivism factors set forth in R.C. 2929.12, as well as failing to properly consider 

the purposes and principles of the felony sentencing guidelines before imposing a 

23 year to life sentence.” Appellant’s brief at 16. 

A sentence is contrary to law if the sentence falls outside the statutory 

range for the particular degree of offense or the trial court failed to consider the 

purposes and principles of felony sentencing set forth in R.C. 2929.11, and the 

seriousness and recidivism factors set forth in R.C. 2929.12. State v. Hinton, 8th 

Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. 

Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. Unlike R.C. 2929.14(C)(4), governing 

consecutive sentences, R.C. 2929.11 and 2929.12 are not fact-finding statutes. State 

v. Wenmoth, 8th Dist. Cuyahoga No. 103520, 2016-Ohio-5135, ¶ 16. 

Although the trial court must consider the principles and purposes of 

sentencing, as well as any mitigating factors, the court is not required to use 

particular language nor make specific findings on the record regarding its 
consideration of those factors. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 

951 N.E.2d 381, ¶ 31; State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, 

¶ 13. In fact, unless the defendant affirmatively shows otherwise, it is presumed that 

the trial court considered the relevant sentencing factors under R.C. 2929.11 and 

2929.12. State v. Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio5234, ¶ 11. This court has held that a trial court’s statement in its sentencing journal 

entry that it considered the required statutory factors, without more, is sufficient to 

fulfill its obligations under R.C. 2929.11 and 2929.12. State v. Paulino, 8th Dist. 

Cuyahoga No. 104198, 2017-Ohio-15, ¶ 37. 

In the instant matter, the trial court’s sentence on appellant’s gross 

sexual imposition conviction was within the permissible statutory range under R.C. 

2929.14(A)(3)(a) for third-degree felonies. The sentences imposed by the trial court 

on appellant’s rape convictions complied with the statutory provisions set forth in 

R.C. 2971.03(B)(1)(a), which requires the trial court to impose an indefinite prison 

term consisting of a minimum term of ten years and a maximum term of life 

imprisonment. The trial court’s sentencing journal entry provides, in relevant part, 

“[t]he court considered all required factors of the law. The court finds that prison is 

consistent with the purpose of R.C. 2929.11.” 

Aside from this statement in its sentencing entry, the record reflects 

that the trial court did, in fact, consider R.C. 2929.11 and 2929.12 in imposing its 

sentence. The trial court considered the applicable seriousness and recidivism 

factors indicating that (1) appellant’s conduct was more seriousness than conduct 
normally constituting the offenses and (2) appellant is likely to commit future 

crimes. In imposing appellant’s sentence, the trial court emphasized that 

“[appellant’s] conduct over the course of this trial where he had people contact the 

witnesses in this case, and his conduct, once the verdict was read, where he openly 

yelled out in court about he was innocent indicates that he has no remorse for his 

conduct.” (Tr. 947-948.) The trial court also emphasized the harm that appellant’s 

conduct caused the victim and how appellant exploited his father-daughter 

relationship with the victim in committing the offenses. 

Appellant has failed to affirmatively demonstrate that the trial court 

failed to consider R.C. 2929.11 and 2929.12 in crafting its sentence. Appellant’s 

sentence is not contrary to law merely because he disagrees with the way in which 

the trial court weighed the R.C. 2929.11 and 2929.12 factors and applied these 

factors in crafting an appropriate sentence. See State v. Nelson, 8th Dist. Cuyahoga 

No. 106858, 2019-Ohio-530, ¶ 25, citing State v. Mock, 8th Dist. Cuyahoga No. 

105060, 2017-Ohio-8866, ¶ 21. 

For all of the foregoing reasons, appellant’s fourth assignment of 

error is overruled. The trial court did not err in imposing consecutive sentences, and 

the trial court’s sentence is not contrary to law. 

III. Conclusion 

After thoroughly reviewing the record, we affirm the trial court’s 

judgment. Appellant’s rape and gross sexual imposition convictions were supported 

by sufficient evidence and are not against the manifest weight of the evidence. The 
trial court did not abuse its discretion in denying defense counsel’s motion for a 

mistrial. The trial court did not err in imposing consecutive sentences, and the trial 

court’s sentence is not contrary to law. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

convictions having been affirmed, any bail pending is terminated. Case remanded 

to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

FRANK D. CELEBREZZE, JR., JUDGE 

ANITA LASTER MAYS, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR