[Cite as State v. Barahona-Lara, 2024-Ohio-3048.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO,

Appellee,

 - vs -

JOSE M. BARAHONA-LARA,

Appellant.

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CASE NO. CA2023-10-069

O P I N I O N

8/12/2024

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

Case No. 2022 CR 1093

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant 

Prosecuting Attorney, for appellee.

Christopher Bazeley, for appellant.

PIPER, J.

{¶ 1} Appellant, Jose Barahona-Lara, appeals his conviction in the Clermont 

County Court of Common Pleas after a jury found him guilty of seven counts of firstdegree felony rape and three counts of third-degree felony gross sexual imposition 

("GSI"), all of which appellant perpetrated against an under 13-year-old child. 
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Facts and Procedural History

{¶ 2} On December 8, 2022, the Clermont County Grand Jury returned a multicount indictment against appellant. Counts 1 through 8 of the indictment charged 

appellant with eight counts of first-degree felony rape in violation of R.C. 

2907.02(A)(1)(b).1 Counts 9, 10, and 11 of the indictment charged appellant with three 

counts of third-degree felony GSI in violation of R.C. 2907.05(A)(4). The charges arose 

after the under 13-year-old victim, Rachel, disclosed to her teacher that appellant had 

been sexually abusing her while they were both living in the same home located in 

Clermont County, Ohio.2 This included Rachel alleging appellant had digitally raped her 

multiple times with his fingers and had touched her breasts on at least three separate 

occasions. Rachel alleged that during the assaults, appellant was "checking" her breasts 

and vagina for cleanliness and signs of disease. 

{¶ 3} The matter proceeded to a four-day jury trial, during which the jury heard 

testimony from several witnesses. The testimony revealed that appellant became 

romantically involved with Rachel's mother when Rachel was 5 years old. Since that time, 

appellant was in loco parentis of Rachel in a role as her stepfather. In April 2021, when 

Rachel was ten years old, her mother died of uterine cancer. Per her mother's wishes, 

Rachel remained in appellant's custody after her mother's death. 

{¶ 4} Prior to her mother's death, Rachel became "terrified" of appellant after 

witnessing several instances of physical abuse between appellant and her mother. In 

addition to observing appellant yell at her mother, Rachel also saw appellant strike her 

with a belt, broom, and a charger cord. Appellant would also yell at and kick Rachel's 

1. Count 2 of the indictment was dismissed after the state's case in chief.

2. For readability purposes, and to protect the victim's identity, we will not use the victim's name or initials, 

but will instead refer to the victim as "Rachel" throughout this opinion.
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dog. After her mother's death, Rachel described appellant as "more upset" and "angry a 

lot." Appellant would tell Rachel he did not have a family and would call her a "piece of 

shit." Rachel recalled one occasion where appellant grabbed a three-foot sword and 

placed it on top of her head. Although appellant eventually took the sword down and did 

not say anything, Rachel testified she believed she was going to die. Rachel further 

testified that appellant would punish her with his belt, oftentimes hard enough to leave 

scars on her shoulder, thighs, and legs. At some point, appellant's actions led Rachel to 

engage in self-harm, which continued until she was placed in a foster home. 

{¶ 5} Rachel, who was 12 years old at the time of trial, testified to the sexual 

abuse that appellant had inflicted upon her. Regarding the allegations of digital 

penetration, Rachel described multiple occasions where appellant had touched her body 

in a way that she did not like. In so doing, Rachel testified that "[appellant] told [her] he 

wanted to look at [her] privates to see if [she] was, like, wiping [herself] and, like, making 

sure that it was clean." During these encounters, appellant would tell Rachel to take off 

her pants and underwear, lay on his bed, and spread her legs. Appellant would then 

"check" her vagina by using a "spreading motion" with his fingers on her vagina's "outside 

lips" and "look[ing] around with his eyes and then mov[ing] to the smaller lips and look 

around." During her testimony, Rachel demonstrated for the jury, using a tissue box, how 

appellant touched her during these "checks." 

{¶ 6} Rachel testified that, at one time, she suffered from a medical issue in her 

vaginal area. Rachel informed a family friend of her vaginal issues, who suggested 

Rachel see a doctor. After Rachel spiked a fever and became swollen "down there," 

appellant took Rachel to the doctor where she was diagnosed with Upschutz Ulcers, i.e., 

ulcers of the vagina. After using medication, the issue was resolved. Notwithstanding 

Rachel's medical issue, the testimony revealed that appellant began conducting the 
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vaginal "checks" on Rachel prior to the presentation of these ulcers and continued after 

the ulcers should have been healed. 

{¶ 7} Rachel testified to seven specific occasions where appellant performed a 

"check" of her vagina, and explained that, although the checks occurred more than seven 

times, she could not remember details. Rachel also described three occasions where 

appellant checked her breasts for cancer, during which he commented that her nipple 

looked like someone had bitten it, noted that she had stretch marks on her breasts, and 

asked her if she was horny. Rachel testified that appellant asked her if she was horny 

after he had "checked" her private and "then he looked to see" if she was "horny" by 

touching her nipple. Rachel did not know what it meant to be "horny," but appellant told 

her "something about . . . her nipple," and "that's how you know when a girl's horny."

{¶ 8} Rachel testified that the last time appellant assaulted her, she was lying 

down in appellant's bed without any pants or underwear. At that point, "he touched [her] 

vagina and got aggravated because [she] kept moving up . . . trying to get him off - - like

his hands off of [her] vagina . . . and he was, like, he moved away from [her] and he was 

kind of close to his closet and the door and he took off his pants and his [penis] came 

out . . ." At that time, Rachel was crying because she "just didn't want to do it anymore," 

and "thought that [she] was going to get raped."

{¶ 9} Shortly thereafter, Rachel disclosed the abuse to a close friend and her 

homeroom teacher. Rachel's teacher reported the disclosure to Child Protective Services 

of Clermont County ("CPS") and the Union Township Police Department was notified. 

CPS opened an investigation into Rachel's allegations and concluded Rachel was not 

safe in the home with appellant. Rachel was removed from the home that day and was 

briefly placed in the home of a family friend before beginning a foster placement outside 

of the school district. 
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{¶ 10} Due to the nature of the allegations, CPS referred Rachel to the Mayerson 

Center at Cincinnati Children's Hospital to complete a forensic interview. There, Rachel 

was interviewed by medical professionals, including Ashley Cremeans, a social worker 

and forensic interviewer who heard Rachel's account of the sexual abuse and recorded 

the interview. A redacted version of the interview was played for the jury and admitted 

into evidence without objection. 

{¶ 11} CPS filed for emergency temporary custody of Rachel while an investigation 

into Rachel's allegations ensued. CPS's complaint was based upon concerns that 

appellant was "physically examining [Rachel], where he would take his fingers and check 

the outside of her vagina as well as the inside of her vagina." According to CPS, appellant 

told Rachel these checks were to "ensure that she was safe – and that she was not going 

to become sick like her mother was." The matter was set for an adjudication hearing, 

which was scheduled for December 8, 2022. A CPS intake investigator testified that the 

adjudication hearing is a "very important part of the dependency process," as that is when 

a parent would state why his child was not abused or neglected and the court would 

decide the issue.

{¶ 12} An investigator with the Union Township Police Department testified that he 

was responsible for investigating Rachel's allegations, and in so doing, learned that 

appellant was "getting ready to leave the country." Based upon this information, in 

addition to Rachel's statements during her forensic interview and to the police, the 

investigator obtained a search warrant for appellant's home. On December 2, 2022, the 

investigator and other officers executed the search warrant, which yielded items that 

corroborated parts of Rachel's allegations, including a collection of knives and swords, as 

well as medical cream next to her bed. Officers also discovered evidence that appellant 

planned to leave the country, including suitcases packed with sentimental items and the 
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fully executed titles for his vehicles. Officers also found a folder hidden under appellant's 

bed sheet, which contained appellant's passport and Covid-19 vaccination card, as well 

as flight details for a one-way ticket to El Salvador on December 4, 2022 in appellant's 

name. 

{¶ 13} In appellant's case-in-chief, Officer Keith Puckett with the Union Township 

Police Department testified that he responded to appellant's home on November 18, 

2022. When he arrived, he was briefed by CPS that he was there to remove a child due 

to some sexual allegations. The officer described appellant as helpful, complicit, and nonaggressive during their interaction. 

{¶ 14} Appellant then took the stand and described his daughter and stepfather 

relationship with Rachel. After Rachel's mother passed away, appellant's relationship 

with Rachel became tougher, as Rachel became more involved with activities and friends 

that did not meet with his approval. Appellant stated he typically punished Rachel by 

"giving her the belt," and described a recent occasion where he did not do so, even though 

Rachel had been caught vaping at school. 

{¶ 15} Regarding Rachel's history of vaginal ulcers, appellant testified he became 

aware of her medical condition when she began having high fevers, up to 100.3 degrees, 

for two or three days. At that point, he told Rachel to take her clothes off and "get a cold

shower." Rachel informed appellant that she thought she had an infection, which 

prompted appellant to purchase creams and wipes from the pharmacy. When he returned 

home, he told Rachel: "I'm sorry, [Rachel] but I'm going to have to see . . . what this 

infection is about . . . . I told her she needed to remove her pants and underwear so I 

could see." At that point, appellant discovered Rachel's "lips" were "inflamed down there," 

and he immediately considered that it could be cancer. Appellant denied touching 

Rachel, and stated he took her to the hospital at that point. The doctor informed appellant 
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that Rachel was inflamed and that he found "sores" on her skin. The doctor prescribed 

medication to reduce the inflammation.

{¶ 16} Appellant testified that, after her visit to the doctor, Rachel asked him to 

check her because she "felt a sting." Appellant then described the following: 

I said, okay well, let me – let me see. She then asked me, so 

how do I – how do I do it? And I'm sorry. As a father, that's 

something that you would want to do. Because - - but 

honestly, because of the fear for everything that had 

happened, I did ask her – ask her to open her legs. And I told 

her to use her fingers . . . I grabbed her hand and I told her to 

use her fingers to show me what she was referring to. And 

then I noticed that she has some scabs . . . and I reminded 

her that the gynecologist told us that this was going to happen.

Appellant unequivocally denied touching anywhere in between Rachel's legs. 

{¶ 17} Appellant also testified he had "checked" an abnormal pimple on Rachel's 

breast, at her request, and asked her if she was horny given the stimulated appearance 

of her nipple. At that time, appellant told Rachel, "don't be like that. I am like your dad." 

He then told Rachel to check herself often because she could get cancer. 

{¶ 18} On cross-examination, appellant acknowledged he is not a doctor, but 

claimed he was very worried about Rachel developing cancer. Appellant also discussed 

asking Rachel if she was "horny," during which he indicated that Rachel was an 

adolescent girl, and in terms of what he was able to do and see, he "[could] tell when 

someone is attracted to someone." Although he did not "know for sure" whether his 

stepdaughter, then 9, 10, or 11 years old, was attracted to him, he claimed a lot of "weird" 

things were happening. 

{¶ 19} Regarding the plane ticket, appellant testified he purchased the one-way 

ticket to El Salvador because it had been 12 years since he had seen his mother. He 

claimed she was all he had left since his wife was deceased and Rachel had been 
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removed from his care. According to appellant, the reason he bought a one-way ticket 

was because he is an illegal citizen and could not come back to the United States. Thus, 

appellant acknowledged that if he went to El Salvador he would not be returning to care 

for Rachel. 

{¶ 20} After considering the evidence presented at trial, the jury found appellant 

guilty of seven counts of rape and three counts of GSI. The trial court sentenced appellant 

to an aggregate prison term of 75 years to life, with eligibility of parole after 25 years. 

Appellant now timely appeals from his conviction and raises four assignments of error for 

our review. 

The Appeal

{¶ 21} Assignment of Error No. 1:

{¶ 22} BARAHONA'S CONVICTIONS FOR RAPE ARE NOT SUPPORTED BY 

LEGALLY SUFFICIENT EVIDENCE. 

{¶ 23} Assignment of Error No. 2:

{¶ 24} BARAHONA'S CONVICTIONS FOR RAPE ARE NOT SUPPORTED BY 

THE WEIGHT OF THE EVIDENCE.

{¶ 25} In his first and second assignments of error, appellant argues his 

convictions for rape were not supported by sufficient evidence and were against the 

manifest weight of the evidence. Appellant does not challenge the weight or sufficiency 

of the evidence with respect to his convictions for GSI.

{¶ 26} The concepts of sufficiency of the evidence and weight of the evidence are 

legally distinct. State v. Wright, 2014-Ohio-985, ¶ 10 (12th Dist.). Nonetheless, as this 

court has observed, a finding that a conviction is supported by the manifest weight of the 

evidence is also dispositive of the issue of sufficiency. State v. Jones, 2013-Ohio-150, ¶ 

19 (12th Dist.). "Because sufficiency is required to take a case to the jury, a finding that 
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a conviction is supported by the weight of the evidence must necessarily include a finding 

of sufficiency." State v. Hart, 2012-Ohio-1896, ¶ 43 (12th Dist.).

{¶ 27} A manifest weight challenge scrutinizes the proclivity of the greater amount 

of credible evidence, offered at a trial, to support one side of the issue over another. State 

v. Barnett, 2012-Ohio-2372, ¶ 14 (12th Dist.). In assessing whether a conviction is 

against the manifest weight of the evidence, a reviewing court examines the entire record, 

weighs the evidence and all reasonable inferences, considers the credibility of the 

witnesses, and determines whether, in resolving conflicts in the evidence, the trier of fact 

clearly lost its way and created such a manifest miscarriage of justice that the conviction 

must be reversed and a new trial ordered. State v. Morgan, 2014-Ohio-2472, ¶ 34 (12th 

Dist.).

{¶ 28} As noted above, appellant was convicted of seven counts of rape in violation 

of R.C. 2907.02(A)(1)(b), which provides in relevant part that "[n]o person shall engage 

in sexual conduct with another who is not the spouse of the offender . . . when . . . [t]he 

other person is less than thirteen years of age, whether or not the offender knows the age 

of the other person."

{¶ 29} The term "sexual conduct" is defined by R.C. 2907.01(A) to include "the 

insertion, however slight, of any part of the body" into the "vaginal opening" of another. As 

this court has noted, "it is apparent that sexual conduct occurs when there is penetration 

of the vaginal opening by a penis or other body part." State v. Zamora, 2023-Ohio-1847, 

¶ 7 (12th Dist.), citing State v. Strong, 2011-Ohio-4947, ¶ 53 (1st Dist.). This necessarily 

includes digital penetration of the victim's vaginal opening with a finger or fingers. State 

v. Boles, 2013-Ohio-5202, ¶ 38 (12th Dist.). 

{¶ 30} Although not defined by the Ohio Revised Code, it is generally well 

established that penetration of a victim's "vaginal opening" has occurred where there was 
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some forceful spreading of the external female genitalia, or vulva, which is comprised of 

lip-like folds of skin called the labia majora. Zamora at ¶ 9. "'This penetration need only 

be slight, however,'" as "'[v]aginal penetration is proved when any object is applied with 

sufficient force to cause the labia majora to spread.'" State v. Jackson, 2023-Ohio-3749, 

¶ 18 (12th Dist.), quoting Zamora at ¶ 9; see also State v. Patterson, 2021-Ohio-2387, 

¶ 24 (5th Dist.). The labia majora is part of the external female genitalia. Id. Therefore, 

"although perhaps medically imprecise—legally, the vagina begins at the external 

genitalia, not some deeper internal structure." State v. Artis, 2021-Ohio-2965, ¶ 97 (6th 

Dist.).

{¶ 31} Based upon the definition of "sexual conduct" under R.C. 2907.01(A), 

appellant argues his rape convictions are against the manifest weight of the evidence and 

are not supported by sufficient evidence because the state failed to prove penetration of 

Rachel's vaginal opening occurred. Instead, appellant claims the evidence showed he 

simply "spread [Rachel's] labia and visually examined her without any penetration." We 

disagree with appellant's interpretation of the evidence.

{¶ 32} During her testimony, Rachel detailed seven separate encounters during 

which appellant conducted a "check" of her vagina. First, Rachel recalled appellant 

checking her while her mother was alive (Count 1). At that time, Rachel wanted to tell 

her mother, but did not because her mother "already had so much stuff on her . . . like, 

[appellant] hitting her and her dealing with cancer." Rachel also testified appellant 

instructed her not to tell her mother. Rachel next described appellant checking her vagina 

in her bedroom, as opposed to his bedroom as usual. (Count 3). During that check, 

appellant told her to take off her pants and proceeded to touch the "top lip" and "bottom 

lip" of her vagina. Rachel further testified to a time where, during his check, appellant 

"got [his finger] into the hole but then took it out and asked [Rachel] if [s]he was okay." 
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(Count 4). According to Rachel, this specific check was memorable because it hurt due 

to appellant's sharp nails.

{¶ 33} Rachel continued on to describe an occasion where appellant was touching 

the lips of her vagina during a check before he went "fast with his hand to try to put his 

finger up [her] private." (Count 5). Rachel indicated appellant was trying to get his finger 

in "her hole," but she stopped him. Another day, Rachel had finished playing with her 

friends at the park when appellant indicated he needed to "check [her] again, so [she] just 

did the same, take off [her] pants. Get on the bed. Spread [her] legs and he would touch 

[her] in [her] private." (Count 6). 

{¶ 34} Rachel further testified that, during another instance where appellant was 

checking her vagina "like normal," i.e., that his fingers were in between the lips of her 

vagina, appellant discovered something white in Rachel's vagina (Count 7). Appellant 

took a photograph of her vagina and ultimately discovered the item was a piece of toilet 

paper. Lastly, Rachel detailed the final check conducted by appellant, where he was 

"check[ing] [her] like he normally" did before becoming aggravated and taking his pants 

off. (Count 8). 

{¶ 35} Based upon Rachel's testimony, appellant claims the evidence is legally 

insufficient to show that he engaged in sexual conduct sufficient to prove a penetration 

finding. To support his claim, appellant initially highlights Rachel's testimony that 

appellant simply separated her "big lips" to look around, and "touched" the top and bottom 

lips of her vagina. However, when testifying about the rape underlying Count 4, Rachel 

specifically stated that appellant was conducting a check of her vagina when he placed 

his finger inside of her "hole." Rachel recalled this being painful. Similarly, in describing 

the rape underlying Count 7, Rachel testified that appellant's fingers were "between her 

lips" when he located the toilet paper in her vagina. The same is true for the rape 
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underlying Count 6, where Rachel testified appellant stated he needed to check her 

vagina, so she spread her legs, and he touched her "in" her private. This testimony, if 

believed, establishes appellant forcibly used his fingers to cause Rachel's labia majora to 

spread.

{¶ 36} Regarding Counts 3 and 5, appellant argues the events underlying those 

counts of the indictment do not constitute rape because Rachel was able to stop appellant 

from inserting his finger into "her hole" in Count 5 and merely described the touching of 

her vaginal lips in Count 3. However, throughout her testimony, Rachel consistently 

described what occurred during appellant's "checks" of her vagina. Rachel specifically 

stated that during a "normal" check of her vagina, Rachel would get on the bed, take off

her pants, and appellant would use a spreading motion with his fingers to spread the 

"bigger lips," and then would "move" to the "smaller lips" and look around. Rachel also 

described this as appellant "opening her vagina" and specifically noted that a "normal" 

check of her vagina included appellant placing his fingers between her vaginal lips. In 

addition to the "normal checks," Rachel stated that appellant sometimes tried to put his 

finger "up [her] privates" or into her "hole" out of aggravation. 

{¶ 37} Pursuant to this testimony, it is evident that each of the seven "checks" 

described by Rachel included, at a minimum, the spreading of her labia majora by 

appellant's fingers, but sometimes also included appellant's attempt to penetrate his 

fingers further into her vaginal opening or into her vaginal cavity. Because Rachel was 

able to stop appellant from further penetrating her vaginal opening does not render the 

initial penetration via the spreading of her labia majora with his fingers insufficient 

evidence of penetration under R.C. 2907.01(A). As noted above, "the vagina begins at 

the external genitalia, not some deeper internal structure." Artis, 2021-Ohio-2965 at ¶ 97. 

To the extent appellant claims otherwise, such argument lacks merit.
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{¶ 38} Moreover, we reject appellant's argument that Rachel's testimony merely 

established appellant touched Rachel's vaginal lips, not that he inserted any body part or 

object into her vaginal opening. Although Rachel occasionally used the term "touch," as 

opposed to insert, when describing appellant's actions during the digital rapes, a jury 

could reasonably conclude that appellant necessarily inserted part of his finger into 

Rachel's vaginal opening when he "opened" her vagina by spreading the lips of her vagina 

with his fingers. See State v. Rowland, 2020-Ohio-2984, ¶ 21 (12th Dist.). Such an action 

would undoubtedly cause the labia majora to spread. 

{¶ 39} Regarding the remaining allegations of rape underlying Counts 1 and 8 of 

the indictment, we acknowledge that Rachel did not expressly state that appellant had 

either touched or inserted his fingers "in between" her vagina's lips. This is of no 

consequence, however, given that Rachel testified that appellant conducted a normal or 

typical check of her vagina during those encounters. See Zamora, 2023-Ohio-1847 at ¶ 

12 (the victim's failure to expressly state that digital penetration occurred "in between" her

vagina's lips was inconsequential where she testified that each of the rapes were the 

same). As discussed above, Rachel consistently described appellant's typical check of 

her vagina, which involved appellant checking "the cleanliness" of her vagina after she 

took off her pants, lay on his bed, and spread her legs. Appellant would then conduct the 

check by using a spreading motion with his finger to "open" her vagina. Rachel utilized a 

tissue box to demonstrate the spreading motion for the jury. Although appellant would 

simply "look around" after the spreading occurred, this fact does not negate that he used 

his fingers beforehand and forcibly caused the labia majora to spread. 

{¶ 40} After reviewing the record, weighing inferences and examining the 

credibility of the witnesses, we conclude the jury's verdicts are supported by sufficient 

evidence and are not against the manifest weight of the evidence. The jury did not clearly 
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lose its way in concluding that appellant was guilty of rape. While appellant argues that 

the "weight of the evidence on the majority of the rape counts shows that there was no 

penetration as a matter of law," we find that the record contains sufficient credible 

evidence from which the jury could reasonably conclude that appellant was guilty. 

Specifically, the state presented the testimony of the victim, which, if believed, supports 

the conclusion that penetration, which need only be slight, occurred on at least seven 

occasions. The victim's testimony was partially corroborated by other witnesses at trial, 

including appellant himself. Although appellant denied touching Rachel between her legs, 

the jury, as trier of fact, was in the best position to weigh the credibility of the witnesses. 

Following the presentation of all the evidence, the jury found the victim to be more credible 

than appellant. The jury sitting as factfinder was in a better position to observe the 

demeanor of the witness and determine the weight to be afforded her testimony. In so 

doing, the jury must have found Rachel's description of the events more credible than that 

of appellant's. "[W]hen conflicting evidence is presented at trial, a conviction is not 

against the manifest weight of the evidence simply because the tier of fact believed the 

prosecution testimony." State v. Doyle, 2021-Ohio-4243, ¶ 47 (12th Dist.).

{¶ 41} Accordingly, we find that appellant's convictions for rape are supported by 

sufficient evidence and are not against the manifest weight of the evidence.

Appellant's first and second assignments of error are therefore, overruled. 

{¶ 42} Assignment of Error No. 3:

{¶ 43} THE TRIAL COURT PLAINLY ERRED WHEN IT ALLOWED THE STATE 

TO PRESENT EVIDENCE OF BARAHONA'S TRAVEL ARRANGEMENTS.

{¶ 44} In his third assignment of error, appellant argues the trial court plainly erred 

when it allowed the state to present evidence of his travel arrangements. 

{¶ 45} When properly objected to, this court reviews a trial court's decision to admit 
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or exclude evidence under an abuse of discretion standard. State v. Gerde, 2017-Ohio7464, ¶ 8 (12th Dist.). Appellant, however, did not object to any of the testimony and 

evidence of which he now complains. By failing to object, appellant has waived all but 

plain error on appeal. State v. Grimm, 2019-Ohio-2961, ¶ 21 (12th Dist.). Pursuant to 

Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed 

although they were not brought to the attention of the court." An error does not rise to the 

level of a plain error unless, but for the error, the outcome of the trial would have been 

different. State v. Palmer, 2014-Ohio-5491, ¶ 21 (12th Dist.). "'Notice of plain error under 

Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances 

and only to prevent a manifest miscarriage of justice.'" State v. Harner, 2020-Ohio-3071, 

¶ 24 (12th Dist.), quoting State v. Landrum, 53 Ohio St.3d 107, 111 (1990).

{¶ 46} In this case, the state presented testimony from several witnesses that 

appellant planned to flee the country. This included the investigator's testimony regarding 

the search of appellant's home, during which officers located several items suggesting 

that appellant planned to travel to El Salvador indefinitely just two days later. Specifically, 

officers discovered and photographed two suitcases packed full of sentimental items like 

pictures, cards, and notes from his former-wife and Rachel, as well as toiletries and other 

necessities; three fully executed car titles; and a hidden folder containing appellant's 

Covid-19 vaccination record, appellant's passport, and flight details in appellant's name 

for an upcoming trip to El Salvador. The investigator testified he later confirmed there 

was no existing return flight for appellant from El Salvador. Throughout the investigator's 

testimony, the state presented several photographs taken by the officers executing the 

search warrant, which were admitted into evidence without objection. 

{¶ 47} Defense counsel questioned appellant during direct examination regarding 

the plane ticket, during which appellant conceded he purchased the plane ticket but 
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claimed he simply wanted to visit his mother. During cross-examination, appellant 

acknowledged he planned to travel to El Salvador despite the ongoing investigation and 

that he could not return to the United States if he went to El Salvador due to his illegal 

status. 

{¶ 48} At the close of the state's presentation of the evidence, the trial court noted 

on the record that it was inclined to include a flight instruction based upon the evidence 

presented. At that point, defense counsel objected to the inclusion of any flight instruction 

given appellant's lack of actual flight. The trial court overruled defense counsel's objection 

and instructed the jury that it could consider appellant's preparation to flee the country as 

evidence of his consciousness or awareness of guilt.

{¶ 49} On appeal, appellant does not challenge the flight instruction provided by 

the trial court, but instead argues the trial court erred in admitting evidence concerning 

his plans to travel to El Salvador. Appellant claims the evidence should not have been 

permitted because he was not charged with a fleeing offense and his alleged attempt to 

flee was not an element of rape or GSI. Appellant further argues the introduction of such 

evidence was barred by Evid.R. 403, as it was highly prejudicial to appellant, and only 

suggested to the jury that his efforts to leave the country were evidence of his guilt. After 

our review, we find no merit to appellant's claim. 

{¶ 50} Although appellant is correct that an attempt to flee is not an element of 

rape or GSI, it is "universally conceded" that evidence of flight is admissible as evidence 

of consciousness of guilt. State v. Williams, 79 Ohio St. 3d 1, 11, 1997-Ohio-407; see 

also State v. Hand, 2006-Ohio-18, ¶ 167 ("an accused's flight . . . and related conduct, 

are admissible as evidence of consciousness of guilt, and thus guilt itself"). "Flight means 

some escape or affirmative attempt to avoid apprehension." State v. Herrell, 2017-Ohio7109, ¶ 24 (6th Dist.), citing State v. Wesley, 2002-Ohio-4429, ¶ 19 (8th Dist.). To 
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constitute "flight," the defendant must "appreciate that he has been identified as a person 

of interest in a criminal offense and is taking active measures to avoid being found." State 

v. Sanchez-Sanchez, 2022-Ohio-4080, ¶ 177 (8th Dist.). Flight need not be immediately 

after the crime and includes flight from subsequent arrest. State v. McDonall, 2018-Ohio2065, ¶ 47 (8th Dist.).

{¶ 51} When considering the evidence presented by the state, it is clear appellant 

was planning to flee to avoid apprehension and subsequent arrest. Although it is true 

that appellant had not been formally charged when officers discovered appellant's 

intention to flee the country, the record reflects appellant was aware of the nature of 

Rachel's allegations against him at that time. In fact, by December 2, 2022 CPS had 

initiated proceedings to remove Rachel from appellant's care based upon her allegations. 

Moreover, appellant made comments to a family friend that he was either going to jail or 

back to his home country, which suggests he was aware of the forthcoming charges and 

his inevitable arrest. While executing the search warrant, officers located several items 

indicating appellant intended to leave for El Salvador indefinitely, and appellant himself 

confirmed his travel plans. This evidence establishes appellant's intention to avoid 

apprehension, which was admissible to establish a material issue in dispute, i.e., 

appellant's consciousness of guilt or guilt itself. Williams at 11.

{¶ 52} Although appellant argues this evidence is highly prejudicial and outweighs 

its probative value, merely unfavorable evidence is not equivalent to unfairly prejudicial 

evidence. State v. Bowman, 144 Ohio App. 3d 179, 185 (12th Dist. 2001). "The exclusion 

of relevant evidence under Evid.R. 403(A) requires more than mere prejudice, because 

anything adverse to a party's case could be deemed prejudicial to that party." State v. 

Worley, 2021-Ohio-2207, ¶ 125. Instead, unfair prejudice is "that quality of evidence 

which might result in an improper basis for a jury decision. Consequently, if the evidence 
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arouses the jury's emotional sympathies, evokes a sense of horror, or appeals to an 

instinct to punish, the evidence may be unfairly prejudicial." State v. Crotts, 2004-Ohio6550, ¶ 24.

{¶ 53} Here, appellant has not shown that the evidence unfairly prejudiced him or 

appealed to the jury's emotions. Although the evidence is not particularly favorable to 

appellant, it is not of such quality that it could result in an improper basis for the jury's 

decision. This is especially true where the jury could have found appellant guilty based 

upon the victim's testimony alone. State v. Woodward, 2011-Ohio-6019, ¶ 23 (12th Dist.). 

{¶ 54} Moreover, the record reflects the trial court took steps to minimize the 

danger of unfair prejudice and to ensure that the evidence was considered only for the 

proper purpose. State v. Hartman, 2020-Ohio-4440, ¶ 34. As the Ohio Supreme Court 

has held, "an appropriate jury instruction geared toward the specific purpose for which 

the evidence has been admitted will help reduce the risk of confusion and unfair 

prejudice." Id. The trial court issued such an instruction in this case, and specifically 

instructed the jury to consider the pertinent evidence only to prove appellant's 

consciousness of guilt, and not for any other purpose. The jury is presumed to have 

followed that instruction. State v. Tyree, 2017-Ohio-4228, ¶ 16, 20 (12th Dist.).

{¶ 55} Accordingly, we conclude that the probative value of the relevant evidence 

was not outweighed by the danger of unfair prejudice to appellant. As such, the trial court 

did not commit plain error in admitting evidence concerning appellant's travel plans to 

establish his consciousness of guilt. 

{¶ 56} Therefore, appellant's third assignment of error is overruled. 

{¶ 57} Assignment of Error No. 4: 

{¶ 58} BARAHONA'S DEFENSE WAS PREJUDICED BY INEFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL.
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{¶ 59} In his remaining assignment of error, appellant argues that his trial counsel 

was ineffective because he (1) failed to move for a mistrial based upon prosecutorial 

misconduct, (2) failed to object to evidence that appellant wanted to leave the country, 

and (3) failed to object to the playing and admission of the redacted version of Rachel's 

forensic interview at the Mayerson Center. 

{¶ 60} To establish ineffective assistance of counsel, appellant must show (1) 

deficient performance by counsel, that is, performance falling below an objective standard 

of reasonable representation, and (2) prejudice, that is, a reasonable probability that but 

for counsel's errors, the result of the proceedings would have been different. Strickland 

v. Washington, 466 U.S. 668, 687-688, 694 (1984); State v. Mundt, 2007-Ohio-4836, ¶ 

62. A "reasonable probability" is a probability that is "sufficient to undermine confidence 

in the outcome." Strickland at 694. An appellate court must give wide deference to the 

strategic and tactical choices made by trial counsel in determining whether counsel's 

performance was constitutionally ineffective. Id. at 689. The failure to satisfy either prong 

of the Strickland test is fatal to an ineffective assistance of counsel claim. State v. Petit, 

2017-Ohio-633, ¶ 39 (12th Dist.).

{¶ 61} Appellant initially argues his counsel was ineffective because he failed to 

move for a mistrial after the prosecutor engaged in an inappropriate conversation with a 

courtroom spectator. The record reveals that on the second day of trial, after Rachel's 

testimony and in the presence of the jury, an unidentified spectator asked the trial judge 

if he objected to the spectator's presence in the courtroom. The spectator stated that "the 

prosecuting counselor said that [the court] found it weird" that he was present. The trial 

judge responded that this was not the prosecutor's courtroom, and that he did not object 

to the spectator's presence, as the courtroom is a public place where the spectator was 

allowed to visit. Later, outside the presence of the jury, the prosecutor discussed the 
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spectator's presence in the courtroom, and clarified that the spectator was a friend of a 

defendant in another case and was present that day because his friend's case was 

continued. The prosecutor stated that she told the spectator that it was weird that he 

watched Rachel testify. The prosecutor later learned that the spectator "announced to 

the jury and the entire courtroom" that she had said something to him. In response, the 

trial judge reprimanded the prosecutor for speaking to the spectator, and indicated if she 

had an issue with someone, she was to speak with court personnel. 

{¶ 62} The trial court later, at the prosecutor's request, discussed the spectator's 

presence in the courtroom with the jurors. The trial court explained that the spectator was 

in the courtroom for sentencing on a case that was completely unrelated to appellant's 

case and was continued to another day. The trial court then instructed the jurors to 

disregard any comments they may have heard about a discussion with the prosecutor, as 

well as any comments made by the spectator and the trial judge in response. At that 

point, the proceedings continued without any objection by either party. 

{¶ 63} Appellant contends his trial counsel was deficient when he "stood silent" 

and "did not object or move for a mistrial" throughout the above interactions between the 

prosecutor, the trial judge, and the jurors, which appellant categorizes as "prosecutorial 

misconduct." After our review, we disagree.

{¶ 64} "[W]hether or not to move for a mistrial is a tactical decision and is well 

within the range of competent assistance of counsel." State v. Gilbert, 2011-Ohio-4340, 

¶ 83 (12th Dist.). Mistrials are only declared "when the ends of justice so require and a 

fair trial is no longer possible." State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168. 

{¶ 65} Similarly, "the focus of an inquiry into allegations of prosecutorial 

misconduct is upon the fairness of the trial, not upon the culpability of the prosecutor." 

State v. Gray, 2012-Ohio-4769, ¶ 57 (12th Dist.). Notably, the failure to object to 
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prosecutorial misconduct "does not constitute ineffective assistance of counsel per se, as 

that failure may be justified as a tactical decision." State v. Gumm, 73 Ohio St.3d 413, 

428, 1995-Ohio-24. A finding of prosecutorial misconduct will not be grounds for reversal 

unless the defendant has been denied a fair trial because of the prosecutor's prejudicial 

remarks. State v. Layne, 2010-Ohio-2308, ¶ 60 (12th Dist.). 

{¶ 66} In this case, appellant has failed to prove that the prosecutor's comments 

to the spectator prevented appellant from receiving a fair trial or otherwise affected the 

outcome of trial. A review of the interactions between the spectator, the trial judge, and

the prosecutor indicates the encounter in front of the jury was de minimis and immaterial 

to the outcome of the trial. The spectator did not reveal any information regarding the 

case, nor did he offer his opinion on the evidence, issues, parties, or possible outcome. 

Instead, the spectator simply asked the trial judge if he was permitted to remain in the 

courtroom, to which the trial court responded affirmatively. Accordingly, because the 

interaction that occurred was very brief and had no relevancy to appellant's trial, we see 

no grounds for a mistrial.

{¶ 67} Furthermore, appellant has not shown that counsel's failure to object to the 

prosecutor's comments prejudiced his defense. Instead, appellant speculates that by 

allowing a curative instruction without any objection, defense counsel permitted the 

prosecutor to remain in a favorable light with the jury. This claim is entirely premised on 

speculation, which is insufficient to establish an ineffective assistance claim. State v. 

Short, 2011-Ohio-3641, ¶ 119 (mere speculation cannot support either the deficientperformance or prejudice requirements of an ineffective-assistance claim). Moreover, 

such speculation is simply not supported by the record where the trial court plainly 

reprimanded the prosecutor for her comments in front of the jury, allowed the spectator 

to remain in the courtroom against the prosecutor's wishes, and instructed the jury to 
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disregard any comments about the spectator's presence in the courtroom. 

{¶ 68} Lastly, contrary to appellant's claim otherwise, any prejudice suffered by 

appellant was remedied by the trial court's supplemental instruction to the jury. It is well 

settled that curative instructions "are presumed to be an effective way to remedy errors 

that occur during trial." State v. Trzeciak, 2015-Ohio-2219, ¶ 24 (12th Dist.). A jury is 

presumed to follow the court's instructions, including curative instructions, and the record 

reveals no evidence that the jury failed to follow the trial court's instructions or gave any 

thought to the spectator's comments. Tyree, 2017-Ohio-4228 at ¶ 20. Therefore, 

appellant's counsel was not ineffective for choosing not to object to, or move for a mistrial 

based upon, the prosecutor's comments.

{¶ 69} Appellant next argues he received ineffective assistance of counsel when 

his trial counsel failed to object to evidence that appellant prepared to leave the country. 

However, as this court has already discussed more fully above in appellant's third 

assignment of error, the trial court did not err in admitting evidence of appellant's plan to 

evade law enforcement by fleeing the country. Counsel cannot be ineffective for failing 

to object to admissible evidence. State v. Skatzes, 2004-Ohio-6391, ¶ 218. As such, 

counsel could not have been deficient in failing to object to the admission of the flight 

evidence.

{¶ 70} Appellant lastly contends that his counsel was ineffective in agreeing to a 

playback of the redacted version of Rachel's forensic interview at trial. Specifically, 

appellant claims that, although some of Rachel's statements during the video were made 

for medical diagnosis or treatment, some were clearly inadmissible hearsay. However, 

regardless of whether the statements made during the forensic interview constitute 

hearsay or not, appellant has failed to establish he was prejudiced by their admission. In

fact, appellant fails to identify any particular statement which he claims to be prejudicial, 
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only that the statements were made during the forensic interview. It is not this court's 

responsibility to identify the testimony and evidence to determine which statements 

appellant believes were objectionable. State v. Philpot, 2024-Ohio-2596, ¶ 32 (12th 

Dist.). Rather, it is appellant's burden to establish prejudice. Strickland, 466 U.S. at 687. 

This court will not construct an argument on his behalf. See App.R. 16(A)(7) (requiring 

appellant's brief to include an argument containing the appellant's contentions with 

respect to each assignment of error presented for review and "the reasons in support of 

the contentions, with citations to the authorities, statutes, and parts of the record on which 

appellant relies"). Because appellant has not met his burden, this court rejects his 

argument regarding counsel's failure to timely object to the alleged hearsay statements.

{¶ 71} We furthermore note that, insofar as the contents of the redacted forensic 

interview may have been inadmissible, any such admission constitutes harmless error 

where Rachel testified at trial and was subject to cross-examination. State v. Davis, 2024-

Ohio-1504 (5th Dist.). Additionally, because Rachel testified and the statements elicited 

during her forensic interview were merely cumulative of statements Rachel made during 

her testimony, their admission would be harmless even if they had been admitted in 

error. Philpot at ¶ 32, citing State v. Smith, 2020-Ohio-4008, ¶ 46 (12th Dist.). Thus, 

appellant cannot demonstrate that but for the admission of the interview, the jury verdict 

would be different. Accordingly, trial counsel's failure to object to the playback and 

admission of the forensic interview did not amount to ineffective assistance of counsel.

{¶ 72} Based on all the foregoing, we conclude that appellant has failed to show 

that his counsel's performance was deficient or that he suffered any prejudice as a result 

of the alleged deficiencies. Accordingly, we overrule appellant's fourth assignment of 

error. 

{¶ 73} Finding no merit to any of appellant's arguments raised on appeal, we affirm 
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the judgment of the trial court. 

{¶ 74} Judgment affirmed. 

S. POWELL, P.J., and BYRNE, J., concur.