[Cite as State v. V.J., 2014-Ohio-2618.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-799 

v. : (C.P.C. No. 13CR-03-1313)

V.J., : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on June 17, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for 

appellee. 

Yeura R. Venters, Public Defender, and David L. Strait, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, P.J. 

{¶ 1} Defendant-appellant, V.J., appeals from the judgment of the Franklin 

County Court of Common Pleas convicting him of two counts of rape, one count of 

attempted rape, one count of kidnapping, one count of abduction, and one count of 

domestic violence, as well as all corresponding specifications. For the following reasons, 

we affirm in part and reverse in part the judgment of the trial court. 

I. BACKGROUND

{¶ 2} Appellant's convictions pertain to an incident that occurred on January 5, 

2013 at the home appellant shared with his girlfriend, F.C., and their child K.J. The 

following factual summary is taken from the evidence adduced at appellant's jury trial. 
No. 13AP-799 2 

{¶ 3} F.C. testified that she met appellant when she was 17 years old, and their 

relationship proceeded beyond friendship after she turned 18. The two began living 

together shortly after they started dating and F.C. became pregnant; however, during her 

pregnancy, their relationship ended. Their child, K.J., was born on June 7, 2002, and 

appellant was incarcerated at that time. Appellant remained incarcerated until March 

2010 and, at that time, appellant began living with F.C. and K.J. 

{¶ 4} Regarding the events of January 5, 2013, F.C. testified that she, appellant, 

K.J., and appellant's nephew were at their apartment at approximately 7:30 or 8:00 p.m. 

when appellant received a telephone call from his brother, W.J. At some point in the 

conversation, W.J. told appellant that he had sex with F.C. According to F.C., appellant 

"got very angry" and began "yelling, screaming, [and] questioning." (Tr. 91.) F.C. initially 

denied the allegations, but eventually admitted to appellant that she and W.J. did have an 

affair. F.C. testified that after her admission, appellant punched her along her cheek 

which caused her to fall. Appellant then proceeded to kick, hit, and spit on F.C. and also 

called her names and screamed at her. Thereafter, appellant grabbed F.C. "by the fistfulls 

of hair" and dragged her down the stairs to the basement. (Tr. 93.) 

{¶ 5} Once in the basement, appellant continued to kick, hit, and spit on F.C. and 

then proceeded to urinate on her. F.C. testified that "[h]e said he was going to pee on me 

like the dog that I was." (Tr. 95.) While in the basement, appellant forced F.C. to a couch 

and attempted anal intercourse. When the attempt failed, appellant pulled F.C. over and 

performed vaginal intercourse. Though repeatedly telling him to stop, F.C. testified that 

appellant would scream at her such things as "[s]hut up, bitch," and "[i]s this how my 

brother likes it?" (Tr. 99.) After ejaculating and telling F.C. that he hoped she "got 

pregnant," appellant went upstairs and left F.C. in a bathroom in the basement. (Tr. 100.) 

{¶ 6} Utilizing appellant's cell phone that he had previously thrown on the 

basement floor, F.C. sent a text message to appellant's sister, asking her to call 911. After 

appellant returned to the basement, he instructed F.C. to go upstairs and get "cleaned up." 

(Tr. 104.) Appellant then forced F.C. to the bedroom. F.C. sat on the floor while appellant 

called various people and told them F.C. had slept with W.J. F.C. testified: 
No. 13AP-799 3 

At one point, he made me sit on the bed and talk to his cousin 

and admit to his cousin that I had slept with his brother, and 

he proceeded to hit me while on the phone, talking to his 

cousin. When he got off of the phone with his cousin, he 

grabbed my head again and started, like, fistfuls of hair on 

either side and banging my head against the bed, sitting right 

on top of me. 

(Tr. 107.) 

{¶ 7} F.C. also testified that, while in the bedroom, appellant forced her to 

perform oral sex on him. According to F.C., "[h]e told me that if I didn't, that it really 

didn't matter anymore, that it was pretty much over, that I was going to do this." (Tr. 

109.) F.C. testified that she "told him to please stop" and "[t]hink about what you're 

doing." (Tr. 109.) Afterwards, appellant took some money from F.C.'s pants' pocket and 

left the house. F.C. testified, "I was nervous, and I was shaking. I hit the "Talk" button. It 

started ringing, and it was his cousin." (Tr. 110.) F.C. testified that they had a 

"conversation" and then she called 911. Appellant returned as F.C. was still on the line 

with the 911 dispatcher. F.C. testified that upon his return, appellant appeared "a lot 

calmer" and informed F.C. that he "couldn't let anybody see [her] look like this." (Tr. 

137.) After police arrived, appellant was placed in handcuffs, and F.C. described the 

events, including the sexual assaults, in her statement to the officers. F.C.'s injuries were 

photographed, and F.C. went to the hospital where she underwent a sexual assault 

examination. F.C. testified that she did not see her child or nephew at any time during the 

incident and believes the two children remained upstairs in K.J.'s bedroom the entire 

time. On cross-examination, F.C. admitted that she had consensual sex with appellant 

within 96 hours of the alleged sexual assault, but was uncertain as to whether it was on 

Friday night or Saturday morning before the incident. 

{¶ 8} K.J., who was 11 years old at the time of trial, testified that, on January 5, 

2013, appellant had been on the telephone and then told K.J. and his cousin to go upstairs 

to K.J.'s room. While in his room, K.J. heard a "loud thump" and heard F.C. "screaming" 

and appellant "yelling." (Tr. 183.) K.J. testified that he could only make out appellant 

saying "[s]top lying." (Tr. 183.) According to K.J., this went on for "[a]bout a couple 

hours" and that it "got quiet a little bit, and then it would start again." (Tr. 184.) K.J. 
No. 13AP-799 4 

testified that he left his room once to get his cousin a glass of water, but he did not see 

anything. K.J. also testified that he next saw F.C. "after it all – was all said and done," and 

she had "a big bruise under her eye and a couple bruises on her arms." (Tr. 186-87.) 

{¶ 9} Columbus Police Officer Robert Carter responded to a domestic violence 

call at approximately 2:45 a.m. on January 6, 2013. Appellant answered the door, and 

F.C. appeared "shaken a little." (Tr. 194.) According to Officer Carter, F.C. had bruising 

on her left eye, right arm, and right knee. Upon learning of the alleged sexual assaults, 

Officer Carter called for a detective. 

{¶ 10} Columbus Police Detective David Bobbitt testified he asked F.C. whether 

she had any prior consensual sexual activity in the previous 96 hours because "the current 

standard is 96 hours on how far out that DNA can remain in the system where consensual 

activity is relevant." (Tr. 219.) According to Detective Bobbitt's report, F.C. reported the 

last consensual activity with appellant was on "[t]he 4th of January, Friday afternoon." 

(Tr. 221.) 

{¶ 11} Dr. Patricia Robitaille was the physician who treated F.C. at Mount Carmel 

St. Ann's Emergency Department. During the external examination of F.C., Dr. Robitaille 

observed that F.C. "had multiple bruises on her entire left cheek, multiple bruises on her 

torso and all four extremities." (Tr. 280.) F.C.'s vaginal and anal examinations resulted 

in no remarkable findings, which, according to Dr. Robitaille, can be consistent with the 

history of alleged sexual assaults provided by F.C. Specifically, Dr. Robitaille testified 

"you can have unwanted intercourse, and you can have everything from not a scratch to 

the person being dead and everything in between, so, yes, you can have no apparent 

injury, no bruising, no lacerations, and still have had unwanted intercourse." (Tr. 282.) 

Dr. Robitaille also testified that F.C. reported consensual sexual activity occurred on the 

afternoon of January 4, 2013. 

{¶ 12} Testing of F.C.'s bra and shirt were positive for creatinine, a compound 

found in urine. Seminal fluid was identified in both F.C.'s vaginal samples and pubic hair 

standard. Additionally, trace amounts of seminal fluid were identified in F.C.'s anal 

samples and pubic hair combings. The DNA profiles extracted from the vaginal and anal 

samples were consistent with F.C. and appellant. The DNA profile taken from F.C.'s bra 
No. 13AP-799 5 

was consistent with both F.C. and appellant, while the DNA profile taken from F.C.'s shirt 

was consistent only with appellant. 

{¶ 13} When asked what things could impact the lab's ability to get positive results 

on the tests conducted in this case, Lindsay Main, forensic biologist at the Bureau of 

Criminal Identification and Investigation ("BCI"), testified "[i]f the victim has showered, 

changed clothes, used the restroom, those all can inhibit or deplete the foreign DNA 

source." (Tr. 330.) Main also testified that the longer the time frame between an alleged 

sexual assault and when samples are taken can inhibit the chances of finding foreign 

DNA. Sarah Smith, DNA analyst at BCI, testified that she could not opine as to how the 

DNA got there as the "testing does not show a time frame or how anything appears." (Tr. 

345.) 

{¶ 14} After the prosecution rested, appellant testified on his own behalf. 

According to appellant, he and F.C. engaged in consensual sexual relations in the 

afternoon prior to the incident. Appellant testified that shortly thereafter, W.J. called and 

was upset with appellant because appellant told their sister that W.J. was not watching 

her son as he was supposed to be. Appellant testified that he hung up on W.J. and then 

W.J. began texting appellant. According to appellant, W.J. informed appellant through 

text messaging that he and F.C. had an affair. Appellant explained that he told the 

children to go upstairs and then he and F.C. proceeded to the basement to talk. Appellant 

denied grabbing F.C. or forcing her down the stairs. Appellant testified that, after F.C. 

admitted to having sex with W.J., appellant struck F.C. and then urinated on her to keep 

himself from hitting her again. Appellant testified: 

I pushed her. After I struck her, I urinated on her. I'm 

embarrassed. I'm ashamed. But I did it. I didn't want to hit 

her again. I was so hurt. I was angry, and I didn't want to 

touch her. And that's what I did. That's no excuse, but that's 

what I did. 

(Tr. 372.) 

{¶ 15} According to appellant, after they left the basement, he called his two sisters 

and his cousin to tell them about the affair. F.C. then got cleaned up, and the two began 

talking in the bedroom. Appellant described himself as very calm at this time, and 

appellant testified that F.C. apologized for what she had done. Appellant also testified 
No. 13AP-799 6 

that he told F.C. the relationship was over and that he wanted custody of K.J. Appellant 

then took $15 from F.C.'s pants' pocket and left to get cigarettes. Shortly after he 

returned, the police arrived. Appellant denied telling F.C. to remove her clothes, denied 

attempting anal intercourse, denied forcing vaginal intercourse, and denied forcing F.C. to 

perform oral sex on him. 

{¶ 16} In a multi-count indictment rendered on March 11, 2013, appellant was 

indicted for two counts of rape, in violation of R.C. 2907.02, one count of attempted rape, 

in violation of R.C. 2923.02 as it relates to R.C. 2907.02, two counts of kidnapping, in 

violation of R.C. 2905.01, one count of robbery, in violation of R.C. 2911.02, one count of 

abduction, in violation of R.C. 2905.02, and one count of domestic violence, in violation of 

R.C. 2919.25. Six of the indicted counts included a specification alleging appellant was a 

repeat violent offender ("RVO") based on his 2002 convictions for aggravated burglary 

and felonious assault. After deliberations, the jury returned a verdict of not guilty on one 

count of robbery and the lesser-included offense of theft, not guilty on one count of 

kidnapping, and guilty on all remaining charges. Thereafter, the trial court found 

appellant guilty of the RVO specifications. A sentencing hearing was held, and appellant 

was sentenced to an aggregate prison term of 39 years with 227 days of jail-time credit. 

II. ASSIGNMENTS OF ERROR

{¶ 17} Appellant, through counsel, presents four assignments of error for our 

consideration: 

[I.] Appellant was denied a fair trial by the introduction of 

inflammatory, emotional testimony. 

[II.] The judgment of the trial court is against the manifest 

weight of the evidence. 

[III.] The trial court committed plain error in imposing 

consecutive sentences without making the necessary findings 

in violation of R.C. 2929.14(C)(4). 

[IV.] The trial court committed plain error in imposing an 

aggregate sentence of thirty nine years that did not satisfy the 

principles set forth in R.C. 2929.11(B). 
No. 13AP-799 7 

{¶ 18} After his appeal was filed through counsel, appellant filed a pro se motion 

for leave to file a supplemental brief with additional assignments of error. This court 

granted appellant's request and gave appellant until January 21, 2014 to file said brief. 

Appellant did not file a brief by that date but, instead, filed a supplemental brief 

containing two assignments of error on February 13, 2014. Also on February 13, 2014, 

appellant filed a motion to take judicial notice of his supplemental brief. Construing 

appellant's motion as one seeking leave to file an untimely brief, we grant appellant's 

motion. 

{¶ 19} For ease of discussion, we will refer to the following assigned errors as 

appellant's fifth and sixth assignments of error: 

[V.] The Trial Court abused its discretion allowing the D.N.A. 

to be entered as evidence in violation of Rules of Evidence 402 

and 403(A), which violated Appellant's Fourteenth 

Amendment right to due process and to equal protection 

under the law. 

[VI.] Trial Court violated Appellant's Fifth Amendment Right 

to the Grand Jury when it amended the indictment under 

Rule 7(D). 

III. DISCUSSION

A. First Assignment of Error

{¶ 20} In his first assignment of error, appellant argues he was denied a fair trial by 

the introduction of inflammatory and emotional testimony. Specifically, appellant 

challenges the following testimony elicited during F.C.'s direct examination: 

Q. Okay. Did something happen when you were pregnant 

with your relationship with him? 

A. Yes. 

Q. What happened? 

A. Found out he was cheating on me, and the relationship 

was pretty much dissolved and – 

(Tr. 82.) 
No. 13AP-799 8 

{¶ 21} Appellant's trial counsel objected, and a sidebar conference was held. 

During the sidebar conference, appellant's counsel argued that F.C.'s testimony was 

improper as it put appellant's character immediately at issue. Therefore, appellant's 

counsel requested a mistrial. The prosecutor countered that the evidence was being 

offered to explain the trajectory of the parties' relationship and to offer an explanation as 

to why appellant was not in F.C.'s life for eight years. The trial court sustained the 

objection but denied the motion for a mistrial. When trial resumed in the jury's presence, 

the trial court stated: 

Okay. One of my jobs is to be like the official of evidence, and 

I can either sustain an objection, which means I agree with it, 

or I can deny the objection, okay? I'm agreeing with this 

objection. You're to disregard that last question and answer. 

(Tr. 89-90.) 

{¶ 22} On appeal, appellant argues F.C.'s testimony that appellant was involved 

with another woman at the same time F.C. was pregnant with his child was irrelevant and 

inflammatory. According to appellant, introduction of this evidence was prohibited under 

Evid.R. 404(B), which provides "[e]vidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in conformity 

therewith." Appellant also argues the evidence was inadmissible under Evid.R. 403(A), 

which states "[a]lthough relevant, evidence is not admissible if its probative value is 

substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or 

of misleading the jury." 

{¶ 23} As noted, the trial court sustained the objection to the testimony and 

instructed the jury to disregard the question and answer. Thus, the challenged testimony 

was not admitted into evidence. Nonetheless, appellant contends the trial court should 

have granted his motion for a mistrial. 

{¶ 24} A court reviewing a trial court's decision on a motion for mistrial defers to 

the judgment of the trial court, as it is in the best position to determine whether the 

circumstances warrant the declaration of a mistrial. State v. Glover, 35 Ohio St.3d 18, 19 

(1988). We thus review a trial judge's decision for an abuse of discretion. Columbus v. 
No. 13AP-799 9 

Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.), citing State v. Sage, 31 

Ohio St.3d 173, 182 (1987). 

{¶ 25} "A mistrial should not be ordered in a criminal case merely because some 

error or irregularity has intervened, unless the substantial rights of the accused or the 

prosecution are adversely affected." State v. Reynolds, 49 Ohio App.3d 27, 33 (2d 

Dist.1988). A trial court should only declare a mistrial when "the ends of justice so 

require and a fair trial is no longer possible." State v. Franklin, 62 Ohio St.3d 118, 127 

(1991), cert. denied, 504 U.S. 960 (1992). To determine whether the defendant was 

deprived of a fair trial, we must determine whether "absent the improper remark[], the 

jury would have found the appellant guilty beyond a reasonable doubt." Aleshire at ¶ 42, 

citing State v. Maurer, 15 Ohio St.3d 239, 267 (1984). 

{¶ 26} In the case before us, the trial court sustained appellant's objection to the 

challenged testimony and proceeded to instruct the jury to disregard the challenged 

testimony. The jury is presumed to have followed the trial court's instruction. State v. 

Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 39; State v. Rowe, 92 Ohio App.3d 652, 

672-73 (10th Dist.1993), jurisdictional motion overruled, 69 Ohio St.3d 1403 (1994). 

{¶ 27} Given F.C.'s isolated reference to appellant's prior affair, the trial court's act 

of sustaining appellant's objection to such testimony and the trial court's instruction to 

the jury that it disregard the question and response, we cannot conclude that the trial 

court abused its discretion in denying appellant's motion for a mistrial. State v. McCree, 

8th Dist. No. 87951, 2007-Ohio-268, ¶ 40 (no error in overruling the defendant's motion 

for a mistrial because the witness's reference to the defendant's criminal history was an 

isolated reference, the trial court properly struck the testimony, and the court advised the 

jury to disregard it); State v. Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418, ¶ 35 

(court's prompt remedial actions after prejudicial testimony prevented finding that the 

trial court abused its discretion in denying a motion for a mistrial). 

{¶ 28} Moreover, to the extent evidence of appellant's prior affair was mentioned 

again during trial, such evidence was provided by appellant during his direct examination. 

Appellant testified, "[F.C.] got me about my cheating. I said that, 'You can't keep throwing 

that in my face.' " (Tr. 370.) Additionally, appellant testified, "[a]nd I also went into the 

thing where she got on me about lying and cheating. I said, you know, you made me feel 
No. 13AP-799 10 

horrible about what I did, and then you turn around, and you're doing the same thing." 

(Tr. 380.) 

{¶ 29} Upon review, we conclude appellant's substantial rights were not adversely 

affected, and the trial court did not abuse its discretion in denying appellant's motion for a 

mistrial. Accordingly, we overrule appellant's first assignment of error. 

B. Second Assignment of Error

{¶ 30} Appellant's second assignment of error challenges the weight of the 

evidence supporting his convictions. Specifically, appellant argues that F.C.'s testimony 

lacked the credibility necessary to sustain the convictions concerning the sexual assaults. 

{¶ 31} The weight of the evidence concerns the inclination of the greater amount of 

credible evidence offered to support one side of the issue rather than the other. State v. 

Thompkins, 78 Ohio St.3d 380, 387 (1997). When presented with a challenge to the 

manifest weight of the evidence, an appellate court may not merely substitute its view for 

that of the trier of fact but must review the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of witnesses, and determine 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. Id. An appellate court should reserve reversal of a conviction as being against 

the manifest weight of the evidence for only the most " 'exceptional case in which the 

evidence weighs heavily against the conviction.' " Id., quoting State v. Martin, 20 Ohio 

App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-

Ohio-6179, ¶ 12. 

{¶ 32} In addressing a manifest weight of the evidence argument, we are able to 

consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 

2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the 

presumption that the jury, or the trial court in a bench trial, " 'is best able to view the 

witnesses and observe their demeanor, gestures and voice inflections, and use these 

observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons 

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference 

to the jury's determination of witness credibility. State v. Redman, 10th Dist. No. 10AP654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-
No. 13AP-799 11 

6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the 

syllabus (credibility determinations are primarily for the trier of fact). 

{¶ 33} In arguing that his convictions for rape and attempted rape are against the 

manifest weight of the evidence, appellant contends his testimony denying the allegations 

is more credible than the testimony of F.C. in which she alleges the sexual assaults 

occurred. In support of his position, appellant directs this court to five areas of F.C.'s 

testimony that, in his opinion, render F.C.'s credibility suspect: (1) F.C. called appellant's 

cousin and not her own relatives, (2) F.C. told the cousin he could come over if he wanted 

to be on appellant's side, (3) while F.C. reported to the 911 dispatcher that her boyfriend 

had been hitting her, she did not mention the sexual assault, (4) F.C. did not mention the 

sexual assaults until the police arrived at the house, and (5) appellant told F.C. that he 

would take K.J. away from her. According to appellant, these areas of F.C.'s testimony 

establish that F.C. had a motive and the time to fabricate the sexual assault allegations. 

{¶ 34} Although appellant argues F.C.'s motive to lie detracts from her credibility, 

we remain cognizant that the trier of fact has superior, first-hand perspective in judging 

the demeanor and credibility of witnesses. State v. Mickens, 10th Dist. No. 08AP-626, 

2009-Ohio-1973, ¶ 30; DeHass at paragraph one of the syllabus. Additionally, F.C. 

testified about the issues raised by appellant, including that she called appellant's cousin 

in error because she was shaking and nervous after appellant briefly left the house. 

Additionally, when asked why she did not tell the 911 dispatcher about the alleged sexual 

assaults, F.C. testified, "I just wanted them to get there. I didn't want to go through the 

whole story with them on the phone. I just wanted them to get somebody there as soon as 

possible." (Tr. 139.) Additionally, testimony regarding appellant's threats to obtain 

custody of K.J. was presented to the jury. Thus, the trier of fact was aware of the issues 

raised by appellant, and it was within the province of the trier of fact to determine F.C.'s 

credibility and the weight to be given to the evidence. Id.

{¶ 35} Faced with the conflicting evidence provided by the testimonies of F.C. and 

appellant, the jury had the responsibility to determine witness credibility. As trier of fact, 

the jury was free to believe or disbelieve all or any of the testimony presented. State v. 

Matthews, 10th Dist. No. 11AP-532, 2012-Ohio-1154, ¶ 46, citing State v. Jackson, 10th 

Dist. No. 01AP-973 (Mar. 19, 2002). The jury chose to believe F.C.'s version of events and 
No. 13AP-799 12 

to reject appellant's assertion that none of the alleged sexual assaults occurred. A 

conviction is not against the manifest weight of the evidence merely because the jury 

believed the prosecution's testimony. State v. Anderson, 10th Dist. No. 10AP-302, 2010-

Ohio-5561. Additionally, while appellant disagrees with the jury's credibility 

determination, mere disagreement over the credibility of witnesses is not a sufficient 

reason to reverse a judgment on manifest-weight grounds. State v. G.G., 10th Dist. No. 

12AP-188, 2012-Ohio-5902, ¶ 7. 

{¶ 36} Upon thorough review of the record presented before us, we conclude 

appellant's argument regarding the credibility of F.C. does not render her testimony not 

credible as a matter of law such that a reversal on manifest-weight grounds is required. 

Accordingly, appellant's convictions are not against the manifest weight of the evidence, 

and we overrule appellant's second assignment of error. 

C. Third Assignment of Error 

{¶ 37} In his third assignment of error, appellant contends the trial court 

committed plain error in imposing consecutive sentences without making the necessary 

findings required by R.C. 2929.14(C)(4). 

{¶ 38} We note initially that appellant did not object during sentencing; thus, he 

has forfeited all but plain error. See Crim.R. 52(B); State v. Wilson, 10th Dist. No. 12AP551, 2013-Ohio-1520, ¶ 8. Under 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." "To constitute plain error, the error must be obvious on the record, palpable, and 

fundamental such that it should have been apparent to the trial court without objection." 

State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. Tichon, 102 

Ohio App.3d 758, 767 (9th Dist.1995). 

{¶ 39} Upon review of the record, we find the trial court failed to make the findings 

required by R.C. 2929.14(C)(4) before imposing consecutive sentences in this case. It is 

established in this district that "when the record demonstrates that the trial court failed to 

make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences 

on multiple offenses, 'appellant's sentence is contrary to law and constitutes plain error.' " 

State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15, quoting Wilson at ¶ 18; 

State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794, ¶ 12; see also State v. Bailey, 
No. 13AP-799 13 

10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 46; State v. Hunter, 10th Dist. No. 13AP-196, 

2013-Ohio-4013, ¶ 9; State v. Castlin, 10th Dist. No. 13AP-331, 2013-Ohio-4889, ¶ 8-9; 

State v. Phipps, 10th Dist. No. 13AP-351, 2013-Ohio-5546, ¶ 15; State v. Bender, 10th 

Dist. No. 12AP-934, 2013-Ohio-2777, ¶ 7; State v. Hargrove, 10th Dist. No. 13AP-615, 

2014-Ohio-1919. As such, we must remand this matter to the trial court to consider 

whether consecutive sentences are appropriate pursuant to R.C. 2929.14(C)(4) and, if so, 

to enter the proper findings on the record. Id. at ¶ 13; Boynton at ¶ 12. 

{¶ 40} Accordingly, we sustain appellant's third assignment of error. 

D. Fourth Assignment of Error 

{¶ 41} In his fourth assignment of error, appellant argues the trial court erred in 

imposing an aggregate sentence of 39 years. According to appellant, the imposed 

sentence violates the consistency and proportionality principles of R.C. 2929.11(B). 

{¶ 42} As stated in our disposition of appellant's third assignment of error, this 

matter must be remanded for resentencing. As such, appellant's fourth assignment of 

error is rendered moot. 

E. Fifth Assignment of Error 

{¶ 43} In his fifth assignment of error, appellant contends the trial court erred in 

admitting DNA evidence because the evidence was both irrelevant and prejudicial. 

Specifically, appellant asserts that, because F.C. admitted to having consensual sexual 

conduct within 72 hours of the alleged sexual assaults, the DNA evidence is inadmissible 

since "[t]here is no way to prove that the D.N.A. found [on] the victim came from the 

alleged sexual assault." (Supplemental Brief, 2.) 

{¶ 44} To be relevant and therefore admissible, evidence must have a tendency "to 

make the existence of any fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the evidence." Evid.R. 401. See

also Oakwood v. Makar, 11 Ohio App.3d 46, 50 (8th Dist.1983). Even if the evidence is 

relevant, it must be excluded under Evid.R. 403(A) "if its probative value is substantially 

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading 

the jury." However, despite the mandatory terms of Evid.R. 403(A), the appropriate 

standard of review is the abuse of discretion standard. The Supreme Court of Ohio has 

interpreted Evid.R. 403(A) to mean that " '[t]he trial court has broad discretion in the 
No. 13AP-799 14 

admission * * * of evidence and unless it has clearly abused its discretion and the 

defendant has been materially prejudiced thereby, this court should be slow to interfere.' " 

Maurer at 265, quoting State v. Hymore, 9 Ohio St.2d 122, 128 (1967). 

{¶ 45} In reaching a decision involving admissibility under Evid.R. 403(A), a trial 

court must engage in a balancing test to ascertain whether the probative value of the 

offered evidence outweighs its prejudicial effect. Id. at paragraph seven of the syllabus. 

In order for the evidence to be deemed inadmissible, its probative value must be minimal 

and its prejudicial effect great. State v. Morales, 32 Ohio St.3d 252, 258 (1987). 

Furthermore, relevant evidence which is challenged as having probative value that is 

substantially outweighed by its prejudicial effects "should be viewed in a light most 

favorable to the proponent of the evidence, maximizing its probative value and 

minimizing any prejudicial effect" to the party opposing its admission. Maurer at 265. 

{¶ 46} Although evidence may be damaging or harmful to the defendant, that does 

not necessarily mean that the evidence is prejudicial under the rules of evidence. Only 

when the evidence induces the jury to decide the case on an improper basis, i.e., an 

emotional one, does the defendant suffer material prejudice. State v. Bernatowicz, 62 

Ohio App.3d 132, 138 (6th Dist.1989). Further, the issue of whether testimony or 

evidence is relevant or irrelevant, prejudicial, confusing or misleading is best decided by 

the trial judge who is in a significantly better position to analyze the impact of the 

evidence on the jury. Renfro v. Black, 52 Ohio St.3d 27, 31 (1990). Thus, this court must 

affirm the trial court's ruling absent a showing that the trial court acted unreasonably, 

arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 47} In the case sub judice, appellant asked the trial court to find the seminal 

fluid and DNA evidence inadmissible as irrelevant and prejudicial. However, as the trial 

court explained, "it's a matter of truth and veracity whether the act occurred. The semen 

would be there anyway from the previous act. * * * So, you know, I don't see where you're 

prejudiced in any way, okay? I'll overrule that." (Tr. 42.) 

{¶ 48} We cannot say the presence of appellant's seminal fluid observed in the 

testing of F.C.'s vaginal and anal samples is irrelevant as is it consistent with F.C.'s 

testimony that appellant attempted anal intercourse and successfully performed vaginal 

intercourse with ejaculation. While the seminal fluid could have been the result of 
No. 13AP-799 15 

consensual sexual conduct with appellant that occurred either the morning of or day prior 

to the alleged sexual assaults, there was testimony to this effect, and we fail to perceive an 

abuse of discretion or any prejudice resulting from admission of the DNA evidence. 

{¶ 49} Appellant's argument is more aptly categorized as a challenge to the weight 

of the evidence rather than to evidence admissibility. See State v. Pierce, 64 Ohio St.3d 

490 (1992) (questions regarding reliability of DNA evidence in a given case go to the 

weight of the evidence rather than to its admissibility); State v. Breeze, 10th Dist. No. 

92AP-258 (Nov. 24, 1992) (argument that DNA evidence being used to exclude sources of 

blood rather than to include them went to the weight of the evidence, not to its 

admissibility based on relevance). There was testimony from Detective Bobbitt, Main, 

and Smith indicating that, though appellant's seminal fluid and DNA were observed in the 

vaginal and anal samples of F.C., the tests could not determine how or when the DNA 

came to be there or whether it was the result of consensual sexual conduct or a forced 

sexual assault as alleged by F.C. Whether or not the alleged sexual assaults occurred 

throughout the evening hours of January 5, 2013 was one of the issues the jury was tasked 

with determining. While appellant denied any sexual conduct during this time, F.C. 

described three instances of unwanted sexual conduct. As discussed in our disposition of 

appellant's second assignment of error, a conviction is not against the manifest weight of 

the evidence merely because the jury believed the prosecution's testimony. Anderson.

{¶ 50} Upon review, we find no error in the admission of the DNA evidence, and 

we overrule appellant's fifth assignment of error. 

F. Sixth Assignment of Error 

{¶ 51} In his sixth assignment of error, appellant contends the trial court erred 

when it granted the prosecution's request to amend the indictment to remove the RVO 

specification from Count 7 charging abduction and Count 8 charging domestic violence. 

{¶ 52} The transcript indicates that, prior to trial, the prosecutor noted the 

indictment contained a typographical error as it mistakenly included the RVO 

specification language on the charges for abduction and domestic violence. Therefore, the 

prosecutor asked that such language be deleted. Appellant's counsel indicated there was 

no objection to the deletion of the specifications from Counts 7 and 8. At the beginning of 

the sentencing hearing, appellant's counsel stated that appellant believed the amendment 
No. 13AP-799 16 

to the indictment was improper because the amendment changed the name and identity 

of the offenses charged. The trial court rejected appellant's argument and proceeded to 

sentencing. 

{¶ 53} Pursuant to Crim.R. 7(D), a court may, before, during or after a trial, amend 

an indictment due to any variance with the evidence, provided no change is made in the 

name or identity of the crime charged. A trial court's decision to permit the amendment 

of an indictment is reviewed under an abuse-of-discretion standard. State v. Smith, 10th 

Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 10. The term "abuse of discretion" connotes 

more than an error of law or judgment; it implies that the court's attitude is unreasonable, 

arbitrary or unconscionable. Blakemore at 219. Furthermore, when the name or identity 

of the crime charged is not changed by the amendment, a defendant on appeal must show 

that the amendment prejudiced his defense for there to be reversible error. Smith at ¶ 10. 

{¶ 54} In appellant's case, the indictment was amended to delete the RVO 

specification language from Counts 7 and 8 of the indictment. Count 7 charged appellant 

with abduction as a third-degree felony, and Count 8 charged appellant with domestic 

violence as a first-degree misdemeanor. Though appellant argues to the contrary, neither 

the name nor identity of the crimes charged, i.e., third-degree felony abduction and firstdegree misdemeanor domestic violence, were changed as a result of deleting the RVO 

specification language. 

{¶ 55} Because the name and identity of the crimes charged were not changed by 

the amendment, in accordance with Smith, appellant must show that the amendment 

prejudiced his defense. This appellant has failed to do. Removal of the RVO 

specifications from Counts 7 and 8 actually benefited appellant. Moreover, because the 

RVO specification remained as to other counts in the indictment, appellant has not 

argued the amendment in any way prejudiced his ability to defend the charges against 

him. Finally, to the extent appellant asserts in this assigned error that the amendment 

interfered with the "Grand Jury's intent when it handed down the R.V.O[.] specification 

on count 7," we find no merit to said assertion. (Supplemental Brief, 4.) 

{¶ 56} Accordingly, we overrule appellant's sixth assignment of error. 
No. 13AP-799 17 

IV. CONCLUSION

{¶ 57} In conclusion, appellant's motion is granted, appellant's first, second, fifth, 

and sixth assignment of errors are overruled, appellant's third assignment of error is 

sustained, and appellant's fourth assignment of error is rendered moot. Accordingly, the 

judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed 

in part, and this matter is remanded for resentencing in accordance with law and this 

decision. 

Motion granted; 

judgment affirmed in part, reversed in part; 

cause remanded. 

BROWN and CONNOR, JJ., concur. 

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