[Cite as State v. Thomas, 2015-Ohio-3226.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101797




                                     STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                           ROBERT LAMAR THOMAS
                                                   DEFENDANT-APPELLANT




                              JUDGMENT:
                  AFFIRMED IN PART, REVERSED IN PART,
                            AND REMANDED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-13-579375-A

        BEFORE: E.T. Gallagher, J., Jones, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: August 13, 2015
ATTORNEY FOR APPELLANT

J. Charles Ruiz-Bueno
Charles Ruiz-Bueno Co., L.P.A.
36130 Ridge Road
Willoughby, Ohio 44094


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Robert Lamar Thomas (“Thomas”), appeals from his

convictions and sentence following a jury trial. Thomas raises four assignments of error

for review:

       1. Defendant-appellant was prejudiced by the ineffective assistance of his
       trial counsel.

       2. The trial court committed prejudicial error by admitting evidence in
       contravention to the Ohio Rules of Evidence.

       3. The evidence adduced at trial was insufficient to sustain a verdict
       against defendant-appellant.

       4.    The trial court committed prejudicial error by sentencing
       defendant-appellant to an excessive term of imprisonment.

       {¶2} After careful review of the record and relevant case law, we affirm in part,

reverse in part, and remand for further proceedings consistent with this opinion.

                           I. Procedural and Factual History

       {¶3} On October 31, 2013, Thomas was named in a 19-count indictment, charging

him with 11 counts of rape in violation of R.C. 2907.02(A)(1)(b), with a furthermore

specification that Thomas purposely compelled 12-year-old victim, H.W., to submit by

force or threat of force; seven counts of kidnapping in violation of R.C. 2905.01(A)(4),

with sexual motivation specifications; and one count of disseminating matter harmful to

juveniles in violation of R.C. 2907.31(A)(3). The indictment specified that Thomas

engaged in sexual conduct with H.W. on separate occasions from August 15, 2012
through October 31, 2012.     On June 13, 2014, a jury trial commenced where the

following evidence was adduced.

       {¶4} S.W. (“Mother”), testified that she is the mother of four children including

H.W. Mother stated that she was in an “on and off” relationship with Thomas for over

six years. During the times relevant to this case, Thomas was residing with Mother and

her children and was given the responsibility to watch her children while she worked

nights as a bartender.

       {¶5} H.W., born July 7, 2000, suffers from PHACE syndrome 1 and has

experienced “social problems” since she was a young girl due to her health condition.

Mother testified that she began to notice further changes in her daughter’s demeanor just

as H.W. was entering her sixth-grade school year.       Specifically, H.W. had become

increasingly argumentative and withdrawn.

       {¶6} In October 2012, Mother went to her daughter, then 12 years old, to discuss

her recent behavior. According to Mother, H.W. immediately began to cry and stated

that she was having sex with Thomas in the house. Mother testified that she “freaked

out” and confronted Thomas, who denied the allegations. Thereafter, Mother attempted

to take H.W. to the hospital. H.W., however, recanted her allegations against Thomas

before they left the house.


       1  PHACE syndrome is the association of a large hemangioma, usually on the
face or neck, in combination with one or more other birth defects. People with
PHACE syndrome may have posterior fossa brain malformations, hemangioma,
arterial lesions (blood vessel abnormalities in the head or neck), cardiac (heart)
abnormalities/aortic coarctation, and eye abnormalities.
       {¶7} In the weeks that followed, H.W. continued to exhibit signs of emotional

instability. Her sleep patterns were irregular, she was depressed and withdrawn, and did

not want to shower. Mother testified that H.W. continued to go “back and forth” on her

accusations against Thomas. As a result, Mother scheduled an appointment with H.W.’s

psychiatrist. During this time period, Thomas was living in the house, but “disappeared”

two days before H.W. was scheduled to meet with her psychiatrist to address her ongoing

behavioral issues. In November 2012, Mother was urged by H.W.’s psychiatrist to

notify the police of the accusations.

       {¶8} On cross-examination, Mother was questioned at length about several

instances where H.W. had demonstrated untruthfulness.              Significantly, Mother

confirmed that when H.W. was in the fourth grade she alleged that a boy in her class had

inappropriately touched her in the bathroom, but later admitted that she had “made it up.”

 H.W. also lied to her mother about being on a dating website and had previously lied to

school officials that Mother was abusing her at home.

       {¶9} H.W. testified that in August 2012, just before she entered the sixth grade,

Thomas began “sexually abusing [her].” Throughout her testimony, H.W. described six

specific instances of sexual abuse.

       {¶10} H.W. stated that the first incident occurred after she had a bad dream and

went downstairs to talk to Thomas. H.W. told Thomas that it was a “sexual dream” and

that the man in the dream “made [her] bleed.”    Thereafter, Thomas and H.W. went into

the kitchen while talking about her dream.   Thomas walked up to H.W. and touched her
stomach while standing face-to-face.      H.W. testified that Thomas made her feel nervous

and confused.      Thomas then took H.W. upstairs to his bedroom and put on a

pornographic video. While the video was playing, Thomas began to rub H.W.’s leg.

Thomas then took off H.W.’s pants and underwear and touched her legs and vagina with

his hand.    H.W. testified that she felt “frozen.”   H.W. stated that Thomas made her give

him oral sex and then put his penis in her vagina. Additionally, Thomas “licked [her]

breasts and vagina.” H.W. stated that he had slurred speech during this incident.

       {¶11} The day after the first incident was H.W.’s first day of the sixth grade at

school. H.W. testified that Thomas picked her up from school and stated that what they

did the night before was wrong and that they should not do it again. However, the

following day, Thomas woke H.W. up while Mother was at work and “put his penis in

[her] vagina.”    H.W. stated that she held her favorite stuffed animal, Amy, during this

assault.    H.W. testified that she could not remember if anything came out of Thomas’s

penis but that he used a rag to wipe off her sheets when he was finished.

       {¶12} The third incident H.W. described occurred in the downstairs living room.

H.W. testified that Thomas “put his penis in my mouth” while her brother and sisters

were upstairs.    H.W. testified that Thomas ejaculated and “stuff” ended up on the carpet

in the living room.

       {¶13} The fourth incident occurred while H.W. was packing clothes in the

basement to visit her father. H.W. testified that Thomas came down to the basement and

“had sex with [her] on the dirty clothes.”
          {¶14} Finally, H.W. testified that Thomas sexually abused her twice in the same

day. She first indicated that Thomas had vaginal sex with her in her mother’s bedroom.

The second incident she referred to was later that night when Thomas woke her up while

she was sleeping in her bed.      H.W. remembered that “Nick at Nite” was playing on the

television in her bedroom when Thomas woke her up.             H.W. stated that Thomas’s

“mouth and penis touched [her] vagina.”         Thomas also rubbed her vagina with his

finger.

          {¶15} H.W. stated that she first disclosed these incidents to Mother while she was

in her bedroom.      H.W. could not remember what led her to tell her mother about the

sexual abuse.      H.W. testified her mother was “shocked” and immediately confronted

Thomas.       According to H.W., Thomas denied the allegations, which made her feel

“mad.”

          {¶16} On December 3, 2012, the Lakewood Police Department commenced its

investigation into the allegations raised against Thomas. After speaking with Mother

and H.W., the police collected evidence from the house, including H.W.’s bedding.       The

following day, Officer Nicholas Rebraca (“Officer Rebraca”) returned to collect a bed

sheet that Mother alleged had not been washed since the time of the incidents.

Subsequently, Detective Larry Kirkwood (“Det. Kirkwood”) returned to the residence to

cut a piece of carpet from Mother’s living room for forensic analysis.

          {¶17} Christine Scott (“Scott”), a forensic scientist employed with the Cuyahoga

County Medical Examiner’s Office, testified that she specializes in forensic DNA
analysis.   Scott stated that she performed a DNA analysis on several items submitted by

the Lakewood Police Department, including carpet from the living room and a comforter,

bed sheet, pillow case, and bed skirt from H.W.’s bed. In her forensic report, Scott

found that no seminal material was detected in the carpet from the living room, or on

H.W.’s comforter, pillow case, or bed skirt.       However, Scott testified that seminal

material was identified on a section of H.W.’s bed sheet. Scott compared the seminal

material found on the bed sheet to the buccal swab standard taken from Thomas and

concluded that “the DNA profile obtained from the sperm fraction on [H.W.’s bed sheet]

matches the DNA profile of [Thomas]” to “a reasonable degree of scientific certainty.”

       {¶18} With regards to the same cutting from the bed sheet, epithelial fractions

were tested for DNA.    Scott explained that epithelial fractions “contain all the cells from

your body such as skin cells” and “cells from vaginal secretions.” Scott testified that the

DNA profile obtained from the epithelial fraction was a mixture of major and minor

contributors. The major contributor matched the profile of Thomas. Further, Scott

concluded that, after comparing the DNA profile of the minor contributor to the buccal

swab standards taken from Mother and H.W., H.W. could not be excluded as the minor

contributor. Mother was excluded as the minor contributor.

       {¶19} Deana Davis (“Davis”) testified that she is employed as a social worker with

the Division of Children and Family Services and was assigned to H.W.’s case in

December 2012.     Davis testified that she met with H.W. on two separate occasions and

discussed H.W.’s initial disclosure to her mother and relevant details of each incident of
sexual abuse. According to Davis, H.W. had a difficult time discussing the sexual abuse

and had a “flat affect.”   Davis testified that her primary goal was to make the appropriate

mental health referrals to help H.W. cope with the trauma and move forward in life.

       {¶20} In the course of completing her assessment in this case, Davis collected

background information into H.W.’s mental and physical health and learned that H.W.

made suicide attempts after the sexual abuse allegedly occurred.     Davis testified that the

severity of H.W.’s mental health issues caused her to be hospitalized on two separate

occasions.

       {¶21} Dr. Mark Feingold (“Dr. Feingold”) is employed by MetroHealth Medical

Center and is a member of the Department of Pediatrics and the Director of Child

Protection Services. Dr. Feingold testified that he met with H.W. and her mother on

December 17, 2012, to assess H.W.’s allegations of sexual abuse. Dr. Feingold testified

that he received notable background information, including H.W.’s struggle with PHACE

syndrome. During the evaluation, Dr. Feingold was informed that H.W. was abused six

to seven times in various rooms of the house. H.W. stated that she did not bleed but that

it hurt when she urinated after the abuse and her stomach would hurt.          Dr. Feingold

testified that this was a noteworthy disclosure because a 12-year-old child would not

normally describe this pain unless abuse had taken place.

       {¶22} At the conclusion of trial, the jury found Thomas guilty of rape as indicted

in Counts 1, 2, 5, 12, and 13, and that he committed the acts by purposely compelling

H.W. to submit by force or threat of force. Thomas was also found guilty of kidnapping
with sexual motivation specifications as indicted in Counts 3, 6, and 14. He was found

not guilty of all remaining counts.

       {¶23} At sentencing, the trial court merged Thomas’s kidnapping and rape

convictions.   The state elected to proceed with sentencing on the rape convictions, and

Thomas was sentenced to 25 years to life on each count. Four of the rape convictions

were run concurrently to each other, but consecutive to the fifth rape conviction, for a

total term of imprisonment of 50 years to life.

       {¶24} Thomas now appeals from his convictions and sentence.

                                      II. Law and Analysis

                         A. Ineffective Assistance of Counsel

       {¶25} In his first assignment of error, Thomas argues he received ineffective

assistance of counsel throughout the trial proceedings.

       {¶26} To establish ineffective assistance of counsel, Thomas must demonstrate

that (1) counsel’s representation was deficient in that it “fell below an objective standard

of reasonableness,” and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002). In Ohio, an attorney properly

licensed is presumed competent. State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293

(1990).   The defendant has the burden of proof and must overcome the strong
presumption that counsel’s performance was adequate or that counsel’s action might be

sound trial strategy. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

       {¶27} Thomas first argues that defense counsel was ineffective for failing to

“reasonably communicate with him regarding his rights and the full gamut of defenses

and mitigation that could be taken.”     After careful review, there is no evidence in the

record to prove or disprove Thomas’s assertions.       In the absence of evidence on the

record to suggest otherwise, we must presume defense counsel adequately communicated

with Thomas throughout this case. In re C.B., 9th Dist. Lorain No. 14CA010588,

2014-Ohio-4618, ¶ 10.     Accordingly, this issue is unresolvable on direct appeal because

it requires evidence outside the record. State v. Burton, 8th Dist. Cuyahoga No. 100716,

2014-Ohio-4207, ¶ 14, citing State v. Rivas, 8th Dist. Cuyahoga No. 100044,

2014-Ohio-833, ¶ 10.

       {¶28} Next, Thomas asserts that his best interests were not taken into account.

Thomas contends that defense counsel “failed to file requested motions, such as to inspect

the grand jury transcript or to exclude the bed sheet that was provided after the police

investigation of the scene had concluded.”

       {¶29} Generally, grand jury proceedings are secret, and an accused is not entitled

to inspect grand jury transcripts during trial unless the ends of justice require it, and the

defense shows that a particularized need for disclosure exists that outweighs the need for

secrecy. State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988); State v. Greer, 66

Ohio St.2d 139, 420 N.E.2d 982 (1981).             A “particularized need” exists when
circumstances reveal a probability that the failure to provide grand jury testimony will

deny the accused a fair trial. Id. From the record, we are unable to determine to what

extent the grand jury testimony would have benefitted counsel in his efforts to

cross-examine state’s witnesses. Further, Thomas has provided no basis for this court to

conclude he was denied a fair trial without the grand jury transcripts.   Thus, we    are

unable to conclude that counsel’s failure to seek the witnesses’ grand jury testimony

constituted ineffective assistance.

       {¶30} Moreover, Thomas has not established that defense counsel’s failure to file a

motion to exclude the bed sheet from evidence fell below an objective standard of

reasonable representation.    Thomas has not articulated a legal basis for excluding the

bed sheet.   The record demonstrates that the bed sheet was lawfully recovered from

Mother’s home by the Lakewood police following its investigation into the allegations

raised by H.W.     Under these circumstances it is probable, and reasonable, for trial

counsel to conclude that a motion to exclude the evidence would have been futile and

strategically flawed.     See State v. Morton, 8th Dist. Cuyahoga No. 100267,

2014-Ohio-1434, ¶ 12.

       {¶31} Finally, Thomas argues defense counsel was ineffective for failing to

subpoena certain medical health professionals, including a DNA expert provided by the

trial court at the state’s expense, and a physician at Fairview Hospital whom Thomas

claims performed a medical examination on H.W.        However, the decision whether to

subpoena or call a witness falls squarely within the ambit of trial strategy and does not
constitute ineffective assistance absent a showing of prejudice. State v. Oliver, 101

Ohio App.3d 587, 594, 656 N.E.2d 348 (8th Dist.1995). Without more information, this

court has no basis to know how these medical professionals would have testified.      See

State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119.

Presumably, defense counsel weighed all relevant factors and determined that the

testimony would not have benefitted Thomas at trial.       Accordingly, Thomas cannot

demonstrate the requisite level of prejudice necessary to overcome counsel’s trial

strategy.

       {¶32} Thomas’s first assignment of error is overruled.

                                     B. Evidence

       {¶33} In his second assignment of error, Thomas argues the trial court committed

prejudicial error by admitting evidence in contravention of the Ohio Rules of Evidence.

       {¶34} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),

paragraph two of the syllabus.   An appellate court, therefore, generally reviews a trial

court’s decision pertaining to the admission of evidence for an abuse of discretion. State

v. Gale, 8th Dist. Cuyahoga No. 94872, 2011-Ohio-1236, ¶ 12, citing State v. Finnerty,

45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion implies that

the trial court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
      {¶35} As Thomas concedes, however, counsel did not object to the testimony

challenged within this assignment of error. Thus, our review is limited to plain error.

State v. Jackson, 92 Ohio St.3d 436, 444, 751 N.E.2d 946 (2001), citing State v.

Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus; Crim.R. 52(B). An

appellate court recognizes plain error with the utmost caution, under exceptional

circumstances, and only to prevent a miscarriage of justice. State v. Pilgrim, 184 Ohio

App.3d 675, 2009-Ohio-5357, 922 N.E.2d 248, ¶ 58 (10th Dist.), citing State v. Diar, 120

Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 139.

      {¶36} For an error to be a “plain error” under Crim.R. 52(B), it must satisfy three

prongs (1) there must be an error, meaning a deviation from a legal rule, (2) the error

must be “plain,” meaning an “obvious” defect in the trial proceedings, and (3) the error

must have affected “substantial rights,” meaning the error must have affected the outcome

of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.

      {¶37} Thomas argues that the trial court erred by admitting hearsay testimony.

He first challenges the portion of Mother’s testimony in which she recounted what H.W.

said to her in October 2012 about the sexual abuse.    More specifically, Thomas argues

the following statements made by Mother were impermissible hearsay:

      She was crying and shaking, like she didn’t want to tell me.

      ***
       She told me that she — somebody in the house — she was having sex with

       somebody in the house. Like she had sex with somebody in the house.

       And she told me that it was him, Bobby.”

       {¶38} Similarly, Thomas challenges Officer Rebraca’s testimony that, in the

course of his investigation, Mother stated that H.W. had disclosed that she was having sex

with Thomas while Mother was at work. Thomas contends that the testimony was

“double hearsay.”

       {¶39} Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it

falls within an exception provided by the rules of evidence. Should hearsay statements

be admitted improperly, however, such error does not necessarily require reversal of the

outcome of the trial if it was harmless.      See Arizona v. Fulminante, 499 U.S. 279,

306-309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

       {¶40} After careful review, we find the challenged testimony contained hearsay

statements.   However, without determining whether the statements fall under one of the

enumerated exceptions to the hearsay rule, we find the trial court’s admission of the

hearsay testimony to be harmless.     The main premise behind the hearsay rule is that the

adverse party is not afforded the opportunity to cross-examine the declarant. See State v.

Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 69. In this case, H.W.

testified at trial and was subjected to cross-examination about the conversation she had
with her mother and her possible motives for making a false allegation against Thomas.

Thus, Mother and Officer Rebraca’s testimony was cumulative and harmless beyond a

reasonable doubt. State v. Simmons, 8th Dist. Cuyahoga No. 98613, 2013-Ohio-1789, ¶

28, citing State v. Greer, 8th Dist. Cuyahoga No. 91983, 2009-Ohio-4228, ¶ 59.

      {¶41} Thomas next challenges the state’s question during the redirect examination

of H.W. concerning whether she was married to Thomas at the time of the sexual abuse.

Thomas contends that the question was beyond the scope of cross-examination and was

only asked to cure the state’s failure to establish a necessary element of R.C.

2907.02(A)(1) during its case-in-chief.     As a general rule, the scope of redirect

examination is limited to matters inquired into by the adverse party on cross-examination.

 State v. Wilson, 30 Ohio St.2d 199, 204, 283 N.E.2d 632 (1972).

      {¶42} After careful review of the record in its entirety, we are unable to conclude

that the trial court committed plain error by failing to restrict the scope of redirect

examination.    Mother’s testimony contained numerous references to her romantic

relationship with Thomas, and H.W. testified that Thomas was her mother’s boyfriend.

Thus, notwithstanding the prosecutors question during redirect examination, we find

credible evidence in other portions of the record to establish that H.W. was not Thomas’s

spouse at the time the sexual abuse occurred.     Any perceived error in permitting the

prosecution to question H.W. about her marital status during redirect examination is

therefore harmless.
      {¶43} Finally, Thomas argues the trial court committed prejudicial error by

allowing social worker, Deana Davis, to make a statement of ultimate opinion.

Specifically, Thomas challenges Davis’s affirmative answer when she was asked whether

H.W.’s suicidal attempts began after the sexual abuse occurred.      Thomas claims that

Davis’s response was “in direct contravention of the Ohio Rules of Evidence” because it

was “tantamount to a social worker’s expert opinion that Thomas’s abuse caused H.W. to

have suicidal behavior.”

      {¶44} After reviewing the context in which the challenged statement was made,

we disagree with Thomas’s characterization of Davis’s testimony.      At the time Davis

was questioned about H.W.’s suicide attempts, she was discussing the relevant

information she considered in assessing H.W.’s case, including H.W.’s medical history in

the months following her disclosure of the sexual abuse. Thus, Davis’s testimony that

H.W. attempted suicide after the sexual abuse was alleged to have occurred did not

amount to an expert opinion regarding an ultimate issue. Instead, Davis’s testimony was

a statement of fact based on her review of H.W.’s medical history and background

information. Accordingly, we find no error, plain or otherwise.

      {¶45} Thomas’s second assignment of error is overruled.

                 C. Sufficiency and Manifest Weight of the Evidence

      {¶46} In his third assignment of error, Thomas argues his convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence.
      {¶47} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12.    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. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

      {¶48} In contrast to sufficiency, “weight of the evidence involves the inclination of

the greater amount of credible evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997).    While “sufficiency of the evidence is a test of adequacy as to

whether the evidence is legally sufficient to support a verdict as a matter of law, * * *

weight of the evidence addresses the evidence’s effect of inducing belief.” State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins

at 386-387.   The reviewing court must consider all the evidence in the record, the

reasonable inferences, and the credibility of the witnesses, to determine 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 at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

      {¶49} We are mindful that the weight to be given the evidence and the credibility

of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has
the authority to “believe or disbelieve any witness or accept part of what a witness says

and reject the rest.” State v Antill, 176 Ohio St.61, 67, 197 N.E.2d 548 (1964). “The

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.”   State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

       {¶50} In this case, Thomas was found guilty of five counts of rape in violation of

R.C. 2907.02(A)(1)(b), which states in relevant part:

              No 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.

       {¶51} “Sexual conduct” means 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. R.C. 2907.01(A).

 Penetration, however slight, is sufficient to complete vaginal or anal intercourse. Id.

       {¶52} Thomas’s rape counts contained a furthermore clause that Thomas

purposely compelled H.W. to submit by force or threat of force.         R.C. 2901.01(A)(1)

defines “force” as “any violence, compulsion, or constraint physically exerted by any

means upon or against a person or thing.”      To establish the element of force in a rape

case involving a minor child when the offender stands in a position of authority, neither

express threat of harm nor evidence of significant physical restraint need be proven.

State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763 (1998), paragraph one of the syllabus.
Instead, it is the position of authority and power, in relationship with the child’s

vulnerability, that creates a unique situation of dominance and control in which explicit

threats and displays of force are unnecessary.   State v. Eskridge, 38 Ohio St.3d 56, 526

N.E.2d 304 (1988), paragraph one of the syllabus. Thomas held a position of authority

over H.W. by virtue of his relationship to H.W.’s mother and as the babysitter while

H.W.’s mother was at work.

      {¶53} Thomas was also found guilty of three counts of kidnapping in violation of

R.C. 2905.01(A)(4), which states in relevant part:

              No person, by force, threat, or deception, or, in the case of a victim
      under the age of thirteen or mentally incompetent, by any means, shall
      remove another from the place where the other person is found or restrain
      the liberty of the other person * * * [t]o engage in sexual activity * * * with
      the victim against the victim’s will.
      {¶54} As determined by the jury, Thomas’s convictions related to three separate

instances of sexual abuse (1) the first instance of abuse in Mother’s bedroom involving

vaginal sex and cunnilingus (Counts 1, 2, and 3), (2) the second instance of abuse in

H.W.’s bedroom after her first day of sixth grade (Counts 5 and 6), and (3) a subsequent

instance of abuse in H.W.’s bedroom involving vaginal sex and digital penetration

(Counts 12, 13, and 14).

      {¶55} In challenging the evidence supporting his convictions, Thomas does not

argue that the prosecution failed to prove any of the necessary elements to sustain his

convictions. Instead, Thomas contends that his convictions were based on the testimony

of a untrustworthy victim — a matter not appropriate for a sufficiency challenge.

Indeed, “in a review of the sufficiency of the evidence, the court does not engage in a
determination of the witnesses’ credibility.” State v. Goff, 82 Ohio St.3d 123, 135, 694

N.E.2d 916 (1998). Nonetheless, we find that Thomas’s convictions were supported by

sufficient evidence.

       {¶56} H.W. provided detailed testimony concerning three separate incidents where

Thomas, while acting as an authoritative figure, engaged in sexual conduct with her while

she was 12 years old. H.W. testified that the incidents took place in her mother’s

bedroom and in her bedroom and involved vaginal sex, digital penetration, and

cunnilingus. Moreover, forensic scientist Scott testified that the DNA profile obtained

from a sperm fraction found on H.W.’s bed sheet matched Thomas’s DNA profile.

Similarly, Scott testified that the DNA profile obtained from epithelial fractions found on

the bed sheet were the mixture of two individuals. Scott testified that Thomas’s DNA

profile was a major contributor and that H.W. could not be excluded as a possible source

of the DNA profile in the minor contributor.

       {¶57} Viewing the foregoing evidence in a light most favorable to the

prosecutions, we find a rational trier of fact could have found Thomas guilty beyond a

reasonable doubt on the charges of rape and kidnapping.

       {¶58} Moreover, we are unable to conclude that Thomas’s convictions were

against the manifest weight of the evidence.           As stated, Thomas argues that his

convictions were the product of false testimony and unreliable DNA evidence.               He

claims that the testimony of H.W. was “wrought with unreliability” where she admitted to

a pattern of lying to gain attention and recanted her allegations after she first disclosed the
sexual abuse to her mother.      Thomas further contends that DNA evidence was “flawed”

because it may have been compromised while it was in the basement for over 30 days.

He submits that it is possible that a separate piece of laundry containing his DNA, such as

his own clothing or bedding, may have touched H.W.’s bed sheet while it was in a pile of

dirty clothes in the basement.

       {¶59} Although Thomas maintains his innocence, the jury, as the trier of fact, was

in the best position to weigh the credibility of the witnesses and was free to find H.W.’s

testimony to be credible.     Issues concerning H.W.’s credibility were raised by defense

counsel throughout the trial.      Specifically, the jury was presented with information

concerning specific instances where H.W. made false statements to authoritative figures.

Furthermore, defense counsel questioned Scott at length during cross-examination about

the potential contamination of the bed sheet while it was in the basement. In fact, Scott

admitted that it is possible for DNA to be transferred onto one item from another article

of clothing if, for example, they touched while inside a laundry basket.     Thus, the jury

was presented with all relevant information when weighing the arguments raised by each

side, but, ultimately rejected Thomas’s position. Deferring to the jury’s assessment of

credibility, as we must, we cannot say that the jury clearly lost its way and created such a

manifest miscarriage of justice that the convictions must be reversed and a new trial

ordered.

       {¶60} Thomas’s third assignment of error is overruled.

                                       D. Sentence
       {¶61} In his fourth assignment of error, Thomas argues the trial court committed

prejudicial error by sentencing him to an excessive term of imprisonment.       He contends

that the imposition of a consecutive sentence was the product of judicial bias based on the

trial court’s unhappiness with Thomas’s statements during the sentencing hearing.

       {¶62} “Judicial bias is defined as ‘a hostile feeling or spirit of ill will or undue

friendship or favoritism toward one of the litigants or his attorney, with the formation of a

fixed anticipatory judgment on the part of the judge, as contradistinguished from an open

state of mind which will be governed by the law and facts.’” State v. Miller, 6th Dist.

Lucas No. L-08-1314, 2009-Ohio-3908, ¶ 20, quoting State v. LaMar, 95 Ohio St.3d 181,

2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. “A trial judge is ‘presumed not to be biased or

prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome

the presumption of integrity.’     Weiner v. Kwiat, 2d Dist. Montgomery No. 19289,

2003-Ohio-3409, ¶ 90, quoting Eller v. Wendy’s Internatl., Inc., 142 Ohio App.3d 321,

340, 755 N.E.2d 906 (2000).”     Id. at ¶ 21.   “[T]he appearance of bias or prejudice must

be compelling to overcome these presumptions.” In re Disqualification of George, 100

Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5.

       {¶63}   With respect to the trial court’s statements at the sentencing hearing, we

find no evidence to overcome the court’s presumption of integrity. Although the trial

court vocalized its displeasure with Thomas’s failure to accept responsibility or show

remorse for his actions, we cannot say Thomas’s sentence was the product of “ill will,”

particularly where whether “[t]he offender shows no genuine remorse for the offense” is a
relevant recidivism factor to be considered under R.C. 2929.12(D)(5).            Accordingly, we

find no merit to Thomas’s claim of judicial bias.

       {¶64} Moreover, we are not able to conclude that Thomas’s sentence was

excessive.    In this case, the trial court carefully considered the purposes of and principles

of felony sentencing and imposed individual prison terms for each rape conviction that

complied with the mandatory sentencing provisions of R.C. 2971.03(B)(1)(c).2 The

fact that the trial court ran two of Thomas’s mandatory sentences consecutive to one

another does not render his sentence excessive. See State v. Hairston, 118 Ohio St.3d

289, 2008-Ohio-2338, 888 N.E.2d 1073.

       {¶65} Nevertheless, we find the trial court failed to make the necessary findings

for imposing consecutive sentences pursuant to R.C. 2929.14(C)(4). Under R.C.

2929.14(C)(4), the sentencing judge must make the following findings before imposing

consecutive sentences (1) that consecutive sentences are necessary to protect the public

from future crime or to punish the offender, (2) that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public, and (3) that (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,


       2  R.C. 2971.03(B)(1)(c) requires a trial court to impose “a minimum term of twenty-five
years and a maximum of life imprisonment” upon an offender who commits a violation of R.C.
2907.02(A)(1)(b), and does so by purposely compelling his or her victim to submit by force or threat
of force.
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, or the offender’s

history of criminal conduct demonstrates that consecutive sentences are necessary to

protect the public from future crime by the offender.

       {¶66} “[A] word-for-word recitation of the language of the statute is not required,

and as long as the reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the findings,

consecutive sentences should be upheld.”        State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. The failure to make the findings, however, is

“contrary to law.” Id. at ¶ 37.

       {¶67} In this case, the trial court discussed Thomas’s extensive criminal history

and briefly referenced H.W.’s physical and psychological vulnerability due to her age and

incurable neurological disorder.   However, the only remaining statements the court made

when imposing the consecutive term was that Thomas’s behavior and lack of remorse at

the sentencing hearing, “convinced [the court] to impose a consecutive period of

incarceration.”   While Thomas’s reluctance to accept responsibility for his conduct is

certainly a relevant factor in imposing a felony sentence, the court’s failure to make the

first and second findings under R.C. 2929.14(C)(4) rendered the sentence contrary to law.
       {¶68} Accordingly, we sustain Thomas’s fourth assignment of error.

                                     III. Conclusion

       {¶69} Based on the foregoing, we affirm Thomas’s convictions but vacate his

sentence and remand to the trial court for the limited purpose of considering whether

consecutive sentences are appropriate, and, if so, to make the findings required by R.C.

2929.14(C)(4) on the record and to incorporate those findings into the sentencing entries.

       {¶70} Judgment affirmed in part, reversed in part, and cause remanded to the

lower court for proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the 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. 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.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
