[Cite as State v. Miller, 2018-Ohio-3481.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 17 CAA 08 0062
SHAWN M. MILLER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 16 CR I 09 0438


JUDGMENT:                                       Affirmed in Part and Reversed in Part



DATE OF JUDGMENT ENTRY:                         August 28, 2018



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

CAROL HAMILTON O'BRIEN                           CRAIG M. JAQUITH
PROSECUTING ATTORNEY                             ASSISTANT PUBLIC DEFENDER
DOUGLAS N. DUMOLT                                250 East Broad Street
ASSISTANT PROSECUTOR                             Suite 1400
140 N. Sandusky Street, 3rd Floor                Columbus, Ohio 43215
Delaware, Ohio 43015
Delaware County, Case No. 17 CAA 08 0062                                                   2

Wise, P. J.

       {¶1}   Defendant-Appellant Shawn M. Miller appeals his conviction on two counts

of rape entered in the Delaware County Common Pleas Court following a jury trial.

       {¶2}   Plaintiff-Appellee State of Ohio has also filed a cross-appeal in this matter.

                                  STATEMENT OF THE CASE

       {¶3}   On Sunday, August 28, 2016, twelve-year-old T.A. resided at 135 Ross St.

in Delaware, Ohio, with her grandmother Dolly Broyles-Miller, step-grandfather Shawn

Miller, her brother J.A., and several other family members. (T. at 871-872). J.A. testified

that Sunday afternoon, T.A. approached him on the bike path behind their home. (T. at

875). He explained T.A. was acting "nervous," "jittery," "upset," "shaking," and kept

looking back at the house. (T. at 876-879). He explained that he could tell something was

bothering her and had not seen her like this before. (T. at 876). T.A. then asked her

younger brother to leave so she could speak privately with J.A. (T. at 878).

       {¶4}   Once her younger brother was out of earshot, T.A. explained to J.A. that

earlier in the day Miller had asked T.A. to go into his bedroom. While inside the room,

Miller held her down and pulled her pants off. Miller then went into the bathroom and

retrieved white cream that he rubbed on T.A.'s private parts and licked it off. (T. at 880).

J.A. explained that T.A.'s statements made him angry. This prompted them to run away

in an effort to go find their mother, who resided elsewhere in Delaware. (T. at 884-885).

The children eventually located their mother in the parking lot of a gas station in Delaware.

(T. at 887). At that time, T.A. informed her mother Miller had sexually abused her. T.A.'s

mother departed and reported this information to the Delaware Police Department.
Delaware County, Case No. 17 CAA 08 0062                                                      3


        {¶5}   Detective Michael Bolen of the Delaware Police Department was assigned

to investigate the allegations. (T. at 1085). Det. Bolen made contact with T.A. and J.A. at

135 Ross St. He asked T.A. to speak with him in an area that would afford them more

privacy than inside the home. (T. at 1090). During a brief series of questions near the bike

path, T.A. became visibility upset. T.A. stood before him silent, covered her face with her

hands, and began to silently weep. (T. at 1092). At that point T.A. informed Det. Bolen

that Miller had hurt her by touching her privates. (T. at 1093). T.A. stated Miller touched

both the inside and outside of her private. T.A. also stated that Miller had put his private

inside of her private. Finally, T.A. stated all of this conduct occurred earlier in the day. (T.

at 1093-1094).

        {¶6}   After speaking with T.A. and J.A,, Det. Bolen arrested Miller and continued

his investigation.

        {¶7}   On September 7, 2016, Appellee was indicted for allegedly committing ten

sexually oriented offenses against T.A. (Jane Doe 1), M.B (Jane Doe 2), and J.B. (John

Doe).

        {¶8}   On February 1, 2017, the matter proceeded to trial for the first time. On

February 9, 2017 the jury returned not guilty verdicts on two counts of gross sexual

imposition relating to T.A. and all of the counts relating to M.B. The jury was unable to

reach verdicts on the remaining counts.

        {¶9}   On April 18, 2017, the matter proceeded to trial for the second time on the

remaining four counts. On May 2, 2017, the jury returned not guilty verdicts on the two

counts relating to J.B., but was again unable to reach a verdict on the two counts alleging
Delaware County, Case No. 17 CAA 08 0062                                                       4


Appellee raped T.A. A mistrial was again declared on Counts 1 and 2, and those counts

were again tried on July 11, 2017.

       {¶10} In the first trial, T.A. testified to a detailed account of the sexual abuse.

However, in the third trial, T.A. became visibly upset during her testimony. Although T.A.

would answer some questions unrelated to her abuse, when questioned about the abuse

she cried silently to herself. (T. at 977-1005). After a persistent refusal to answer

Appellee's questions, the court instructed T.A. that she should answer the questions. (T.

at 950). When T.A. continued to sit silent while Appellee questioned T.A. regarding the

sexual abuse, the trial was recessed for the day. The next morning T.A. continued to

remain silent when questioned about the sexual abuse. This led the court to directly order

T.A. to answer Appellant's questions. (T. at 1003). When T.A. continued to sit silent during

questioning, the court found T.A. unavailable as a witness pursuant to Evid.R. 804(A)(2).

(T. at 977-979, 1006). Accordingly, a portion of T.A.'s testimony from the first trial was

read to the jury. See T. at 1006-1008.

       {¶11} T.A. testified that on the afternoon of August 28, 2016, Shawn Miller

sexually abused her. T.A. (T. at 15). She explained that Miller had called her back into

her bedroom; he closed and locked the door behind her. T.A. (T. at 16). T.A. testified she

was scared and that Miller locking the door was not a "good sign." T.A. (T. at 17). T.A.

then testified that Miller removed her pants, held her down, and proceeded to "do it." T.A.

(T. at 18). After explaining what her private parts are called to the jury, T.A. testified Miller

retrieved an unknown white substance from the bathroom and licked it off of her vagina.

T.A. (T. at 19). T.A. then testified Miller tried to put his penis in her private part. T.A. (T.

at 20:11-25. T.A. further testified that Miller took his finger and tried to stick it into her
Delaware County, Case No. 17 CAA 08 0062                                                    5


vagina. T.A. (T. at 21). The assault ended when T.A. yelled and her aunt knocked on the

door to Miller's bedroom. T.A. (T. at 22).

         {¶12} During the third trial, after the State rested its case but prior to Appellee's

motion for acquittal pursuant to Crim. R. 29, the court conducted a sua sponte inquiry into

the conduct Appellant alleged was encompassed by each count of the indictment. (T. at

1295).

         {¶13} The State explained the conduct supporting count one was vaginal

penetration of T.A. by any body part of Miller (either his penis or his finger). (T. at 1295).

The State explained the conduct supporting count two was cunnilingus performed on T.A.

by Miller. (T. at 1299).

         {¶14} The court expressed skepticism that the State could allege count one

encompassed multiple acts of sexual conduct and required it to elect which sexual act

constituted the conduct underlying count one. The State informed the court, if forced to

choose, it would proceed only on digital penetration. The court later explained that Miller's

penetration of T.A.'s vagina with his penis was no longer "at issue in this case." (T. at

1303). The jury was ultimately instructed, and the State was required to argue, that the

only sexual conduct supporting count one was Miller's insertion of a finger into T.A.'s

vagina. (T. at 1643).

         {¶15} After its colloquy with the State, the court addressed Miller's motion for

acquittal pursuant to Crim.R. 29. The court denied Miller's motion and recessed the trial

for the weekend.

         {¶16} Before Miller commenced his case the following Monday, the court went on

the record and offered a number of statements in defense of its decision limiting count
Delaware County, Case No. 17 CAA 08 0062                                                      6


one of the indictment to the allegation of digital penetration. (T. at 1322-1328). The court

explained it did not "think it would be fair" to Miller to allow the State to argue multiple

modes of sexual conduct with respect to count one. (T. at 1326). The court explained that

because "this is a two count rape case, not a three count rape case ... I think it only fair

and right that the prosecution be compelled to specify which two rape allegations it will

be asking the jury to vote on." (T. at 1328). The court stated it considered the matter

"settled." (T. at 1326). After the State clarified that the court's ruling would not preclude it

from referencing the now uncharged conduct during closing argument, Miller presented

his case. (T. at 1328).

       {¶17} The jury was ultimately instructed that, as it pertained to count one, sexual

conduct was "the insertion -however slight- of a finger into the vaginal or anal opening of

another person without privilege to do so." (T. at 1643). With respect to count two of the

indictment, the jury was instructed that sexual conduct was "cunnilingus between persons

regardless of their gender." (T. at 1648). After the completion of instructions and

deliberations, the jury found Appellee guilty on both counts with the additional findings set

forth in the indictment. The jury further found Miller compelled T.A. to submit by force or

threat of force.

       {¶18} On July 27, 2017, the court sentenced Miller to an indefinite term of

imprisonment of twenty-five (25) years to life on each count. After making the requisite

findings, the court ordered those sentences to be served consecutively.

       {¶19} Both parties now appeal, assigning the following errors for review:
Delaware County, Case No. 17 CAA 08 0062                                            7


                                ASSIGNMENTS OF ERROR

       {¶20} “I.   MR.   MILLER'S   TRIAL       COUNSEL   RENDERED     INEFFECTIVE

ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.

SIXTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION;

ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION; STRICKLAND V.

WASHINGTON, 466 U.S. 668, 104 S.CT. 2052, 80 L.ED.2D 674 (1984).

       {¶21} “II. APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION. STATE V. THOMPKINS, 78 OHIO ST.3D 380, 387,

678 N.E.2D 541 (1997).”

                                    CROSS-APPEAL

       {¶22} “I. THE TRIAL COURT ERRED WHEN IT DISMISSED THE PORTION OF

COUNT ONE ALLEGING APPELLEE ENGAGING IN VAGINAL INTERCOURSE WITH

T.A.

             “A. DOES CRIM. R. 7(B) PERMIT THE STATE TO INDICT A DEFENDANT

       FOR MULTIPLE ACTS OF SEXUAL CONDUCT IN A SINGLE COUNT OF AN

       INDICTMENT?

             “B. DOES R.C. 2941.28 PRECLUDE A TRIAL COURT FROM DISMISSING

       "DUPLICITOUS" PORTIONS OF AN INDICTMENT?”

                                                I.

       {¶23} In his first assignment of error, Appellant argues that he was denied the

effective assistance of counsel. We disagree.
Delaware County, Case No. 17 CAA 08 0062                                                   8


        {¶24} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180 (1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

        {¶25} Counsel is unconstitutionally ineffective if his performance is both deficient,

meaning his errors are “so serious” that he no longer functions as “counsel,” and

prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v. Kulbicki,

577 U.S. ––––, 2015 WL 5774453 (Oct. 5, 2015) (citing Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))

        {¶26} Here, Appellant argues that his counsel was ineffective for failing to object

to statements made by Candell Looman and Detective Bolen with regard to T.A.’s

credibility.

        {¶27} Specifically, Appellant takes issue with the following statements made by

Ms. Looman on direct examination:

                 Q: So you've seen children who have been through a lot over the

        years?

                 A: Absolutely.

                 Q: And you've had an opportunity to observe their behaviors and

        demeanors and things like that?

                 A: Yes.
Delaware County, Case No. 17 CAA 08 0062                                             9


           Q: Were some of the observations you made of [T.A.] at that point

     concerning to you?

           A: Yes.

           Q:      Did    those   observations     influence    your    treatment

     recommendations and your, that you provided in this case?

           A: Yeah. I referred [T.A.] to The Center for Family Safety and Healing

     to their family support program. It's a program that is trauma focused but it

     specifically works with children who have been sexually abused.

           (T. at 356).

           Q: As part of your work on the treatment team, you mentioned

     something about the Nationwide Family Support Program, why do you order

     that? Why did you think that was medically appropriate to recommend it I

     should say?

           A: Based on the, my observations of how [T.A.] was interacting with

     our interviewer, along with the simple fact that she didn't have family

     present, we, I felt and in corresponding with the team that she, she really

     needed a trauma focused counseling that can specialize in sexual abuse,

     so the best program that I know of is there at The Center for Family Safety

     and Healing.

           Q: Do you order that in every case?

           A: No.

           (T. at 360).
Delaware County, Case No. 17 CAA 08 0062                                                10


      {¶28} Appellant argues that these statements amounted to Ms. Looman telling

the jury that she believed T.A.’s allegations that she was sexually abused.

      {¶29} Appellant's trial counsel cross-examined Ms. Looman on this issue:

             Q: Your opinions yesterday about [T.A.’s] body language, you said

      that you’ve had just a class or two in child psychology?

             A. I don’t know how many classes I have had.

             Q: Okay. But certainly not enough to make yourself an expert on

      body language interpretation or anything like that?

             A: I would not say I’m an expert, no.

             Q: So really those are, what you talked about yesterday were just

      kind of your thoughts on what you thought [T.A.] might be experiencing?

             A: It would be my, my, the training that I have as well as the years of

      experience I’ve had working with children.

             Q: You’re also basing that on a key assumption that [T.A.’s]

      allegations are true, correct?

             A: No.

             ***

             A: I don’t – it’s not my job to determine if she is telling the truth or

      not.

             Q: And you don’t have any personal knowledge one way or the other,

      correct?

             A: Correct.

             ***
Delaware County, Case No. 17 CAA 08 0062                                             11


           Q: And, in fact, your training specifically says you’re not supposed to

     make that determination, right?

           A: No, it is not our job.

           Q: Not only not your job but you’re specifically not supposed to make

     that determination.

           A: I’m sorry, I guess I’m confused by your question

           Q:   Your training says that you are not supposed to make any

     conclusion about the truth or veracity of the child’s statements?

           A: Correct, that is not our job.

           Q: But you’re basing your conclusions on that assumption, that

     assumption that she’s being truthful, aren’t you?

           A: I would not say I’m basing my conclusions based on an

     assumption of the truth.

           (T. at 431-433).

     {¶30} On re-direct, Ms. Looman went on to explain:

           Q: You said you weren’t basing it on an assumption that she was

     telling the truth. Did you see things, based upon, that were consistent with

     your training and experience that would suggest that she had experienced

     some sort of trauma?

           A: Yes.

           Q: You can’t say obviously what type of trauma that was, fair

     enough?

           A: No.
Delaware County, Case No. 17 CAA 08 0062                                                   12


               Q: But the things you testified about yesterday regarding demeanor,

       behavior, which lead to your medical referral or medical, I guess referral to

       the, for sexual abuse counseling, those are the types of things that you were

       looking at to make that determination?

               A: Absolutely. (T. at 433).

       {¶31} An expert may not testify as to the expert's opinion of the veracity of the

statements of a child declarant. State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220

(1989). However, an expert may provide testimony that bolsters or supports “the truth of

the facts testified to by the child, or which assists the fact finder in assessing the child's

veracity.” State v. Stowers, 81 Ohio St.3d 260, 262–263, 690 N.E.2d 881 (1998).

       {¶32} Here, on cross-examination, Ms. Looman repeatedly denied that she was

making any assumption as to the truth of T.A.'s allegations. Rather, she explained to the

jury that certain observations of T.A.'s behavior were consistent with the experience of

some sort of trauma. (T. at 433). Ms. Looman stated she could not say what type of

trauma T.A. experienced which resulted in her exhibiting the non-specific symptoms of

trauma she observed. (T. at 433). Ms. Looman properly testified as to her observations

and the treatments she recommended based on those observations. At no time during

her testimony did she express an opinion that T.A. was telling the truth or comment on

her credibility or veracity.

       {¶33} Based on the above, we do not find counsel ineffective for making the

strategic decision to reveal possible bias of the witness on cross-examination. Tactical or

strategic trial decisions, even if ultimately unsuccessful, do not generally constitute

ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
Delaware County, Case No. 17 CAA 08 0062                                                  13


       {¶34} Appellant also argues that counsel was ineffective in allowing the jury to

hear parts of Detective Bolen’s interview with Appellant. Appellant argues that counsel

should have objected and requested redactions as to two portions of the interview. The

first is where Det. Bolen told Appellant that he believed “something happened” and later

when Det. Bolen told Appellant that he did not want to call him a liar but that he did not

believe Appellant was being truthful.

       {¶35} Appellant argues that his counsel was ineffective because rather than

object, counsel drew the jury’s attention to Det. Bolen’s opinion regarding Appellant’s

untruthfulness:

              Counsel: He knows at that moment – and I think it’s a significant

       moment too because it’s the moment that it becomes real obvious to Shawn

       that you don’t believe him, you’re not going to believe him, and he’s not

       going to convince you otherwise because you already made your mind up,

       didn’t you, detective? (T. at 1251).

       {¶36} Upon review, we find that Det. Bolen admitted in his testimony that he used

standard deceptive techniques during the interview, such as lying, exaggerating and/or

minimizing the seriousness of the allegations. (Tr. 1231-1236, 1239-1241). We find that

such admissions lessen any potential prejudicial effect of the statements. It also shows

that the statements were not provided to prove the truth of the matter asserted; but rather,

to show Appellant's response to the officer's allegations.

       {¶37} We further find that trial counsel’s decision to draw the jury’s attention to

those portions of Appellant's interview with police could also be a trial tactic used so that

the defense could establish bias or loss of objectivity.
Delaware County, Case No. 17 CAA 08 0062                                                14


       {¶38} Based on the foregoing, we do not find that Appellant’s counsel was

ineffective in his representation of Appellant at trial.

       {¶39} Appellant’s first assignment of error is overruled.

                                                  II.

       {¶40} In his second assignment of error, Appellant argues that his convictions

were against the manifest weight of the evidence. We disagree.

       {¶41} On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–

Ohio–52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” Martin at

175.

       {¶42} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶43} In the case sub judice, Appellant was convicted of two counts of Rape of a

person who is less than thirteen years old, in violation of R.C. 2907.02, which provides,
Delaware County, Case No. 17 CAA 08 0062                                                   15


              (A)(1) No person shall engage in sexual conduct with another who is

       not the spouse of the offender or who is the spouse of the offender but is

       living separate and apart from the offender, when any of the following

       applies:

              ***

              (b) The other person is less than thirteen years of age, whether or

       not the offender knows the age of the other person.

       {¶44} “Sexual conduct” is defined to include “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 cavity of another.

Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.

2907.01(A).

       {¶45} In the case at bar, the jury heard all of the witnesses, including the victims

and the investigating officer, viewed all of the evidence, including the medical evidence,

and heard Appellant’s attorney's arguments. The jury was able to see and hear T.A. and

J.A. during their testimony. Thus, a rational basis exists in the record for the jury's

decision.

       {¶46} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. “While the trier of fact

may take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
Delaware County, Case No. 17 CAA 08 0062                                                 16

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n. 4,

684 N.E.2d 668 (1997).

       {¶47} We find that this is not an “ ‘exceptional case in which the evidence weighs

heavily against the conviction.’ ” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Appellant of rape of

a person less than thirteen years of age.

       {¶48} Based upon the foregoing and the entire record in this matter, we find

Appellant's conviction on two counts of rape of a person less than thirteen years of age

is not against the manifest weight of the evidence. To the contrary, the jury appears to

have fairly and impartially decided that matter. The jury heard the witnesses, evaluated

the evidence, and was convinced of Appellant’s guilt.

       {¶49} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witnesses' credibility. “While the jury may take note of the
Delaware County, Case No. 17 CAA 08 0062                                                  17


inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. McGregor, 5th Dist. Ashland No. 15–COA–023, 2016–Ohio–3082,

2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000

WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness'

testimony, but may accept only portions of it as true. Id. Our review of the entire record

reveals no significant inconsistencies or other conflicts in the State's evidence which

would demonstrate a lack of credibility of the witnesses sufficient to find the jury lost its

way to finding Appellant guilty.

       {¶50} Based on the foregoing, together with all of the evidence presented, we find

that the jury did not lose its way in finding Appellant guilty beyond a reasonable doubt.

       {¶51} Appellant's second assignment of error is overruled.

                                          Cross-Appeal

       {¶52} In its sole-assignment of error, Cross-Appellant argues the trial court erred

in dismissing a portion of count one. We agree.

       {¶53} In the case sub judice, the trial court, sua sponte, at the close of the State’s

case, required the State to specify which specific act of sexual conduct it would be

proceeding on under count one in the indictment. The court required the State to choose

between digital or penile penetration.

       {¶54} While the trial court did not use the term, it appears it found that count one

was duplicitous.

       {¶55} “Duplicity in an indictment is the joinder of two or more separate offenses in

a single count.” State v. Abuhilwa, 9th Dist. Summit No. 16787, 1995 WL 134746, *5,
Delaware County, Case No. 17 CAA 08 0062                                                   18


1995 Ohio App. LEXIS 1260, *14 (Mar. 29, 1995). “The prohibition against duplicity is

geared to protect the accused's Sixth Amendment right to notice of the nature of the

charge against him and prevent confusion as to the basis of the verdict.” State v. Smith,

9th Dist. Summit No. 8869, 1978 WL 215411, 1978 Ohio App. LEXIS 8415 (Oct. 4, 1978);

see generally Cooksey v. State, 359 Md. 1, 752 A.2d 606, 609–618 (Md.App.2000). The

fact that an indictment is duplicitous, however, does not compel its dismissal. R.C.

2941.28(B). “Instead, the trial court may sever the indictment into separate indictments or

separate counts.” State v. Ward, 9th Dist. Lorain No. 09CA009720, 2011-Ohio-518, ¶ 5.

Alternatively, the court may give an instruction on unanimity to the jury. State v. Johnson,

46 Ohio St.3d 96, 104–105, 545 N.E.2d 636 (1989); State v. Miller, 9th Dist. Lorain Nos.

10CA009922, 2012-Ohio-1263, ¶ 26.

       {¶56} We note that because Appellant was convicted of count one, this issue is

moot. Nevertheless, we will address the issue raised by cross-appellant because it is an

issue that is capable of repetition, yet evading review. See State ex rel. Beacon Journal

Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173, 175, quoting State ex rel. Plain

Dealer Publishing Co. v. Barnes (1988), 38 Ohio St.3d 165, paragraph one of the syllabus.

       {¶57} Upon review, we find the Ohio Supreme Court in State v. Thompson, 33

Ohio St.3d 1 (1987), reviewed this issue and found:

              [R.C. 2907.02] simply does not require, as appellant asserts, that a

       specific finding be made as to the type of rape. Consequently, it was not

       error for the trial court to refuse to instruct the jury that it must make such a

       specific finding. The fact that some jurors might have found that appellant

       committed one, but not the other, type of rape in no way reduces the
Delaware County, Case No. 17 CAA 08 0062                                               19


       reliability of appellant's conviction, because a finding of either type of

       conduct is sufficient to establish the fact of rape in Ohio.

       {¶58} More recently, on State v. Gardner, 118 Ohio St.3d. 420, 2008-Ohio-2787,

the Ohio Supreme Court explained:

              Although Crim.R. 31(A) requires juror unanimity on each element of

       the crime, jurors need not agree to a single way by which an element is

       satisfied. Richardson v. United States (1999), 526 U.S. 813, 817, 119 S.Ct.

       1707, 143 L.Ed.2d 985. Applying the federal counterpart of Crim.R. 31(A),

       Richardson stated that a “jury need not always decide unanimously which

       of several possible sets of underlying brute facts make up a particular

       element, say, which of several possible means the defendant used to

       commit an element of the crime.

       {¶59} We find, in this case, that the State should not have been precluded from

arguing that Cross-Appellee engaged in more than one act of sexual conduct under count

one.

       {¶60} We further note that the appropriate remedy for a duplicitous indictment, as

stated above, is severance of the indictment into separate indictments or separate counts,

not dismissal of that portion of the indictment.
Delaware County, Case No. 17 CAA 08 0062                                             20


       {¶61} Accordingly, we sustain Cross-Appellant’s assignment of error. However,

since Cross-Appellee was convicted of rape under count one, this ruling has no effect on

him.

       {¶62} The decision of the Delaware County Court of Common Pleas is affirmed in

part and reversed in part.



By: Wise, P. J.

Gwin, J., and

Baldwin, J., concur.




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