[Cite as State v. Rowe, 2018-Ohio-5066.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


 STATE OF OHIO,                                     :      OPINION

                   Plaintiff-Appellee,              :
                                                           CASE NO. 2017-L-170
         - vs -                                     :

 BRIAN A. ROWE,                                     :

                   Defendant-Appellant.             :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR
 001053.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, OH 44077 (For Plaintiff-Appellee).

 Brandon J. Henderson, Justin M. Weatherly, and Kenneth Staiduhar, Henderson,
 Mokhtari & Weatherly Co., LPA, 3238 Lorain Avenue, Cleveland, OH 44113 (For
 Defendant-Appellant).



THOMAS R. WRIGHT, P.J.



        {¶1}      Appellant, Brian Rowe, appeals his convictions for two counts of rape and

one count of gross sexual imposition. We affirm.

        {¶2}      Rowe’s assignments of error are addressed collectively:
      {¶3}   “[1.] The evidence presented at trial [is] insufficient as a matter of law to

support a finding beyond a reasonable doubt that the appellant was guilty of rape and

gross sexual imposition.

      {¶4}   “[2.] Appellant’s convictions for rape and gross sexual imposition [are]

against the manifest weight of the evidence.”

      {¶5}   Whether evidence is legally sufficient is a question of law that we review de

novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541 (1997),

citing State v. Robinson, 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148 (1955). An

appellate court reviewing the sufficiency of the evidence examines the evidence and

determines whether, upon viewing the evidence in a light most favorable to the state, 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, 273, 574 N.E.2d 492 (1991);

Thompkins, supra, 390.

      {¶6}   “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘“thirteenth juror”’ and disagrees with the factfinder's resolution of the conflicting

testimony. * * * State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485

N.E.2d 717, 720-721 (‘The court, reviewing the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of witnesses and determines whether

in resolving conflicts in the evidence, the jury clearly lost its way and created such a

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

ordered. The discretionary power to grant a new trial should be exercised only in the




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exceptional case in which the evidence weighs heavily against the conviction.’)” (Citations

omitted.) Thompkins, supra, at 387.

       {¶7}   If the trial court’s judgment results from a jury trial, it can only be reversed

on manifest weight grounds by a unanimous concurrence of all three judges on the

appellate panel reviewing the case. Id. at 389. The fact that the evidence is susceptible

to more than one interpretation does not render a conviction against the manifest weight

of the evidence. State v. Ramey, 2d Dist. Clark No. 2014-CA-127, 2015-OhiO-5389, 55

N.E.3d 542, ¶50, appeal not allowed, 145 Ohio St.3d 1458, 2016-Ohio-2807. “Because

the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's

decisions whether, and to what extent, to credit the testimony of particular witnesses.” Id.

at ¶51.

       {¶8}   And a finding that a conviction is supported by the weight of the evidence

“‘necessarily rests on the existence of sufficient evidence.’” State v. Pesec, 11th Dist.

Portage No. 2006-P-0084, 2007-Ohio-3846, ¶44, quoting State v. McCrory, 11th Dist.

Portage No. 2006-P-0017, 2006-Ohio-6348, at ¶40.

       {¶9}   Following jury trial, Rowe was convicted of one count of gross sexual

imposition in violation of 2907.05(A)(4), which states:

       {¶10} “No person shall have sexual contact with another, not the spouse of the

offender; cause another, not the spouse of the offender, to have sexual contact with the

offender; or cause two or more other persons to have sexual contact when any of the

following applies:

       {¶11} “* * *




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       {¶12} “(4) The other person, or one of the other persons, is less than thirteen years

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

       {¶13} “‘Sexual contact’ means any touching of an erogenous zone of another,

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

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

2907.01(B).

       {¶14} Rowe was also convicted of two counts of rape in violation of R.C.

2907.02(A)(1)(b), which states:

       {¶15} “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:

       {¶16} “* * *

       {¶17} “(b) The other person is less than thirteen years of age, whether or not the

offender knows the age of the other person.”

       {¶18} Sexual conduct includes fellatio. R.C. 2907.01(A).

       {¶19} Rowe dated a woman named Jennifer and eventually moved in with her.

Jennifer had four children. She had two daughters, A.P. and I.L., and a son, C.P., from

prior relationships. Rowe is the father of Jennifer’s third and youngest daughter, W.R.

Jennifer, her children, and Rowe lived together with Jennifer’s mother, Elizabeth, in her

single-family home in Willowick, Ohio.

       {¶20} Rowe moved in with Jennifer sometime in 2012 and permanently moved

out in approximately March of 2015. The sexual abuse claims against him were disclosed

in February of 2016, almost a year after Rowe left.




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      {¶21} Rowe contends the evidence presented at trial is insufficient to establish

that he committed the three offenses and alternatively that his convictions are against the

manifest weight of the evidence. He argues that Jennifer’s other boyfriend Chris was the

abuser, but that because she did not report the abuse, and not wanting to get in trouble,

directed the girls to identify Rowe. Rowe also claims the girls identified him as their

assailant at the direction of their mother to prevent him from gaining custody of W.R.

There was no evidence that Jennifer told her daughters’ to lie. Instead, Rowe’s defense

relied on the unchallenged testimony that Jennifer was an alcoholic, an abusive mother,

and usually got her way.

      {¶22} The gross sexual imposition offense involves Jennifer’s oldest daughter,

A.P. and the rape offenses involve Jennifer’s middle daughter, I.L. We address each

conviction and the arguments relative to each separately and then collectively consider

Rowe’s omnibus argument, which points to Jennifer’s other boyfriend as the girls’ abuser.

      {¶23} As for Rowe’s gross sexual imposition conviction, A.P. testified that she was

15 at the time of trial in October of 2017. She was born in September of 2002. A.P.

identified Rowe as her sister’s father and identified him in the courtroom as the man who

sexually abused her.

      {¶24} On one occasion in 2014 when A.P. was eleven or twelve years old, A.P.’s

mother sent her to the garage to get something and Rowe was there. A.P. was locked

out of the house. Rowe had placed several outdoor furniture cushions and a blanket

together to form a bed in the garage. He grabbed A.P. and pulled off her leggings and

underwear. He had his pants around his ankles and then forced A.P. on her stomach on

the makeshift bed before he began rubbing his privates against her vagina. A.P. resisted,




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got away, and immediately put her clothes back on. She left the garage and walked

around the block. When she returned, Rowe was gone, and A.P. ended up sleeping on

the sidewalk outside of the garage.

       {¶25} This testimony alone provides sufficient evidence to support that Rowe had

sexual contact with A.P., i.e., rubbing his privates on her vagina, for his sexual gratification

while A.P. was under the age of 13 during the time alleged.

       {¶26} A.P. also described Rowe waking her up in the middle of the night numerous

times during which he rubbed and groped her privates. She recalls this activity beginning

a few months after Rowe moved into their home, occurring once or twice a week, and

continuing until Rowe moved out. A.P. did not tell anyone about the abuse because she

was afraid of her mother’s reaction. Her mother was mentally, physically, and verbally

abusive to her children, and had previously accused A.P. of flirting with and stealing her

boyfriends.

       {¶27} Rowe directs our attention to A.P.’s testimony that he abused her multiple

times during 2014 to 2015 as demonstrating that he could not have committed the gross

sexual imposition offense because Rowe permanently moved out of the home in March

of 2015 and was frequently absent for weeks or months at a time during 2014. The parties

stipulated that Rowe was not present at the home from June 22, 2014 through September

20, 2014, and from August 22, 2015 to the date of trial, October 30, 2017.

       {¶28} The indictment as amended alleges the gross sexual imposition occurred

between July 1, 2014 and August 1, 2015, a period of 13 months. While Rowe was absent

from the house for many months during the charged timeframe, it is abundantly clear that




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he was also living in the home for many of those months.              He cannot, therefore,

persuasively argue that he could not have been the culprit.

       {¶29} Furthermore, the precise date of an offense is not an essential element of

a crime. State v. Barnecut , 44 Ohio App.3d 149, 542 N.E.2d 353 (1988); State v. Mundy,

99 Ohio App.3d 275, 296, 650 N.E.2d 502 (2d Dist.1994). Instead, the state must offer

proof of the offense occurring “reasonably within the time frame alleged.”            State v.

Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282, ¶50, quoting State v.

Bogan, 8th Dist. Cuyahoga No. 84468, 2005-Ohio-3412, ¶10. Here, the state met its

burden in this regard upon presenting A.P.’s testimony about the incident in the garage

in 2014.

       {¶30} Additionally, it is common for young victims not to remember the precise

date of an offense especially when the offense involves a repeated course of conduct

over time. Mundy, supra. This inability to recall a certain date goes to a witness’ credibility

for the jury to assess. State v. Fitzpatrick, 11th Dist. Portage No. 2009-P-0016, 2009-

Ohio-3942, ¶19. Accordingly, we disagree that the jury lost its way and created a manifest

miscarriage of justice. Rowe’s manifest weight of the evidence argument regarding his

gross sexual imposition offense lacks merit.

       {¶31} As for Rowe’s two rape convictions, I.L. testified via closed circuit television

that she was nine years old at the time of trial. And as Rowe contends, I.L. was unable

to identify him as an individual seated in the courtroom while she was looking through the

television monitor during trial. When asked if she could see him in the courtroom through

the television monitor, I.L. said, “It’s hard to see. No. I don’t see him. I don’t really see

him.” However, I.L. testified that she knew that Brian Rowe was the person that forced




                                              7
his penis in her mouth when she was only five or six. She identifies him by first and last

name. I.L. also correctly describes Rowe as her baby sister’s father.

      {¶32} I.L. described one time when Rowe had a blanket over her head while she

was sitting on the floor of her mother’s bedroom that she shared with Rowe. Her mother

was asleep when Rowe pulled his pants down and made I.L. perform oral sex on him.

She recalled being nervous at the time and described him using his hands to tilt her head.

I.L. remembers him saying, “Don’t tell anybody that I did this.” He then carried I.L. back

to her bed.

      {¶33} On another occasion, I.L. recalls Rowe waking her up when she was in her

bed. She describes him kneeling on her bed and making her perform oral sex. She said

this happened more than once in her bedroom and once in her mother’s room. I.L. was

either five or six years old at the time of the offenses. She also testified about one time

that she went camping with her family and Rowe. She recalls a playground and playing

horseshoes.

      {¶34} I.L.’s testimony is sufficient to establish that Rowe twice raped her by

making her engage in sexual conduct, i.e., performing oral sex on him, while she was less

than 13 years old.

      {¶35} Rowe directs our attention to I.L.’s testimony that her abuser lived with them

at the time she disclosed her abuse to her family and her statement that Rowe fled the

home to avoid confrontation as showing he could not be her abuser because he did not

reside with the family at the time. Rowe also claims that I.L.’s testimony that the man

who abused her went camping with the family was evidence that someone other than

Rowe was her abuser. However, the inconsistency in I.L.’s testimony goes to the weight




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of her testimony, which the jury considered in assessing her credibility. Moreover, both

I.L. and A.P. testified about a camping trip involving Rowe.

       {¶36} Rowe also points to I.L.’s inability to physically identify him during the trial

as showing the state’s evidence is insufficient to identify him as the individual who twice

raped her. We disagree. Again, I.L. correctly referred to him by name and identified him

as her baby sister’s father. Further, she described having difficulty seeing through the

monitor while attempting to identify Rowe in the courtroom. Thus, the jury was aware of

her inability to identify him that day, but nevertheless believed her testimony and

identification, and her inability to physically identify him at trial goes to the weight of the

evidence.

       {¶37} A jury is free to believe all, some, or none of the testimony of each witness

appearing before it. State v. Thomas, 11th Dist. Lake No. 2004-L-176, 2005-Ohio-6570,

¶29. It is the jury’s function to assess and weigh witness credibility, decide what it

believes, and render a verdict consistent with its assessment of the evidence. Id.

       {¶38} As stated, Rowe’s predominant defense at trial and his omnibus argument

on appeal is that he was not the girls’ abuser, but that it was their mother’s other boyfriend

Chris who committed the crimes and that she instructed the girls to lie. Rowe points out

that there was evidence of a prior investigation in 2011 into alleged sexual abuse by

Jennifer’s boyfriend Chris. However, while there was testimony that a prior investigation

occurred regarding Chris, the case was closed without charges being filed. Further, the

evidence at trial about this prior investigation was cryptic.       There was no evidence

detailing what precipitated the 2011 investigation into Chris and no evidence that the girls




                                              9
made sexual abuse allegations against him. Thus, the abuse claims are unsubstantiated,

and this was before the jury for it to consider.

       {¶39} Moreover, Rowe never called Jennifer to testify to ask her if she instructed

the girls to lie about who did this to them. He likewise did not ask either of the girls on

cross-examination if their mother told them to lie about the identity of their abuser. This

is not an exceptional case in which the evidence weighs heavily against the conviction,

and we cannot find that the jury lost its way.

       {¶40} Accordingly, Rowe’s assignments of error lack merit and are overruled. The

trial court’s decision is affirmed.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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