[Cite as State v. Robinson, 2019-Ohio-4458.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 107950
                 v.                                  :

SAMUEL ROBINSON,                                     :

                 Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: October 31, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-620857-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kerry A. Sowul, Assistant Prosecuting
                 Attorney, for appellee.

                 Michael H. Peterson and Thomas A. Rein, for appellant.


EILEEN T. GALLAGHER, J.:

                   Defendant-appellant, Samuel Robinson, appeals from his convictions

following a bench trial. He raises the following assignments of error for review:

        1. The trial court erred by denying the motion to dismiss when the delay
        in bringing defendant to trial violated his due process rights under the
        Fifth and Fourteenth Amendments to the United States Constitution
        and Article I, Section 10 of the Ohio Constitution.

        2. The trial court erred by failing to grant a judgment of acquittal,
        pursuant to Crim.R. 29(A), on the charges, and thereafter entering a
        judgment of conviction on those offenses as those charges were not
        supported by sufficient evidence, in violation of defendant’s right to
        due process of law, as guaranteed by the Fourteenth Amendment to the
        U.S. Constitution.

        3. Robinson’s convictions are against the manifest weight of the
        evidence.

               After careful review of the record and relevant case law, we affirm.

The trial court did not err by denying Robinson’s motion to dismiss, as Robinson

failed to establish that he suffered actual prejudice due to preindictment delay. In

addition, Robinson’s rape and kidnapping convictions are supported by sufficient

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

                       I. Procedural and Factual History

               In August 2017, Robinson was named in a three-count indictment,

charging him with two counts of rape in violation of R.C. 2907.02(A)(2), and a single

count of kidnapping in violation of R.C. 2905.01(A)(4), with a sexual motivation

specification. The indictment stemmed from allegations that Robinson raped the

victim, R.H., on or about September 5, 1997.

               In February 2018, Robinson filed a motion to dismiss for

preindictment delay, arguing “the indictment places [Robinson] in the patently

unfair position of having to defend himself against vaguely remembered allegations

that are nearly 20 years old.” A hearing on the motion to dismiss was held in March

2018.
               At the hearing, defense counsel stated that the alleged rape in this

case occurred after Robinson and the victim visited a bar together and had “a few

drinks.”   Given the delay between the date of the offense and the criminal

indictment, defense counsel argued that Robinson was severely prejudiced by the

inability to locate witnesses who are unavailable, unidentifiable, or unable to recall

the events that occurred nearly 20 years earlier due to faded memories. Specifically,

Robinson asserted that he was prevented from obtaining potentially exculpatory

evidence from (1) witnesses who were at the bar on the evening of the incident, (2)

the victim’s roommate who “would have had information” about the night of the

incident, and (3) individuals who were believed to be inside the home where the

alleged rape occurred.        Finally, counsel asserted that the delay in the

commencement of the prosecution was unjustified and that the state’s case relies on

the same evidence that was available in 1997.

               The state opposed the motion to dismiss, arguing that Robinson’s

reference to “potential witnesses” demonstrates that his position relied on mere

speculation. The state further maintained that the delay in the prosecution was

justified. According to the state, Robinson was not directly linked to the crime until

the state obtained DNA evidence implicating Robinson in 2017.

               At the conclusion of the hearing, the trial court denied the motion to

dismiss, stating, in pertinent part:

      Upon review, I find that there is considerable, although speculative,
      evidence that the defendant may have been prevented from obtaining
      testimony and evidence; nonetheless, that is, for the most part, highly
      speculative. The court would have to bear that in mind during any trial,
      whether this is to be a bench trial or jury trial.

      I also am forced to find that the State did not cause any delay in
      indicting this case for purposes of scoring an advantage, a tactical
      advantage over the defendant, but that any delays were the result, A, of
      the victim’s failure to pursue matters; and B, the Cleveland Police
      Department’s failure to process the rape kit in a timely fashion, which,
      while not to be condoned, was certainly not done for any ulterior
      motives.

              The matter then proceeded to a bench trial, where the following

relevant evidence was adduced.

              R.H. testified that in 1997, she and Robinson worked together at a

convention center located in Cleveland, Ohio. R.H. testified that Robinson pursued

her romantically for a period of time and that she eventually agreed to go on a date

with him. On September 5, 1997, Robinson picked R.H. up at her apartment in his

vehicle. R.H. testified that she lived at the apartment with her minor children at the

time. On that evening, Brian Towns agreed to watch R.H.’s children while she was

with Robinson.

              R.H. testified that she and Robinson then drove to a nearby bar to talk

and have drinks. R.H. testified that she had “one drink,” and after a period of time,

she asked Robinson to take her home. R.H. stated that once she was inside

Robinson’s vehicle, he began driving in a direction that was not towards her

apartment. R.H. testified that Robinson stated that “he had to make a quick stop.”

Robinson then drove to a location R.H. believed to be Robinson’s home. When they

arrived, Robinson got out of the vehicle, walked around to the passenger’s side of
the vehicle, forced R.H. out of the vehicle, and took her inside his home. R.H.

testified that she was “nervous and scared” and “didn’t know what to expect of what

was going on.” She explained that Robinson “actually picked [her] up” and “carried

[her] into the house,” because she “was trying not to go into it.”

               Once inside the home, Robinson covered R.H.’s mouth and “took

[her] into a back room” where he “raped” her. R.H. testified that, as Robinson

carried her up a narrow stairway to the room where the rape occurred, she observed

individuals sleeping “on a blanket or a pallet or something on the floor.” When they

were alone inside the room, Robinson “told [R.H.] to not say anything and to be

quiet.” He then held her wrists down and took off her clothes. R.H. testified that

she was terrified and was struggling to fight and free herself from Robinson.

However, R.H. “felt like [she] was drugged” and was “helpless” to defend herself.

R.H. testified that Robinson continued to hold her arms down as he performed oral

sex on her. Robinson then “put his penis in [her] vagina.” R.H. testified that she

did not want to engage in sexual intercourse with Robinson. She stated that she

“kept telling [Robinson] to stop” and that she could not move while Robinson was

on top of her. R.H. was unsure if Robinson wore a condom.

               When the incident ended, Robinson drove R.H. home. R.H. testified

that she “was crying” as she entered her apartment and encountered Towns.

According to R.H., Towns immediately “knew something was wrong and called the

police.” When the police responded, R.H. was transported to a hospital and a rape

kit was completed.
               During her cross-examination, R.H. denied being intoxicated on the

night of the incident and testified that she did not recall “telling the nurse at the

hospital that [she] had multiple drinks.” Furthermore, R.H. testified that she did

not recall telling investigators that she was taken to a basement, and did not recall

reporting to the hospital that she was unemployed at the time of the incident.

Regarding her testimony that there were people inside the home during the incident,

R.H. expressed that those individuals likely did not wake up while she was “yelling

and saying no” because Robinson covered her mouth as he carried her past the room

where the people were asleep.

               In addition, R.H. testified that she did not cancel any appointments

with the detectives and would be “surprised” if the police report indicated that she

failed to cooperate with the police. R.H. further did not recall telling the police that

Robinson did not wear a condom and ejaculated inside of her. Regarding the DNA

evidence recovered from her rape kit, R.H. testified that she was having consensual

sex with Towns at the time of the incident, and was not aware that there was DNA

from “another man, aside from [Robinson] and aside from Mr. Towns, whose DNA

was [discovered] inside [her] vagina.” R.H. further stated that she was not aware

that Robinson’s DNA was not discovered inside her vagina, and she had “no possible

explanation as to why there was male DNA in [her] anus that evening.” However,

R.H. reiterated that she was sure she did not have sex with anyone else that evening

and had no knowledge of being raped by someone else.
               Brian Towns testified he and R.H. have a daughter together and were

involved in an “on and off” romantic relationship in 1997. At the time of the incident,

Towns and R.H. were not living together.         However, Towns testified that he

frequently went to R.H.’s home to care for his then three-year old daughter. On the

night of the incident, Towns recalled being at R.H.’s home with her children while

she was out. Towns testified that R.H. had a “confused” look on her face when she

returned home for the evening. He described R.H. as follows:

      She came in. And I noticed she had this look on her face, like a look I
      had never seen on her. It was a — I can’t say if she had been attacked
      or anything like that. But it was just a look and it threw me off. And I
      said, are you okay? And she said, I don’t know. I said, what happened?
      And right there I just said, you want me to call the police? And I can’t
      remember if she said yes or no. But I know I ended up calling them
      anyway.

               Towns testified that R.H. did not appear intoxicated. He did not recall

the complete details of what R.H. told him about the incident. However, Towns

recalled R.H. being transported to the hospital after he and R.H. separately spoke

with the police.

               Sandra Musolf testified that she was a registered nurse at St. Vincent

Charity Medical Center in 1997. Musolf confirmed that she would have been

working as a staff nurse in the hospital’s emergency room in the fall of 1997. In the

course of her testimony, Musolf was presented with a copy of R.H.’s medical records,

marked state’s exhibit No. 1. Musolf testified that the triage notes from R.H.’s

emergency room chart states that R.H. was taken to the hospital based on the

“alleged sexual assault by boyfriend at approx. [01:00 a.m.].” Musolf testified that
she performed a rape-kit examination of R.H. and collected various specimens for

forensic examination. Specifically, Musolf stated that she collected “oral swabs or

smears, vaginal swabs and smears, rectal swabs and smears, saliva disc, fingernail

scrapings, head hair, pubic hair, pubic hair combings, and the comb.” In addition,

Musolf collected the clothing R.H. was wearing at the time of the incident. The

relevant medical records reflect that R.H. reported “oral, vaginal and rectal”

penetration by one male. R.H. further reported that she believed the assailant

ejaculated and did not use a condom.

              Lindsey Nelsen-Rausch, a scientist with the Bureau of Criminal

Investigation, testified for the state as an expert in forensic DNA analysis. Nelsen-

Rausch received samples of evidence taken from the rape kit, a DNA standard from

Robinson, and a DNA sample from Towns. She then analyzed the samples for the

presence of DNA, generated a laboratory report, and testified about her findings.

              In relevant part, Nelsen-Rausch testified that the testing of the

vaginal swabs taken from R.H. generated two profiles, one of R.H. and one of an

unknown male. Robinson and Towns were excluded as the source of the male DNA.

R.H.’s anal swabs also generated two profiles, one of R.H. and one of a male.

However, the male profile was insufficient for comparison. Regarding the testing

performed on R.H.’s clothing and her skin swabs, Nelsen-Rausch testified that

Robinson and Towns were excluded from the DNA profiles.

              With respect to the pubic hair combings, testing revealed trace debris

on the comb. Nelsen-Rausch explained that trace debris refers to the discovery of
“either a parent hair or fibers on the comb.” A swab was taken from the comb and

the trace debris. Nelsen-Rausch testified that testing of the swab revealed a DNA

profile that contained a mixture. Ultimately, R.H. and Robinson were identified as

the contributors to the DNA profile. Nelsen-Rausch testified that Robinson’s DNA

came “from a source other than sperm,” such as from his skin cells or saliva.

               Timothy Clark testified that he is employed as an investigator by the

Cuyahoga County Prosecutor’s Office. In April 2017, Investigator Clark obtained a

DNA swab from the inside of Robinson’s cheek. When questioned by Investigator

Clark, Robinson denied ever going on a date with R.H. and denied having any sexual

contact with her. He further denied ever having R.H. inside his vehicle. Investigator

Clark testified that he asked Robinson how R.H. could have known where he lived

or the type of car he drove. According to Investigator Clark, Robinson indicated that

he and R.H. “had talked about it at work.”

               At the close of state’s case, the trial court dismissed a single count of

rape, to wit: fellatio, as charged in Count 2 of the indictment. Defense counsel rested

without presenting a witness. The trial court then found Robinson guilty of rape and

kidnapping, with a sexual motivation specification. Robinson was sentenced to a

three-year term of imprisonment.

               Robinson now appeals from his convictions and the denial of his

motion to dismiss.
                              II. Law and Analysis

                            A. Preindictment Delay

              In his first assignment of error, Robinson argues the trial court erred

by denying his motion to dismiss for preindictment delay.

              In reviewing a trial court’s decision on a motion to dismiss for

preindictment delay, this court applies a de novo standard of review to the legal

issues, but we afford great deference to the findings of fact made by the trial judge.

State v. Walker, 8th Dist. Cuyahoga No. 106414, 2018-Ohio-3669.

              The statute of limitations for a criminal offense is the defendant’s

primary protection against overly stale criminal charges. U.S. v. Marion, 404 U.S.

307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, the Due Process Clause of

the Fifth Amendment provides additional protection in cases where the

preindictment delay was unjustifiable and caused actual prejudice. U.S. v. Lovasco,

431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

              In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d

688, the Ohio Supreme Court established a burden-shifting framework for

analyzing a due process claim based on preindictment delay. Id. at ¶ 13. Under this

framework, the defendant bears the initial burden of presenting evidence of actual

prejudice. Id. “Once a defendant presents evidence of actual prejudice, the burden

shifts to the state to produce evidence of a justifiable reason for the delay.” Id. at

¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State

v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127. Therefore, if the
defendant fails to establish actual prejudice, the court is not required to consider the

reasons for the delay. Adams at ¶ 107.

               “A court must ‘consider the evidence as it exists when the indictment

is filed and the prejudice the defendant will suffer at trial due to the delay.’” Id.,

quoting State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52.

A claim of actual prejudice should be scrutinized “vis-à-vis the particular evidence

that was lost or unavailable as a result of the delay” and “the relevance of the lost

evidence and its purported effect on the defense.” Id.

               We note that “[t]he ‘possibility that memories will fade, witnesses will

become inaccessible, or evidence will be lost is not sufficient to establish actual

prejudice.’” Adams at ¶ 105. “Those are ‘the real possibilit[ies] of prejudice inherent

in any extended delay,’ and statutes of limitations sufficiently protect against them.”

Id., quoting Marion, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468. “That does not

mean, however, that demonstrably faded memories and actually unavailable

witnesses or lost evidence cannot satisfy the actual-prejudice requirement.” Id.

               In Jones, the court explained that even when a defendant does not

know what the exact substance of an unavailable witness’s testimony would have

been, actual prejudice may still be shown where missing evidence or unavailable

testimony, identified by the defendant and relevant to the defense, would minimize

or eliminate the impact of the state’s evidence and bolster the defense. Jones, 148

Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, at ¶ 28, citing State v. Luck, 15 Ohio

St.3d 150, 157, 472 N.E.2d 1097 (1984).
                 Based on Jones, a defendant is not required to establish “precisely”

what an unavailable witness would have testified to at trial and that the testimony

would have been directly exculpatory. Id. at ¶ 27. However, a defendant cannot rely

upon broad assertions of missing evidence or an unavailable witness to establish

prejudice. A defendant must demonstrate a viable, tangible connection between the

missing evidence or the unavailable witness to the defense of the case. State v.

Richardson, 2016-Ohio-5843, 70 N.E.3d 1175 (8th Dist.).              The due process

requirement of actual prejudice may be shown upon “the proven unavailability of

specific evidence or testimony that would attack the credibility or weight of the

state’s evidence against a defendant, and thereby aid in establishing a defense.”

Jones at ¶ 25.

                 Once a defendant has established actual prejudice, the state must

produce evidence of a justifiable reason for delay in the commencement of

prosecution. State v. Hunter, 2017-Ohio-4180, 92 N.E.3d 137 (8th Dist.), citing

Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at ¶ 51. A delay can be

found to be unjustifiable when the state’s reason for the delay is to intentionally gain

a tactical advantage over the defendant, see Marion, 404 U.S. at 324, 92 S.Ct. 455,

30 L.Ed.2d 468, or when the state, through negligence or error in judgment,

effectively ceases the active investigation of a case, but later decides to commence

prosecution upon the same evidence that was available to it at the time that its active

investigation was ceased. Luck at 158. The length of delay will typically be the “key”

in determining whether a delay caused by the state’s negligence or error in judgment
is justifiable. Id. Thereafter, the due process inquiry involves a balancing test by the

court, weighing the reasons for the delay against the prejudice to the defendant, in

light of the length of the delay. Id. at 154.

               On appeal, Robinson argues he suffered actual prejudice resulting

from (1) his faded memory and his inability recall events that occurred over 20 years

ago, and (2) his inability to locate and present certain witnesses on his behalf,

including other patrons who were in the bar during their date, and the individuals

alleged to have been inside Robinson’s home during the incident.

               After reviewing the record, we are unpersuaded by Robinson’s

position. Regarding Robinson’s own memory, this court has routinely held that “‘a

defendant’s own general assertion that he does not remember details of an event

that occurred nearly 20 years ago does not, in and of itself, constitute actual

prejudice.’” Hunter at ¶ 18, citing State v. Smith, 8th Dist. Cuyahoga No. 100501,

2014-Ohio-3034, ¶ 26; State v. Ricosky, 5th Dist. Stark No. 2003CA00174, 2004-

Ohio-2091, ¶ 15. On appeal, Robinson references the fact that he was unable to recall

going on a date with R.H. during his interview with Investigator Clark. He suggests

that defense counsel may have been able to explain the presence of Robinson’s DNA

had he been able to recall spending time with R.H. Viewing Investigator Clark’s

testimony in its entirety, we reject Robinson’s attempt to raise alternative theories

that are not supported by the evidence. In this case, Robinson did not express to

Investigator Clark that he could not recall whether he went on a date with R.H.

Rather, he unambiguously denied going on a date with R.H., denied having drinks
with R.H., denied having sexual contact with R.H., and denied having R.H. inside

his vehicle. For these reasons, we are unable to conclude that Robinson’s theoretical

assertions constituted actual prejudice.

               We are equally unpersuaded by Robinson’s reliance on the missing

witnesses who may have been present in the bar on the night of the incident, and/or

the individuals R.H. observed sleeping inside Robinson’s home during the incident.

In this case, Robinson has not specifically identified the missing witnesses or the

nature of their unavailability. Furthermore, as discussed below, we find Robinson

has failed to explain or identify a viable, tangible connection between the missing

witnesses and his ability to minimize the impact of the state's evidence and bolster

the defense.

               With respect to the witnesses who may have been in the bar and

observed the victim’s demeanor prior to the incident, we note that Robinson denied

ever accompanying R.H. on a date during his meeting with investigator Clark. In

addition, R.H.’s testimony reflects that nothing unusual happened while she and

Robinson were in the bar. Rather, the circumstances only changed once Robinson

ignored R.H.’s request to take her home and drove to the location of the sexual

assault. Witnesses who were present in the bar that evening would be unable to offer

any probative testimony regarding the nature of appellant’s conduct once he was

alone with R.H. after they left the establishment. Any position to the contrary would

require this court to speculate. Under the totality of these circumstances, we find no

viable connection between these missing witnesses and the defense of the case.
              Regarding the individuals who may have been present inside

Robinson’s home during the incident, Robinson maintains that their testimony

“could have supported [his] claim that he did not rape this woman.” Robinson

suggests that if R.H. had yelled for Robinson to stop as she alleged, the missing

witnesses “would have heard it.” We are unpersuaded by Robinson’s argument.

Because Robinson is merely speculating as to what these missing witnesses may or

may not have heard, whether the witnesses would have assisted the defense or aided

the prosecution is entirely unknown. In this case, R.H. explained that Robinson

covered her mouth and told her to be quiet while he carried her past the room where

the individuals were sleeping. Robinson then took her to a “back room,” where the

rape occurred. Given the actions Robinson took to ensure R.H. was not heard, we

find Robinson has not demonstrated that testimony from these missing witnesses

would have attacked the credibility or weight of the state’s evidence against a

defendant, and thereby aided his defense. R.H. was thoroughly cross-examined

about these missing witnesses and whether they would have heard her yelling at

Robinson to “stop” during the rape. Ultimately, this issue was considered, but

rejected, by the trier of fact during its assessment of R.H.’s testimony and the

credibility of her allegations against Robinson.

              Based on the foregoing, we find that Robinson has failed to establish

a violation of his due process rights. Robinson has not shown that the preindictment

delay caused him actual prejudice; rather, his arguments are speculative in nature.
Having determined that Robinson failed to prove actual prejudice, it is not necessary

to determine whether there were justifiable reasons for the delay.

              Accordingly, Robinson’s first assignment of error is overruled.

                        B. Sufficiency of the Evidence

              In his second assignment of error, Robinson argues his convictions

were not supported by sufficient evidence.

              When assessing a challenge to the sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether

such evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. “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.” Id. A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678

N.E.2d 541 (1997).

              It is well established that the elements of an offense may be proven by

direct evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d

86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness testifies about a

matter within the witness’s personal knowledge such that the trier of fact is not

required to draw an inference from the evidence to the proposition that it is offered
to establish.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047,

¶ 13. Circumstantial evidence, on the other hand, is evidence that requires “the

drawing of inferences that are reasonably permitted by the evidence.” Id. See also

State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37

(“Circumstantial evidence is the proof of facts by direct evidence from which the trier

of fact may infer or derive by reasoning other facts in accordance with the common

experience of mankind.”).

               In this case, Robinson was found guilty of rape in violation of R.C.

2907.02(A)(2). The rape statute provides that “[n]o person shall engage in sexual

conduct with another when the offender purposely compels the other person to

submit by force or threat of force.” R.C. 2907.02(A)(2).

               Robinson was also found guilty of kidnapping in violation of R.C.

2905.01(A)(4), which states that “[n]o person, by force, threat, or deception * * *

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 * * *.”

               In challenging the sufficiency of the evidence supporting his

convictions, Robinson does not dispute any specific element of the foregoing

offenses. Rather, Robinson broadly suggests that R.H.’s testimony was “less than

forthright” about her sexual history and contained “fabrications on material and

critical information relating to the DNA[.]” He contends that it is “preposterous”

that R.H. “could give no explanation about how another man’s DNA was found on
her person.” Thus, Robinson asserts that “[g]iven the alleged victim’s testimony in

this case, it only stands to reason that the only logical conclusion is that the evidence

does not add up or suffice to justify any conviction in this case. To hold otherwise

would defy logic.”

               Here, Robinson’s sufficiency argument hinges on the veracity and/or

credibility of the victim. However, arguments concerning inconsistent evidence and

witness credibility are matters relevant to the weight, rather than the sufficiency, of

the evidence. State v. Dennis, 10th Dist. Franklin No. 08AP-369, 2008-Ohio-6125,

¶ 32-44; State v. Haynes, 10th Dist. Franklin No. 03AP-1134, 2005-Ohio-256, ¶ 24;

State v. Hudson, 8th Dist. Cuyahoga No. 91803, 2009-Ohio-6454, ¶ 44. As such,

we will address these considerations under our review of the manifest weight of the

evidence in the third assignment of error.

               Having reviewed the record in its entirety, we find that the state

introduced ample evidence to establish that Robinson restrained R.H.’s liberty and

compelled her to submit to sexual conduct, against her will, by force or threat of

force. In this case, R.H. testified that following her date with Robinson, he drove

her to his home, forced her out of his car, and physically carried her inside. Once

inside the home, Robinson covered R.H.’s mouth, took her into a room, and held her

wrists down as he struggled to take off her clothing. R.H. testified that Robinson

then “forced himself on top of [her]” and held her arms down as he performed oral

sex on her. Robinson then put his penis in R.H.’s vagina, as she “just kept telling

him to stop.” R.H. stated that she was “terrified” and attempted to fight Robinson
off and free herself, but “felt helpless.” She testified that she could not move while

he was on top of her and adamantly stated that she did not want to engage in sexual

intercourse with Robinson. Following this incident, R.H. was taken to the hospital

and a rape kit was collected. Forensic testing of the rape kit revealed that Robinson’s

DNA was identified as a contributor to the DNA profile discovered on a swab taken

from “trace debris” and the comb used to obtain pubic hair combings from R.H.

               Viewing the foregoing evidence presented at trial in a light most

favorable to the prosecution, we find that the rape and kidnapping convictions are

supported by sufficient evidence.

               Robinson’s second assignment of error is overruled.

                        C. Manifest Weight of Evidence

               In his third assignment of error, Robinson argues his convictions

were against the manifest weight of the evidence.

               A manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion at trial.

Thompkins, 78 Ohio St.3d, at 387, 678 N.E.2d 541. In a manifest challenge, the

reviewing court must examine the entire record, weigh the evidence and all the

reasonable inferences, consider the witnesses’ credibility, 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., citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717

(1st Dist.1983).
               In conducting such a review, the Ohio Supreme Court has stated that

the appellate court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v. Florida, 457

U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).               The Supreme Court’s

characterization of the appellate court as a “thirteenth juror” refers to the appellate

court’s “‘discretionary power to grant a new trial.’” Id. at 547, quoting Martin at 175.

As a “thirteenth juror,” the appellate court may disagree with the factfinder’s

resolution of the conflicting evidence and, in effect, create a deadlocked jury, which

requires a new trial.

               However, our status as a “thirteenth juror” is not equal to the other 12

jurors, who are uniquely positioned to view the witnesses’ demeanor, gestures, facial

expressions and voice inflections. These outward behaviors are not evident in a

written transcript. Demeanor is not what the witness says, but the manner in which

he says it. Demeanor evidence is invaluable in assessing a witness’s credibility, yet

it is totally lost in transmission to the court of appeals. It is for this reason that “the

weight to be given the evidence and the credibility of the witnesses are primarily for

the trier of facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus. “Because the trier of fact sees and hears the witnesses

and is particularly competent to decide ‘whether, and to what extent, to credit the

testimony of particular witnesses,’ we must afford substantial deference to its

determinations of credibility.” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-

2420, 929 N.E.2d 1047, quoting State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 Ohio App. LEXIS 3709, 4 (Aug. 22, 1997). Although we have the discretionary

power of a “thirteenth juror” to grant a new trial, that power “‘should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins at 547, quoting Martin at 175.

               On appeal, Robinson reiterates his argument that R.H. lacked

credibility. He contends that R.H.’s accusations are “highly suspicious and not

worthy of belief” based on a number of factors, including (1) her inability to explain

the presence of DNA from an unknown male contributor, (2) her decision to return

to her place of work while Robinson was still employed there, and (3) her

inconsistent statements regarding the number of drinks she had on the evening of

the incident. Robinson further references inconsistencies between her testimony at

trial and her original police statement, including (4) the location of the sexual assault

inside the home, (5) whether Robinson wore a condom during the sexual assault,

and (6) whether Robinson ejaculated inside of her.

               After careful consideration, we are unable to conclude that this is the

exceptional case in which the evidence weighs heavily against the convictions. The

record reflects that R.H. was thoroughly cross-examined regarding the alleged

inconsistencies identified by Robinson on appeal. The trier of fact was presented

with all relevant evidence, and was in the best position to weigh the witnesses’

credibility. While R.H.’s testimony varied slightly from the original statements she

made to the police and medical personnel in 1997, she consistently alleged that

Robinson forced her to engage in vaginal intercourse against her will. Her testimony
was corroborated by the discovery of Robinson’s DNA in the DNA profile recovered

from the combing of R.H.’s pubic hair region. We recognize that the state was

unable to adequately explain the presence of another male’s DNA on certain

biological samples taken from R.H. However, we find the presence of another man’s

DNA did not negate the credibility of the specific accusations levied against

Robinson given the presence of his DNA on samples taken from R.H.’s pubic region.

As stated, Robinson denied being with R.H. on the night of the incident and denied

all allegations of sexual conduct.      Under these circumstances, we find that

Robinson’s convictions for rape and kidnapping are not against the manifest weight

of the evidence.

               Robinson’s third assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant 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.           The defendant’s

conviction having been affirmed, any bail pending is terminated. 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
MARY EILEEN KILBANE, A.J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY
