[Cite as State v. Roark, 2013-Ohio-217.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :      CASE NO. CA2012-04-036

                                                 :             OPINION
    - vs -                                                      1/28/2013
                                                 :

RODNEY ROARK,                                    :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 11CR27859



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Stephan D. Madden, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-
appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Rodney Roark, appeals his conviction and sentence in the

Warren County Court of Common Pleas for sexual battery and rape. For the reasons

discussed below, we affirm the decision of the trial court.

        {¶ 2} On November 11, 2011, appellant was indicted on three counts of rape in

violation of R.C. 2907.02(A)(2), five counts of sexual battery in violation of R.C.
                                                                    Warren CA2012-04-036

2907.03(A)(5), and two counts of importuning in violation of R.C. 2907.07(B). The charges

stemmed from an ongoing series of sexual improprieties by appellant with his daughter, B.R.,

from June 2001 through September 2005.

      {¶ 3} Counts 1 and 4 of the indictment alleged that appellant engaged in importuning

from June 2001 to September 2001, and September 2001 to March 2002. Counts 2 and 3

alleged sexual battery and rape, respectively, from September 2001 to December 2001.

Counts 5 and 6 alleged sexual battery and rape, respectively, from September 2001 to March

2002. Count 7 alleged sexual battery from January 2002 to December 2002. Count 8

alleged sexual battery from January 2004 to December 2004. Lastly, Counts 9 and 10

alleged sexual battery and rape, respectively, from June 2005 to September 2005.

      {¶ 4} Appellant was tried before a jury. During trial, B.R. testified that in 2001, when

she was 13 years old, appellant began sexually molesting her at their home in Warren

County, Ohio. B.R. testified that one day during the summer of 2001, appellant told B.R. to

go into his bedroom, where he played a pornographic movie and asked to see B.R.'s breasts.

When B.R. lifted up her shirt, appellant touched her breasts. Appellant then pulled down his

pants, exposed himself, and told B.R. to look at his penis. When B.R. refused to look,

appellant pulled up his pants, hugged B.R., and allowed her to exit the bedroom.

      {¶ 5} B.R. testified that several days later, appellant called B.R. into his bedroom,

where he was lying on his bed underneath a blanket. When B.R. entered the room, appellant

uncovered himself. Appellant was naked with an erection and asked B.R. to touch his penis,

but she refused. Appellant then took B.R.'s hand and placed it on his penis, but B.R. quickly

removed her hand. At that point, appellant ordered B.R. to place her mouth on his penis.

When B.R. refused, appellant got "really upset," but allowed B.R. to leave the bedroom.

      {¶ 6} In September 2001, appellant started coming into B.R.'s bedroom in the

morning while she was preparing for school. B.R. explained that she and her brother were
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often in the house alone with appellant in the mornings because their mother would leave

early for work. B.R. testified that appellant would sit on her bunk bed and order her to

perform oral sex on him. B.R. explained that appellant would either pull her over to the bed

or would take her head and move it onto his penis. B.R. testified that after she would

perform oral sex, appellant would ejaculate into a towel or a paper towel, and that this pattern

continued "a couple times a week" for "[a] couple of months."

       {¶ 7} Several months later, appellant came into B.R.'s bedroom in the middle of the

night and demanded oral sex, but B.R. refused. Appellant then exited the bedroom and

returned to the living room sofa, where he usually slept. However, appellant quickly returned

and demanded oral sex again. After B.R. refused for a second time, appellant asked her if

she had ever experienced cunnilingus, and she replied that she had not. Appellant then

pulled B.R.'s pants down and licked her vagina. Afterwards, appellant climbed on top of B.R.

in bed, grabbed her arms, and told her that he was "going to show [her] what it was like to

really have sex." B.R. testified that she was backed up against the wall and that there was

no room in her bed for her to escape. At that point, appellant inserted his penis into B.R.'s

vagina and B.R. began to cry. B.R. also testified that appellant "would have vaginal

intercourse with [her] unless [she] was on [her] period and then he would make [her] give him

oral sex." B.R. explained that this behavior continued to occur two to three times per week.

       {¶ 8} Next, B.R. testified that in 2002, when she was approximately 14 years old,

appellant brought up the topic of masturbation with her. She also stated that appellant began

giving her money without her mother's knowledge, and that he continued to have vaginal

intercourse with her during that time.

       {¶ 9} B.R. also stated that in 2004, when she was 16 years old, appellant threatened

to take away her online computer games if she did not continue to have sex with him. B.R.

stated that she had no choice but to continue to have sex with appellant, since her computer
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games were very important to her. B.R. also explained that if she resisted having sex with

appellant during that time, he would "smack" her on the back of her head.

       {¶ 10} B.R. then recalled a particular day in the summer of 2005, before she turned

17, when appellant told her brother to go outside and mow the yard. While B.R.'s brother

was outside, appellant took B.R. into her room, removed her pants, and had sex with her.

B.R. testified that although she did not resist that day, appellant had vaginal intercourse with

her whether she resisted or not, and continued to do so until shortly before her eighteenth

birthday.

       {¶ 11} After B.R. testified, the state called B.R.'s mother to the stand.        Mother

corroborated B.R.'s testimony that between 2001 and 2005, they lived in a home in Warren

County, Ohio. Mother also testified that she and appellant had opposite work schedules, and

admitted that there were pornographic movies in their bedroom. Mother also stated that she

did not tell B.R. to make any allegations against appellant.

       {¶ 12} Next, Detective Jim Englehardt with the Warren County Sheriff's Office testified

that he had investigated B.R.'s allegations against appellant, and that during an interview,

B.R. told him that appellant had subjected her to "ongoing sexual abuse starting from when

she was 13 years of age up until when she was 18 years of age."

       {¶ 13} At the close of the state's case, the defense moved the court for a judgment of

acquittal pursuant to Crim.R. 29. The trial court granted the motion with respect to the two

importuning charges, but denied the motion as to the three rape charges and five sexual

battery charges.

       {¶ 14} The jury subsequently found appellant guilty of the remaining charges. On

each of the three rape charges, the trial court sentenced appellant to serve five years in

prison, to be served consecutively to each other. For each of the five sexual battery charges,

the court sentenced appellant to one year in prison, to be served consecutively to each other
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and to the prison terms for the rape charges, for an aggregate prison sentence of 20 years.

       {¶ 15} Appellant timely appeals, raising three assignments of error for review.

       {¶ 16} Assignment of Error No. 1:

       {¶ 17} DEFENDANT-APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN

THE COURT FAILED TO MERGE THE RAPE CONVICTIONS WITH THE SEXUAL

BATTERY CONVICTIONS.

       {¶ 18} Appellant first argues that the trial court erred by failing to merge his convictions

for rape and sexual battery because they are allied offenses of similar import.

       {¶ 19} Appellant contends that his conduct for Count 2 (sexual battery) and his

conduct for Count 3 (rape) each occurred in 2001, when he forced B.R. to perform oral sex in

her bedroom. Appellant also claims that the sexual battery charge in Count 5 should merge

with the rape charge in Count 6, because both occurred when "he entered B.R.'s bedroom,

removed her underwear, forced her down on the bunk bed and had vaginal intercourse with

her." Lastly, appellant believes that the sexual battery charge in Count 9 should merge with

the rape charge in Count 10, because both occurred while B.R.'s brother was mowing the

lawn in 2005.

       {¶ 20} Initially we note that appellant's trial counsel did not argue in the proceedings

below that the rape and sexual battery convictions should merge. Appellant has therefore

forfeited all but plain error on appeal. Crim.R. 52(B); State v. Mansour, 12th Dist. No.

CA2010-08-198, 2011-Ohio-4339, ¶ 8. Plain error exists where there is an obvious deviation

from a legal rule that affected the defendant's substantial rights or influenced the outcome of

the proceedings. Id., citing State v. Blanda, 12th Dist. No. CA2010-03-050, 2011-Ohio-411, ¶

20. The Supreme Court of Ohio has held that imposition of multiple sentences for allied

offenses of similar import amounts to plain error under Crim.R. 52(B). State v. Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31; Blanda at ¶ 20.
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                                                                     Warren CA2012-04-036

       {¶ 21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme

Court established the proper analysis for determining whether offenses qualify as allied

offenses subject to merger pursuant to R.C. 2941.25. First, the court must determine

"whether it is possible to commit one offense and commit the other with the same conduct,

not whether it is possible to commit one without committing the other." (Emphasis sic.) Id. at

¶ 48. "If the multiple offenses can be committed by the same conduct, then the court must

determine whether the offenses were committed by the same conduct, i.e., 'a single act,

committed with a single state of mind.'" Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., dissenting). "If the answer to both questions is

yes, then the offenses are allied offenses of similar import and will be merged." Id. at ¶ 50.

       {¶ 22} Here, appellant was convicted of three counts of forcible rape under R.C.

2907.02(A)(2), which states, "No person shall engage in sexual conduct with another when

the offender purposely compels the other person to submit by force or threat of force."

       {¶ 23} Appellant was also convicted of five counts of sexual battery in violation of R.C.

2907.03(A)(5), which provides,

              No person shall engage in sexual conduct with another, not the
              spouse of the offender, when any of the following apply:

              ***

              (5) The offender is the other person's natural or adoptive parent,
              or a stepparent, or guardian, custodian, or person in loco
              parentis of the other person.

       {¶ 24} R.C. 2907.01(A)(1) defines "sexual conduct" as,

              [V]aginal 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.
              Penetration, however slight, is sufficient to complete vaginal or
              anal intercourse.


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                                                                      Warren CA2012-04-036

       {¶ 25} First, we agree with appellant that it is possible to commit rape under R.C.

2907.02(A)(2) and sexual battery under R.C. 2907.03(A)(5) with the same conduct. Thus,

the first step of Johnson is satisfied.

       {¶ 26} We therefore proceed to the second step of Johnson, which requires us to

determine whether appellant's rape and sexual battery offenses were committed by the same

conduct, i.e., "a single act, committed with a single state of mind." Johnson, 2010-Ohio-6314

at ¶ 49. Upon review, we find that appellant engaged in separate instances of sexual

conduct over the course of four years, and therefore his convictions for rape and sexual

battery were not allied offenses of similar import.

       {¶ 27} As to Counts 2 and 3, the record demonstrates that between September 2001

and December 2001, appellant, who is B.R.'s biological father, performed cunnilingus on

B.R., i.e., sexual battery, and also engaged in a pattern of forcible fellatio, i.e., rape. As to

Counts 5 and 6, the record shows that from September 2001 to March 2002, appellant

subjected B.R. to an ongoing pattern of vaginal intercourse constituting sexual battery, as

well as a pattern of forcible fellatio and vaginal intercourse constituting rape. As to Counts 9

and 10, the evidence demonstrates that in 2005, appellant had vaginal intercourse with B.R.

while her brother mowed the yard, i.e., sexual battery, and that appellant had forcible vaginal

intercourse with her until she was almost 18 years old, i.e., rape.

       {¶ 28} From this, it is clear that the conduct that constituted the sexual battery

offenses can be differentiated from the conduct constituting the rape offenses. In other

words, appellant's convictions for sexual battery and rape were not based on a single act,

committed with a single state of mind. Johnson, 2010-Ohio-6314 at ¶ 49. See also State v.

Hale, 2nd Dist. No. 11CA0033, 2012-Ohio-2662, ¶ 23 (the fact that gross sexual imposition

and sexual battery "were committed within the same span of time, or even on the same date"

was not conclusive of whether defendant committed the offenses by the same conduct). As
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such, appellant's convictions for rape under R.C. 2907.02(A)(2) and sexual battery under

R.C. 2907.03(A)(5) were not allied offenses of similar import, and the trial court's failure to

merge them did not amount to plain error. See State v. Nicholas, 66 Ohio St.3d 431 (1993).

       {¶ 29} Appellant's first assignment of error is overruled.

       {¶ 30} Assignment of Error No. 2:

       {¶ 31} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT INTERFERED WITH AND QUESTIONED THE STATE'S KEY

WITNESS.

       {¶ 32} Appellant next argues that the trial court improperly questioned a state witness,

thereby prejudicing his rights and depriving him of due process and a fair trial. This argument

lacks merit.

       {¶ 33} "Evid.R. 614(B) permits a trial judge to interrogate a witness as long as the

questions are relevant and do not suggest a bias for one side or the other." State v. Vanloan,

12th Dist. No. CA2008-10-259, 2009-Ohio-4461, ¶ 6, quoting State v. Blankenship, 102 Ohio

App.3d 534, 548 (12th Dist.1995). Absent a showing of bias, prejudice, or prodding of the

witness to elicit partisan testimony, it is presumed that the trial court interrogated the witness

in an impartial manner in an attempt to ascertain a material fact or develop the truth. State v.

Baston, 85 Ohio St.3d 418, 426 (1999). Additionally, "[a] trial court's interrogation of a

witness is not deemed partial for purposes of Evid.R. 614(B) merely because the evidence

elicited during the questioning is potentially damaging to the defendant." Vanloan at ¶ 7,

quoting Blankenship at 559.

       {¶ 34} However, the Ohio Supreme Court has cautioned that in a jury trial, "the court's

participation by questioning or comment must be scrupulously limited, lest the court,

consciously or unconsciously, indicate to the jury its opinion on the evidence or on the

credibility of a witness." State ex rel. Wise v. Chand, 21 Ohio St.2d 113, 119 (1970). Where
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the jury might infer the court's opinion of a witness through the persistence, tenor, range or

intensity of its questions, the court's interrogation is prejudicially erroneous. Id. at paragraph

four of the syllabus. A trial court's questioning of a witness pursuant to Evid.R. 614(B) is

subject to review on appeal under an abuse of discretion standard. Vanloan, 2009-Ohio-

4461 at ¶ 8. An abuse of discretion implies that the court's decision was unreasonable,

arbitrary, or unconscionable, and not merely an error of law or judgment. Id.

       {¶ 35} The exchange of which appellant complains concerns the trial court's

questioning of B.R. regarding the definitions of "vaginal intercourse" and "oral sex." The

questioning occurred at the end of the state's direct examination of B.R.:

              THE COURT: Let me just ask, [B.R.], we'll take a break after my
              questions and we'll complete cross but I just have a couple of
              questions just to clarify. You made mention several times in the
              course of your testimony to vaginal intercourse. Did you mean
              the same conduct each time you referred to that particular
              phrase[?]

              [B.R.]: Yes.

              THE COURT: Okay, and what did you mean by vaginal
              intercourse? Sorry that this embarrasses you but can you tell us
              what you mean by that?

              [B.R.]: He put his penis in my vagina.

              THE COURT: You also made mention several times of oral sex.
              Would it be the same conduct each time you referred to oral
              sex?

              [B.R.]: Yes.

              THE COURT: Was that conduct?

              [B.R.]: That he put my mouth on his penis.

       {¶ 36} Appellant argues that the trial court's questioning enhanced B.R.'s credibility

and indicated bias, where the court essentially established the material elements of rape and

sexual battery for the state. Appellant claims that prejudice ensued, where, but for the court's


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questioning, the state would not have been able to establish a prima facie case against him.

       {¶ 37} Upon review, we find that the court's questions, while not the most prudent of

inquiries, did not go beyond the parameters of Evid.R. 614(B). First, the tenor and nature of

the court's questions did not indicate that it was expressing an opinion as to the evidence or

to B.R.'s credibility. Rather, they were an attempt to clarify B.R.'s previous testimony

regarding the meanings of "vaginal intercourse" and "oral sex," as well as an attempt to verify

that B.R. was referring to the same type of conduct each time she used those terms.

Moreover, we do not believe that the court was prodding B.R., because it did not proffer the

definitions to her, but instead asked her to repeat her own definitions. Lastly, we do not see

any prejudice stemming from the court's questions, where the state had already asked

analogous questions, and B.R. had already described appellant's acts that constituted both

vaginal intercourse and oral sex.

       {¶ 38} Finally, we note that in reading the jury instructions aloud to the jury, the court

stated,

              It is your duty to carefully weigh the evidence, to decide all
              disputed questions of fact, to apply the instructions of the court
              to your findings and to render your verdicts accordingly. * * *
              Consider all the evidence and make your findings with
              intelligence and impartially and without bias, sympathy or
              prejudice so that the State of Ohio and the defendant, Rodney
              Roark, will feel that their case was fairly and impartially tried. If,
              during the course of the trial, the court said or did anything that
              you consider an indication of the court's view on the facts you
              are instructed to disregard it.

(Emphasis added.)

       {¶ 39} Based on this instruction, the jury was to disregard anything that may have

indicated the court's views during trial, and we must presume that the jury followed this

instruction. See Vanloan, 2009-Ohio-4461 at ¶ 25-27.

       {¶ 40} Because appellant has failed to demonstrate that the trial court's questions to


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B.R. were made in a biased or partial manner, or that they had a prejudicial effect on the

outcome of the trial, we find no abuse of discretion on the part of the trial court.1

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

        {¶ 42} Assignment of Error No. 3:

        {¶ 43} APPELLANT'S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE

AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶ 44} In his third and final assignment of error, appellant claims that his convictions

were not supported by sufficient evidence and were against the manifest weight of the

evidence.

        {¶ 45} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction. State v. Alkire, 12th Dist. No. CA2008-09-023, 2009-

Ohio-2813, ¶ 51. "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., quoting State v. Jenks, 61 Ohio St.3d

259 (1991), paragraph two of the syllabus.

        {¶ 46} In determining whether a conviction is against the manifest weight of the

evidence, the court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines 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. Alkire,



1. Although we find no abuse of discretion in the court's inquiry, we acknowledge appellant's concerns and
encourage the court to make every effort in the future to avoid toeing the line between "helpful clarification [and]
unwarranted intervention * * *." Baston, 85 Ohio St.3d at 426. Here, B.R. had already consistently used the
phrases "vaginal intercourse" and "oral sex" in context, thus, at first glance and without additional scrutiny, the
court's attempts at clarification might have appeared redundant and somewhat unwarranted. However, because
no prejudice ensued, we decline to reverse the trial court's decision in this matter.
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                                                                                 Warren CA2012-04-036

2009-Ohio-2813 at ¶ 52.

        {¶ 47} "Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency." Id. at ¶ 43, quoting State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-

2298, ¶ 35. "Thus, a determination that a conviction is supported by the weight of the

evidence will also be dispositive of the issue of sufficiency." Wilson at ¶ 35.

        {¶ 48} Here, appellant claims that the state did not elicit testimony of the specific

definitions of "vaginal intercourse and "oral sex," and therefore his convictions must be

reversed on manifest weight and sufficiency grounds. This argument lacks merit.

        {¶ 49} The Ohio Supreme Court has held that "in order to sustain a conviction on rape

charges predicated on either vaginal or anal intercourse, the state is required to establish

beyond a reasonable doubt that the accused and the victim actually engaged in vaginal or

anal intercourse." State v. Ferguson, 5 Ohio St.3d 160, 167 (1983). The Court continued,

stating, "[u]nder R.C. 2907.01(A), the state may establish vaginal or anal intercourse by

proving the slightest degree of penetration." Id.

        {¶ 50} Here, in response to the state's questioning, B.R. clearly testified as to

penetration. Specifically, she testified that appellant cornered her in her bed, "got up on top

of [her] and * * * inserted his penis into [her] vagina." See State v. Bell, 12th Dist. No. CA99-

07-122, 2001 WL 432737, * 8 (Apr. 30, 2001) ("vaginal intercourse" occurs "when the penis

is inserted into the vagina"). Thus, we find that the state proved that "vaginal intercourse"
                                              2
occurred beyond a reasonable doubt.


2. Appellant does not argue that the state failed to prove the remaining element of rape under R.C.
2907.02(A)(2), namely, force or threat of force. That said, we find that the state provided ample evidence of
force. In one instance, appellant grabbed B.R.'s arms, cornered her in her bed, and forced her to engage in
vaginal intercourse. B.R. also testified that appellant would sometimes smack her on the back of her head if she
resisted having sex with him. B.R. further indicated that appellant had threatened to take away her computer
games if she did not have sex with him, and that he gave her money without her mother's knowledge. While
B.R. did not know "exactly" what the money was for, the jury could reasonably have inferred that the money,
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                                                                                 Warren CA2012-04-036

        {¶ 51} B.R. also testified to the meaning of "oral sex," explaining that in the mornings

before school, appellant would "take [her] head and move it into his penis," and that

afterwards, appellant would ejaculate into a towel. While the Ohio Revised Code does not

provide a statutory definition for "oral sex," Ohio courts have generally held that "if a term is

one of common usage and is actually used in that sense, then the failure to define the term

does not mandate a reversal." State v. Walburg, 10th Dist. Nos. 11AP-716, 11AP-766, 2011-

Ohio-4762, ¶ 16.         See also R.C. 1.42.          Moreover courts "presume that the jury can

understand phrases expressed in plain English or that the jury will inquire as to the meaning

of the phrase." Id. Here, appellant does not claim that the phrase "oral sex" lacks a common

meaning. Upon review, we find that the common meaning of the phrase, together with B.R.'s

explanation of appellant's conduct constituting oral sex, provided sufficient evidence from

which the jury could reasonably conclude that there had been fellatio, which constitutes

sexual conduct as defined by R.C. 2907.01(A). See State v. Cullers, 2nd Dist. No. 18602,

2001 WL 1388506, * 4 (Nov. 9, 2001); State v. Scott, 12th Dist. No. CA2011-02-003, 2011-

Ohio-6534, ¶ 25-39. See also In re M.D., 38 Ohio St.3d 149, 152 (1988), quoting Webster's

Third New International Dictionary 836 (1986) (defining "fellatio" as "the practice of obtaining

sexual satisfaction by oral stimulation of the penis"); See also State v. Long, 64 Ohio App.3d

615, 618 (9th Dist.1989) (no penetration is required to prove fellatio).

        {¶ 52} Additionally, the trial court instructed the jury that "sexual conduct" included

"vaginal intercourse or fellatio between persons, regardless of sex, and without privilege to do

so, the insertion, however slight, of any part of the body into the vaginal or oral cavity of

another." The court then stated that vaginal intercourse meant "penetration of the penis into




much like the computer games, was offered to coerce her to engage in sexual conduct and to keep quiet about
it. Accordingly, we find that the state proved that sexual conduct was committed by force or the threat of force
with respect to the rape offenses. See State v. Fowler, 27 Ohio App.3d 149 (8th Dist.1985).
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                                                                      Warren CA2012-04-036

the vagina," and that fellatio meant "a sexual act with a penis and the mouth." We presume

that the jury followed these instructions and made the requisite findings for its verdict,

including the findings that appellant engaged in vaginal intercourse and oral sex, or "fellatio,"

with B.R. on the dates set forth in the indictment. See State v. Twyford, 94 Ohio St.3d 340,

356 (2002); R.C. 2907.01(A).

       {¶ 53} We further note that B.R.'s testimony was buttressed by the testimony of Officer

Englehardt, who interviewed B.R. and discovered that appellant had engaged in "ongoing

sexual abuse starting from when she was 13 years of age up until when she was 18 years of

age." In addition, B.R.'s mother corroborated B.R.'s testimony as to appellant's work

schedule, which facilitated appellant being alone with B.R. in the mornings. Mother also

testified that appellant would often sleep on the couch, rather than their bedroom, which

corroborated B.R.'s testimony that appellant typically slept on the couch and came into her

room one night, asked for oral sex, and had vaginal intercourse with her. Mother also

testified that she did not tell B.R. to make these allegations, and there was no evidence that

B.R. had any other motive to lie about appellant's conduct.

       {¶ 54} This testimony, coupled with B.R.'s testimony as outlined in our discussion of

Assignment of Error No. 2, leads to the conclusion that there was competent, credible

testimony that the jury could have reasonably relied upon to determine that appellant used

force or the threat of force to compel B.R. to engage in sexual conduct with him in violation of

R.C. 2907.02(A)(2). We also find competent, credible testimony to support the jury's findings

that appellant engaged in sexual conduct with B.R. and that he was her natural father,

thereby violating R.C. 2907.03(A)(5). Thus, we cannot say that the jury clearly lost its way

and created such a manifest miscarriage of justice as to warrant a reversal of appellant's

convictions. As such, appellant's convictions were not against the manifest weight of the

evidence and were, consequently, supported by sufficient evidence.
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                                                                        Warren CA2012-04-036

       {¶ 55} Appellant's third assignment of error is overruled.

       {¶ 56} Judgment affirmed.


       BRESSLER, J., concurs.


       PIPER, J., concurs separately.


       PIPER, J., concurring separately.

       {¶ 57} I concur with the majority opinion, but write separately because I do not share

the majority's expressed concerns regarding the trial court's limited questioning of a witness

after direct examination.     The trial court's very limited questions for the purposes of

clarification were entirely proper and appropriate.

       {¶ 58} In reading the limited exchange conducted by the trial court "just to clarify," it is

clear that the trial court was merely eliciting testimony to ensure the accuracy of what the

witness was alleging. In litigation the judge and jury must make tremendously significant

decisions and ensuring that the testimony has been given accurately and correctly

understood is an important function of the court. Because I see the trial court's brief

questions as the opposite of an "unwarranted intervention," I express my own views on the

subject. Furthermore, it should be noted that both parties had an opportunity to subsequently

address the witness with additional, or follow up, questions. Nothing the trial court did even

remotely ran afoul of Evid.R. 614(B). The trial court's questions were entirely reasonable

under the circumstances, and unbiased, thus appellant's assignment of error in this regard

must fail.



       Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.



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