[Cite as State v. Moats, 2016-Ohio-7019.]



                             STATE OF OHIO, MONROE COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO                                    )
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )           CASE NO. 14 MO 0006
VS.                                              )
                                                 )                  OPINION
MARCUS MOATS                                     )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from the Court of
                                                 Common Pleas of Monroe County, Ohio
                                                 Case No. 2013 -311

JUDGMENT:                                        Affirmed.

APPEARANCES:
For Plaintiff-Appellee                           Attorney James Peters
                                                 Monroe County Prosecutor
                                                 101 North Main Street, Room 15
                                                 Woodsfield, Ohio 43793

For Defendant-Appellant                          Attorney Carrie Wood
                                                 Assistant Public Defender
                                                 250 East Broad Street, Suite 1400
                                                 Columbus, Ohio 43215

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                 Dated: September 22, 2016
[Cite as State v. Moats, 2016-Ohio-7019.]


DeGENARO, J.
        {¶1}     Defendant-Appellant Marcus Moats appeals his conviction on 46 counts
of rape, contending there was insufficient evidence to sustain five convictions, and
that his convictions on multiple, identical, and undifferentiated counts of rape violated
double jeopardy principles. Because Moats' assignments of error are meritless the
judgment of the trial court is affirmed.
                                  Facts and Procedural History
        {¶2}     Moats was arrested on July 8, 2013, when his girlfriend unexpectedly
returned to the residence they shared with her three children. As she entered the
house, she heard footsteps receding down the hall, then discovered Moats naked in
bed, and C.H., who was eleven years old, hiding in the bathroom wearing nothing
from the waist down. C.H. had previously accused Moats of molesting her, but
always retracted her accusations. During a lengthy police interview on that same day,
Moats—while awaiting DNA test results for him and C.H.—confessed to engaging in
vaginal sex with C.H. on five occasions, oral sex with C.H. on three occasions, and
"[m]aybe like [expletive] twice" digitally penetrating C.H.
        {¶3}     The    State     later indicted Moats on forty-six counts        of rape,
distinguishable only by the time frame when the alleged crimes were committed:
Counts 1-20, from February 25, 2010 to April 28, 2012; Counts 21-35, from May 1,
2012 to May 30, 2013; Count 36 on July 8, 2013–the day Moats was arrested; and
Counts 37-46, from June 1 to July 7, 2013.
        {¶4}     On August 15, 2013, Moats filed a motion for bill of particulars which
was unopposed. Then, on February 4, 2014, Moats filed an omnibus pretrial motion
seeking, inter alia, dismissal of the indictment, asserting the rape charges in the
indictment were vague and ambiguous. Alternatively Moats made a second request
for a bill of particulars. On April 2, 2014, the trial court held the indictment was neither
vague nor ambiguous, but nonetheless granted the motions for a bill of particulars.
        {¶5}     On April 11, 2014, the State filed the bill of particulars, which
additionally added the locations of the alleged crimes, as Moats and C.H. lived in
three different residences over the relevant time period– Maple Avenue, Moore Ridge
Road, and Devon Road, as well as the specific sex act alleged – including vaginal,
                                                                                    -2-


anal and oral rape, and digital penetration of C.H.'s vagina.
       {¶6}   After trial proceedings commenced, at a hearing following the
completion of voir dire, the trial court granted the state's motion to amend the
indictment, that is – to change the date "May 1, 2012" to "April 28, 2012" in Counts 1-
20, and to correct a typographical error in count 36 – changing "July 18, 2013" to
"July 8, 2013."
       {¶7}   C.H. testified to an ongoing pattern of anal, oral, and vaginal rape
beginning when she was eight years old, including the estimated number of times
that she was raped at each residence. At the conclusion of the state's case, Moats
moved for a judgment of acquittal, arguing C.H. did not recall the alleged crimes with
sufficient specificity, and that Moats could not properly defend himself "when the
state doesn't even know how many acts occurred, or when and where or under the
circumstances." Moats further argued "if the allegations were one count during a
period of time, and another count during a second period of time or whatever, that
might give [him] a reasonable basis to defend his case." The State responded that
this Court's opinions in Billman and Stefka, infra, require only that the State prove the
alleged crimes occurred "at least as many times as that which is alleged in the
indictments." The trial court denied the motion for judgment of acquittal.
       {¶8}   Moats was convicted on all counts and sentenced as follows: to
concurrent life without parole terms for Counts 1-20; and concurrent 25 years to life
terms for Counts 21-46, but consecutively to the sentences imposed for Counts 1-20.
Moats was twenty-four years old on the day of sentencing.
                                    Corpus Delecti
       {¶9}   Moats asserts in his first assignment of error:

       The trial court violated Marcus Moats' federal and state constitutional
       rights to due process and a fair trial by admitting Mr. Moats' statement
       without independent proof of the corpus delicti of the charged crimes in
       Counts 45 and 46. Fifth and Fourteenth Amendments, United States
       Constitution; Section 10, Article I, Ohio Constitution.

       {¶10} The only evidence of vaginal digital penetration admitted at trial was
                                                                                    -3-


Moats' confession and the testimony of Sergeant Abbott regarding the circumstances
of Moats' confession. During the police interview, after Moats conceded to five acts of
vaginal rape and three acts of oral rape, Sergeant Abbott asked, "Okay. And then
how many times did you, you know, when she was giving you a bl*w j*b, you fingered
her?" Moats responded, "I don't know, [expletive], I know we didn't do that too much,
but . . ." Sergeant Abbott interrupted, "Just maybe every once in a while?" Moats
responded, "Yeah. Maybe like [expletive] twice."
       {¶11} C.H. did not testify that vaginal digital penetration occurred; she actually
denied Moats penetrated her vagina with anything other than his penis. While
testifying about vaginal rape at Devon, C.H. was asked, "And what about in, as you
say, your front, what things would be put in your front?" C.H. responded, "His
private." The prosecutor further inquired, "Did he ever put anything else in the front?"
C.H. responded, "No."
       {¶12} We must first address the applicable standard of review. Moats did not
object on corpus delicti grounds in the trial court contending he was prevented from
timely objecting because C.H.'s testimony was taken after Sergeant Abbott.
However, Moats should have objected to the admission of his confession at the
conclusion of C.H.'s testimony. Moreover, Moats' motion for a judgment of acquittal
does not constitute a corpus delecti challenge, and plain error review applies. Where
a defendant does not object to the admission of his confession on corpus delicti
grounds at trial, he can only proceed with plain error or ineffective assistance of
counsel arguments. State v. Miller, 7th Dist., Mahoning No. 13MA12, 2014-Ohio-
2936, ¶123; State v. Morgan, 12th Dist. Clermont No. 2013-03-021, 2014-Ohio-250,
¶14.
       {¶13} Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court."
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The Ohio Supreme
Court articulated a three-part test for the finding of plain error:

       First, there must be an error, i.e. a deviation from a legal rule. Second,
       the error must be plain. To be "plain" within the meaning of Crim.R.
       52(B), an error must be an "obvious" defect in the trial proceedings.
                                                                                     -4-


       Third, the error must have affected "substantial rights." We have
       interpreted this aspect of the rule to mean that the trial court's error
       must have affected the outcome of the trial. (Citations omitted.)

Id.
       {¶14} Thus, notice of plain error "is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of
the syllabus.
       {¶15} Moats contends that plain error exists as C.H. denied that any vaginal
digital penetration occurred. The State counters that C.H.'s testimony regarding
ongoing anal, vaginal, and oral rape was sufficient to meet the minimal burden in
Ohio. However, the State cited no case law in support of this argument.
       {¶16} The corpus delicti rule provides that before an out-of-court confession
will be admitted, the corpus delicti—the body of the crime: meaning the act and the
criminal agency—must be established by evidence outside of the confession. See
State v. Van Hook, 39 Ohio St.3d 256, 261, 530 N.E.2d 883 (1988), citing State v.
Maranda, 94 Ohio St. 364, 114 N.E. 1038 (1916).              The Ohio Supreme Court
recounted the historical origins of the corpus delecti rule and pointed out that, in light
of the procedural safeguards protecting the due process rights of criminal defendants
in the 70s, the corpus delicti rule was supported by few practical or social-policy
considerations. As such, there was little reason to apply the rule with "dogmatic
vengeance." State v. Edwards, 49 Ohio St.2d 31, 36, 358 N.E.2d 1051 (1976).
       {¶17} The burden upon the State to provide evidence of the corpus delecti is
minimal. Id. The State does not need to provide direct and positive proof that a crime
was committed, but may rely upon circumstantial evidence in proving the corpus
delecti. Van Hook at 261. "[T]he standard of proof is not a demanding one." There
need only be some evidence outside of the confession that tends to prove some
material element of the crime charged but not all elements, and that evidence need
not rise to the level of a prima facie case. Id. at 261–262. Significantly, opinions from
the Ohio Supreme Court suggest that the corpus delicti requirement for confessions is
a rule of admissibility. See Van Hook, 39 Ohio St.3d at 261; Edwards, 49 Ohio St.2d at
                                                                                    -5-


35.
       {¶18} Moats contends that plain error exists here, insofar as C.H. denied that
any digital penetration occurred. The State counters that C.H.'s remaining testimony
regarding ongoing anal, vaginal, and oral rape was sufficient to meet the minimal
burden in Ohio. However, the State cited no case law in support of this argument.
       {¶19} Rape is defined in R.C. 2907.02, as follows:

       (A)(1) No person shall engage in sexual conduct with another who
       is not the spouse of 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.

       {¶20} "Sexual conduct" is defined as vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;
and, without privilege to do so, the insertion, however slight, of any part of the body
or any instrument, apparatus, or other object into the vaginal or anal opening of
another. Penetration, however slight, is sufficient to complete vaginal or anal
intercourse. R.C. 2907.01(A).
       {¶21} In State v. Shannon, 11th Dist. Lake No. 2002-L-007, 2002-L-008, 2004-
Ohio-1669, the defendant was charged with rape by digital penetration, but the victim
testified that, although Shannon rubbed her vagina, she did not know whether he
penetrated her. The Eleventh District recognized that, standing alone, the victim's
testimony was insufficient. Nonetheless, the Shannon Court relied upon the victim's
testimony—that defendant rubbed her vagina with his hand when she did not have
any clothes on—to conclude that "rubbing the vagina" could be the precursor to
"penetration" if there is any insertion whatsoever of the fingers. Based upon the
statutory language recognizing that even slight penetration constituted a violation of
Ohio law, and the "very minimal corroborative evidence" needed to be introduced, the
digital penetration conviction was affirmed. Id. at ¶53.
       {¶22} Similarly,in State v. Schauer (May 15, 2000), 4th Dist. Pickaway App.
No. 99CA17, 2000 WL 670304, the defendant was charged with raping his 15-year-
                                                                                     -6-


old daughter by inserting his finger into her vagina. Schauer admitted he told his
daughter to remove her clothing, that he had whipped her with a belt, and that he had
inserted his finger into her vagina three times. However, at trial, the victim refused to
discuss the events that occurred and insisted that she had lied when she said that
Schauer inserted his finger into her vagina. Although the Fourth District determined
that the victim's statements to a physician were inadmissible, with regard to the
defendant's corpus delicti argument, it was immaterial that the victim's statements
were not admissible because there was sufficient evidence of the corpus delicti in
the record: The victim's sister heard her screaming and called the police; the victim
said she was afraid of Schauer and that he made her remove her underpants as he
read a sexually explicit letter she had written to her boyfriend. The police told the
victim to go to the emergency room after they spoke with her, and further testified
that Schauer's and the victim's stories were similar. The physician testified that, after
his interview with the victim, he felt prompted to ask her about a pelvic examination.
The Fourth District held this evidence satisfied the corpus delecti requirement
relative to the rape charge of digital penetration and affirmed.
       {¶23} This is our first opportunity to address the merits of a corpus delecti
challenge to a rape conviction. We are persuaded by the rationale articulated by our
sister districts. The burden on the State is minimal. C.H.'s testimony regarding an
ongoing pattern of sexual conduct by Moats establishes some but not all of the
material elements of rape by digital penetration. See Van Hook at 261-62. (There
need only be some evidence outside of the confession that tends to prove some
material element of the crime charged (not all elements), and that evidence need not
rise to the level of a prima facie case.) Thus, Moats has failed to demonstrate error
let alone plain error. Accordingly, Moats' first assignment of error is meritless.
       {¶24} For clarity of analysis, we turn next to Moats' third assignment of error:

       The trial court violated Marcus Moats' rights to due process and a fair
       trial when, in the absence of sufficient evidence, it entered a judgment
       entry convicting Mr. Moats on Counts 27 through 30, 45 and 46. Fifth
       and Fourteenth Amendments, United States Constitution; Section 16,
                                                                                   -7-


      Article I of the Ohio Constitution; Crim. R. 52(B).

      {¶25} Sufficiency of the evidence is a legal test dealing with the adequacy, as
opposed to the weight, of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). A conviction will not be reversed unless after viewing the
evidence in the light most favorable to the prosecution, that no rational trier of fact
could find that the elements of the offense were proven beyond a reasonable doubt.
State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998); State v. Smith, 80
Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In other words, the evidence is sufficient
if, reasonable minds can reach different conclusions as to whether each element has
been proven. Id. When evaluating the sufficiency of the evidence, circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, 61 Ohio
St.3d 259, 272–273, 574 N.E.2d 492 (1991).
      {¶26} With respect to the digital penetration rape convictions in counts 45 and
46, Moats' confession and C.H.'s testimony establishing an ongoing pattern of vaginal,
anal and oral rape. When viewed in a light most favorable to the prosecution this
constitutes sufficient evidence such that a rational trier of fact could find that the
elements of the offenses were proven beyond a reasonable doubt.
      {¶27} Moats next asserts a sufficiency challenge to his convictions on Counts
27-30, all but one of the oral rape counts, which occured at Moore Ridge. C.H.
testified that she performed fellatio "sometimes but not always" at Moore Ridge and
that Moats "didn't really do it anymore in [her] mouth, but sometimes he would."
However, later in her testimony, C.H. was asked by the prosecutor, "And what about
in your mouth at the Moore Ridge?" She responded, "I absolutely don't remember."
The prosecutor then asked, "Okay. Would it be one time?" C.H. responded, "No. It
would be more than that." The prosecutor followed, "More than one. How about more
than ten?" C.H. responded, " Yeah."
      {¶28} The credibility of witnesses and the weight to be given their testimony is
to be resolved by the trier of fact. See State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967). Moreover, witness credibility is considered in a manifest weight
not a sufficiency challenge. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068
(1996), and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d 548 (1964).
                                                                                     -8-


       {¶29} C.H. testified that she performed fellatio on Moats more than ten times.
When viewed in a light most favorable to the prosecution this constitutes sufficient
evidence such that a rational trier of fact could find that the elements of the offenses
were proven beyond a reasonable doubt. Accordingly, Moats's third assignment of
error is meritless.
          Multiple Count Indictment—Identical, Undifferentiated Counts
        {¶30} Moats asserts in his second and final of three assignments of error:

       The trial court erred by conviction Marcus Moats based upon multiple,
       identical, and undifferentiated counts of a single offense, denying him
       due process of law and violating the Double Jeopardy Clause. Fifth and
       Fourteenth Amendments, United States Constitution; Section 10, Article
       I, Ohio Constitution.

       {¶31} In an omnibus pre-trial motion Moats sought dismissal of the indictment
on the grounds that it was vague and ambiguous, and did not set forth with sufficient
specificity "when or where said alleged criminal conduct occurred or the state of mind
required in a manner sufficient to permit defendant to prepare an adequate defense.
In the alternative, Moats moved for a bill of particulars. This motion was Moats'
second request for a bill of particulars as a prior motion was still pending at the time.
The trial court found that the indictment was neither vague nor ambiguous, but
nonetheless granted the motions.
       {¶32} The following chart contains the allegations, as amended by the bill of
particulars, as well as C.H.'s testimony regarding the criminal conduct alleged:
                                                                     -9-


Counts   Date         Location   Conduct           C.H.'s
                                 Alleged           testimony
                                 (including
1-10     February     Maple      Defendant did     "over 100
         2010                    insert his        times,"
         through                 penis into        "whenever he
         April                   C.H.'s anus       got the
         2012                    on at least 10    chance," and
                                 separate          "almost every
                                 occasions, all    day."
                                 of which
                                 occurred on       "[p]robably
                                 separate          forty-five to fifty
                                 days; C.H.        times."
                                 was less than
                                 10 years old.

11-20    February     Maple      Defendant did     "Probably a
         2010                    cause C.H. to     little bit over
         through                 perform           45 [times]."
         April 2012              fellatio on him
                                 by inserting
                                 his penis into    "probably
                                 C.H.'s mouth      somewhere in
                                 on at least ten   the twenties or
                                 (10) separate     thirties range."
                                 occasions, all
                                 of which were
                                 on separate
                                 days; C.H.
                                 was less than
                                 10 years old.
                                                                 - 10 -


Counts   Date       Location   Conduct Alleged      C.H.'s
                               (including Bill of   testimony
                               Particulars)

21-25    May 2012   Moore      Defendant did        "sometimes
         through    Ridge      insert his penis     but not
         May 2013              into C.H.'s anus     always."
                               on at least 5        it "still
                               separate             happened" but
                               occasions, all of    C.H. could not
                               which occurred       estimate the
                               on separate          number of
                               days; C.H. was       times.
                               less than 10
                               years old.           "didn't really
                                                    happen that
                                                    often. It only
                                                    happened I'd
                                                    say 21 times.
                                                    Somewhere
                                                    around there."

                                                    "A: Like he
                                                    would, at the
                                                    time that we
                                                    were living [on
                                                    Moore Ridge],
                                                    he'd just in the
                                                    front, and not
                                                    like in the
                                                    back end and
                                                    mouth."
[Cite as State v. Moats, 2016-Ohio-7019.]



 Counts                Date            Location   Conduct Alleged       C.H.'s
                                                  (including Bill of    testimony
                                                  Particulars)

    26-30              May             Moore      Defendant did         "sometimes
                       2012            Ridge      cause C.H. to         but not
                       through                    perform fellatio on   always.";
                       May                        him by inserting      "didn't really
                       2013                       his penis into        do it anymore
                                                  C.H.'s mouth on at    in my mouth,
                                                  least ten (10)        but sometimes
                                                  separate              he would."
                                                  occasions, all of
                                                  which were on
                                                  separate days;        "Q: Okay. And
                                                  C.H. was less          what about
                                                  than 10 years old.     your mouth at
                                                                         the Moore
                                                                         Ridge? A: I
                                                                         absolutely
                                                                         don't
                                                                         remember.
                                                                         Q: Okay.
                                                                         Would it be
                                                                         one time?
                                                                         A: No. It would
                                                                         be more than
                                                                         that.
                                                                         Q: More than
                                                                         one. How
                                                                         about more
                                                                         than ten?
                                                                         A: Yeah."
[Cite as State v. Moats, 2016-Ohio-7019.]


  Counts                Date            Location    Conduct                C.H.'s
                                                    Alleged                testimony
                                                    (including Bill of
                                                    Particulars)
      31-35             May 2012            Moore   Defendant did          "like about
                        through             Ridge   insert his penis       every day
                        May 2013                    into C.H.'s vagina      after he came
                                                    on at least five (5)    home from
                                                    separate                school." Tr. II
                                                    occasions, all of       at 188, 198..
                                                    which were on           C.H. agreed
                                                    separate days;          that it
                                                    C.H. was less           happened
                                                    than 10 years old.      more than 5
                                                                            times when
                                                                            asked.

      37-41             June                Devon    Defendant did         "about every
                        2013                         insert his penis      day," "probably
                        through                      into C.H.'s           in the thirties
                        July                         vagina on at          range,
                        2013                         least five (5)        somewhere in
                                                     separate              there."
                                                     occasions (no
                                                     allegation of
                                                     separate days);
                                                     C.H. was more
                                                     than 10 but less
                                                     than 13 years
                                                     old.
       42-44             June           Devon       Defendant did          Sexual
                         2013                       cause C.H. to          conduct
                         through                    perform fellatio on    occurred
                         July 2013                  him by inserting       "just in [her]
                                                    his penis into         front and in
                                                    C.H.'s mouth on        her mouth."
                                                    at least 3
                                                    separate               "Q: And what
                                                    occasions (no          about in your
                                                    allegation of          mouth?"
                                                    separate days);
                                                    C.H. was more          "A: It didn't
                                                    than 10 but less       really happen
                                                    than 13 years old.     that often, so
                                                                           probably five
                                                                           to ten times."
                                                                  - 13 -


Counts    Date      Location    Conduct              C.H.'s
                                Alleged              testimony
                                (including Bill of
                                Particulars)
  45-46   June      Devon      Defendant did         "Q: And what
          2013                 insert his fingers    about in, as
          through              into C.H.'s vagina    you say your
          July                 and digitally         front, what
          2013                 penetrate her on      things would
                               at least 2            be put in your
                               separate              front?
                               occasions (no         A: His
                               allegation of         private.
                               separate days);       Q: Okay: Did
                               C.H. was more         he ever put
                               than 10 but less      anything else
                               than 13 years         in the front?
                               old.                  A: No."

                                                     "Q: What
                                                     parts of his
                                                     body
                                                     penetrated
                                                     yours? A:
                                                     Like, his front
                                                     privates. Q:
                                                     His front
                                                     privates.
                                                     Would that
                                                     be his
                                                     A: Yes."
[Cite as State v. Moats, 2016-Ohio-7019.]
        {¶33} Moats challenges his convictions in Counts 2-10, 12- 20, 22-25, 27-30,
32-35, 38-41, 43-44, and 46, arguing the factual bases these multiple, identical and
undifferentiated counts of a single offense were not distinguished in the indictment,
bill or particulars, or through trial testimony.
        {¶34} An individual accused of a felony in Ohio is "entitled to an indictment
setting forth the 'nature and cause of the accusation' pursuant to Section 10, Article I
of the Ohio Constitution." State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781
(1985). The General Assembly has defined a sufficient indictment as:

        (A)* * * entitled in a court having authority to receive it, though the name
        of the court is not stated; * * * that it was found by a grand jury of the
        county in which the court was held, * * *
        (B) That the defendant is named, * * *
        (C) That an offense was committed at some place within the jurisdiction
        of the court, * * *
        (D) That the offense was committed at some time prior to the time of
        finding of the indictment * * *

R.C. 2941.03.
        {¶35} R.C. 2941.04 through R.C.2941.06 allow multiple offenses to be
charged in a single indictment and govern the form of the statement charging the
offense and the form of the indictment. Crim.R. 7, which is otherwise substantively
identical to the controlling statutes, also requires the indictment to include the
Revised Code section number of the statutory violation charged.
        {¶36} The purpose of a criminal indictment is twofold; to afford the accused
with "adequate notice and an opportunity to defend" by "compelling the government
to aver all material facts constituting the essential elements of an offense" and also to
"protect himself from any future prosecutions for the same offense." Sellards at 170.
Our review of the indictment here reveals that it meets the statutory and rule
requirements as set forth above.
        {¶37} Moreover, indictments dealing with sexual offenses against children do
                                                                                      - 15 -

not need to specify the exact date of the alleged abuse if the State establishes that
the offense was committed within the time frame alleged. See State v. Billman, 7th
Dist. Nos. 12MO3, 12MO5, 2013-Ohio-5774, ¶ 30; State v.Yaacov, 8th Dist. No.
86674, 2006–Ohio–5321, ¶ 17; State v. Gus, 8th Dist. No. 85591, 2005–Ohio–6717.
This is because the specific date and time of the offense are not elements of the
crime charged. Billman at ¶ 30, citing Gus at ¶ 6. Further, many child victims are
unable to remember exact dates and times, particularly where the crimes involved a
repeated course of conduct over an extended period. Billman at ¶ 30, citing State v.
Mundy, 99 Ohio App.3d 275, 296, 650 N.E.2d 502, (2d Dist.) (1994). "The problem is
compounded" where, as here, "the accused and the victim are related or reside in the
same household, situations which often facilitate an extended period of abuse."
Billman at ¶ 30, citing State v. Robinette, 5th Dist. No. CA–652, 1987 WL 7153, *3
(Feb. 27, 1987). Thus, "[a]n allowance for reasonableness and inexactitude must be
made for such cases considering the circumstances." Id.
       {¶38} An exception to this general rule is when the failure to allege a specific
date "results in material detriment to the accused's ability to fairly defend himself, as
where the accused asserts an alibi or claims that he was indisputably elsewhere
during part, but not all, of the interval specified." (Internal citations omitted.) Billman,
supra, at ¶ 30, citing Yacov at ¶ 18. However, Moats has not identified any such
defense that was foreclosed.
       {¶39} Turning next to the bill of particulars, it need not provide specific dates
and times where date and time is not an element of the offense charged. State v.
Clemons, 7th Dist. No. 10 BE 7, 2011–Ohio–1177, ¶ 37; R.C. 2941.03(E). The Ohio
Supreme Court has recognized that the limited purpose of a bill of particulars is "to
elucidate or particularize the conduct of the accused alleged to constitute the
charged offense," but not "to provide the accused with specifications of evidence or
to serve as a substitute for discovery." Sellards, supra, at 171. Thus, a bill of
particulars need not list a specific date and time, because this information only
describes when certain conduct may have occurred and does not describe the
conduct itself, which is the proper subject of the bill. Id.
                                                                                     - 16 -

       {¶40} Having concluded that the indictment and the bill of particulars in this
case satisfy the requirements of Ohio law, we must next consider the testimony
offered at trial in order to determine whether a constitutional violation has occurred.
       {¶41} In State v. Stefka, 7th Dist. No. 10 MO 7, 2012–Ohio–3004, 973 N.E.2d
786, this Court upheld fourteen convictions for rape and thirteen convictions for gross
sexual imposition where the indictment distinguished between the various counts, the
bill of particulars provided additional distinguishing details, and the evidence
presented at trial tended to prove that there were more instances of the offenses than
charged in the indictment. Stefka, at ¶ 49. We reached the same conclusion in
Billman, supra, where the victim testified that nineteen separate incidents of gross
sexual imposition occurred, and Billman was only indicted and convicted of six counts
of that crime. "[Billman], much like the defendant in Stefka was charged by a valid
grand jury indictment and convicted on fewer than half of the incidents described in
testimony." Billman at ¶36, citing Stefka, at ¶ 49. Finally, in State v. Garrett, 7th Dist.
08 BE 32, 2010–Ohio–1550, ¶ 47, affirming the validity of a multi-count indictment,
we reasoned that a defendant who commits multiple crimes against the children
placed in his care should not be protected from prosecution because he committed
multiple instances of the same crime in the same manner.
       {¶42} Here, C.H. testified that Moats committed anal rape forty to fifty times at
Maple, but Moats was only indicted and convicted of ten counts of anal rape
occurring at the Maple residence. C.H. testified that Moats forced her to perform
fellatio over forty-five times at the Maple residence, but Moats was only indicted and
convicted of ten counts of oral rape on Maple. Moats was indicted and convicted of
five counts of anal rape at Moore Ridge, although C.H. testified that it occurred
somewhere around twenty-one times there. Moats was indicted and convicted of five
counts of oral rape on Moore Ridge, although C.H. testified that it occurred more than
ten times there. C.H. testified that Moats committed vaginal rape about every day that
she came home from school while they lived on Moore Ridge, and that it happened
more than five times; but Moats was indicted and convicted of five counts of vaginal
rape on Moore Ridge. At Devon, C.H. testified that vaginal rape occurred about every
                                                                                       - 17 -

day, approximately thirty times, at the Devon residence, but Moats was indicted and
convicted of five counts of vaginal rape at Devon. C.H. further testified that Moats
forced her to perform fellatio five to ten times on Devon, but Moats was only
convicted of three counts of oral rape on Devon. Finally, Moats confessed to twice
digitally penetrating C.H.'s vagina, and he was convicted of two counts of that crime.
       {¶43} Moats cites Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), as well as
opinions from other Ohio appellate courts relying on Valentine, for the proposition
that a carbon copy indictment—one that charges numerous, identically worded
charges—violates due process and double jeopardy. In Valentine, the defendant was
charged with 20 identically-worded counts of child rape and 20 identically-worded
counts of felonious sexual penetration of a child. No attempt was made to
differentiate any of the counts, either in the bill of particulars or at trial. At trial, the
child victim was able to testify to "about twenty" occasions of forced fellatio and
"about fifteen" instances of vaginal penetration. No other evidence as to the number
of instances was presented. All of the charges in Valentine were based on the same
time frame of abuse. The jury convicted Valentine of all 40 counts. Id. at 629.
       {¶44} Moats' reliance on Valentine and its progeny is misplaced for several
reasons. First, Ohio state courts are not bound by the Valentine decision. State v.
Clemons, 7th Dist. No. 10 BE 7, 2011-Ohio-1177, 2011 WL 861847, ¶ 8, fn. 2.
Second, as noted in Lawwill v. Pineda, N.D.Ohio No. 1:08 CV 2840, 2011 WL
1882456 (May 17, 2011), the United States Supreme Court has invalidated the
reasoning behind one of the major grounds for the Valentine decision. Id. at *5, citing
Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). The Lawmill
Court explained:

       Valentine relied primarily on Russell v. United States, 369 U.S. 749, 82
       S.Ct. 1038, 8 L.Ed.2d 240 (1962), and applied the three criteria for the
       sufficiency of an indictment established in that case. Although the
       Valentine court recognized, as is discussed in more detail below, that
       the federal right to a grand jury has never been found to be incorporated
                                                                                     - 18 -

       against the states, it cited several United States Circuit Court cases that
       have found that the same due process requirements set forth in Russell
       should be applied to state criminal charges. Following the decision in
       Valentine, however, the Supreme Court has clarified that any reliance
       on a circuit court decision, including that Circuit's own precedent, when
       determining what is "clearly established" federal law is error under the
       AEDPA standard [that is, the Antiterrorism and Effective Death Penalty
       Act of 1996, which altered the standard of review that a federal court
       must apply when deciding whether to grant a writ of habeas corpus].

Lawmill at *2.
       {¶45} Second, in Stefka, this Court recognized that the Sixth Circuit has not
relied on or even cited its own holding in Valentine since Renico was decided but for
U.S. v. Madison, 226 Fed.Appx. 535 (2007), which involved a federal indictment for
tax evasion and other related crimes. Finally, this case, like Stefka and Billman, is
factually distinguishable from Valentine in three major respects: the indictment
separated the counts by time; the bill of particulars provided additional details about
the crimes, including differentiating by location; and finally, the evidence presented at
trial demonstrated there were more instances of the crimes than were charged, not
less. See also Garrett, supra, similarly distinguishing Valentine.
       {¶46} For all these reasons, Moats' second assignment of error is meritless.
                                          Conclusion
       {¶47} The evidence of Moats' ongoing pattern of anal, oral, and vaginal rape
in this case is sufficient to fulfill the minimal evidentiary requirement necessary to
satisfy the corpus delecti rule; consequently, this challenge fails, and Moats'
confession was admissible.        With respect to Moats' challenge to his digital
penetration and oral rape convictions tied to the Moore residence, Moats' confession
and the additional evidence of the ongoing pattern of rape generally, as well as
C.H.'s testimony that she was forced to perform fellatio more than ten times on
Moore is sufficient evidence to support those convictions. Finally, Moats' indictment
                                                                             - 19 -

conformed with Ohio law, he received a bill of particulars specifying the type of
conduct he was charged with and testimony at trial demonstrate no due process or
double jeopardy violations occurred.
       {¶48} Accordingly, all of Moats' assignments of error are meritless, and the
judgment of the trial court is affirmed.


Donofrio, P. J., concurs.

Waite, J., concurs.
