[Cite as State v. Skidmore, 2010-Ohio-5940.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                  )   CASE NO. 08 MA 165
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )   OPINION AND
                                               )   JUDGMENT ENTRY
MICHAEL SKIDMORE                               )
                                               )
        DEFENDANT-APPELLANT                    )


CHARACTER OF PROCEEDINGS:                          Appellant’s Application to Reopen
                                                   Appeal

JUDGMENT:                                          Denied.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Timothy Young
                                                   Ohio Public Defender
                                                   Atty. Claire R. Cahoon
                                                   Assistant State Public Defender
                                                   250 East Broad Street – Suite 1400
                                                   Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: December 2, 2010
[Cite as State v. Skidmore, 2010-Ohio-5940.]
PER CURIAM.


        {¶1}     Appellant, Michael Skidmore filed an appeal to this Court following a

conviction on charges of rape and gross sexual imposition.               We affirmed his

conviction on June 18, 2010. He subsequently filed an App.R. 26(B) application to

reopen his criminal appeal based on a claim of ineffective assistance of appellate

counsel on September 1, 2010. The state filed its response brief on September 9,

2010. For the following reasons, Appellant’s application is denied.

        {¶2}     In an application for reopening, the defendant must set forth any

assignments of error not considered on the merits or considered on an incomplete

record due to appellate counsel’s deficient representation. App.R. 26(B)(2)(c). The

application will be granted if there is a genuine issue as to whether the defendant

was deprived of the effective assistance of counsel. App.R. 26(B)(5).

        {¶3}     Counsel’s performance is deficient if it falls below an objective standard

of reasonableness. State v. Reynolds (1998), 80 Ohio St.3d 670, 674, 687 N.E.2d

1358. The defendant must produce evidence that counsel acted unreasonably by

substantially violating essential duties owed to the client. State v. Sallie (1998), 81

Ohio St.3d 673, 674, 693 N.E.2d 267.              On review, counsel enjoys a strong

presumption that his or her performance fell within a wide range of reasonable legal

assistance. State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965.

        {¶4}     Once a defendant has demonstrated that counsel’s performance was

deficient, the defendant then has the burden to establish prejudice in his or her

defense as a result of counsel’s deficiency. Reynolds, supra, at 674. The reviewing

court must look at the totality of the evidence and decide if there exists a reasonable
                                                                                     -2-

probability that, were it not for serious errors made, the outcome of the trial would

have been different. Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct.

2052, 80 L.Ed.2d 674.        A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id.

       {¶5}   Appellant was convicted in the Mahoning County Court of Common

Pleas on one count of rape, in violation of R.C. 2907.02(A)(1)(b)(B) (victim under the

age of thirteen/threat of force), a felony of the first degree, three counts of rape, in

violation of R.C. 2907.02(A)(2)(B) (force or threat of force), felonies of the first

degree, one count of gross sexual imposition, in violation of R.C. 2907.05(A)(4)(B)

(victim under the age of thirteen), a felony of the third degree, and three counts of

gross sexual imposition, in violation of R.C. 2907.05(A)(1)(B), felonies of the fourth

degree (force or threat of force).

       {¶6}   Appellant’s victim was his step-daughter, H.R. Appellant was charged

with one count of rape and one count of gross sexual imposition for each of the years

between H.R.’s tenth and sixteenth birthdays. Appellant was acquitted of the rape

and gross sexual imposition charges allegedly incurred when H.R. was ten and

eleven years of age.

       {¶7}   Appellant argued in his direct appeal that the trial court erred in

admitting the testimony of H.R.’s boyfriend and a child molestation expert because

their testimony served no other purpose than to bolster H.R.’s credibility. Appellant

also asserted that one of the gross sexual imposition charges failed to state an

offense because an essential element of the crime was omitted from the indictment.

Appellant argued that he was denied a fair trial based upon statements made by the
                                                                                     -3-

prosecutor in opening and closing arguments. Finally, he argued his convictions

were against the manifest weight of the evidence because H.R.’s testimony was

unworthy of credence and there was no physical evidence of the crimes.              We

affirmed Appellant’s conviction.

       {¶8}   In his application for reopening, Appellant contends that his appellate

counsel was ineffective because he did not argue that there was insufficient evidence

to sustain the rape and gross sexual imposition convictions relating to the years H.R.

was fourteen and fifteen. Appellant also claims there was insufficient evidence to

establish that those crimes occurred in Mahoning County, because H.R. testified that

some of the abuse occurred at his parents’ house in Diamond, Ohio.

       {¶9}   Sufficiency of the evidence is the legal standard applied to determine

whether the case may go to the jury or whether the evidence is legally sufficient as a

matter of law to support the jury verdict. State v. Smith (1997), 80 Ohio St.3d 89,

113, 684 N.E.2d 668.      In essence, sufficiency is a test of adequacy. State v.

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Whether the evidence

is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the

record for sufficiency, 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. Smith, supra, at

113.

       {¶10} Appellant states:

       {¶11} “Here, while H.R. testified that [Appellant] engaged in sexual conduct

with her many times, she was only able to say that acts of sexual conduct definitely
                                                                                       -4-

occurred when she was twelve and thirteen. H.R. did not state that she engaged in

sexual conduct with [Appellant] at ages fourteen and fifteen. Instead, the prosecutor

asked her ‘How long did all of this stuff keep happening for? How long did it go on?’

H.R. responded that ‘this stuff’ happened until she was fifteen. That testimony does

not clarify for the jury what acts of conduct are being alleged.

       {¶12} “Later, the prosecutor asked H.R., ‘This all started when you were 10?’

‘And when you were 15 up until you started dating Elmer and a couple times that

summer; right?’ H.R. answered in the affirmative, but nothing in the record indicates

what specific act of conduct the term ‘this stuff’ alleges.” (Internal citations omitted.)

(Appellant’s Application at pp. 6-7.)

       {¶13} Appellant cites State v. Crosky, 10th Dist. No. 06-AP-655, 2008-Ohio-

145, for the proposition that the state must offer evidence of specific conduct during

the time frame alleged in the indictment in order to sustain a conviction for rape or

gross sexual imposition. Id., ¶65. In State v. Lucas (September 21, 2001), 2d Dist.

No. 18644, the Second District held, “[a] conviction for rape requires positive

evidence, either direct or circumstantial, that sexual conduct of the type alleged in the

indictment occurred on or about the time and place specified.” Id. *2.

       {¶14} Contrary to Appellant’s argument, the record reflects that H.R. testified

Appellant would coerce her into performing sex acts by telling her that she “owe[d]”

him, and that this occurred more than once a week. (Tr., p. 251.) She testified that

most often she would perform oral sex, which began when she was 12 years of age.

(Tr., pp. 248, 252.) The prosecutor asked if this conduct “kept going” while she was
                                                                                       -5-

fourteen and fifteen, and H.R. responded in the affirmative, testifying that it continued

until she started dating a boy when she was fifteen. (Tr., p. 253.)

       {¶15} As to the location of the crimes, H.R. testified that the abuse took place

in her bedroom, the bathroom, and Appellant’s bathroom.               (Tr., p. 250.)   The

prosecutor inquired, “[o]ther than your house, did [Appellant] ever do this sort of stuff

to you anywhere else?” H.R. replied, “[y]es, in the car, at his parents’ house.” (Tr., p.

250.) However, later in her testimony, she stated that most of the acts occurred in

Mahoning County. (Tr., p. 271.)

       {¶16} A fact finder could rationally conclude that Appellant was guilty of rape

and gross sexual imposition during H.R.’s fourteen and fifteenth years and that those

crimes occurred in Mahoning County based on the evidence offered at trial.

Appellant has not established his ineffective assistance of counsel claim, and the

application for reopening his criminal appeal is denied.

Waite, J., concurs.

Donofrio, J., concurs.

DeGenaro, J., concurs.
