[Cite as State v. Craig, 2017-Ohio-8939.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2016-L-113
        - vs -                                       :

JAMES D. CRAIG,                                      :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000634.

Judgment: Affirmed.


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

Mandy J. Gwirtz, Mandy Gwirtz, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123
(For Defendant-Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, James D. Craig, appeals his conviction on eight felony sexual

offenses, including rape and gross sexual imposition. Appellant challenges the

sufficiency and manifest weight of the evidence, the trial court’s failure to sever three

charges, and two evidentiary rulings. We affirm.

        {¶2}     Appellant and Jasmine Cleckner married in May 2003. Within a year, they
had a daughter, J.C. Shortly afterward, they moved to a home in Leroy Township, Lake

County, Ohio. Over the next five years they had two sons.

       {¶3}    Through the years, Jasmine obtained a degree and had a full-time job

working with computers.     At some point, appellant returned to school to obtain his

degree. Since he had more flexibility, he often cared for the children.

       {¶4}    The Leroy Township home has three stories, three bedrooms and two

bathrooms. Until May 2014, the upstairs bedroom was solely occupied by appellant’s

father. J.C. shared a bedroom with her two brothers and appellant and Jasmine shared

the third bedroom.

       {¶5}    Jasmine has two sisters, Lea Mitchell and Adrianna DiDomenico, both

West Virginia residents.     In July 2015, Lea visited Jasmine and their father, Carl

Cleckner in Leroy. At the conclusion of the visit, J.C. traveled with Lea to West Virginia

to spend a few weeks with her maternal grandmother, Jeanette DiDomenico. During

the car ride, Lea observed J.C., then eleven, behaving differently than the last time she

saw her.      Instead of being talkative, J.C. was withdrawn and wore headphones

throughout the trip.

       {¶6}    At the time of this visit, Adrianna DiDomenico, 18 years old, resided with

her mother, Jeanette, and father, William DiDomenico. Sensing issues, Jeanette asked

Adrianna to talk with J.C. When Adrianna initially saw J.C., Adrianna sensed that J.C.

had recently been crying and was upset. She persuaded J.C. to talk with her on the

front porch. J.C. became even more upset and cried uncontrollably. J.C. ultimately told

Adrianna that appellant had sexually molested her multiple times during the last

eighteen months and described the nature of the acts.




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       {¶7}   After J.C. was calmer, Adrianna had her write the details. Jeanette then

contacted the Child Advocacy Center in Charleston, West Virginia, and arranged for the

center’s director, Maureen Runyon, to interview J.C. During the recorded interview, J.C.

again gave a detailed description of appellant’s sexual abuse.

       {¶8}   According to J.C., the behavior began one night when she awoke to

appellant performing cunnilingus on her. Over the following weeks, appellant repeated

this act numerous times in multiple locations in their Leroy home. J.C. further asserted

that he tried to entice her into willing participation by promising her “benefits.” For

example, he would allow her additional time on the internet without parental controls. In

time, appellant engaged in additional sexual acts: (1) rubbing his finger or a vibrator on

her vaginal area; (2) inserting his finger into her vagina; (3) inserting the vibrator into her

vagina; (4) forcing her to masturbate him; and (5) on one occasion, appellant placed his

genitals on her lips, with J.C. refusing to open her mouth.            J.C. further said that

appellant had her “dress up” in her mother’s lingerie and panties, pose provocatively,

and that he photographed her using a red digital camera.

       {¶9}   A few days after the interview, J.C. underwent a physical examination by a

medical doctor. She had no physical signs of sexual abuse.

       {¶10} The information gathered was conveyed to the Lake County Sheriff’s

Department and used to obtain a search warrant for the Leroy residence. In executing

the warrant following appellant’s arrest, the authorities failed to locate digital

photographs of J.C. However, they seized a red digital camera and the described

vibrator.     The   authorities   also   found    two   computer     disks   containing   749

photographs/videos of child pornography, with many of pictures featuring girls




                                              3
appearing to be the same age as J.C., locked in a gun cabinet that Jasmine gifted to

appellant.

         {¶11} Within three months of appellant’s arrest, he was indicted on eleven

counts     including:   three   counts   of   rape,   a   first-degree   felony   under   R.C.

2907.02(A)(1)(b); three counts of gross sexual imposition, a third-degree felony under

R.C. 2907.05(A)(4); two counts of importuning, a third-degree felony under R.C.

2907.07(A) & (C)(1); one count of pandering obscenity involving a minor, a second-

degree felony under R.C. 2907.321(A)(1); one count of pandering obscenity involving a

minor, a fourth-degree felony under R.C. 2907.321(A)(5); and one count of pandering

sexually oriented matter involving a minor, a second-degree felony under R.C.

2907.322(A)(1).

         {¶12} In writing, J.C. claimed that appellant required her to view internet

pornography on various devices and to draw pornographic images.                    During its

investigation, the sheriff’s department retained J.C.’s Kindle to review her Internet

history. To access the Kindle, Jasmine asked J.C. to provide her the password. J.C.

did so, but recanted her claim that appellant forced her to view pornographic material

and acknowledged that she viewed the material herself out of curiosity. J.C. told her

mother that she lied out of embarrassment. She also admitted that she lied about being

required to draw pornographic images.

         {¶13} While the charges were pending, Jasmine continued to search and

cleanout the Leroy home. In the process, she found a small baggy containing 36 pubic

hairs in appellant’s baseball card collection stored in the master bedroom closet and a

garbage bag in the garage attic containing multiple pairs of toddler size 3T underwear




                                               4
belonging to J.C., along with a t-shirt belonging to appellant. Jasmine testified that J.C.

wore 3T until the fourth grade, and that she normally discarded J.C.’s underwear when

she outgrew them.

      {¶14} A six-day jury trial went forward in August 2016. In addition to J.C.’s

testimony, the state called Adrianna to testify regarding the statements J.C. made to her

during J.C.’s initial disclosure. The state also presented considerable evidence as to

changes in J.C.’s personality both before and after her disclosure. Appellant rested

without presentation of evidence. Appellant was found not guilty of the first of the two

importuning counts and two of the three pandering counts, but guilty of the remaining

eight counts.

      {¶15} The trial court ordered an aggregate prison term of 91.5 years to life:

three terms of twenty-five years to life on the rape counts; three five-year terms on the

gross sexual imposition counts; and eighteen months on the pandering count, all time to

be served consecutively.    The sole importuning count was merged for purposes of

sentencing.

      {¶16} Appellant asserts five assignments of error:

      {¶17} “[1.] The trial court erred when it denied defendant-appellant’s motion for

severance of offenses for trial, in violation of his rights to due process of law under the

Fourteenth Amendment of the U.S. Constitution and Sections 10 and 16, Article 1 of the

Ohio Constitution.

      {¶18} “[2.] The trial court violated the defendant-appellant’s constitutional right to

fair trial and due process as guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution and Sections 5 and 10, Article 1 of the Ohio Constitution




                                            5
when it admitted inadmissible hearsay testimony.

       {¶19} “[3.] The defendant-appellant was deprived of his constitutional rights to

fair trial and due process when the trial court admitted irrelevant and misleading

evidence.

       {¶20} “[4.] The trial court erred to the prejudice of the defendant-appellant in

denying his motion for acquittal made pursuant to Crim.R. 29(A).

       {¶21} “[5.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.”

       {¶22} The first assignment asserts that the trial court’s decision to overrule his

motion to sever three counts for separate trial denied him a fair trial on the remaining

eight counts.

       {¶23} Appellant moved to sever the following charges: count 7, importuning;

count 9, pandering obscenity involving a minor; and count 11, pandering sexually

oriented material involving a minor. These counts are primarily based upon appellant’s

possession of the two disks of child pornography found in appellant’s gun cabinet. The

disks do not contain photographs of J.C., but there are numerous pictures of girls

appearing to be close in age.

       {¶24} “Pursuant to Crim.R. 8(A), ‘[t]wo or more offenses may be charged in the

same indictment, information or complaint in a separate count for each offense if the

offenses charged, whether felonies or misdemeanors or both, are of the same or similar

character * * *.’ Generally, joinder of offenses is liberally permitted in order to conserve

judicial resources, prevent incongruous results in successive trials, or to diminish

inconvenience to witness. Thus, the law generally favors joinder of multiple offenses in




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a single trial.

        {¶25} “However, pursuant to Crim.R. 14, it may be necessary to require

separate trials to prevent prejudice. * * * Crim.R. 14 reads, in pertinent part:

        {¶26} “‘If it appears that a defendant or the state is prejudiced by a joinder of

offenses or of defendants in an indictment, information, or complaint, or by such joinder

for trial together of indictments, informations or complaints, the court shall order an

election or separate trial of counts, grant a severance of defendants, or provide such

other relief as justice requires.” (Citations omitted.) State v. Quinones, 11th Dist. Lake

No. 2003-L-015, 2005-Ohio-6576, ¶35-37.

        {¶27} “‘When a defendant claims that joinder is improper, he must affirmatively

show that his rights have been prejudiced.’ Crim.R. 14; Quinones at ¶38; State v.

Roberts (1980), 62 Ohio St.2d 170, 175, 405 N.E.2d 247. ‘The accused must provide

the trial court with sufficient information demonstrating that he would be deprived of the

right to a fair trial if joinder is permitted.’ State v. Lott (1990), 51 Ohio St.3d 160, 163,

555 N.E.2d 293.       ‘The state may negate the defendant’s claim of prejudice by

demonstrating either of the following: (1) that the evidence to be introduced relative to

one offense would be admissible in the trial on the other, severed offense, pursuant to

Evid.R. 404(B); or (2) that, regardless of the admissibility of such evidence, the

evidence relating to each charge is simple and direct.’ Quinones at ¶39, citing State v.

Franklin (1992), 62 Ohio St.3d 18, 122 580 N.E.2d 1. ‘The former is generally referred

to as the “other acts test,” while the latter is known as the “joinder test.”’ Quinones at

¶39, citing Lott at 163, 555 N.E.2d 293.” State v. Brunelle-Apley, 11th Dist. Lake No.

2008-L-014, 2008-Ohio-6412, ¶107.




                                             7
       {¶28} Regarding the Evid.R. 404(B) test, the state maintains that, in relation to

the rape and gross sexual imposition counts, the child pornography disks are admissible

to prove both offenses because they establish that appellant acted in accordance with

an underlying plan. The state asserts that the plan consisted of using child pornography

to “groom” J.C. into participating in sexual activity. However, although J.C. testified that

appellant showed pornography to her on multiple occasions, she did not specifically

testify that appellant showed her the child pornography on the two disks. Given that the

state failed to establish a nexus, the disks are not admissible to show a plan.

       {¶29} Nevertheless, evidence pertaining to each charge is simple and direct.

The remaining eight charges against appellant consisted of three rape counts, three

gross sexual imposition counts, one importuning count, and one pandering court. As to

the first six counts, the state had to prove that appellant engaged in either sexual

conduct, rape or sexual contact, gross sexual imposition with J.C., and that she was

then under the age of thirteen.       R.C. 2907.02(A)(1)(b) & 2907.05(A)(4).        On the

remaining importuning count, the state had to prove that appellate solicited J.C., a

minor, to engage in sexual activity with him.       R.C. 2907.07(A).    On the remaining

“pandering” count, the state had to prove that he created, reproduced, or published

obscene material that has a minor as a participant. R.C. 2907.321(A)(5).

       {¶30} Given the nature of the basic elements of the eleven counts, the

provocable evidence necessary to prove those counts is simple and direct. The rape

and gross sexual imposition counts are based upon separate sexual acts, with or

without the disks, while the three counts appellant sought to sever are primarily based

on the disks.




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       {¶31} The decision to grant or deny a motion to sever lies within the trial court’s

sound discretion. State v. Hupp, 11th Dist. Lake No. 2008-L-052, 2009-Ohio-1441, ¶18.

“The phrase ‘abuse of discretion’ connotes a lack of sound, reasonable, and legal

decision-making.” State v. Barker, 11th Dist. Portage No. 2013-P-0084, 2014-Ohio-

4131, ¶68. Given that the “joinder” test is satisfied, appellant fails to establish error or

prejudice. The first assignment is without merit.

       {¶32} The second assignment asserts that the trial court erred in allowing

Adrianna to testify regarding J.C.’s initial statements to her. Appellant asserts they are

inadmissible hearsay, not qualifying as excited utterances.

       {¶33} Adrianna testified that J.C. was very upset at the outset of their talk and

was crying so hard that she could not speak. The trial court then allowed Adrianna to

testify as to the statements.

       {¶34} Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Hearsay cannot be admitted into evidence unless one of the

recognized exceptions to the general rule applies. State v. Butcher, 170 Ohio App.3d

52, 2007-Ohio-118, 866 N.E.2d 13, ¶24.

       {¶35} One hearsay exception is an excited utterance: “A statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition.” Evid.R. 803(2)

       {¶36} “For an alleged excited utterance to be admissible, the following must

exist: (1) an event that was startling enough to produce a nervous excitement in the

declarant; (2) the statement must have been made while under the stress of excitement




                                              9
caused by the event; (3) the statement must relate to the startling event; and (4) the

declarant must have personally observed the startling event. State v. Taylor, (1993), 66

Ohio St.3d 295, 300-301, 612 N.E.2d 316.

      {¶37} “In addition, when determining whether a statement is an excited

utterance, the court should consider: (a) the lapse of time between the event and the

declaration; (b) the declarant’s mental and physical condition; (c) the nature of the

statement; and (d) the influence of intervening circumstances. State v. Humphries,

(1992), 79 Ohio App.3d 589, 598, 607 N.E.2d 921. ‘There is no per se amount of time

after which a statement can no longer be considered to be an excited utterance. The

central requirements are that the statement must be made while the declarant is still

under the stress of the event and the statement may not be a result of reflexive thought.’

Taylor, supra, at 303, 612 N.E.2d 316.” State v. Kalia, 11th Dist. Trumbull No. 2002-T-

0023, 2003-Ohio-4226, ¶17-18.

      {¶38} The requirements for the admission of an excited utterance is not applied

as stringently in sexual abuse cases involving young children as it is in cases involving

an adult. State v. Kincaid, 9th Dist. Lorain Nos. 94CA005942 & 94CA005945, 1995 WL

608407, *5 (Oct. 18, 1995). “‘[C]hildren are more likely to remain in a state of nervous

excitement longer than would an adult in cases involving hearsay statements by a child

declarant.’” State v. Wilson, 4th Dist. Scioto No. 13CA3542, 2015-Ohio-2016, ¶90,

quoting State v. Taylor, supra, at 304, 612 N.E.2d 316.

      {¶39} Appellant argues that J.C. could not have been acting under the stress of

the alleged sexual abuse when she made the statements to Adrianna because she had

not seen him for a number of days. However, this argument is based upon the premise




                                           10
that only the molestation itself could be the startling event provoking the statements. In

applying the excited utterance exception liberally in child sexual abuse cases, an event

subsequent to the molestation can be the startling event leading to the reflexive

statement. State v. Wampler, 6th Dist. Lucas No. L-15-1025, 2016-Ohio-4756, ¶35;

State v. Butcher, 170 Ohio App.3d 52, 2007-Ohio-118, 866 N.E.2d 13, ¶33 (11thDist.).

       {¶40} In Kincaid, supra, the child’s spontaneous exclamation was made at least

two months after the abuse took place. As the child/victim was preparing to bathe, her

younger sister swatted her in her vaginal area, causing the victim to yell that the sister

was trying to hurt her like the defendant did. In holding that the trial court did not abuse

its discretion in allowing the foster mother to testify concerning the statement, the Ninth

District based its entire analysis upon the fact that the victim reacted spontaneously as

a result of being hit by the other child. Id. at *5. Therefore, the startling event was not

the prior sexual abuse, but the subsequent event that triggered the statements.

       {¶41} Here, J.C. became emotional when her grandmother asked her whether

appellant was engaging in inappropriate behavior.         Although grandmother did not

pursue the issue, Adrianna did. When Adrianna asked J.C. what was wrong, J.C.

became emotional and cried. J.C. initially cried so hard that she could not talk. To this

extent, J.C.’s statements regarding appellant’s behavior did not occur as a

consequence of reflective deliberation, but instead were a reaction to Adrianna’s inquiry,

reminding J.C. of the continuing eighteen months of sexual abuse.

       {¶42} The foregoing supports the trial court’s decision that J.C. was still under

the influence of the startling event when she made the at issue statements.              As

appellant has not shown that the trial court erred in allowing Adrianna to testify about




                                            11
J.C.’s statements, his second assignment lacks merit.

       {¶43} Under his next assignment, appellant challenges the admission of: (1) the

garbage bag containing J.C.’s underwear and appellant’s shirt; and (2) the baggy

containing the 36 pubic hairs found in the master bedroom closet.            He contends

alternatively that both items should have been excluded as irrelevant and that, if

relevant, the potential for prejudice outweighs their probative value.

       {¶44} “The admission or exclusion of evidence lies within the broad discretion of

a trial court, and a reviewing court should not disturb evidentiary decisions save an

abuse of discretion that has created material prejudice. State v. Noling, 98 Ohio St.3d

44, 781 N.E.2d 88, 2002-Ohio-7044, ¶43, citing State v. Issa, 93 Ohio St.3d 49, 64, 752

N.E.2d 904, 2001-Ohio-1290.”       State v. King, 11th Dist. Portage No. 2009-P-0040,

2010-Ohio-3254, ¶67.       “Unless otherwise prohibited, evidence is relevant and

consequently admissible if it tends to make a consequential fact more or less probable.

Evid.R. 401 and Evid.R. 402. A trial court, however, must exclude relevant evidence ‘if

its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.’ Evid.R. 403; State v. Tate, 11th Dist.

Lake No. 2010-L-145, 2011-Ohio-6848, ¶44.” Barker, 2014-Ohio-4131, at ¶69.

       {¶45} “‘“Exclusion on the basis of unfair prejudice involves more than a balance

of mere prejudice. If unfair prejudice simply meant prejudice, anything adverse to a

litigant’s case would be excludable under Rule 403. Emphasis must be placed on the

word ‘unfair.’   Unfair evidence is that quality of evidence which might result in an

improper basis for a jury decision. Consequently, if the evidence arouses the jury’s

emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the




                                            12
evidence may be unfairly prejudicial. Usually, although not always, unfair prejudicial

evidence appeals to the jury’s emotions rather than intellect.”’ Oberlin v. Akron Gen.

Med. Ctr. (2001), 91 Ohio St.3d 169, 172, 743 N.E.2d 890, quoting Weissenberger’s

Ohio Evidence (2000) 85-87, Section 403.3.” State v. Crotts, 104 Ohio St.3d 432, 2004-

Ohio-6550, 820 N.E.2d 302, ¶24.

      {¶46} As part of her disclosure, J.C. asserted that appellant had an obsessive

interest in the growth of her pubic hair during the eighteen months of abuse. Evidence

that he was maintaining both a collection of her underwear and a collection of pubic hair

corroborates her testimony. To this extent, that no specific count in the indictment was

predicated upon either item of evidence does not diminish their relevancy. Evid.R. 401

and 402.

      {¶47} Appellant further argues admission was improper because the state failed

to show that he was aware of either collection. However, both were found in an area

associated with him. The small baggy of pubic hairs was found hidden in his baseball-

card collection, and the garbage bag of underwear also containing one of his old t-shirts

was located in a collection of wood chips he maintained in the garage attic. Based upon

this, there was a connection supporting admissibility.

      {¶48} Appellant also emphasizes that the state could not present any evidence

demonstrating that any of the pubic hair was J.C.’s. But that appellant was maintaining

any collection of public hairs constitutes confirmation of her assertion that he had an

obsessive interest in such matters.

      {¶49} Appellant has likewise failed to establish the probative value was not

substantially outweighed by any unfair prejudice. Therefore, his third assignment is




                                           13
without merit.

       {¶50} Appellant’s final two assignments are interrelated.         Under his fourth

assignment, he submits that his motion for judgment of acquittal should have been

granted at the end of the state’s case due to insufficient evidence. Under his fifth

assignment, he claims that the verdicts are against the manifest weight of the evidence.

       {¶51} Appellant’s arguments are based solely on global challenges to J.C.’s

credibility; he does not contest the lack of proof on any particular element or crime.

       {¶52} When an appellant raises both sufficiency and manifest weight arguments

in an appeal, the appellate court is only required to review the latter argument because

“‘a determination of whether a conviction is or is not supported by the weight of the

evidence “necessarily rests on the existence of sufficient evidence.”’” State v. DiBiase,

11th Dist. Lake No. 2011-L-124, 2012-Ohio-6125, ¶38, quoting State v. Pesec, 11th

Dist. Portage No. 2006-P-0084, 2007-Ohio-3846, ¶44.

       {¶53} “To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact ‘“lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.”’ State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).” State v. Thompson, 11th Dist. Trumbull No.

2015-T-0087, 2016-Ohio-7154, ¶7.

       {¶54} Regarding witness credibility:

       {¶55} “‘This court [is] not in a position to view the witnesses who testify below




                                              14
and observe their demeanor, gestures, and voice inflections, and use those

observations in weighing the credibility of proffered testimony.’ State v. Long, 127 Ohio

App.3d 328, 335, 713 N.E.2d 1 (4th Dist.1998)(citations omitted).            Therefore, in

weighing the evidence submitted at a criminal trial, an appellate court must give

substantial deference to the factfinder’s determination of credibility. State v. Tribble, 2d

Dist. Montgomery No. 24231, 2011-Ohio-3618, 2011 WL 2976890, ¶30.”                 State v.

Crayton, 11th Dist. Ashtabula No. 2016-A-0031, 2017-Ohio-705, ¶33.

       {¶56} “‘[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.’ State v. DaHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. When examining witness credibility, ‘the choice between

credible witnesses and their conflicting testimony rests solely with the finder of fact and

an appellate court may not substitute its own judgment for that of the finder of fact.’

State v. Awan, 22 Ohio St.3d 120, 123 (1986). A fact finder is ‘free to believe all, some,

or none of the testimony of each witness appearing before it.’ State v. Thomas, 11th

District No. 2004-L-176, 2005-Ohio-6570, ¶ 29.” DiBiase, 2012-Ohio-6125, at ¶36.

       {¶57} Appellant first notes that J.C. lied when she said appellant required her to

view pornography on her Kindle or another computer and draw pictures depicting sexual

acts. While true, J.C. did not, however, retract any of her statements regarding the

sexual acts.    Moreover, J.C. gave a plausible explanation as to why she lied,

embarrassment about her curiosity. To this extent, the jury was free to consider what, if

any, impact the lies had on her credibility.

       {¶58} Appellant further maintains that her testimony should have been rejected

because some aspects are not believable: first, because she testified most of the sexual




                                               15
conduct took place while other people were home; and second because she testified

one sexual act occurred while they were sitting in a car in the parking lot of a dentist’s

office.

          {¶59} Appellant was often the sole adult in care of the children. J.C. testified

that while appellant would sometimes engage in incidents in the bedroom she shared

with her two brothers, the majority of the incidents occurred in other rooms in the home,

such as the living room or the upstairs hallway, while the boys were elsewhere. As to

the “dentist’s office” incident, J.C. stated that the boys were asleep in the back seat and

it was already dark outside when he put his hand under her skirt. Moreover, that the

boys may have been in the vicinity does not render her incredible.

          {¶60} Appellant has failed to establish that the jury lost its way. Appellant’s

convictions are not against the manifest weight of the evidence and his fourth and fifth

assignments are without merit.

          {¶61} The judgment of the Lake County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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