[Cite as State v. Ziga, 2020-Ohio-911.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                             No. 108336
                 v.                             :

GARY J. ZIGA,                                   :

                 Defendant-Appellant.           :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 12, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-622904-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jeffrey S. Schnatter and Allison M. Cupach,
                 Assistant Prosecuting Attorneys, for appellee.

                 John A. Fatica, for appellant.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant, Gary Ziga (“appellant”), brings the instant appeal

challenging his convictions for rape, gross sexual imposition, and kidnapping.

Appellant argues that he was denied his constitutional right to the effective

assistance of counsel, his convictions were not supported by sufficient evidence, and
his convictions are against the manifest weight of the evidence. After a thorough

review of the record and law, this court affirms.

                        I. Factual and Procedural History

            In the spring or summer of 2014, appellant was tasked with caring for

the victim in this case, T.D., while the victim’s mother, Me.D. (hereinafter “mother”)

was out of town for approximately three weeks. Appellant and the victim are

cousins. At the time, the victim was ten years old.

            The victim alleged that appellant sexually assaulted her several times

during this three-week period. She did not, however, disclose the abuse to anyone

until she told her best friend and cousin, E.J., at a family reunion in 2017. After

disclosing the abuse to E.J., the victim told her grandmother, Ma.D. (hereinafter

“grandmother”). Grandmother told mother about the victim’s allegations, and

mother immediately took the victim to the police to report the sexual abuse.

             Based on the victim’s allegations, the Cuyahoga County Grand Jury

returned a 12-count indictment on November 30, 2017, charging appellant with: (1)

rape (cunnilingus), in violation of R.C. 2907.02(A)(1)(b); (2) rape (fellatio), in

violation of R.C. 2907.02(A)(1)(b); (3) rape (anal intercourse), in violation of R.C.

2907.02(A)(1)(b); (4) kidnapping, in violation of R.C. 2905.01(A)(4); (5) gross

sexual imposition (forcing the victim to touch her own vagina), in violation of R.C.

2907.05(A)(4); (6) gross sexual imposition (forcing the victim to touch his penis),

in violation of R.C. 2907.05(A)(4); (7) kidnapping, in violation of R.C.

2905.01(A)(4); (8) gross sexual imposition (touching the victim’s vagina), in
violation of R.C. 2907.05(A)(4); (9) rape (vaginal intercourse), in violation of R.C.

2907.02(A)(1)(b); (10) rape (fellatio), in violation of R.C. 2907.02(A)(1)(b); (11) rape

(cunnilingus), in violation of R.C. 2907.02(A)(1)(b); and (12) kidnapping, in

violation of R.C. 2905.01(A)(4). Counts 4, 7, and 12 contained sexual motivation

specifications.

             Counts 1-4 of the indictment pertained to offenses committed between

June 7 and 8, 2014, at an apartment in Brooklyn. Counts 5-12 pertained to offenses

committed between April 27 and June 6, 2014, at the victim’s house in Bay Village.

Counts 5-8 specifically pertained to offenses appellant committed on an evening

they played a game of truth or dare. Appellant pled not guilty during his December

5, 2017 arraignment.

             A jury trial commenced on January 9, 2019. The victim testified in

detail about the sexual abuse. The victim opined that appellant abused her “[o]ver

a dozen times.” (Tr. 214.) She explained, however, that she could not recall every

single detail about every incident. Appellant abused her over the course of three

weeks while mother was out of town. (Tr. 222.)

             The victim testified at trial about four specific incidents. The first

incident occurred after the first couple of days appellant was watching her. She was

in the living room one evening and appellant wanted to play truth or dare. The

victim testified that the game “started off normal until he asked me to touch myself,

and I refused. And so he had taken my hand and put it there and made me touch

myself.” (Tr. 210.) Appellant dared her to touch her “private parts.” The victim did
not want to comply. Appellant asked her again, and when she declined, “[appellant]

took [her] hand and rubbed it on [her] private part.” (Tr. 211.) She confirmed that

her private part was in reference to her vagina. During the same game, appellant

dared the victim to “grab his penis through his shorts[.]” (Tr. 213.) When the victim

did not want to comply, appellant grabbed her hand and made her touch him

through his shorts. After appellant forced her to touch his penis, she went to her

room.

             During the truth or dare game, the victim did not feel like she was able

to remove herself from the situation: “I just felt like [appellant] had like a lot of

authority over me and that if I were to leave, that I would get in trouble or, you know,

get hurt, or where am I supposed to go? I didn’t really have anywhere else to go.”

(Tr. 214.)

             A second incident occurred on the same evening as the truth or dare

game. The victim testified that appellant got into bed with her: “I woke up, and

[appellant] was in bed with me and he was rubbing my vagina with his hand.”

(Tr. 214.)

              A third incident occurred in appellant’s bedroom. The victim testified

that appellant “had me perform oral sex on him.” (Tr. 217.) She explained, “[a]ll I

remember is that I had to perform oral sex on him, and then he had performed oral

sex on me.” (Tr. 217.)

              Aside from the touching and oral sex, the victim testified that appellant

would sometimes “take his penis and rub it on my vagina.” (Tr. 119.) This occurred
“[a] lot of times.” She explained that appellant would “rub his penis up and down

her vagina.” The victim asserted that appellant did not “fully” insert his penis into

her vagina. However, she explained that appellant was “poking” her vagina with his

penis and that appellant “poked” the tip of his penis “between the lips of her vagina.”

(Tr. 220-221.)

              The victim testified that appellant attempted to insert his penis into

her anus. (Tr. 221.) This incident happened in the bedroom appellant was sleeping

in at the Bay Village house. She was in a lot of pain, and appellant stopped when she

began to scream.

              The fourth specific incident the victim testified about was the last time

appellant assaulted her. Appellant brought the victim with him to a birthday party

at his friend’s apartment in Brooklyn. At some point during the evening, the victim

became very tired so she laid down in a bedroom. The next morning, she woke up

and appellant was in bed with her. The victim testified, “[appellant] smelled like

beer. He had to be drunk. He tried to do anal again.” (Tr. 228.) She explained that

appellant “attempted to try anal again,” and “the same exact thing happened, and I

screamed and he stopped because it hurt really bad[.]” (Tr. 230.) His penis touched

her vagina, appellant rubbed his penis on her vagina. The victim confirmed that

appellant rubbed his penis against her vagina but “never fully insert[ed] it[.]” (Tr.

230.) Appellant made her perform oral sex on him, and he performed oral sex on

her. She explained that there were others in the apartment at the time, but they were

sleeping. (Tr. 231.)
               The morning after the birthday party, they left the apartment and

began walking. The victim testified that appellant was “trying to use me for money.”

(Tr. 232.) She explained, “[appellant] was asking people if they could give him

money for a bus back to Bay Village saying I needed to get back to Bay Village, but

really we were just going to walk back to his house and see if one of his roommates

could take us back to my house.” (Tr. 232.) Appellant asked a man on a motorcycle

if he could take the victim back to Bay Village. The motorcyclist called the police.

Police responded to the Giant Eagle on West 117th Street in Cleveland.

               After speaking with appellant and the victim at the Giant Eagle,

officers determined that appellant had an outstanding warrant for petty theft

shoplifting.    Officers placed appellant under arrest and had the victim’s

grandmother pick her up at the supermarket.

               As noted above, the victim did not disclose the sexual abuse until 2017.

The victim testified that she did not tell anyone about the abuse because appellant

threatened her, on multiple occasions, that he would hurt her family — specifically

her grandmother — if she told anyone. When she disclosed the sexual abuse in 2017,

the victim and her mother went to the Bay Village Police Department where they

spoke with Detective Kevin Krolkosky.

               Detective Krolkosky interviewed the victim in August 2017. At the

time, the victim was 14 years old. Detective Krolkosky conducted an investigation

into her allegations. Following this investigation, officers determined that there was

probable cause to arrest appellant. Appellant was arrested in November 2017.
               At the close of the state’s case, defense counsel moved for a Crim.R. 29

judgment of acquittal. The trial court denied defense counsel’s motion.

               The defense called three witnesses at trial: appellant’s boyfriend,

appellant’s mother, and appellant.        Appellant unequivocally and categorically

denied the victim’s allegations. The defense rested and renewed the Crim.R. 29

motion. The trial court denied the renewed motion.

               The jury returned its verdict on January 10, 2019. The jury found

appellant guilty of rape as charged in Counts 1, 2, 3, 9, 10, and 11. The jury found

appellant guilty of kidnapping as charged in Counts 7 and 12 of the indictment. The

jury found appellant guilty of gross sexual imposition as charged in Counts 5, 6, and

8.   The jury found appellant not guilty of kidnapping, in violation of R.C.

2905.01(A)(4) with a sexual motivation specification as charged in Count 4. The

trial court ordered a presentence investigation report and referred appellant to the

court psychiatric clinic for an evaluation pursuant to R.C. 2947.06(B).

              The trial court held a sentencing hearing on February 20, 2019. The

trial court determined that Counts 5, 6, and 7 merged; and Counts 11 and 12 merged.

The state elected to sentence appellant on Counts 7 and 12.

               The trial court imposed an aggregate prison term of life without parole

for 35 years: life in prison with parole eligibility after 10 years for the rape offenses

on Counts 1, 2, 3, 9, and 10; life in prison with parole eligibility after 15 years for the

kidnapping offenses on Counts 7 and 12; and three years for the gross sexual

imposition offense on Count 8.
              The trial court ordered Counts 1, 2, and 3 to run concurrently with one

another; the trial court ordered Counts 9 and 10 to run concurrently with one

another; and the trial court ordered the aggregate sentence on Counts 1, 2, and 3 to

run consecutively to the aggregate sentence on Counts 9 and 10. The trial court

ordered Counts 7 and 12 to run concurrently with one another but consecutively to

the aggregate sentence on Counts 1, 2, and 3, and consecutively to the aggregate

sentence on Counts 9 and 10. The trial court ordered Count 8 to run concurrently

with all other counts. The trial court classified appellant as a Tier III sex offender,

child offender registrant, and reviewed appellant’s reporting requirements.

              On March 22, 2019, appellant filed the instant appeal challenging his

convictions. He assigns three errors for review:

      I. [Appellant] received ineffective assistance of counsel when counsel
      failed to request a psychiatric evaluation of [appellant] prior to trial.

      II. [Appellant’s] rape convictions are not supported by legally sufficient
      evidence as required by state and federal due process.

      III. The jury’s verdicts finding [appellant] guilty are not supported by
      the manifest weight of the evidence and his convictions violate his
      rights to a fair trial and due process as protected by the Constitutions
      of the United States and of the state of Ohio.

                                 II. Law and Analysis

                       A. Ineffective Assistance of Counsel

              In his first assignment of error, appellant argues that he was denied

his constitutional right to the effective assistance of counsel.

              In order to prevail on a claim of ineffective assistance of counsel, a

defendant must demonstrate: (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and

(2) counsel’s errors prejudiced the defendant, i.e., a reasonable probability that but

for counsel’s errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs

two and three of the syllabus.

              In this case, regarding the first Strickland prong, appellant argues that

counsel’s failure to raise the issue of appellant’s competency to stand trial or request

a psychiatric evaluation of appellant before trial constituted deficient performance.

Appellant acknowledges that the trial court referred him to the court psychiatric

clinic for a post-verdict evaluation, pursuant to R.C. 2947.06, for purposes of

determining an appropriate sentence, and that trial counsel concurred with this

referral. However, appellant contends that the post-verdict evaluation “served of

little value” given the nature of his convictions. Appellant’s brief at 3.

               In support of his argument that trial counsel should have raised the

issue of appellant’s competency and requested an evaluation before trial, appellant

contends that the record contains sufficient evidence about his psychiatric issues.

Specifically, appellant directs this court to the following evidence in the record:

(1) victim’s testimony at trial about appellant trying to strangle himself with a belt

and asking for victim’s assistance in doing so; (2) appellant attempting suicide in the

back of the police car at Giant Eagle using a shoe lace; (3) appellant’s testimony

about previous suicide attempts, including driving a bicycle in front of a vehicle,
trying to hang himself in front of his boyfriend, and trying to overdose on heroin;1

and (4) appellant’s testimony that he has bipolar disorder and attention deficit

disorder and that he is “not on the proper medications at this time.” (Tr. 494.)

Finally, appellant asserts that although counsel characterized him as “weird” and

“strange,” counsel did not raise the issue of appellant’s competency or request an

evaluation.

                As an initial matter, we note that most, if not all of the evidence based

upon which appellant contends that counsel should have requested a competency

evaluation before trial was adduced during trial. Appellant cannot rely on this trial

testimony as evidence based upon which counsel should have requested a

competency evaluation before trial.

                Nevertheless, we find no basis upon which to conclude that counsel’s

failure to request a competency evaluation constitutes deficient performance. The

record before this court does not contain sufficient indicia of incompetence.

Appellant does not argue, much less demonstrate, nor does the record reflect that

appellant did not understand the nature of the trial court’s proceedings or that he

was unable to assist in his defense.

                As noted above, appellant testified at trial that he suffers from bipolar

disorder and attention deficit disorder. Appellant also testified that he attempted

suicide on several occasions. With respect to the suicide attempt in the back of the




      1   See tr. 489-490.
police car during the Giant Eagle incident, however, appellant testified that he

“wasn’t really trying to kill [himself]” and that he “was trying to draw attention to

[himself], trying to get out of petty theft because [he] knew the procedure.” (Tr.

491.) Appellant’s testimony is indicative of a deliberate, calculated attempt to

manipulate the criminal justice system.

              Regarding appellant’s diagnoses and other suicide attempts, these

mental illnesses do not indicate that appellant was not competent to stand trial.

“Incompetency must not be equated with mere mental or emotional instability or

even with outright insanity. A defendant may be emotionally disturbed or even

psychotic and still be capable of understanding the charges against him [or her] and

of assisting his [or her] counsel.” State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d

1016 (1986); see State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d

48, ¶ 71 (“The fact that a defendant is taking * * * prescribed psychotropic drugs does

not negate his competence to stand trial.”). This court has held that a person

suffering from mental illness or taking psychotropic drugs may be able to

understand the charges against him or her and assist in his or her defense. See State

v. McClendon, 8th Dist. Cuyahoga No. 103202, 2016-Ohio-2630, ¶ 16, citing State

v. Robinson, 8th Dist. Cuyahoga No. 89136, 2007-Ohio-6831.

              The record reflects that appellant understood and actively

participated in the proceedings below, and assisted in his defense. Appellant

participated in plea negotiations, rationally explained why he chose to defend

against the charges at trial rather than entering a plea agreement, inquired about his
speedy trial rights, filed a pro se motion to dismiss the case based on speedy trial

grounds, and authored notes that he used during his trial testimony.

              Appellant acknowledges that he has a criminal history dating back to

when he was 18 years old. At the time of trial, appellant was 49 years old. There is

no evidence in the record that in any of his prior criminal cases, appellant had been

found incompetent or insane, or that any of his cases were transferred to the mental

health docket.

              For all of these reasons, appellant’s ineffective assistance claim fails

under the first Strickland prong. We find no basis upon which to conclude that the

failure of appellant’s trial counsel to request a competency evaluation constituted

deficient performance.

              Assuming arguendo that counsel’s failure to request a competency

evaluation before trial constituted deficient performance, appellant’s ineffective

assistance claim fails under the second Strickland prong because he has failed to

demonstrate a reasonable probability that had counsel requested a competency

evaluation, the outcome at trial would have been different. While appellant argues

that counsel should have requested a pretrial evaluation, he does not argue, much

less demonstrate, how he was prejudiced by counsel’s purported deficiency. We

decline to construct an argument on appellant’s behalf. To the extent that appellant

is suggesting that had counsel requested an evaluation some exculpatory or

mitigating information would have been uncovered, this argument is purely

speculative and insufficient to satisfy his burden of demonstrating prejudice.
              Appellant’s first assignment of error is overruled.

                                    B. Sufficiency

              In his second assignment of error, appellant argues that his rape

convictions on Counts 3 (anal) and 9 (vaginal) were not supported by sufficient

evidence because the state failed to establish the requisite element of penetration.

              The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

              Appellant was charged in Counts 3 and 9 with rape, in violation of

R.C. 2907.02(A)(1)(b), which provides, “[n]o person shall engage in sexual conduct

with another who is not the spouse of the offender * * * when [t]he other person is

less than thirteen years of age, whether or not the offender knows the age of the

other person.”

              Sexual conduct is defined in R.C. 2907.01(A) 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.
                In support of his sufficiency challenge, appellant argues that the

victim’s testimony “fails to establish the element of penetration.” Appellant’s brief

at 5.

                                        1. Count 3

                Count 3 alleged that appellant committed the offense of anal rape at

the Brooklyn apartment after the birthday party. The victim’s testimony pertaining

to Count 3 refers to and builds upon her testimony about a prior incident at her

house in Bay Village during which appellant attempted to insert his penis into her

anus.

                Regarding the prior incident, the victim testified that “[o]ne time

[appellant] attempted to do anal, and it had hurt so bad that I screamed and he

stopped.” (Tr. 221.) The following exchange took place between the prosecutor and

the victim:

        [Prosecutor]: You said [appellant] attempted to do anal. So he was
        using his penis? And was the pain caused by him actually trying to put
        it into your anus? Did it go in at all, is that what you were feeling, the
        pain?

        [Victim]: I believe so.

(Tr. 221.)

               Regarding the rape offense charged in Count 3, the victim asserted

that she became very tired during the party so she laid down in a bedroom. The next

morning, she woke up and appellant was in bed with her. The victim testified,

“[appellant] smelled like beer. He had to be drunk. He tried to do anal again.”

(Tr. 228.) Referencing the prior incident at the Bay Village house, the victim
explained, that appellant “attempted to try anal again.” (Tr. 229.) The following

exchange took place between the prosecutor and the victim:

      [Prosecutor]: When you say try, describe what [appellant] did and
      what you felt.

      [Victim]: Well, the exact same thing happened, and I screamed and he
      stopped because it hurt really bad[.]”

(Emphasis added.) (Tr. 230.)

              After reviewing the record, we find that the evidence presented by the

state, if believed, was sufficient to establish the element of penetration on Count 3.

The victim believed that appellant’s penis went into her anus during the first

incident at the Bay Village house. Regarding the second incident at the Brooklyn

apartment, the victim testified that “the exact same thing happened.” The jury could

have reasonably determined that appellant’s penis did, in fact, penetrate the victim’s

anus during the first incident, and because “the exact same thing happened” at the

Brooklyn apartment, the jury could have reasonably determined that appellant’s

penis did, in fact, penetrate the victim’s anus for purposes of Count 3.

              The state also presented circumstantial evidence from which the jury

could have reasonably inferred that appellant’s penis did, in fact, penetrate the

victim’s anus. It is well-established that circumstantial evidence has the same

probative value as direct evidence. Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492.

              As noted above, the victim testified that when appellant attempted to

insert his penis into her anus, “it hurt really bad,” causing her to scream. (Tr. 230.)

The jury could have reasonably inferred that the extreme pain described by the
victim was caused by slight or partial penetration, rather than mere contact. See

State v. J.M., 10th Dist. Franklin No. 14AP-621, 2015-Ohio-5574, ¶ 14 (based upon

ten-year-old victim’s testimony that defendant “put his finger ‘a little bit in’ when

rubbing near her genitals and that it ‘hurt[] inside,’” a rational factfinder could

conclude that defendant’s finger did, in fact, enter the victim’s vagina.).

              For all of these reasons, appellant’s rape conviction on Count 3 was

supported by sufficient evidence.       Appellant’s second assignment of error is

overruled in this respect.

                                       2. Count 9

              Count 9 alleged that appellant committed the offense of vaginal rape

at the Bay Village house in the bedroom appellant was sleeping in while he was

babysitting her. The victim testified that aside from the touching and oral sex,

appellant would sometimes “take his penis and rub it on my vagina.” (Tr. 119.) This

occurred “[a] lot of times.” She explained that appellant would “rub his penis up

and down her vagina.”

              When the state asked the victim if any part of appellant’s penis went

inside her, she asserted that she did not know. The following exchange took place

between the prosecutor and the victim.

      [Prosecutor]: Well, did you feel anything?

      [Victim]: Yes.

      [Prosecutor]: What were you feeling?

      [Victim]: Well, I knew — well, what I’m saying right now, he wasn’t
      having sex with me.
      [Prosecutor]: Okay. When you say sex, what do you mean by sex?

      [Victim]: Penis like inside.

      [Prosecutor]: Like fully inside?

      [Victim]: Yes.

      [Prosecutor]: What were you feeling?

      [Victim]: Just like, kind of like poking me.

      [Prosecutor]: Poking you like with the tip of [his penis], between your
      [vaginal] lips?

      [Victim]: Yes.

(Tr. 220-221.)

               As an initial matter, a ten-year-old cannot reasonably be expected to

understand or recall what constitutes penetration — particularly under the

traumatic circumstances present in this case. Nevertheless, the victim’s testimony

pertaining to Count 9 only confirms that appellant did not fully insert his penis into

her vagina. The victim’s testimony that appellant “wasn’t having sex with me” and

that his penis was not “fully inside” is not dispositive of the issue of partial

penetration.

               After reviewing the record, we find that the evidence presented by the

state, if believed, was sufficient to establish the element of penetration on Count 9.

The victim testified that appellant was “poking” her vagina with his penis.

Appellant’s act of “poking” the victim’s vagina with his penis is distinct from and

goes beyond his act, as described by the victim, of “rubbing” his penis on her vagina.
The victim confirmed that appellant “poked” the tip of his penis “between [her

vaginal] lips[.]” (Emphasis added.) (Tr. 220-221.)

              Based on the victim’s testimony, the jury could have reasonably

determined that appellant slightly or partially penetrated the victim’s vagina when

he was poking his penis in between the lips of her vagina. Accordingly, appellant’s

rape conviction on Count 9 was supported by sufficient evidence. Appellant’s

second assignment of error is overruled in this respect.

                                 C. Manifest Weight

              In his third assignment of error, appellant argues that his convictions

are against the manifest weight of the evidence.

              In contrast to sufficiency of the evidence, “weight of the evidence

involves the inclination of the greater amount of credible evidence.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of

the evidence is a test of adequacy as to whether the evidence is legally sufficient to

support a verdict as a matter of law, * * * weight of the evidence addresses the

evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-

Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words,

a reviewing court asks whose evidence is more persuasive — the state’s or the

defendant’s?” Id. The reviewing court must consider all the evidence in the record,

the reasonable inferences, and the credibility of the witnesses to determine

“‘whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

              In support of his manifest weight challenge, appellant appears to

argue that the victim and her trial testimony was not credible because (1) the victim

waited three years to report the allegations against appellant, whereas she reported

an incident involving her mother to her school on the same day; (2) the victim’s

allegations are not corroborated by other evidence; (3) the hickeys the victim

described were not noticed by others; and (4) although the victim testified that she

screamed when appellant attempted to insert his penis into her anus in the Brooklyn

apartment, the people in the room next door did not hear any screaming.

              First, regarding the delay in the victim’s disclosure of the sexual abuse,

the victim explained why she did not report appellant’s conduct to anyone: “I knew

the entire time that this is not okay, but [appellant] had told me that if I were ever

to say anything about what we were doing, that my family would be like hurt,

specifically my grandma.” (Tr. 218.) Appellant threatened the victim not to tell

anyone on more than one occasion. (Tr. 218.) Appellant told the victim, “don’t tell

anybody or else, like your family will be sorry.” (Tr. 222.) The victim believed that

appellant was 100 percent serious about his threats. She believed appellant was

serious because he drank a lot, and he was “really scary” when he would get mad.

(Tr. 223.) On one occasion, appellant got mad when he wrote the victim a note and

she did not write him a note back. As a result, appellant started throwing and

breaking things.
              The victim testified about why she finally came forward to report the

sexual abuse after the family reunion in 2017 where she ran into appellant. She

explained, “it just made me sick seeing him around kids. It made me sick seeing

him.” (Tr. 237.) She continued, “[appellant] being near a child made me want to

throw up. And I couldn’t handle it anymore, and a few days later I went and I told

my cousin [E.J.] everything.” (Tr. 237.) She confirmed that she told E.J. that

appellant sexually abused her and that she had not told anyone else about the abuse.

The victim felt that E.J. needed to know about the abuse because “there’s kids in our

family now. There’s little kids. And I know I’m not the only one he’s done this to. I

know I’m not the only one.” (Tr. 238.)

              After telling E.J., she told her grandmother a few days later. She

waited a few days to tell her because she knew it would break her grandmother’s

heart. The victim’s grandmother told the victim’s mother about the sexual abuse.

The mother immediately took the victim to the police where they spoke with

Detective Krolkosky.

              The jury also heard testimony about an incident that occurred

between the victim and her mother in the fall of 2013 that the victim reported to her

teacher at school immediately, on the same day. The victim told her teacher that her

mother hit her while she was getting ready for school in the morning. The mother

explained that the incident involved her “hit[ting the victim] in the morning trying

to hustle her along to get her out the door to the bus on time.” (Tr. 271.) The teacher

reported the allegation to the police, and an investigation was conducted. Detective
Krolkosky investigated the allegation, and determined that the “physical discipline”

was not criminal in nature. A referral was made for the victim and mother to

participate in counseling. The victim explained that she reported the incident

involving her mother to her teacher the same day because unlike appellant, her

mother had not threatened her. (Tr. 223.)

              Caroline Adams, a clinician at the University of Kentucky’s Center on

Trauma and Children, started treating the victim in February 2018. Adams had

been working with the victim for approximately nine months at the time of trial.

              Adams testified that her clients typically have a delay in disclosing

sexual abuse. (Tr. 316.) Adams explained the reasons for delayed disclosure:

      So, typically it has to do with worries, fear of any kind of negative
      consequences due to disclosure. It’s very common for a child not to
      disclose not only sexual abuse but any other type of abuse, but as far as
      sexual abuse goes, some reasons are fear of being harmed, fear of loved
      ones being harmed. I know this is true in [the victim’s] case in
      particular. She reported her perpetrator [appellant] had threatened to
      harm her and her loved ones if she disclosed what occurred. So causing
      emotional distress to loved ones.

      In [the victim’s] case, her grandparents who had health issues and I
      know she was worried about causing distress to her grandparents and
      them getting sick and not being able to handle this kind of information.
      Being seen differently by others so having someone look at you
      differently as if you are damaged goods because you’ve been violated in
      this way, especially when it comes to sexual abuse, this can be real big
      and cause self-blame and shame like there’s something wrong with me.
      There has to be some reason why this happened to me. So all of these
      reasons, and not being believed. Especially when you have an
      interpersonal relationship with the perpetrator, it can be very hard to
      want to disclose and tell other people they all see positively hurt me in
      some way. There’s lots of different reasons why a person may not tell
      initially.
(Tr. 316-317.) Adams testified that it is much more common for victims of abuse

to have a delayed disclosure rather than an immediate disclosure, which is “much

more rare.” (Tr. 318.)

              On cross-examination, Adams opined that it was not “particularly

unusual for a child to wait three years to disclose what occurred, especially when it

comes to sexual abuse. That has so much stigma attached to it that some people

never disclose sexual abuse to wait several years before they disclose it. So, I

wouldn’t consider [the victim’s 40-month delay in disclosure] [ab]normal.”

(Tr. 325-326.)

              Detective Krolkosky testified that based on his experience in juvenile

rape investigations, the victim’s delay in disclosure was “[n]othing unusual at all”

and “not uncommon[.]” (Tr. 417.)

              Based on the victim’s testimony that appellant threatened to harm her

and her family if she disclosed the sexual abuse to anyone, the jury could have

reasonably concluded that the victim did not come forward for three years because

she was afraid that appellant would carry out these threats.

              Second, appellant’s argument regarding the purported lack of

corroborating evidence is misplaced. “A victim’s testimony alone is sufficient to

support a conviction for sexual conduct.” State v. Murphy, 8th Dist. Cuyahoga No.

107836, 2019-Ohio-4347, ¶ 25, citing State v. Bacho, 8th Dist. Cuyahoga No. 93828,

2010-Ohio-4885. Although corroboration is not required, the record reflects that

the victim’s testimony is supported by other evidence presented by the state at trial.
              The victim testified how appellant’s conduct affected her life: “I can’t

think. I have flashbacks all the time. Certain things trigger me. Like [appellant]

used to say ‘good deal’ a lot. Whenever somebody says ‘good deal’, I feel sick or hear

the number 44, that is how old he was, I was sick. And even like the name Gary.”

(Tr. 240.) The victim has been seeing a therapist to deal with these feelings.

              The victim’s mother testified about the effect that appellant’s conduct

had on the victim’s life: “I feel like I’m living with a soldier who has PTSD. It’s

horrible. It’s really, it’s hard.” (Tr. 280.) Mother explained that the victim has

“[e]xtreme anxiety, mood swings, insomnia, inability to focus. [Appellant’s conduct

has] affected her school.” (Tr. 280-281.)

              The victim’s counselor, Adams, testified that the victim “met criteria

across the board for PTSD” and that the victim has not wanted to talk about the

sexual abuse because it is so distressing to her. (Tr. 312-313.) Adams diagnosed the

victim with PTSD.     On cross-examination, Adams confirmed that her clinical

impression is that the victim is “experiencing difficulties associated with PTSD.”

(Tr. 332.)

             Third, regarding the hickeys, the victim confirmed on cross-

examination that she had numerous hickeys on her neck following the birthday

party at the apartment in Brooklyn. She explained, however, that she put makeup

on her neck and that she did not show the hickeys to anyone else. (Tr. 249-250.)

              Fourth, regarding the incident at the Brooklyn apartment, the victim

testified that there were others in the apartment at the time appellant assaulted her,
but they were sleeping. (Tr. 231.) Three witnesses that attended the birthday party

testified at trial.

                Sharon Elias lives at the Brooklyn apartment, and it was her birthday

that was being celebrated. Elias testified that everybody was drunk, so much so that

she prevented people from driving home because they drank too much. (Tr. 395.)

They were all doing crack in the bedroom, while the victim was in the living room.

She did not hear any screaming that night, and the other guests, Michael Djukic and

Stanley Tolbert, did not indicate to her they heard screaming. However, on redirect

examination, she testified that she probably would not have heard any sounds

coming from the bedroom because she “drank quite a bit.” (Tr. 401.) Stanley

Tolbert, Elias’s boyfriend, who lives at the Brooklyn apartment with her, testified

that he did not hear any screams while he was sleeping in the living room. He had

been drinking and doing crack. Although Tolbert testified that Michael Djukic slept

at the apartment on the couch in the living room after the birthday party, Djukic

testified that he left the birthday party around 11:00 p.m. He confirmed that he did

not know what happened after he left. The jury could have reasonably concluded

that these witnesses did not hear the victim’s scream because they were sleeping,

passed out from excessive alcohol and drug use, or, in Djukic’s case, because he was

no longer at the apartment.

                As noted above, the victim testified in detail about appellant’s sexual

abuse. On the other hand, appellant categorically denied the victim’s allegations and

trial testimony. Appellant’s convictions are not against the manifest weight of the
evidence merely because the jury rejected the defense’s theory that appellant did not

sexually abuse the victim and found the victim’s testimony to be more believable

than appellant’s testimony. “‘[A] conviction is not against the manifest weight of the

evidence simply because the jury rejected the defendant’s version of the facts and

believed the testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga

No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No.

13CA3391, 2014-Ohio-2959, ¶ 28. The jury did not lose its way in resolving the

conflicting theories based on the evidence presented at trial.

              For all of the foregoing reasons, we find no basis upon which to

conclude that appellant’s convictions for rape, gross sexual imposition, and

kidnapping are against the manifest weight of the evidence.          The jury heard

testimony from multiple witnesses, including the victim, regarding the delay in

disclosure.

              This is not an exceptional case in which the evidence weighs heavily

against appellant’s convictions or that the jury clearly lost its way in finding

appellant guilty of rape, gross sexual imposition, and kidnapping. Accordingly,

appellant’s third assignment of error is overruled.

                                   III. Conclusion

              After thoroughly reviewing the record, we affirm appellant’s

convictions. Appellant was not denied his constitutional right to the effective

assistance of counsel. Appellant’s convictions for rape, gross sexual imposition, and
kidnapping were supported by sufficient evidence and are not against the manifest

weight of the evidence.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR
