[Cite as State v. Saltz, 2015-Ohio-3097.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                                 CASE NO. 5-14-33

       v.

JOHN D. SALTZ,                                             OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2013-CR-164

                                       Judgment Affirmed

                              Date of Decision: August 3, 2015



APPEARANCES:

        Scott B. Johnson for Appellant

        Alex K. Treece for Appellee
Case No. 5-14-33


ROGERS, P.J.

        {¶1} Defendant-Appellant, John Saltz, appeals the judgment of the Court of

Common Pleas of Hancock County denying his motion to suppress certain hearsay

statements, convicting him of rape, and sentencing him to 15 years to life in

prison. On appeal, Saltz argues that (1) the trial court erred by allowing the

admission of certain hearsay statements; (2) his constitutional right to confront his

accuser was violated; (3) the jury’s verdict was not supported by sufficient

evidence; and (4) the jury’s verdict was against the manifest weight of the

evidence. Based on the following, we affirm the judgment of the trial court.

        {¶2} On August 6, 2013, the Hancock County Grand Jury returned a two

count indictment against Saltz charging him with two counts of rape with a

specification in violation of R.C. 2907.02(A)(1)(b) & 2907.02(B), felonies of the

first degree. On August 22, 2013, Saltz pled not guilty by reason of insanity. The

trial court found him competent to stand trial on March 20, 2014.

        {¶3} On August 11, 2014, Saltz filed a motion to suppress1 statements

made by the alleged victim, K.S., arguing that any statements would constitute

hearsay and would also violate his constitutional right to confront his accuser. The

State filed its response on September 8, 2014. Saltz filed a supplemental brief on

September 9, 2014. After a hearing, the trial court ultimately denied Saltz’s

motion on September 19, 2014. Specifically, the trial court found that K.S.’s
1
 Saltz’s motion was filed as a motion in limine, however it should have been filed as a motion to suppress
as the trial court stated.

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statements were not testimonial, and therefore, Saltz’s constitutional rights to

confront his accuser were not violated. It also found that K.S.’s statements fell

under the hearsay exception in Evid.R. 807 and were admissible.

       {¶4} The State filed a motion to dismiss Count two of the indictment on

September 29, 2014. The trial court granted the State’s motion on the same day.

       {¶5} The matter proceeded to trial on September 29, 2014 and lasted three

days. Leann Saltz (“Leann”) was the first witness to testify. Leann testified that

she was previously married to Saltz from 1996 until their divorce in 2012. Leann

had one child from a previous relationship, Kasandra S., f.k.a. Kasandra Thomas

(“Kasandra”). She stated that Kasandra and her husband, Dustin S. (“Dustin”),

have two children together, K.S. and M.S. Leann testified that K.S. was born in

2006. The jury was shown pictures of K.S., which were taken sometime in 2011

or 2012, and later admitted into evidence. Leann stated that K.S. would have been

four years old on July 9, 2011.

       {¶6} Leann testified that during their marriage, she and Saltz lived in a two

bedroom house on Wilson Street in Findlay. As Leann was asked to describe the

house, the following exchange took place,

       [Leann]:      Okay. In the front you have the front door and an
       attached garage. Come in the front door to the living room. Directly
       behind the living room is a bathroom. Directly behind that bathroom
       is a bedroom. Across from that is the second bedroom. Then the
       kitchen and then the door to the attached garage.

       Q:     Any outside rooms of your home?

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      A:    There’s a patio enclosure on the back of the home.

      ***

      Q:      Now you talked about this back patio enclosure. How do you
      get to that back patio enclosure?

      A:     There are two entrances. One from the one bedroom and one
      from the outside.

      ***

      Q:     I’m going to hand you a picture. Do you recognize what’s
      that depicting?

      A:    That is a picture of the back patio enclosure.

      Q:    That’s the back patio that you discussed?

      A:    Yes.

      ***

      Q:     Okay. Now, there’s - - what’s in front of that back window,
      that enclosure?

      ***

      A:    Pine bushes.

      ***

      Q:    They look * * * kind of unkempt?

      A:    They are.

      ***




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       [Leann]:       Yes. I kept them that high for privacy reasons. I know
       we kept it at least to the bottom of the window. So that we could be
       in there and it was still private.

       Q:     What did you use that room for?

       A:     Before the flood it was like a living area. We had - - used it
       like a summer porch. We had a sofa and a couch and table and
       chairs and different stuff out there. After the flood it basically
       became storage.

       ***

       Q:     You indicated you used that basically for storage. What kind
       of items did you keep in there?

       A:     We had an old sofa in there. The kid’s [sic] bikes, toys,
       outside stuff that we would bring out in the summer and store in the
       winter. Toys, old computer out there.

Trial Tr. p. 293-296, 298. She also listed off several other items that were stored

in the patio enclosure: a “Pack and Play,” a Christmas wrapping paper storage

box, lawnmower, and an outside playhouse. Photographs of the patio enclosure

were shown to the jury and admitted into evidence.

       {¶7} Leann explained that there were only two ways of accessing the patio

enclosure. The first was through a door located in one of the two bedrooms. The

other was a door located outside. Leann testified that because her grandchildren

were so young, she blocked the bedroom entrance with an armoire so they would

not be able to access the patio.

       {¶8} Leann testified that she would spend lots of time with her

granddaughters. She stated that they would go swimming, played, hung out, had

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Case No. 5-14-33


sleep overs, etc. She also testified that Saltz would participate in these events with

the children. However, Leann explained that only she would bathe the children

and help the children in the bathroom.

       {¶9} Leann testified that K.S. and M.S. spent the night of July 8, 2011 at

her house. She explained that when the girls slept over she would bring out an air

mattress for the girls to sleep on in the family room. Leann, then, would sleep on

the couch to be there in case the girls needed her for anything.

       {¶10} Leann stated that when she awoke on July 9, 2011, she saw M.S. on

the air mattress, but not K.S. She testified that she went around the house calling

out for K.S. and Saltz, but was unable to find either one. She then went outside

and observed Saltz, followed by K.S., walk out of the patio enclosure. She

testified that she thought nothing of it at first. Leann stated that K.S. was dressed

in a nightgown with underwear while Saltz was wearing only a pair of black gym

shorts. According to Leann, Saltz went straight into the garage without saying a

word, while K.S. sat down next to Leann on a lawn chair.

       {¶11} While the two were sitting, Leann testified that she asked K.S. what

she was doing. Before she could testify as to what K.S. said, Saltz objected to the

testimony, which was overruled by the trial court pursuant to its previous ruling

regarding Evid.R. 807. Leann stated that K.S. told her that K.S. could not tell her

because it was a secret between K.S. and Saltz. Leann testified that she told K.S.



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that K.S. should not keep secrets from her as the two should tell each other

everything. Then the following exchange occurred.

      Q:    And after you let her know that she could tell you anything,
      what did she say?

      A:      She told me that [Saltz] showed her his pee pee and he looked
      at hers.

      ***

      [Leann]:      I asked her what else had happened, and she said that
      he also kissed her pee pee. And she said that [Saltz] has big lips.

      ***

      Q:    After she told you that [Saltz] kissed her and he had big lips,
      did you ask when or where this had happened?

      A:    Yes, she said it happened that morning in the back porch.
      She got up to go potty and [Saltz] was up. So they went outside.

      ***

      Q:     Okay. She tell you where in the back patio?

      A:     On the steps.

      Q:     When you say on the steps, the steps we saw on those photos
      are the ones [sic] lead into the back bedroom?

      A:     Yes.

      Q:     That armoire was there that stopped the girls from opening
      the door? So big that a person couldn’t look into that room as well?

      A:     Yes.

      Q:     Did she go back to those back steps and show you?


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       A:     Yes.

Id. at p. 316-318.

       {¶12} After K.S. finished telling Leann what happened, Leann testified that

she told the girls to go inside and watch cartoons in the living room. She stated

that she approached Saltz and told him to get out of the house or she would “blow

his brains out.” Id. at p. 319. She explained that he initially asked why, but then

agreed to leave if he could get a shower first. After asking Saltz to leave, Leann

testified that she called Kasandra and told her to come to the house right away.

       {¶13} Leann stated Saltz returned approximately two weeks later to retrieve

the rest of his belongings. According to Leann, the two talked about a lot of things

including the children. Leann testified, “He told me he understood that I had to do

what was best for the girls. And he knew I was just doing what I thought was

right.” Id. at p. 322. She also stated that Saltz did not dispute the divorce and

even paid his share of the attorney’s fees without putting up a fight.

       {¶14} On cross-examination, Leann admitted that her marriage to Saltz had

been troubled from the start. Leann explained that Saltz was unfaithful and had a

hard time keeping a steady job, which frustrated her. She also testified that the

two of them had gone through marriage counseling.

       {¶15} Kasandra was the next witness to testify on behalf of the State.

Kasandra testified that in 2011 her children called their private areas their “pee

pee” and their “butt.” She stated that she and Dustin were traveling to a friend’s

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house on July 9, 2011, when she received a phone call from Leann telling her that

she needed to come to the house right away. Kasandra testified that she had no

idea what was going on because Leann would not tell her over the phone.

           {¶16} When they arrived at Leann’s house, Kasandra explained that Leann

took her and K.S. into a bedroom and instructed K.S. to tell her what K.S. had told

Leann. Then the following exchange occurred.

           [Kasandra]: She said that her [sic] and [Saltz] had a secret. That he
           had touched her pee pee. And that she wanted to tell me.

           Q:       She said [Saltz] had touched her pee pee?

           A:       Uh-huh. Well touched and kissed it.

Id. at p. 351. After learning this, she and Dustin discussed about what to do next.2

They decided to take both girls to Blanchard Valley Hospital to make sure that

both children were medically fine. Kasandra testified that hospital staff explained

that they did not have the appropriate nurse on staff to handle reports of child rape.

Moreover, they informed Kasandra and Dustin that they had called the police and

that Kasandra and Dustin would have to talk to the officer upon his arrival. She

stated that both she and Dustin, individually, talked with the police officer. After

talking with the officer, the family traveled to Toledo Children’s Hospital where

they were transferred.




2
    At this point, Dustin had also learned of the abuse from K.S.

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       {¶17} Kasandra testified that they had not changed K.S.’s clothes that day,

including her underwear. She stated that she was present when the Sexual Assault

Nurse Examiner (“SANE”) performed the rape kit. During the process, the SANE

removed K.S.’s underwear and gave her new underwear to wear.

       {¶18} Dustin was the next witness to testify. Dustin testified that on July 9,

2011, he went to Leann’s house with Kasandra after Leann had called them. He

stated that he did not accompany Kasandra, Leann, and K.S. into the bedroom. He

added that after they came out of the bedroom he could tell something was wrong,

but neither Kasandra nor Leann told him. He explained that he pulled K.S. to the

side and asked her what she had told Leann. Dustin testified that K.S. told her that

Saltz had touched her pee pee. He added, “I asked her how and she said with her

finger, and then she stuck her tongue out. * * * Stuck her tongue out and pointed

at her tongue.” Id. at p. 383. Dustin also stated that he was not biologically

related to Saltz.

       {¶19} Brianna Westrick-Hiegel (“Westrick”) was the next witness to testify

on behalf of the State. Westrick testified that she was employed by Hancock

County Job and Family Services and worked in the Children Services department

back in July of 2011. She described her job as that of an investigator. She

testified that she investigated the allegations in this case. Westrick stated that she

and Detective Matt Tuttle of the Findlay Police Department were tasked with

interviewing K.S. The two conducted the interview on July 18, 2011, at the

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Center for Safe and Healthy Children in Findlay. Westrick testified that K.S. was

interviewed individually and the only people in the room were Westrick, K.S., and

Detective Tuttle. At the conclusion of her investigation, she testified that she

labeled the abuse as indicated.

       {¶20} Detective Tuttle was the next witness to testify. Detective Tuttle

described what was in the rape kit that was used in this case.

       Again, lots of swabs for vaginal, anal, extra ones, like I said,
       depending upon where on the body they want to use them. They
       always have a pair of gloves because the SANE nurse will be
       wearing gloves. Samples where they can put their hair. DNA
       standards. Little bit of everything. Like I said, a lot of times we get
       this, but we’ll get a bag or two, whether it’s clothing, other items,
       that they’ll return to us.

Id. at p. 430. He testified that the contents of the rape kit were sent to the Bureau

of Criminal Identification and Investigation (“BCI”) in Bowling Green. Detective

Tuttle added that some of the contents were then sent to the Laboratory

Corporation of American Holdings (“Lab Corp”) in North Carolina for DNA

testing.

       {¶21} After Detective Tuttle received the results of the DNA tests, he stated

that he interviewed Saltz regarding the findings. He testified, “[Saltz] denied with

[sic] the results. He basically didn’t answer it. When I confronted him about why

your DNA would be in the girl’s vaginal swab, and why your DNA would be in

the girl’s underwear there was no response at that point. I had like probably a ten

second pause or so.” Id. at p. 435-436. Detective Tuttle stated that Saltz informed

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him that the children were truthful and “would not make up a lie this big.” Id. at

p. 437.

          {¶22} Emily Miller was the next witness to testify. Miller testified that she

works at BCI as a lab technician. Specifically, Miller analyzes pieces of evidence

for body fluids and identifies them. She explained that after she analyzes the

fluids she writes a report and forwards all the information and samples for DNA

analysis. Miller stated that when she is assigned to a case, the first thing she does

is read the allegations to get a better understanding of what type of fluids she is

looking for and where it would be located on the samples that were provided. She

explained that if she were looking for semen on a pair of pants she would go into a

dark room and look for the semen to fluoresce under certain lights. She then

would circle the areas that fluoresce and begin her testing, which is a simple color

change test.

          {¶23} In regard to this case, Miller testified that the allegations alleged the

existence of amylase as the bodily fluid.           She explained that amylase is a

component of several different bodily fluids, including breast milk, urine, and

feces, but it is most concentrated in saliva. Miller added that the testing process

for amylase is different than the procedure done when looking for semen.

          Amylase - - Saliva not [sic] usually tend to fluoresce underneath
          bright light. So amylase, we go ahead and - - say on a pair of
          underwear. We look at the underwear. If the allegations were he
          fingered me or there was an oral assault, I go ahead I cut the sides of
          the underwear. I lay it flat. I take a specialized piece of paper. I put

                                           -12-
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       the paper on the underwear. Hold it down flat. And then I perform -
       - I put my reagents on it. And then depending upon how the test
       reacts I know if there’s amylase reaction or not. It’s a presumptive
       test. It does not confirm saliva, but it’s just indicative that saliva is
       there.

Id. at p. 460.

       {¶24} Miller testified that she removed the contents of the rape kit in her

lab and tested the samples for both semen and amylase. Photographs depicting the

contents of the kit were shown to the jury and admitted into evidence. All the

samples came back negative for semen, but the underwear tested positive for

amylase. Specifically, she explained that her reagents changed the color of the

paper, which presumes the presence of amylase.            She added that after she

performed her tests, she packed up the samples and forwarded them for DNA

testing.

       {¶25} Shawn Weiss was the last witness to testify. Weiss testified that he

is employed by Lab Corp and is currently serving as a project manager. He

explained that in 2011 he was employed as an associated technical director with

Lab Corp. As a director, Weiss explained that he interpreted results of DNA tests,

analyzed data, and wrote reports. He also testified, in detail, describing what

DNA is and the process by which he is able to take samples from known persons

to see if they match samples gathered at crime scenes or other areas of interest.

       {¶26} Weiss stated that he tested the samples sent to the lab by Miller. The

first sample was a vaginal swab taken from K.S. Weiss testified that he was able

                                         -13-
Case No. 5-14-33


to identify male DNA on the swab that was consistent with Saltz’s DNA or

someone that is a paternal relative of Saltz. Weiss stated that the DNA present had

a frequency of .117240 or approximately 1 in every 9 males. The second sample

was taken from K.S.’s underwear she was wearing during the alleged rape. Weiss

stated that he was able to identify male DNA that was again consistent with Saltz

or a paternal relative of Saltz. Weiss testified that the DNA present has a

frequency of .000352 or approximately 1 in every 2841 male individuals.

       {¶27} At the conclusion of Weiss’ testimony, the State rested. Saltz moved

for acquittal pursuant to Crim.R. 29, which was denied by the trial court. Saltz

chose not to present any evidence and rested.

       {¶28} After deliberating, the jury found Saltz guilty of rape. A sentencing

hearing was held on November 12, 2014. The trial court sentenced Saltz to life in

prison with the possibility of parole after 15 years, which was journalized in an

entry filed on November 19, 2014.

       {¶29} Saltz filed this timely appeal, presenting the following assignments

of error for our review.

                           Assignment of Error No. I

       THE TRIAL COURT ERRED IN ALLOWING THE
       ADMISSION OF CERTAIN OUT OF COURT STATEMENTS
       PURSUANT    TO   EVIDENCE    RULE    807  AND
       CONTRAVENED     DEFENDANT’S    CONSTITUTIONAL
       RIGHT TO CONFRONT HIS ACCUSER.



                                       -14-
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                            Assignment of Error No. II

       THE DEFENDANT’S CONVICTION WAS NEITHER
       SUPPORTED BY THE SUFFICIENCY NOR THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                             Assignment of Error No. I

       {¶30} In his first assignment of error, Saltz argues that the trial court erred

by allowing certain hearsay statements into evidence. Specifically, he argues that

the statements made by K.S. to her parents and grandmother were not trustworthy,

and therefore the exception in Evid. R. 807 did not apply. Additionally, he argues

that his constitutional right to confront his accuser was violated. We disagree.

       {¶31} Initially, we note that Saltz has combined two separate arguments

into one assignment of error. Loc.R. 11(A) states that “[e]ach assignment of error

must be separately argued in the briefs unless the same argument, and no other,

pertains to more than one assignment of error.” While this sort of argument is

against our local rules, in the interest of justice, we elect to address Saltz’s

arguments.

                                    Evid.R. 807

       {¶32} An appellant has a duty to ensure that the record necessary to

evaluate the assignment of error is filed with the appellate court.          State v.

Williams, 73 Ohio St.3d 153, 160-161 (1995); App.R. 9(B). Where an appellant

fails to include a necessary portion of the record, we must presume regularity in

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the trial court’s proceedings. State v. West, 3d Dist. Auglaize No. 2-06-04, 2006-

Ohio-5834, ¶ 53.

       {¶33} On appeal, Saltz argues that the State has failed to prove how Evid.R.

807 applies to the statements made by K.S. to her parents and grandmother.

Specifically, he attacks the trustworthiness of K.S.’s statements as well as the fact

that K.S. was available to testify. See Evid.R. 807(A)(1)-(2). According to the

docket in this case, a hearing was held on Saltz’s motion to suppress on August

29, 2014. See (Docket No. 69, p. 3). However, Saltz did not provide this court

with a transcript of this hearing. In the absence of a transcript, we must presume

that testimony was presented that showed the trustworthiness of K.S.’s statements

and the fact that she lacked memory of the alleged rape.

       {¶34} As to his Confrontation Clause argument, Saltz argues that the

statements made by K.S. were testimonial. This motion was also heard at the

August 29, 2014 hearing. Without a transcript, we must presume regularity that

the trial court followed all procedures.       Nonetheless, given the United States

Supreme Court’s recent opinion, it is quite clear that K.S.’s statements would not

have been testimonial. In Ohio v. Clark, ___ U.S. ___, 2015 WL 2473372 (June

18, 2015), the Court found that a three-year-old’s statements to his teacher about

physical abuse did not violate the Confrontation Clause. Id. at *6. Specifically,

the Court noted that “[s]tatements by very young children will rarely, if ever,

implicate the Confrontation Clause. Few preschool students understand the details

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of our criminal justice system.” Id. at *7. The Court continued, “Thus, it is

extremely unlikely that a 3-year-old child in [the victim’s] position would intend

his statements to be a substitute for trial testimony. On the contrary, a young child

in these circumstances would simply want the abuse to end, would want to protect

other victims, or would have no discernable purpose at all.” Id.

         {¶35} Accordingly, Saltz’s first assignment of error is overruled.

                                    Assignment of Error No. II

         {¶36} In his second assignment of error, Saltz argues that the jury’s verdict

is neither supported by the sufficiency nor the manifest weight of the evidence.

Specifically, he argues that the State failed to prove that he had sexual contact

with K.S.3 and that it was for the purpose of sexually arousing or gratifying either

person. We disagree.

         {¶37} Again, we note that Saltz has combined two arguments into one

assignment of error. Loc.R. 11. Although Saltz has argued both sufficiency and

manifest weight as one argument, they are in fact two separate legal theories, each

with their own standard of review. Therefore, we will address the two separately.

                                    Sufficiency of the Evidence

         {¶38} When an appellate court reviews the record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in the light most favorable


3
  In his brief, Saltz initially refers to the victim as M.S. However, M.S. is not the victim in this case. It
seems clear from his brief that this was a simple typographical error as he refers to K.S. as the victim for
the rest of his arguments.

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to the prosecution, any rational trier of fact could have found that the essential

elements of the crime were proven beyond a reasonable doubt. State v. Monroe,

105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy.

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, the question of whether the offered evidence is sufficient to sustain a

verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-

Ohio-2079, ¶ 4.

       {¶39} If a person engages in sexual conduct with another, who is not the

spouse of the person, and the other person is less than thirteen years of age, then

that person is guilty of rape. R.C. 2907.02(A)(1)(b). Sexual conduct is defined as

“vaginal intercourse between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex * * *.” R.C. 2907.01(A). The

allegations and evidence presented at trial suggest that Saltz performed

cunnilingus on K.S. “The statute does not define cunnilingus. However, this

court has defined cunnilingus as ‘a sexual act committed with the mouth and the

female sexual organ.’ ” State v. Bower, 3d Dist. Shelby No. 17-14-14, 2015-Ohio-

1889, ¶ 8, quoting State v. Ramirez, 98 Ohio App.3d 388, 393 (3d Dist.1994),

citing State v. Bailey, 78 Ohio App.3d 394, 395 (1st Dist.1992).

       {¶40} Here, Saltz argues that the State failed to present evidence to support

a finding that he engaged in sexual contact with K.S. for the purpose of sexual

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arousal. This, however, is not an element of rape. Sexual contact is an element of

crimes such as gross sexual imposition. Rape, rather, requires sexual conduct.

Whereas sexual contact requires that the contact be done for the purpose of sexual

arousal, sexual conduct does not include this second requirement.

       {¶41} Further, there are several elements that are not in dispute on appeal.

In his brief, Saltz concedes that K.S. was not Saltz’s spouse at the time of the

alleged rape and that she was under the age of 13 at the time of the alleged rape.

Further, he concedes that if the allegations are true, then it happened in Hancock

County in Ohio. Thus, the only remaining issue is whether the State presented

enough evidence for any rational trier of fact to have found that Saltz engaged in

sexual conduct, i.e. performed cunnilingus, with K.S.

       {¶42} At trial, Leann, Kasandra, and Dustin all testified that K.S. told them

that Saltz touched her pee pee. They also stated that K.S. told them that Saltz had

kissed her pee pee and that he had big lips. Kasandra and Dustin testified that

given K.S.’s age she calls her vagina her pee pee. Detective Tuttle stated that

Saltz told him that K.S. is very truthful and would not lie about something this big.

Moreover, the State presented the testimony of Miller. She testified that she

detected amylase on both the vaginal swab and underwear that was obtained by

the SANE nurse from K.S. She also stated that amylase is most concentrated in

saliva. Weiss next testified that he analyzed the samples Miller had forwarded to

the lab and found DNA consistent with that of Saltz’s.

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       {¶43} After viewing the evidence in the light most favorable to the State,

we find that any rational trier of fact could have found that the essential elements

of rape were proven beyond a reasonable doubt.

                          Manifest Weight of the Evidence

       {¶44} When an appellate court analyzes a conviction under the manifest

weight standard, it “sits as the thirteenth juror.” State v. Thompkins, 78 Ohio St.3d

380, 387 (1997), superseded by constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 83 (1997). Accordingly, it must review the

entire record, weigh all of the evidence and its reasonable inferences, consider the

credibility of the witnesses, and determine whether the fact finder “clearly lost its

way” in resolving evidentiary conflicts and “created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). When applying the manifest

weight standard, a reviewing court should only reverse a trial court’s judgment “in

exceptional case[s]” when the evidence “weighs heavily against the conviction.”

Id. at paragraph three of the syllabus.

       {¶45} Having disposed of Saltz’s sufficiency arguments, we similarly reject

his manifest weight arguments. Since Saltz did not put forth evidence on his

behalf at trial, almost all of his arguments on appeal attack the credibility of the

evidence presented by the State.          Saltz argues that no one, other than K.S.,

witnessed the acts that gave rise to the allegations. He also attempts to discredit

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Leann’s testimony because she has a bias against him given their poor

relationship.   Finally, Saltz attacks Detective Tuttle’s testimony regarding his

demeanor at the interview because that is normal behavior for an innocent person

learning of serious allegations against him.

       {¶46} “On the trial of a case, either civil or criminal, the weight to be given

the evidence and the credibility of the witnesses are primarily for the trier of the

facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

Thus, it appears the jurors found the State’s witnesses to be credible. See State v.

Brown, 3d Dist. Hardin No. 6-12-01, 2012-Ohio-3904, ¶ 15, citing DeHass at 231

(“To begin with, a reviewing court must allow the trier of fact appropriate

discretion on the credibility of witnesses.”); State v. Hoseclaw, 3d Dist. Allen No.

1-12-31, 2013-Ohio-3486, ¶ 24 (jury was free to believe the victim’s testimony

regarding why she did not report the rape until nine months after it happened).

       {¶47} Saltz also argues that the verdict was against the manifest weight of

the evidence because the State failed to produce “conclusive” DNA evidence that

Saltz raped K.S. However, such corroborating physical evidence is unnecessary in

a rape case. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 53; State v.

Banks, 71 Ohio App.3d 214, 220 (3d Dist.1991). Although physical evidence is

not required, the record indicates that there was some evidence connecting Saltz

and K.S. Specifically, Miller testified that she detected amylase on both the

vaginal swab and underwear. And although amylase is present in vaginal fluid, it

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is most highly concentrated in saliva. Additionally, Weiss testified that the DNA

on the vaginal swab and underwear was a match for Saltz or a paternal relative.

       {¶48} After a thorough review of the record, we cannot say that this is the

exceptional case where the trier of fact lost its way and committed a miscarriage of

justice by finding Saltz guilty of rape.

       {¶49} Accordingly, Saltz’s second assignment of error is overruled.

       {¶50} Having found no error prejudicial to Saltz in the particulars assigned

and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/hlo




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