[Cite as State v. Chaney, 2010-Ohio-1312.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                )
                                              )   CASE NO. 08 MA 171
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )         OPINION
                                              )
CARL CHANEY,                                  )
                                              )
        DEFENDANT-APPELLANT.                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 07 CR 816.

JUDGMENT:                                         Reversed and Remanded.

APPEARANCES:
For Plaintiff-Appellee:                           Attorney Paul J. Gains
                                                  Mahoning County Prosecutor
                                                  Attorney Ralph M. Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 W. Boardman St., 6th Floor
                                                  Youngstown, OH 44503

For Defendant-Appellant:                          Attorney Rhys Cartwright-Jones
                                                  42 N. Phelps Street
                                                  Youngstown, OH 44503

                                                  Carl Chaney, #A552-498
                                                  Belmont Correctional Institute
                                                  P.O. Box 540
                                                  St. Clairsville, OH 43950


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Gene Donofrio

                                                  Dated: March 25, 2010
DeGenaro, J.
                                                                                       -2-


       {¶1}   This timely appeal comes for consideration upon the record in the trial court,
the parties' briefs, and their oral arguments before this court. Appellant Carl Chaney
appeals the July 31, 2008 decision of the Mahoning County Court of Common Pleas that
imposed four concurrent ten-year sentences, subsequent to a jury finding of guilty on four
counts of rape, and a jury finding of not guilty on three counts of rape, one count of
kidnapping, and one count of aggravated burglary.
       {¶2}   Chaney argues that the prosecution impermissibly inquired into Chaney's
post-arrest silence during trial. Chaney also presents arguments regarding the manifest
weight of the evidence, inconsistent verdicts, the best evidence rule, limitation of cross-
examination, and the cumulative effect of these errors. Upon review, his arguments are
meritorious in part.
       {¶3}   The State’s cross-examination of Chaney, as well as its closing comment
regarding Chaney's silence after arrest and before testifying at trial was a violation of
Cheney’s constitutional rights. Although the State’s references to Chaney’s post-arrest
silence were brief, they were not mere harmless error. Chaney’s convictions were not
otherwise against the manifest weight of the evidence. The jury was not prevented from
rendering a consistent verdict, as the rape charges were sufficiently differentiated both in
the trial record and in the verdict forms provided to the jury. Chaney’s remaining
arguments are mooted by this Court’s disposition of the first assignment of error.
Accordingly, the trial court’s decision is reversed and remanded for a new trial.
                             Facts and Procedural History
       {¶4}   On June 28, 2007, Chaney was indicted on nine first-degree felony counts,
including one count of aggravated burglary, in violation of R.C. 2911.11(A)(1)(B); one
count of kidnapping, in violation of R.C. 2905.01(A)(4)(C); and, seven counts of rape, in
violation of R.C. 2907.02(A)(2)(B). Chaney was charged with committing the offenses
against Debra Kuriatnyk on the evening of June 23, 2007. On July 11, 2007, Chaney
entered a plea of not guilty and retained counsel.
       {¶5}   Both Kuriatnyk and Chaney testified that they had been involved in an
intimate relationship from approximately 2002 to 2006, and that they continued to see one
another casually from 2006 until the incident in 2007. The parties were dating other
                                                                                        -3-


people around the time of the incident.
       {¶6}   Kuriatnyk testified that, during the day on June 23, 2007, she was at work,
and Chaney called her a few times while she was working. They had not made plans to
be together that evening. Kuriatnyk finished work at 7:00 p.m., and went home to get
ready to go out with her ex-sister-in-law (Pam) that evening. Kuriatnyk thought her front
door had been locked, but found Chaney in her living room. At that point Kuriatnyk was
wearing shorts and a shirt. Chaney seemed to be intoxicated, and stated flatly that he
was going to rape her.
       {¶7}   Chaney pushed Kuriatnyk to the floor, removed her shorts, genitally
penetrated her vagina, and stopped when his penis was no longer erect. Kuriatnyk
attempted to fight him off, Chaney picked her up, threw her on the couch, and again
genitally penetrated her vagina. Chaney also digitally penetrated her vagina while in the
living room. Chaney picked her up, carried her upstairs, threw her on the bed, and
attempted to have her perform fellatio. When Kuriatnyk refused, Chaney slapped her and
threw her up against the bedroom wall. While in the bedroom, Chaney genitally and
digitally penetrated Kuriatnyk's vagina, digitally penetrated her anus, and briefly
performed cunnilingus. During the struggle in the bedroom, Chaney at one point choked
Kuriatnyk and slammed her against a wall. Kuriatnyk testified that she was petrified and
thought she was going to die.
       {¶8}   Kuriatnyk testified that before Chaney left, he stated to her that friends were
having a party for his birthday at a nearby bar. After Chaney left, a friend of Kuriatnyk
called Kuriatnyk to tell her that Chaney was at the bar saying that Kuriatnyk had
performed fellatio on him for his birthday. Kuriatnyk called a friend from work, the police,
and Pam. At some point after Chaney left Kuriatnyk’s home, he returned to retrieve his
mobile telephone. Kuriatnyk threw the mobile telephone onto the porch when Chaney
returned to her home. Kuriatnyk testified that she did so because she did not want him
back in the house.
       {¶9}   On cross-examination, Kuriatnyk was asked about her police statement.
Kuriatnyk admitted that she did not include information of the sexual conduct that
occurred in the living room, and instead only reported that which occurred in the bedroom.
                                                                                            -4-


On re-direct, Kuriatnyk stated that she could not fit all the details of the incident in the four
lines of space provided on the police statement.
       {¶10} Patricia Lane Fusselman testified that she was the nurse on-call at the St.
Elizabeth Health Center on the night Kuriatnyk came in. Kuriatnyk first saw a triage nurse
in the emergency department, and was referred to Fusselman. Fusselman repeated the
details of the assault that Kuriatnyk reported to her.             Fusselman described the
components of a rape kit and described her physical examination of Kuriatnyk.
Fusselman did not find injury to Kuriatnyk's throat, but did locate a number of small, fresh
scratches on Kuriatnyk's lower back, inner thigh, and wrist. On cross-examination,
Fusselman noted that the triage nurse had written that Kuriatnyk's blood pressure and
pulse were within a normal range, that her pain was described as a ten out of ten, and
that she was taking Tegretol. Fusselman reiterated that no physical injuries were found
apart from the scratches.
       {¶11} Brenda Gerardi testified that she was the forensic scientist at the Ohio
Bureau of Criminal Identification and Investigation that was assigned to examine the
samples from Kuriatnyk's rape kit after the forensic biologist, Chad Britton, screened the
samples for biological fluid. Gerardi stated that Chaney's DNA was found in Kuriatnyk's
fingernail scrapings, and his saliva was detected in samples taken from the shorts that
Kuriatnyk had been wearing at the time of the incident. No semen was detected.
       {¶12} Robert Mauldin testified that he was an employee for the Youngstown
Police Department Crime Lab who attempted to collect a DNA sample from Chaney.
Chaney refused to comply. Mauldin took pictures of the back of Chaney's upper body,
and did not observe any scratches or other injury.
       {¶13} Chaney then presented the testimony of Suzanne Ellis of the Youngstown
Police Department, who accompanied Mauldin to interview Chaney on June 25, 2007.
Ellis did not observe any scratches on Chaney's back when he removed his shirt, and did
not examine any other parts of Chaney's body.
       {¶14} Chaney then took the stand to testify. Chaney testified that Kuriatnyk called
him repeatedly during the day on June 23, 2007 and invited him to her house. Chaney
had consumed approximately four mixed drinks and less than two beers during the
                                                                                      -5-


afternoon.   When Chaney arrived at Kuriatnyk's house after 7:00 p.m., Kuriatnyk
answered the door, hugged and kissed Chaney, and wished him a happy birthday.
Kuriatnyk was wearing a sports bra and a pair of jogging shorts. They sat on the couch,
talked and kissed, and Kuriatnyk asked Chaney to carry her upstairs. They took each
other's clothes off, and Kuriatnyk performed fellatio. They fondled each other on the bed,
but Chaney was out of breath from carrying Kuriatnyk up the stairs. Kuriatnyk went
downstairs to get a drink for Chaney, and brought it up to him. Chaney laid on the bed
and Kuriatnyk began to talk to someone on the telephone. Chaney got dressed, said he
was going to the bar, kissed Kuriatnyk on the front porch and left. Kuriatnyk wanted to
take him to dinner, but Chaney declined. Chaney started to drive to his house, realized
he left his mobile phone, returned to Kuriatnyk's house, and Kuriatnyk handed Chaney his
mobile phone.
       {¶15} Subsequent to the close of trial, instructions of law and jury deliberations,
the jury returned a guilty verdict for counts six through nine and a not guilty verdict for
counts one through five. On May 21, 2008, the trial court entered a judgment entry
memorializing the same, and setting the sentencing hearing. On July 31, 2008, the trial
court held a sentencing hearing, and imposed four concurrent ten-year sentences for the
rape convictions. The trial court later filed a judgment entry and notice of duties to
register as a sex offender, which Chaney refused to sign.
                      References to Post-Arrest Silence at Trial
       {¶16} In his first of six assignments of error, Chaney asserts:
       {¶17} "The prosecution's inquiry into Mr. Chaney's post-arrest silence violated his
Fifth and Fourteenth Amendment rights to remain silent."
       {¶18} Chaney argues that the State impermissibly brought attention to the fact that
Chaney exercised his right to remain silent after arrest up until the point that he waived
his right and testified at trial, violating his Fifth and Fourteenth Amendment rights. The
State concedes that its reference to Chaney's post-arrest silence was improper pursuant
to this Court's recent decision in State v. Washington, 7th Dist. No. 08-MA-5, 2009-Ohio-
2893. However, the State argues that the error was harmless.
                                                                                          -6-


        {¶19} As the State has conceded error, this Court must determine whether the
error was harmless beyond a reasonable doubt. Harmless error is defined as, "[a]ny
error, defect, irregularity, or variance which does not affect substantial rights[.]" Crim.R.
52(A). Any error that is harmless shall be disregarded. Id. "Whether [the] error was
harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the
remaining evidence. Instead, the question is whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction." State v.
Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶62, quoting State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, at ¶78.
        {¶20} Here, there were two questions posed regarding Chaney's silence during
the State's cross-examination of Chaney.          At the beginning of the State's cross-
examination of Chaney, the prosecutor stated:
        {¶21} "Q: Okay. Now, you would agree with me that this is the first time you ever
made a statement about this; is that right?
        {¶22} "A: Yes
        {¶23} Chaney's objection was overruled, the parties conducted a sidebar
discussion off the record, and the State was allowed to continue:
        {¶24} "Q: So you would agree with me this is the first time you ever talked about
this.
        {¶25} "A: You mean out in public, yes."
        {¶26} Chaney later renewed his objection, and moved for a mistrial based on the
above exchange. The trial court decided that because the State did not make a more
specific reference to Chaney's post-arrest silence, such as a question about Chaney's
assertion of his Miranda rights or his failure to talk to the police, the State's reference was
admissible. The trial court overruled Chaney's objections, and did not provide any
curative instructions to the jury at the time of questioning.
        {¶27} During the State's rebuttal closing argument, counsel stated: "They said that
[Kuriatnyk] * * * didn't know the times [of the events on June 23, 2007]. Do you know the
times of everything that occurred, what time was this, what time was that? Well, the
                                                                                         -7-


defendant took the stand and he knew the times. But he's had a year to think about it. It
was the first time we heard his statement, the first time we heard his side. He's had a
year to come up with his story."
       {¶28} The trial court overruled Chaney's objections, did not provide any curative
instructions at that time, and did not provide any instructions relating to Chaney's right to
remain silent during its instructions of law at the end of trial. Chaney later renewed his
objection and motion for mistrial, which the trial court again overruled.
       {¶29} As both parties state, the United States Supreme Court has held that the
State's use of a defendant's post-arrest, post-Miranda silence as a means of impeaching
the defendant's testimony at trial violates the defendant's right to due process under the
Fourteenth Amendment. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d
91. See, also, Wainwright v. Greenfield (1986), 474 U.S. 284, 292, 106 S.Ct. 634, 88
L.Ed.2d 623 ("[I]t is fundamentally unfair to promise an arrested person that his silence
will not be used against him and thereafter to breach that promise by using the silence to
impeach his trial testimony."). Courts look upon any comment by a prosecutor on the
post-arrest silence of a defendant with extreme disfavor because they raise an inference
of guilt from the defendant's decision to remain silent. State v. Thompson (1987), 33
Ohio St.3d 1, 4, 514 N.E.2d 407; State v. Rogers (1987), 32 Ohio St.3d 70, 512 N.E.2d
581.
       {¶30} “ ‘(W)hen a person under arrest is informed, as Miranda requires, that he
may remain silent, that anything he says may be used against him, and that he may have
an attorney if he wishes, it seems to me that it does not comport with due process to
permit the prosecution during the trial to call attention to his silence at the time of arrest
and to insist that because he did not speak about the facts of the case at that time, as he
was told he need not do, an unfavorable inference might be drawn as to the truth of his
trial testimony * * *. Surely [the defendant] was not informed here that his silence, as well
as his words, could be used against him at trial. Indeed, anyone would reasonably
conclude from Miranda warnings that this would not be the case.’ “ Doyle at 619, quoting
United States v. Hale (1975), 422 U.S. 171, 182-183, 95 S.Ct. 2133, 45 L.E.2d 99 (White,
J., concurring).
                                                                                        -8-


       {¶31} However, there are some exceptions when such improper references will
not cause reversible error. When the record discloses that the defendant in fact waived
his Miranda rights or otherwise spoke after his arrest, such error might not be found. See,
e.g., State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31; State v. Carter, 7th
Dist. No. 06-MA-187, 2009-Ohio-933; State v. Kolb, 7th Dist. No. 07 MA 80, 2008-Ohio-
5048; State v. Jenkins (March 14, 2000), 7th Dist. No. 98-502 CA. When the trial record
indicates that the defendant opened the door on the issue of his post-arrest, post-Miranda
silence, the error can be waived. See, e.g., State v. Stragisher, 7th Dist. No. 03 CO 13,
2004-Ohio-6797; State v. Eason, 7th Dist. No. 02 BE 41, 2003-Ohio-6279. Although the
foregoing are the primary reasons this Court has used to find no error for this issue, the
record does not indicate that these exceptions apply to the case at hand. The error was
not harmless for this reason.
       {¶32} The State argues that they are permitted to inquire about Chaney's pre-
arrest silence, pursuant to the Ohio Supreme Court’s decision in State v. Leach, 102 Ohio
St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335. Leach explained that the State is prohibited
from using a defendant’s pre-arrest silence as substantive evidence of guilt, but the State
may use a defendant’s pre-arrest silence for impeachment purposes in the event that the
defendant chooses to testify. Id. Here, the State argues that because they did not
specifically ask about Chaney's pre-arrest versus his post-arrest silence during cross-
examination, the error is harmless. However, a nonspecific inquiry about a defendant's
silence prior to his trial testimony at best still encompasses an inquiry about the
defendant’s post-arrest silence, which remains impermissible.          The error was not
harmless for this reason.
       {¶33} The State also argues that the error is harmless if the relative strength of the
other evidence against the defendant is great, or if the reference to the defendant's post-
arrest silence is fleeting. Chaney counters that the State's impeachment based on post-
arrest silence was fundamentally unfair, and that the questions regarding Chaney's
silence were repeatedly posed.
       {¶34} If there is overwhelming evidence of the defendant's guilt, an improper
                                                                                          -9-


reference to the defendant's post-arrest silence may be harmless beyond a reasonable
doubt. Thompson, supra, at 4-5; State v. Moreland (1990) 50 Ohio St.3d 58, 64-65, 552
N.E.2d 894. This justification is not applicable to the case at hand. Although, as
discussed infra, Chaney's convictions were not against the manifest weight of the
evidence, the State did not present overwhelming evidence against Chaney. Witness
testimony and therefore witness credibility played an extremely large role in Chaney's
case. Additionally, there were no eye-witnesses apart from Chaney and Kuriatnyk, and
the DNA evidence can be viewed as directly corroborating only one of the four rape
counts. It does not appear to this Court that "the remaining evidence, standing alone,
constitutes overwhelming proof of defendant's guilt." Moreland, supra, quoting State v.
Williams (1983), 6 Ohio St.3d 281, 6 OBR 345, 452 N.E.2d 1323, paragraph six of the
syllabus. Because credibility played such a large role in this case, we cannot presume
that an improper impeachment of Chaney’s credibility was harmless beyond a reasonable
doubt. The State’s impropriety was not harmless for this reason.
       {¶35} Additionally, if the reference to a defendant's post-arrest silence or exercise
of his Miranda rights is brief, isolated, and followed by a curative instruction by the trial
court, the error might not be reversible. State v. Treesh, 90 Ohio St.3d 460, 479-480,
2001-Ohio-4, 739 N.E.2d 749. However, the case at hand is distinguishable from Treesh.
The facts as described by the Ohio Supreme Court in Treesh indicate that the State
impermissibly inquired into the defendant’s post-arrest silence, but did not return to the
issue during closing arguments. Moreover, the trial court in Treesh provided a curative
instruction to the jury after the State’s impropriety, and this instruction was the main factor
upon which the Ohio Supreme Court based its decision. Id. At 480 (“We presume that
the jury followed the court’s instructions including instructions to disregard testimony.”).
See, also, State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d 623 (“A jury
is presumed to follow the instructions, including curative instructions, given it by a trial
judge.”). Here, the State made reference to Chaney’s post-arrest silence during cross-
examination, and also returned to the issue during closing arguments. The trial court
gave no curative instructions regarding the impermissible references to Chaney’s post-
arrest silence during cross-examination, closing arguments, or during its instructions of
                                                                                      - 10 -


law prior to deliberations. We therefore do not find that the error was harmless based on
the authority of the Ohio Supreme Court’s decision in Treesh.
       {¶36} Some of our sister Districts have decided that harmless error can be found if
the State's improper references are limited, or if the inference of a defendant's guilt from
the silence was not stressed by the State to the jury. See, e.g., State v. Thomas, 1st Dist.
No. C-010724, 2009-Ohio-971, at ¶18; State v. King, 11th Dist. No. 2003-L-177, 2005-
Ohio-4656, at ¶44; State v. Welch, 3d Dist. No. 16-06-02, 2006-Ohio-6684, at ¶13; State
v. Ervin, 8th Dist. No. 80473, 2002-Ohio-4093, at ¶65. However, this District does not
have such an established tendency to frame the analysis in this manner or to decide
Doyle violations the same way. See State v. Ifft (Mar. 23, 1989), 7th Dist. No. 87 C.A.
166 (finding a clear violation of Doyle in a short series of questions regarding the
defendant's failure to "tell anybody what had happened" prior to his testifying at trial).
       {¶37} In Washington this Court found error on facts very similar to the case at
hand. During his trial, Washington chose to testify in his defense. During cross-
examination, the prosecutor asked Washington, “how many times did you go over the
testimony that you just gave us here today with your attorney?” Washington at ¶64. After
Washington’s response, the prosecutor posed the question, “[a]nd before today you’ve
never said anything about what you testified to anyone other than your attorney[?].” Id. at
¶66. After Washington’s affirmative response, the prosecutor followed up by asking “[s]o
you’re aware this is the first time I’m hearing any of this?” Id. at ¶68. The defendant
failed to object to the prosecution’s questions, thus the issue was before this court under
a plain error standard of review. Id. at ¶57. This Court noted that all of the prosecution’s
questions in the above exchange could have merely been an attempt to imply to the jury
that Washington’s attorney had coached his testimony in order to keep it consistent. Id.
at ¶72. However, this Court noted that the prosecution’s stress on Washington’s failure to
have told anyone about his defense could constitute a reference to Washington’s post-
arrest silence. Id. at ¶73. This Court concluded that the prosecutor in Washington
“crossed the line” and impermissibly inquired into Washington's pre-testimony post-arrest
silence by asking the question, "before today you've never said anything about what you
testified to anyone other than your attorney[?]" Id. at ¶74.
                                                                                       - 11 -


       {¶38}   However, because this Court reversed Washington's conviction on other
grounds, this Court did not determine whether the error rose to the level of plain error.
Washington at ¶75. In a similar case, although a single reference in closing arguments to
the defendant's post-arrest silence was not found to constitute plain error, the Ohio
Supreme Court noted that they "cannot condone even an isolated reference to a
defendant's post-arrest silence." State v. Rahman (1986), 23 Ohio St.3d 146, 153, 23
OBR 315, 492 N.E.2d 401. Such admonitions under a plain error standard of review do
not necessarily control our decision today, but do support the contention that any
reference to a defendant’s post-arrest silence should be viewed with extreme disfavor.
Under the present and much more stringent harmless error analysis, this disfavor holds
much more sway.
       {¶39} Remaining consistent with our analysis in Washington and decision in Ifft,
we cannot find that the State’s improper reference to Chaney’s post-arrest silence was
harmless beyond a reasonable doubt. Although the State’s improper questioning was
quite brief during cross examination, the State returned to the issue in order to stress
Chaney’s lack of credibility during closing statements, and the trial court did not provide a
curative instruction at any point.
       {¶40} Chaney additionally argues that the State further impermissibly inquired
about his silence by bringing attention to the fact that Chaney had not requested access
to the DNA evidence in order to perform his own tests. As the State correctly points out,
the State is permitted to make reference to a defendant's failure to offer particular
evidence in support of its case, and such a reference does not constitute an inquiry into a
defendant's post-arrest silence. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880
N.E.2d 31, at ¶251; State v. Collins, 89 Ohio St.3d 524, 527-528, 2000-Ohio-231, 733
N.E.2d 1118; State v. Williams (1986), 23 Ohio St.3d 16, 20, 23 OBR 13, 490 N.E.2d 906.
Given this established precedent, this portion of Chaney's argument does not have merit.
       {¶41} Given the foregoing, Chaney’s first assignment of error is meritorious in part.
                Defective Indictment and Improper Jury Instructions
       {¶42} In his third assignment of error, Chaney asserts:
                                                                                      - 12 -


       {¶43} "The case, having proceeded on an indictment and jury instructions that
rendered no possibility of a consistent verdict, effects a case of plain error under Crim.R.
52."
       {¶44} Where an indictment does not sufficiently specify the counts against a
defendant, and differentiation between multiple counts is not discernible from the trial
record, the potential double jeopardy issues would cause the defendant’s convictions to
be vacated for a failure of due process. See Valentine v. Konteh, (C.A.6, 2005), 395 F.3d
626; State v. Tobin, 2d Dist. No. 2005 CA 150, 2007-Ohio-1345, at ¶8-10. Even though
this Court is reversing and remanding Chaney’s case on other grounds, this assignment
of error must still be addressed in order to preserve Chaney’s right to be free from double
jeopardy. See State v. Alexander, 7th Dist. No. 03 CA 789, 2004-Ohio-5525, at ¶36,
citing State v. Lovejoy, 79 Ohio St.3d 440, 1997-Ohio-371, 683 N.E.2d 1112.
       {¶45} The record reveals that the indictment charged Chaney with seven identical
instances of sexual conduct with no differentiation between them. Chaney does not raise
issue with the indictment on the grounds of adequate notice, but only regarding double
jeopardy: Chaney contends that there is no way to determine which four of the counts
received guilty verdicts from the jury.
       {¶46} Chaney correctly concedes that our examination is limited to a plain error
standard of review, as Chaney failed to raise the issue in the proceedings below. Crim.R.
30(A); Crim.R. 52(B); State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d
678, at ¶84. The doctrine of plain error "is to be applied with utmost caution and invoked
only under exceptional circumstances, in order to prevent a manifest miscarriage of
justice." State v. Cooperrider (1983), 4 Ohio St.3d 226, 227, 4 OBR 580, 448 N.E.2d
452.
       {¶47} Apart from a generic reference to constitutional law protections from double
jeopardy, Chaney solely relies on State v. Rupp, 7th Dist. No. 05 MA 166, 2007-Ohio-
1561 to support his argument. An issue arose in Rupp because the indictment did not
distinguish between two rape counts, and "neither the instructions nor the verdicts state[d]
which count was for vaginal rape and which count was for oral rape." Id. at ¶57. The
                                                                                       - 13 -


case at hand is distinguishable, because the verdict forms state the type of sexual
conduct as well as the location where the conduct occurred. The verdict forms for the
rape counts stated as follows:
       {¶48} "VERDICT FORM COUNT 3 RAPE (Penis – vaginal / living room floor)"
       {¶49} "VERDICT FORM COUNT 4 RAPE (Penis – vaginal / living room couch)"
       {¶50} "VERDICT FORM COUNT 5 RAPE (Digital – vaginal / downstairs)"
       {¶51} "VERDICT FORM COUNT 6 RAPE (Penis – vaginal / upstairs)"
       {¶52} "VERDICT FORM COUNT 7 RAPE (Digital – vaginal / upstairs)"
       {¶53} "VERDICT FORM COUNT 8 RAPE (Digital – anal / upstairs)"
       {¶54} "VERDICT FORM COUNT 9 RAPE (Cunnilingus / upstairs)"
       {¶55} Because each count charged against Chaney was differentiated in the
verdict forms given to the jury, it was not impossible for the jury to reach a consistent
verdict. For this reason alone, Chaney’s argument is meritless.
       {¶56} Moreover, differentiation between the seven rape counts against Chaney
was discernible from the trial record. According to Kuriatnyk’s testimony at trial, Chaney
entered Kuriatnyk’s house, pushed her to the floor, removed her shorts, genitally
penetrated her vagina, and stopped when his penis was no longer erect. After a physical
struggle, Chaney threw her on the couch, and again genitally penetrated her vagina.
Chaney also digitally penetrated her vagina while in the living room. Chaney then picked
her up, carried her upstairs to the bedroom, genitally and digitally penetrated Kuriatnyk's
vagina, digitally penetrated her anus, and briefly performed cunnilingus.          Because
Kuriatnyk testified with sufficient specificity as to seven different acts of sexual conduct,
each one of the seven counts was differentiated in the record, and it was not impossible
for the jury to reach a consistent verdict.
       {¶57} Contrary to Chaney’s argument, it was possible to determine which of the
four rape counts received guilty verdicts from the jury. No plain error occurred in regards
to the identification of each individual act of rape alleged against Chaney. Accordingly,
Chaney's third assignment of error is meritless.
                                                                                       - 14 -


                           Remaining Assignments of Error
       {¶58} In his second, fourth, fifth and sixth assignments of error, Chaney asserts,
respectively:
       {¶59} "The manifest weight of the evidence supported acquittal."
       {¶60} "The trial court erred in allowing testimonial descriptions of records without
allowing admission of the records themselves."
       {¶61} "The trial court erred in disallowing cross examination relative to the victim's
psychological condition, and trial counsel was ineffective for failing to investigate the
same."
       {¶62} "Multiple instances of error, combined, caused reversible error in Mr.
Chaney's case."
       {¶63} Given our disposition of Chaney’s first assignment of error, these remaining
four assignments of error are rendered moot, and this Court need not address them.
App.R. 12(A)(1)(c).
       {¶64} In conclusion, the State’s improper references to Chaney’s post-arrest
silence violated Chaney’s constitutional rights. The error is not harmless beyond a
reasonable doubt, as the State committed this violation both during cross-examination
and closing arguments and the trial court did not provide a curative instruction at any
point. Chaney’s remaining arguments are meritless or mooted by this Court’s resolution
of the first assignment of error. Accordingly, the judgment of the trial court is reversed
and this cause is remanded for a new trial.
Vukovich, P.J., concurs.
Donofrio, J., concurs.
