[Cite as State v. Hairston, 2016-Ohio-8495.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                     No. 15AP-1013
v.                                                   :             (C.P.C. No. 13CR-2125)

Vent L. Hairston,                                    :           (REGULAR CALENDAR)

                 Defendant-Appellant.                :


                                               D E C I S I O N

                                   Rendered on December 29, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Barnhart Law Office LLC, and Robert B.
                 Barnhart, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, Vent L. Hairston ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas finding him guilty of one count
of kidnapping and two counts of rape. Because the trial court did not abuse its discretion
in allowing amendment of the indictment, and because there was no abuse of discretion
or plain error in allowing a police officer to testify regarding the 12-year-old victim's
statements, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 19, 2013, the grand jury indicted appellant with one count of
kidnapping and five counts of rape, with a specification that the victim was under 13 years
of age. The indictment alleged that the victim, F.M., was 12 years old at the time and that
the offenses occurred on April 5, 2013. Originally, the counts of rape alleged the following
No. 15AP-1013                                                                                  2

sexual conduct: digital vaginal penetration (Count 2), digital anal penetration (Count 3),
cunnilingus (Count 4), anal intercourse (Count 5), and fellatio (Count 6).
       {¶ 3} Before trial, pursuant to Crim.R. 7(D), the trial court granted the state's
motion, over appellant's objection, to amend Count 6 to allege that the sexual conduct was
vaginal intercourse rather than fellatio. (Aug. 24, 2015 Tr. Vol. I at 13.) Trial commenced
on August 24, 2015. The trial testimony showed that, on April 5, 2013, L.M. reported to
Columbus Police that her 12-year-old daughter, F.M., was missing. (Tr. Vol. I at 234.) The
family had been playing at a park near Nelson Rd. and Fifth Ave. in Columbus, Ohio. L.M.
noticed that F.M. was missing when the family got ready to leave. (Tr. Vol. I at 80, 237.)
Police arrived on the scene and tried to help. (Tr. Vol. I at 238.) Despite the use of police
dogs and a helicopter, they were unable to locate the missing child. (Tr. Vol. I at 82, 86.)
       {¶ 4} Around midnight, L.M. received a call from F.M., via a phone number that
L.M. did not recognize. (Tr. Vol. I at 239-44.) F.M. did not state her location but L.M.
could hear a man in the background, and F.M. handed the phone to him. The man
identified himself as Vent Hairston. (Tr. Vol. I at 240-44.) L.M. did not know him. (Tr.
Vol. I at 243.) Appellant told L.M. over the phone that he was with her daughter, and he
gave the location of where they were and said that she could be picked up. (Tr. Vol. I at
240-42.) He said that F.M. was okay. (Tr. Vol. I at 242.)
       {¶ 5} When L.M. reached the location, she did not immediately see her daughter,
but then F.M. and appellant, whom L.M. identified in court, came walking around a
corner. (Tr. Vol. I at 244-45.) F.M. looked shaken up and was in tears. (Tr. Vol. I at 244-
46.) F.M. hugged her mom and said she was sorry for leaving the park. L.M. said it was
not F.M.'s fault and exclaimed "[t]hank God." (Tr. Vol. I at 245.) Appellant then
responded, "[t]hank God she is fine" and turned around and walked away. (Tr. Vol. I at
245.) F.M. did not say anything until they were back in the car. F.M. was crying and
shaking when she told L.M. what had happened to her. As a result of those disclosures,
L.M. called the police. (Tr. Vol. I at 246.)
       {¶ 6} Officer Robert Griffin responded to the convenience store parking lot at the
corner of Westerville Rd. and Thornapple Way at approximately 1:00 a.m. (Tr. Vol. I at
99-101.) He talked to F.M. and described her emotional state: "She seemed somewhat
stunned. She had sort of a flat affect. She seemed timid. She seemed almost shellshocked."
No. 15AP-1013                                                                              3

(Tr. Vol. I at 102.) Defense counsel objected to the introduction of F.M.'s statements to the
police officer but the court overruled the objection on the grounds that the statements
were an excited utterance. F.M. told the police officer that she had been picked up by a
man in a van after she left the park to go to a nearby convenience store to get something to
drink. (Tr. Vol. I at 108.) The man drove her to an apartment and sexually assaulted her
through vaginal and anal penetration with his penis. (Tr. Vol. I at 108, 114.) She also
reported that she took a shower at the man's direction. (Tr. Vol. I at 116.) She described
the man as an older black male who is short, thin, bald, with a goatee and moustache,
wearing a purple suit and purple shoes, and said his name was Vance. (Tr. Vol. I at 116-17,
121.) The officer drove F.M. around the area and she identified a van and an apartment.
(Tr. Vol. I at 123.) The officer then took her to Nationwide Children's Hospital.
       {¶ 7} At Nationwide Children's Hospital, F.M. was interviewed by licensed
independent social worker Sarah Saxbe. (Tr. Vol. I at 153.) Saxbe was permitted to testify
to the disclosures made by F.M. over defense counsel's objection. (Tr. Vol. I at 181-83.)
F.M. was tearful when she disclosed that she was sexually assaulted by a man who was a
stranger. (Tr. Vol. I at 182, 198.) Saxbe testified that F.M. disclosed that the man
penetrated her vagina and anus. (Tr. Vol. I at 182-83.) She also disclosed that the man
put his mouth on her genitals and breasts and butt. (Tr. Vol. I at 190.)
       {¶ 8} Theresa Warnimont is a sexual assault nurse examiner who also examined
F.M. She also testified to F.M.'s disclosures over objection. F.M. disclosed vaginal and
anal penetration and that the man put his mouth on her genitals and licked her breasts.
(Tr. Vol. II at 326-28.) Warnimont examined and photographed F.M. and noted internal
and external injuries to her vagina and anus. (Tr. Vol. II at 333-40.) Warnimont collected
rape-kit evidence during the examination, including swabs from the vagina and anus. (Tr.
Vol. II at 339-44.) F.M.'s clothing was also collected, including her underwear. (Tr. Vol. II
at 339-40.)
       {¶ 9} Lead Detective David Bobbitt testified that appellant lived at the address
pointed out by F.M. and that the van she identified was also registered to him. (Tr. Vol. II
at 469, 504.) Bobbitt served a search warrant on appellant's home and collected DNA
from him. (Tr. Vol. II at 487-97.) Detective Bobbitt found a purple suit in appellant's
home. (Tr. Vol. II at 492.) He also took custody of the rape-kit evidence for preservation
No. 15AP-1013                                                                             4

and submitted it for comparison to appellant's known DNA sample. (Tr. Vol. II at 484-87,
497-501.)
       {¶ 10} David Ross testified that he is a forensic scientist at the Ohio Bureau of
Criminal Investigation ("BCI"). (Tr. Vol. III at 523.) He conducted testing of the rape-kit
evidence in search for the presence of bodily fluids, primarily looking for evidence of
semen. (Tr. Vol. III at 529-30.) Initial testing of the vaginal swab from the rape kit for
F.M. confirmed the presence of a bodily fluid, but was inconclusive as to whether the
substance was or was not semen. (Tr. Vol. III at 530-31, 538-44.) On the anal swab, Ross's
results indicated trace amounts of semen. (Tr. Vol. III at 545.) Trace amounts of semen
were also found on F.M.'s underwear. (Tr. Vol. III at 552.)
       {¶ 11} Devonie Herdemann, another BCI forensic analyst, compared the DNA
found in the anal swabs and underwear to appellant. (Tr. Vol. III at 602-05.) The analysis
found that the DNA in the anal swab contained F.M.'s DNA and a male profile, but the
sample was not strong enough to include or exclude appellant. (Tr. Vol. III at 602.)
However, the DNA found in the underwear was a match for appellant. (Tr. Vol. III at
605.) The expected frequency of the occurrence of this DNA profile consistent with
appellant from the underwear is one in 1,734,000,000,000,000,000 unrelated
individuals. (Tr. Vol. III at 606; State's Ex. G-2.)
       {¶ 12} On August 31, 2015, the jury returned guilty verdicts as to Count 1
(kidnapping), Count 5 (rape - anal intercourse), and Count 6 (rape - vaginal intercourse),
along with the age specifications. (Oct. 7, 2015 Jgmt. Entry at 1.) The jury returned not
guilty verdicts to the other three rape counts. Id.
       {¶ 13} On September 16, 2015, the trial court sentenced appellant to 10 years to life
in prison on Count 1, and 25 years to life on Counts 5 and 6. The sentence on Count 1 was
to be served consecutively to the concurrent sentences on Counts 5 and 6 for a total
sentence of 35 years to life in prison.
II. ASSIGNMENTS OF ERROR
       {¶ 14} Appellant appeals, assigning the following errors:
              [I.] THE TRIAL COURT ERRED WHEN IT ALLOWED THE
              STATE TO AMEND COUNT SIX OF THE INDICTMENT
              BEFORE TRIAL.
No. 15AP-1013                                                                               5

              [II.] THE TRIAL COURT IMPROPERLY ADMITTED
              TESTIMONIAL HEARSAY EVIDENCE.

III. STANDARD OF REVIEW
       {¶ 15} An appellate court "review[s] a trial court's decision to permit the
amendment of an indictment under an abuse-of-discretion standard. To constitute
reversible error, [the defendant] must show not only that the trial court abused its
discretion, but that the amendment prejudiced his defense." State v. Beach, 148 Ohio
App.3d 181, 2002-Ohio-2759, ¶ 23 (1st Dist.). An abuse of discretion connotes more than
an error of law or judgment; it connotes a decision that was arbitrary, unconscionable, or
unreasonable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
       {¶ 16} Hearsay exceptions are reviewed for an abuse of discretion. State v. Dever,
64 Ohio St.3d 401, 410 (1992). "[A] trial court has broad discretion in the admission of
evidence, and unless it has clearly abused its discretion and the defendant has been
materially prejudiced thereby, an appellate court should not disturb the decision of the
trial court." State v. Issa, 93 Ohio St.3d 49, 64 (2001). Thus, a "trial court has broad
discretion to determine whether a declaration should be admissible as a hearsay
exception." Dever at 410.
       {¶ 17} A question of whether a statement violates the Confrontation Clause is
reviewed de novo. State v. Durdin, 10th Dist. No. 14AP-249, 2014-Ohio-5759, ¶ 15.
IV. ASSIGNMENT OF ERROR ONE
       {¶ 18} Crim.R. 7(D) discusses the amendment of indictments: "The court may at
any time before, during, or after a trial amend the indictment, information, complaint, or
bill of particulars, in respect to any defect, imperfection, or omission in form or substance,
or of any variance with the evidence, provided no change is made in the name or identity
of the crime charged."
       {¶ 19} The Ohio Constitution guarantees the right to have an indictment presented
to the grand jury: "[N]o person shall be held to answer for a capital, or otherwise
infamous, crime, unless on presentment or indictment of a grand jury." Ohio
Constitution, Article I, Section 10.
       {¶ 20} Appellant argues that the trial court violated appellant's right to a grand jury
under Ohio Constitution, Article I, Section 10, because the trial court improperly allowed
No. 15AP-1013                                                                            6

the state to amend Count 6 of the indictment before trial from alleging rape by fellatio to
rape by vaginal intercourse. (Tr. Vol. I at 9-13.) Defense counsel objected on general
grounds and the specific ground, stating "[t]hat's almost like or akin to a subsequent
charge being added that was not presented to the grand jury in this case. If you want to
charge a guy with an offense, due process requires that that evidence be presented to a
grand jury to make that determination, not a substitution." (Tr. Vol. I at 11.)
       {¶ 21} Appellant recognizes that this court allowed a similar amendment in State
v. Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786. In Smith, this court found no error
where the trial court allowed the state to change the sexual conduct at issue from fellatio
to digital vaginal penetration. Id. at ¶ 15. However, appellant argues that Smith did not
analyze the question from the perspective of the right to a grand jury and should be
reconsidered for that reason.
       {¶ 22} The state argues that appellant fails to show an abuse of discretion or
prejudicial error warranting reversal, because provided there is no change in the "name or
identity of the crime charged," Crim.R. 7(D) allows the trial court to amend the
indictment at any time before, during, or after trial, with respect to any defect,
imperfection, or omission in form or substance or with respect to any variance in the
evidence. The state notes that this court and other courts have already held that an
amendment changing a rape count from one form of sexual conduct to another is allowed
under Crim.R. 7(D).
       {¶ 23} Appellant acknowledges that Smith allows such an amendment under
Crim.R. 7(D). Subsequent cases from this court have agreed with Smith, holding that
"[a]mending a rape charge from one type of sexual conduct to another type of sexual
conduct changes neither the name nor the identity of the rape offense." State v. Abdullah,
10th Dist. No. 05AP-1316, 2006-Ohio-5412, ¶ 24; State v. Martin, 10th Dist. No. 05AP-
818, 2006-Ohio-2749, ¶ 9 (no abuse of discretion allowing such amendment.). The
Second District followed this line of cases in State v. Jones, 2nd Dist. No. 26289, 2015-
Ohio-4116, ¶ 126, holding that the indictment could be amended from one type of "sexual
contact" to another type. Likewise, the Eighth District in State v. Steele, 8th Dist. No.
101139, 2014-Ohio-5431, ¶ 30, upheld as "properly made" an amendment of the "sexual
conduct" involved in rape to "vaginal intercourse" from "anal intercourse." In accordance
No. 15AP-1013                                                                              7

with our case law, the amendment of Count 6 from "fellatio" to "vaginal intercourse" did
not change the name or identity of the offense and was proper.
       {¶ 24} In addition, the outcome of this issue does not change when it is reviewed as
a constitutional matter. As recognized by the Second District in Jones at ¶ 124, quoting
State v. Strozier, 2d Dist. No. 14021 (Oct. 5, 1994), " 'Crim.R. 7(D) embodies the
protections guaranteed in Section 10, Article I, of the Ohio Constitution.' " That court
rejected the constitutional challenge to the amendment from one type of "sexual contact"
to another type, emphasizing that the "amendment did not change the penalty or degree
of the offense" and "the State was still required to prove, and did in fact prove, that Jones
had 'sexual contact' " with the victim. Jones at ¶ 129. The Supreme Court also has
recognized that the rule complies with the constitutional provision. " 'As long as the state
complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the
original indictment omits an essential element of the offense with which the defendant is
charged.' " State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 69, quoting State v.
Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, ¶ 15. In addition, this court has rejected a
constitutional challenge to this kind of amendment in Martin at ¶ 7-11, denying the
assignment of error that asserted that the amendment was constitutional error. The rule
operates in a manner consistent with the constitutional protection. By complying with the
rule, the state complies with the constitutional protection as well.
       {¶ 25} Further, there was no showing of prejudice that would indicate an abuse of
discretion. The claim of vaginal intercourse had been present in the discovery provided to
appellant. Appellant contended that there was no type of sexual conduct at all. There is
no prejudice when the defense theory denying the occurrence of any sexual conduct can
still be pursued. Abdullah at ¶ 26. Appellant fails to show a constitutional violation, or a
prejudicial abuse of discretion warranting reversal. Appellant's first assignment of error
is overruled.
V. ASSIGNMENT OF ERROR TWO
       {¶ 26} Testimony of hearsay is generally prohibited by Evid.R. 802. However,
Evid.R. 803(2) sets forth the hearsay exception for excited utterances, which are defined
as a "statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition." Substantial time frames
No. 15AP-1013                                                                             8

are tolerated in this context, especially when the declarant is a child. State v. Jones, 135
Ohio St.3d 10, 2012-Ohio-5677, ¶ 169; State v. Wallace, 37 Ohio St.3d 87, 90-91 (1988).
Statements by sexually assaulted children have been upheld "even when made after a
substantial lapse of time" because "children are likely to remain in a state of nervous
excitement longer than would an adult." State v. Taylor, 66 Ohio St.3d 295, 304 (1993).
       {¶ 27} The Confrontation Clause bars "admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify and the defendant
had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S.
36, 53-54 (2004). "Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency," but that
statements are testimonial when the circumstances indicate that there "is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S.
813, 822 (2006). Therefore, even if a statement falls under a hearsay exception it can be
excluded as testimonial because such statements violate the Confrontation Clause.
However, nontestimonial statements would be admissible under a hearsay exception.
       {¶ 28} Appellant argues that the trial court improperly allowed Officer Griffin to
testify about F.M.'s statements because (1) the statements were not excited utterances,
and (2) even if the statements were excited utterances, they were testimonial and their
admission violated the Confrontation Clause. Appellant argues that the basis for the trial
court's conclusion that the statements were excited utterances was the police officer's
testimony that F.M. "seemed somewhat stunned. She had sort of a flat affect. She seemed
timid. She seemed almost shellshocked." (Tr. Vol. I. at 102.) Appellant argues that, since
F.M. displayed a flat affect, she was not in a period of nervous excitement and, therefore,
her statements were not excited utterances.
       {¶ 29} In addition, appellant asserts that, at the time the statements were made,
there was no ongoing emergency because F.M. had been returned to her family and was in
a police cruiser driving around to obtain information about the suspect. Therefore,
appellant argues that the primary purpose of the officer's questions was to obtain
No. 15AP-1013                                                                             9

information for later prosecution and, as such, the statements are testimonial and should
have been excluded.
       {¶ 30} Finally, appellant argues that he was prejudiced by the admission of F.M.'s
statements to police because her statement that she was driven in a van to an apartment
formed the basis of appellant's kidnapping conviction and, therefore, without that
information, the jury would have no evidence to conclude that appellant was responsible
for removing her from the park. (Tr. Vol. I at 108.)
       {¶ 31} The state notes that appellant did not preserve a Confrontation Clause
objection to this evidence. When Griffin began to specifically describe F.M.'s statements,
appellant objected on grounds that no foundation had been laid for an excited utterance
exception to the hearsay rule. (Tr. Vol. I at 105.) Appellant did not make any
Confrontation Clause objection. In response, the prosecutor noted that F.M. was still
affected by the immediacy of events. The court noted that an excited utterance can occur
even a day after the startling event and that the foundation can be established through the
statements themselves and that no specific time limit applies. (Tr. Vol. I at 106.) The
court concluded that the statements related to startling events and that the foundation
had been laid that F.M. was shell-shocked and still under the stresses of the trauma of the
situation. (Tr. Vol. I at 107.) The state argues that the trial court did not abuse its
discretion in overruling the objection based on the excited utterance exception, and that
there was no plain error regarding any Confrontation Clause issue.
       {¶ 32} In regards to an excited utterance hearsay exception, "[a] declarant's failure
to react in a fashion completely dominated by hysteria and shock should not
automatically render a statement inadmissible as an excited utterance." State v.
Hoagland, 12th Dist. No. CA83-02-014 (Mar. 19, 1984.) The relative lack of outward
emotion is not necessarily calm but rather shock, and "a statement made while in shock is
an excited utterance." Maggard v. Ford Motor Co., 320 F.Appx. 367, 375 (6th Cir.2009),
citing Haggins v. Warden, 715 F.2d 1050, 1058 (6th Cir.1983).
       {¶ 33} The startling events here would have been overwhelming for a 12-year-old
girl. She had just undergone kidnapping at the hands of a sex offender and repeated rapes
over the course of a number of hours, suffering external and internal injuries. The victim's
statements about the initial transportation to the apartment was part of the chain of
No. 15AP-1013                                                                           10

startling events over which the victim, who had only been released by her abductor
moments before her statements to the police officer, would still be suffering stress. The
statements described those events so as to be admissible excited utterances. The court did
not abuse its discretion in finding that the statements were admissible.
       {¶ 34} The next question is whether or not F.M.'s statements were testimonial or
nontestimonial. As argued by the state, appellant did not preserve a Confrontation Clause
objection to the statements. Appellant only objected on hearsay grounds. "Objection on
one ground does not preserve other, unmentioned grounds." State v. Wallace, 10th Dist.
No. 08AP-2, 2008-Ohio-5260, ¶ 25. Moreover, a criminal constitutional question may not
be raised on appeal "unless it is presented and urged in the court below." State v.
Williams, 51 Ohio St.2d 112, 117 (1977). As a result, appellant has waived all but plain
error. State v. Jordan, 10th Dist. No. 06AP-96, 2006-Ohio-6224, ¶ 22.
       {¶ 35} While statements to a police officer can qualify as "testimonial" under the
line of cases beginning with Crawford, such statements can also be nontestimonial in
regard to ongoing emergencies and other circumstances if the defendant has not shown
that the primary purpose was to create an out-of-court substitute for trial testimony. Ohio
v. Clark, _ U.S. _ , 135 S.Ct. 2173, 2179-81 (2015).
       {¶ 36} In this case, the situation had emergency implications based on safety and
medical concerns. The police needed to assess the level of the potential danger to the
public by determining what crimes had occurred and how they occurred. The questioning
by Officer Griffin occurred just minutes after the victim had been "released," and while
the appellant was still unknown and at large. It would have appeared to the police that
the offender had abducted the victim, held her for several hours, and sexually assaulted
her. This behavior indicated a possible continuing danger and called for quick questioning
to ascertain exactly what had happened. The need to address the victim's potentially
serious injuries can also be relevant in dealing with an ongoing problem. In fact, the
victim needed medical assistance because of the rapes and the danger of sexually
transmitted diseases. Given these circumstances, appellant cannot show that the primary
purpose was to create a substitute for in-court testimony. In fact, the information in the
record supports admissibility because of the safety and medical circumstances involved in
the case.
No. 15AP-1013                                                                               11

       {¶ 37} As stated in State v. Campbell, 69 Ohio St.3d 38, 41 (1994), fn. 2, "[o]ur
cases make clear that we will not overturn a conviction for alleged error not raised below,
unless it amounts to plain error."     "[T]he lack of a 'plain' error within the meaning of
Crim.R. 52(B) ends the inquiry and prevents recognition of the defect." State v. Barnes,
94 Ohio St.3d 21, 28 (2002). In Barnes at 27, the court stated that the plain error analysis
begins with three criteria: (1) there must be "a deviation from a legal rule"; (2) the defect
must be "obvious"; and (3) the error "must have affected the outcome of the trial." "Notice
of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice." State v.
Long, 53 Ohio St.2d 91, 96 (1978).
       {¶ 38} Recent cases have confirmed that the prejudice prong under the plain error
standard focuses on whether the outcome clearly would have been different. In State v.
Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 120, quoting State v. Adamson, 72 Ohio
St.3d 431, 434-35 (1995), quoting State v. Moreland, 50 Ohio St.3d 58, 62 (1990), the
court said that " ' "[p]lain error does not exist unless it can be said that but for the error,
the outcome of the trial would clearly have been otherwise." ' "
       {¶ 39} In the present case, appellant cannot satisfy the obvious error, outcome
determination, and manifest miscarriage of justice prongs of the plain error analysis.
Appellant cannot show obvious error under the Confrontation Clause in the introduction
of F.M.'s statements by Officer Griffin.
       {¶ 40} Finally, the introduction of F.M.'s statements about transportation were
harmless given that the kidnapping statute allows conviction when the removal or
restraint is by any means. R.C. 2905.01(A). No matter what means appellant used to get
the victim from where she went missing to where she was found miles away and hours
later, appellant was guilty of kidnapping. In addition, there was overwhelming evidence
that appellant raped F.M., as shown by the internal injuries and the presence of his semen
on her underwear. The record supports the view that the jury still would have convicted
appellant on the same counts, and that no manifest miscarriage of justice occurred.
Appellant's second assignment of error is overruled.
No. 15AP-1013                                                                      12

VI. DISPOSITION
      {¶ 41} Having overruled appellant's assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
                                                                  Judgment affirmed.
                       DORRIAN, P.J. and SADLER, J., concur.
                            _________________
