[Cite as State v. Rice, 2012-Ohio-2174.]


STATE OF OHIO                      )                IN THE COURT OF APPEALS
                                   )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                       C.A. No.       26116

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
TIMOTHY W. RICE                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 08 12 3921

                                  DECISION AND JOURNAL ENTRY

Dated: May 16, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Timothy Rice, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}     On the morning of November 15, 2008, M.R. told her mother, Jody Lund, that her

father, Rice, had touched her inappropriately. M.R., who was 11 years old at the time, described

the abuse as having occurred on multiple occasions since August of 2008. M.R. told Lund that

Rice had performed oral sex on her the previous night and licked her breast. Rice also forced

M.R. to view pornographic images and a movie on the family’s computers during the course of

the abuse. M.R. finally decided to tell her mother about the abuse after Rice said she would have

to perform fellatio on him. Lund immediately confronted Rice after M.R. told her about the

allegations and, according to Lund, Rice confessed to having abused their daughter. The police

later conducted DNA testing and found that foreign DNA on M.R.’s right breast was consistent
                                                  2


with Rice’s DNA profile. They further found numerous pornographic images and references on

the family’s two computers.

          {¶3}   A grand jury indicted Rice on (1) one count of rape, gross sexual imposition, and

disseminating matter harmful to juveniles; (2) three counts of the illegal use of a minor in a

nudity-oriented material or performance; (3) three counts of pandering sexually oriented matter

involving a minor; and (4) six counts of pandering obscenity involving a minor. Rice pleaded

guilty to rape and three counts of pandering sexually-oriented matter involving a minor, but the

trial court later granted his petition for post-conviction relief and vacated his convictions. Rice

then filed a motion to suppress, and a hearing took place. At the end of the hearing, the trial

court orally denied Rice’s motion.

          {¶4}   The State dismissed six counts before trial, and the trial resulted in seven guilty

verdicts and a mistrial on two counts; the rape count and one count of pandering sexually-

oriented matter involving a minor. The State then agreed to dismiss the pandering charge and

amend the rape charge to sexual battery in exchange for Rice’s guilty plea. As such, Rice

ultimately was found guilty of eight charges: sexual battery, gross sexual imposition,

disseminating matter harmful to a juvenile, pandering sexually-oriented material involving a

minor, two counts of the illegal use of a minor in a nudity-oriented material or performance, and

two counts of pandering obscenity to a minor. The trial court sentenced Rice to ten years in

prison.

          {¶5}   Rice now appeals from his convictions and raises seven assignments of error for

our review.
                                                3


                                                II

                                Assignment of Error Number One

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING
       APPELLANT’S MOTION TO SUPPRESS BASED UPON A FINDING THAT
       THE WARRANTLESS SEARCH OF COMPUTERS WAS WITHOUT
       APPELLANT’S CONSENT, THERBY (sic) VIOLATING APPELLANT’S
       CONSTITUTIONAL RIGHTS TO BE FREE FROM UNREASONABLE
       SEARCH AND SEIZURE.

       {¶6}    In his first assignment of error, Rice argues that the trial court erred by denying

his motion to suppress the evidence police seized from several computers in the absence of a

warrant. We disagree.

       {¶7}    The Ohio Supreme Court has held that:

       [a]ppellate review of a motion to suppress presents a mixed question of law and
       fact. When considering a motion to suppress, the trial court assumes the role of
       trier of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366
       (1992). Consequently, an appellate court must accept the trial court’s findings of
       fact if they are supported by competent, credible evidence. State v. Fanning, 1
       Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard. State v. McNamara, 124
       Ohio App.3d 706 (4th Dist.1997).

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Accordingly, this Court reviews

the trial court’s factual findings for competent, credible evidence and considers the court’s legal

conclusions de novo. State v. Conley, 9th Dist. No. 08CA009454, 2009-Ohio-910, ¶ 6, citing

Burnside at ¶ 8.

       {¶8}    The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio

Constitution, Article I, Section 14. A warrantless search “is ‘per se unreasonable * * * subject
                                               4


only to a few specifically established and well-delineated exceptions.’”         Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973), quoting Katz v. United States, 389 U.S. 347, 357 (1967).

        One such exception is a search conducted pursuant to consent. * * * [W]hen a
        person consents to the search of a shared property, the consent of one who
        possesses common authority over premises or effects is valid as against the
        absent, nonconsenting person with whom that authority is shared. * * *
        [C]ommon authority rests on the mutual use of the property by persons generally
        having joint access or control for most purposes.

(Internal quotations and citations omitted.) State v. Beougher, 9th Dist. No. 21378, 2003-Ohio-

3591, ¶ 9. The State bears the burden of establishing common authority, but need not prove that

actual authority to consent existed. State v. Chuey, 9th Dist. No. 2937-M, 2000 WL 487738, *4

(Apr. 26, 2000). The consent will be valid so long as, under the totality of the circumstances as

they existed at the time, a reasonable person would have concluded that the consenting party had

authority to consent to the search. Id. Accord Georgia v. Randolph, 547 U.S. 103, 109 (2006).

        {¶9}   Detective Jeff Swanson testified that two days after Rice’s arrest Lund called the

police department because she wanted to bring the computers from her home to the police

station. That same day, Lund personally delivered the computers to the police station and signed

a general permission to search form. One computer was a Gateway laptop and the other was an

HP Pavilion desktop. Detective Swanson testified that, at the time he accepted the computers

from Lund, she explained that the family kept the desktop in her daughter’s room and the laptop

in her son’s room. She further explained that the computers belonged to her children, but the

entire family used both computers. In particular, the family used the laptop throughout the

home.

        {¶10} Lund testified that her uncle purchased both the desktop and the laptop for her

children, but the entire family used both computers. Because the laptop had a wireless internet

connection, it worked everywhere in the house and was used throughout the house. Lund did not
                                                 5


recall the desktop having any password. As to the laptop, she testified that there was a password,

but it was a common password for one main user account and the entire family knew the

password. She could not remember who created the password, but believed it was either her son

or her uncle. Lund specified that she brought the computers to the police station for the purpose

of having their contents searched. She testified that, after she heard her daughter’s statement, she

knew Rice had used the computers when he harmed their daughter. Therefore, she hoped that

the police would be able to examine the computers and uncover information to aid their

investigation.

       {¶11} The trial court denied Rice’s motion to suppress after concluding that Lund

consented to the search of the computers. Rice first argues that the trial court erred in its

conclusion because it specifically found that, at the time Lund consented, the police lacked

sufficient information to conclude that she had authority to consent to a search. In explaining her

rationale, the trial judge noted that if she were issuing an advisory opinion to the police, she

would have advised them to get a warrant. The court stated that, at the time the police obtained

Lund’s consent, they did not have sufficient proof of her common authority. Because Lund’s

testimony at the hearing ultimately showed that she had actual authority to consent, however, the

court upheld the search.

       {¶12} We do not agree that the police lacked sufficient knowledge of Lund’s common

authority at the time she consented to the search. Lund clearly had physical control of the

computers, as she brought them to the police station of her own accord. She also told Detective

Swanson when she brought the computers to the police station that the computers were

purchased for her children, the entire family used the computers, the desktop was kept in her

daughter’s room, and the laptop moved freely throughout the house. There was no evidence that
                                               6


Rice exclusively controlled the computers or that access to them was in any way restricted. All

of the evidence pointed to the fact that the computers belonged to Rice’s children and were

jointly accessed by the entire family. Although the police did not learn until later whether the

computers were password protected, a reasonable person could have concluded that Lund had

common authority to consent to the search. See State v. Knisley, 2d Dist. No. 22897, 2010-Ohio-

116, ¶ 42-45 (common authority proven where family members had joint access to a computer

and the defense did not introduce any evidence of exclusive control or password protection).

       {¶13} Rice also argues that the trial court erred by denying his motion because

individuals possess heightened expectations of privacy in computers and those expectations

outweigh the interests of law enforcement in conducting a warrantless search. Rice relies upon

State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426. In Smith, the Ohio Supreme Court held

that police officers may not conduct a warrantless search of data within a cell phone “when the

search is unnecessary for the safety of law-enforcement officers and there are no exigent

circumstances.” Smith at syllabus. Rice likens computers to cell phones and argues that the

police erred by conducting a warrantless search of the computers here because no exigent

circumstances existed.    Smith, however, arose from a different exception to the warrant

requirement. Exigent circumstances were necessary to the holding in Smith because the cell

phone there was seized incident to a lawful arrest. Id. The existence of an exigent circumstance

was unnecessary here because the police had Lund’s consent to search the computers. Courts

considering the warrantless search of a computer in light of a third party’s consent to search

examine other key factors, including “whether the consenting third party in fact used the

computer, whether it was located in a common area accessible to other occupants of the

premises, and—often most importantly—whether the defendant’s files were password
                                                 7


protected.” United States v. Clutter, 674 F.3d 980, 984 (8th Cir.2012). Accord United States v.

Stabile, 633 F.3d 219, 233 (3d Cir.2011). An examination of those factors here supports the trial

court’s ultimate conclusion that Lund had authority to consent to a search of the computers.

Consequently, the court properly denied Rice’s motion to suppress the evidence taken from the

computers. Rice’s first assignment of error is overruled.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
       SUPPRESS THE RESULT OF DNA TESTING WHERE THE STATE
       CONSUMED THE ENTIRE STANDARD SAMPLES WITHOUT PROVIDING
       ADVANCE NOTICE OF SUCH CONSUMPTION TO APPELLANT, OR
       PROVIDING APPELANT (sic) AN OPPORTUNITY TO HAVE A DNA
       EXPERT OF HIS CHOOSING OBSERVE THE STATE’S TESTING
       PROCEDURES AND PROCESS IN VIOLATION OF APPELLANT’S
       CONSTITUTIONAL RIGHTS.

       {¶14} In his second assignment of error, Rice argues that the trial court erred by denying

his motion to suppress the results the State obtained from DNA testing. Because the test

required the consumption of certain samples and the State did not first notify him the samples

would be destroyed, Rice argues, the State deprived him of the opportunity to have an

independent expert conduct the test and, in doing so, violated his due process rights.

       {¶15} We incorporate the standard of review set forth in Rice’s first assignment of error.

The State need only preserve evidence a reasonable person might expect to be both exculpatory

and material in nature. California v. Trombetta, 467 U.S. 479, 488 (1984). “To meet this

standard of constitutional materiality, * * * evidence must both possess an exculpatory value that

was apparent before the evidence was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available means.” Id. at

489. Moreover, if the State destroys evidence of limited exculpatory value (i.e., “potentially

useful” evidence), a court only will consider the destruction to be a due process violation if the
                                                  8


defendant shows that the police destroyed the evidence in bad faith. State v. Geeslin, 116 Ohio

St.3d 252, 2007-Ohio-5239, syllabus, citing Arizona v. Youngblood, 488 U.S. 51 (1988). The

parties agree that a bad faith standard applies here.

       {¶16} Stacy Violi, a forensic scientist with the Bureau of Criminal Identification and

Investigation (“BCI”), testified that she examined several swabs taken from M.R.’s rape kit and

determined that she would need to consume the samples in their entirety to obtain useful results.

Violi requested a consumption letter from the Summit County Prosecutor’s Office, explaining

that only a limited amount of DNA was present on the swabs and asking for authorization to

consume the samples. Violi received a consumption letter on February 6, 2009, and tested the

samples the following week. She explained that BCI does not permit anyone to observe the

testing a scientist performs on a sample, but that its analysts document all of their work and that

documentation is always available to the defense. Violi confirmed that BCI frequently has to

consume samples and, if it encounters a challenge to its doing so, BCI will terminate its

involvement so that the sample can be diverted to a facility of the parties choosing.

       {¶17} Assistant Summit County Prosecutor Jon Baumoel testified that he received

Violi’s request for a consumption letter in January 2009, less than a month after he started

working in the Summit County office. Previously, Baumoel prosecuted cases for the Stark

County Prosecutor’s Office. He testified that in his fifteen years with the Stark office, he never

received a consumption letter. Baumoel explained that Stark County has its own crime lab and

that lab routinely consumed samples without first notifying the prosecutor. Baumoel indicated

that he consulted a more experienced Summit County prosecutor when he received Violi’s

request and that prosecutor provided him with a form letter that Baumoel used as a guide to write

the consumption letter for Violi. Baumoel stated that it never occurred to him to contact the
                                               9


defense before he authorized the consumption because he had never encountered a challenge to

the consumption of a sample.

       {¶18} Rice argues that the State acted in bad faith because it made a unilateral decision

to destroy the evidence at issue and deprived the defense of the opportunity to have the samples

independently tested.

       Bad faith implies more than bad judgment or negligence; instead, it “imports a
       dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known
       duty through some ulterior motive or ill will partaking of the nature of fraud. It
       also embraces actual intent to mislead or deceive another.” (Internal citation
       omitted.) Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276 (1983).

State v. Dunn, 9th Dist. No. 03CA0037, 2004-Ohio-2249, ¶ 63. Rice concedes that Baumoel had

no reason to know whether the samples would be exculpatory at the time of their destruction, as

he approved their consumption before any testing had even occurred. See State v. Osburn, 9th

Dist. No. 07CA0054, 2008-Ohio-3051, ¶ 16, quoting Youngblood, 488 U.S. at 56, fn. 1 (“The

presence or absence of bad faith * * * must necessarily turn on the [State’s] knowledge of the

exculpatory value of the evidence at the time it was lost or destroyed.”). Further, Rice has not

shown that there was any conscious wrongdoing or intent to deceive on the part of the

prosecutor. Dunn at ¶ 63. The record supports the trial court’s conclusion that Rice failed to

make a showing of bad faith. Accordingly, we conclude that the court properly denied Rice’s

motion to suppress. Rice’s second assignment of error is overruled.

                               Assignment of Error Number Three

       THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION IN
       LIMINE TO PROHIBIT EVIDENCE OBTAINED FROM THE STATE’S
       FORENSIC EXAMINATION OF THE DESKTOP COMUPTER (sic) AND THE
       LAPTOP COMPUTER.
                                                 10


                               Assignment of Error Number Four

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE PROBATIVE
       VALUE OF THE EVIDENCE OBTAINED FROM THE STATE’S FORENSIC
       EXAMINATION OF THE COMPUTERS WAS SUBSTANTIALLY
       OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE.

       {¶19} In his third and fourth assignments of error, Rice argues that the court erred by

admitting the images the State’s experts found on the computers taken from Rice’s home. He

argues that the State did not lay a foundation for the images and that the images were

substantially more prejudicial than probative.

       {¶20} “A court’s ruling on a motion in limine does not preserve issues related to

evidentiary rulings for appeal.” State v. Garfield, 9th Dist. No. 09CA009741, 2011-Ohio-2606,

¶ 55. “[A]n appellate court need not review the propriety of such an order unless the claimed

error is preserved by an objection * * * when the issue is actually reached * * * at trial.”

(Emphasis omitted.) State v. Gray, 9th Dist. No. 08CA0057, 2009-Ohio-3165, ¶ 7, quoting State

v. Grubb, 28 Ohio St.3d 199, 203 (1986).              “The law is well settled that failure to

contemporaneously object during the identification of [evidence] and testimony regarding it

forfeits appellate review.” State v. Cross, 9th Dist. No. 25487, 2011-Ohio-3250, ¶ 49. Accord

State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, ¶ 21. And while an appellant who

forfeits an objection may raise a claim of plain error on appeal, “this [C]ourt will not sua sponte

undertake a plain-error analysis if a defendant fails to do so.” State v. Aguilar, 9th Dist. No.

10CA0051, 2011-Ohio-6008, ¶ 5.

       {¶21} Rice challenged the State’s computer evidence in both written and oral motions in

limine, but the trial court denied his motions. The State’s computer expert, Erica Moore, then

testified without objection.    The State introduced all of the computer images Rice now

challenges through Moore’s testimony in the absence of any objection. Rice only sought to
                                                11


exclude the images and related testimony in his motions in limine and later at the admission

stage. He never contemporaneously objected when the State identified its evidence through

Moore and displayed the images to the jury. Based on our review of the record, we must

conclude that Rice forfeited his objections to the computer images and is limited to a claim of

plain error on appeal. Cross at ¶ 49. Rice, however, does not argue plain error on appeal.

Because this Court will not address a claim of plain error in the absence of an argument that

plain error exists, we do not reach the merits of Rice’s challenge to the computer evidence. See

Aguilar at ¶ 5. Rice’s third and fourth assignments of error are overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIMINAL
       RULE 29 MOTION FOR ACQUITTAL.

       {¶22} In his fifth assignment of error, Rice argues that all of his convictions1 that arise

from the images the State collected from his family’s computers are based on insufficient

evidence. We disagree.

       {¶23} In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.




1
  For ease of analysis, this Court refers to the guilty verdicts Rice challenges as “convictions,”
but recognizes that several of his guilty verdicts are not “convictions” as a matter of law because
they resulted in allied offenses for which Rice did not receive a sentence.
                                                 12


Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.

       {¶24} “No person, with knowledge of its character or content, shall recklessly * * *

[d]irectly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile * * *

any material or performance that is obscene or harmful to juveniles.” R.C. 2907.31(A)(1).

Whoever commits the foregoing offense is guilty of disseminating matter harmful to juveniles.

R.C. 2907.31(F).

       {¶25} “No person, with knowledge of the character of the material or performance

involved, shall * * * [b]uy, procure, possess, or control any obscene material, that has a minor as

one of its participants.” R.C. 2907.321(A)(5). Whoever commits the foregoing offense is guilty

of pandering obscenity involving a minor. R.C. 2907.321(C).

       {¶26} “No person, with knowledge of the character of the material or performance

involved, shall * * * [k]nowingly solicit, receive, purchase, exchange, possess, or control any

material that shows a minor participating or engaging in sexual activity, masturbation, or

bestiality.” R.C. 2907.322(A)(5). Whoever commits the foregoing offense is guilty of pandering

sexually oriented matter involving a minor. R.C. 2907.322(C).

       {¶27} “No person shall * * * [p]ossess or view any material or performance that shows a

minor who is not the person’s child or ward in a state of nudity” absent certain enumerated

circumstances. R.C. 2907.323(A)(3). Whoever commits the foregoing offense is guilty of the

illegal use of a minor in a nudity-oriented material or performance. R.C. 2907.323(B).

       {¶28} The jury found Rice guilty of six counts based on the evidence the State removed

from his family’s two computers. Moore, a computer forensic specialist for BCI, analyzed the

desktop and laptop computers. Moore testified that she found child pornography on both hard
                                                13


drives in the form of pictures, a movie, text, and search terms. Among other items, Moore found

the following references: “Incest Taboo,” “How to Teach the Unexperienced About Sex,” “Teen

Gangbang,” “My Daughter and I Have Become Lovers Part One – Incest Taboo Open Sex

Forum,” “A clueless Mother,” “Daddy and Me,” “Daddy’s Little Slut,” and “First Time w/

Daughter.” Moore found 80 references to incest on the laptop hard drive. The desktop computer

contained similar results, including 1,292 graphic images Moore believed to be child

pornography. It also contained a brief movie that featured a minor engaged in sexual activity.

       {¶29} Although the movie and some of the images Moore discovered had creation or

access dates, most of the evidence she found did not. Moore explained that she located most of

the evidence in the unallocated space on the two hard drives. Unallocated space houses unsaved

or deleted data on a computer’s hard drive until other data overwrites it. Moore testified that the

average computer user will not be able to access data housed in unallocated space, but that the

information can be excised with the proper software and training. She further stated that deleted

files in the unallocated space do not have dates associated with them, such as the dates the files

were created, accessed, or modified, because deleted files are no longer saved and their file paths

no longer exist.

       {¶30} Rice does not challenge any of the elements of his convictions. Instead, he argues

that all of the counts stemming from the computer evidence must fail on sufficiency grounds

because the State did not prove that he downloaded, accessed, viewed, and/or deleted any of the

pornographic material on the computers “at any particular time, place[,] or date.” M.R. testified

that Rice forced her to view pornographic images on the computers, as well as the movie

featuring child pornography, at various times throughout the period he sexually abused her. As

noted, however, most of the images and data Moore excised from the computers did not have any
                                              14


dates associated with them because Moore was only able to retrieve them from unallocated

space. Rice argues that his guilty verdicts cannot stand in the absence of such evidence because

someone else might have placed the pornographic materials on the computer.

       {¶31} None of Rice’s charges required the State to prove that he was the one responsible

for creating or saving the pornographic material. Rice’s charges only required proof that he

possessed the material at some point and presented it to his daughter. See State v. Knode, 9th

Dist. No. 03CA014, 2003-Ohio-7186, ¶ 19-27 (upholding pandering conviction when State could

not prove date upon which temporary internet file image was downloaded, but proved

defendant’s possession of the image). Possession is “a voluntary act if the possessor knowingly

procured or received the thing possessed, or was aware of the possessor’s control of the thing

possessed for a sufficient time to have ended possession.” State v. Butler, 9th Dist. No. 24446,

2009-Ohio-1866, ¶ 18, quoting R.C. 2901.21(D)(1).        M.R.’s testimony, if believed, would

establish that Rice possessed the pornographic materials he forced her to view during the times

that he sexually abused her.     Although the evidence of possession and presentment was

circumstantial, “[c]ircumstantial evidence and direct evidence inherently possess the same

probative value.” State v. Reglus, 9th Dist. No. 25914, 2012-Ohio-1174, ¶ 13, quoting Jenks, 61

Ohio St.3d at paragraph one of the syllabus. Rice has not set forth any law or analysis to show

that the State was required to prove anything more. See App.R. 16(A)(7). His argument that his

convictions are based on insufficient evidence lacks merit. Rice’s fifth assignment of error is

overruled.
                                                15


                                Assignment of Error Number Six

       THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶32} In his sixth assignment of error, Rice argues that his convictions are against the

manifest weight of the evidence. We disagree.

       {¶33} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.

Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.

       {¶34} Rice argues that his convictions are against the manifest weight of the evidence

because the evidence showed that he was always a loving father and that his daughter fabricated

the allegations against him. Rice points to the evidence in the record that M.R. was aware of the

financial difficulties that her family was experiencing at the time she accused him, as well as her

parents’ intent to divorce. Essentially, Rice argues that the jury lost its way by believing M.R.’s

version of the events instead of his own.
                                                 16


       {¶35} A jury is free to believe or reject the testimony of each witness, and issues of

credibility are primarily reserved for the trier of fact. State v. Frazier, 9th Dist. No. 25654,

2012-Ohio-790, ¶ 56. M.R. testified that Rice sexually abused her on numerous occasions and

that, on the night before she finally told her mother about the abuse, Rice licked her right breast

and performed oral sex on her. Samples taken during M.R.’s rape exam the following day

confirmed that the foreign DNA found on her right breast was consistent with Rice’s DNA

profile. The State also produced evidence of a large amount of pornographic material taken from

the family’s computers. The material contained numerous references to incest, particularly

incest between fathers and daughters. M.R.’s mother also testified that Rice confessed to having

sexually assaulted M.R. when she confronted him the morning M.R. told her about the abuse.

Based on our review of the record, we cannot conclude that this is the exceptional case where the

jury lost its way in choosing to believe that Rice committed the crimes here. See Martin at 175.

Rice’s sixth assignment of error is overruled.

                               Assignment of Error Number Seven

       THE CUMMULATIVE (sic) EFFECT OF THE TRIAL COURT’S ERRORS
       DENIED APPELLANT A FAIR TRIAL[.]

       {¶36} In his seventh assignment of error, Rice argues that cumulative errors in the

proceeding deprived him of his constitutional right to a fair trial. We disagree.

       {¶37} Cumulative error exists only where the errors during trial actually “deprive[d] a

defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987),

paragraph two of the syllabus. “‘[T]here can be no such thing as an error-free, perfect trial, and

* * * the Constitution does not guarantee such a trial.’” State v. Hill, 75 Ohio St.3d 195, 212

(1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). Moreover, “errors

cannot become prejudicial by sheer weight of numbers.” Hill, 75 Ohio St.3d at 212.
                                                17


       {¶38} After reviewing the record, we cannot say that Rice’s trial was plagued with

numerous errors or that his constitutional right to a fair trial was violated. Therefore, Rice’s

seventh assignment of error is overruled.

                                                III

       {¶39} Rice’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT
                                          18


MOORE, J.
CONCURS.

BELFANCE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JAMES K. REED, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
