[Cite as State v. Chisholm, 2012-Ohio-3932.]


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

STATE OF OHIO                                          C.A. No.         26007

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TREPEL D. CHISHOLM                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 11 02 0408

                                 DECISION AND JOURNAL ENTRY

Dated: August 29, 2012



        MOORE, Judge.

        {¶1}     Defendant, Trepel D. Chisholm, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms in part, reverses in part, and remands this matter to

the trial court for further proceedings consistent with this opinion.

                                                  I.

        {¶2}     On February 24, 2011, the Summit County Grand Jury indicted Mr. Chisholm on

one count of sexual battery in violation of R.C. 2907.03(A)(3), one count of rape in violation of

R.C. 2907.02(A)(1)(b), and one count of gross sexual imposition in violation of R.C.

2907.05(A)(4). At his arraignment, Mr. Chisholm pled not guilty, and the case proceeded to a

jury trial. The jury found Mr. Chisholm not guilty of sexual battery, not guilty of rape, guilty of

the lesser included offense of attempted rape, and guilty of gross sexual imposition. The trial

court sentenced him to six years of incarceration on the attempted rape conviction and to five

years of incarceration on the gross sexual imposition conviction, to run concurrently. Mr.
                                                 2


Chisholm timely filed a notice of appeal and raises four assignments of error for our review. We

have re-ordered the assignments of error to facilitate our discussion.

                                                 II.

                                ASSIGNMENT OF ERROR IV

       [MR. CHISHOLM]’S ATTEMPTED RAPE CONVICTION IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶3}    In his fourth assignment of error, Mr. Chisholm argues that his attempted rape

conviction is against the manifest weight of the evidence. We disagree.

       {¶4}    When a defendant asserts that his 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). In making this determination, this

Court is mindful that “[e]valuating evidence and assessing credibility are primarily for the trier

of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris Co. v.

Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio

App.3d 153, 154 (12th Dist.1987).

       {¶5}    Here, Mr. Chisholm was convicted of attempted rape in violation of R.C.

2907.02(A)(1)(b) and R.C. 2923.02(A). R.C. 2907.02(A)(1)(b) provides that, “[n]o person shall

engage in sexual conduct with another who is not the spouse of the offender or who is the spouse

of the offender but is living separate and apart from the offender, when * * * [t]he other person

is less than thirteen years of age, whether or not the offender knows the age of the other person.”

“Sexual conduct” is defined as “vaginal intercourse between a male and female; anal intercourse,
                                                3


fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or other object

into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete

vaginal or anal intercourse.” R.C. 2907.01(A). R.C. 2923.02(A) governs attempted offenses and

provides that “[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient

culpability for the commission of an offense, shall engage in conduct that, if successful, would

constitute or result in the offense.” On appeal, Mr. Chisholm concedes that his conviction for

gross sexual imposition was supported by the weight of the evidence. Therefore, we will limit

our discussion to a review of the weight of the evidence supporting the attempted rape

conviction.

       {¶6}    As part of its case-in-chief, the State presented the testimony of the victim

(“C.J.”), the victim’s mother (“Mother”), employees of the Ohio Bureau of Criminal

Identification (“Bureau”), medical personnel, and police officers. C.J. testified that, in February

of 2010, when she was twelve years old, she and her brother moved into their mother’s

apartment, where she resided with Mr. Chisholm. C.J. had a bedroom adjacent to a bedroom

shared by her mother and Mr. Chisholm, and her brother slept on the couch in the living room.

On the night at issue, C.J. went to bed around 11:30 p.m. During the night, she awoke to Mr.

Chisholm touching her all over her body including her breasts. She asked him what he was

doing, and he told her to go back to sleep, and he left her bedroom. Later that night, he returned

to her bedroom and started telling her that she was “sexy” and had a “nice body.” She pretended

to be asleep, hoping that he would leave. He then pulled down her pants and began touching her

vagina with his mouth and tongue. After he left, C.J. forced herself back to sleep. She later

awoke feeling pain coming from her vaginal area. When she awoke, Mr. Chisholm was on top
                                                  4


of her, and his penis was inside her vaginal lips, pressing against her vaginal opening, and she

believed he was “trying” to rape her. She got out of bed and asked what he was doing, and he

said he was hanging the curtains in her bedroom and asked if she was okay. She asked why her

pants were down, and he said they were down when he came in. He then left her bedroom.

       {¶7}    C.J. and her brother woke their mother and told her that Mr. Chisholm had

attempted to rape C.J. Mr. Chisholm denied the allegation and contended that he was in C.J.’s

room to hang the curtains and did not know what she was talking about. C.J.’s mother called the

police, and then she, C.J., and C.J.’s brother left the apartment and went to a neighbor’s home.

When police officers arrived and asked her what happened, C.J. said that Mr. Chisholm had tried

to rape her, but she did not give them specific details. C.J. testified that the officers did not ask

for details of the incident, and she did not feel comfortable talking to them. After speaking to the

officers, C.J. went to Akron Children’s Hospital.

       {¶8}    On cross-examination, C.J. confirmed that she had not previously reported to law

enforcement that Mr. Chisholm entered her bedroom on three separate occasions that night or

that he had touched her vagina with his mouth and tongue. However, C.J. clarified on redirect

examination that she had told these details to her aunt, with whom she had been residing for the

past seven months. She also had informed the prosecutor of these details approximately one

week prior to trial. In addition, C.J. testified that at the time of the incident she did not know

what “oral sex” or “vaginal penetration” meant, and she was uncomfortable providing the

officers specific details of what had occurred.

       {¶9}    Mother testified that at the time of the incident she was involved in a romantic

relationship with Mr. Chisholm, and they had been living together for approximately six months.

C.J. and C.J.’s brother had been living with their grandmother, but they had moved in with
                                                5


Mother about one week prior to the incident. C.J. slept in the extra bedroom. On February 25,

2010, Mr. Chisholm left the apartment around 7 or 8 p.m. Mother got out of bed around

midnight to check on the children. At that time, C.J. was in her room, her brother was on the

couch, and Mr. Chisholm had returned home and was in the kitchen. Mr. Chisholm told Mother

that he would be in bed shortly. Mr. Chisholm came to bed about fifteen or twenty minutes

thereafter. Shortly after he came to bed, C.J. and her brother knocked on Mother’s bedroom

door, and she went to speak with them in the living room, where C.J. appeared upset. Mr.

Chisholm also came into the living room. C.J. told her mother that Mr. Chisholm had tried to

rape her, and he maintained that he was in C.J.’s room to hang a curtain that had fallen earlier

that day. Mother called 9-1-1, then took the children to her neighbor’s apartment where she

again called 9-1-1 and also called her cousin. After officers and Mother’s cousin arrived, her

cousin took Mother and the children to the hospital.

       {¶10} Officers Shawn Chetto and Matthew Beech of the City of Akron Police

Department testified that they were dispatched to the scene on February 25, 2010 in response to a

9-1-1 call for assistance. When they arrived, they saw Mr. Chisholm standing outside the

apartment looking around. When Mr. Chisholm saw the officers approaching, he returned inside

his apartment. C.J. and her mother then exited an adjacent apartment, and re-entered Mother’s

apartment with the officers. Officer Chetto took Mr. Chisholm into a separate room to talk to

him. Mr. Chisholm claimed that he did not understand what was going on. Officer Beech spoke

with C.J. and her mother, and C.J. informed him that she had awakened to find her pants

removed and Mr. Chisholm on top of her, and she believed he had tried to rape her but was

unsure if he had, but she felt “different down there.” The officers then escorted Mr. Chisholm to

the cruiser and provided him with his Miranda warnings. The officers asked Mr. Chisholm why
                                                6


he went into C.J.’s bedroom, and he said he went in to hang a curtain rod. Officer Beech saw the

curtains on a rod in C.J.’s bedroom leaned against a chair. No brackets were installed in the wall

onto which the rod would connect. Further, no tools to install brackets were apparent in the

room. The officer asked Mr. Chisholm how he was going to hang the curtains when there were

no brackets on which to hang them, and Mr. Chisholm provided no explanation, but instead kept

repeating that he was going to hang the curtains. Officer Beech returned inside the apartment,

and learned that C.J. was going to go to the hospital. While he was speaking to C.J., she pulled

her underwear out from under her pajama pants. The underpants had been torn and were easily

removed. C.J. appeared surprised to discover that her underpants were ripped. Officer Chetto

contacted his sergeant, who did not believe they had cause to arrest Mr. Chisholm at that point.

The officers instead transported Mr. Chisholm to a friend’s house and then met C.J. and her

mother at the hospital.

       {¶11} Detectives David Hayes and Michael Fox, also of the Akron Police Department,

testified that they arrived at the apartment on February 25, 2010 to take pictures and collect

evidence. When they arrived, Mr. Chisholm was in the responding patrol officers’ cruiser.

Detective Hayes obtained buccal swabs from Mr. Chisholm with his consent in order to collect

his DNA for analysis.

       {¶12} Ms. Donna Abbott testified that she is a registered nurse at Akron Children’s

Hospital’s “CARE Center,” which evaluates children who have reportedly been the victims of

abuse. On the date at issue, C.J. arrived in the emergency room and reported to hospital staff that

Mr. Chisholm had attempted to rape her. Ms. Abbott instructed emergency room staff to conduct

a sexual assault kit on C.J. and scheduled an appointment for C.J. to return to the CARE Center

that afternoon, at which time Ms. Abbott conducted a physical exam on her. That physical exam
                                                7


did not reveal any injuries to C.J., but Ms. Abbot testified that she typically does not observe

physical indications of sexual abuse evident in children who are C.J.’s age.

       {¶13} Detective Crystal Bowen-Carter of the Akron Police Department’s Juvenile

Victim’s Unit testified that she became involved in this case on March 1, 2010. Detective

Bowen-Carter interviewed Mother and Mr. Chisholm. Mr. Chisholm denied C.J.’s allegations

and said he was in her room only to hang a curtain. The detective asked if he had been drinking

that night, and he confirmed that he had. The detective also asked if perhaps he went into the

wrong bedroom and thought that the C.J. was actually her mother, and he said that he did not,

and he was aware that he was in C.J.’s room because he went in that particular room to hang the

curtains.   After Detective Bowen-Carter learned that Mr. Chisholm had provided a buccal

sample, she scheduled the sexual assault kit and the buccal sample to be transported to the

Bureau of Criminal Investigation for laboratory testing.

       {¶14} Brittani Farinacci, a forensic biologist at the Bureau, testified that she received the

sexual assault kit and a package reportedly containing C.J.’s underwear. Farinacci identified

semen and amylase present on C.J.’s underwear and amylase present in skin stain samples taken

from her inner thighs. Ms. Farinacci testified that amylase is typically present in bodily fluids,

primarily saliva.

       {¶15} Stacy Violi, a forensic scientist also at the Bureau, tested the DNA found in the

swabs taken from the samples of C.J.’s underwear, identifying two DNA profiles, one consistent

with C.J. and the other consistent with Mr. Chisholm. From the samples taken from C.J.’s inner

thighs, Ms. Violi also identified DNA profiles consistent with C.J. and Mr. Chisholm.

       {¶16} Mr. Chisholm testified on his own behalf. Mr. Chisholm stated that, on the night

of the incident, he was at a friend’s home playing video games and drinking for several hours.
                                                 8


When Mr. Chisholm arrived home, he was intoxicated. He prepared for bed, and he got in bed

with an individual whom he believed was C.J.’s mother. He removed her pants and began

caressing her buttocks while fondling his penis. The individual then rolled over and said “Hey,

who is this? What the hell?” The voice did not sound like C.J.’s mother’s, and Chisholm got on

top of her only to realize that he was accidentally in C.J.’s bed. According to Mr. Chisholm, he

immediately jumped out of bed and attempted to hang the curtains, pretending as though he had

entered the room for that purpose.

       {¶17} In his merit brief, Mr. Chisholm argues that the attempted rape conviction was

against the manifest weight of the evidence because Mr. Chisholm abandoned his intent to have

sex with the occupant of the bed upon learning it was C.J., and his testimony established that he

did not attempt penetration. However, as set forth above, C.J. testified that, on the night at issue,

Mr. Chisholm entered her bedroom three times. On the third occasion, she awoke to pain in her

vaginal area, Mr. Chisholm was on top of her, and his penis was pressed against her vagina.

From this, the jury could infer that Mr. Chisholm was aware of C.J.’s identity when he entered

the room and was attempting penetration when C.J. awoke. Therefore, although the witnesses’

testimony presented alternate versions of events, “the jury is free to believe all, part, or none of

the testimony of each witness.” Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184,

¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993). This is because the jury “is

best able to view witnesses and observe their demeanor, gestures and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.” State v. Cook, 9th

Dist. No. 21185, 2003-Ohio-727, ¶ 30, quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659

(8th Dist.1993). We cannot say the jury’s resolution of the testimonial inconsistencies was

unreasonable. See State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 18 (“A conviction is
                                                 9


not against the manifest weight because the [trier of fact] chose to credit the State’s version of

events.”). Further, the jury “has the right to place considerable weight on the testimony of the

victim.” State v. Felder, 9th Dist. No. 91CA005230, 1992 WL 181016, *1 (July 29, 1992).

       {¶18} After reviewing the entire record, weighing the inferences, and examining the

credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest

miscarriage of justice in finding Mr. Chisholm guilty of attempted rape. Accordingly, Mr.

Chisholm’s fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY FAILING TO MERGE THE ATTEMPTED
       RAPE AND GROSS SEXUAL IMPOSITION CONVICTIONS, IN VIOLATION
       OF THE FIFTH AMENDMENT PROTECTION AGAINST DOUBLE
       JEOPARDY, AS THE CRIMES ARE ALLIED OFFENSES OF SIMILAR
       IMPORT.

       {¶19} In his first assignment of error, Mr. Chisholm argues that it was plain error for the

trial court to fail to merge his convictions for attempted rape and gross sexual imposition, as

these offenses are allied offenses of similar import.

       {¶20} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, ¶ 44, the Ohio

Supreme Court held that, in determining whether two offenses are allied offenses of similar

import, “the conduct of the accused must be considered.” The court must first determine

“whether it is possible to commit one offense and commit the other with the same conduct,” and,

if so, then “the court must determine whether the offenses were committed by the same conduct,

i.e. ‘a single act, committed with a single state of mind.’” (Emphasis sic.) Id. at ¶ 48, 49,

quoting State v. Brown, 119 Ohio St. 447, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring). If

the same conduct constituted both offenses, then they must be merged. Johnson at ¶ 50. Failure

to merge allied offenses of similar import constitutes plain error, and prejudice exists even where
                                               10


a defendant's sentences are to run concurrently because “a defendant is prejudiced by having

more convictions than are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010–

Ohio–1, ¶ 31.

       {¶21} A review of the transcript from the sentencing hearing reveals only one reference

to merger of the sentences, wherein the prosecutor noted that “I understand that the attempted

rape and the GSI will run concurrently or would merge at sentencing.” The court did not

explicitly address the issue of merger. When it pronounced the concurrent sentences of six years

of incarceration on the attempted rape conviction and five years of incarceration on the gross

sexual imposition conviction, Mr. Chisholm did not object to the court’s failure to merge the

offenses. Although Mr. Chisholm is not precluded from making this argument on appeal, no

discussion proceeded on the trial court record as to “whether the offenses can be and were

committed by the same conduct.” See State v. Brautigam, 9th Dist. No. 26134, 2012-Ohio-2599,

¶ 8, citing State v. Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, paragraph one of the

syllabus, ¶ 31 (holding that a defendant may make an allied offense argument for the first time

on appeal), and Johnson at ¶ 49.

       {¶22} Consistent with this Court’s precedent, we decline to apply the Johnson analysis

in the first instance. Brautigam at ¶ 9, citing State v. Ziemba, 9th Dist. No. 25886, 2012–Ohio–

1717, ¶ 23. Therefore, this matter must be remanded to the trial court to determine whether the

attempted rape and gross sexual imposition offenses were allied offenses of similar import.

Moreover, in the event that the offenses were allied, “the State also must have the opportunity to

elect the offense[ ] upon which it wishes to proceed to sentencing.”           Ziemba at ¶ 23.

Accordingly, to the extent that Mr. Chisholm challenges the trial court’s failure to determine
                                                11


whether attempted rape and gross sexual imposition are allied offenses of similar import, his

first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       ALLOWED THE STATE TO PRESENT EVIDENCE OF POSSIBLE ORAL
       STIMULATION WHEN SAID EVIDENCE HAD NOT BEEN PRESENTED TO
       THE GRAND JURY.

       {¶23} In his second assignment of error, Mr. Chisholm argues that the trial court erred

by allowing the State to present evidence of oral stimulation which had not been presented to the

grand jury. We disagree.

       {¶24} The grand jury indicted Mr. Chisholm on three counts: rape in violation of R.C.

2907.02(A)(1)(b), sexual battery in violation of R.C. 2907.03(A)(3), and gross sexual imposition

in violation of R.C. 2907.05(A)(4).       In regard to the rape and sexual battery counts, the

indictment charged that Mr. Chisholm engaged in “sexual conduct” with C.J. on February 25,

2010. As set forth above, the term “sexual conduct” includes, but is not limited to, cunnilingus

and vaginal penetration. R.C. 2907.01(A). Prior to trial, Mr. Chisholm moved to exclude

anticipated testimony of C.J. as to his alleged performance of cunnilingus on her on the night at

issue, as evidence of this act was not provided to the grand jury. The trial court overruled the

motion, and C.J. testified as to the cunnilingus. On appeal, Mr. Chisholm argues that the trial

court’s allowance of this testimony amounted to reversible error.

       {¶25} The Ohio Constitution, Article I, Section 10 provides that, “no person shall be

held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment

of a grand jury * * *.” This provision guarantees the accused that the essential facts constituting

the offense for which he is tried will be found in the indictment of the grand jury. Harris v.

State, 125 Ohio St. 257, 264 (1932).
                                                12


       {¶26} Here, Mr. Chisholm maintains that the grand jury was not presented with

evidence of cunnilingus, and C.J.’s allegations of cunnilingus would constitute a separate count

of rape distinct from the count of rape predicated upon alleged vaginal penetration. Therefore,

Mr. Chisholm maintains that he was tried on an additional rape charge which was essentially

different from that which was presented to the grand jury.

       {¶27} Although C.J.’s testimony indicates that she had not disclosed details of the night

at issue, including the alleged cunnilingus, to the prosecutor prior to the State’s presentment of

the case to the grand jury, the indictment filed by the grand jury charges Mr. Chisholm with

engaging in “sexual conduct” with C.J. Cunnilingus is included in the definition of “sexual

conduct.” R.C. 2907.01(A). As a result, Mr. Chisholm was presented with the essential facts

constituting the offense.

       {¶28} While we cannot discern from the indictment the specific theory of the case the

State had presented to the grand jury, (see R.C. 2907.01(A)), Mr. Chisholm at no point requested

a bill of particulars to delineate the particular type of sexual conduct in which he was alleged to

have engaged. Pursuant to Crim.R. 7(E),

       When the defendant makes a written request within twenty-one days after
       arraignment but not later than seven days before trial, or upon court order, the
       prosecuting attorney shall furnish the defendant with a bill of particulars setting
       up specifically the nature of the offense charge and of the conduct of the
       defendant alleged to constitute the offense. A bill of particulars may be amended
       at any time subject to such conditions as justice requires.

A bill of particulars serves “to elucidate or particularize the conduct of the accused alleged to

constitute the charged offense.” State v. Sellards, 17 Ohio St.3d 169, 171. Because Mr.

Chisholm did not request a bill of particulars, the record does not indicate the specific conduct

that the State alleged constituted the “sexual conduct.” Moreover, even had Mr. Chisholm

requested a bill of particulars to identify the specific nature of the sexual conduct in which he
                                                 13


was alleged to have engaged, the State would not have been precluded at trial from requesting an

amendment to the bill of particulars to coincide with a theory of the case which had not been

presented to the grand jury, so long as the nature and identity of the offense remained unchanged

from that contained in the indictment. See e.g. State v. Brumbeck, 109 Ohio App.3d 65, 81-82

(9th Dist.1996) (allowing state to amend bill of particulars at trial to include additional theory of

conduct constituting tampering not abuse of discretion where the new theory “was consistent

with the crime as charged” and defendant was “well prepared to defend against the allegations.”)

       {¶29} Further, although he argues that “[t]he only way to guarantee that the jury did not

convict Mr. Chisholm on this new and improper information is to request that the jury identify

whether they convicted Mr. Chisholm based on penetration or cunnilingus,” we find it significant

that Mr. Chisholm was not convicted of rape. “The placing of one's mouth on the female's

genitals completes the act of cunnilingus” for purposes of the definition of sexual conduct.

(Emphasis added.) State v. Dillon, 5th Dist. No. 2008-CA-37, 2009-Ohio-3134, ¶ 95. C.J.

testified that Mr. Chisholm placed his mouth and tongue on her vagina, and this action would

therefore constitute a completed act of sexual conduct. Therefore, we cannot conclude that Mr.

Chisholm was prejudiced by this testimony, as we cannot discern how the outcome of the trial,

which resulted in convictions for attempted rape and gross sexual imposition, would have been

different had the trial court excluded this portion of C.J.’s testimony.          Accordingly, Mr.

Chisholm’s second assignment of error is overruled.


                                ASSIGNMENT OF ERROR III

       THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY GIVING AN
       IMPROPER INSTRUCTION TO THE JURY ON THE LESSER INCLUDED
       OFFENSE OF ATTEMPTED RAPE.
                                                 14


       {¶30} In his third assignment of error, Mr. Chisholm argues that the trial court erred by

providing an instruction to the jury on the lesser included offense of attempted rape which varied

in wording from that of the statute and by failing to instruct the jury on the affirmative defense of

abandonment. We disagree, and we will examine these issues separately.

Lesser Included Offense

       {¶31} Mr. Chisholm argues that the wording of the jury instruction defining attempted

rape was improper because it distinguished attempted rape from rape based only upon whether

penetration was completed. A trial court must charge a jury with instructions that are a correct

and complete statement of the law. Marshall v. Gibson, 19 Ohio St.3d 10, 12, (1985). However,

the precise language of a jury instruction is within the discretion of the trial court. Callahan v.

Akron Gen. Med. Ctr., 9th Dist. No. 22387, 2005-Ohio-5103, ¶ 6; Youssef v. Parr, Inc., 69 Ohio

App.3d 679, 690 (8th Dist.1990). In reviewing jury instructions on appeal, this court has

previously stated:

       [A]n appellate court reviews the instructions as a whole. If, taken in their
       entirety, the instructions fairly and correctly state the law applicable to the
       evidence presented at trial, reversible error will not be found merely on the
       possibility that the jury may have been misled. Moreover, misstatements and
       ambiguity in a portion of the instructions will not constitute reversible error unless
       the instructions are so misleading that they prejudicially affect a substantial right
       of the complaining party.

(Citations omitted.) Wozniak v. Wozniak, 90 Ohio App.3d 400, 410 (9th Dist.1993).

       {¶32} A trial court has no obligation to give jury instructions in the language proposed

by the parties, even if the proposed instruction is an accurate statement of the law. Henderson v.

Spring Run Allotment, 99 Ohio App.3d 633, 638 (9th Dist.1994). “Instead, the court has the

discretion to use its own language to communicate the same legal principles.” Id. Thus, absent

an abuse of discretion, this Court will not disturb a trial court’s judgment on the basis of the
                                                  15


wording of jury instructions. See id. The phrase “abuse of discretion” connotes more than an

error of judgment; rather, it implies that the trial court's attitude was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the

abuse-of-discretion standard, this court may not substitute its judgment for that of the trial court.

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶33} Here, the trial court provided the following jury instruction regarding attempt:

       Attempt is defined as purposely or knowingly, and when purpose or knowledge is
       sufficient to culpability for the commission of an offense, engaging in conduct
       that, if successful, would result or constitute in the offense.

       The offense of attempted rape is distinguished from rape by the absence or failure
       to prove penetration.

       {¶34} This instruction tracks the language of the statute defining an attempted offense,

except in regard to the last sentence. Mr. Chisholm argues that this sentence was improper

because it caused the jury to focus on only one element of the offense of attempted rape. The

court’s statement is not incorrect. It does not say that the offense of rape is only distinguished

from attempted rape by the absence of penetration. Moreover, as quoted above, directly prior to

this sentence, the trial court provided the statutory definition of an attempted offense. Finally,

the parties do not dispute that the trial court properly instructed the jury as to the offense of rape.

After reviewing the trial court’s instructions in their entirety, we cannot say that the trial court’s

instructions which contain one sentence isolating the element of penetration was so misleading

that it prejudicially affected a substantial right of Mr. Chisholm. See Wozniak at 410.

       {¶35} Accordingly, insofar as Mr. Chisholm argues that the trial court erred in its

instructions to the jury regarding attempted rape, we overrule his third assignment of error.
                                                 16


Abandonment

       {¶36} In regard to Mr. Chisholm’s argument that the trial court erred by failing to

instruct the jury as to the affirmative defense of abandonment, the record does not indicate that

Mr. Chisholm requested the trial court to provide such an instruction, nor did he object to the

trial court’s failure to do so. This Court has held,

       To preserve for appeal the issue of error in the instruction to the jury, an appellant
       must cite an objection to the instruction on the trial record. In this case, no such
       objection appears anywhere in the record. A fundamental rule of appellate review
       is that a reviewing court will not consider as error any issue that a party was
       aware of but failed to bring to the trial court's attention.

(Internal citations omitted.) State v. Powers, 106 Ohio App. 3d 696, 699 (9th Dist.1995).

Further, Mr. Chisholm has provided no reason why this Court should address this issue for the

first time on appeal. See State v. Gaiter, 9th Dist. No. 24758, 2010-Ohio-2205, ¶ 21, citing In re

L.A.B., 9th Dist. No. 23309, 2007-Ohio-1479, ¶ 19 (declining to address plain error because the

appellant had neither argued it nor explained why we should examine the issue for the first time

on appeal).

       {¶37} Therefore, insofar as Mr. Chisholm argued that the trial court erred in failing to

provide a jury instruction on the affirmative defense of abandonment, his third assignment of

error is overruled.

                                                 III.

       {¶38} Mr. Chisholm’s second, third, and fourth assignments of error are overruled. Mr.

Chisholm’s first assignment of error is sustained. The judgment of the Summit County Common

Pleas Court is affirmed in part, reversed in part, and this matter is remanded to the trial court for

further consideration on the issue of merger.
                                                17


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       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 equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

GREGORY A. PRICE, Attorney at Law, for Appellant.

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