State v. Brown

[Cite as State v. Brown, 2021-Ohio-1674.]

                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY

State of Ohio                                         Court of Appeals No. L-20-1052

        Appellee                                      Trial Court No. CR0201901504


Christopher Brown                                     DECISION AND JUDGMENT

        Appellant                                     Decided: May 14, 2021


        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Autumn D. Adams, for appellant.


        ZMUDA, P.J.

                                            I. Introduction

        {¶ 1} Appellant, Christopher Brown, appeals the judgment of the Lucas County

Court of Common Pleas, imposing sentences of ten years to life on each of two counts of

rape and ten years on each of two further counts of rape, all to be served consecutively,

for a total prison sentence of 40 years to life, after a jury found him guilty of the

aforementioned offenses. Finding no error in the proceedings below, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} On March 21, 2019, appellant was indicted on four counts of rape in

violation of R.C. 2907.02(A)(1)(b) and (B), felonies of the first degree, two counts of

rape in violation of R.C. 2907.02(A)(2) and (B), felonies of the first degree, and one

count of corrupting another with drugs in violation of R.C. 2925.02(A)(4)(a), a felony of

the second degree. According to the indictment, the incidents of rape giving rise to the

four charges under R.C. 2907.02(A)(1)(b) occurred during a period of time spanning

October 1, 2013 through January 16, 2016, during which A.K., the victim of the rapes

and appellant’s stepdaughter, was less than 13 years of age. The remaining rape counts

and the corrupting count were premised upon conduct that allegedly took place during a

period of time spanning January 17, 2016, through December 31, 2016.

       {¶ 3} One week after the indictment was filed, appellant appeared before the trial

court for arraignment, at which time he entered a plea of not guilty to all charges

contained in the indictment. Thereafter, the matter proceeded through discovery and

motion practice, culminating in a three-day jury trial that commenced on February 10,

2020. At trial, the state and appellant each called three witnesses, and appellant elected

to take the stand in his own defense.

       {¶ 4} As its first witness, the state called A.K. A.K. testified that she was born in

January 2003, making her 17 years old at the time of trial. When she was 12 years old,

A.K. moved into her grandfather’s house, where she lived with appellant.

         {¶ 5} When asked whether anything uncomfortable ever happened to her while

living with appellant, A.K. responded in the affirmative and proceeded to describe

several incidents of sexual abuse. Specifically, A.K. testified that appellant would take

her into a recreation room in the home and engage in sexual acts with her. A.K. went on

to state: “And he took - he never - at this point whenever he first started it, he didn’t

insert like his penis in me, but he took this nose inhaler thing and would rub it against my

vagina.” A.K. went on to indicate that appellant penetrated the folds of her vagina with

the inhaler, and that this occurred “two or three times” at her grandfather’s house. A.K.

testified that she felt “stuck” and that she could not refuse appellant, or else he would get


         {¶ 6} As A.K. continued her testimony, she described a barn that she called

“Sam’s barn1,” which housed animals. A.K. testified that she helped appellant care for

the animals inside Sam’s barn. On one occasion while she was assisting with the

animals, appellant took A.K. into a nearby camper and engaged in sexual acts with her.

Specifically, A.K. testified that, on one occasion, appellant pulled down her pants and

licked her vagina. Further, A.K. stated that appellant “would take out his penis and * * *

he would rub it up and down my private part.” A.K. testified that appellant’s penis

penetrated the folds of her vagina. When asked if these sexual acts happened on more

than one occasion, A.K. responded that this occurred “multiple times.”

 Subsequent testimony revealed that this barn was located near a business called Sam’s

       {¶ 7} Turning to a subsequent incident that occurred after she moved from her

grandfather’s house, A.K. recounted that appellant asked her if she wanted to “play,”

which she understood to be a reference to sexual acts from her prior interactions

involving appellant. A.K. agreed, and took her pants off. Appellant proceeded to insert a

vibrator into A.K.’s vagina. According to A.K., appellant then pulled down his pants and

engaged in intercourse with her. A.K. went on to state that appellant had intercourse with

her on two occasions, and further stated that he would masturbate, including rubbing his

penis in and around the folds of her vagina, “every night or every day that he got the

chance that [A.K.] and [appellant] were alone.”

       {¶ 8} As its second witness, the state called Dr. Randall Schlievert. Upon

certification as an expert in the field of child abuse and neglect, Schlievert indicated that

half of all child sexual abuse cases involve the kind of delayed disclosure of such abuse

that occurred in this case. He then went on to describe several common reasons for the

delay in disclosing sexual abuse, including manipulation on the part of the abuser, and

explained that child victims are sometimes dependent upon their abusers and thus remain

in contact with such persons after the abuse. On cross-examination, Schlievert

acknowledged that he was not asked by the state to examine A.K., and thus he was

unable to speak to any of the particulars of this case.

       {¶ 9} For its third and final witness, the state called A.K.’s mother, S.B. S.B.

stated that she and her children (including A.K.) moved from Tennessee to Toledo in

October 2013, when A.K. was ten years old. Initially, S.B. and her children moved in

with S.B.’s sister. However, one month after she moved to Toledo, S.B. began to live

with her father on Parkwood Avenue in Toledo. Shortly thereafter, appellant also moved

in with S.B.’s father.

       {¶ 10} According to S.B., she worked at Sam’s Deli in Toledo for a short period

while she was on welfare. S.B. identified the barn and camper that were referenced by

A.K. during her testimony, and noted that the barn and camper were located down the

street from Sam’s Deli.

       {¶ 11} As S.B. continued her testimony, she acknowledged that she struggled with

drug abuse issues at the end of 2013 and the beginning of 2014. She testified that she and

appellant abused Percocet together. Eventually, in May or June 2014, S.B., appellant,

and S.B.’s children moved out of S.B.’s father’s home and into an apartment on Chase

Street in Toledo. Thereafter, S.B.’s drug abuse worsened, as did appellant’s.

       {¶ 12} When asked if she ever suspected that appellant was sexually abusing A.K.,

S.B. stated: “There was one incident where he was always [locking] the door with her in

it, and every time I try to come home and open the bedroom door, [it] was always

locked.” S.B. further described in incident in which she “opened the door and it looked

like her head come flying out of the covers really fast. I could kind of tell that he was a

little nervous and I just kind of like, I didn’t know what to say.” Thereafter, A.K. began

reporting information about the sexual abuse to S.B. in a piecemeal fashion, which led

S.B. to set up a meeting with Toledo Police Department detective Diane Trevino in

December 2018. A.K. set forth her allegations of sexual abuse at this meeting, leading

Trevino to launch an investigation that culminated in the referral of the matter to the state

for eventual prosecution.

       {¶ 13} At the conclusion of S.B.’s testimony, the state rested. Appellant then

moved for an acquittal under Crim.R. 29, which was denied by the trial court. Thereafter,

the matter proceeded to appellant’s case-in-chief.

       {¶ 14} As his first witness, appellant called Detective Trevino to the stand.

Trevino testified that she met with S.B. and A.K. in December 2018, at which time she

interviewed S.B. and A.K. separately. According to Trevino, A.K. alleged that she was

sexually abused by appellant at her Chase Street address, but failed to disclose any

incidents of sexual abuse at her grandfather’s house or at the camper located near Sam’s

Deli. Trevino also interviewed appellant in January 2019. During the interview,

appellant told Trevino that A.K.’s sexual abuse claims were fabricated in retaliation for

his decision to stop paying her mobile phone bill.

       {¶ 15} On cross-examination, Trevino noted that A.K. was living at the Chase

Street address at the time of her interview. Additionally, Trevino testified that, in her

experience, it is common for child sex abuse victims to reveal facts regarding their abuse

over time, little by little. Ultimately, Trevino conceded that the testimony previously

provided by A.K. was consistent with the statements A.K. made during her interview

with Trevino in December 2018.

       {¶ 16} For his second witness, appellant called A.K.’s grandfather’s husband, J.M.

J.M. testified that A.K., her mother, and her siblings moved into his Parkwood Avenue

home in August 2013, followed three months later by appellant. The family resided in

J.M.’s home until June 2014. While they resided in J.M.’s home, appellant and S.B. slept

in the garage, which was converted into a recreation room. The children, including A.K.,

slept in another bedroom.

       {¶ 17} At some point, S.B.’s relationship with her father and J.M. deteriorated to

the point where the family was asked to leave the home. Appellant eventually moved

back into J.M.’s home after separating from S.B. in 2018. Thereafter, in early November

2018, A.K. asked to stay the night with appellant at J.M.’s residence. J.M. testified that

he denied A.K.’s request, because he thought it would be inappropriate to have her stay in

the home with three men.

       {¶ 18} After J.M. finished his testimony, appellant called A.K.’s grandfather, T.M.

T.M. corroborated J.M.’s testimony, and further stated his belief that it would not have

been possible for appellant to have sexually abused A.K. in his home, because “at any

given time there was either myself or my husband or both of us in that household at all


       {¶ 19} As his final witness, appellant took the stand. Appellant testified that he

took care of A.K. during lengthy periods of time in which S.B. was absent from the home

due to drug abuse. However, appellant stated that he moved out of the Chase Street home

and into J.M.’s home in 2018, because he “got tired of [S.B.’s] drug use and her cheating

on [him] on a regular basis.”

       {¶ 20} Appellant was asked to describe his relationship with A.K., to which he

responded that he occasionally fought with her over school-related issues. Appellant

characterized his relationship with A.K. as a “normal father, daughter relationship.”

Throughout his testimony, appellant denied that anything sexual ever took place between

him and A.K. When asked why he believed A.K. would make sexual abuse allegations

against him, appellant posited that A.K. was upset that he had filed for divorce from S.B.

and refused to continue paying her mobile phone bill.

       {¶ 21} On direct examination, appellant revealed that he had filed a complaint for

divorce from S.B., but had not yet obtained the divorce because “I missed both my court

dates since I have been in jail * * *.” This comment prompted the state to seek a sidebar

conference, at which the state voiced its concern over appellant revealing the fact that he

was incarcerated. The state argued that this comment constituted invited error, and

appellant’s defense counsel agreed. Ultimately, the trial court offered to provide the jury

with a limiting instruction, but defense counsel rejected the offer, electing instead to

“leave it alone.”

       {¶ 22} At the close of appellant’s case-in-chief, defense counsel reasserted his

Crim.R. 29 motion for acquittal, which was denied by the trial court. The trial court then

instructed the jury, the parties provided their closing arguments, and the jury began its

deliberations. During deliberations, the jury wrote a note to the trial court, asking

whether it was permissible for them to access the internet from their mobile phones for

the purpose of ascertaining the definition of the word “access,” a term that appears in the

elements of the charge of corrupting another with drugs that was contained in the

indictment. The court responded in the negative, but the jury subsequently notified the

court that one of the jurors had already researched the meaning of “access.”

       {¶ 23} Upon receiving this information and sharing it with the parties, the court

informed appellant that

       this alone would serve as a foundation for you to ask for a mistrial, which

       would, if granted, mean the Jury is discharged and your case would start

       over with a new trial. An alternative to that is to bring the Jury out, find out

       exactly what this, in their words, unauthorized research dealt with, and it

       may or may not be viewed as impactful and you may make the considered

       decision that you’re comfortable going forward with this Jury deliberating.

       That said, both you and the State would have the ability to request that I

       grant a mistrial.

The court went on to verify that appellant had an opportunity to confer with defense

counsel on this issue.

       {¶ 24} Initially, defense counsel argued in favor of a mistrial. In response, the

state requested a voir dire of the jury to ascertain the extent of the issue. The court then

proceeded to bring the jury into the courtroom for questioning. The foreperson revealed

that the jury could not agree on the definition of access pertaining to Count 7 (corrupting

another with drugs), and that they collectively decided to find a definition of that word on

the internet. The court then questioned each juror individually (in the presence of the rest

of the jury) to ensure that no further research was performed. The court admonished the

jury for violating its instructions, noting that their research “was highly improper.”

Thereafter, the court ordered the jury to return to the jury room, and resumed its

discussions with the parties.

       {¶ 25} At this point, the state offered to dismiss the charge of corrupting another

with drugs in order to “correct the taint” brought about by the jury’s independent

research. Following a private discussion with appellant as to his options in light of the

state’s offer and the jury’s explanation of what occurred during deliberations, defense

counsel informed the court:

       Against my counsel and advice, I advised my client that a mistrial is

       warranted simply because of the taintedness of more than one Juror as a

       result of the collective request for the definition as to “access.” But, my

       client, Your Honor, does not want a mistrial. So, against my counsel and

       advice, my client wants to proceed with this trial, with the continued

       deliberations with the current Jury panel of twelve. He does though make a

       request that based upon the obvious * * * violation of this Court’s

       instruction as to having electronic media, that Count 7 is tainted. We

       would ask the court to dismiss that count due to what the Jury has

       represented to the Court. But my client is not asking for a mistrial as to

       Counts 1 through 6.

       {¶ 26} The court then questioned appellant as to his wishes, and appellant

confirmed that defense counsel accurately indicated his desire not to seek a mistrial and

to have Count 7 dismissed. The state agreed to dismiss Count 7, and the trial court

allowed the jury to continue deliberating after dismissing the charge of corrupting another

with drugs.

       {¶ 27} Ultimately, the jury returned with a verdict of guilty on four counts of rape,

two of which related to incidents that occurred at T.M.’s home when A.K. was under the

age of 13, and two of which related to incidents that occurred at the Chase Street

apartment after she turned 13. The jury was unable to reach a unanimous verdict as to the

remaining rape counts, which related to the sexual conduct that allegedly occurred inside

the camper adjacent to Sam’s barn. Thereafter, the trial court continued the matter for


       {¶ 28} At sentencing, the state asked the trial court to dismiss Count 7 and the two

rape counts on which the jury could not reach a unanimous verdict. The court agreed,

and dismissed those charges without prejudice. Thereafter, the court ordered appellant to

serve ten years to life as to each of the two counts of rape in violation of R.C.

2907.02(A)(1)(b) and (B), and ten years as to each of the other two counts of rape in

violation of R.C. 2907.02(A)(2) and (B), all to be served consecutively, for a total

sentence of 40 years to life. Appellant’s timely notice of appeal followed.

                                 B. Assignments of Error

       {¶ 29} On appeal, appellant assigns the following errors for our review:

              I. The Trial Court abused its discretion in failing to order a mistrial

       as a Result of juror misconduct.

              II. Appellant was denied effective assistance of counsel in violation

       of the Sixth and Fourteenth Amendments to the United States Constitution

       and Article I, Section 10 of the Ohio Constitution.

              III. The evidence presented at trial was insufficient to support any of

       the convictions.

              IV. The Jury’s finding of guilty was against the manifest weight of

       the evidence.

                                        II. Analysis

                                   A. Juror Misconduct

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

its discretion when it failed to declare a mistrial as a result of juror misconduct based

around the jury’s outside research of the term “access” during deliberations.

       {¶ 31} “An accused is entitled to a trial before an impartial, unprejudiced, and

unbiased jury.” State v. Daniels, 

92 Ohio App. 3d 473

, 486, 

636 N.E.2d 336


Dist.1993). Thus, we have stated that “a jury’s verdict must be based solely on the

evidence and argument presented in open court, not on any outside influence.” State v.

Hall, 6th Dist. Sandusky No. S-08-018, 2009-Ohio-5728, ¶ 57, citing Patterson v.


205 U.S. 454

, 462, 

27 S. Ct. 556


51 L. Ed. 879

(1907), and Smith v. Phillips,

455 U.S. 209

, 217, 

102 S. Ct. 940


71 L. Ed. 2d 78


       {¶ 32} Ordinarily, we review the trial court’s disposition of a defendant’s

allegation of juror misconduct for an abuse of discretion.

Id. at ¶ 59,

citing State v. Keith,

79 Ohio St. 3d 514

, 528, 

684 N.E.2d 47

(1997). However, in this case, we need not

determine whether the trial court abused its discretion in failing to declare a mistrial,

because we find that any error associated with such inaction was invited by appellant.

       {¶ 33} “Under the invited-error doctrine, a party will not be permitted to take

advantage of an error which he himself invited or induced the trial court to make.” State

ex rel. Bitter v. Missig, 

72 Ohio St. 3d 249

, 254, 

648 N.E.2d 1355

(1955). “‘Under this

principle, a party cannot complain of any action taken or ruling made by the court in

accordance with that party’s own suggestion or request.’” Daimler/Chrysler Truck Fin.

v. Kimball, 2d Dist. Champaign No. 2007-CA-07, 2007-Ohio-6678, ¶ 40, quoting 5 Ohio

Jurisprudence 3d (1999, Supp.2007) 170-171, Appellate Review, Section 448.

       {¶ 34} Here, the trial court sua sponte raised the possibility of a mistrial based

upon the jury’s improper independent research during deliberations. In conjunction with

its voir dire of the jury aimed at ascertaining the extent of the misconduct, the trial court

asked appellant how he wished to proceed, and provided him with a range of alternatives

to choose from, including a mistrial. Appellant then conferred with his defense counsel,

who advised him to seek a mistrial. Against the advice of his counsel, appellant elected

to proceed to a verdict on the rape counts and accepted the state’s offer to dismiss the

charge of corrupting another with drugs, which was the only charge related to the jury’s

independent research.

       {¶ 35} In light of the facts of this case, it is clear that the trial court’s failure to

declare a mistrial was based upon appellant’s own request. Therefore, any error

associated with the trial court’s failure to declare a mistrial was invited by appellant, and

appellant cannot now complain of such error on appeal.

       {¶ 36} Accordingly, appellant’s first assignment of error is not well-taken.

                            B. Ineffective Assistance of Counsel

       {¶ 37} In his second assignment of error, appellant argues that he received

ineffective assistance of trial counsel.

       {¶ 38} To demonstrate ineffective assistance of counsel, appellant must first show

that trial counsel’s representation “fell below an objective standard of reasonableness.”

Strickland v. Washington, 

466 U.S. 668

, 687-688, 

104 S. Ct. 2052


80 L. Ed. 2d 674

(1984). Because “effective assistance” may involve different approaches or strategies,

our scrutiny of trial counsel’s performance “must be highly deferential” with a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” State v. Bradley, 

42 Ohio St. 3d 136

, 142, 

538 N.E.2d 373

(1989), quoting

Strickland at 689. Should appellant demonstrate her trial counsel’s performance was

defective, appellant must also demonstrate that prejudice resulted. Bradley at paragraph

two of the syllabus.

       {¶ 39} Here, appellant’s ineffective assistance argument is premised upon

counsel’s decision not to have the trial court provide a limiting instruction after he made

a passing reference to the fact that he was in jail during the pendency of the divorce

proceedings involving S.B. As noted above in our recitation of the facts, the trial court

offered to provide the jury with a limiting instruction, but defense counsel rejected the

offer, electing instead to “leave it alone” so that the issue would not be reiterated and

emphasized a second time to the jury.

       {¶ 40} “Debatable trial tactics and strategies do not constitute a denial of effective

assistance of counsel.” State v. Hester, 10th Dist. Franklin No. 02AP-401, 2002-Ohio-

6966, ¶ 10, citing State v. Clayton, 

62 Ohio St. 2d 45

, 49, 

402 N.E.2d 1189

(1980). In

Hester, the Tenth District rejected an argument that trial counsel was ineffective for

failing to request a limiting instruction relating to the jury’s consideration of the

defendant’s prior convictions, and explained that “[c]ounsel may have declined to request

a limiting instruction regarding appellant’s prior convictions out of concern that, if such

an instruction were given, the prior convictions would be once again called to the jury’s


Id. at ¶ 15.

       {¶ 41} Our review of the record in this case confirms that a similar desire, namely

wanting not to draw attention to appellant’s passing reference to his incarceration,

motivated appellant’s trial counsel to reject a limiting instruction. This tactical decision,

which was reasonable in light of the circumstances, does not give rise to a claim of

ineffective assistance of trial counsel. Moreover, appellant does not establish how he was

prejudiced by trial counsel’s decision not to seek a limiting instruction. There is nothing

in the record that would support the notion that the jury was influenced by appellant’s

admission that he was in jail during the pendency of his divorce proceedings.

       {¶ 42} Because appellant has failed to demonstrate that his trial counsel’s

representation fell below an objective standard of reasonableness, and in light of the fact

that appellant does not explain how he was prejudiced by counsel’s failure to request a

limiting instruction, we find no merit to appellant’s ineffective assistance argument.

Accordingly, appellant’s second assignment of error is not well-taken.

                             C. Sufficiency of the Evidence

       {¶ 43} In his third assignment of error, appellant contends that his rape

convictions were not supported by sufficient evidence.

       {¶ 44} In reviewing a record for sufficiency, “[t]he 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.” State v. Jenks, 

61 Ohio St. 3d 259


574 N.E.2d 492

(1991), paragraph two of the


       {¶ 45} In this case, appellant was convicted of two counts of rape in violation of

R.C. 2907.02(A)(1)(b) and two counts of rape in violation of R.C. 2907.02(A)(2). R.C.

2907.02 provides, in relevant part:

              (A)(1) No 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 any of the following



                (b) The other person is less than thirteen years of age, whether or not

       the offender knows the age of the other person.


                (2) No person shall engage in sexual conduct with another when the

       offender purposely compels the other person to submit by force or threat of


       {¶ 46} At trial, the state introduced evidence by way of A.K.’s testimony to prove

the four counts of rape for which appellant was convicted. With respect to the two counts

of rape in violation of R.C. 2907.02(A)(1)(b), A.K. testified that appellant, on more than

one occasion, took her into the recreation room at T.M.’s home and inserted his inhaler

into her vagina. This testimony is sufficient to establish the “sexual conduct” element of

R.C. 2907.02(A)(1)(b), as “sexual conduct” is defined under R.C. 2907.01(A) to include

“the insertion, however slight, of * * * any instrument, apparatus, or other object into the

vaginal or anal opening of another.”

       {¶ 47} As to how old A.K. was at the time appellant engaged in the foregoing

sexual conduct with her, S.B. testified that the family moved into T.M.’s home in late-

2013, and subsequently moved into the Chase Street apartment in May or June 2014.

Therefore, the sexual conduct occurred prior to June 2014. A.K., who was born in

January 2003, would have been 11 years old at this time. Thus the state’s evidence was

sufficient to prove that A.K. was under the age of 13 when appellant engaged in sexual

conduct with her at T.M.’s home, as required under R.C. 2907.02(A)(1)(b).

       {¶ 48} The two remaining rape counts under R.C. 2907.02(A)(2) were based upon

incidents that occurred after the family moved into the Chase Street apartment, and after

A.K.’s thirteenth birthday. In support of these charges, the state elicited testimony from

A.K., who recounted two occasions in which appellant forced her to have intercourse

with him. A.K. described the incidents in detail, indicating that appellant placed a towel

underneath her, had her undress, inserted a vibrator into her vagina, and then engaged in

intercourse with her. A.K. specified that this occurred on two occasions, and she further

testified that appellant routinely rubbed his penis in and around the folds of her vagina as

he masturbated.

       {¶ 49} As to the force element under R.C. 2907.02(A)(2), the Ohio Supreme Court

has indicated:

       The force and violence necessary to commit the crime of rape depends

       upon the age, size and strength of the parties and their relation to each

       other. With the filial obligation of obedience to a parent, the same degree

       of force and violence may not be required upon a person of tender years, as

       would be required were the parties more nearly equal in age, size and


State v. Eskridge, 

38 Ohio St. 3d 56


526 N.E.2d 304

(1988), paragraph one of the

syllabus. In Eskridge, the court went on to recognize that coercion is inherent in the

parent-child relationship and stated that “force need not be overt and physically brutal,

but can be subtle and psychological.”

Id. at 58-59.

The relaxed standard regarding the

force element that was espoused by the court in Eskridge has been deemed applicable to

stepparents of a minor, such as appellant in this case. State v. Riffle, 

110 Ohio App. 3d


, 561, 

674 N.E.2d 1214

(9th Dist.1996).

       {¶ 50} Notably, appellant does not assert that the state’s evidence was insufficient

on the force element. During her testimony, A.K. explained that appellant’s demands for

sexual conduct made her feel “stuck.” She elaborated that appellant would get upset if

she refused his sexual advances, and therefore she elected to simply comply. This

testimony is sufficient to establish that appellant exerted psychological force over A.K.,

his 13-year-old stepdaughter, prior to engaging in sexual conduct with her.

       {¶ 51} In advancing his sufficiency argument, appellant does not challenge the

existence of the state’s evidence as to each of the elements of the offenses for which he

was convicted. Rather, appellant points to A.K.’s delayed disclosure of abuse, S.B.’s

failure to take action in response to such disclosures, and T.M.’s testimony that he never

observed any indicators of sexual abuse to support his assertion that A.K. was lying when

she accused him of raping her. In essence, appellant challenges the credibility of the rape

allegations made by A.K. However, in reviewing whether the state’s evidence is

sufficient to support appellant’s convictions, “[w]e neither weigh the evidence nor

consider the credibility of the witnesses.” State v. Frost, 6th Dist. Sandusky No.

S-19-040, 2021-Ohio-457, ¶ 22, citing State v. Yarbrough, 

95 Ohio St. 3d 227

, 2002-


767 N.E.2d 216

, ¶ 79. Therefore, we find appellant’s credibility arguments

misplaced in this context.

       {¶ 52} Having examined the evidence introduced by the state at trial, and upon

viewing it in a light most favorable to the state, we find that a rational trier of fact could

have found the essential elements of the rape offenses for which appellant was convicted

proven beyond a reasonable doubt. Accordingly, we hold that the state’s evidence was

sufficient to support appellant’s convictions, and we find appellant’s third assignment of

error not well-taken.

                             D. Manifest Weight of the Evidence

       {¶ 53} In his fourth assignment of error, appellant argues that the jury’s guilty

verdict was against the manifest weight of the evidence.

       {¶ 54} When reviewing a manifest weight claim, we sit as a “thirteenth juror.”

State v. Thompkins, 

78 Ohio St. 3d 380

, 387, 

678 N.E.2d 541

(1997). That is, we review

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

credibility of witnesses.

Id. Our role is

to 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.”



We reverse a conviction on manifest weight grounds for only the most “exceptional case

in which the evidence weighs heavily against the conviction.”

Id. at 387.

       {¶ 55} In support of his contention that his convictions are against the manifest

weight of the evidence introduced by the state at trial, appellant adopts the same

arguments he raised in his third assignment of error. Appellant contends that A.K.’s

accusations of rape were belied by her delayed disclosure of abuse, the lack of detail she

provided as to the timeline of the incidents of rape, S.B.’s failure to take care of A.K.’s

medical needs, and T.M.’s testimony that he never witnessed appellant sexually abuse


       {¶ 56} Given the lack of any witnesses to the alleged sexual abuse in this case, we

are presented with a “classic ‘he said, she said’ credibility contest” between A.K. and

appellant. State v. Foust, 2d Dist. Montgomery No. Civ.A. 20470, 2005-Ohio-440, ¶ 15.

A.K.’s testimony is the exclusive source in the record where we learn of the details

surrounding the various incidents of alleged sexual conduct between her and appellant.

In response to such testimony, appellant took the stand and testified that he never

engaged in sexual conduct with A.K., and further posited that she was fabricating these

allegations in response to his refusal to pay for her mobile phone and his filing of a

complaint for divorce from S.B.

       {¶ 57} In Foust, the Second District evaluated a manifest weight argument that

was raised by the defendant in a similar he said, she said situation. There, the court

recognized that the factfinder had the opportunity to observe the witnesses as they

testified, and was thus reluctant to invoke its discretionary power to overturn the

conviction on manifest weight grounds.

Id. at ¶ 26-27.

The court noted that a defendant

who wishes to have his convictions overturned as against the manifest weight of the


       must show that his conviction is contrary to the weight of the evidence

       offered, not merely that the probative value of the evidence offered by both

       sides is in equipoise. In that circumstance, this court will not substitute its

       judgment for that of the trier of facts on issues such as witness credibility,

       unless it is patently apparent that the trier of facts lost its way in arriving at

       its verdict.

Id. at ¶ 28.

       {¶ 58} The credibility issues raised by appellant relating to alleged inconsistencies

in the state’s evidence were fully explored by appellant’s defense counsel at trial. Many

of these alleged inconsistencies were resolved upon further inquiry from the state. For

example, A.K.’s delayed disclosure of the sexual abuse, which was the primary avenue of

attack for appellant at trial, was explained by Dr. Schlievert as normal for children who

experience sexual abuse at the hands of a parent. Further, the state vigorously cross-

examined T.M. as to whether it was possible that sexual conduct could have occurred

between appellant and A.K. in his home without his knowledge. Ultimately, T.M. was

forced to acknowledge that he could not be in every room of the home at all times.

       {¶ 59} In sum, the jury considered the credibility issues raised by appellant as it

evaluated the evidence presented by both parties at trial. Upon consideration, the jury

chose to believe A.K.’s testimony and reject appellant’s testimony. On review of that

decision, we cannot say that the jury clearly lost its way and created such a manifest

miscarriage of justice that appellant’s convictions must be reversed. Accordingly,

appellant’s convictions are not against the manifest weight of the evidence, and we find

his fourth assignment of error not well-taken.

                                     III. Conclusion

       {¶ 60} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. The costs of this appeal are assessed to appellant under

App.R. 24.

                                                                         Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J.                             _______________________________
Gene A. Zmuda, P.J.
Myron C. Duhart, J.                                          JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:


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