State v. V.J.

[Cite as State v. V.J., 2014-Ohio-2618.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 13AP-799
v. : (C.P.C. No. 13CR-03-1313)

V.J., : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on June 17, 2014

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
appellee.

Yeura R. Venters, Public Defender, and David L. Strait, for
appellant.

APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
{¶ 1} Defendant-appellant, V.J., appeals from the judgment of the Franklin
County Court of Common Pleas convicting him of two counts of rape, one count of
attempted rape, one count of kidnapping, one count of abduction, and one count of
domestic violence, as well as all corresponding specifications. For the following reasons,
we affirm in part and reverse in part the judgment of the trial court.
I. BACKGROUND
{¶ 2} Appellant's convictions pertain to an incident that occurred on January 5,
2013 at the home appellant shared with his girlfriend, F.C., and their child K.J. The
following factual summary is taken from the evidence adduced at appellant's jury trial.
No. 13AP-799 2

{¶ 3} F.C. testified that she met appellant when she was 17 years old, and their
relationship proceeded beyond friendship after she turned 18. The two began living
together shortly after they started dating and F.C. became pregnant; however, during her
pregnancy, their relationship ended. Their child, K.J., was born on June 7, 2002, and
appellant was incarcerated at that time. Appellant remained incarcerated until March
2010 and, at that time, appellant began living with F.C. and K.J.
{¶ 4} Regarding the events of January 5, 2013, F.C. testified that she, appellant,
K.J., and appellant's nephew were at their apartment at approximately 7:30 or 8:00 p.m.
when appellant received a telephone call from his brother, W.J. At some point in the
conversation, W.J. told appellant that he had sex with F.C. According to F.C., appellant
"got very angry" and began "yelling, screaming, [and] questioning." (Tr. 91.) F.C. initially
denied the allegations, but eventually admitted to appellant that she and W.J. did have an
affair. F.C. testified that after her admission, appellant punched her along her cheek
which caused her to fall. Appellant then proceeded to kick, hit, and spit on F.C. and also
called her names and screamed at her. Thereafter, appellant grabbed F.C. "by the fistfulls
of hair" and dragged her down the stairs to the basement. (Tr. 93.)
{¶ 5} Once in the basement, appellant continued to kick, hit, and spit on F.C. and
then proceeded to urinate on her. F.C. testified that "[h]e said he was going to pee on me
like the dog that I was." (Tr. 95.) While in the basement, appellant forced F.C. to a couch
and attempted anal intercourse. When the attempt failed, appellant pulled F.C. over and
performed vaginal intercourse. Though repeatedly telling him to stop, F.C. testified that
appellant would scream at her such things as "[s]hut up, bitch," and "[i]s this how my
brother likes it?" (Tr. 99.) After ejaculating and telling F.C. that he hoped she "got
pregnant," appellant went upstairs and left F.C. in a bathroom in the basement. (Tr. 100.)
{¶ 6} Utilizing appellant's cell phone that he had previously thrown on the
basement floor, F.C. sent a text message to appellant's sister, asking her to call 911. After
appellant returned to the basement, he instructed F.C. to go upstairs and get "cleaned up."
(Tr. 104.) Appellant then forced F.C. to the bedroom. F.C. sat on the floor while appellant
called various people and told them F.C. had slept with W.J. F.C. testified:
No. 13AP-799 3

At one point, he made me sit on the bed and talk to his cousin
and admit to his cousin that I had slept with his brother, and
he proceeded to hit me while on the phone, talking to his
cousin. When he got off of the phone with his cousin, he
grabbed my head again and started, like, fistfuls of hair on
either side and banging my head against the bed, sitting right
on top of me.

(Tr. 107.)
{¶ 7} F.C. also testified that, while in the bedroom, appellant forced her to
perform oral sex on him. According to F.C., "[h]e told me that if I didn't, that it really
didn't matter anymore, that it was pretty much over, that I was going to do this." (Tr.
109.) F.C. testified that she "told him to please stop" and "[t]hink about what you're
doing." (Tr. 109.) Afterwards, appellant took some money from F.C.'s pants' pocket and
left the house. F.C. testified, "I was nervous, and I was shaking. I hit the "Talk" button. It
started ringing, and it was his cousin." (Tr. 110.) F.C. testified that they had a
"conversation" and then she called 911. Appellant returned as F.C. was still on the line
with the 911 dispatcher. F.C. testified that upon his return, appellant appeared "a lot
calmer" and informed F.C. that he "couldn't let anybody see [her] look like this." (Tr.
137.) After police arrived, appellant was placed in handcuffs, and F.C. described the
events, including the sexual assaults, in her statement to the officers. F.C.'s injuries were
photographed, and F.C. went to the hospital where she underwent a sexual assault
examination. F.C. testified that she did not see her child or nephew at any time during the
incident and believes the two children remained upstairs in K.J.'s bedroom the entire
time. On cross-examination, F.C. admitted that she had consensual sex with appellant
within 96 hours of the alleged sexual assault, but was uncertain as to whether it was on
Friday night or Saturday morning before the incident.
{¶ 8} K.J., who was 11 years old at the time of trial, testified that, on January 5,
2013, appellant had been on the telephone and then told K.J. and his cousin to go upstairs
to K.J.'s room. While in his room, K.J. heard a "loud thump" and heard F.C. "screaming"
and appellant "yelling." (Tr. 183.) K.J. testified that he could only make out appellant
saying "[s]top lying." (Tr. 183.) According to K.J., this went on for "[a]bout a couple
hours" and that it "got quiet a little bit, and then it would start again." (Tr. 184.) K.J.
No. 13AP-799 4

testified that he left his room once to get his cousin a glass of water, but he did not see
anything. K.J. also testified that he next saw F.C. "after it all – was all said and done," and
she had "a big bruise under her eye and a couple bruises on her arms." (Tr. 186-87.)
{¶ 9} Columbus Police Officer Robert Carter responded to a domestic violence
call at approximately 2:45 a.m. on January 6, 2013. Appellant answered the door, and
F.C. appeared "shaken a little." (Tr. 194.) According to Officer Carter, F.C. had bruising
on her left eye, right arm, and right knee. Upon learning of the alleged sexual assaults,
Officer Carter called for a detective.
{¶ 10} Columbus Police Detective David Bobbitt testified he asked F.C. whether
she had any prior consensual sexual activity in the previous 96 hours because "the current
standard is 96 hours on how far out that DNA can remain in the system where consensual
activity is relevant." (Tr. 219.) According to Detective Bobbitt's report, F.C. reported the
last consensual activity with appellant was on "[t]he 4th of January, Friday afternoon."
(Tr. 221.)
{¶ 11} Dr. Patricia Robitaille was the physician who treated F.C. at Mount Carmel
St. Ann's Emergency Department. During the external examination of F.C., Dr. Robitaille
observed that F.C. "had multiple bruises on her entire left cheek, multiple bruises on her
torso and all four extremities." (Tr. 280.) F.C.'s vaginal and anal examinations resulted
in no remarkable findings, which, according to Dr. Robitaille, can be consistent with the
history of alleged sexual assaults provided by F.C. Specifically, Dr. Robitaille testified
"you can have unwanted intercourse, and you can have everything from not a scratch to
the person being dead and everything in between, so, yes, you can have no apparent
injury, no bruising, no lacerations, and still have had unwanted intercourse." (Tr. 282.)
Dr. Robitaille also testified that F.C. reported consensual sexual activity occurred on the
afternoon of January 4, 2013.
{¶ 12} Testing of F.C.'s bra and shirt were positive for creatinine, a compound
found in urine. Seminal fluid was identified in both F.C.'s vaginal samples and pubic hair
standard. Additionally, trace amounts of seminal fluid were identified in F.C.'s anal
samples and pubic hair combings. The DNA profiles extracted from the vaginal and anal
samples were consistent with F.C. and appellant. The DNA profile taken from F.C.'s bra
No. 13AP-799 5

was consistent with both F.C. and appellant, while the DNA profile taken from F.C.'s shirt
was consistent only with appellant.
{¶ 13} When asked what things could impact the lab's ability to get positive results
on the tests conducted in this case, Lindsay Main, forensic biologist at the Bureau of
Criminal Identification and Investigation ("BCI"), testified "[i]f the victim has showered,
changed clothes, used the restroom, those all can inhibit or deplete the foreign DNA
source." (Tr. 330.) Main also testified that the longer the time frame between an alleged
sexual assault and when samples are taken can inhibit the chances of finding foreign
DNA. Sarah Smith, DNA analyst at BCI, testified that she could not opine as to how the
DNA got there as the "testing does not show a time frame or how anything appears." (Tr.
345.)
{¶ 14} After the prosecution rested, appellant testified on his own behalf.
According to appellant, he and F.C. engaged in consensual sexual relations in the
afternoon prior to the incident. Appellant testified that shortly thereafter, W.J. called and
was upset with appellant because appellant told their sister that W.J. was not watching
her son as he was supposed to be. Appellant testified that he hung up on W.J. and then
W.J. began texting appellant. According to appellant, W.J. informed appellant through
text messaging that he and F.C. had an affair. Appellant explained that he told the
children to go upstairs and then he and F.C. proceeded to the basement to talk. Appellant
denied grabbing F.C. or forcing her down the stairs. Appellant testified that, after F.C.
admitted to having sex with W.J., appellant struck F.C. and then urinated on her to keep
himself from hitting her again. Appellant testified:
I pushed her. After I struck her, I urinated on her. I'm
embarrassed. I'm ashamed. But I did it. I didn't want to hit
her again. I was so hurt. I was angry, and I didn't want to
touch her. And that's what I did. That's no excuse, but that's
what I did.

(Tr. 372.)
{¶ 15} According to appellant, after they left the basement, he called his two sisters
and his cousin to tell them about the affair. F.C. then got cleaned up, and the two began
talking in the bedroom. Appellant described himself as very calm at this time, and
appellant testified that F.C. apologized for what she had done. Appellant also testified
No. 13AP-799 6

that he told F.C. the relationship was over and that he wanted custody of K.J. Appellant
then took $15 from F.C.'s pants' pocket and left to get cigarettes. Shortly after he
returned, the police arrived. Appellant denied telling F.C. to remove her clothes, denied
attempting anal intercourse, denied forcing vaginal intercourse, and denied forcing F.C. to
perform oral sex on him.
{¶ 16} In a multi-count indictment rendered on March 11, 2013, appellant was
indicted for two counts of rape, in violation of R.C. 2907.02, one count of attempted rape,
in violation of R.C. 2923.02 as it relates to R.C. 2907.02, two counts of kidnapping, in
violation of R.C. 2905.01, one count of robbery, in violation of R.C. 2911.02, one count of
abduction, in violation of R.C. 2905.02, and one count of domestic violence, in violation of
R.C. 2919.25. Six of the indicted counts included a specification alleging appellant was a
repeat violent offender ("RVO") based on his 2002 convictions for aggravated burglary
and felonious assault. After deliberations, the jury returned a verdict of not guilty on one
count of robbery and the lesser-included offense of theft, not guilty on one count of
kidnapping, and guilty on all remaining charges. Thereafter, the trial court found
appellant guilty of the RVO specifications. A sentencing hearing was held, and appellant
was sentenced to an aggregate prison term of 39 years with 227 days of jail-time credit.
II. ASSIGNMENTS OF ERROR
{¶ 17} Appellant, through counsel, presents four assignments of error for our
consideration:
[I.] Appellant was denied a fair trial by the introduction of
inflammatory, emotional testimony.

[II.] The judgment of the trial court is against the manifest
weight of the evidence.

[III.] The trial court committed plain error in imposing
consecutive sentences without making the necessary findings
in violation of R.C. 2929.14(C)(4).

[IV.] The trial court committed plain error in imposing an
aggregate sentence of thirty nine years that did not satisfy the
principles set forth in R.C. 2929.11(B).
No. 13AP-799 7

{¶ 18} After his appeal was filed through counsel, appellant filed a pro se motion
for leave to file a supplemental brief with additional assignments of error. This court
granted appellant's request and gave appellant until January 21, 2014 to file said brief.
Appellant did not file a brief by that date but, instead, filed a supplemental brief
containing two assignments of error on February 13, 2014. Also on February 13, 2014,
appellant filed a motion to take judicial notice of his supplemental brief. Construing
appellant's motion as one seeking leave to file an untimely brief, we grant appellant's
motion.
{¶ 19} For ease of discussion, we will refer to the following assigned errors as
appellant's fifth and sixth assignments of error:
[V.] The Trial Court abused its discretion allowing the D.N.A.
to be entered as evidence in violation of Rules of Evidence 402
and 403(A), which violated Appellant's Fourteenth
Amendment right to due process and to equal protection
under the law.

[VI.] Trial Court violated Appellant's Fifth Amendment Right
to the Grand Jury when it amended the indictment under
Rule 7(D).

III. DISCUSSION
A. First Assignment of Error
{¶ 20} In his first assignment of error, appellant argues he was denied a fair trial by
the introduction of inflammatory and emotional testimony. Specifically, appellant
challenges the following testimony elicited during F.C.'s direct examination:
Q. Okay. Did something happen when you were pregnant
with your relationship with him?

A. Yes.

Q. What happened?

A. Found out he was cheating on me, and the relationship
was pretty much dissolved and –

(Tr. 82.)
No. 13AP-799 8

{¶ 21} Appellant's trial counsel objected, and a sidebar conference was held.
During the sidebar conference, appellant's counsel argued that F.C.'s testimony was
improper as it put appellant's character immediately at issue. Therefore, appellant's
counsel requested a mistrial. The prosecutor countered that the evidence was being
offered to explain the trajectory of the parties' relationship and to offer an explanation as
to why appellant was not in F.C.'s life for eight years. The trial court sustained the
objection but denied the motion for a mistrial. When trial resumed in the jury's presence,
the trial court stated:
Okay. One of my jobs is to be like the official of evidence, and
I can either sustain an objection, which means I agree with it,
or I can deny the objection, okay? I'm agreeing with this
objection. You're to disregard that last question and answer.

(Tr. 89-90.)
{¶ 22} On appeal, appellant argues F.C.'s testimony that appellant was involved
with another woman at the same time F.C. was pregnant with his child was irrelevant and
inflammatory. According to appellant, introduction of this evidence was prohibited under
Evid.R. 404(B), which provides "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith." Appellant also argues the evidence was inadmissible under Evid.R. 403(A),
which states "[a]lthough relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or
of misleading the jury."
{¶ 23} As noted, the trial court sustained the objection to the testimony and
instructed the jury to disregard the question and answer. Thus, the challenged testimony
was not admitted into evidence. Nonetheless, appellant contends the trial court should
have granted his motion for a mistrial.
{¶ 24} A court reviewing a trial court's decision on a motion for mistrial defers to
the judgment of the trial court, as it is in the best position to determine whether the
circumstances warrant the declaration of a mistrial. State v. Glover, 35 Ohio St.3d 18, 19
(1988). We thus review a trial judge's decision for an abuse of discretion. Columbus v.
No. 13AP-799 9

Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.), citing State v. Sage, 31
Ohio St.3d 173, 182 (1987).
{¶ 25} "A mistrial should not be ordered in a criminal case merely because some
error or irregularity has intervened, unless the substantial rights of the accused or the
prosecution are adversely affected." State v. Reynolds, 49 Ohio App.3d 27, 33 (2d
Dist.1988). A trial court should only declare a mistrial when "the ends of justice so
require and a fair trial is no longer possible." State v. Franklin, 62 Ohio St.3d 118, 127
(1991), cert. denied, 504 U.S. 960 (1992). To determine whether the defendant was
deprived of a fair trial, we must determine whether "absent the improper remark[], the
jury would have found the appellant guilty beyond a reasonable doubt." Aleshire at ¶ 42,
citing State v. Maurer, 15 Ohio St.3d 239, 267 (1984).
{¶ 26} In the case before us, the trial court sustained appellant's objection to the
challenged testimony and proceeded to instruct the jury to disregard the challenged
testimony. The jury is presumed to have followed the trial court's instruction. State v.
Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 39; State v. Rowe, 92 Ohio App.3d 652,
672-73 (10th Dist.1993), jurisdictional motion overruled, 69 Ohio St.3d 1403 (1994).
{¶ 27} Given F.C.'s isolated reference to appellant's prior affair, the trial court's act
of sustaining appellant's objection to such testimony and the trial court's instruction to
the jury that it disregard the question and response, we cannot conclude that the trial
court abused its discretion in denying appellant's motion for a mistrial. State v. McCree,
8th Dist. No. 87951, 2007-Ohio-268, ¶ 40 (no error in overruling the defendant's motion
for a mistrial because the witness's reference to the defendant's criminal history was an
isolated reference, the trial court properly struck the testimony, and the court advised the
jury to disregard it); State v. Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418, ¶ 35
(court's prompt remedial actions after prejudicial testimony prevented finding that the
trial court abused its discretion in denying a motion for a mistrial).
{¶ 28} Moreover, to the extent evidence of appellant's prior affair was mentioned
again during trial, such evidence was provided by appellant during his direct examination.
Appellant testified, "[F.C.] got me about my cheating. I said that, 'You can't keep throwing
that in my face.' " (Tr. 370.) Additionally, appellant testified, "[a]nd I also went into the
thing where she got on me about lying and cheating. I said, you know, you made me feel
No. 13AP-799 10

horrible about what I did, and then you turn around, and you're doing the same thing."
(Tr. 380.)
{¶ 29} Upon review, we conclude appellant's substantial rights were not adversely
affected, and the trial court did not abuse its discretion in denying appellant's motion for a
mistrial. Accordingly, we overrule appellant's first assignment of error.
B. Second Assignment of Error
{¶ 30} Appellant's second assignment of error challenges the weight of the
evidence supporting his convictions. Specifically, appellant argues that F.C.'s testimony
lacked the credibility necessary to sustain the convictions concerning the sexual assaults.
{¶ 31} The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). When presented with a challenge to the
manifest weight of the evidence, an appellate court may not merely substitute its view for
that of the trier of fact but 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. Id. An appellate court should reserve reversal of a conviction as being against
the manifest weight of the evidence for only the most " 'exceptional case in which the
evidence weighs heavily against the conviction.' " Id., quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-
Ohio-6179, ¶ 12.
{¶ 32} In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the
presumption that the jury, or the trial court in a bench trial, " 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference
to the jury's determination of witness credibility. State v. Redman, 10th Dist. No. 10AP-
654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-
No. 13AP-799 11

6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the
syllabus (credibility determinations are primarily for the trier of fact).
{¶ 33} In arguing that his convictions for rape and attempted rape are against the
manifest weight of the evidence, appellant contends his testimony denying the allegations
is more credible than the testimony of F.C. in which she alleges the sexual assaults
occurred. In support of his position, appellant directs this court to five areas of F.C.'s
testimony that, in his opinion, render F.C.'s credibility suspect: (1) F.C. called appellant's
cousin and not her own relatives, (2) F.C. told the cousin he could come over if he wanted
to be on appellant's side, (3) while F.C. reported to the 911 dispatcher that her boyfriend
had been hitting her, she did not mention the sexual assault, (4) F.C. did not mention the
sexual assaults until the police arrived at the house, and (5) appellant told F.C. that he
would take K.J. away from her. According to appellant, these areas of F.C.'s testimony
establish that F.C. had a motive and the time to fabricate the sexual assault allegations.
{¶ 34} Although appellant argues F.C.'s motive to lie detracts from her credibility,
we remain cognizant that the trier of fact has superior, first-hand perspective in judging
the demeanor and credibility of witnesses. State v. Mickens, 10th Dist. No. 08AP-626,
2009-Ohio-1973, ¶ 30; DeHass at paragraph one of the syllabus. Additionally, F.C.
testified about the issues raised by appellant, including that she called appellant's cousin
in error because she was shaking and nervous after appellant briefly left the house.
Additionally, when asked why she did not tell the 911 dispatcher about the alleged sexual
assaults, F.C. testified, "I just wanted them to get there. I didn't want to go through the
whole story with them on the phone. I just wanted them to get somebody there as soon as
possible." (Tr. 139.) Additionally, testimony regarding appellant's threats to obtain
custody of K.J. was presented to the jury. Thus, the trier of fact was aware of the issues
raised by appellant, and it was within the province of the trier of fact to determine F.C.'s
credibility and the weight to be given to the evidence. Id.
{¶ 35} Faced with the conflicting evidence provided by the testimonies of F.C. and
appellant, the jury had the responsibility to determine witness credibility. As trier of fact,
the jury was free to believe or disbelieve all or any of the testimony presented. State v.
Matthews, 10th Dist. No. 11AP-532, 2012-Ohio-1154, ¶ 46, citing State v. Jackson, 10th
Dist. No. 01AP-973 (Mar. 19, 2002). The jury chose to believe F.C.'s version of events and
No. 13AP-799 12

to reject appellant's assertion that none of the alleged sexual assaults occurred. A
conviction is not against the manifest weight of the evidence merely because the jury
believed the prosecution's testimony. State v. Anderson, 10th Dist. No. 10AP-302, 2010-
Ohio-5561. Additionally, while appellant disagrees with the jury's credibility
determination, mere disagreement over the credibility of witnesses is not a sufficient
reason to reverse a judgment on manifest-weight grounds. State v. G.G., 10th Dist. No.
12AP-188, 2012-Ohio-5902, ¶ 7.
{¶ 36} Upon thorough review of the record presented before us, we conclude
appellant's argument regarding the credibility of F.C. does not render her testimony not
credible as a matter of law such that a reversal on manifest-weight grounds is required.
Accordingly, appellant's convictions are not against the manifest weight of the evidence,
and we overrule appellant's second assignment of error.
C. Third Assignment of Error
{¶ 37} In his third assignment of error, appellant contends the trial court
committed plain error in imposing consecutive sentences without making the necessary
findings required by R.C. 2929.14(C)(4).
{¶ 38} We note initially that appellant did not object during sentencing; thus, he
has forfeited all but plain error. See Crim.R. 52(B); State v. Wilson, 10th Dist. No. 12AP-
551, 2013-Ohio-1520, ¶ 8. Under Crim.R. 52(B), "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." "To constitute plain error, the error must be obvious on the record, palpable, and
fundamental such that it should have been apparent to the trial court without objection."
State v. Gullick, 10th Dist. No. 13AP-26, 2013-Ohio-3342, ¶ 3, citing State v. Tichon, 102
Ohio App.3d 758, 767 (9th Dist.1995).
{¶ 39} Upon review of the record, we find the trial court failed to make the findings
required by R.C. 2929.14(C)(4) before imposing consecutive sentences in this case. It is
established in this district that "when the record demonstrates that the trial court failed to
make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences
on multiple offenses, 'appellant's sentence is contrary to law and constitutes plain error.' "
State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15, quoting Wilson at ¶ 18;
State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794, ¶ 12; see also State v. Bailey,
No. 13AP-799 13

10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 46; State v. Hunter, 10th Dist. No. 13AP-196,
2013-Ohio-4013, ¶ 9; State v. Castlin, 10th Dist. No. 13AP-331, 2013-Ohio-4889, ¶ 8-9;
State v. Phipps, 10th Dist. No. 13AP-351, 2013-Ohio-5546, ¶ 15; State v. Bender, 10th
Dist. No. 12AP-934, 2013-Ohio-2777, ¶ 7; State v. Hargrove, 10th Dist. No. 13AP-615,
2014-Ohio-1919. As such, we must remand this matter to the trial court to consider
whether consecutive sentences are appropriate pursuant to R.C. 2929.14(C)(4) and, if so,
to enter the proper findings on the record. Id. at ¶ 13; Boynton at ¶ 12.
{¶ 40} Accordingly, we sustain appellant's third assignment of error.
D. Fourth Assignment of Error
{¶ 41} In his fourth assignment of error, appellant argues the trial court erred in
imposing an aggregate sentence of 39 years. According to appellant, the imposed
sentence violates the consistency and proportionality principles of R.C. 2929.11(B).
{¶ 42} As stated in our disposition of appellant's third assignment of error, this
matter must be remanded for resentencing. As such, appellant's fourth assignment of
error is rendered moot.
E. Fifth Assignment of Error
{¶ 43} In his fifth assignment of error, appellant contends the trial court erred in
admitting DNA evidence because the evidence was both irrelevant and prejudicial.
Specifically, appellant asserts that, because F.C. admitted to having consensual sexual
conduct within 72 hours of the alleged sexual assaults, the DNA evidence is inadmissible
since "[t]here is no way to prove that the D.N.A. found [on] the victim came from the
alleged sexual assault." (Supplemental Brief, 2.)
{¶ 44} To be relevant and therefore admissible, evidence must have a tendency "to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." Evid.R. 401. See
also Oakwood v. Makar, 11 Ohio App.3d 46, 50 (8th Dist.1983). Even if the evidence is
relevant, it must be excluded under Evid.R. 403(A) "if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury." However, despite the mandatory terms of Evid.R. 403(A), the appropriate
standard of review is the abuse of discretion standard. The Supreme Court of Ohio has
interpreted Evid.R. 403(A) to mean that " '[t]he trial court has broad discretion in the
No. 13AP-799 14

admission * * * of evidence and unless it has clearly abused its discretion and the
defendant has been materially prejudiced thereby, this court should be slow to interfere.' "
Maurer at 265, quoting State v. Hymore, 9 Ohio St.2d 122, 128 (1967).
{¶ 45} In reaching a decision involving admissibility under Evid.R. 403(A), a trial
court must engage in a balancing test to ascertain whether the probative value of the
offered evidence outweighs its prejudicial effect. Id. at paragraph seven of the syllabus.
In order for the evidence to be deemed inadmissible, its probative value must be minimal
and its prejudicial effect great. State v. Morales, 32 Ohio St.3d 252, 258 (1987).
Furthermore, relevant evidence which is challenged as having probative value that is
substantially outweighed by its prejudicial effects "should be viewed in a light most
favorable to the proponent of the evidence, maximizing its probative value and
minimizing any prejudicial effect" to the party opposing its admission. Maurer at 265.
{¶ 46} Although evidence may be damaging or harmful to the defendant, that does
not necessarily mean that the evidence is prejudicial under the rules of evidence. Only
when the evidence induces the jury to decide the case on an improper basis, i.e., an
emotional one, does the defendant suffer material prejudice. State v. Bernatowicz, 62
Ohio App.3d 132, 138 (6th Dist.1989). Further, the issue of whether testimony or
evidence is relevant or irrelevant, prejudicial, confusing or misleading is best decided by
the trial judge who is in a significantly better position to analyze the impact of the
evidence on the jury. Renfro v. Black, 52 Ohio St.3d 27, 31 (1990). Thus, this court must
affirm the trial court's ruling absent a showing that the trial court acted unreasonably,
arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 47} In the case sub judice, appellant asked the trial court to find the seminal
fluid and DNA evidence inadmissible as irrelevant and prejudicial. However, as the trial
court explained, "it's a matter of truth and veracity whether the act occurred. The semen
would be there anyway from the previous act. * * * So, you know, I don't see where you're
prejudiced in any way, okay? I'll overrule that." (Tr. 42.)
{¶ 48} We cannot say the presence of appellant's seminal fluid observed in the
testing of F.C.'s vaginal and anal samples is irrelevant as is it consistent with F.C.'s
testimony that appellant attempted anal intercourse and successfully performed vaginal
intercourse with ejaculation. While the seminal fluid could have been the result of
No. 13AP-799 15

consensual sexual conduct with appellant that occurred either the morning of or day prior
to the alleged sexual assaults, there was testimony to this effect, and we fail to perceive an
abuse of discretion or any prejudice resulting from admission of the DNA evidence.
{¶ 49} Appellant's argument is more aptly categorized as a challenge to the weight
of the evidence rather than to evidence admissibility. See State v. Pierce, 64 Ohio St.3d
490 (1992) (questions regarding reliability of DNA evidence in a given case go to the
weight of the evidence rather than to its admissibility); State v. Breeze, 10th Dist. No.
92AP-258 (Nov. 24, 1992) (argument that DNA evidence being used to exclude sources of
blood rather than to include them went to the weight of the evidence, not to its
admissibility based on relevance). There was testimony from Detective Bobbitt, Main,
and Smith indicating that, though appellant's seminal fluid and DNA were observed in the
vaginal and anal samples of F.C., the tests could not determine how or when the DNA
came to be there or whether it was the result of consensual sexual conduct or a forced
sexual assault as alleged by F.C. Whether or not the alleged sexual assaults occurred
throughout the evening hours of January 5, 2013 was one of the issues the jury was tasked
with determining. While appellant denied any sexual conduct during this time, F.C.
described three instances of unwanted sexual conduct. As discussed in our disposition of
appellant's second assignment of error, a conviction is not against the manifest weight of
the evidence merely because the jury believed the prosecution's testimony. Anderson.
{¶ 50} Upon review, we find no error in the admission of the DNA evidence, and
we overrule appellant's fifth assignment of error.
F. Sixth Assignment of Error
{¶ 51} In his sixth assignment of error, appellant contends the trial court erred
when it granted the prosecution's request to amend the indictment to remove the RVO
specification from Count 7 charging abduction and Count 8 charging domestic violence.
{¶ 52} The transcript indicates that, prior to trial, the prosecutor noted the
indictment contained a typographical error as it mistakenly included the RVO
specification language on the charges for abduction and domestic violence. Therefore, the
prosecutor asked that such language be deleted. Appellant's counsel indicated there was
no objection to the deletion of the specifications from Counts 7 and 8. At the beginning of
the sentencing hearing, appellant's counsel stated that appellant believed the amendment
No. 13AP-799 16

to the indictment was improper because the amendment changed the name and identity
of the offenses charged. The trial court rejected appellant's argument and proceeded to
sentencing.
{¶ 53} Pursuant to Crim.R. 7(D), a court may, before, during or after a trial, amend
an indictment due to any variance with the evidence, provided no change is made in the
name or identity of the crime charged. A trial court's decision to permit the amendment
of an indictment is reviewed under an abuse-of-discretion standard. State v. Smith, 10th
Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 10. The term "abuse of discretion" connotes
more than an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable. Blakemore at 219. Furthermore, when the name or identity
of the crime charged is not changed by the amendment, a defendant on appeal must show
that the amendment prejudiced his defense for there to be reversible error. Smith at ¶ 10.
{¶ 54} In appellant's case, the indictment was amended to delete the RVO
specification language from Counts 7 and 8 of the indictment. Count 7 charged appellant
with abduction as a third-degree felony, and Count 8 charged appellant with domestic
violence as a first-degree misdemeanor. Though appellant argues to the contrary, neither
the name nor identity of the crimes charged, i.e., third-degree felony abduction and first-
degree misdemeanor domestic violence, were changed as a result of deleting the RVO
specification language.
{¶ 55} Because the name and identity of the crimes charged were not changed by
the amendment, in accordance with Smith, appellant must show that the amendment
prejudiced his defense. This appellant has failed to do. Removal of the RVO
specifications from Counts 7 and 8 actually benefited appellant. Moreover, because the
RVO specification remained as to other counts in the indictment, appellant has not
argued the amendment in any way prejudiced his ability to defend the charges against
him. Finally, to the extent appellant asserts in this assigned error that the amendment
interfered with the "Grand Jury's intent when it handed down the R.V.O[.] specification
on count 7," we find no merit to said assertion. (Supplemental Brief, 4.)
{¶ 56} Accordingly, we overrule appellant's sixth assignment of error.
No. 13AP-799 17

IV. CONCLUSION
{¶ 57} In conclusion, appellant's motion is granted, appellant's first, second, fifth,
and sixth assignment of errors are overruled, appellant's third assignment of error is
sustained, and appellant's fourth assignment of error is rendered moot. Accordingly, the
judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed
in part, and this matter is remanded for resentencing in accordance with law and this
decision.
Motion granted;
judgment affirmed in part, reversed in part;
cause remanded.

BROWN and CONNOR, JJ., concur.
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