State v. Lancaster

[Cite as State v. Lancaster, 2018-Ohio-315.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-39
:
v. : T.C. NO. 15-CR-414
:
MICHAEL D. LANCASTER, SR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 26th day of January, 2018.

...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2372 Lakeview Drive, Suite H,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the December 6, 2016 Notice of Appeal of

Michael D. Lancaster. Lancaster (“Appellant”) appeals from his November 14, 2016

judgment entry of conviction, following a jury trial, on one count of rape, in violation of
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R.C. 2907.02(A)(1)(b), a felony of the first degree; one count of gross sexual imposition,

in violation of R.C. 2907.05(A)(4), a felony of the third degree; and four counts of illegal

use of a minor in nudity-oriented material or performance, in violation of R.C.

2907.323(A)(1), felonies of the second degree. The court sentenced Appellant to life

imprisonment without parole for rape, to 36 months for gross sexual imposition, and to

seven years for each offense of use of a minor in nudity-oriented material or performance.

The court ordered the sentences to be served consecutively for a total sentence of life

imprisonment without parole. We hereby affirm the judgment of the trial court.

{¶ 2} Appellant was indicted on July 31, 2015 on the above offenses as well as

an additional count of rape that was subsequently dismissed. On September 15, 2015,

the State filed “State’s Motion to Determine Competency of Child Witness,” based upon

the age of the victim, who was under 10 years of age. On September 18, 2015, Appellant

filed a motion to suppress, seeking suppression of his statements to Greene County

Sheriff’s department personnel, and the contents of his camera and cell phone.

{¶ 3} A hearing was held on the motion to suppress on December 2, 2015. At

the hearing, Patrol Deputy Franklin Hill of the Greene County Sheriff’s Office testified that

on November 13, 2014, he spoke to W., Appellant’s adult son, at the dispatch center

regarding “some kind of child sex crime.” Hill testified that W. told him that he had taken

over a business, “Buck Stove,” in Fairborn, from his father, Michael Lancaster.

According to Hill, W. advised him that “he had accessed the computers at the business

and had found pictures of children in various stages of undress, including nude.” Hill

testified that W. told him that he then proceeded to the home he shared with Appellant

and retrieved a camera and cell phone from Appellant’s bedroom. Hill stated that W. told
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him that he found “suspicious photos” on the phone, and that he was unable to access

the camera because the battery was not charged. Hill stated that he took possession of

the phone and camera and booked them into the Property Room.

{¶ 4} Hill stated that Appellant appeared while he was taking W.’s report “and

wanted to speak with somebody about the allegations against him.” Hill testified that he

did not ask Appellant any questions about sexual assault, place him under arrest,

handcuff him or tell him that he was not free to leave. Hill stated that Appellant was not

brought to the dispatch center by a police officer but that he arrived voluntarily. Hill

testified that he informed Appellant “that due to the seriousness of the allegations that I

would * * * rather have him wait and, if he was willing, talk to one of our detectives at the

Sheriff’s Office.” According to Hill, Appellant indicated that he was willing to speak to a

detective, and Hill walked with him to the sheriff’s office. Hill testified that he did not

threaten or coerce Appellant, and that he did not promise him leniency for speaking to a

detective.

{¶ 5} Deputy Chris Moore of the Greene County Sheriff’s Office testified that he

is assigned to the Patrol Division. Moore stated that he was employed as a detective on

November 13, 2014, and that he was asked to interview Appellant that day, who “at that

time * * * wanted to give his version of events.” Moore stated that he spoke with

Appellant in the interview room, which he described as a 10 feet by 12 feet room with a

table and chairs. Moore stated that Appellant was not under arrest at the time,

handcuffed, or ordered into the interview room. Moore stated that he did not tell

Appellant that he could not leave, and that Appellant entered the room voluntarily. Moore

stated that he was not wearing a uniform but was dressed “in probably a business casual,
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if not a suit and tie, dress clothes,” and that he was wearing his service weapon. Moore

testified that he shut the door to the interview room before asking Appellant any questions.

He testified as follows:

And so I showed him the door was unlocked, told him it would only

be shut just for privacy and had him walk out and walk into that hallway; and

then showed him where that exit door was; showed him where the bathroom

door was; showed him where the drinking fountain was; and made sure that

he knew he could use that exit in that hallway to leave – anything he wanted.

{¶ 6} Moore testified that he advised Appellant that he was free to leave the

interview at any time. Moore stated that he was not aware of any underlying facts

regarding the investigation and that he did not consider Appellant to be a suspect. He

testified that his conversation with Appellant lasted “ten to twenty minutes.” Moore stated

that he did not advise Appellant of his Miranda rights in the course of the interview.

Moore stated that Appellant was never arrested, and that he left the interview on his own.

Moore testified that he did not threaten Appellant, intimidate him, or coerce him. He

stated that his tone in speaking to Appellant was very casual, and that Appellant “spoke

75, if not 80 percent, of the conversation.” Moore stated that Appellant did not appear to

be under the influence of alcohol or any sort of narcotic, and that he did not demonstrate

an inability to understand any questions.

{¶ 7} Moore stated that at one point in the interview, he left the room “to see what

else had been learned at that point.” At that time he stated that he spoke to W. on the

phone, and that “he was kind of telling what prompted the whole report of him contacting

the Sheriff’s Office.” He testified that his conversation with W. did not change the
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dynamic of the interview with Appellant, and that “the dialogue remained the same. It

was still information gathering. The only thing that might have changed was I might have

asked him a few more specific questions as to the allegations of the photography.”

Moore stated that in the course of the interview, Appellant did not ask to terminate the

interview, ask for an attorney, or indicate that he did not want to talk to him. According to

Moore, after Appellant “stated everything that he wanted to tell, he left.”

{¶ 8} The following exchange occurred on cross-examination:

Q. Well wouldn’t it be an accurate statement to say that upon your

return, after looking for similar facts, your interest was piqued with regard to

what [Appellant] might have to say?

A. Certainly.

Q. And at that point in time, did you explain to him that he had the

right to have an attorney present? That he had the right to not incriminate

himself or have him sign any sort of waiver?

A. I did not.

Q. Did you ever, during the course of your interview with him, give

him a waiver to sign and fill out?

A. He was never in custody, no.

{¶ 9} On December 14, 2015, Appellant filed a “Post Suppression Closing

[Statement] Request for Hearing.” On January 26, 2016, the trial court overruled the

motion to suppress. The court determined that the interview between Moore and

Appellant was not an interrogation, since Appellant “appeared voluntarily at the dispatch

center, and a co-worker asked Moore to talk to [Appellant]; at the time of the discussion,
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Moore did not view [Appellant] as ‘a suspect,’ and did not know anything about the

allegations against [Appellant].” According to the trial court, other than “Moore’s

statement that Moore was able to ask more pointed questions after talking with [W.], there

is no evidence of questioning by Moore; Moore testified that [Appellant] did 75-80 percent

of the talking.” The court determined that “Deputy Moore’s discussion with Michael

Lancaster of Nov. 13, 2014 was not a custodial interrogation, and therefore Miranda

warnings were not required. Accordingly, the Court denies Defendant’s motion to

suppress statements and/or videos of Michael Lancaster on the ground that Miranda

warnings were not given to [Appellant].” Regarding the camera and cell phone, the court

determined that “there is no evidence suggesting that [W.] was influenced or directed by

law enforcement in any manner when [W.] looked at his father’s cell phone and brought

the cell phone and camera to the dispatch center. The court finds that [W.] was not

acting as an agent or instrument of the State in regard to the cell phone and camera.”

{¶ 10} On February 1, 2016, Appellant filed a “Motion to Renew Motion to

Suppress and Request for Hearing.” On February 4, 2016, the trial court issued a

“Judgment Entry Granting Motion to Reopen Motion to Suppress and Continuing Trial

Date.” A hearing was held on the motion on March 10, 2016. At the start thereof, counsel

for the parties agreed that the purpose of the hearing was to determine whether W. acted

at the direction of law enforcement when he seized the cell phone and camera. The

State called Officer James Hern of the Fairborn Police Department. He stated that on

November 13, 2014, while on road patrol, he was called to the Fairborn Police Department

Dispatch. He stated that upon arrival, “they informed me that a subject had come in and

stated that he had wanted to report a sex offense involving minors.” According to Hern,
 -7-

“[b]y the time I showed up he had already left and was no longer at the Police

Department.” Hern testified that W. then returned to the lobby and he met with him there.

Hern testified that W. told him that Appellant had recently transferred “Buck Stove” to him,

and that “he hired a new secretary. The secretary was going through office equipment

and located what he believed was child pornography on a couple of the computers.”

Hern testified that W. told him that he proceeded to his residence, which has a Xenia

address, where he retrieved a cell phone containing child pornography. He stated that

W. had with him the cell phone, a digital camera, and two computer towers. Hern

testified that he took possession of the computers and directed W. to take the camera

and phone to the Xenia Police Department, since the Xenia residence “had no ties to the

City of Fairborn.” On cross-examination, Hern stated that he kept the computers

because they were retrieved from a Fairborn business on Dayton-Yellow Springs Road.

He stated that W. told him the cell phone and computer belonged to Appellant, and that

they resided together.

{¶ 11} W. testified that he went to the Fairborn Police Department on November

13, 2014 after he discovered child pornography on a work computer. He testified that he

brought “[s]ome computers, a cell phone, and a camera” to the police department.

According to W. he retrieved the computers from “Buck Stove and Fireplace” in Fairborn,

and the cell phone from his father’s bedroom at their home in Xenia. W. stated that he

observed “some scantily nude photos in there” on the phone. W. testified that he

“couldn’t open up the camera and look at it,” and that he determined he “might as well

bring the camera as well because I saw that [N.W.], our child, had always been playing

with the camera.” He stated that he gave the computers to the Fairborn police and was
 -8-

told to take the camera and cell phone to the Xenia police because Fairborn police lacked

jurisdiction over the items.

{¶ 12} Finally, David Hayes testified that he is an assistant prosecutor in Greene

County. He stated that he had “an inadvertent contact” with W. on January 19, 2015 in

the course of a “scheduled interview with the victim and her mother” at “Michael’s House,”

which is a child advocacy center in Greene County. Hayes stated that he had never met

W. before that date. When asked, in his initial meeting with W. if W. indicated to him that

he brought items to the police “at the direction of someone in law enforcement,” Hayes

responded that W. “made statements that caused me enough concern that I thought it

needed to be clarified and that’s why I brought it to your attention.” Hayes stated that in

a subsequent conversation with W., “I asked him point blank did somebody with the

Fairborn Police Department, or any law enforcement agency, instruct you to seize any

phone or any item of property from Michael Lancaster’s house and he said, no.”

{¶ 13} The trial court overruled the reopened motion to suppress on March 25,

2016. The court concluded that “the State had no involvement in [W.’s] decision to

search and seize the cell phone and camera of Michael Lancaster located at their shared

residence in Xenia, and that the State had no involvement in [W.’s] decision to turn these

items in to law enforcement.” According to the trial court, “there is no state action and

the Fourth Amendment is not implicated.” The court determined that W. was a credible

witness.

{¶ 14} On September 22, 2016, the trial court issued an “Entry Amending Count 3

of Indictment.” Count 3 of the original indictment provided in part that Appellant “did,

have sexual conduct with another * * *.” Amended Count 3 provides in part that Appellant
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“did cause another not the spouse of the offender to have sexual contact with the offender

* * *.”

{¶ 15} Trial commenced on September 19, 2016. After the State’s opening

statement, counsel for Appellant deferred his opening statement, and W. then testified.

W. stated that Appellant is his adoptive father. W. testified that V.W. is his girlfriend, and

that she has a daughter, N.W., who is ten years old. W. stated that Appellant offered

him the opportunity to help him in his business in Fairborn, and that he moved to Xenia

in 2013 to do so. W. stated that he started working in August 2013 in Fairborn. He stated

that he initially lived on Bowman Drive but then he, V.W. and N.W. moved into Appellant’s

home on Hook Road in October 2013. W. stated that he has prior felony convictions that

made it difficult for him to find employment.

{¶ 16} W. stated the Fairborn Police took possession of the computers, and that

he took the phone and camera to the Xenia Police Department on November 13, 2014.

W. stated that he believed that Appellant had downloaded the images on the computer at

work. When asked why he thought so, W. responded that he has “walked into the store

on numerous occasions and have caught him with his pants down playing with himself in

front of the computer; hearing sounds, you know, like sex sounds coming from the

computer on numerous occasions.”

{¶ 17} Deputy Franklin Hill of the Greene County Sheriff’s Office testified

consistently with his testimony at the initial suppression hearing regarding his receipt of

the camera and cell phone from W. He identified the November 13, 2014 property tags

for the items that he completed before sealing them in packages and placing them in the

property room.
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{¶ 18} Deputy Chris Moore testified that in the course of his interview with

Appellant that Appellant advised him that he was transferring his business to W., and that

on the previous night he and W. had argued and Appellant told W. that he was fired.

According to Moore, Appellant advised him that the next day he received a call from W.

telling him that he had found pornographic images on a computer and his cell phone and

that he was going to turn them into the police. Moore stated Appellant told him that his

cell phone had been in the bedside table for a year. Moore stated that Appellant

acknowledged that there might be pornographic images on the phone and computer of

18- or 19-year old girls.

{¶ 19} Moore stated that after he spoke to W. by phone, he asked Appellant again

about pornographic images on his cell phone. According to Moore, “[Appellant] started

getting a little bit upset. He produced a cell phone out of his pocket and began showing

pictures. And he showed pictures that started off with chimneys and fire inserts of jobs

he had done and then continued on and there were pictures of a young girl on his phone,

but none of them that he showed me were that of pornography.” Moore stated that

Appellant told him that the young girl was N.W., the daughter of W.’s girlfriend. Moore

stated that Appellant told him that W. was out to get him. According to Moore, Appellant

“told me that he and his wife, that [Appellant] and his wife, had adopted four children many

years ago while living in Fairborn and that he – there was two girls of the four. And those

two girls, later in life, accused [Appellant] of molesting them and having intercourse with

them.” Moore testified that Appellant “believes that [W.] held this and was upset at him

for these allegations back then. And felt that he might be trying to get some sort of

revenge or something for that by making allegations.”
 -11-

{¶ 20} Kathy Geyer, the manager of the Property Room for the Greene County

Sheriff’s Office, Detective Kyle Metz of the Greene County Sheriff’s Office, and Diamond

Boggs, a Computer Forensic Specialist at the Ohio Bureau of Criminal Investigation,

provided chain of custody testimony for the cell phone and the camera.

{¶ 21} Jarrod Scott testified that he is a Computer Forensic Specialist at the Ohio

Bureau of Criminal Investigation, and the court certified him as an expert with regard to

evidence recovery from digital devices. Scott stated that pursuant to a warrant he

examined a cell phone and camera belonging to Appellant. He described the process he

used to extract data from the devices and analyze it. He testified that he extracted the

data on February 3, 2015. Scott stated that he provided a written report to Detective Kyle

Metz containing all the data from the cell phone, and that he did not discover anything of

evidentiary value on the camera.

{¶ 22} Scott testified that a Google account was associated with the cell phone.

He stated that he was asked to issue a second report and isolate graphics pertaining to

child victims. Scott testified that he “found graphics of a potential juvenile female and a

male penis. They were thumbnail graphics. The – in some of the graphics the juvenile

had the penis in her mouth; other graphics the juvenile had the penis in her hand. There

were nude, full frontal and rear photographs of a juvenile female; the thumbnail graphics

that had dates and times were May 28th, 2014.” Scott stated that there “were other

graphics of child models and child erotica that were discovered in the Chrome browser

cache as they had been viewed on the web - on the Internet. And there were some in

the download folder, so they had been downloaded to the phone. The dates and times

on those were between May 3rd, 2014 and June 12th, 2014.”
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{¶ 23} Scott stated that he further “carved graphics from deleted space,” and

authored a report on his findings. He stated that he also searched for “web histories” on

the cell phone. He stated that he found “Google Image searches for child erotica on April

18th, 2014. There were also Google web searches, along with Google image searches,

for pre-teen p[***]y on June 22, 2014.” Scott stated that there were Google searches “for

A-S-S-T-R- on multiple dates between April 2014 and June of 2014,” and he testified that

the title of that web site stands for “alt sex stories text repository. It’s a website that has

stories that people can write and unload about anything they want.” Scott testified that

stories “with names such as: School Girl Rape; Secret Slaves; and Raped Virgin

Cheerleader” had been accessed According to Scott, in “the pedophilia category there

were stories with the names: Innocence Defiled; Tina, Younger/Older; and Goody Goody

Girls, Two Virgins in Boys Locker Room; and then an Incest category with the name:

Twelve Year Olds. And the websites were visited again between April 2014 and June

2014.”

{¶ 24} Scott then identified the individual graphic images he extracted from the

phone as follows: Exhibit 28 “depicts a male penis and a possible juvenile touching the

penis”; Exhibit 29 depicts “a male penis and a possible juvenile standing near it”; Exhibit

30 “appears to just contain the male’s penis”; Exhibit 31 “appears to be a girl with a

notebook or piece of paper”; Exhibit 32 “appears to be a juvenile from the rear * * *

possibly showing her buttocks”; Exhibit 33 “appears to be a juvenile performing fellatio on

a man’s penis”; Exhibit 34 “appears to, again, depict possible juvenile touching a male’s

penis”; Exhibit 35 “appears to be a juvenile female in the shower”; Exhibit 36 depicts “a

juvenile female looking at a man’s penis”; Exhibit 37 “appears to be a juvenile female
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bending over showing her buttocks”; Exhibit 38 “appears to be a juvenile touching a man’s

penis and possibly holding a ruler”; Exhibit 39 is a “graphic from the phone showing a

man’s penis and a possible juvenile standing near it”; Exhibit 40 is a “graphic of a man’s

penis recovered from the phone”; and Exhibit 41 is “a picture [of] a possible juvenile

standing with a notebook or papers; similar situation as the other pictures.” Scott

testified that in Exhibit 41, “a man’s penis is visible near the girl or the child.”

{¶ 25} Scott then identified graphic images that had been deleted from the phone

that he was able to recover as follows: Exhibit 43 “appears to be a juvenile female. You

can see her face and she appears to be holding a penis”; Exhibit 44 “appears to be a

juvenile female bending over and showing her buttocks”; Exhibit 45 “appears to be a

juvenile female performing fellatio”; Exhibit 46 “appears to be a female bending over

showing her genitalia”; Exhibit 47 “shows a possible juvenile female showing full frontal

nudity”; Exhibit 48 “appears to show a possible juvenile showing nude buttocks”; Exhibit

49 shows “a juvenile female in the shower; full frontal nudity”; Exhibit 50 shows “a man’s

penis touching the genitalia of a female”; Exhibit 51 shows “a possible minor’s nude

buttocks”; Exhibit 52 depicts a “juvenile female looking at a man’s penis”; Exhibit 53

shows, “again, a juvenile female * * * looking at a man’s penis.” Scott stated that Exhibit

52 was the original photograph and Exhibit 53 is a thumbnail version thereof. Scott

testified that he was able to extract metadata from one image, namely State’s Exhibit 54,

which is another version of State’s Exhibit 52, which reflected that the picture was taken

on May 29, 2014 at 9:48 p.m. from Appellant‘s phone.

{¶ 26} On cross-examination, Scott testified that he has no independent

knowledge regarding who placed the above images on Appellant’s phone or who had
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access to the phone. In response to a question from the court, Scott indicated that in the

absence of active wire service to the phone, it would still be capable of taking

photographs.

{¶ 27} V.W. next testified that she resides in Dayton with her mother, her daughter

N.W., who was born in 2005, and W. She testified that she resided at Appellant’s home

on Hook Road in Xenia from October 2013 until June of 2015, with W., N.W. and

Appellant. V.W. stated that Appellant left the residence after W. turned in the evidence

against him to the police. She stated that before that time, she, W., and N.W. shared

one of two bedrooms upstairs in the home, and that Appellant stayed in the other

bedroom. She stated that N.W. was often alone with Appellant in the home while she

went grocery shopping and ran other errands. V.W. stated that she met with Detective

Kyle Metz on April 22, 2015 regarding the identification of individuals in photographs.

{¶ 28} V.W. testified that she was shown Exhibit 36 with the penis “marked over”

and that she identified N.W. in the photograph. V.W. identified N.W.’s shirt in Exhibit 28,

and she stated that the shirt depicts “Esmeralda, off the Hunchback of Notre Dame.”

V.W. also identified N.W.’s shirt in Exhibits 29 and 31. V.W identified N.W.’s “hair, her

butt” in Exhibit 32. She stated that she recognized N.W. “without a doubt.” V.W.

identified N.W.’s face in Exhibit 33. In Exhibit 34, V.W. identified N.W.’s “arm and her

shirt.” She stated that the shirt is the same one she previously identified. In Exhibit 35,

V.W. identified N.W., as well as the curtain in the upstairs bathroom on Hook Road where

she resided. V.W. identified “the back of [N.W.] and her butt” in Exhibit 37, as well as

N.W.’s same shirt in Exhibit 38. In Exhibit 39, V.W. identified N.W.’s multi-colored leopard

print “shorts and her shirt.” She identified “[N.W.], shorts and shirt” in Exhibit 41.
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{¶ 29} V.W. further identified N.W.’s face and “her Peace shirt” in Exhibit 43. In

Exhibit 44, V.W. identified N.W.’s “shirt and her bottom.” V.W. identified N.W.’s face and

the Esmeralda shirt in Exhibit 45. In Exhibit 47, V.W. testified that she recognized N.W.,

and she stated that she appears to have a temporary tattoo on her stomach. She stated

that the photograph was taken in the living room on Hook Road. V.W. identified Exhibit

48 as “the back of [N.W.].” V.W. identified N.W. in Exhibit 49, and she stated that the

photo was taken in the bathroom on Hook Road. She identified Exhibit 51 as “the back

of [N.W.],” and Exhibit 52 as “[N.W.] in her shirt.”

{¶ 30} V.W. stated that she was not aware of the photographs before meeting with

Metz and that she did not give her permission for the photographs to be taken. V.W.

testified that she took N.W. to Michael’s House Advocacy Center. V.W. testified that

W.’s penis is not circumcised, and the penis visible in the photographs is circumcised.

V.W. stated that in May of 2014, N.W. was eight years old. On cross-examination, V.W.

testified that W. and Appellant had an argument about the business, and that they did not

like each other.

{¶ 31} N.W. testified that she is 10 years old and in the fifth grade. She testified

that she used to reside in Appellant’s home on Hook Road in Xenia when she was in

second and third grade. N.W. stated that she was left alone with Appellant when “my

mom and [W.] would go out somewhere to go get groceries or something.” She stated

that Appellant took pictures of her the “first and second time.” She identified Exhibit 43

as a photograph of Appellant’s “privacy,” and she testified that she is “[h]olding his

privacy” in the image. N.W. stated that Appellant’s “privacy” is also called a penis.

When asked what she was doing with Appellant’s penis in Exhibit 43, she responded, “I
 -16-

had to grab it and rub it. And hold it.” N.W. identified Exhibit 45 as “[m]y mouth sucking

his privacy.” N.W. stated that she did so “[b]ecause he threatened me to.”

{¶ 32} N.W. stated that Exhibit 49 depicts her taking a shower in the Hook Road

bathroom, and that Appellant took the picture. When asked how Appellant threatened

her, N.W. responded that Appellant “said he would lock me up in the closet and break my

arm.” N.W. testified that Appellant put his penis in her mouth one time, and that she

touched his penis one time. She stated that the offenses occurred on different days.

{¶ 33} Detective Kyle Metz testified he investigates “mostly felonies, some

misdemeanors and I also assist in the Property Room management when the Property

Manager is out." He stated that he was assigned to investigate Michael Lancaster.

Metz testified that he met with N.W. at her elementary school along with “a victim

advocate named Becky Walsh, the principal, * * *, and the Children’s Services worker,”

Christy Weber. Metz stated that he was not aware of the contents of the cell phone at

the time, and that “the meeting was to ask general questions about their safety and if they

had any concerns about their living conditions and anyone living in the home.” Metz

stated that at the conclusion of the meeting, he felt that N.W. was safe in her home.

{¶ 34} Metz stated that he “authored a search warrant and presented it to the

municipal court judge here at the Xenia Municipal Court requesting that the cell phone

and the camera be evaluated by a Forensic Analyst of our choice – that being BCI in

London and it was authorized.” After viewing Scott’s report, Metz testified that in the

images he “could tell it was a child but I could not positively identify that child at that time.”

Metz testified that V.W. “came into the Sheriff’s Office at my request and met with myself

and a victim advocate in our conference room.” Metz stated that he showed V.W. a
 -17-

photograph and she identified N.W. therein. He stated that he covered the male genitalia

depicted in the photograph with a post-it note. After V.W. identified N.W., Metz stated

that he advised her he wanted to have a forensic interview of N.W. at Michael’s House.

Metz stated that N.W. made a disclosure in the course of the forensic interview. On

cross-examination, Metz stated that in the course of the initial interview at N.W.’s school

that she indicated to him that there were no problems at home. On re-direct examination,

Metz testified that N.W. told him at her school that she felt safe because Appellant no

longer resided at the Hook Road address.

{¶ 35} At the conclusion of the State’s case, counsel for Appellant moved “for a

motion to dismiss and or a directed verdict,” and the court overruled the motions.

Counsel for Appellant then made his deferred opening statement.

{¶ 36} Michael Lancaster testified that his date of birth is June 18, 1951 and that

he is 65 years old. When asked if he was depicted in any of the photos discussed above,

he responded, “Absolutely, unequivocally, no.” Appellant stated that he and W. re-

established a relationship in 2013 after he had a “massive cardiac event resulting in a

quintuple bypass in 2012.” Appellant testified that in 2002, he “purchased from Fred

Easton that business known as Buck Stove and Fireplace because I did installations for

him for several years.” Appellant stated that he was married and had one biological child

in 1974, a daughter. He stated that he and his wife “adopted a sibling group of four

children,” including W.

{¶ 37} Appellant stated that his relationship with W. was “rocky,” and “now he’s

forty-something and still being arrested for felony events.” Appellant stated that he had

not spoken to W. for 15 years before his bypass surgery. Appellant stated that he
 -18-

resided at the Hook Road address at the time of his surgery, and that the house was titled

in his biological daughter’s name. Appellant stated that when W. began helping him, he

“became my right hand man out in the field and almost with a month or two we started

talking about him eventually working his way into running the business,” around February

or March of 2014.

{¶ 38} Appellant testified that W. suggested that he take a vacation to visit his two

adopted daughters in North Carolina and then go on to Florida. According to Appellant,

after two days in North Carolina, he returned home because the “idea of going to Florida

and spending a week or two was an anathema to me.” Appellant testified that he went

straight to his business and noted that the business truck was gone and there “was a

younger woman, late twenties, thirties, or so; and an older woman forty-five or fifty or so

in my office. One was sitting in front of my computer and one was sitting behind my

desk.” Appellant testified that he did not know the women.

{¶ 39} Appellant stated that after trying to locate W.’s job site on the computer, he

went to the bank and noticed that his bank balance was zero. According to Appellant, he

had a balance of $22,000.00 before he left for North Carolina. Appellant testified that he

had made W. a signatory on the account. According to Appellant, W. “had opened up a

business Buck Stove and Fireplace, LLC, filed papers I didn’t know anything about.”

Appellant testified that W. “transferred every dime out of my bank account into the new

business and I was not a signatory on that account.” Appellant stated that he fired W.

Appellant stated that before the above dispute occurred, in April of 2014, the title to the

Hook Road property had been transferred to W. because he and Appellant intended to

add an addition to the home and relocate the business there.
 -19-

{¶ 40} Regarding Exhibit 1, Appellant testified that he does not “know about that

phone because I haven’t seen it close up.” When shown Exhibit 1, Appellant stated that

it “looks like a phone that was in the nightstand next to my bed that had been there for a

year or more.” Appellant testified that he had replaced the phone, and that the last time

he used it was “[e]asily a year before.” Appellant testified that anyone in the home could

have access to the phone, and that N.W. “played with it all the time.” When asked to

identify the people depicted in the photos on the phone, Appellant responded, “[t]he little

girl appeared to be [N.W.] The male in the pictures I do not have a clue.”

{¶ 41} On cross-examination, Appellant acknowledged that he lived with N.W. in

May of 2014, and that there were times when he was alone with her. He further

acknowledged that he told Detective Moore that he looked at adult pornography on his

phone, and that there had been a prior allegation against him with regard to child

molestation. Appellant acknowledged that W.’s financial situation improved significantly

once he began to work with Appellant and was able to reside in the Hook Road home.

According to Appellant, prior to November 13, 2014, things were going in a positive

direction with the business.

{¶ 42} After the defense rested, the State requested permission to reopen its case

for the purpose of establishing venue. The court indicated as follows: “The Court’s view

is that venue was clearly established and I want a reviewing body to know that the Court

believed venue was established when it ruled on the defense’s Rule 29 that the defense

made.” Defense counsel responded that “the venue was addressed preliminarily and at

the Rule 29 Motion, so we would strenuously object to State’s case being reopened.” In

response to a question from the court, defense counsel indicated that he believed that
 -20-

venue was properly established. The court granted the State’s motion.

{¶ 43} N.W. was again called to testify. She stated that she put her mouth on

Appellant’s penis in his bedroom at the home on Hook Road in Greene County. She

stated that she put her hand on his penis in the same bedroom. She stated that Appellant

also took pictures of her at the same residence. Detective Metz also testified that the

Hook Road address is in Greene County. In instructing the jury prior to deliberations,

the court advised the jurors that Count 2, the second rape count, had been dismissed by

the State.

{¶ 44} We note that on August 21, 2017, this court issued a Decision and Entry

which provides that on August 2, 2017, the State received notification from the Ohio

Department of Rehabilitation and Correction that Appellant is deceased. This Court

granted the State’s subsequent “motion to substitute appellant’s counsel, Thomas Kollin,

as the party/representative in this appeal.”

{¶ 45} Appellant asserts six assignments of error herein. His first assigned error

is as follows:

THE TRIAL COURT ERRED WHEN IT OVERRULED

APPELLANT’S MOTION TO SUPPRESS.

{¶ 46} Appellant asserts that the State violated his “rights when they failed to

provide him with Miranda warnings during custodial interrogation.” According to

Appellant, “the State conceded that Appellant was interrogated, and thus the only issue

is whether he was in custody. * * * Although the Appellant came to the sheriff’s office on

his own accord, the interview was at the sheriff’s office with the door closed.” Appellant

asserts that Moore “was not in uniform, but he was wearing his service weapon, which
 -21-

would reasonably have a coercive effect.” Appellant asserts that even if he were not in

custody initially, “the interaction turned into custodial interrogation after the deputy left

and spoke with [W.]” Appellant argues that when Moore returned to the interview room,

“his questions were more specific as to the allegations and more direct as to whether

Appellant had taken pictures of the juvenile.” Under “the circumstances surrounding the

interrogation, a reasonable person would have felt that he was not at liberty to terminate

the interrogation and leave.”

{¶ 47} As this Court has previously noted:

Appellate review of a trial court's decision regarding

a motion to suppress evidence involves mixed questions of law and

fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th

Dist.1998). When ruling on a motion to suppress evidence, a trial court

assumes the role of trier of fact and is in the best position to resolve

questions of fact and to evaluate the credibility of witnesses. State v.

Treesh, 90 Ohio St.3d 460, 472, 739 N.E.2d 749 (2001). Accordingly,

reviewing courts must defer to the trial court's findings of fact if competent,

credible evidence exists to support the findings. State v. Dunlap, 73 Ohio

St.3d 308, 314, 652 N.E.2d 988 (1995). A reviewing court then must

independently determine, without deference to the trial court, whether the

trial court properly applied the substantive law to the facts of the

case. Long at 332, 713 N.E.2d 1.

The credibility of the witnesses and the weight to be given to their

testimony are matters for the trier of facts to resolve. State v. DeHass, 10
 -22-

Ohio St.2d 230, 227 N.E.2d 212 (1967). In State v. Lawson, 2d Dist.

Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997), we observed:

“Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of

appeals to find that a judgment is against the manifest weight of the

evidence requires that substantial deference be extended to the factfinder's

determinations of credibility. The decision whether, and to what extent, to

credit the testimony of particular witnesses is within the peculiar

competence of the factfinder, who has seen and heard the witness.”

State v. Reed, 2016-Ohio-7416, 72 N.E.3d 1196, ¶ 21-22 (2d Dist.).

{¶ 48} As this Court has further noted:

Interrogation includes express questioning as well as “any words or

actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit

an incriminating response from the suspect.” State v. Fair, 2d Dist.

Montgomery No. 24120, 2011-Ohio-3330, ¶ 40, citing State v. Strozier, 172

Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d

Dist.) and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d

297 (1980). * * * Statements made on the subject's own initiative, in the

absence of questions or other conduct by police, do not constitute

“interrogation.” State v. Johnson, 2d Dist. Montgomery No. 20624, 2005-

Ohio-1367, ¶ 25, citing City of Akron v. Milewski, 21 Ohio App.3d 140, 487

N.E.2d 582 (9th Dist.1985).
 -23-

State v. Moody, 2012-Ohio-3390, 974 N.E.2d 1273, ¶ 16 (2d Dist.).

{¶ 49} As this Court has further noted:

“Police are not required to administer Miranda warnings to everyone

whom they question.” State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d

891 (1997), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711,

50 L.Ed.2d 714 (1977). Warnings need not be given “simply because the

questioning takes place in the station house, or because the questioned

person is one whom the police suspect.” Oregon at 495. “Only custodial

interrogation triggers the need for Miranda warnings.” Biros at 440,

citing Oregon at 494. A person is in custody when “there is a ‘formal arrest

or restraint on freedom of movement’ of the degree associated with a formal

arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77

L.Ed.2d 1275 (1983).

State v. Hill, 2d Dist. Clark No. 2013-CA-108, 2015-Ohio-897, ¶ 10.

{¶ 50} We conclude that the trial court’s determination that Moore’s discussion with

Appellant was not a custodial interrogation is supported by competent, credible evidence.

Hill testified that Appellant came to the dispatch center voluntarily. Appellant indicated

to Hill that he was willing to speak to a detective, and that Hill did not coerce him into

doing so. Moore testified that Appellant “wanted to give his version of events.” Moore

stated that Appellant was not handcuffed or arrested, and that he entered the interview

room voluntarily. While Moore testified that he was wearing his service weapon, there is

no evidence that he brandished the weapon or used it to intimidate Appellant, and we

have no reason to conclude that its mere presence on Moore’s person “would reasonably
 -24-

have a coercive effect.” Moore stated that he made Appellant aware that the door to the

interview room was not locked and that the door was shut for purposes of privacy. Moore

showed Appellant the exit door and “made sure that he knew he could use that exit in that

hallway to leave.” Moore stated that he advised Appellant that he could terminate the

interview at any time. Moore testified that his tone was casual, and that he did not

threaten or intimidate Appellant, and that Appellant did not demonstrate any inability to

understand his questions. Moore noted that at no time did Appellant ask for a lawyer or

indicate that he no longer wanted to speak to Moore. According to Moore, Appellant

“was never in custody” and that after he “stated everything that he wanted to tell, he left.”

The trial court clearly credited Moore’s testimony, and we defer to the trial court’s

assessment of credibility. For the foregoing reasons, we conclude that the trial court did

not err in overruling Appellant’s motion to suppress, since he was not in custody and

accordingly not entitled to Miranda warnings. Appellant’s first assignment of error is

overruled.

{¶ 51} Appellant’s second assigned error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING

THE STATE TO REOPEN ITS CASE IN CHIEF BECAUSE IT UNDULY

PREJUDICED APPELLANT.

{¶ 52} Appellant argues that the “judgment of the Trial Court must be reversed

because its decision to allow the State to reopen its case-in-chief, over Appellant’s

objection, amounted to prejudicial error.” Appellant asserts that he “conceded that venue

was established. * * * Nevertheless, over Appellant’s objection, the Trial Court allowed

the State to reopen its case-in-chief, which resulted in the complaining witness testifying
 -25-

again.” Appellant argues that his “Rule 29 had been overruled, and venue had been

established. By allowing the State to reopen its case, the Trial Court essentially allowed

the State to arbitrarily call upon the complaining witness a second time and improperly

play on the emotions of the jury.”

{¶ 53} As this Court has previously noted:

R.C. 2945.10, titled “Order of proceedings of trial” provides in

relevant part as follows: “(C) The state must first produce its evidence and

the defendant shall then produce [the defendant’s] evidence.” “(D) The state

will then be confined to rebutting evidence, but the Court, for good reason,

in furtherance of justice, may permit evidence to be offered by either side

out of its order.” (Emphasis added.) The general rule is that the question of

opening up a case for the presentation of additional evidence is within the

sound discretion of the trial court, and the court's action will not be disturbed

on appeal unless it appears that the court abused its discretion. Columbus

v. Grant (1981), 1 Ohio App.3d 96.

State v. Swopes, 2d Dist. Montgomery No. 9081, 1986 WL 1053, *3 (Jan. 27, 1986).

{¶ 54} As this Court has noted:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc.,

19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable if

there is no sound reasoning process that would support that decision. AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990). Feldmiller v.
 -26-

Feldmiller, 2d Dist. Montgomery No. 24989, 2012–Ohio–4621, ¶ 7.

Johnson v. Ulmer, 2d Dist. Greene No. 2013 CA 9, 2013–Ohio–4240, ¶ 21.

{¶ 55} We conclude that Appellant’s second assignment of error lacks merit.

Appellant has not established prejudice upon the reopening of the State’s case-in-chief.

Initially, we note that Appellant’s Crim.R. 29 motion was not addressed to venue, hence

his objection to the reopening on that basis must fail. “In State v. Schuyler, 2d Dist. Clark

No. 11 CA 46, 2012-Ohio-2801 * * * [this Court] held that the defendant’s Crim.R. 29

motion asserting that the State failed to prove each element of the offenses was ‘too

general to put the prosecutor and the court on notice of the venue issues.’ Id. at ¶ 17.”

State v. Short, 2d Dist. Montgomery No. 27192, 2017-Ohio-7200, ¶ 25. This Court further

“noted that venue is not a material element of any offense charged and that the venue

and the elements of an offense are separate and distinct matters. Id., citing State v.

Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1342 (1981).” Short, id.

{¶ 56} “ ‘Venue relates to the right of a criminal defendant to be tried in the county

in which the alleged offense occurred.’ State v. Harris, 6th Dist. Fulton No. F-04-005,

2005-Ohio-1779, ¶18; see also Ohio Constitution, Article I, Section 10; R.C. 2901.12.”

State v. Adams, 2d Dist. Greene Nos. 2013 CA 61, 2013 CA 62, 2014-Ohio-3432, ¶ 32.

“ ‘If the state fails to produce evidence of proper venue, then the evidence is insufficient

to sustain a conviction of such offense or offenses.’ State v. Hampton, 134 Ohio St.3d

447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 22.” Adams, id. “ ‘ “[I] it is not essential that the

venue of the crime be proven in express terms, provided it be established by all the facts

and circumstances in the case, beyond a reasonable doubt, that the crime was committed

in the county and state as alleged in the indictment.” ’ ” Adams, id., quoting Hampton, ¶
 -27-

19, quoting State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the

syllabus. Given Appellant’s concession that venue was established, the preferred

course may have been a stipulation on venue. Nevertheless, N.W. had testified the

Hook Rd. address was in Xenia but there was a lack of testimony regarding Greene

County. Thus, the trial court did not err by allowing limited testimony regarding the

county and state. Since an abuse of discretion is not demonstrated in the trial court’s

decision allowing the State to briefly reopen its case to confirm venue, Appellant’s second

assignment of error is overruled.

{¶ 57} Appellant’s third assignment of error is as follows:

THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL.

{¶ 58} Appellant asserts as follows:

In the case at hand, trial counsel for Appellant failed to call any expert

witnesses, failed to conduct effective cross-examination, and deferred his

opening statement. * * * Additionally, trial counsel failed to request a

competency hearing before allowing the complaining witness to testify, who

was ten years old at the time of trial but 8 years old when the alleged events

occurred.

{¶ 59} As this Court has previously noted:

To establish a claim for ineffective assistance of counsel, the

defendant has the burden of demonstrating that: 1) the performance of

defense counsel was seriously flawed and deficient; and 2) there is a

reasonable probability that the result of the defendant's trial or legal
 -28-

proceeding would have been different had defense counsel provided proper

representation. State v. LeGrant, 2d Dist. Miami No. 2013–CA–44, 2014–

Ohio–5803, ¶ 26, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Therefore, to reverse a conviction based

on ineffective assistance of counsel, it must be demonstrated that trial

counsel's conduct fell below an objective standard of reasonableness, and

that counsel's deficiencies were serious enough to create a reasonable

probability that, but for the deficiencies, the result of the trial would have

been different.

State v. Dover, 2d Dist. Clark No. 2013-CA-58, 2015-Ohio-4785, ¶ 7.

{¶ 60} Regarding Appellant’s assertion that defense counsel was ineffective in

failing to call any expert witnesses, he does not specify what type of expert witness should

have been called, or how any expert testimony would have altered the outcome of the

trial. This argument accordingly fails. While Appellant argues that defense counsel’s

cross-examination was ineffective, Appellant does not direct our attention to any place in

the record in support of his assertion. App.R. 16(A)(3) provides that an appellant’s brief

include: “A statement of the assignments of error presented for review, with reference to

the place in the record where each error is reflected.” Appellant’s unsupported assertion

accordingly fails. Regarding defense counsel’s deferred opening statement, opening

statements are not evidence upon which a jury may rely, the jury herein was so instructed,

and we have no basis to conclude that the outcome of the trial court would have been

otherwise if defense counsel provided an opening statement at the start of trial. Finally,

Evid.R. 601 provides that “Every person is competent to be a witness except: (A) * * *
 -29-

children under ten years of age, who appear incapable of receiving just impressions of

the facts and transactions respecting which they are examined, or of relating them truly.”

N.W. testified that she was ten years old at trial, and pursuant to Evid. R. 601(A), she was

competent to testify. Further, her competence is demonstrated by her testimony; she

clearly understood the questions she was asked and provided appropriate responses.

In other words, we have no basis to conclude that defense counsel’s performance was

deficient for failing to request a competency hearing for N.W.

{¶ 61} For the foregoing reasons, we conclude that Appellant has failed to

establish that but for the above alleged deficiencies, the outcome of the trial would have

been different. Appellant’s third assignment of error is overruled.

{¶ 62} Appellant’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT OVERRULED ITS MOTION TO DISMISS

PURSUANT TO CRIM.R. 29.

{¶ 63} According to Appellant, “the State did not prove each element beyond a

reasonable doubt. The State’s case was largely based on testimony and pictures from

the cell phone where the perpetrator is never shown. Therefore, Appellant’s Motion for

Judgment of Acquittal was improperly denied.” Although the State does not raise this

issue, we note that defense counsel failed to renew his Crim.R. 29 motion for acquittal at

the close of all the evidence at trial. “ ‘An accused waives his or her right to a directed

verdict of acquittal at the close of the state's case by thereafter introducing evidence and

then failing to renew the motion at the close of all the evidence.’ (Citation omitted.) State

v. Butler, 10th Dist. Franklin No. 98AP–55, 1998 WL 733762, *4 (Oct. 22, 1998),
 -30-

citing Dayton v. Rogers, 60 Ohio St.2d 162, 163, 398 N.E.2d 781 (1979). [Rogers

overruled on other grounds, State v. Lazzaro, 76 Ohio St.3d 261, 667 N.E.2d 684 (1996).]”

State v. Welch, 2d Dist. Montgomery No. 25921, 2014-Ohio-3349, ¶ 9. The right to

challenge the trial court’s decision on Appellant’s motion for acquittal was waived by

defense counsel. As in Welch, the trial court’s decision is subject to reversal only if the

trial court’s action rises to the level of plain error. Welch, id., citing State v. Engle, 2d Dist.

Montgomery No. 15293, 1997 WL 205994, *2 (April 25, 1997). As this Court further

noted in Welch, “ ‘[i]n order to find plain error, this court must be convinced that, but for

the error the outcome of the proceeding would clearly have been different.’ (Citation

omitted.) Id.” N.W. testified that Appellant committed the offenses against her, the jury

clearly credited her testimony over his, and we have no basis to conclude that the

outcome of the trial would have been different if defense counsel renewed his motion for

acquittal. Accordingly, Appellant’s fourth assignment of error is overruled.

{¶ 64} Appellant’s fifth assignment of error is as follows:

THE JUDGMENTS OF CONVICTION ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF

APPELLANT’S RIGHT TO DUE PROCESS OF LAW.

{¶ 65} Appellant asserts as follows:

In the case at hand, the State produced photos where the perpetrator

was never shown. * * * Moreover, the State’s main witnesses were not

credible. They produced the complaining witness who was 8 years old at

the time the alleged events occurred, and 10 years old at the time of trial.

Additionally, [W.,] one of the State’s primary witnesses, revealed that he
 -31-

had been to prison and has multiple felony convictions for crimes such as

burglary, possession of criminal tools, vandalism, and theft. Therefore, the

jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.

{¶ 66} As this Court has previously noted:

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, 678 N.E.2d 541

(1997). When presented with a challenge to the manifest weight of the

evidence, an appellate court may not 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. at 387. “A judgment should

be reversed as being against the manifest weight of the evidence ‘only in

the exceptional case in which the evidence weighs heavily against the

conviction.’ “ Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

In State v. Vencill, 10th Dist. Franklin No. 11AP–1050, 2012–Ohio–

4419, the Tenth District Court of Appeals observed that:

In addressing a manifest weight of the evidence argument, we are

able to consider the credibility of the witnesses. State v. Cattledge, 10th
 -32-

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 trier of fact's determination of witness credibility.

(Citations omitted).

Vencill, at ¶ 11.

State v. Stevenson, 2d Dist. Montgomery No. 26583, 2016-Ohio-321, ¶ 8-9.

{¶ 67} R.C. 2907.02 proscribes rape and provides: “(A)(1) No person shall engage

in sexual conduct with another who is not the spouse of the offender * * * when * * * (b)

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

age of the other person.” “Sexual conduct” includes fellatio. R.C. 2907.01(A). R.C.

2907.05 proscribes gross sexual imposition and provides: “(A) No person shall * * * cause

another, not the spouse of the offender, to have sexual contact with the offender * * *

when * * * (4) The other person * * * is less than thirteen years of age, whether or not the

offender knows the age of that person.” “Sexual contact” means “any touching of an

erogenous zone of another, including the * * * genitals * * *.” R.C. 2907.01(B). Finally,

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

and provides:

(A) No person shall do any of the following:

(1) Photograph any minor who is not the person's child or ward in a
 -33-

state of nudity, or create, direct, produce, or transfer any material or

performance that shows the minor in a state of nudity, unless both of the

following apply:

(a) The material or performance is, or is to be, sold, disseminated,

displayed, possessed, controlled, brought or caused to be brought into this

state, or presented for a bona fide artistic, medical, scientific, educational,

religious, governmental, judicial, or other proper purpose, by or to a

physician, psychologist, sociologist, scientist, teacher, person pursuing

bona fide studies or research, librarian, member of the clergy, prosecutor,

judge, or other person having a proper interest in the material or

performance;

(b) The minor's parents, guardian, or custodian consents in writing to

the photographing of the minor, to the use of the minor in the material or

performance, or to the transfer of the material and to the specific manner in

which the material or performance is to be used.

{¶ 68} Regarding Appellant’s rape conviction, V.W. identified N.W.’s face and

Esmeralda shirt in Exhibit 45, and N.W. testified that Exhibit 45 depicts “[m]y mouth

sucking [Appellant’s] privacy,” or penis. Regarding Appellant’s conviction for gross

sexual imposition, V.W. identified N.W.’s face and “her Peace shirt” in Exhibit 43, and

N.W. testified that Exhibit 43 depicts her “[h]olding [Appellant’s] privacy” or penis. N.W.

stated that she “had to grab it and rub it. And hold it.” Regarding Appellant’s illegal use

of a minor in nudity-oriented material, Scott testified that Exhibit 32 depicts a juvenile from

the rear “showing her buttocks,” and V.W. identified N.W.’s “hair, her butt” therein. Scott
 -34-

testified that Exhibit 37 depicts “a juvenile female bending over showing her buttocks,”

and V.W. identified “the back of [N.W.] and her butt” therein. Scott testified that Exhibit

47 depicts “a possible juvenile female showing full frontal nudity,” and V.W. identified

N.W. therein and testified that photo was taken in the living room of the Hook Road home.

Scott testified that Exhibit 49 depicts “a juvenile in the shower, full frontal nudity,” and

N.W. testified that she is depicted in the image and that Appellant took the picture.

{¶ 69} Having thoroughly reviewed the entire record, we have no basis to conclude

that the jury lost its way such that a manifest injustice resulted. In other words,

Appellant’s convictions for rape, gross sexual imposition, and illegal use of a minor in

nudity-oriented material are not against the manifest weight of the evidence. Appellant’s

fifth assigned error is accordingly overruled.

{¶ 70} Appellant’s sixth and final assigned error is as follows:

THE TRIAL COURT IMPOSED A SENTENCE THAT WAS

CONTRARY TO LAW BECAUSE IT IMPOSED CONSECUTIVE

SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT.

{¶ 71} Appellant asserts as follows:

In the case at bar, Appellant was convicted of both rape and gross

sexual imposition. * * * “Sexual conduct” necessarily includes “sexual

contact.” Thus, having sexual conduct with a person under 13 years of age

necessarily requires having sexual contact. Finally, these convictions

arise from the same conduct. Therefore, Appellant’s convictions of rape

and gross sexual imposition are allied offenses of similar import and

accordingly the sentence must be reversed.
 -35-

{¶ 72} As this Court has previously noted:

R.C. 2941.25 provides:

“(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may

be convicted of only one.

“(B) Where the defendant's conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus as

to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.”

A defendant's failure to object to convictions or sentencing at trial

results in a waiver of an allied offense claim on appeal absent plain error.

State v. Comen (1990), 50 Ohio St.3d 206, 211, 553 N.E.2d 640; State v.

Brown (1993), 90 Ohio App.3d 674, 630 N.E.2d 397; State v. Hipple (May

21, 1999), Miami App. No. 98CA49; State v. Burch (Sept. 29,1995),

Montgomery App. No. 14488. An appellate court has discretion to notice

plain error. State v. Wickline (1990), 50 Ohio St.3d 114, 120, 552 N.E.2d

913. Plain error does not exist unless it can be said that but for the error,

the outcome of the trial would have been different. State v. Long (1978),

53 Ohio St.2d 91, 97, 372 N.E.2d 804.

State v. Denham, 2d Dist. Greene No. 2001 CA 105, 2002-Ohio-3912, ¶ 7-10.
 -36-

{¶ 73} The Ohio Supreme Court explained the analysis for determining whether

multiple crimes constitute allied offenses of similar import as folllows:

When the defendant's conduct constitutes a single offense, the

defendant may be convicted and punished only for that offense. When the

conduct supports more than one offense, however, a court must conduct an

analysis of allied offenses of similar import to determine whether the

offenses merge or whether the defendant may be convicted of separate

offenses. R.C. 2941.25(B).

A trial court and the reviewing court on appeal when considering

whether there are allied offenses that merge into a single conviction

under R.C. 2941.25(A) must first take into account the conduct of the

defendant. In other words, how were the offenses committed? If any of the

following is true, the offenses cannot merge and the defendant may be

convicted and sentenced for multiple offenses: (1) the offenses are

dissimilar in import or significance—in other words, each offense caused

separate, identifiable harm, (2) the offenses were committed separately, or

(3) the offenses were committed with separate animus or motivation.

At its heart, the allied-offense analysis is dependent upon the facts

of a case because R.C. 2941.25 focuses on the defendant's conduct. The

evidence at trial or during a plea or sentencing hearing will reveal whether

the offenses have similar import. When a defendant's conduct victimizes

more than one person, the harm for each person is separate and distinct,

and therefore, the defendant can be convicted of multiple counts. Also, a
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defendant's conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 24-26.

{¶ 74} We conclude that plain error is not demonstrated since Appellant’s rape

offense and gross sexual imposition offense are not allied offenses of similar import.

N.W. testified that the rape and gross sexual imposition offenses were committed

separately, on different days. Accordingly, Appellant was properly sentenced

consecutively. Appellant’s sixth assignment of error is overruled.

{¶ 75} Having overruled Appellant’s assigned errors, the judgment of the trial court

is affirmed.

.............

HALL, J. and TUCKER, J., concur.

Copies mailed to:

Nathaniel R. Luken
Thomas M. Kollin
Hon. Michael A. Buckwalter