[Cite as State v. McCoy,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-18-23

v.

JOSHUA MCCOY, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 17-CR-0532

Judgment Affirmed

Date of Decision: September 21, 2020

APPEARANCES:

Todd A. Workman for Appellant

Nathan R. Heiser for Appellee Case No. 9-18-23

PRESTON, J.

{¶1} Defendant-appellant, Joshua McCoy (“McCoy”), appeals the July 16,

2018 judgment of sentence of the Marion County Court of Common Pleas. For the

reasons that follow, we affirm.

{¶2} This case arises from a December 15, 2017 incident in which McCoy

struck and allegedly sexually assaulted his five-year-old niece, J.G. On December

27, 2017, the Marion County Grand Jury indicted McCoy on Count One of rape in

violation of R.C. 2907.02(A)(2), a first-degree felony and Count Two of rape in

violation of R.C. 2907.02(A)(1)(b), a first-degree felony. (Doc. No. 1). On January

2, 2018, McCoy appeared for arraignment and pleaded not guilty to the counts of

the indictment. (Doc. No. 7).

{¶3} On April 19, 2018, the Marion County Grand Jury issued a superseding

indictment which included five counts: Count One of rape in violation of R.C.

2907.02(A)(1)(b), a first-degree felony; Count Two of rape in violation of R.C.

2907.02(A)(1)(b), a first-degree felony; Count Three of abduction in violation of

R.C. 2905.02(A)(2), a third-degree felony; Count Four of endangering children in

violation of R.C. 2919.22(B)(2), a third-degree felony; and Count Five of felonious

assault in violation of R.C. 2903.11(A)(1), a second-degree felony. (Doc. No. 52).

Counts One and Two included the specification that the victim was less than ten

years of age at the time of the offense. (Id.). Count One specified that McCoy

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purposely compelled the victim to submit by force or threat of force. (Id.). On April

23, 2018, McCoy appeared for arraignment and pleaded not guilty to the counts of

the superseding indictment. (Doc. No. 69).

{¶4} The case proceeded to a jury trial on April 24-26, 2018. (Doc. No. 113).

At the close of the State’s case, McCoy made a motion for acquittal under Crim.R.

29, which the trial court denied. (Apr. 24-26, 2018 Tr. at 445-449). On April 26,

2018, the jury found McCoy guilty of all counts. (Doc. Nos. 75, 76, 77, 78, 79,

113). With respect to Count One, the jury found that: (1) McCoy did purposely

compel the victim to submit by force or threat of force and (2) the victim was less

than ten years of age when the offense occurred. (Doc. No. 75). With respect to

Count Two, the jury found that the victim was less than ten years of age when the

offense occurred. (Doc. No. 76). The trial court accepted the jury’s verdicts and

found McCoy guilty of all counts. (Doc. No. 113).

{¶5} A sentencing hearing was held on July 10, 2018. (Id.). Pursuant to the

agreement of the parties, the trial court found that Counts One, Two, and Three

merged for the purpose of sentencing. (July 10, 2018 Tr. at 12-13); (Doc. No. 113).

The trial court further found that Counts Four and Five merged for the purpose of

sentencing. (July 10, 2018 Tr. at 13); (Doc. No. 113). Accordingly, the State elected

to sentence McCoy on Counts One and Five. (Doc. No. 113). The trial court

sentenced McCoy to a sentence of life imprisonment without parole on Count One

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and eight years in prison on Count Five, to be served consecutively. (Id.). The trial

court also designated McCoy a Tier III sexual offender and advised him of his duties

to register. (Id.). The trial court then dismissed Counts Two, Three, and Four.

(Id.).1 On July 16, 2018, the trial court filed its judgment entry of sentence. (Id.).

{¶6} On July 18, 2018, McCoy filed his notice of appeal. (Doc. No. 114).

He raises four assignments of error for our review. We consider his assignments of

error in the order presented and, for ease of discussion, we will address McCoy’s

first two assignments of error together.

Assignment of Error No. I

The trial court/jury erred to the prejudice of the Defendant/Appellant in entering guilty verdicts to the one count of Rape, the one count of Abduction, and the one count of Felonious Assault as the evidence was insufficient to support the convictions.

Assignment of Error No. II

The trial court/jury erred to the prejudice of the Defendant/Appellant in entering a guilty verdict to the one count of Rape, the one count of Abduction, and the one count of Felonious Assault as they are not supported by the manifest weight of the evidence.

1 The Supreme Court of Ohio has instructed that the procedure to be used in merging allied offenses for sentencing does not involve dismissing the determination of guilt for the merged offense. See State v. Whitfield,

,

, superseded by state statute on other grounds, United States v. Mackey, S.D.Ohio No. 3:04cr00096,

, *2 (Nov. 20, 2014), fn. 4. (“Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant’s guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing. Thus, the trial court should not vacate or dismiss the guilt determination.”). Accordingly, the trial court did not act in accordance with R.C. 2941.25(A) by dismissing the merged counts. However, because the State did not object to the trial court’s dismissal of the merged counts and because McCoy is not prejudiced by the trial court’s dismissal of the merged counts, we choose not to address the issue further.

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{¶7} In his first assignment of error, McCoy argues that his rape, abduction,

and felonious assault convictions are based on insufficient evidence. In his second

assignment of error, McCoy argues that the same convictions are against the

manifest weight of the evidence.

{¶8} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,

(1997). Accordingly, we address each legal concept individually.

{¶9} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks,

(1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.”

“In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

,

citing State v. Williams,

,

(1st Dist.).

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See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing

.

{¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine 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.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

(1967). When applying the manifest-weight standard

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v. Hunter,

,

.

{¶11} “Circumstantial evidence and direct evidence inherently possess the

same probative value and therefore should be subjected to the same standard of

proof.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “A conviction can

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be sustained based on circumstantial evidence alone.” State v. Franklin,

(1991). “[I]n some instances, certain facts can only be established

by circumstantial evidence” and a conviction based thereon “is no less sound than

one based on direct evidence.” State v. Smith, 12th Dist. Butler No. CA2008-03-

064,

, ¶ 80. “If the state ‘relies on circumstantial evidence to prove

an [essential] element of the offense charged, there is no [requirement that the

evidence must be] irreconcilable with any reasonable theory of innocence in order

to support a conviction[,]’ so long as the jury is properly instructed as to the burden

of proof, i.e., beyond a reasonable doubt.” State v. Bates, 6th Dist. Williams No.

WM-12-002,

, ¶ 50, quoting Jenks at paragraph one of the syllabus.

{¶12} As an initial matter, although McCoy challenges the sufficiency and

weight of the evidence supporting the jury’s findings of guilt as to the abduction

count under Count Three of the indictment, we need not address those arguments.

See State v. Miller, 3d Dist. Logan No. 8-19-02,

. “‘When

counts in an indictment are allied offenses, and there is sufficient evidence to

support the offense on which the state elects to have the defendant sentenced, the

appellate court need not consider the sufficiency [or weight] of the evidence on the

count that is subject to merger because any error would be harmless’ beyond a

reasonable doubt.”

quoting State v. Ramos, 8th Dist. Cuyahoga No. 103596,

, citing State v. Powell,

(1990),

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superseded by state constitutional amendment on other grounds, Smith,

, fn. 4 and citing State v. Henderson, 7th Dist. Mahoning No. 15 MA

0137,

, ¶ 9. Accordingly, error, if any, with respect to the

sufficiency or weight of the evidence supporting McCoy’s abduction conviction is

harmless beyond a reasonable doubt because that count was merged with Count

One. Specifically, McCoy was not convicted of abduction because the trial court

merged that offense for the purpose of sentencing. Id. at ¶ 12, citing State v. Turner,

2d Dist. Clark No. 2017-CA-78,

, ¶ 22 and Ramos at ¶ 16. See State

v. Whitfield,

,

, superseded by state statute on

other grounds, United States v. Mackey, S.D.Ohio No. 3:04cr00096,

, *2 (Nov. 20, 2014), fn. 4, quoting R.C. 2941.25(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.’”) “Indeed, the Supreme

Court of Ohio has explicitly stated that a ‘conviction’ requires both a finding of guilt

and a sentence.” Miller at ¶ 12, citing Ramos at ¶ 16, citing State v. Henderson,

(1979). Accordingly, we will not address McCoy’s arguments

challenging the sufficiency and weight of the evidence supporting his abduction

conviction under Count Three. See Ramos at ¶ 13, 18.

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{¶13} McCoy was convicted of rape in violation of R.C. 2907.02(A)(1)(b)

and felonious assault in violation of R.C. 2903.11(A)(1). The offense of rape is

codified under R.C. 2907.02, which provides, in pertinent part:

(A)(1) No person shall engage in sexual conduct with another person

who is not the spouse of the offender * * *, when any of the following

applies:

***

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

the offender knows the age of the other person.

R.C. 2907.02(A)(1)(b). “In order to prove rape under R.C. 2907.02(A)(1)(b), the

State must prove the offender engaged in sexual conduct with a person less than

thirteen years of age, whether or not the offender knew the age of the other person.”

State v. Jones, 2d Dist. Montgomery No. 26289,

. “‘Sexual

conduct’ means vaginal intercourse between a male and female; * * * and, without

privilege to do so, the insertion, however slight, of any part of the body or any

instrument, apparatus, or other object into the vaginal * * *opening of another[.]”

R.C. 2907.01(A). “Penetration, however slight, is sufficient to complete vaginal *

* * intercourse.”

{¶14} The jury also found that two specifications applied to McCoy’s rape

conviction. The first specification alleged that the victim was less than ten years of

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age at the time of the offense. The second specification alleged that McCoy

purposely compelled the victim to submit by force or threat of force. “A person acts

purposely when it is the person’s specific intention to cause a certain result, or, when

the gist of the offense is a prohibition against conduct of a certain nature, regardless

of what the offender intends to accomplish thereby, it is the offender’s specific

intention to engage in conduct of that nature.” R.C. 2901.22(A). “‘Force’ means

any violence, compulsion, or constraint physically exerted by any means upon or

against a person or thing.” R.C. 2901.01(A)(1). “Force or the threat of force ‘can

be inferred from the circumstances surrounding sexual conduct.’” State v. Kaufman,

,

(7th Dist.), quoting State v. Schaim,

(1992), paragraph one of the syllabus.

{¶15} The offense of felonious assault is codified in R.C. 2903.11, which

provides, in relevant part: “No person shall knowingly * * * [c]ause serious physical

harm to another * * *.” R.C. 2903.11(A)(1). The requisite culpable mental state

for felonious assault is “knowingly.” “A person acts knowingly, regardless of

purpose, when the person is aware that the person’s conduct will probably cause a

certain result or will probably be of a certain nature. A person has knowledge of

circumstances when the person is aware that such circumstances probably exist.”

R.C. 2901.22(B). “Serious physical harm” is any of the following:

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(a) Any mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial

incapacity;

(d) Any physical harm that involves some permanent disfigurement

or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as

to result in substantial suffering or that involves any degree of

prolonged or intractable pain.

R.C. 2901.01(A)(5).

{¶16} At trial, the State first offered the testimony of Jeremy Gilbert

(“Gilbert”), McCoy’s brother and J.G.’s father. (Apr. 24-26, 2018 Tr. at 152-154).

Gilbert testified that his daughter, J.G., was born in 2012 and was five years old at

the time of the trial and at the time of the relevant events. (Id. at 153).

{¶17} Gilbert also testified to a series of events that occurred on December

14-15, 2017. (Id. at 154). Gilbert stated that he, J.G., and McCoy had moved into

a house at 626 Park Street in Marion, Ohio several days prior to December 14, 2017.

(Id. at 154-156). According to Gilbert, he and McCoy spent the evening of

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December 14, 2017 drinking alcohol. (Id. at 156-157). At approximately 1:00 a.m.

on December 15, 2017, Gilbert left J.G. and McCoy in the house alone together

when he drove to his sister’s house in Lima, approximately one hour away, to run

an errand. (Id. at 157-158). Gilbert testified that he had nearly reached his

destination when he received three “hysterical” telephone calls from McCoy. (Id.

at 158-160). In the telephone calls, McCoy explained to Gilbert that McCoy woke

up to J.G. screaming and found an intruder in her bedroom. (Id. at 159). McCoy

told Gilbert that he fought the intruder off of J.G. and chased the intruder out of the

house. (Id.). Gilbert testified that he did not immediately return to the house after

receiving the calls from McCoy because he was almost to his destination and

believed that his errand would be completed quickly. (Id. at 160). However, Gilbert

testified that once he arrived at his sister’s house in Lima, he was arrested for

violating a civil protection order. (Id. at 160-161).

{¶18} On cross-examination, Gilbert admitted that when he left the house to

drive to his sister’s house in Lima, both he and McCoy were “pretty intoxicated.”

(Id. at 165-167). Gilbert stated that when he left the house, J.G. was in bed and

McCoy was still awake. (Id. at 167).

{¶19} Next, Ryan Strange (“Strange”), McCoy’s cousin, testified that he

received a telephone call from McCoy at 7:28 a.m. on December 15, 2017 asking

him to drive McCoy to a court appointment in Lima that morning. (Apr. 24-26,

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2018 Tr. at 169-171). McCoy also told Strange that J.G. had been hurt during the

night and that he found a man on top of J.G., hitting her. (Id. at 170-171). In a

subsequent telephone call, McCoy elaborated on the details of the attack and told

Strange that he found the assailant on top of J.G., attacking the child, and that he

chased the assailant out of the house and stopped pursuit when he fell and twisted

his ankle. (Id. at 171-172, 177).

{¶20} Strange arrived at 626 Park Street and observed J.G. sleeping on the

couch. (Id. at 174-175). Strange immediately noticed that J.G. had two black eyes.

(Id. at 175). Strange identified State’s Exhibit 20 as a photograph of J.G. with two

black eyes. (Id. at 175-176). (See State’s Ex. 20). Strange stated that although J.G.

is depicted with two black eyes in State’s Exhibit 20, she actually looks “a lot better”

in the photograph than she did when he observed her on the morning of December

15, 2017. (Apr. 24-26, 2018 Tr. at 176). (See State’s Ex. 20). Specifically, in the

photograph, her eyes are depicted with some redness around them, but when he

observed J.G., her eyes were “very dark” and black. (Apr. 24-26, 2018 Tr. at 176).

(See State’s Ex. 20). Strange further stated that J.G. would not speak to him. (Apr.

24-26, 2018 Tr. at 175).

{¶21} Strange testified that right before he, McCoy, and J.G. entered

Strange’s car to begin the drive to Lima, Strange observed McCoy hug J.G. and tell

her, “I’m sorry that I couldn’t get the bad man. I never wanted the bad man to hurt

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you. I’ll make sure this never happens again.” (Id. at 181). Strange stated that

during this exchange, J.G. appeared shaken up and scared. (Id.).

{¶22} Strange stated that after they dropped off McCoy at the courthouse in

Lima, Strange and J.G. waited in his car in a parking lot nearby. (Id. at 183).

Strange stated that he was not aware that people were looking for J.G. until several

law enforcement officers approached his vehicle searching for J.G. (Id. at 183, 185).

{¶23} The State’s next witness was Lieutenant Chad Lauck (“Lieutenant

Lauck”), a patrol supervisor with the Allen County Sheriff’s Department. (Apr. 24-

26, 2018 Tr. at 191-192). Lieutenant Lauck testified that on December 15, 2017, he

received a message from a woman who was concerned about her child’s

whereabouts and well-being after learning that the child’s father, Gilbert, had been

arrested by the agency overnight. (Id. at 192-194). After contacting several of

Gilbert’s family members, Lieutenant Lauck spoke to Gilbert’s sister, who notified

him that McCoy was en route to the Allen County Municipal Court for a court

appearance and that J.G. and another man were in the car with him. (Id. at 194-

195). Gilbert’s sister stated that the little girl appeared to be injured. (Id.).

{¶24} Lieutenant Lauck testified that he was concerned about the girl’s

safety, so he went to the municipal court to speak to McCoy. (Id. at 195).

Lieutenant Lauck located McCoy and inquired into the whereabouts of the girl. (Id.

at 196-197). According to Lieutenant Lauck, McCoy initially told him that the girl

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was in Marion. (Id. at 197). However, eventually, McCoy reluctantly admitted that

the girl was in a car in the parking lot. (Id.). McCoy told Lieutenant Lauck that the

girl had been beaten by an intruder in Marion. (Id. at 197-198).

{¶25} At that time, Lieutenant Lauck and several other law enforcement

officers located Strange and J.G. in a vehicle nearby the courthouse. (Id. at 198-

199). Lieutenant Lauck testified that he observed J.G. in the back seat of the vehicle

and was concerned because her face appeared swollen and she had discoloration

around her eyes. (Id. at 199-200). Lieutenant Lauck testified that the girl depicted

in State’s Exhibit 20 was the girl that he observed in the back seat of the car. (Id. at

200). (See State’s Ex. 20). Lieutenant Lauck testified that one of the law

enforcement officers at the scene carried the girl into the Lima Police Department.

(Apr. 24-26, 2018 Tr. at 200-201). When they arrived in the building, one of the

officers called for an ambulance. (Id.).

{¶26} On cross-examination, Lieutenant Lauck stated that when he observed

the girl in the car, it was “quite apparent there was something wrong.” (Id. at 203).

However, according to Lieutenant Lauck, she was not talking. (Id. at 204).

{¶27} Next, the State offered the testimony of Investigator Deana Lauck

(“Investigator Lauck”), an investigator with the Lima Police Department. (Id. at

206-207). Investigator Lauck testified that she was on duty on December 15, 2017,

when she observed several law enforcement officers bringing J.G. down the

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hallway. (Id. at 207-208). Investigator Lauck testified that the individual depicted

in State’s Exhibit 20 was J.G. (Id. at 208). (See State’s Ex. 20). Investigator Lauck

stated that J.G. appeared “disheveled” and it was immediately apparent to

Investigator Lauck that the girl “had been beaten” because she had injuries to both

of her eyes. (Apr. 24-26, 2018 Tr. at 208-210). Investigator Lauck also noticed an

injury to J.G.’s mouth or lip. (Id. at 209).

{¶28} After observing J.G.’s condition, Investigator Lauck attempted to talk

to J.G. and noted that the child “seemed to be very dazed.” (Id. at 209). Investigator

Lauck testified that J.G. did not appear interested in acknowledging the male law

enforcement officers, but J.G would acknowledge her by nodding or shaking her

head in response to questions. (Id. at 209-210). Investigator Lauck testified that

J.G. seemed “like she was in shock.” (Id. at 211). Shortly thereafter, medical

personnel arrived and J.G. “shut down.” (Id.). However, J.G. continued to

acknowledge Investigator Lauck, so she accompanied J.G. to the hospital and stayed

with her the entire time that she was there. (Id. at 211-213).

{¶29} Lieutenant Ed Brown (“Lieutenant Brown”), an officer with the

Marion County Sheriff’s Office, testified that on the evening of December 15, 2017

he was dispatched to 626 Park Street to take photographs and collect evidence. (Id.

at 244-245, 247).

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{¶30} Lieutenant Brown identified State’s Exhibit 24 as a photograph of a

pile of objects located on a bed. (Id. at 254). (See State’s Ex. 24). Included in the

pile of objects in the photograph were two white pillowcases and a pair of girl’s

underwear that were stained with what Lieutenant Brown suspected was blood.

(Apr. 24-26, 2018 Tr. at 254-257). (See State’s Ex. 24). Lieutenant Brown

identified State’s Exhibit 24-A as a photograph of the underwear. (Apr. 24-26, 2018

Tr. at 257-258). (See State’s Ex. 24-A). Lieutenant Brown identified State’s Exhibit

9 as the child-sized underwear that he collected as potential evidence from 626 Park

Street. (Apr. 24-26, 2018 Tr. at 258-259). (See State’s Ex. 9). Lieutenant Brown

showed the jury the suspected blood stains on the underwear, located inside the

crotch and through the back of the garment. (Apr. 24-26, 2018 Tr. at 261); (State’s

Ex. 9). Lieutenant Brown identified State’s Exhibit 10 as two white pillowcases,

stained with suspected blood, which he collected from 626 Park Street on December

15, 2017. (Apr. 24-26, 2018 Tr. at 261-263). (See State’s Ex. 10). Lieutenant

Brown also identified State’s Exhibit 11 and State’s Exhibit 12 as two blankets

covered in suspected vomit, which he collected as potential evidence from 626 Park

Street on December 15, 2017. (Apr. 24-26, 2018 Tr. at 263-266). (See State’s Exs.

11, 12).

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{¶31} On cross-examination, Lieutenant Brown testified that the underwear,

pillowcases, and blankets he collected from 626 Park Street on December 15, 2018

were not sent to the laboratory for testing. (Apr. 24-26, 2018 Tr. at 269-272).

{¶32} The State next offered the testimony of Rhonda Norris (“Norris”), a

SANE at St. Rita’s Medical Center (“St. Rita’s”). (Id. at 280-281). The State moved

the trial court to recognize Norris as an expert in sexual assault nursing examination,

and the trial court granted the State’s motion without objection. (Id. at 284).

{¶33} Norris testified that on December 15, 2017, she was called to St. Rita’s

to assess a young girl who had been found in the back seat of a car and had sustained

some injuries. (Id. at 284-285). When Norris arrived at the hospital, she came into

contact with J.G. and immediately observed that the young girl had “significant

injuries to the face.” (Id. at 285-286). Norris testified that she tried to talk to J.G.

and build a rapport. (Id. at 293). However, J.G. was “very quiet” and reluctant to

talk to Norris. (Id. at 289, 293). Accordingly, J.G. would not disclose to Norris

what had happened to her or how she sustained the injuries. (Id. at 293).

{¶34} Norris stated that she performed a sexual assault examination on J.G.

(Id. at 290, 293). Norris identified State’s Exhibit 13 as a printout of J.G.’s medical

records from her visit to St. Rita’s on December 15, 2017. (Id. at 287-288). (See

State’s Ex. 13). Norris further identified State’s Exhibit 13-A as the documentation

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relating to her sexual assault examination of J.G. (Apr. 24-26, 2018 Tr. at 291-293).

(See State’s Ex. 13-A).

{¶35} Norris also identified State’s Exhibit 14 an electronic copy of the

photographs that she took during her sexual assault examination of J.G. on

December 15, 2017. (Apr. 24-26, 2018 Tr. at 294-295). (See State’s Ex. 14). Norris

described the injuries she observed on J.G.’s body during the sexual assault

examination and identified the injuries on the photographs contained in State’s

Exhibit 14. (Apr. 24-26, 2018 Tr. at 298-307). (See State’s Ex. 14).

{¶36} Norris testified that she observed heavy bruising around J.G.’s eyes

and neck. (Apr. 24-26, 2018 Tr. at 298, 305). (See State’s Ex. 14). Norris stated

that the bruising around J.G.’s eyes appeared to be the result of blunt force trauma.

(Apr. 24-26, 2018 Tr. at 305). (See State’s Ex. 14). Specifically, the bruising on

both sides of the face indicated to Norris that J.G. may have been hit on the nose.

(Apr. 24-26, 2018 Tr. at 307). (See State’s Ex. 14). Additionally, J.G. had dried

blood on both sides of her nose, indicating a bloody nose. (Apr. 24-26, 2018 Tr. at

306). (See State’s Ex. 14). Norris also described J.G.’s face as being swollen. (Apr.

24-26, 2018 Tr. at 306). (See State’s Ex. 14).

{¶37} Additionally, Norris observed petechiae on J.G.’s upper chest, neck,

conjunctiva, and the skin immediately surrounding her eyes. (Apr. 24-26, 2018 Tr.

at 303-304). (See State’s Ex. 14). Norris stated that petechiae are small dots that

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appear when capillaries rupture and blood leaks into the skin. (Apr. 24-26, 2018 Tr.

at 302-303). Norris testified that when an individual has his or her airway

obstructed, either through strangulation or because someone is covering the mouth

and nose, the action puts pressure on the blood vessels. (Id. at 302-303). When the

pressure becomes too great, the blood vessels burst, causing petechiae. (Id.). With

respect to the petechiae observed on J.G.’s eyes, Norris testified that the ruptured

blood vessels she observed were “actually quite large for being petechiae,” and are

therefore indicative that J.G.’s airway was restricted at some point in time, whether

through strangulation or having her mouth and nose covered. (Id. at 301-302). (See

State’s Ex. 14). Norris also testified that the petechiae observed on J.G.’s neck are

significant because it “very well could be” the result of someone putting his or her

hands around J.G.’s neck. (Apr. 24-26, 2018 Tr. at 300-301). (See State’s Ex. 14).

Moreover, Norris stated that, in her experience, the petechiae she observed on J.G.’s

body were “significant” compared to petechiae she has observed on other patients.

(Apr. 24-26, 2018 Tr. at 304).

{¶38} Norris testified that she performed a genital examination on J.G. and

observed no injuries to J.G.’s genitals. (Id. at 314). However, Norris stated that in

her experience performing sexual assault examinations, it is not common for victims

of sexual assault, particularly children, to have injuries to their genitals. (Id. at 314-

315). Norris also observed J.G.’s hymen, which is a transparent piece of tissue

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inside the vagina. (Id. at 315, 318). Norris testified that she did not note any injuries

to J.G.’s hymen. (Id. at 318). However, Norris stated that a young girl of J.G.’s age

could have her vagina penetrated and her hymen remain intact. (Id. at 318). Norris

testified that several factors could account for a lack of visual injury to the hymen

of an individual who had been sexually penetrated. (Id.). First, in a prepubescent

female, like J.G., the hymen is very vascular and tends to heal very quickly

following injury. (Id. at 315-318). Additionally, Norris stated that a smaller penis

that is not completely erect could penetrate the hymen without causing injury. (Id.

at 318-319). Finally, Norris stated that one can penetrate the vagina without

touching, or even coming near, the hymen. (Id. at 319).

{¶39} As part of her examination, Norris completed a sexual assault evidence

collection kit. (Id. at 307). Norris identified State’s Exhibit 2 as the sexual assault

evidence collection kit relating to her December 15, 2017 examination of J.G. (Id.

at 308-309). (See State’s Ex. 2). Included in State’s Exhibit 2 were a copy of State’s

Exhibit 13-A, vaginal smears, a DNA swab of J.G., and perianal, oral, and fingernail

swabs that Norris took during her examination of J.G. (Apr. 24-26, 2018 Tr. at 308-

311); (State’s Ex. 2). Norris noted that J.G. was not wearing underwear when she

arrived at the hospital. (Apr. 24-26, 2018 Tr. at 312). Accordingly, Norris was

unable to collect J.G.’s underwear, which is something that is typically done during

a sexual assault examination. (Id.). However, Norris collected the pants that J.G.

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was wearing on December 15, 2017 at St. Rita’s. (Id. at 312-313). Norris identified

the pants she collected from J.G. as State’s Exhibit 4. (Id.). (See State’s Ex. 4).

Norris recounted that when she took the pants off of J.G., she noticed that J.G. had

been wearing the pants inside out. (Apr. 24-26, 2018 Tr. at 313).

{¶40} On cross-examination, Norris confirmed that during her examination

she used several instruments that allow her to more easily observe injuries to the

genitals and the presence of bodily fluids, such as semen, pre-ejaculate, and blood.

(Id. at 321-324). Norris reviewed State’s Exhibit 13-A and confirmed that she

documented “[n]o acute injuries” with respect to J.G.’s genital region, including

swelling, tearing, abrasions, or bruising. (Id. at 333-334). (See State’s Ex. 13-A).

Norris testified that although tearing, bruising, and swelling of the vaginal tissue

can be possible evidence of sexual assault, she clarified that it is “not usual” to

observe such evidence during sexual assault examinations. (Apr. 24-26, 2018 Tr.

at 324-325). Norris also confirmed that she did not observe any possible dried

blood, possible dried semen or seminal fluid, or foreign pubic hairs during her

examination of J.G. (Id. at 334). (See State’s Ex. 13-A).

{¶41} Although petechiae can be caused by strangulation, Norris confirmed

that there are other causes of petechiae, such as an “infectious” or “noninfectious

condition” and physical trauma. (Apr. 24-26, 2018 Tr. at 334-335). Norris stated

that it is possible for excessive coughing to cause petechiae, but clarified that the

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coughing would have to be “[r]eally harsh.” (Id. at 335). Norris also confirmed that

petechiae can be caused by excessive crying, but conditioned that it would have to

be “very, very harsh crying.” (Id. at 335).

{¶42} On redirect examination, Norris testified that, hypothetically, if a

grown male just slightly inserted his penis into a five-year-old girl’s vagina, she

would not expect to observe injury to the young girl’s genitals. (Id. at 335-336).

Norris also testified that if a victim of sexual assault “cleaned up” the genital area,

Norris would not expect to find bodily fluids in the victim’s vagina during the sexual

assault examination. (Id. at 336).

{¶43} Next, the State offered the testimony of Brittany Mulinix (“Mulinix”),

a forensic scientist in the biology unit of the Ohio Bureau of Criminal Investigation

(“BCI”). (Id. at 339). The State moved the trial court to recognize Mulinix as an

expert witness, and the trial court granted the State’s motion without objection. (Id.

at 340-341).

{¶44} Mulinix identified State’s Exhibit 17 as the report she wrote relating

to her investigation of the possible evidence submitted by the Lima Police

Department relating to the present case. (Id. at 345-346). (See State’s Ex. 17).

Mulinix testified that she performed semen testing on the perivaginal, perianal, and

oral samples that Norris collected from J.G. during the sexual assault examination.

(Apr. 24-26, 2018 Tr. at 348, 352-353). (See State’s Ex. 17). However, she did not

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find any semen identified in the samples. (Apr. 24-26, 2018 Tr. at 348, 352-353).

(See State’s Ex. 17). However, Mulinix stated that, hypothetically, if bodily fluids

had been present in a child’s vaginal area, but that the child had been cleaned, the

cleaning could diminish or affect the presence of bodily fluids or DNA. (Apr. 24-

26, 2018 Tr. at 353).

{¶45} Mulinix stated that although underwear were not submitted as part of

the sexual assault examination collection kit, she was able to examine State’s

Exhibit 4, the pants that Norris collected during her examination of J.G. (Id. at 350-

351). (See State’s Exs. 4, 17). Mulinix testified that she collected samples and

performed testing for blood and semen on both sides of the pants. (Apr. 24-26, 2018

Tr. at 351). (See State’s Ex. 17). Mulinix attested that she did not identify any

semen on the inside or the outside of the pants. (Apr. 24-26, 2018 Tr. at 351). (See

State’s Ex. 17). However, she did positively identify presumptive blood on the

inside layer of the pants. (Apr. 24-26, 2018 Tr. at 352). (See State’s Ex. 17).

{¶46} The State’s next witness was Logan Schepeler (“Schepeler”), a

forensic scientist in the DNA testing unit at BCI. (Apr. 24-26, 2018 Tr. at 358).

The State moved the trial court to recognized Schepeler as an expert witness in

forensic DNA analysis, and the trial court granted the State’s motion without

objection. (Id. at 360-361).

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{¶47} Schepeler testified that he performed two types of DNA analysis on

several samples derived from the pants previously identified as State’s Exhibit 4.

(Id. at 361, 363-364). (See State’s Ex. 4). Schepeler first performed a “traditional”

DNA test on the samples taken from State’s Exhibit 4 which tested for the presence

of both male and female DNA. (Apr. 24-26, 2018 Tr. at 365-366). Schepeler

testified that the results of the DNA analysis revealed that the DNA present in the

samples were mixtures, meaning that more than one person’s DNA was present in

the sample. (Id. at 365-366). However, the only person whose DNA Schepeler

could conclusively determine was present in the samples was J.G. (Id. at 365-366).

(See State’s Ex. 18). Next, Schepeler performed Y-STR testing, which is male-

specific DNA testing that examines only the Y chromosome, on the samples. (Apr.

24-26, 2018 Tr. at 367). (See State’s Ex. 18). Schepeler attested that the results of

the testing indicate that a mixture of DNA was found on the pants, meaning that

more than one male’s DNA was present in the samples. (Apr. 24-26, 2018 Tr. at

367-368). (See State’s Ex. 18). Schepeler stated that the results could not

conclusively exclude McCoy’s DNA from the mixture, however, he could not

conclusively state the McCoy’s DNA was present in the mixture. (Apr. 24-26, 2018

Tr. at 368). (See State’s Ex. 18). In State’s Exhibit 18, Schepeler documented his

findings relating to the samples taken from J.G.’s pants. (Apr. 24-26, 2018 Tr. at

362). (See State’s Ex. 18).

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{¶48} Schepeler also tested the perivaginal and perianal samples taken from

the sexual assault evidence collection kit. (Apr. 24-26, 2018 Tr. at 369-370). (See

State’s Ex. 19). Schepeler testified that his testing revealed no DNA profile foreign

to J.G. present in the samples. (Apr. 24-26, 2018 Tr. at 369-370). (See State’s Ex.

19). Schepeler documented his findings relating to the perivaginal and perianal

samples in State’s Exhibit 19. (Apr. 24-26, 2018 Tr. at 369-370); (State’s Ex. 19).

{¶49} According to Schepeler, hypothetically, if a young child was wearing

a pair of pants and that person was carried by two different people, it is possible that

any individual who carried the child or touched the child’s clothing could leave

DNA on the child’s clothing or skin. (Apr. 24-26, 2018 Tr. at 366). Schepeler also

agreed that, hypothetically, if a person is lying on an item such as a blanket, the

blanket could transfer DNA onto that person. (Id. at 366-367). Schepeler testified

that if, following a sexual assault, a victim is cleaned with fluid or water, it is

possible that the cleaning would affect the presence of any foreign DNA present on

that individual. (Id. at 370).

{¶50} On cross-examination, Schepeler clarified that State’s Exhibit 18,

which sets forth the conclusions from the Y-STR testing, lists McCoy as

“inconclusive” “[d]ue to the number of contributors.” (Id. at 370-371). (See State’s

Ex. 18). Accordingly, Schepeler could not state whether McCoy contributed to the

male DNA mixture found on J.G.’s pants. (Apr. 24-26, 2018 Tr. at 371).

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Additionally, Schepeler confirmed that he did not know the identity of the other

male contributors to the DNA mixture found on the pants. (Id. at 371).

{¶51} The State’s final witness was Detective Steven J. Stechschulte, Jr.

(“Detective Stechschulte”), a detective with the Lima Police Department. (Id. at

381-382). On December 15, 2017, Detective Stechschulte was walking to the Lima

Police Department when he noticed several law enforcement officers in the city

building parking lot engaged in conversation with the occupant of a vehicle. (Id. at

383). Detective Stechschulte identified the vehicle occupant as Strange. (Id. at

384). A short time later, Detective Stechschulte encountered Lieutenant Lauck, who

requested Detective Stechschulte’s assistance in an investigation involving a girl

who had been found in a vehicle in the city building parking lot. (Id. at 384-385).

{¶52} Shortly thereafter, Detective Stechschulte met J.G. and tried to engage

in conversation with her. (Id. at 385-386). He described J.G. as very “withdrawn”

and stated that she “appeared skittish” or “traumatized.” (Id. at 386). Detective

Stechschulte also immediately noticed that J.G. had “severely blackened eyes,” a

swollen mouth and face, and blood on her clothes and the inside of her nostrils. (Id.

at 387). Emergency medical services arrived shortly thereafter to transport J.G. to

the hospital. (Id.).

{¶53} Detective Stechschulte spent several hours conducting interviews of

individuals involved with J.G. and her family. (Id. at 388). That evening, Detective

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Stechschulte interviewed McCoy. (Id. at 388-389). Detective Stechschulte testified

that his interview of McCoy was recorded and identified State’s Exhibit 15 as a

redacted copy of his December 15, 2017 interview of McCoy. (Id. at 391-392).

Thereafter, State’s Exhibit 15 was played for the jury. (Id. at 392-394). (See State’s

Ex. 15).

{¶54} State’s Exhibit 15 depicts Detective Stechschulte and McCoy in an

interview room at the Lima Police Department. (Apr. 24-26, 2018 Tr. at 392-393);

(State’s Ex. 15). Initially, McCoy told Detective Stechschulte a story about waking

up the previous night to J.G. screaming in a room upstairs. (State’s Ex. 15). McCoy

told Detective Stechschulte that when he ran upstairs to investigate, he observed an

intruder standing over J.G. and hitting her. (Id.). McCoy stated that he fought off

the intruder and chased him out of the house. (Id.). McCoy confirmed that Gilbert

was in Lima visiting their sister and was not home during the attack. (Id.). McCoy

told Detective Stechschulte that he calmed down J.G., who had thrown up, and

cleaned blood and vomit off the girl. (Id.). Then, he called Gilbert and told him

that J.G. had been attacked by an intruder. (Id.).

{¶55} Thereafter, State’s Exhibit 15 depicts Detective Stechschulte detailing

logical inconsistencies with McCoy’s story of an intruder, such as that an intruder

would have to walk past McCoy, who was supposedly sleeping on a chair next to

the door, to reach J.G. in her bedroom upstairs. (Id.). Additionally, Detective

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Stechschulte indicated several injuries and scratches on McCoy’s arms, hands, and

face. (Id.). Detective Stechsculte also told McCoy that if he was concealing

something, “science” and DNA would prove it. (Id.).

{¶56} Shortly thereafter, McCoy stated, “The story’s a lie. There’s no

excuse, but I just know that I was really, really * * * drunk. * * * I remember hitting

her.” (Id.). McCoy initially denied sexually assaulting J.G. (Id.) Eventually,

however, McCoy stated, “I am sick. I do have a [sexual] disease, and I do need

help.” (Id.). Thereafter, although McCoy claimed that he was under the influence

of alcohol and could not remember the details, McCoy admitted that he tried to

sexually assault J.G. (Id.).

{¶57} McCoy stated, “I don’t think I molested her, but I did try.” (Id.).

When Detective Stechschulte asked McCoy, “How far do you think you got?,”

McCoy responded, “I don’t remember penetrating her.” (Id.). McCoy denied

performing or attempting to perform oral sex on J.G., but he stated that he did not

remember whether he tried to have J.G. perform oral sex on him. (Id.). McCoy

claimed that the alcohol that he consumed earlier in the evening made him “spacey”

and it was difficult to remember the details. (Id.).

{¶58} Later in the interview, Detective Stechschulte asked McCoy whether

they were “going to find some penetration on [J.G.].” (Id.). McCoy responded, “I

don’t know for sure. I don’t remember. I remember trying. I do remember trying.”

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(Id.). When Detective Stechschulte asked McCoy whether his penis “got in just a

bit maybe,” McCoy responded, “Maybe.” (Id.). When Detective Stechschulte

asked McCoy how far his penis “got in” J.G.’s vagina, McCoy replied, “I don’t

know for sure. I do remember trying.” (Id.). McCoy confirmed that J.G. was crying

when he was trying to penetrate her with his penis. (Id.).

{¶59} When Detective Stechschulte asked McCoy if J.G.’s saliva would be

found on his penis, McCoy responded that he “didn’t know.” (Id.). Later, Detective

Stechschulte asked McCoy again, “You think at best, you got [your penis] in [J.G.’s

vagina] a little bit?” (Id.). McCoy responded, “Yeah.” (Id.). Shortly thereafter,

McCoy stated again that he remembered that he was “trying” to penetrate J.G. and

she fought him. (Id.).

{¶60} McCoy stated that during the assault, J.G. started scratching him,

which angered McCoy and caused him to begin hitting her. (Id.). McCoy admitted

that J.G.’s nose bled as a result of his strikes to her face. (Id.). McCoy stated that

after the assault he felt remorse and he told J.G. that a “bad guy” hurt her so that she

would believe that another person injured her. (Id.). McCoy denied that he put his

hands around J.G.’s neck and strangled her, but he admitted that he pushed her down

and tried to hold her down. (Id.). McCoy admitted that he “might have” put his

hand over J.G.’s mouth to muffle her screams during the attack. (Id.). He also

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admitted that he removed J.G.’s pants and underwear and pulled down his own

pants. (Id.).

{¶61} After the State played State’s Exhibit 15 for the jury, Detective

Stechschulte stated that when he questioned McCoy about whether he performed

oral sex on J.G., he gave a “hard denial.” (Apr. 24-26, 2018 Tr. at 403-404).

Accordingly, Detective Stechschulte was “pretty convinced” that McCoy was being

honest about that denial. (Id. at 403-404). However, Detective Stechschulte

testified that when he asked McCoy about other forms of penetration, such as

penetration of J.G.’s vagina with his penis, McCoy would say “probably” and

“possibly” because he did not want to talk about those acts in depth. (Id. at 404).

Detective Stechschulte stated that the actions that McCoy was giving “soft

admissions” to regarding being on top of J.G. and attempting to penetrate her began

to match up with the physical evidence, such as the defensive injuries to McCoy’s

face and arms. (Id. at 404-405).

{¶62} Detective Stechschulte identified State’s Exhibits 27, 28, 29, and 31

as photographs taken of McCoy at the Lima Police Department on December 15,

2017. (Id. at 397-398). (See State’s Exs. 27, 28, 29, 31). State’s Exhibits 27 and

28 depict scratches above McCoy’s right and left eyes, respectively. (State’s Exs.

27, 28); (Apr. 24-26, 2018 Tr. at 398-399). State’s Exhibit 29 depicts a scratch to

McCoy’s upper lip. (State’s Ex. 29); (Apr. 24-26, 2018 Tr. at 399-400). State’s

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Exhibit 31 depicts McCoy’s right hand, including an abrasion on his far right

knuckle. (State’s Ex. 31); (Apr. 24-26, 2018 Tr. at 400-401).

{¶63} Detective Stechschulte testified that he interviewed McCoy again on

December 18, 2017 because he believed that McCoy was not telling him the full

story and he hoped that if he interviewed McCoy again, McCoy would be more

forthcoming. (Apr. 24-26, 2018 Tr. at 406-407). Specifically, in the first interview,

McCoy claimed that he had blacked out due to his alcohol consumption and did not

regain consciousness until he was hitting J.G. (Id. at 407). However, Detective

Stechschulte testified that upon reviewing McCoy’s phone, he learned that McCoy

sent out several fairly coherent text messages during the time period that he claimed

to be unconscious. (Id. at 407-408). Detective Stechschulte testified that based on

Detective Stechschulte’s training in alcohol detection, apprehension, and

prosecution, McCoy’s claims of blacking out for hours until he regained

consciousness did not make sense. (Id. at 408). Accordingly, Detective

Stechschulte testified that he believed that McCoy remembered more details of the

assault than he admitted during the first interview. (Id.).

{¶64} Detective Stechschulte identified State’s Exhibit 16 as a redacted

recording of a second interview that he conducted with McCoy at the Lima Police

Department on December 18, 2017. (Id. at 406). (See State’s Ex. 16). Thereafter,

State’s Exhibit 16 was played for the jury. (Apr. 24-26, 2018 Tr. at 407). (See

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State’s Ex. 16). State’s Exhibit 16 depicts Detective Stechschulte and McCoy in an

interview room at the Lima Police Department on December 18, 2017. (State’s Ex.

16). When Detective Stechschulte asked McCoy to fill in the gaps from his

interview on December 15, 2017, McCoy claimed that he “blacked out” after Gilbert

left. (Id.). McCoy then claimed that the next time he regained consciousness was

when he was hitting J.G. (Id.).

{¶65} Detective Stechschulte told McCoy that his story of not being

conscious for a prolonged period of time was not consistent with an examination of

McCoy’s phone, which indicated that McCoy was sending coherent text messages

at various times during the night. (Id.). McCoy provided several additional details

to Detective Stechschulte, such as the fact that the sexual assault occurred upstairs

in J.G.’s bedroom. (Id.). McCoy again stated that he realized what he was doing

was wrong when he regained consciousness as he was hitting J.G. (Id.). McCoy

stated that after the assault they went downstairs and J.G. threw up. (Id.). McCoy

told Detective Stechschulte that he cleaned vomit and blood off of J.G. (Id.).

{¶66} Later in the interview, Detective Stechschulte stated, “You probably

put it in [J.G.’s vagina] a little bit, right?” (Id.). In response, McCoy nodded. (Id.).

However, soon thereafter, McCoy again stated that it was not until he was hitting

J.G. that he regained consciousness and realized what was happening. (Id.).

However, McCoy stated that when he was hitting her he realized that he was “trying

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to * * * molest her [or] rape her * * * or have sex.” (Id.). McCoy claimed that he

did not really know if he did “stick it in” or “rape” J.G. (Id.). Later in the interview,

Detective Stechschulte commented to McCoy that he “might have had [his penis]

in [her vagina] just a little bit.” (Id.). In response, McCoy stated, “Um hm.” (Id.).

{¶67} Detective Stechschulte acknowledged that some of the evidence that

was collected in the course of his investigation was not sent to BCI for analysis and

testing. (Apr. 24-26, 2018 Tr. at 411). According to Detective Stechschulte, due to

the large volume of agencies submitting potential evidence to BCI, the agency has

a policy to only test a limited number of items in each case. (Id. at 411-412). With

respect to the underwear Lieutenant Brown collected at 626 Park Street on

December 15, 2017, Detective Stechschulte stated that the underwear was not sent

for analysis because J.G. did not put them back on following the assault. (Id. at

412).

{¶68} On cross-examination, Detective Stechschulte acknowledged that he

told McCoy during his interviews that if he did sexually assault J.G., “science”

would be able to prove it. (Id. at 420-421). Detective Stechschulte testified that

making the comment that “science” would be able to prove a crime is an interview

technique he uses to help elicit the truth from a suspect. (Id. at 430).

{¶69} At the conclusion of the State’s evidence, the State moved to admit its

exhibits and rested. (Id. at 435-444). State’s Exhibits 15 and 16 were admitted over

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McCoy’s objection. (Id. at 439-440, 444). The rest of the State’s exhibits were

admitted without objection. (Id. at 435-444).

{¶70} Thereafter, McCoy made a Crim.R. 29 motion for a directed verdict

on all counts, which the trial court denied. (Id. at 445-449). McCoy rested without

putting on any evidence. (Id. at 450). The case was submitted to the jury, which

found McCoy guilty of all counts. (Id. at 543-546).

{¶71} First, we will address McCoy’s argument that his rape conviction is

not supported by sufficient evidence. Specifically, McCoy argues that the State did

not offer sufficient evidence to support a finding that penetration occurred.

(Appellant’s Brief at 12). Because McCoy only challenges the sufficiency of the

State’s evidence showing that he penetrated J.G.’s vagina, we focus solely on

whether the State presented sufficient evidence to prove this element.

{¶72} With respect to the issue of penetration, we find that a reasonable jury

could have found that McCoy penetrated J.G.’s vagina with his penis. As previously

outlined, the insertion need only be slight to be considered vaginal penetration.

“‘The vagina is the hollow passage leading from the uterus of the female body

outward to the exterior genitalia, or vulva, which is comprised of lip-like folds of

skin called the labia majora. The term “vaginal cavity” refers to that entire

anatomical process and any part of it.’” State v. Meador, 12th Dist. Warren No.

CA2008-03-042,

, ¶ 11, quoting State v. Grant, 2d Dist.

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Montgomery No. 19824,

. “‘Penetration of the vaginal cavity

requires introduction of an object from without, which necessarily implies some

forceful spreading of the labia majora. The penetration need only be “slight”’. R.C.

2907.01(A). Therefore, if the object is introduced with sufficient force to cause the

labia majora to spread, penetration has occurred.’”

at ¶ 12 quoting Grant at ¶

30. See also State v. Lucas, 2d Dist. Montgomery No. 18644,

,

*3 (Sept. 21, 2001) (“It is sufficient if the evidence shows that the force of the object

caused the outer lips of the victim’s vagina, the labia, to spread.”); State v. Nieves,

9th Dist. Lorain No. 12CA010255,

, ¶ 9 quoting State v. Melendez,

9th Dist. Lorain No. 08CA009477,

, ¶ 14 (“‘[I]nsertion, however

slight, of a part of the body or other object within the vulva o[r] labia is sufficient

to prove vaginal penetration for purposes of proving sexual conduct as defined in

R.C. 2907.01(A) and rape in violation of R.C. 2907.02.’”); State v. Fulkerson, 8th

Dist. Cuyahoga No. 83566,

(“[E]vidence of slight

penetration, entering the vulva or labia, is sufficient to support a rape conviction.”);

State v. Farr, 3d Dist. Seneca No. 13-06-16,

(finding that the

trial court did not err by broadly defining vaginal cavity in response to a jury

question).

{¶73} The record reflects that, during his interviews with Detective

Stechschulte, McCoy repeatedly and freely admitted that he was attempting to

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penetrate J.G.’s vagina with his penis. McCoy also admitted several times that he

“probably” or “maybe” achieved penetration to a slight degree. McCoy further

admitted that he had pulled down his pants and had removed J.G.’s pants and

underwear and was holding down J.G.’s body while he attempted to insert his penis

into her vagina. Further, McCoy stated that J.G. was crying while he attempted to

penetrate her. Accordingly, we find that the State presented sufficient testimony

from which the jury could infer that McCoy introduced his penis into J.G.’s vulva

or labia. See State v. Gilbert, 10th Dist. Franklin No. 04AP-933,

(concluding that the State presented sufficient evidence of penetration

where the victim testified that the defendant “put his finger on the outside of the

labia” and “touched the inside less than a centimeter,” that the defendant’s finger

was “near the top” of the vaginal cavity for several seconds, and that the victim did

not perceive the defendant’s actions to constitute penetration); State v. Clemmons,

2d Dist. Montgomery No. 22747,

(finding sufficient evidence

to uphold a rape conviction where the victim testified that the defendant “touched”

her genital areas with his penis and fingers causing her pain); State v. Falkenstein,

8th Dist. Cuyahoga No. 83316,

(finding sufficient

evidence of penetration where the victim closed her legs and the defendant placed

his penis “on the outside” of the victim’s vagina); Melendez at ¶ 16-17, 21, 30-31

(finding sufficient evidence of penetration where the victim stated that the defendant

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touched her “in the area she wipes after going to the bathroom” and the defendant

admitted he placed his hand inside the victim’s pants “for an extended period of

time” but denied penetration); Meador at ¶ 13, 16 (the victim’s statement that it

“kind of felt like” the Defendant’s fingers were in her vagina was sufficient to

establish that penetration occurred); State v. Rowland, 12th Dist. Warren No.

CA2019-08-084,

(“Although A.R. used the term ‘touch’

as opposed to ‘insert’ when describing Rowland’s actions, a jury could reasonably

conclude that Rowland necessarily inserted part of his finger into A.R.’s vagina”

when he touched her clitoris.); State v. Higgins, 7th Dist. Jefferson No. 12 JE 11,

(a defendant’s confession that he penetrated the victim’s

vagina establishes sufficient evidence of penetration).

{¶74} Nevertheless, McCoy argues that the State failed to prevent evidence

of penetration because the victim did not testify at the trial, Norris observed no

injury to J.G.’s hymen, and the evidence did not establish that McCoy’s semen or

DNA was found on J.G.’s body. We are not persuaded.

{¶75} First, a rape victim is not required to testify to the issue of penetration

if the State can provide sufficient evidence of penetration through other evidence or

testimony. See State v. Edinger, 10th Dist. Franklin No. 05AP-31,

(finding the defendant’s statements to the police regarding penetration were

sufficient to uphold a conviction for rape). As detailed above, the State presented

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sufficient evidence to establish the element of penetration even without J.G.’s

testimony. We are likewise unpersuaded by McCoy’s argument that his conviction

is not based on sufficient evidence because the sexual assault nurse examiner did

not observe injury to J.G.’s pubic area or hymen. First, it is well-established that

the State is not required to produce evidence of physical injury to the victim’s hymen

or pubic area to establish penetration if penetration can be established through other

evidence or testimony. See Gilbert,

(finding sufficient

evidence of penetration where the child victim’s hymen was intact and the physician

testified that there was no physical “evidence of penetration into the vagina”); State

v. Vang, 9th Dist. Summit No. 23206,

(“[A] reasonable juror

could find that penetration and an intact hymen are not mutually exclusive.”); State

v. Leonard, 8th Dist. Cuyahoga No. 98626,

(“[A] physical

injury is not a condition precedent to a conviction for rape; not all rape victims

exhibit signs of physical injury.”). Moreover, Norris’s observations during her

sexual assault examination of J.G. were not inconsistent with the State’s theory of

the case that McCoy slightly penetrated J.G.’s vagina with his penis. Norris testified

that due to the elastic nature of the hymen of a child of J.G.’s age, she would not

necessarily expect to observe injury to the genitals or hymen of a child who had

been sexually assaulted or whose genitals were penetrated. In fact, Norris testified

that it is quite uncommon for child victims of sexual assault to have observable

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physical injury to their genitals. Accordingly, even without evidence of physical

injury to J.G.’s genitals or hymen, the State presented sufficient evidence for the

jury to conclude that McCoy penetrated J.G.’s vagina.

{¶76} McCoy’s argument that the State failed to present sufficient evidence

to demonstrate penetration because his semen or DNA was not found in the samples

collected from J.G.’s body and clothing also fails. We first note that the State was

not required to prove that McCoy ejaculated during the commission of the rape. See

State v. Bush, 4th Dist. Ross No. 09CA3112,

, ¶ 45 (“[T]he crime

of rape does not require the State to prove that the defendant achieved a sexual

climax.”). In fact, according to the State’s theory of the case, McCoy only inserted

his penis slightly into J.G.’s vagina. The State did not allege that McCoy achieved

a sexual climax during the assault. Accordingly, the absence of sperm in the

samples tested is not inconsistent with the State’s theory of the case. Likewise,

because the State presented other evidence from which the jury could reasonably

infer that vaginal penetration occurred, the absence of McCoy’s bodily fluid or

genetic material on J.G.’s body is not fatal to the State’s case. See State v. Gaines,

5th Dist. Stark No. 2005CA00099,

(holding that the State

met its burden of production for each element of the crime of rape even with a “lack

of DNA evidence” and “less than perfect police investigation”).

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{¶77} Thus, for the foregoing reasons, viewing the evidence in a light most

favorable to the State, a rational trier of fact could have found that the State proved

the penetration element of rape.

{¶78} Having determined that McCoy’s rape conviction was supported by

sufficient evidence, we next address McCoy’s argument that his felonious assault

conviction is not supported by sufficient evidence. With respect to his felonious

assault conviction, McCoy argues that the State did not offer sufficient evidence to

support a finding that J.G. suffered serious physical harm. (Appellant’s Brief at 13-

14). McCoy contends that the State only presented evidence that J.G. suffered

minor bruising and petechiae and, therefore, failed to present sufficient evidence

that J.G. suffered serious physical harm. Because McCoy only challenges the

sufficiency of the State’s evidence with respect to the requirement that he caused

“serious physical harm” to J.G., our analysis will be limited to the State’s evidence

supporting that element.

{¶79} The record reflects that the responding officers observed the injuries

to J.G.’s face and called an ambulance that transported J.G. to the hospital, where

medical professionals assessed her. Norris testified that J.G. presented with

“significant injuries to the face.” J.G.’s injuries included “heavy bruising around

both of her eyes” and swelling on her face. Norris stated that the bruising around

J.G.’s eyes indicated to her that J.G. may have been hit on her nose. Additionally,

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J.G. had dried blood under both of her nostrils, which indicated a bloody nose. In

fact, during his interview with Detective Stechschulte, McCoy admitted to striking

J.G. in the face and causing her nose to bleed. Moreover, J.G.’s injuries are depicted

in a number of photographs taken during the course of J.G.’s physical examination.

{¶80} J.G. also presented with petechiae around her eyes and neck. Norris

testified that she observed petechiae on J.G.’s upper chest, neck, conjunctiva, and

the skin immediately surrounding her eyes. Norris’s observations were also

depicted in a series of photographs taken during the examination. Norris testified

that the ruptured blood vessels she observed in J.G.’s eyes are “actually quite large

for being petechiae” and that in her experience performing sexual assault

examinations, the petechiae she observed on J.G.’s body were “significant.”

Although, as McCoy indicates, Norris conceded on cross-examination that

petechiae can be caused by non-violent means, such as “very, very harsh crying” or

“really harsh” coughing, Norris testified that J.G.’s injuries indicated to her that

J.G.’s airway was restricted at some time. Moreover, Norris testified that the

petechiae observed on J.G.’s neck are significant because it “very well could” be

the result of someone putting his or her hands on J.G.’s neck. Moreover, during his

interview with the police, McCoy admitted that he held J.G. down during the assault

and that he “might have” put his hand over her mouth to muffle her screams.

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{¶81} Accordingly, a rational jury, construing the evidence above in the light

most favorable to the State, could reasonably have found that the State proved the

element of serious physical harm beyond a reasonable doubt. Therefore, there is

sufficient evidence that McCoy committed felonious assault under R.C.

2903.11(A)(1). See State v. Stover, 3d Dist. Union No. 14-12-24,

(concluding that the victim suffered serious physical harm under R.C.

2901.01(A)(5) because the victim’s “face was extremely bruised and swollen”);

State v. Morris, 7th Dist. Monroe No. 03 MO 12,

(concluding

that the State presented sufficient evidence of serious physical harm, in part, because

the victim testified that Morris’s first punch caused his nose to bleed); State v.

Simmons, 8th Dist. Cuyahoga No. 96208,

(finding serious

physical harm where a witness testified that the victim suffered from petechiae in

her eye even where the petechiae was not visible on the photographs admitted into

evidence); State v. Smith, 9th Dist. Summit Nos. 23468 and 23464, 2007-Ohio-

5524, ¶ 27 (finding that the severe physical harm existed where the victim presented

with a “petechial rash” on her face and eyes resulting from strangulation).

{¶82} Having found that sufficient evidence supports McCoy’s rape and

felonious assault convictions, we now turn to McCoy’s argument that his rape and

felonious assault convictions are against the manifest weight of the evidence. In

support of his argument that his rape and felonious assault convictions are against

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the manifest weight of the evidence, McCoy simply reasserts the same arguments

he raises with respect to the sufficiency of the evidence supporting his rape and

felonious assault convictions. “‘[A] defendant has the burden of affirmatively

demonstrating the error of the trial court on appeal.’” State v. Costell, 3d Dist.

Union No. 14-15-11,

, quoting State. v Stelzer, 9th Dist.

Summit No. 23174,

. If an argument exists that can support an

assignment of error, it is not this court’s duty to root it out. State v. Shanklin, 3d

Dist. Union No. 14-13-23,

, citing State v. Raber,

,

, ¶ 30 (9th Dist.).

{¶83} Even so, after weighing the evidence and evaluating the credibility of

the witnesses, with appropriate deference to the trier of fact’s credibility

determinations, we conclude that the jury did not clearly lose its way and create

such a manifest miscarriage of justice that McCoy’s rape and felonious assault

convictions must be reversed.

{¶84} Accordingly, McCoy’s first and second assignments of error are

overruled.

Assignment of Error No. III

The Appellant’s right to the effective assistance of Counsel guaranteed under Section 10, Article I of the Ohio Constitution, and Sixth and Fourteenth Amendments to the United States Constitution was not [sic] violated by Trial Counsel based upon the record before this Court.

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{¶85} In his third assignment of error, McCoy argues that he was denied the

right to effective assistance of counsel as provided for by the United States

Constitution and by the Ohio Constitution. Specifically, McCoy argues that Norris,

who the trial court recognized as an expert witness in sexual assault nursing

examinations, was not qualified to discuss the bruising and petechiae that she

observed on J.G.’s body. (Appellant’s Brief at 15-16). McCoy alleges that the State

should not have been permitted to question Norris regarding bruising and petechiae

she observed on J.G.’s head, neck, and shoulders because the injuries related to the

charge of felonious assault, rather than sexual assault. (Id.). McCoy argues that

because his trial counsel failed to object to the State’s line of questioning regarding

the injuries Norris observed on J.G.’s head, neck, and shoulders, he was denied the

effective assistance of counsel. (Id.).

{¶86} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 12th Dist. Clinton No. CA2019-05-010,

. A

defendant asserting a claim of ineffective assistance of counsel must establish: (1)

the counsel’s performance was deficient or unreasonable under the circumstances;

and (2) the deficient performance prejudiced the defendant. State v. Kole,

(2001), citing Strickland v. Washington,

,

(1984). In order to show counsel’s conduct was deficient or unreasonable, the

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defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.

. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie,

(1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Frazier,

(1991). Rather, the

errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley,

(1989), citing

State v. Lytle,

(1976), vacated in part on other grounds,

Ohio v. Lytle,

,

(1978).

{¶87} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’”

, quoting

. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’”

quoting

. If the petitioner cannot prove one of the elements, it is

“unnecessary for a court to consider the other prong of the test.” State v. Walker,

3d Dist. Seneca No. 13-15-42,

.

{¶88} Notwithstanding McCoy’s assertions that his counsel was ineffective,

McCoy’s argument presented under his third assignment of error is completely

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devoid of any discussion of the prejudice prong. “This in and of itself is insufficient

under App.R. 16(A)(7) and in contravention of the standard that places the burden

on the defendant to prove both prongs of the ineffective assistance of counsel

claim.” State v. Hayes, 8th Dist. Cuyahoga No. 105048,

,

citing State v. Perez,

,

, citing

, and State v. Gondor,

,

, ¶ 62. Because

McCoy failed to satisfy his burden of demonstrating that he was prejudiced by his

trial counsel’s alleged errors, we decline to root out any argument for him. See

Hayes at ¶ 19 (“Having failed to demonstrate prejudice even if we presumed a

deficient performance and having failed to address the statutory presumption of

guilt, as required under App.R 16(A)(7) to prove an error occurred, Hayes’s second

assignment of error must be overruled.”); State v. Watkins, 3d Dist. Putnam No. 12-

18-08,

(“‘[I]f it is easier to dispose of an ineffective claim on

the ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.’”), quoting

; State v. Franks, 9th Dist.

Summit No. 28533,

(“Where an appellant fails to develop an

argument in support of his assignment of error, this Court will not create one for

him.”). See App.R. 12(A)(2); App.R. 16(A)(7); State v. Stillman, 5th Dist. Delaware

No. 04CAA07052,

.

{¶89} Accordingly, McCoy’s third assignment of error is overruled.

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Assignment of Error No. IV

Appellant’s maximum sentence of life imprisonment without the possibility of parole for the conviction of Rape and eight years of imprisonment to be served consecutively thereto for the conviction of Felonious Assault was not supported by the requisite statutory findings found in ORC § 2929.12.

{¶90} In his fourth assignment of error, McCoy argues that the trial court

erred by sentencing him to a term of life imprisonment without parole for Count

One and eight years’ imprisonment for Count Five.

{¶91} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum,

,

. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford,

(1954), paragraph three of the

syllabus.

{¶92} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17,

, quoting State v. Noble, 3d Dist. Logan No. 8-14-06,

, citing

State v. Saldana, 3d Dist. Putnam No. 12-12-09,

. Rape of a

child less than ten years of age carries a maximum penalty of life imprisonment

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without parole. R.C. 2907.02(A)(1)(b), (B) (Jan. 1, 2008) (current version at R.C.

2907.02(A)(1)(b), (B) (Mar. 22, 2020)). As a second-degree felony, felonious

assault carries a sanction of two to eight years’ imprisonment. R.C. 2903.11(A)(1),

(D)(1)(a) (Oct. 17, 2017) (current version at R.C. 2903.11(A)(1), (D)(1)(a) (Mar.

22, 2019)); R.C. 2929.14(A)(2) (Oct. 17, 2017) (current version at R.C.

2929.14(A)(2) (Mar. 22, 2019)).

{¶93} Here, McCoy was sentenced to life imprisonment without parole on

Count One and eight years’ imprisonment as to Count Five.2 Accordingly, the trial

court’s sentence is within the statutory range. “‘[A] sentence imposed within the

statutory range is “presumptively valid” if the [trial] court considered applicable

sentencing factors.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-

16,

, quoting State v. Maggette, 3d Dist. Seneca No. 13-16-

06,

, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572,

.

{¶94} R.C. 2929.11 provides, in pertinent part, that the “overriding purposes

of felony sentencing are to protect the public from future crime by the offender and

others, to punish the offender, and to promote the effective rehabilitation of the

offender using the minimum sanctions that the court determines accomplish those

2 The trial court ordered McCoy’s sentences for Counts One and Five to run consecutively to each other. (Doc. No. 113). However, for the purpose of this appeal, McCoy does not challenge the consecutive nature of his sentences. (See Appellant’s Brief at 16-18). Accordingly, we will not discuss the trial court’s findings relating to the consecutive nature of the offenses.

-49- Case No. 9-18-23

purposes without imposing an unnecessary burden on state and local government

resources.” R.C. 2929.11(A). To achieve the overriding purposes of felony

sentencing, R.C. 2929.11 directs courts to “consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or both.”

In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall

be reasonably calculated to achieve the three overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences

imposed for similar crimes committed by similar offenders.” “In accordance with

these principles, the trial court must consider the factors set forth in R.C.

2929.12(B)-(E) relating to the seriousness of the offender’s conduct and the

likelihood of the offender’s recidivism.”

, citing R.C. 2929.12(A). “‘A

sentencing court has broad discretion to determine the relative weight to assign the

sentencing factors in R.C. 2929.12.’” Id. at ¶ 15, quoting State v. Brimacombe,

,

, ¶ 18 (6th Dist.), citing State v. Arnett,

(2000).

{¶95} From the record, it is clear that the trial court sentenced Jackson after

considering the overriding purposes of felony sentencing set forth in R.C.

2929.11(A) and the relevant R.C. 2929.12(B)-(E) factors. First, at the sentencing

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hearing, the trial court noted that it had “considered the general factors required by

the Ohio Revised Code[,] * * * the specific facts of this case and the defendant’s

circumstances.” (July 10, 2018 Tr. at 12-13). Furthermore, in its judgment entry of

sentence, the trial court stated that it “considered the record, oral statements, and

any victim impact statements, as well as the principles and purposes of sentencing

under R.C. 2929.11, and the appropriate factors under R.C. 2929.12.” (Doc. No.

113). Nevertheless, McCoy argues that the trial court erred by not specifically

identifying the factors under R.C. 2929.12 that it weighed in determining his

sentence. However, “[a] trial court’s statement that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the

sentencing statutes.” Maggette at ¶ 32, citing State v. Abrams, 8th Dist. Cuyahoga

No. 103786,

, ¶ 14, citing State v. Payne,

, 2007-

Ohio-4642, ¶ 18. See also State v. Dayton, 3d Dist. Union No. 14-16-05, 2016-

Ohio-7178, ¶ 21. Therefore, the record establishes that the trial court fulfilled its

obligation to consider R.C. 2929.11 and 2929.12 when it sentenced McCoy.

{¶96} Moreover, the record supports the trial court’s sentence. The record

indicates that the victim was five-years-old, and thus, her young age exacerbated

her injuries. See R.C. 2929.12(B)(1). Additionally, the record indicates that J.G.

appeared withdrawn, shocked, and traumatized and was unable to speak to multiple

people, including the medical and law enforcement personnel who tried to question

-51- Case No. 9-18-23

her. See R.C. 2929.12(B)(2). Also, the record reveals that the victim was McCoy’s

niece who had been entrusted to his care at the time of the offense. Accordingly

McCoy was in a position of trust with the victim and the relationship facilitated the

offense. See R.C. 2929.12(B)(6). Furthermore, at the time of the offenses, McCoy

was under post-release supervision out of Michigan. (PSI at 1). See R.C.

2929.12(D)(1).

{¶97} Nevertheless, McCoy contends that several mitigating factors applied

here and that the trial court erred by failing to identify and specifically assign weight

to those mitigating factors. However, as previously discussed, the trial court

explicitly stated that it had considered the relevant statutory factors and had,

therefore, fulfilled its obligation under the sentencing statute. See Maggette, 2016-

Ohio-5554, at ¶ 32; Dayton,

, at ¶ 21. To the extent that McCoy is

arguing that the trial court did not assign the appropriate weight to the applicable

mitigating and aggravating factors, we likewise do not find his argument persuasive.

Ultimately, the trial court had broad discretion to determine the relative weight to

assign the R.C. 2929.12 factors, and based on this record, we cannot find any fault

in the trial court’s decision to afford greater weight to the aggravating factors than

to the mitigating factors.

{¶98} In conclusion, the trial court properly considered the purposes and

principles of felony sentencing and applied the relevant R.C. 2929.12 factors.

-52- Case No. 9-18-23

Furthermore, McCoy’s sentence is within the statutory range. Accordingly, there is

not clear and convincing evidence that McCoy’s sentence is unsupported by the

record or that his sentence is otherwise contrary to law. See Nienberg, 2017-Ohio-

2920, at ¶ 23. See also Dayton,

, at ¶ 24.

{¶99} Accordingly, McCoy’s fourth assignment of error is overruled.

{¶100} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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