State v. McCoy , 2020 Ohio 4511 ( 2020 )

[Cite as State v. McCoy, 2020-Ohio-4511.]
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, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 27, superseded by state statute on other grounds, United States
v. Mackey, S.D.Ohio No. 3:04cr00096, 2014 WL 6606434, *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, 78 Ohio St.3d 380, 389
(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, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (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.” Id. “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, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
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See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (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,
10 Ohio St.2d 230, 231 (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, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶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, 62 Ohio
St.3d 118, 124 (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, 2009-Ohio-5517, ¶ 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, 2013-Ohio-1270, ¶ 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, 2019-Ohio-4121, ¶ 11. “‘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.” Id., quoting State v. Ramos, 8th Dist. Cuyahoga No. 103596,
2016-Ohio-7685, ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263 (1990),
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superseded by state constitutional amendment on other grounds, Smith, 80 Ohio
St.3d at 102, fn. 4 and citing State v. Henderson, 7th Dist. Mahoning No. 15 MA
0137, 2018-Ohio-5123, ¶ 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, 2019-Ohio-144, ¶ 22 and Ramos at ¶ 16. See State
v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 6, superseded by state statute on
other grounds, United States v. Mackey, S.D.Ohio No. 3:04cr00096, 2014 WL
6606434, *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, 58
Ohio St.2d 171, 178 (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, 2015-Ohio-4116, ¶ 42. “‘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.” Id.{¶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,
187 Ohio App.3d 50, 2010-Ohio-1536, ¶ 53 (7th Dist.), quoting State v. Schaim, 65
Ohio St.3d 51 (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, 2009-Ohio-6548, ¶ 11, quoting State v. Grant, 2d Dist.
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Montgomery No. 19824, 2003-Ohio-7240, ¶ 29. “‘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.’” Id. at ¶ 12 quoting Grant at ¶
30. See also State v. Lucas, 2d Dist. Montgomery No. 18644, 2001 WL 1103288,
*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, 2013-Ohio-4093, ¶ 9 quoting State v. Melendez,
9th Dist. Lorain No. 08CA009477, 2009-Ohio-4425, ¶ 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, 2004-Ohio-3114, ¶ 21 (“[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, 2007-Ohio-3136, ¶ 17 (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, 2005-Ohio-5536,
¶ 9-10, 35-36 (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, 2009-Ohio-2066, ¶ 20 (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, 2004-Ohio-2561, ¶ 15-16 (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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Case No. 9-18-23
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, 2020-Ohio-2984, ¶ 18, 21 (“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,
2013-Ohio-2555, ¶ 29 (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, 2006-Ohio-1527,
¶ 41 (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, 2005-Ohio-5536, at ¶ 28, 38 (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, 2007-Ohio-46, ¶ 12 (“[A] reasonable juror
could find that penetration and an intact hymen are not mutually exclusive.”); State
v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 46 (“[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, 2009-Ohio-6697, ¶ 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, 2005-Ohio-5794, ¶ 44-45 (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, 2013-Ohio-5665,
¶ 44 (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, 2004-Ohio-6810, ¶ 35 (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, 2011-Ohio-6074, ¶ 36-38 (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, 2016-Ohio-3386, ¶ 86, quoting State. v Stelzer, 9th Dist.
Summit No. 23174, 2006-Ohio-6912, ¶ 7. 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, 2014-Ohio-5624, ¶ 31, citing State v. Raber, 189 Ohio
App.3d 396, 2010-Ohio-4066, ¶ 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, 2020-Ohio-3072, ¶ 45. 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, 92 Ohio
St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052 (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. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), citing
State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds,
Ohio v. Lytle, 438 U.S. 910, 98 S.Ct. 3135 (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.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694. 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, 2016-Ohio-3499, ¶ 20.
{¶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, 2017-Ohio-7718, ¶ 16,
citing State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 223, citing Strickland
at 687, and State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 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, 2018-Ohio-4722, ¶ 28 (“‘[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 Bradley at 143; State v. Franks, 9th Dist.
Summit No. 28533, 2017-Ohio-7045, ¶ 16 (“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, 2004-Ohio-6974, ¶ 58-74.
{¶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, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. 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, 161 Ohio St. 469 (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, 2015-Ohio-4225, ¶
9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9, citing
State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. 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, 2017-Ohio-2920, ¶ 10, quoting State v. Maggette, 3d Dist. Seneca No. 13-16-
06, 2016-Ohio-5554, ¶ 31, quoting State v. Collier, 8th Dist. Cuyahoga No. 95572,
2011-Ohio-2791, ¶ 15.
{¶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.
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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.”
Id. 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.” Smith at ¶ 10, 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, 195
Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th Dist.), citing State v. Arnett, 88 Ohio
St.3d 208, 215 (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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Case No. 9-18-23
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, 2016-Ohio-4570, ¶ 14, citing State v. Payne, 114 Ohio St.3d 502, 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
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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, 2016-Ohio-7178, 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.
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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, 2016-Ohio-7178, 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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