author: HENDRICKSON, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Allison Elizabeth MOORE, Defendant-Appellant.
    NO. CA2017-07-110
    Court of Appeals of Ohio, Twelfth District, Warren County.
    May 7, 2018
    David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
    Kim Bui, 8080 Beckett Center Drive, Suite 112, West Chester, Ohio 45069, for defendant-appellant
   HENDRICKSON, J.

{¶ 1} Defendant-appellant, Allison Elizabeth Moore, appeals from a decision of the Warren County Court of Common Pleas denying her motion to suppress evidence. Appellant further appeals the trial court's imposition of a 36-month prison sentence for her conviction for tampering with evidence. For the reasons detailed below, we affirm appellant's conviction and sentence.

{¶ 2} On December 25, 2016, a dead body was found in the middle of Montgomery Avenue in Warren County, Ohio. An investigation by the Warren County Sheriff's Office (WCSO) revealed that Jeremy Foxx had been shot in the back of the head by Zachary Wilson while inside of a vehicle. Appellant was also inside the vehicle when the shooting occurred. Appellant attempted to clean up the blood in the vehicle before helping to burn or depose of the items used to clean the vehicle. Appellant and Wilson then drove to Kentucky, where the vehicle they were driving was painted and disguised.

{¶ 3} On December 27, 2016, a warrant was issued for Wilson's arrest. Detectives with the WCSO contacted Wilson's mother to notify her of the warrant, as she had been aiding the officers in their effort to track down Wilson. Wilson's mother informed the detectives that she had picked up Wilson and appellant in Kentucky and was bringing them to the sheriff's office. After Wilson and appellant arrived at the WCSO around 5:30 p.m. on December 27, 2016, Wilson was arrested. Appellant took a nap at the WCSO before being interviewed by detectives. Following this interview, appellant left the sheriff's office with her mother.

{¶ 4} Appellant was subsequently indicted on one count of tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree. She filed a motion to suppress her December 27, 2016 statement to law enforcement, arguing the statement was obtained in violation of her constitutional rights as the detectives failed to advise her of her Miranda rights prior to the interrogation. She also claimed her statement was not voluntary as she was under the influence of narcotics at the time of the interview.

{¶ 5} A hearing on appellant's motion to suppress was held on April 20, 2017. The state introduced, and the trial court accepted into evidence, an audio and video recording of appellant's December 27, 2016 interview, which lasted approximately 55 minutes. The state called Detective Paul Barger as its sole witness. Barger explained that at the time Wilson's mother brought Wilson and appellant to the WCSO on December 27, 2016, only an arrest warrant for Wilson had been issued. Neither he nor any other detective asked Wilson's mother to bring appellant to the sheriff's office.

{¶ 6} Once Wilson and appellant arrived at the sheriff's office, they were both placed in handcuffs for officer safety. After appellant was patted down, she was taken into the front training room of the WCSO and the handcuffs were removed. While Wilson was being interviewed for approximately two hours, appellant was left in the training room. Appellant was given a can of soda and a blanket, and she fell asleep.

{¶ 7} Once Wilson's interview was over, appellant was brought into the interview room to be questioned by Barger and Detective Wyatt. Appellant was not provided with Miranda warnings at this time. Barger informed appellant that she was not under arrest and was free to leave. Appellant was asked numerous times if she was "okay" to talk with the detectives and whether she wanted to talk to them. Appellant told Barger and Wyatt that she wanted to talk to them and "wanted to get the information out there that it was self-defense." Barger testified that although the door to the interview room was closed for privacy, appellant's path to the door was free and clear.

{¶ 8} Appellant was not in handcuffs or otherwise restrained during the interview. Barger testified appellant gave "very specific, very precise" details about the events surrounding the shooting. Although it took appellant "a little bit to answer some of the questions because she wanted to make sure she had them correct," she was able to provide information "as to where they had gone, what gas stations they had stopped at, how they had gotten lost, whose houses they went to, [and] people she talked to." Appellant did not act in a manner that gave Barger concern that she was under the influence of any substance. When questioned by Barger and Wyatt as to whether she was under the influence, appellant stated, "no."

{¶ 9} Barger testified appellant was not threatened or coerced at any time during the interview. Barger explained that the interview was stopped after about 55 minutes, once the detectives sensed appellant was getting tired. Prior to leaving the sheriff's office with her mother, appellant told the detectives that if they needed anything else, they could contact her and she would be willing to talk to them some more.

{¶ 10} Following Barger's testimony, appellant took the stand and admitted she voluntarily went to the sheriff's office with Wilson and his mother. She stated that she knew there was an arrest warrant for Wilson and she believed the detectives wanted to speak with her. Appellant estimated that she was in handcuffs for approximately 10 to 15 minutes upon her arrival of WCSO, but stated she was uncuffed after she was "patted * * * down and [they] made sure I didn't have anything on me."

{¶ 11} Appellant testified that at the time of the interview, she was so tired, sick, and traumatized that she barely understood what she was saying and it took her a long time to process what she was being asked by the detectives. Appellant stated she had taken a Xanax and was "coming off of meth" at the time she arrived at the sheriff's office. She claimed she informed an officer of her drug use while waiting in the training room. Although she was told by Barger and Wyatt that she could stop the interview and leave at any time, appellant stated she felt like she could not leave until she gave a statement because she had been placed in handcuffs when entering the building and "was a witness." She felt if she did not give a statement she would be arrested.

{¶ 12} Appellant testified that at the time of the interview, she was 23 years old, had no prior contact with law enforcement, had never been read her Miranda rights, and did not understand that she had the right to remain silent and a right to speak with an attorney. She then admitted she had previously been arrested and booked into the Hamilton County Jail for "obstruction." Appellant testified that, had she known she had the right to remain silent, she would have done so.

{¶ 13} After considering the foregoing testimony and evidence, the trial court denied appellant's motion to suppress. The court concluded that Miranda warnings were not required as "a reasonable person in [appellant's] position would have understood * * * her situation and known that she was free to leave. No formal arrest or restraint on [appellant's] freedom of movement occurred in this case." The court further found appellant's statement was voluntary, nothing that "[t]hough [appellant] now indicates she was under the influence of narcotics, she told the officers at the time that she was not under the influence of any substances and she answered the officers' questions clearly, coherently, and without any indication she was not coherent."

{¶ 14} Following the denial of her motion to suppress, appellant entered a no contest plea to the tampering with evidence charge. The court accepted her plea, ordered that a presentence investigation report ("PSI") be prepared, and set the matter for sentencing. On July 11, 2017, appellant appeared before the court and was sentenced to 36 months in prison, with jail-time credit for 72 days.

{¶ 15} Appellant timely appealed, raising two assignments of error for our review.

{¶ 16} Assignment of Error No. 1:

{¶ 17} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO SUPPRESS.

{¶ 18} In her first assignment of error, appellant argues the trial court erred in denying the motion to suppress her December 27, 2016 statement to law enforcement. Appellant maintains that she was in custody on December 27, 2016, and that her constitutional rights were violated by the detectives' failure to advise her of her Miranda rights before conducting the custodial interrogation. She further argues that the evidence presented at the motion to suppress hearing demonstrated that she "was [not] of sound mind during the interview" and that her statement should have been suppressed as it was not voluntarily made.

{¶ 19} Our review of a trial court's denial of a motion to suppress presents a mixed question of law and fact. State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, 2007 WL 1880207, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis , 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, 2005 WL 3031883, ¶ 10. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶ 12.

{¶ 20} "It is well established the 'prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' " State v. Durham , 2013-Ohio-4764, 999 N.E.2d 1233, ¶ 15 (12th Dist.), quoting State v. Huysman , 12th Dist. Warren No. CA2005-09-107, 2006-Ohio-2245, 2006 WL 1211501, ¶ 13. However, the police are not required to administer the warnings set forth in Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to every individual they question. State v. Byrne , 12th Dist. Butler Nos. CA2007-11-268 and CA2007-11-269, 2008-Ohio-4311, 2008 WL 3893371, ¶ 10, citing State v. Biros , 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997) ; Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Rather, the "duty to advise a suspect of constitutional rights pursuant to Miranda is only required when the police subject a person to a custodial interrogation." State v. Fridley , 2017-Ohio-4368, 93 N.E.3d 10, ¶ 35 (12th Dist.).

{¶ 21} " Miranda defines custodial interrogation as any 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of any action in any significant way.' " State v. Matthews , 12th Dist. Butler No. CA2012-09-175, 2013-Ohio-3482, 2013 WL 4047198, ¶ 10, quoting Miranda , 384 U.S. at 444, 86 S.Ct. 1602. "In determining whether an individual was in custody during an interrogation by the police, the court must examine the totality of the circumstances surrounding the interrogation." State v. Gomez , 12th Dist. Butler No. CA2017-03-035, 2017-Ohio-8681, 2017 WL 5664753, ¶ 20, citing State v. Robinson , 2015-Ohio-4533, 48 N.E.3d 109, ¶ 12 (12th Dist.). "[A] person is not in custody merely because [s]he is questioned at the police station or because [s]he is considered a suspect" to a crime. State v. Smith , 12th Dist. Fayette No. CA2006-08-030, 2009-Ohio-197, 2009 WL 119841, ¶ 12, citing Mathiason , 429 U.S. at 495, 97 S.Ct. 711. Rather, a person is in custody if she is formally placed under arrest prior to a police interrogation or, if not formally arrested, when there is a significant restraint placed on her freedom of movement. Gomez at ¶ 20, citing Smith at ¶ 11. The determination of whether a custodial interrogation has occurred "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." State v. Coleman , 12th Dist. Butler No. CA2001-10-241, 2002-Ohio-2068, 2002 WL 745322, ¶ 24, citing Stansbury v. California , 511 U.S. 318, 323-324, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Therefore, "[i]n judging whether an individual has been placed into custody the test is whether, under the totality of the circumstances, a 'reasonable person would have believed that he was not free to leave.' " State v. Gumm , 73 Ohio St.3d 413, 429, 653 N.E.2d 253 (1995), quoting United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

{¶ 22} After examining the totality of the circumstances surrounding appellant's December 27, 2016 interview, we find that appellant was not in custody at the time of the interview. Appellant voluntarily went to the sheriff's office with Wilson and Wilson's mother. No warrant had been issued for her arrest and law enforcement had not requested an interview with her. Although appellant was briefly placed in handcuffs upon her arrival at the sheriff's office, this was done only for officer safety and she was released from the handcuffs after being patted down.

{¶ 23} Appellant was left in the training room while detectives interviewed Wilson. She was given a soda and a blanket, and she took about a two-hour nap. After the detectives finished interviewing Wilson, Moore was brought into an interview room. The door to the interview room was closed for privacy, but was not locked and was accessible by appellant. Appellant was told by the detectives that she was not under arrest and was free to leave whenever she wanted. Appellant was asked whether she wanted to talk to the detectives, and she said "yes" as she "wanted to tell [them] what happened * * * at the incident because she wanted to get the information out there that it was self-defense." Appellant was not restrained in any way during the interview.

{¶ 24} Given the foregoing circumstances, we find that appellant was not in custody at the time of December 27, 2016 interview. See, e.g., Coleman , 2002-Ohio-2068 at ¶ 27 ; Gomez , 2017-Ohio-8681 at ¶ 21-22 ; Mathiason, 429 U.S. at 495, 97 S.Ct. 711. As appellant was not under arrest or a significant restraint placed on her movement at the time of the interview, Miranda warnings were not required.

{¶ 25} Appellant argues that even if she was not in custody at the time of her December 27, 2016 statement, the statement should nonetheless be suppressed as it was not voluntary. Appellant contends she felt coerced into speaking with the detectives and her capacity for self-determination was critically impaired and overborne at the time of the interview as she was ill, coming down off meth, and had recently taken a Xanax.

{¶ 26} In determining whether a statement was made voluntarily, courts should consider the totality of the circumstances, including "the age, mentality, and prior criminal experience of the accused; the length intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, vacated on other grounds , 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). "A suspect's decision to waive [her] privilege against self-incrimination is made voluntarily absent evidence that [her] will was overborne and [her] capacity for self-determination was critically impaired because of police conduct." State v. Otte , 74 Ohio St.3d 555, 562, 660 N.E.2d 711 (1996), citing Colorado v. Connelly , 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

{¶ 27} At the time of the interview, appellant was 23 years old and she had prior experience with the criminal justice system as she was arrested in July 2016 for obstruction. Prior to the interview, appellant had taken a two-hour nap. Upon waking, she agreed to speak to Detective Barger and Detective Wyatt. When questioned by the detectives, she denied being under the influence of any substance. Despite being advised that she was not under arrest and could leave at any time, appellant chose to answer the detectives' questions in an interview that lasted approximately 55 minutes. No promises or threats were made to induce appellant into giving a statement. In fact, appellant was specifically advised by the detectives that the decision on whether or not she would be charged with any crimes would be left to the discretion of the prosecutor.

{¶ 28} During the interview, appellant was able to provide "very specific, very precise" details about the shooting, including information as to where she and Wilson had gone, what gas stations they had stopped at, how they had gotten lost, what houses they went to, and who they had talked to. The manner in which appellant answered the detectives' questions did not cause Barger concern that appellant was under the influence of any substance, as he believed appellant sometimes paused or took "a little bit to answer * * * because she wanted to make sure she had them correct."

{¶ 29} Accordingly, after looking at the totality of the circumstances, we conclude that appellant's will was not overborne by any police conduct and that her statement was voluntary. See, e.g. , State v. Klapka , 11th Dist. Lake No. 2003-L-044, 2004-Ohio-2921, 2004 WL 1238411, ¶ 16-24. Appellant's motion to suppress was properly denied by the trial court, and appellant's first assignment of error is therefore overruled.

{¶ 30} Assignment of Error No. 2:

{¶ 31} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM SENTENCE UPON THE DEFENDANT.

{¶ 32} In her second assignment of error, appellant contends the trial court erred when it imposed a 36-month prison term without "mak[ing] the proper findings to support issuing the maximum sentence."

{¶ 33} We review the imposed sentence under the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 ; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, 2013 WL 3946242, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court finds 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." Id. at ¶ 1. A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, 2016 WL 2621510, ¶ 8 ; State v. Julious , 12th Dist. Butler No. CA2015-12-224, 2016-Ohio-4822, 2016 WL 3595688, ¶ 8. Thus, this court may "increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, 54 N.E.3d 1217, ¶ 1, citing Marcum at ¶ 7.

{¶ 34} As appellant was convicted of a third-degree felony, the trial court was authorized by R.C. 2929.14(B)(3)(b) to impose a prison term of "nine, twelve, eighteen, twenty-four, thirty, or thirty-six months." Contrary to appellant's assertions, when the trial court imposed the 36-month prison term, it was not required to make any specific findings to support its imposition of the maximum sentence. See State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37 (noting that since the court's decision in State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, trial courts are no longer required to make findings or give their reasons for imposing maximum sentences); State v. Scott , 12th Dist. Madison No. CA2010-06-012, 2010-Ohio-5056, 2010 WL 4056104, ¶ 17 ; State v. West , 8th Dist. Cuyahoga No. 105568, 2018-Ohio-956, 2018 WL 1353217, ¶ 9.

{¶ 35} Rather, in imposing appellant's sentence, the trial court was required to consider the principles and purposes of felony sentencing. Pursuant to R.C. 2929.11(A), the purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender. A felony sentence must be reasonably calculated to achieve the purposes set forth in R.C. 2929.11(A)"commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." R.C. 2929.11(B). In sentencing a defendant, a trial court is not required to consider each sentencing factor, but rather to exercise its discretion in determining whether the sentence satisfies the overriding purpose of Ohio's sentencing structure. State v. Littleton , 12th Dist. Butler No. CA2016-03-060, 2016-Ohio-7544, 2016 WL 6462449, ¶ 12. The factors set forth in R.C. 2929.12 are nonexclusive, and R.C. 2929.12 explicitly allows a trial court to consider any relevant factors in imposing a sentence. Id. ; State v. Birt , 2013-Ohio-1379, 5 N.E.3d 1000, ¶ 64 (12th Dist.).

{¶ 36} After a thorough review of the record, we find no error in the trial court's decision to sentence appellant to a 36-month prison term. The record plainly reveals that appellant's sentence is not clearly and convincingly contrary to law and is supported by the record. In imposing appellant's 36-month prison sentence, the trial court properly considered the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12. "The fact that the trial court did not expressly cite to R.C. 2929.11 and 2929.12 during the sentencing hearing is immaterial, considering it specifically cited to both statutes within its sentencing entry." Julious , 2016-Ohio-4822 at ¶ 11. The court's sentencing entry provides as follows:

The Court has considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under R.C. § 2929.11. The Court has balanced the seriousness and recidivism factors under R.C. § 2929.12 and considered the factors under R.C. § 2929.13. The Court inquired if the Defendant had anything to say in mitigation regarding the sentence.
* * *
The Court finds the Defendant is not amenable to an available community control sanction and that prison is consistent with the purposes and principles of R.C. § 2929.11.

{¶ 37} Further, at sentencing the court stated, "I've considered all the relevant sentencing factors in determining the sentence and the length of it mindful of the requirements of the Revised Code." The court discussed the seriousness of the offense, noting that appellant had tampered with evidence by covering up evidence of a murder. The court noted it was not a "spur of the moment" decision, as appellant's criminal conduct extended into the day after the murder. The court found that "probation would not adequately punish [appellant] and it would seriously demean what happened in this case."

{¶ 38} The court also considered factors relevant to the likelihood of recidivism. Although appellant expressed remorse for her actions and had no prior felony convictions, appellant had an ongoing drug problem that she attributed to the commission of the tampering offense. While the case was pending, appellant continued to use drugs, failing multiple drug screenings and violating the terms of her bond. The court reasoned that appellant could only be rehabilitated if she got help for her addiction, which she had not yet done on her own, and stated it strongly felt that a necessary part of her recovery was "facing the consequences of [her] acts" and "paying the price" for what she had done.

{¶ 39} Though appellant disagrees with the trial court's analysis and balancing of the seriousness and recidivism factors set forth in R.C. 2929.12, it is "[t]he trial court [that], in imposing a sentence, determines the weight afforded to any particular statutory factors, mitigating grounds, or other relevant circumstances." State v. Steger , 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, 2016 WL 6948166, ¶ 18, citing State v. Stubbs , 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, 2014 WL 4198250, ¶ 16. The fact that the trial court chose to weigh various sentencing factors differently than the manner in which appellant would have weighed them does not mean the trial court erred in imposing appellant's sentence. See State v. Abrams , 12th Dist. Clermont Nos. CA2017-03-018 and CA2017-03-019, 2017-Ohio-8536, 2017 WL 5256349, ¶ 17. The record supports the trial court's imposition of the 36-month prison term.

{¶ 40} As appellant's prison sentence is not clearly and convincingly contrary to law and is supported by the record, her second assignment of error is overruled.

{¶ 41} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

      In her appellate brief, appellant relies on State v. Davis , 2d Dist. Clark No. 2002-CA-43, 2003-Ohio-4839, 2003 WL 22110297, for the proposition that R.C. 2929.14(C) prohibits a trial court from imposing a maximum sentence unless the court finds that the offender (1) committed the worst form of the offense, (2) poses the greatest likelihood of committing future crimes, (3) committed certain major drug offenses, or (4) was a repeat violent offender. Appellant's reliance on this case is misplaced as R.C. 2929.14(C) has been revised, and the version of the statute referenced by the Davis court is no longer in effect.


source: Caselaw Access Project

author: M. POWELL, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Michael J. HINES, Jr., Defendant-Appellant.
    NO. CA2017-06-025
    Court of Appeals of Ohio, Twelfth District, Clermont County.
    May 7, 2018
    D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, OH 45103, for plaintiff-appellee
    Flanagan Lieberman Hoffman & Swaim, Richard Hempfling, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402, for defendant-appellant
   M. POWELL, J.

{¶ 1} Defendant-appellant, Michael J. Hines, Jr., appeals his rape conviction in the Clermont County Court of Common Pleas.

{¶ 2} On June 30, 2016, the Clermont County Grand Jury returned a three-count indictment charging Hines with first-degree felony rape in violation of R.C. 2907.02(A)(1)(c), first-degree felony rape in violation of R.C. 2907.02(A)(2), and third-degree felony sexual battery in violation of R.C. 2907.03(A)(2). On March 27, 2017, the state dismissed the sexual battery charge. The case proceeded to a three-day jury trial beginning on March 28, 2017.

{¶ 3} The complainant, K.B., testified that on the evening of March 11, 2016, she went to a bowling alley with her boyfriend, Brian, her friend Rachel, Rachel's boyfriend Eric, and her friend JD. K.B. stated the group bowled for a couple of hours. The group consumed alcoholic beverages inside the bowling alley and would periodically make trips to Rachel's car where the group finished a bottle of vodka. After bowling, the group went to a Clermont County bar, where Hines met up with the group. K.B. knew Hines through her friends Eric and Rachel, who managed the restaurant where Hines was employed as a cook. K.B. stated she was friendly with Hines and gave him a hug when he arrived. While at the bar, K.B. talked to Hines, but was not flirtatious. Around 1:00 a.m., the group left the bar and went to Rachel's apartment, which was about a mile away from the bar.

{¶ 4} An argument ensued between K.B. and Brian, prompting Brian to take a taxi home. K.B. stayed at Rachel's apartment. Shortly after arriving at the apartment, Rachel and Eric went to bed in Rachel's bedroom and JD fell asleep on the living room couch. K.B. and Hines stepped outside to smoke a cigarette. While outside, Hines consoled K.B. about her argument with Brian and told her she was beautiful. Hines leaned in to kiss K.B. K.B. told him to stop and pushed him away. K.B. then went to bed in Rachel's children's bedroom. Shortly after, Hines entered the children's room, claimed he could not sleep in the living room due to JD's snoring, and asked if he could sleep in the children's bedroom. K.B. agreed so long as Hines slept on the floor. Hines agreed and went to sleep on the floor, while K.B. slept in the bed.

{¶ 5} At approximately 4:00 a.m., K.B. awoke to a sharp pain inside her vagina. K.B. noticed her dress had been pulled up and her tights had been pulled down below her buttocks. K.B. realized Hines was now laying behind her with his fingers inside her vagina. K.B. asked Hines what he was doing and told him to get off. Hines continued and K.B. again told him to stop and pushed him away. K.B. again asked Hines what he was doing. Hines stated, "[K.B.], I fucked up, I'm sorry." Hines returned to sleep on the floor. Although in a state of shock, K.B. eventually fell back asleep.

{¶ 6} The next morning, K.B. placed the clothing she wore the night before into a plastic grocery bag. She then went to her college class where she sent text messages to Rachel about what had transpired between her and Hines. Rachel then contacted Hines via text message. As pertinent to the issues raised in this appeal, the following text message exchange occurred between Rachel and Hines :

* * *
Hines: I'm sorry I fucked up I said what the fuck to my self this morning I was fucked up I won't come around No more I apologize to you and [K.B.] lost good friends.
* * *
Rachel: Why would u think its ok to finger [K.B.] while she is sleeping after she told u over and over that she isnt into u like that?
Rachel: And in my kids bed? I mean seriously?
Hines: I wasn't thinking honestly I was drunk and I fucked up I wouldn't ever do anything like this I feel like a piece of shit I apologize for disrespecting u * * * like that

{¶ 7} Later that day, Rachel accompanied K.B. to the police station to file a report of the incident with Hines. K.B. provided the police with the grocery bag containing her clothes. Officer Keith Puckett of the Union Township Police Department submitted the clothing to the Ohio Bureau of Criminal Investigation ("BCI") for DNA testing. The testing revealed Y-STR DNA on the inside of K.B.'s tights and that Hines could not be excluded as a source. The BCI examiner testified she would have to test 38 people before she expected to find another match.

{¶ 8} Next, K.B. went to the hospital where she was examined by a registered nurse employed by SANE of Butler County. The nurse testified that the examination yielded no DNA other than K.B.'s and K.B.'s vagina showed no signs of tearing. The nurse explained that finding no injury from a sexual assault is not uncommon because the vaginal area is elastic and can stretch. The nurse stated that K.B. did not immediately disclose digital penetration, which she noted on an intake form. However, once K.B. felt more comfortable she disclosed Hines inserted his fingers in her vagina.

{¶ 9} A few days later, at the request of the police, K.B. conducted a recorded controlled phone call with Hines, which the state played during trial. The controlled phone call contained, in relevant part, the following discussion between K.B. and Hines:

* * *
K.B.: * * * Well, [Hines], I really want to just put this all behind me, but I really * * * I need you to tell me what happened Friday night.
Hines: I * * * was pretty drunk.
K.B.: Okay, but what * * * did you do?
Hines: * * * I don't know. I * * * tried to get with you.
K.B.: Okay. But what do you mean by that? Like, what did you do?
Hines: I was fucking with you while you were sleeping.
K.B.: * * * what do you mean by you were fucking with me while I was sleeping?
Hines: I * * * mean I don't know what you want me to tell you.
K.B.: Well, I'm pretty sure I woke up to you fingering me while I was sleeping; is that right?
Hines: Yeah.
* * *
K.B.: * * * But, [Hines], why would take advantage of me like that?
Hines: I-I'm sorry. I-K.B.: You tried to kiss me * * * at the start of the night, and I pushed you away and told you no, so why would you try to do something especially while I'm sleeping?
Hines: I understand. * * * I fucked up. I mean * * * I don't know why I did it. I really apologize though. Like, that's not me. You know what I mean? Like, I wouldn't want to do that to you. Because, like, you're my friend. For real. I apologize. I fucked up.
K.B.: [Hines], you put * * * your fingers in me while I was asleep. Like, what-
Hines: Right. I mean I don't * * * know what I was thinking. Honestly, like * * * I don't.
K.B.: I mean there's just really no excuse for it. I just want to put it behind me, and I just needed * * * to hear from you what happened.
Hines: * * * I guess I just couldn't take no for an answer. You know what I mean?
K.B.: You guess what?
Hines: I was horny, you know. * * * I'm sorry. I didn't know what else to say, you know?
* * *
K.B.: [Hines], you took * * * complete advantage of me when I was intoxicated and when I was sleeping.
Hines: I understand. I apologize. I really do. I fucked up.
* * *
K.B.: * * * did you just think I would wake up and be okay with it or I mean * * * what were you thinking?
Hines: I wasn't thinking. That's why we're in the situation we are now. I wasn't thinking at all. I fucked up.
* * *
K.B.: I was sleeping.
Hines: I know you was.
K.B.: I woke up to that.
* * *

{¶ 10} Puckett testified he spoke with Hines a few days later. Hines explained to Puckett that he tried to "get with" K.B. while she was sleeping. Hines slept on the floor and K.B. slept on the bed in Rachel's children's room. Hines explained that in his attempt to get with K.B. he "tried to kiss her and wake her up a little bit." Hines shook her and "tried to rub on her" by "caress[ing] her body." He did not recall inserting his fingers inside her vagina. Puckett asked Hines if K.B. was lying and Hines stated, "I mean, honestly I'm not sure," but that "[s]he's probably lying." Hines denied any memory of putting his hands down K.B.'s pants, rather claiming that he "was rubbing like on her stomach and on her leg." Hines stated he did not touch her vagina over or under her clothing.

{¶ 11} T.O., a former acquaintance of Hines, testified that in 2016, after a night of drinking with friends, she awoke to Hines rubbing her vagina outside of her clothing. T.O. informed Hines she did not want him to rub her vagina and Hines persisted, asking, "are you sure?" T.O. again told Hines no and to get off her. Hines left the room shortly thereafter. Prior to T.O.'s testimony and during final instructions, the trial court provided the jury a limiting instruction that the testimony was not to be considered as evidence of Hine's character or conformity with such character. The trial court instructed the jury that it was only to consider the evidence for purposes of establishing Hine's motive, intent, knowledge, or absence of mistake or accident.

{¶ 12} Hines testified on his own behalf. Hines testified he met the group out for drinks and rode back with them to Rachel's apartment. Hines corroborated K.B.'s testimony that he discussed her relationship turmoil outside over a cigarette and attempted to kiss her. Hines further testified that he attempted to sleep in the living room, but could not do so due to JD's snoring. Therefore, he entered Rachel's children's bedroom and asked K.B. if he could sleep there. K.B. answered affirmatively and Hines slept on the bed with K.B. Hines stated that around 3:30 a.m., he wrapped his arm around K.B. and "cuddled up next to her" and she scooted back toward him. Hines proceeded to rub on her outer and inner thigh. K.B. told him to stop, so he moved to the bedroom floor. Hines categorically denied inserting his fingers into K.B.'s vagina and pulling her tights down. When Hines awoke that morning, K.B. had already left Rachel's apartment.

{¶ 13} Hines explained that the statements he made during his text message conversation with Rachel, the controlled call with K.B., and his interview with the police, were motivated by his desire to prevent future adverse employment decisions because Rachel and Eric were managers at his place of work. On cross-examination, Hines stated he lied when he answered affirmatively to a question regarding digital penetration on the controlled call. With respect to T.O.'s testimony, Hines testified he did enter her bedroom, but did not get into bed with her. Hines explained that he rubbed on her thigh and asked, "if anything was happening." T.O. responded no and Hines exited the bedroom.

{¶ 14} Following jury deliberations, the jury found Hines guilty of rape in violation of R.C. 2907.02(A)(1)(c). The jury was unable to reach a verdict on the other rape count and it was dismissed without prejudice. The trial court sentenced Hines to a seven-year mandatory prison term, five years of postrelease control, and classified him as a Tier III sex offender.

{¶ 15} Hines timely appeals his conviction, setting forth three assignments of error. For ease of discussion we first address the second assignment of error.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE TRIAL COURT ERRED IN PERMITTING THE JURY TO CONSIDER SLEEP TO BE A "PHYSICAL CONDITION" IN DETERMINING WHETHER THE COMPLAINANT'S ABILITY TO RESIST OR CONSENT WAS SUBSTANTIALLY IMPAIRED DUE TO A MENTAL OR PHYSICAL CONDITION.

{¶ 18} Hines was convicted of rape in violation of R.C. 2907.02(A)(1)(c), which provides, in pertinent part:

[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * *, when * * * [t]he other person's ability to resist or consent is substantially impaired because of a mental or physical condition * * *, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

{¶ 19} The state alleged that K.B. was asleep at the time of the alleged sexual assault and that this "physical condition" substantially impaired her ability to resist. The trial court instructed the jury that "sleeping is, if proven, a physical condition" for purposes of the jury's consideration of whether K.B.'s ability to resist was "substantially impaired because of a physical condition." Directing our attention to the legislative history of 1993 Sub. S.B. No. 31, which added subdivision R.C. 2907.02(A)(1)(c) to the rape statute, Hines asserts that the General Assembly did not intend that sleep be considered a "physical condition" substantially impairing a person's ability to resist under the statute. Rather, Hines claims that the legislative history of the statute reveals that it was intended to apply only to impairments resulting from handicap, age, or medical condition. Thus, Hines asserts that the jury instruction provided by the trial court on the issue was reversible error.

{¶ 20} We need not consult the legislative history of the 1993 amendment to R.C. 2907.02, as the language in the statute is free of ambiguity and doubt. State v. Hairston , 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 12, 804 N.E.2d 471 (explaining that the question is not what the general assembly intended to enact, but rather what is the meaning of that which it did enact). The Ohio Supreme Court defines "substantial impairment" in terms of its common usage and has held that "substantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim's ability, either to appraise the nature of [the] conduct or to control [the] conduct." State v. Zeh , 31 Ohio St.3d 99, 103-04, 509 N.E.2d 414 (1987). Additionally, we recently settled the issue and held that "sleep" is a mental or physical condition, which is sufficient to substantially impair a victim's ability to consent to or resist sexual conduct or contact. State v. B.J.T. , 12th Dist. Warren No. CA2016-12-106, 2017-Ohio-8797, 101 N.E.3d 62, ¶ 31. This holding is consistent with several other districts. State v. Jones , 5th Dist. Richland No. 2016 CA 0043, 2017-Ohio-1114, 2017 WL 1155069, ¶ 46 ; State v. H.H. , 10th Dist. Franklin No. 10AP-1126, 2011-Ohio-6660, 2011 WL 6826833, ¶ 10 ; State v. Wine , 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, 2012 WL 2371396, ¶ 50 ; State v. Younger , 8th Dist. Cuyahoga No. 86235, 2006-Ohio-296, 2006 WL 181914, ¶ 28, reversed in part on other grounds by State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 ; State v. Wright , 9th Dist. Medina No. 03CA0057-M, 2004-Ohio-603, 2004 WL 240220, ¶ 6.

{¶ 21} Therefore, the trial court did not err by instructing the jury that sleep is a physical condition and Hines' second assignment of error is overruled.

{¶ 22} Assignment of Error No. 1:

{¶ 23} THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY WITH REGARD TO LESSER INCLUDED OFFENSES.

{¶ 24} Hines contends the trial court abused its discretion by refusing to instruct the jury on sexual battery, gross sexual imposition, and sexual imposition, as lesser included offenses of the rape offense. In so doing, Hines argues a reasonable jury could have found that the evidence did not support one or more elements of rape under R.C. 2907.02(A)(1)(c), but did support the elements of sexual battery, pursuant to R.C. 2907.03(A)(3), sexual imposition, pursuant to R.C. 2907.06(A)(1) and (3), and gross sexual imposition, pursuant to R.C. 2907.05(A)(5). Upon examination, we find that sexual battery, pursuant to R.C. 2907.03(A)(3), and sexual imposition, pursuant to R.C. 2907.06(A)(1) and (3), are not lesser included offenses of rape, pursuant to R.C. 2907.02(A)(1)(c), and that the evidence did not support an instruction on gross sexual imposition, pursuant to R.C. 2907.05(A)(5).

{¶ 25} In considering whether an instruction upon a lesser offense should be given, a trial court must first determine whether an offense is a lesser included offense of the crime charged. State v. Evans , 122 Ohio St. 3d 381, 2009-Ohio-2974, ¶ 13, 911 N.E.2d 889. If that inquiry is answered affirmatively, then the court must proceed to determine whether the evidence in the case supports an instruction on the lesser included offense. Id. This assignment of error raises issues involving each of the foregoing inquiries.

{¶ 26} The test for determining if an offense is a lesser included offense of another crime is "whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed." Id. at ¶ 26. Our analysis of whether sexual battery, pursuant to R.C. 2907.03(A)(3), sexual imposition, pursuant to R.C. 2907.06(A)(1) and (3), and gross sexual imposition, pursuant to R.C. 2907.05(A)(5), are lesser included offense of rape, pursuant to R.C. 2907.02(A)(1)(c), will be confined to the third prong of the test, to wit, "whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed." Evans at ¶ 26.

{¶ 27} The test for determining if an offense is a lesser included offense of another does not involve a consideration of the facts of the offense. Id. at ¶ 13. In this regard, Evans , rejecting the state's invitation to abandon precedent, specifically retained prior holdings that "the evidence presented in a particular case is irrelevant to the determination of whether an offense, as statutorily defined, is necessarily included in a greater offense." Id. However, Evans also clarified that the comparison of the statutory definitions of offenses to determine whether one is a lesser included offense of another,

is not a word game to be performed by rote by matching the words chosen by the legislature to define criminal offenses. * * * The proper overall focus is on the nature and circumstances of the offenses as defined, rather than on the precise words used to define them."

Id. at ¶ 22, citing State v. Thomas , 40 Ohio St.3d 213, 216-17, 533 N.E.2d 286 (1988).

{¶ 28} Summarizing, the Ohio Supreme Court stated that the test "requires a comparison of the elements of the respective offenses in the abstract to determine whether one element is the functional equivalent of the other. If so, and if the other parts of the test are met, one offense is a lesser included offense of the other." Evans at ¶ 25, discussing State v. Deem , 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).

{¶ 29} If it is determined that an offense is a lesser included offense of the crime charged, the evidence in the case becomes relevant to the determination of whether an instruction on the lesser included offense is warranted in the case. An instruction on a lesser included offense is warranted only "[i]f the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged and for the state on the remaining elements, which by themselves would sustain a conviction on a lesser-included offense * * *." State v. Kilby , 50 Ohio St.2d 21, 24-25, 361 N.E.2d 1336 (1977). Thus, "[a] jury instruction on a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal of the crime charged and a conviction on the lesser included offense." State v. Tolle , 12th Dist. Clermont No. CA2014-06-042, 2015-Ohio-1414, 2015 WL 1619083, ¶ 11, citing State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192, 911 N.E.2d 242. In making its decision, the trial court must view the evidence in a light most favorable to the defendant. Id. A jury instruction on a lesser included offense is not required where the evidence presented at trial does not meet this test.

State v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 37, 827 N.E.2d 285. Rather, there must be "sufficient evidence" to "allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior degree) offense." (Emphasis sic.) Trimble at 192, 911 N.E.2d 242. However, an instruction on a lesser included offense is not required "every time 'some evidence', however minute, is presented going to a lesser included (or inferior-degree) offense [or] no trial judge could ever refuse to give an instruction on a lesser included (or inferior degree) offense." State v. Shane , 63 Ohio St.3d 630, 633, 590 N.E.2d 272 (1992).

{¶ 30} We review a trial court's decision to not instruct the jury on a lesser included offense for an abuse of discretion. State v. Doby , 12th Dist. Butler No. CA2013-05-084, 2014-Ohio-2471, ¶ 17. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Boles , 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, 2013 WL 6198310, ¶ 14.

{¶ 31} The state charged and the jury convicted Hines of rape in violation of R.C. 2907.02(A)(1)(c), which provides, in pertinent part:

[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * *, when * * * [t]he other person's ability to resist or consent is substantially impaired because of a mental or physical condition * * *, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

{¶ 32} Sexual battery is defined by R.C. 2907.03(A)(3), as follows: "[n]o person shall engage in sexual conduct with another, not the spouse of the offender, when * * * [t]he offender knows that the other person submits because the other person is unaware that the act is being committed."

{¶ 33} Hines argues that a sexual battery instruction pursuant to R.C. 2907.03(A)(3) was appropriate as a lesser included offense of rape pursuant R.C. 2907.02(A)(1)(c). Specifically, Hines asserts that the jury could have reasonably found that being asleep was not a physical condition substantially impairing K.B.'s ability to resist, as provided by the rape statute, but that being asleep did render her unaware of the assault, as provided by the sexual battery statute.

{¶ 34} Hine's argument is based upon the mistaken premise that the "unawareness" element of sexual battery is included within the "physical condition" and "substantial impairment" elements of rape or that one element is the functional equivalent of the other, as provided in Evans . It is easy to conceive of situations where a person may be unable to resist or consent due to a physical or mental condition, but, nonetheless, is aware of being sexually assaulted. Being asleep is one example. Although sleep diminishes a person's ability to react to external stimuli, it does not render the person unaware of external stimuli. Otherwise, alarm clocks would be useless. The evidence in this case unequivocally illustrates this point, as K.B. was aware of being sexually assaulted, as the pain associated with the assault woke her. Simply stated, though a sleeping person is defenseless, they are not senseless. Thus, the "unawareness" element of sexual battery is not the "functional equivalent" of the "physical condition" and "substantial impairment" elements of rape. Pursuant to the third prong of the Evans test, sexual battery is not a lesser included offense of rape, because rape, pursuant to R.C. 2907.02(A)(1)(c), may be committed without also committing sexual battery, pursuant to R.C. 2907.03(A)(3). Hence, the trial court did not err in refusing to instruct the jury on sexual battery.

{¶ 35} R.C. 2907.06(A) governs sexual imposition and provides, in pertinent part:

[n]o person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.
* *
(3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.

{¶ 36} Sexual imposition pursuant to R.C. 2907.06(A)(1) is not a lesser included offense of rape pursuant to R.C. 2907.02(A)(1)(c). R.C. 2907.06(A)(1) requires knowledge by the offender that the sexual contact is offensive to the victim, or the offender is reckless in that regard. Pursuant to the Evans test, there is no element of rape pursuant to R.C. 2907.02(A)(1)(c), that is the "functional equivalent" of the "sexual contact is offensive to the other person" element of sexual imposition, pursuant to R.C. 2907.06(A)(1). As a matter of fact, the overwhelming majority of sexual assault victims will be offended by the assault. As a matter of law, the fact of being offended by a sexual assault is irrelevant, as Evans makes clear that the evidence in the case is not to be considered in the initial inquiry of whether an offense is lesser included offense of the crime charged. Thus, the trial court did not abuse its discretion in refusing to provide a jury instruction on sexual imposition pursuant to R.C. 2907.06(A)(1).

{¶ 37} Neither is sexual imposition pursuant to R.C. 2907.06(A)(3), a lesser included offense of rape pursuant to R.C. 2907.02(A)(1)(c). Sexual imposition, as defined by R.C. 2907.06(A)(3), includes the same "unawareness" element as sexual battery pursuant to R.C. 2907.03(A)(3). Our above discussion of sexual battery as a lesser included offense of rape demonstrates an impaired ability to resist and being unaware are distinct concepts. Thus, the trial court did not abuse its discretion in refusing to provide a jury instruction on sexual imposition pursuant to R.C. 2907.06(A)(3).

{¶ 38} R.C. 2907.05(A)(5) defines gross sexual imposition and provides, in pertinent part:

[n]o person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender * * * when * * * [t]he ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.

{¶ 39} The sole difference between the pertinent rape and gross sexual imposition subsections is that rape requires proof of sexual conduct whereas gross sexual imposition requires proof of sexual contact. As the definitions set forth below make clear, "sexual conduct," necessarily includes "sexual contact." Therefore, pursuant to the Evans test, gross sexual imposition pursuant to R.C. 2907.05(A)(5) is a lesser included offense of rape pursuant to R.C. 2907.02(A)(1)(c).

{¶ 40} R.C. 2907.01(A) defines "[s]exual conduct" as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; 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 or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(B) defines "[s]exual contact" as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person."

{¶ 41} Hines contends the trial court erred in not providing an instruction on gross sexual imposition because there was evidence for the jury to reasonably conclude no "sexual conduct" occurred. Specifically, Hines relies on his testimony denying having digitally penetrated K.B.'s vagina, a lack of physical evidence, DNA evidence found on the inside of K.B.'s tights, but not inside her vagina, and his own admission that he rubbed her thigh. Hines argues that collectively this evidence reasonably supports a finding of "sexual contact," and thus, an instruction on gross sexual imposition was warranted.

{¶ 42} After a thorough review of the record, viewing the evidence in a light most favorable to Hines, we find there was not sufficient evidence to allow the jury to reasonably reject the greater offense of rape and find the defendant guilty of gross sexual imposition.

{¶ 43} The state narrowly focused and premised its entire case on Hines digitally penetrating K.B.'s vagina. The bill of particulars demonstrates this point, describing the offense, in pertinent part, as follows: "Defendant was sleeping on the floor of the homeowner's daughter['s bedroom] and the victim, K.B., was sleeping in the daughter's bed. K.B. had drank about 4-5 drinks that evening. K.B. awoke to find Defendant's fingers in her vagina." In his trial testimony, Hines admitted to rubbing K.B.'s thigh, but unequivocally denied pulling down her tights and penetrating or rubbing K.B.'s vagina. In other words, Hines offered a complete denial of the essence of the state's case that he had digitally penetrated K.B.'s vagina.

{¶ 44} In State v. Johnson , 36 Ohio St.3d 224, 522 N.E.2d 1082 (1988), the Ohio Supreme Court affirmed a trial court's refusal to provide an instruction on gross sexual imposition in a rape prosecution. "Although it was clear that sexual contact also occurred, the state chose to narrowly focus its case on the rape charges." State v. Cruz , 12th Dist. Butler No. CA2012-03-059, 2013-Ohio-215, 2013 WL 311333, ¶ 20, analyzing Johnson at 226, 522 N.E.2d 1082. Further, the defendant completely denied the rape offenses and the state's case depended upon the victim's testimony regarding penetration because no physical evidence existed. Johnson at 227, 522 N.E.2d 1082. The Ohio Supreme Court held that a criminal defendant is not entitled to an instruction regarding gross sexual imposition as a lesser included offense where the defendant denied participation in the alleged offense, and the jury, in its consideration of the defense "could not reasonably disbelieve the victim's testimony as to 'sexual conduct' and, at the same time, consistently and reasonably believe her testimony of mere 'sexual contact.' " (Citations omitted.) Id. at paragraph two of the syllabus. Thus, if the trial court provided such instruction, then it would allow the jury to make an unreasonable conclusion. Id. at 227, 522 N.E.2d 1082.

{¶ 45} While Hines did not assert a complete denial as in Johnson and Cruz , in the sense that he did not deny that anything happened on the night in question, he did completely deny the narrow focus of the case based upon K.B.'s allegations. In his testimony, Hines admitted to rubbing K.B.'s thigh, denied rubbing, much less penetrating, K.B.'s vagina and offered an explanation for his extra-judicial statements to the contrary. In contrast, K.B. testified unequivocally that Hines placed his fingers within her vagina. As in Johnson , there was no indication that K.B. could not differentiate between Hines' merely rubbing her thigh and digital penetration. Johnson at 227, 522 N.E.2d 1082. Although Hines could have been charged with gross sexual imposition for rubbing K.B.'s thigh, it was a distinct act from the digital penetration that K.B. testified about. Although Hines was willing to admit committing another offense, he denied committing the offense for which he was indicted. Therefore, the trial court did not abuse its discretion by offering the jury the choice to convict Hines of rape if it believed K.B. or to acquit if it did not.

{¶ 46} Additionally, the record reflects many discrepancies in Hine's statements, such as his text message exchange with Rachel where he does not deny digitally penetrating K.B., the controlled call where he admitted to digitally penetrating K.B., and his statement to the police in which he claimed no memory of touching K.B.'s vagina before eventually denying any touching of K.B.'s vagina. Physical evidence also corroborated K.B.'s version of events, as the inside of her tights contained DNA evidence, which the BCI examiner testified she would have to test 38 people before she expected to find another match.

{¶ 47} Based on the foregoing, there is no reasonable basis for the jury to find Hines merely engaged in sexual contact versus sexual conduct. The only evidence tending to support Hines' claim against digital penetration is his trial testimony and a checked box on an intake form indicating no digital penetration by the SANE nurse, which she later explained was due to K.B. being uncomfortable at the beginning of her examination, and that K.B. eventually informed her regarding the digital penetration. See State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 195-96, 911 N.E.2d 242 (refusing lesser included instruction based upon the quality of the evidence advanced in support of such an instruction and the evidence to the contrary). Thus, construing the evidence in a light most favorable to Hines, we find the trial court did not abuse its discretion by not providing a gross sexual imposition instruction.

{¶ 48} Accordingly, Hines' first assignment of error is overruled.

{¶ 49} Assignment of Error No. 3:

{¶ 50} THE TRIAL COURT ERRED IN ADMITTING "OTHER ACTS" EVIDENCE UNDER EV[ID].R. 404(B) AND R.C. 2945.59.

{¶ 51} Hines argues the trial court abused its discretion in admitting the testimony of T.O. that, on a prior occasion, she awoke to find Hines rubbing her vagina over her clothes, because its probative value was substantially outweighed by its prejudicial effect. Hines contends the trial court erred in permitting the jury to consider the evidence for purposes of establishing Hine's motive, intent, knowledge, or absence of mistake or accident, because these purposes were not at issue in the case. Rather, the only issue was whether Hines digitally penetrated K.B.

{¶ 52} "A trial court has broad discretion in the admission and the exclusion of evidence and unless it clearly abused its discretion and appellant is materially prejudiced thereby, an appellate court should not disturb the decision of the trial court." State v. Martin , 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, 2007 WL 4555784, ¶ 9, citing State v. Finnerty , 45 Ohio St.3d 104, 109, 543 N.E.2d 1233 (1989). " 'Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime or that he acted in conformity with bad character.' " State v. Ward , 12th Dist. Clermont No. CA2013-07-059, 2014-Ohio-990, 2014 WL 1356709, ¶ 19, quoting State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. However, the Ohio Supreme Court has promulgated certain exceptions to the common law regarding the admission of "other acts" evidence. Those exceptions are contained in Evid.R. 404(B), which states:

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

{¶ 53} Furthermore, for evidence to be admissible pursuant to Evid.R. 404(B), there must be substantial proof the alleged other acts were committed by the defendant and the evidence must tend to prove one of the enumerated exceptions. State v. Lowe , 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994) ; State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 37. "Substantial proof" is not proof "beyond a reasonable doubt." Jones at ¶ 37.

{¶ 54} Additionally, R.C. 2945.59 provides that

[i]n any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶ 55} The Ohio Supreme Court in Williams outlined a three-part test for courts to apply when considering the admissibility of other acts evidence. Williams at ¶ 19-20. First, the court should "consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Id. at ¶ 20, citing Evid.R. 401. Second, the court should determine if "evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B)." Id. Third, the court should "consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice." Id. , citing Evid.R. 403.

{¶ 56} After thoroughly reviewing the record, we find the trial court did not abuse its discretion in admitting T.O.'s testimony for a limited purpose. The trial court found T.O.'s testimony was relevant to establish Hine's motive, intent, knowledge, or absence of mistake or accident. Additionally, the other acts evidence was particularly probative of Hines' "scheme, plan, or system in doing the act in question" based upon the marked similarity between what is alleged in this case and T.O.'s account of her encounter with Hines.

{¶ 57} T.O. testified that in 2016 she met some friends, including Hines, at a nearby bar for drinks. Eventually, the group left the bar and went back to T.O.'s residence. T.O. went to bed shortly after arriving home and awoke to Hines standing over her and rubbing her vagina over her clothing. T.O. testified she asked Hines what he was doing, and he responded, "what? Do you not want me to do this?" T.O. stated, "no", and after a brief pause, Hines began rubbing her vagina again and asked if she was sure. T.O. again stated, "no" and Hines left the bedroom.

{¶ 58} In the present case, Hines claimed he was trying to "get with" K.B. while she was sleeping. Hines told the police he was trying to kiss her, rub on her, and "wake her up a little bit." Thus, the purpose for this interaction was to precipitate a sexual encounter. Likewise, regarding T.O.'s testimony, Hines rubbed her erogenous zone with the purpose to spark a sexual encounter, which is clearly indicated by the rubbing coupled with the verbal exchange between T.O. and Hines. Moreover, both encounters followed a night of drinking with friends where Hines engaged in alleged sexual contact or conduct with a sleeping girl. Therefore, this evidence was relevant to establish Hine's motive, intent, knowledge, or absence of mistake or accident.

{¶ 59} Additionally, T.O.'s testimony was not admitted to demonstrate Hines' character or conformity with such character. The trial court specifically instructed the jury both before T.O.'s testimony and during final jury instructions that it was not to consider the testimony to prove character or that Hines acted in conformity with such character. Rather, the jury should only consider the evidence for the purposes stated above. State v. Mills , 12th Dist. Clermont No. CA2015-12-101, 2016-Ohio-6985, 72 N.E.3d 76, ¶ 18 (stating a trial court minimalizes potential prejudice by providing limiting instructions before testimony and again before submitting the case to the jury). There is a presumption "that the jury has followed the instructions given to it by the trial court." State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194. Any resulting prejudice from the admission of T.O.'s testimony was minimalized by the trial court's limiting instructions and the record does not reflect any indication that the jury did not follow the trial court's instructions.

{¶ 60} Accordingly, the trial court did not abuse its discretion in admitting T.O.'s testimony and Hines' third assignment of error is overruled.

{¶ 61} Based upon the foregoing, we find no error in the trial court's instruction to the jury that "sleep" may be considered a "physical condition" pursuant to R.C. 2907.02(A)(1)(c), the trial court's refusal to instruct the jury upon sexual battery in violation of R.C. 2907.03(A)(3), gross sexual imposition in violation of R.C. 2907.05(A)(5), and sexual imposition in violation of R.C. 2907.06(A)(1) and (3), as lesser included offenses of rape, or in the admission of the "prior bad acts" evidence. We affirm the trial court and Hines' conviction of rape in violation of R.C. 2907.02(A)(1)(c).

S. POWELL, P.J., and HENDRICKSON, J., concur.

      We note the text message exchange and the controlled call detailed below appear as written by the parties and in the transcript, including all spelling, spacing, grammar, and punctuation.


author: RINGLAND, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Nicole ALLGEYER, Defendant-Appellant.
    NO. CA2017-06-007
    Court of Appeals of Ohio, Twelfth District, Clinton County.
    May 14, 2018
    Richard W. Moyer, Clinton County Prosecuting Attorney, Brian Shidaker, 103 East Main Street, Wilmington, Ohio 45177, for plaintiff-appellee
    Rose & Dobyns Co., LPA, Blaise S. Underwood, 97 North South Street, Wilmington, Ohio 45177, for defendant-appellant
   RINGLAND, J.

{¶ 1} Defendant-appellant, Nicole Allgeyer, appeals from her conviction in the Clinton County Court of Common Pleas for grand theft. For the reasons detailed below, this court affirms Allgeyer's conviction.

{¶ 2} On April 25, 2016, a Clinton County grand jury indicted Allgeyer on one count of grand theft, a violation of R.C. 2913.02(A)(2), and a felony of the fourth degree. The indictment arose from allegations that Allgeyer stole over $14,000 from the Clinton-Massie School District Pee Wee cheerleading team while acting as its director between August 2013 and April 2015. The matter proceeded to a jury trial in March 2017.

{¶ 3} The state introduced testimony from several parents who served in leadership roles in the cheer organization before and during Allgeyer's time as director. Allgeyer possessed the organization's bank card and was authorized to use it in conjunction with purchases for the organization. The treasurer during Allgeyer's directorship testified that she began noticing suspect transactions on the organization's bank statements. The treasurer asked Allgeyer to produce receipts. Allgeyer promised to give the treasurer receipts but did not. Eventually, concerned parents contacted law enforcement, who began an investigation.

{¶ 4} A detective with the Clinton County Sheriff's Office subpoenaed the organization's bank records. He identified numerous suspect transactions occurring at restaurants, gas stations, general merchandise and grocery stores, and ATM cash withdrawals. Many of the items purchased were inconsistent with the typical needs of the cheer organization. The state introduced into evidence documentary exhibits including the organization's bank statements, receipts from various stores where the organization bank card was used, and a summary of suspect transactions.

{¶ 5} In her defense, Allgeyer introduced testimony from another parent involved in the cheer organization who indicated that others in the group used the bank card.

{¶ 6} The jurors found Allgeyer guilty and further found that the value of property involved was greater than $7,500 but less than $150,000, resulting in a fourth-degree felony conviction. The court sentenced Allgeyer to a term of community control and ordered her to make restitution in the amount of $7,501. Allgeyer appeals, raising two assignments of error, which we address together.

{¶ 7} Assignment of Error No. 1:

{¶ 8} APPELLANT'S CONVICTION MUST BE REVERSED AS IT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 9} Assignment of Error No. 2:

{¶ 10} APPELLANT'S CONVICTION MUST BE REVERSED AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 11} Allgeyer contends there was insufficient evidence admitted at trial from which the jurors could conclude that she knew that her use of the organization's funds went beyond its express or implied consent. In this regard, Allgeyer points to the informality of the organization and lack of written rules. And Allgeyer argues that the jurors lost their way in convicting her because of a lack of evidence that she possessed the bank card or used it to make the suspect purchases.

{¶ 12} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Bradbury , 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, 2016 WL 4037002, ¶ 16. The "relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 13} A manifest weight of the evidence challenge, on the other hand, examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. An appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 15. A "determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19.

{¶ 14} The jurors found Allgeyer guilty of grand theft under R.C. 2913.02(A)(2), which provides: "[n]o person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [b]eyond the scope of the express or implied consent of the owner or person authorized to give consent."

{¶ 15} Jody Tolle, who had been involved with the cheer organization since 2008 or 2009 and was its treasurer in 2012, testified that the organization was a Pee Wee cheerleading group that supported the Pee Wee football team. It involved children in the third through sixth grades. The organization had no written policies, bylaws, or rules. However, the director was generally in charge of the organization. The director's responsibilities included ordering uniforms, warm-up clothing, and bows for the cheerleaders. The director would also need to purchase supplies in conjunction with the organization's fundraising events, which included an annual car wash and cookie dough sale. The director possessed the organization's bank card to make these purchases. The bank card was used infrequently and most purchases would have occurred in the spring or fall.

{¶ 16} If the director made a purchase using the bank card, the director was expected to give the treasurer a receipt for that purchase. The treasurer would check the receipt against the organization's bank records and then file the receipt. The treasurer's role was to monitor the organization's funds. The organization's funds were generated exclusively by fundraising efforts and fees paid by the cheerleaders' parents.

{¶ 17} Tolle testified that the director was not permitted to use the bank card to buy personal items as a form of reimbursement. The organization also did not pay for or reimburse its leadership or members for fuel expenses. The director would not have needed to use cash for purchases. Tolle testified that Allgeyer had no special privileges as director.

{¶ 18} Tolle and another parent, Brandalon Cordy, opened the organization's bank account in 2012 and their names were on the account. Cordy testified that she acted as a treasurer for the organization in 2013, when Allgeyer became organization director. Cordy testified that Allgeyer had possession of the organization bank card in 2013. Allgeyer initially provided Cordy with receipts for purchases.

{¶ 19} Later, Cordy noticed suspect transactions on the organization's bank account statements. Specifically, Cordy recalled seeing a charge for a Frisch's restaurant. Cordy asked Allgeyer about the charge and Allgeyer explained that her son accidentally used the card at Frisch's. Allgeyer claimed she would reimburse the organization but never did. Thereafter, Cordy would ask Allgeyer for receipts for suspect transactions. Allgeyer told Cordy that she would provide receipts but never did.

{¶ 20} After Cordy observed ongoing suspicious transactions on the account she decided that she and Tolle needed to remove their names from the account. Allgeyer agreed to meet with Tolle and Cordy at the bank. Tolle and Cordy removed their names from the account and transferred the account to Allgeyer and a successor treasurer, Sara Reynolds. Cordy had Allgeyer sign a hand-written document that stated that Allgeyer agreed that she took "full financial responsibility" for the organization checking account in 2013 and 2014.

{¶ 21} Sara Reynolds had been the director of the organization for three months in 2013. Reynolds testified that she provided receipts for all purchases to either Tolle or Cordy while acting as director. Reynolds testified that it was "clear" that the bank card and funds were to be used solely for the organization and the benefit of the cheerleaders. Reynolds stepped down as director in August 2013. Allgeyer then became the director.

{¶ 22} Dr. David Baits, then superintendent of Clinton-Massie school district, testified that members of the organization raised concerns with him over Allgeyer's use of the organization's monies. Dr. Baits convened two meetings with concerned parents. Dr. Baits invited Allgeyer to the meetings and asked that she bring documentation. Allgeyer did not go to either meeting and did not provide Dr. Baits with any documentation.

{¶ 23} Detective Sergeant Robert Gates testified concerning his criminal investigation. While reviewing the organization's bank records, he identified many suspicious transactions on the account. The transactions began in September 2013-contemporaneous with the start of Allgeyer's directorship-and ended in December 2014. During this time, the bank card was used to make purchases at various gas stations, general merchandise and grocery stores, 20 restaurants, and one tanning salon.

{¶ 24} The bank card was used 11 times at Kroger for charges totaling approximately $474. Detective Gates obtained Kroger records related to these purchases and matched those purchases to a Kroger Plus member account associated with Allgeyer's home address. Purchases at Kroger included Starbucks Frappuccinos and macchiatos, soft drinks, milk, cheese, sour cream, candy, cookies, chips, taco seasoning, chill beans, dip, a 12-pack of Miller Lite beer, a 6-pack of Yuengling, a bottle of Kamchatka vodka, deodorant, shampoo, makeup, a nail kit, toothpaste, and a feminine care product. There were also Kroger fuel charges.

{¶ 25} The bank card was used over 70 times for approximately $1,200 in purchases at gas stations including BP, Shell, Marathon, Sunoco, Speedway, UDF, and Thornton's.

{¶ 26} The bank card was used four times in May and June of 2014 at a Rural King. Items purchased included de-wormer, a horse brush, goat meal, and 50 pounds of swine pellets feed.

{¶ 27} In June 2014, the bank card was used for a $145 purchase at Niketown in Chicago. Detective Gates testified that this purchase coincided with a trip that Allgeyer took to Chicago. In addition, there was a bank card purchase a day earlier at Love's Country Store, which is located on Interstate 74 between Cincinnati and Indianapolis and would have been on the expected driving route to Chicago.

{¶ 28} Finally, Detective Gates testified that the bank card was used to withdraw cash 23 times. Cash withdrawals ranged from $20 to $320 and totaled $2,243.

{¶ 29} Based on the foregoing evidence, this court concludes that rational jurors could find Allgeyer guilty of theft under R.C. 2913.02(A)(2). A similar case from Mahoning County involved a defendant who served as the president of a school parent teacher association ("PTA"). State v. Seeds , 7th Dist. Mahoning No. 16 MA 0055, 2017-Ohio-9069, 2017 WL 6450854. There, the defendant used the PTA's bank card to obtain over $6,000 in cash from ATM withdrawals and another $3,050 in "cash back" after making purchases at various stores. Id. at ¶ 3, 14. The defendant also used the card at various restaurants and for $320 in fuel. Id. The state alleged that these transactions went beyond the scope of the express or implied consent of the PTA.

{¶ 30} Multiple witnesses at the PTA president's trial testified to a known formal process for seeking reimbursement from PTA funds. Id. at ¶ 25. A person would have to provide the PTA board with a receipt and the board would then need to approve reimbursement. Id. at ¶ 15. However, the defendant did not seek approval for any of the suspect expenditures, did not provide the board with any receipts, and also refused to provide two PTA treasurers with bank statements and financial records. Id. at ¶ 25, 27. The court held that these facts constituted evidence sufficient to find that the defendant's expenditures were made without the consent of the PTA board and that the defendant's conviction for theft under R.C. 2913.02(A)(2) was supported by the greater weight of the evidence. Id. at ¶ 29, 36.

{¶ 31} Similarly, the testimony of Tolle, Cordy, and Reynolds established that the cheer organization, despite having no written rules, had a well-known informal policy with respect to spending the organization's monies. Jurors could reasonably surmise that Allgeyer was aware of the organization's policies given her role as director. Allgeyer ignored the organization's rules by failing to provide Cordy with receipts for her use of the bank card. More revealing, Allgeyer failed to provide Cordy with receipts after Cordy requested them and did not provide requested documentation of her activities to Dr. Baits. Jurors could reasonably conclude that Allgeyer's failure to provide receipts to Cordy and documentation to Dr. Baits indicated that she subjectively knew that her use of the bank card to purchase meals, gas, alcohol, livestock supplies, and a tanning session was improper.

{¶ 32} Finally, Allgeyer argues that the jurors lost their way because no evidence established that she had the card continuously after receiving it in 2013. The only evidence to indicate someone other than Allgeyer had possession of the card was Allgeyer's witness, Leah Loveless, who testified that some cheer coaches used the bank card as well. However, jurors could conclude that even if other parents possessed the card at times, the cumulative evidence strongly indicated that all the suspect transactions were undertaken by Allgeyer.

{¶ 33} Allgeyer also argues that no evidence indicated that she used the bank card. Allgeyer's counsel thoroughly cross-examined Detective Gates on this subject at trial. Counsel asked whether the detective had any video evidence indicating that Allgeyer made the suspect purchases. Detective Gates admitted that he either did not possess any video evidence or that video evidence was unavailable by the time he contacted the store.

{¶ 34} Despite the lack of direct evidence, the state introduced circumstantial evidence of Allgeyer's use of the card. The Kroger purchases were made using a Kroger Plus account associated with Allgeyer's home address. Furthermore, the bank card's use at Niketown corresponded with Allgeyer's trip to Chicago and at a country store on the route to Chicago. And there was no real dispute that Allgeyer primarily possessed the card in her role as director of the organization. Consequently, credible circumstantial evidence supported the jurors' conclusion that Allgeyer not only possessed the card but used it to make the suspect purchases.

{¶ 35} Based on the evidence admitted at trial, this court concludes that rational jurors could find Allgeyer guilty beyond a reasonable doubt of theft under R.C. 2913.02(A)(2). The jurors did not lose their way and Allgeyer's conviction is supported by the manifest weight of the evidence. Our decision with respect to the weight of the evidence is dispositive of the issue of sufficiency. Jones , 2013-Ohio-150 at ¶ 19. Accordingly, this court overrules Allgeyer's first and second assignments of error.

{¶ 36} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.