[Cite as State v. Steele, 2012-Ohio-3777.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. Patricia A. Delaney, J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-110
JOSHUA STEELE                                   :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Delaware County
                                                    Court of Common Pleas, Case No. 11CR-I-
                                                    08-0463

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             August 17, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant
CAROL O’BRIEN
GREGORY TAPOCSI                                     SCOTT WOLF
Delaware County Prosecutor                          Firestone, Brehm, Hanson & Wolf, LLP
140 N. Sandusky Street                              15 West Winter Street
Delaware, OH 43015                                  Delaware, OH 43015
[Cite as State v. Steele, 2012-Ohio-3777.]


Gwin, J.

        {¶1}     Appellant Joshua J. M. Steele [“Steele”] appeals from the October 31,

2011 judgment entry of the Delaware County Court of Common Pleas convicting him

after a jury trial of five counts of Unlawful Sexual Conduct with a Minor, two counts of

Rape, and one count of Gross Sexual Imposition. Appellee is the State of Ohio.

                                               FACTS

        {¶2}     Beginning in 2006, Rich and Mindy Lyons, along with their three children

Jonathan, Nicole, and victim J.L., lived on a rented farm. In 2009, Steele, Mr. Lyons'

nephew, moved into the Lyons' home so Steele could be closer to his employment at a

nearby golf course. Steele left for work daily at approximately 6:30 a.m. and returned to

the home at approximately 3:00 p.m., at which time the family members would perform

various chores, eat dinner, and watch movies. Due to a recent back surgery, Mr. Lyons

went to sleep by 10:00 p.m. while Mrs. Lyons worked third shift at a local factory from

8:30 p.m. until 6:00 a.m.

        {¶3}     After Mr. and Mrs. Lyons went to either sleep or work respectively, Steele,

J.L., and her sister Nicole would often watch movies in the basement of the home.

However, Nicole would go to bed at which time Steele would make his cousin J.L. touch

him and have sex with him. This occurred almost every night. According to J.L., Steele

first tried to persuade J.L. to engage in sexual activity by buying her items such as

Monster energy drinks. When J.L. refused Steele’s advances, he began molesting her

by forcing J.L. to masturbate him and later progressed to forced oral and vaginal sex.

J.L. testified that forced sexual encounters occurred in the living room, basement, and

bedroom.
Delaware County, Case No. 2011-CA-110                                                   3


      {¶4}   Mr. and Mrs. Lyons were unaware of Steele’s victimization of J.L. even

though they viewed several suspicious activities that were later determined to be

indicators of Steele’s molestation of J.L. For example, Mrs. Lyons was awakened late

one night by the family dog barking in J.L.'s room. Mrs. Lyons found Steele in the room

supposedly to retrieve "movies." Further, Mr. Lyons viewed Steele alone with J.L. on

one occasion during which Mr. Lyons observed Steele to have "pinned" a crying J.L.

between their house and a line of cars. J.L. also began sleeping with her father or had

the family dog sleep with her as well in an effort to try to stop Steele’s unwanted sexual

advances. Moreover, while Steele lived with the Lyons' family, J.L. was very depressed

and refused to socialize with anyone, which was completely different from her "happy

normal self' and her demeanor as a "happy go lucky kid."

      {¶5}   J.L. did not disclose Steele’s criminal actions until roughly one year later

because she was "scared" of him after he previously held a knife up to her arm and was

further "worried about getting in trouble" by her parents. J.L. eventually told a friend

about Steele's acts and the friend stated she would tell J.L.'s parents even if J.L.

refused to do so. As a result, J.L. eventually disclosed to her parents on March 7, 2010,

that Steele molested her. Mr. Lyons subsequently called the Delaware County Sheriff’s

Office. Detective Christina Burke was assigned to investigate J.L.'s case. Steele spoke

to Detective Burke and denied all of the allegations.
Delaware County, Case No. 2011-CA-110                                                  4

                                  PROCEDURAL HISTORY

      {¶6}   On March 25, 2011, an indictment (Case No. 11 CRI 03 0176) was filed in

the Delaware County Common Pleas Court charging Steele, with four counts of rape, all

violations of Ohio Revised Code Section 2907.02(A)(2), four counts of Unlawful Sexual

Conduct with a Minor, all violations of Ohio Revised Code Section 2907.04(A), one

count of Gross Sexual Imposition, a violation of Ohio Revised Code Section

2907.05(A)(1), and three counts of Gross Sexual Imposition, all violations of Ohio

Revised Code Section 2907.05(A)(4).

      {¶7}   The original case was dismissed and Steele was re-indicted on August 26,

2011 (Case No. 11 CRI 08 0463). The new indictment charged Steele with five counts

of rape, all violations of Ohio Revised Code Section 2907.02(A)(2), five counts of

Unlawful Sexual Conduct with a Minor, all violations of Ohio Revised Code Section

2907.04(A), one count of Gross Sexual Imposition, a violation of Ohio Revised Code

Section 2907.05(A)(1), and one count of Gross Sexual Imposition, a violation of Ohio

Revised Code Section 2907.05(A)(4).

      {¶8}   Nine items retrieved from the Lyons’ home were submitted to the Ohio

Bureau of Criminal Identification and Investigation [BCI & I] for DNA testing. The first

five items were pieces of physical evidence obtained from Steele's living quarters in the

basement of J.L.'s home: a couch cover, a washcloth, a sleeping bag, a fitted sheet,

and a flat sheet. The last four items submitted were DNA samples obtained from J.L.,

her sister Nicole, her brother Jonathan, and Steele to be used for comparison.
Delaware County, Case No. 2011-CA-110                                                   5


       {¶9}   According to the report, the sleeping bag was found to contain semen and

was also found to be presumptive for the presence of blood. However, subsequent

testing at BCI & I indicated that a probative DNA sample could not be obtained.

       {¶10} During the course of trial preparation, the state learned the four other

physical items taken from Steele's living quarters were also tested by BCI & I and tested

positive for either semen or seminal fluid. At the final pre-trial conference held

September 2, 2011, the state asked for a continuance of the September 6, 2011 trial

date in order for the test results to be completed and supplied to Steel’s attorney in

compliance with Crim.R.16 (K). Steele objected to the continuance. As a result, the trial

court denied the state’s request to continue the trial and ruled the new evidence was not

admissible at trial. (3T. at 270-271; 5T. at 470-471).

       {¶11} Trial commenced on September 6, 2011. After the close of evidence on

the first day of trial Steele’s attorney received a copy of the DNA report. According to

the report, the results of the DNA comparison reveal that the

       Differential extraction of the couch cover (item 1.1) resulted in a mixture of

       at least two individuals and is consistent with contributions from Joshua

       Steele. No conclusions can be made regarding [J.L.], Nicole Lyons and

       Jonathon Lyons as possible contributors to the mixture.” Furthermore, "the

       differential extraction of the washcloth (item 2.1) resulted in a single DNA

       profile from an unknown female" and that the "differential extraction of the

       fitted sheet (Item 4.1) and the flat sheet (Item 5.1) resulted in a single DNA

       profile from the same unknown male.” Furthermore, the results revealed,
Delaware County, Case No. 2011-CA-110                                                    6


       "[J.L.], Nicole Lyons, Jonathon Lyons and Joshua Steele are not the

       source of the DNA from the washcloth, the fitted sheet or the flat sheet.

       {¶12} At trial, the State introduced a copy of a laboratory report produced by

Sarah Glass, a forensic biologist with the BCI & I, as State's Exhibit 18. This evidence

was limited to the evidence pertaining to the sleeping bag. In addition, J.L., her parents

Richard and Mindy Lyons, therapist Marjan Cuckler, testified on behalf of the state.

       {¶13} At the conclusion of the state's case-in-chief, the trial court granted

Steele's Crim.R. 29 Motion for Acquittal regarding Count Twelve of the Indictment.

Count Twelve concerned a previous occurrence of sexual conduct by Steele against

J.L. at a location in Franklin County, which occurred sometime between 2001 and 2004.

During this incident, J.L., who was age six at the time, stayed at the residence of

Steele’s parents while her parents were out of town. J.L. testified that during that visit,

she was lying on her side on a bed when Steele lay behind her and placed his erect

penis against her buttocks while both were clothed. The trial court noted Count Twelve

was alleged to have occurred between 2001 and 2004 while the other counts occurred

five years later in 2009 at a different location. Accordingly, the trial court granted

Steele’s Crim.R. 29 motion regarding Count Twelve.

       {¶14} Steele testified in his own defense. His mother Pamela Steele testified

concerning her knowledge of the facts. Norma Wells, a neighbor, testified as to Steele’s

character. Nicole Lyons, who is J.L.'s sister, testified on Steele’s behalf as to her

personal observations of Steele and J.L. The state then called Richard Lyons as a

rebuttal witness.
Delaware County, Case No. 2011-CA-110                                           7


        {¶15} The jury returned with guilty verdicts on Count Two (Unlawful Sexual

Conduct with a Minor, F3), Count Four (Unlawful Sexual Conduct with a Minor, F3),

Count Five (Rape, F1), Count Six (Unlawful Sexual Conduct with a Minor, F3), Count

Eight (Unlawful Sexual Conduct with a Minor, F3), Count Nine (Rape, F1), Count Ten

(Unlawful Sexual Conduct with a Minor, F3),         and Count Eleven (Gross Sexual

Imposition(Force), F3). The jury made findings of Not Guilty on Counts One (Rape),

Three (Rape), and Seven (Rape).

                                  ASSIGNMENTS OF ERROR

        {¶16} Steele raises four assignments of error,

        {¶17} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

DENYING THE DEFENDANT-APPELLANT'S CRIMINAL RULE 33 MOTION FOR A

NEW TRIAL BASED UPON THE STATE'S AMENDMENT OF THE COMPLAINT.

        {¶18} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A RULE 29 ACQUITTAL.

        {¶19} III. “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A NEW TRIAL BASED

UPON THE DISCOVERY OF NEW EVIDENCE WHICH WOULD HAVE BEEN KNOWN

PRIOR AT OR PRIOR TO TRIAL BUT FOR A BRADY VIOLATION BY THE STATE OF

OHIO.

        {¶20} “IV. THE JURY'S GUILTY VERDICTS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED AT THE TRIAL IN THIS MATTER.”
Delaware County, Case No. 2011-CA-110                                                      8


                                                I.

      {¶21} In his first assignment of error, Steele maintains that the trial court erred in

not granting him a new trial based upon the state’s amendment of the Indictment.

      {¶22} In the case sub judice, at the close of the state's presentation of evidence

and immediately prior to resting its case, the state moved to amend the time period

alleged in the indictment pursuant to Criminal Rule 7(D). The amendment expanded the

time period contained in the Indictment from “May 1, 2009 through September 1, 2009,”

to “March 1, 2009 through September 1, 2009.” (5T. at 450).

      {¶23} Crim.R.33, provides the procedure for obtaining a new trial, state, in part,

             (A) Grounds

             A new trial may be granted on motion of the defendant for any of

      the following causes affecting materially his substantial rights:

             (1) Irregularity in the proceedings, or in any order or ruling of the

      court, or abuse of discretion by the court, because of which the defendant

      was prevented from having a fair trial;

             (2) Misconduct of the jury, prosecuting attorney, or the witnesses

      for the state;

             (3) Accident or surprise which ordinary prudence could not have

      guarded against;

             (4) That the verdict is not sustained by sufficient evidence or is

      contrary to law. If the evidence shows the defendant is not guilty of the

      degree of crime for which he was convicted, but guilty of a lesser degree

      thereof, or of a lesser crime included therein, the court may modify the
Delaware County, Case No. 2011-CA-110                                                9


     verdict or finding accordingly, without granting or ordering a new trial, and

     shall pass sentence on such verdict or finding as modified;

            (5) Error of law occurring at the trial;

            (6) When new evidence material to the defense is discovered which

     the defendant could not with reasonable diligence have discovered and

     produced at the trial. When a motion for a new trial is made upon the

     ground of newly discovered evidence, the defendant must produce at the

     hearing on the motion, in support thereof, the affidavits of the witnesses by

     whom such evidence is expected to be given, and if time is required by the

     defendant to procure such affidavits, the court may postpone the hearing

     of the motion for such length of time as is reasonable under all the

     circumstances of the case. The prosecuting attorney may produce

     affidavits or other evidence to impeach the affidavits of such witnesses.

            ***

            (E) Invalid grounds for new trial

            No motion for a new trial shall be granted or verdict set aside, nor

     shall any judgment of conviction be reversed in any court because of:

            (1) An inaccuracy or imperfection in the indictment, information, or

     complaint, provided that the charge is sufficient to fairly and reasonably

     inform the defendant of all the essential elements of the charge against

     him.

            (2) A variance between the allegations and the proof thereof,

     unless the defendant is misled or prejudiced thereby;
Delaware County, Case No. 2011-CA-110                                                      10


                (3) The admission or rejection of any evidence offered against or

       for the defendant, unless the defendant was or may have been prejudiced

       thereby;

                (4) A misdirection of the jury, unless the defendant was or may

       have been prejudiced thereby;

                (5) Any other cause, unless it affirmatively appears from the record

       that the defendant was prejudiced thereby or was prevented from having a

       fair trial.

       {¶24} The decision whether to grant or deny a motion for mistrial lies within the

sound discretion of the trial court, and its decision will not be reversed on appeal absent

an abuse of discretion that has adversely affected substantial rights of the accused such

that a fair trial is no longer possible. State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623,

1995-Ohio-168; State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900(1988); State v.

Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490(2nd Dist. 1988).

       {¶25} Steel’s argument concerns the amendment of the Indictment to include the

months of March and April 2009. Steele argues that the state “amended an element of

the offense which it failed to prove in its case in chief.” [Appellant’s Brief at 6].

       {¶26} Specificity as to the time and date of an offense is not required in an

indictment. Under R.C. 2941.03: “an indictment or information is sufficient if it can be

understood therefrom: * * * (E) That the offense was committed at some time prior to the

time of filing of the indictment * * *.” An indictment is not invalid for failing to state the

time of an alleged offense or doing so imperfectly. The state is not required to prove that

an offense occurred on any specific date, but rather may prove that the offense
Delaware County, Case No. 2011-CA-110                                                    11

occurred on a date reasonably near that charged in the indictment. State v. Adams, 5th

Dist. No. 02-CA-00043, 2002-Ohio-5953 at ¶ 8.

       {¶27} If such is not fatal to an indictment, it follows that impreciseness and

inexactitude of the evidence at trial is not “per se impermissible or necessarily fatal to a

prosecution.” State v. Robinette, 5th Dist. No. CA-652, 1987 WL 7153(Feb 27, 1987).

The question in such cases is whether the inexactitude of temporal information truly

prejudices the accused's ability fairly to defend himself. State v. Sellards, 17 Ohio St.3d

169, 478 N.E.2d 781(1985); State v. Gingell, 7 Ohio App.3d 364, 368, 455 N.E.2d 1066,

1071(1st Dist. 1982); State v. Kinney, 35 Ohio App.3d 84, 519 N.E.2d 1386(1987).

       {¶28} As this court has noted: “[t]ime is neither essential nor an element of the

crime of sexual battery.” State v. Robinette, supra. In Robinette, this court stated,

              We note that these particular cases often make it more difficult to

       ascertain specific dates. The victims are young children who may

       reasonably be unable to remember exact times and dates of

       psychologically traumatic sexual abuses. This is especially true where the

       crimes involve several instances of abuse spread out over an extended

       period of time. State v. Humfleet (Sept. 9, 1985), Clermont App. No.

       CA84-04-031, unreported, at 15. The problem is compounded where the

       accused and the victim are related or reside in the same household,

       situations which often facilitate an extended period of abuse. An allowance

       for reasonableness and inexactitude must be made for such cases

       considering the circumstances.
Delaware County, Case No. 2011-CA-110                                                   12

       {¶29} In State v. Sellards, the Supreme Court gave two examples of when the

failure to provide specific dates and times could be prejudicial to the accused. The court

first noted that if the age of the victim were an element of the crime with which the

accused had been charged and the victim bordered on the age required to make the

conduct criminal, then the failure to provide a more specific time frame would be

prejudicial. This is true because “specific dates of sexual conduct might well have

become critical to the accused's ability to prepare a defense, since sexual conduct

toward one thirteen years of age or older would not constitute the offense of rape as

defined in the charged section of the criminal code, R.C. 2907.02(A)(3).” Sellards, 17

Ohio St.3d at 172, 478 N.E.2d at 785. The second situation is where “the defendant had

been imprisoned or was indisputably elsewhere during part but not all of the intervals of

time set out in the indictment. Again, under such circumstances, the inability of the state

to produce a greater degree of specificity would unquestionably prejudice the defense.”

Id. The Sellards court noted,

              The record in this case does not indicate that the failure to provide

       the accused with a specific date was a material detriment to the

       preparation of his defense. In this regard, we note that while appellee

       claims on appeal that the inexactitude of the indictment and bill of

       particulars as to date denied him the ability to present an alibi defense,

       appellee never filed a notice of intent to rely on an alibi as is required by

       Crim.R. 12.1. (Cf. State v. Dingus [1970], 26 Ohio App.2d 131, 137, 269

       N.E.2d 923 [55 O.O.2d 280]; Gingell, supra, at 368, 455 N.E.2d 1066.)

17 Ohio St.3d 169, 478 N.E.2d 781(1985).
Delaware County, Case No. 2011-CA-110                                                   13


       {¶30} In the case at bar, Steele could have, but did not, request a continuance in

response to the trial court’s decision to amend the indictment. Further, we find that

Steele was fully aware the time during which the crimes were alleged to have occurred

is the time that he lived in the Logan’s home. Steele did not deny that he lived there.

Steele did not file a notice of alibi for any of the period set forth in the original

indictment. J.L. testified at trial and Steele fully cross-examined her concerning the time

during which the crimes had occurred and the fact that the dates included the spring

and summer months. (4T. at 336-339; 354-357).

       {¶31} Steele has not demonstrated that the inclusion of March and April 2009 in

the case was material to any defense theory he put forth at trial; rather he makes only a

generalized assertion.

       {¶32} The inexactitude of temporal information did not truly prejudice Steele’s

ability fairly to defend himself. In addition, we find that Steele was adequately apprised

of the crimes against him and was not denied a fair trial.

       {¶33} Accordingly, the trial court did not abuse its discretion in denying Steele’s

motion for a new trial.

       {¶34} Steel’s first assignment of error is overruled in its entirety.

                                              II. & IV.

       {¶35} Because Steele’s second and fourth assignments of error each require us

to review the evidence, we shall address the assignments collectively.

       {¶36} In his second assignment of error, Steele alleges that the trial court erred

in not granting his Crim. R. 29 motion for acquittal. In determining whether a trial court

erred in overruling an appellant's motion for judgment of acquittal, the reviewing court
Delaware County, Case No. 2011-CA-110                                                     14

focuses on the sufficiency of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545,

553, 651 N.E.2d 965, 974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d

492(1991).

       {¶37} In his fourth assignment of error, Steele maintains that his convictions are

against the sufficiency of the evidence and against the manifest weight of the evidence,

respectively.

       {¶38} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, _U.S._, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

       {¶39} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue
Delaware County, Case No. 2011-CA-110                                                        15


which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶40} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts. * * *

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”
Delaware County, Case No. 2011-CA-110                                                     16

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶41} In the case at bar, Steele was convicted of Rape, Unlawful Sexual

Conduct with a Minor, and Gross Sexual Imposition.

      {¶42} In order to convict Steele of Rape pursuant to R.C. 2907.02(A)(2), the

state had to prove he engaged in sexual conduct with J.L. by force or threat of force.

      {¶43} “Corroboration of victim testimony in rape cases is not required. See

State v. Sklenar (1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks

(1991), 71 Ohio App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio

App.3d 624, 638, 591 N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7

OBR 464, 455 N.E.2d 1066.” State v. Johnson, 112 Ohio St .3d 210, 217, 2006-

Ohio6404 at ¶ 53, 858 N.E.2d 1144, 1158.

      {¶44} In the case at bar, J.L. testified to specific acts occurring in the living room,

basement and bedroom. Steele forced her to touch his erect penis and then to have oral

or vaginal sex.

      {¶45} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Steele had sexual conduct with J.L. and further that he committed the crimes of Rape.

We hold, therefore, that the state met its burden of production regarding each element

of the crimes of rape and, accordingly, there was sufficient evidence to support Steele’s

convictions for Rape.

      {¶46} In addition to Rape, the jury convicted Steele of Unlawful Sexual Conduct

with a Minor pursuant to R.C. 2907.04, which provides,
Delaware County, Case No. 2011-CA-110                                                    17


              (A) No person who is eighteen years of age or older shall engage in

       sexual conduct with another, who is not the spouse of the offender, when

       the offender knows the other person is thirteen years of age or older but

       less than sixteen years of age, or the offender is reckless in that regard.

       {¶47} “Sexual conduct” is defined to include “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 cavity of another.

Penetration, however slight, is sufficient to complete vaginal or anal intercourse.” R.C.

2907.01(A).

       {¶48} In the case at bar, Counts Two and Eight of the Indictment were alleged to

be vaginal intercourse; Count Ten was alleged to be fellatio. Count Ten was found to be

an allied offense of Count Nine (Rape). Therefore, Steele received no sentenced on the

charge of Unlawful Sexual Conduct with a Minor as found in Count Ten, the state

choosing instead to sentence Steel on the Rape as found in Count Nine.

       {¶49} The jury found Steele not guilty of Rape as alleged in Counts Three and

Seven, choosing instead to find Steele Guilty of the Unlawful Sexual Conduct with a

Minor charges in Counts Two and Eight.

       {¶50} J.L. testified that Steele forced her to have vaginal intercourse in the living

room, in which he used a blanket to cover-up; the basement during which he used a

sleeping bag to cover-up ; and in J.L.’s bedroom.

       {¶51} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that
Delaware County, Case No. 2011-CA-110                                                    18


Steele had sexual conduct with J.L. and further that he committed the crime of Unlawful

Sexual Conduct with a Minor, as alleged in Counts Two, Eight and Ten. We hold,

therefore, that the state met its burden of production regarding each element of the

crimes of Unlawful Sexual Conduct with a Minor. Accordingly, there was sufficient

evidence to support Steele’s conviction for Unlawful Sexual Conduct with a Minor, as

alleged in Counts Two, Eight and Ten.

       {¶52} Steel was also convicted of Gross Sexual Imposition pursuant to R.C.

2907.05(A)(1), which prohibits “sexual contact” when the offender purposely compels

the other person to submit by force or threat of force. “Sexual Contact” is defined 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”. R.C. 2907.01. Accordingly, touching the

“erogenous zone” is what is prohibited.

       {¶53} J.L. testified that during the living room incident, Steele grabbed her hand

and pulled it over to his penis.

       {¶54} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Steele had sexual contact with J.L. and further that he committed the crime of Gross

Sexual Imposition. We hold, therefore, that the state met its burden of production

regarding each element of the crimes of Gross Sexual Imposition. Accordingly, there

was sufficient evidence to support Steele’s conviction for Gross Sexual Imposition.

       {¶55} In addition to J.L.’s testimony, we note the state presented circumstantial

evidence to support the charges. J.L.'s mother and father testified as to her demeanor
Delaware County, Case No. 2011-CA-110                                                         19


before, during, and after Steele's repeated sexual assaults. Evidence was presented to

show that J.L. strangely began sleeping in her parents' bed while Steele was staying

with the family. J.L.’s father testified that he was only awakened by J.L. one time while

Steele was living at the residence during which J.L. crawled into his bed, began crying,

and refused to tell her father the reasons. Further, forensic scientist Sarah Glass

described how she located semen from a sleeping bag in the basement of the home at

issue.

         {¶56} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.

In other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,

at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

         {¶57} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may
Delaware County, Case No. 2011-CA-110                                                 20


take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752

(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714

(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-

Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State

v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79

Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have

been circumstantial, we note that circumstantial evidence has the same probative value

as direct evidence. State v. Jenks, supra.

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts. * * *

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶58} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,
Delaware County, Case No. 2011-CA-110                                                    21


              The mere number of witnesses, who may support a claim of one or

       the other of the parties to an action, is not to be taken as a basis for

       resolving disputed facts. The degree of proof required is determined by

       the impression which the testimony of the witnesses makes upon the trier

       of facts, and the character of the testimony itself. Credibility, intelligence,

       freedom from bias or prejudice, opportunity to be informed, the disposition

       to tell the truth or otherwise, and the probability or improbability of the

       statements made, are all tests of testimonial value. Where the evidence is

       in conflict, the trier of facts may determine what should be accepted as the

       truth and what should be rejected as false. See Rice v. City of Cleveland,

       114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

       {¶59} Although Steele cross-examined the witnesses and argued that J.L.

lacked credibility and had made false allegations because she was jealous of her

sister’s relationship with Steele, the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio

St.3d 182, 552 N.E.2d 180(1990).

       {¶60} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best

position to evaluate this competent, credible evidence, and we will not substitute our

judgment for that of the trier of fact. The jury neither lost their way nor created a

miscarriage of justice in convicting Steele of the charges.
Delaware County, Case No. 2011-CA-110                                                     22


       {¶61} Steele’s second and fourth assignments of error are overruled in their

entirety.

                                                III.

       {¶62} In his third assignment of error, Steele argues that the failure of the state

to provide him before trial with the results of DNA testing concerning four items taken

from his living quarters at the Lyons’ home was prejudicial error. Steele contends that

the state withheld this evidence from him in violation of Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215(1963).

       {¶63} Under Brady, the State violates a defendant’s right to due process if it

withholds evidence that is favorable to the defense and material to the defendant’s guilt

or punishment. See 373 U. S., at 87. The Supreme Court has explained, “evidence is

‘material’ within the meaning of Brady when there is a reasonable probability that, had

the evidence been disclosed, the result of the proceeding would have been different.”

Cone v. Bell, 556 U. S. 449, 469–470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). A

reasonable probability does not mean that the defendant “would more likely than not

have received a different verdict with the evidence,” only that the likelihood of a different

result is great enough to “undermine [] confidence in the outcome of the trial.” Kyles v.

Whitley, 514 U. S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation

marks omitted).

       {¶64} In State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913(1990), the Ohio

Supreme Court rejected a claim that the state's failure to provide exculpatory

information to the defendant prior to trial was a reversible Brady violation for three

reasons. First, the Court noted that in United States v. Agurs (1976), 427 U.S. 97, 103,
Delaware County, Case No. 2011-CA-110                                                      23


96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, the United States Supreme Court noted that the

rule of Brady applies to situations involving the discovery, after trial, of information which

was known to the prosecution but unknown to the defense. In Wickline, the alleged

exculpatory records were presented during the trial, and therefore no Brady violation

existed. 50 Ohio St.3d at 116, 552 N.E.2d 913. Accord, State v. Hanna, 95 Ohio St.3d

285, 767 N.E.2d 678, 2002-Ohio-2221, ¶82; State v. Green, 90 Ohio St.3d 352, 372,

738 N.E.2d 1208(2000).

       {¶65} Second, the court in Wickline noted that Crim. R. 16(E)(3) provides:

              If at any time during the course of the proceedings it is brought to

       the attention of the court that a party has failed to comply with this rule or

       with an order issued pursuant to this rule, the court may order such party

       to permit the discovery or inspection, grant a continuance, or prohibit the

       party from introducing in evidence the material not disclosed, or it may

       make such other order as it deems just under the circumstances.

       {¶66} The court held that the appellant could have pursued less drastic means

than seeking a new trial. Id. The appellant argued that no remedial order could have

ensured his right to a fair trial because the leading witness against him had already

testified. The court concluded that pursuant to Crim. R. 16(E)(3), the trial court was

empowered to order the return of the witness and make her available for continued

cross-examination. Id. at 117, 552 N.E.2d 913.

       {¶67} Finally, the Wickline court concluded that the appellant had failed to show

how the outcome of his trial would have been different had the materials been disclosed

prior to trial. Id. In determining whether the prosecution improperly suppressed evidence
Delaware County, Case No. 2011-CA-110                                                     24


favorable to an accused, the evidence is material only if there is a reasonable

probability that the result of the proceeding would have been different had the evidence

been disclosed to the defense. Id., citing State v. Johnston, 39 Ohio St.3d 48, 529

N.E.2d 898(1988), paragraph 5 of the syllabus. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id.

       {¶68} As in Wickline, Steele was given access to the complete report during trial,

and, therefore, a Brady violation did not occur. While it is unclear whether counsel

looked at the report during the trial, had counsel done so when it was made available to

him and believed the information therein was material Steele could have asked the trial

court to revisit the prior ruling sustaining Steel’s request that the report not be

admissible. “Brady applies only to material discovered after trial because the defendant,

if he chooses to, can generally ensure that material discovered prior to or during trial will

be entered into evidence and is, thus, not substantially prejudiced.” State v. Aldridge,

120 Ohio App.3d 122, 146, 697 N.E.2d 228(2nd Dist. 1997).
Delaware County, Case No. 2011-CA-110                                                25


       {¶69} At trial, Steele did argue that the DNA evidence did not match him. (6T. at

679). He further suggested that the DNA might belong to someone else from whom a

sample had not been obtained for comparison. (Id. at 685). Thus, Steele has not

demonstrated a reasonable probability of a change in the outcome had he been given

the entire report prior to the start of the trial.

       {¶70} Steele’s third assignment of error is overruled in its entirety.

       {¶71} Accordingly, the judgment of the Delaware County Court of Common

Pleas is affirmed.

By: Gwin, J.,

Delaney, P.J., and

Wise, J., concur


                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY


                                                     _________________________________
                                                     HON. JOHN W. WISE
WSG:clw 0731
[Cite as State v. Steele, 2012-Ohio-3777.]


              IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JOSHUA STEELE                                     :
                                                  :
                                                  :
                         Defendant-Appellant      :       CASE NO. 2011-CA-110




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Delaware County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. JOHN W. WISE
