COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69490 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID SPENCER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 6, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-321838 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: RALPH KOLASINSKI (#0004739) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER, Cuyahoga County Public Defender BY: ROBERT R. CLARICO (#0062067) Assistant County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 - 2 - SPELLACY, C.J.: Defendant-appellant, David S. Spencer, Jr., ("appellant") appeals from his jury conviction for two counts of rape of children under the age of thirteen, in violation of R.C. 2907.02; four counts of felonious sexual penetration, in violation of R.C. 2907.12; and two counts of gross sexual imposition, in violation of R.C. 2907.05. Appellant raises the following assignments of error upon appeal: I. WHEN IT ALLOWED INCOMPETENT MINOR CHILDREN TO TESTIFY, THE TRIAL COURT ABUSED ITS DISCRETION AND THEREBY DEPRIVED APPELLANT DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO. II. THE TRIAL COURT ERRED WHEN IT ADMITTED OUT OF COURT STATEMENTS WHERE NO EXCEPTION TO EVID.R. 802 APPLIED. III. MR. SPENCER'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE COMMENTED ON HIS DECISION TO INVOKE HIS RIGHT TO REMAIN SILENT. IV. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NOT SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF ATTEMPTED AGGRAVATED BURGLARY HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Finding none of the assignments of error to have merit, we affirm the decision of the trial court. I. On April 4, 1995, appellant was issued a twenty-count indict- ment. Counts one and two charged appellant with rape, in violation - 3 - of R.C. 2907.02, of Tyrone Gaston, a child under the age of thirteen. Counts three, four, and five charged appellant with attempted rape, in violation of R.C. 2923.02, rape, and felonious sexual penetration, in violation of R.C. 2907.12, of Marquita Heard, a child under the age of thirteen. Count six charged appellant with felonious sexual penetration, in violation of R.C. 2907.12, of Robert Heard. Counts seven, eight, nine, ten, and eleven charged appellant with rape, rape, gross sexual imposition, gross sexual imposition, and gross sexual imposition of Berry Peterson. Counts twelve, thirteen, and fourteen charged appellant with rape, felonious sexual penetration, and gross sexual imposition of Brandon Brooks. Counts fifteen, sixteen, seventeen and eighteen charged appellant with rape, felonious sexual imposition, gross sexual imposition, and gross sexual imposition of Brittany Brooks. Count nineteen charged appellant with gross sexual imposition of Elizabeth Barnes. And, count twenty charged appellant with gross sexual imposition of Yvonne Barnes. On August 1, 1995, a jury trial was held. Pursuant to Crim. R. 29, the trial court dismissed counts two, three, four, seven, eight, nine, ten, eleven, fourteen, nineteen, and twenty of appellant's twenty-count indictment. Subsequently, the jury found appellant guilty of rape on counts one and fifteen in violation of R.C. 2907.02 each with an aggravated felony specification; felonious sexual penetration on counts five, six, thirteen, and sixteen in violation of R.C. 2907.12 each with an aggravated - 4 - felony specification; gross sexual imposition on counts seventeen and eighteen in violation of R.C. 2907.05 each with a violence specification. Appellant, however, was found not guilty of rape of Brandon Brooks on count twelve in violation of R.C. 2907.02. On August 2, 1995, the trial court merged count fifteen with count eighteen and count sixteen with count seventeen. Subsequently, appellant was sentenced on counts one, five, thirteen, fifteen, and sixteen each for a term of life; and fifteen years actual to twenty-five years on count six. All counts are to run consecu- tively. II. This case involves the sexual abuse by appellant of several minor children, namely Tyrone Gaston, five-years old; Marquita Heard, four-years old; Robert Heard, thirteen-years old; Barry Peterson, three-years old; Brandon Brooks, four-years old; Brittany Brooks, six-years old; Elizabeth Barnes, four-years old; and Yvonne Barnes, five-years old. Prior to trial, the court conducted a competency hearing of each child under thirteen years of age and adjudged that only Tyrone Gaston, Marquita Heard, and Brittany Brooks were competent to be witnesses at trial. Robert Heard, who was thirteen-years old, was also competent under the statute to be a witness at trial. The following facts were adduced at trial. Each child testified that appellant, "J.R.", as he was known to the children, had improperly touched him or her, or they had - 5 - seen him touch another child improperly. Robert Heard was the first child to testify. Robert stated that he had been touched by appellant on two separate occasions. On the first occasion, Robert testified that he had gone with his sister Marquita Heard and his cousin Tyrone Gaston to a field across the street from their home. When they arrived in the field, appellant was already there. Robert stated that while they were in the field, appellant "stuck his finger in my butt" and that appellant touched Tyrone Gaston's penis. (Tr. 216, 222). Robert also testified about a second incident in which appellant touched him improperly. On this occasion, Robert testified that he was with his sister Marquita and his cousin Tyrone. Robert stated that "appellant did it to us." (Tr. 234). In response to the state's question of what "it" meant, Robert continued to describe how appellant again placed his finger in his butt. (Tr. 234). Robert also stated that on this occasion appellant "touched [Marquita] on her vagina" and put his hands into the front of Tyrone's pants and "touched his penis". (Tr.236- 237). Robert testified that on both occasions appellant threatened to continue touching him if he told. Marquita Heard, four-years old, also testified at trial. In particular, Marquita testified that appellant "touched [her] private part." (Tr. 348). Marquita also testified that she saw appellant touch both Tyrone Gaston's private part and Robert Heard's private part. (Tr. 350). - 6 - The last two victims to testify were Tyrone Gaston and Brittany Brooks. Tyrone Gaston, five-years old, testified that appellant "sucked my private part." (Tr. 370). Tyrone further stated that he did not see appellant do anything to Marquita Heard. However, Tyrone did see appellant stick his finger in Robert Heard's behind. (Tr. 376). Although Tyrone did not immediately tell anyone about this incident, he did eventually tell his mother, Sabrina Luster. (Tr. 373). Brittany Brooks, six-years old, testified at trial that she knew what her "private parts" were and that her mother was not the only person to touch her private parts. (Tr. 396). Specifically, Brittany testified that she was in the bedroom of appellant's apartment and that appellant got on top of her and touched her with his "nasty part", making reference to appellant's penis. (Tr. 396) Brittany stated that appellant put his "nasty part" in her "front private" and that appellant put his finger in her butt. (Tr. 399, 401). Brittany further stated that on a occasion appellant "put his private in [her] private." (Tr. 404). Brittany, however, indicated that on this occasion, appellant had put his private in her "back private", meaning her behind. (Tr. 404). Appellant also put his hand in her behind at this time as well. (Tr. 405). On July, 20, 1995, Dr. Amy Richardson testified on behalf of the State of Ohio. Dr. Richardson, a physician with the Child Protection Program at Rainbow Babies and Childrens Hospital, testified regarding her examination of Brittany and Brandon Brooks. - 7 - Dr. Richardson initially testified as to her findings regarding Brandon Brooks. Dr. Richardson stated during her examination of Brandon Brooks, she noticed that the folds around the anus were mildly asymmetrical sphincter folds. Dr. Richardson also notice that there was a "distorted area of the fold and the skin that was * * * hypopigmented or paler than the rest of his skin and that was just barely external to the anal canal." (Tr. 298). Dr. Richardson also conducted a rectal examination of Brittany Brooks. As a result of this examination, Dr. Richardson testified that "[i]mmediately her anus just fell open. It was very lax." (Tr. 300). Dr. Richardson also noticed "that the folds again of the tissue were asymmetric and it was considerably flatter on her right side. She also had a couple of these hypopigmented areas or areas with less color. There was also a possible scar noted in the anal canal." (Tr. 301). After completing both examinations, Dr. Richardson stated, in her opinion, based upon a reasonable degree of medical certainty, that she believed the cause of the abnormalities which she found were consistent with child sexual abuse with anal penetration. (Tr. 302). Dr. Richardson further stated that Brittany's examination was "more abnormal than her brother's, and significantly abnormal." (Tr. 303-304). Dr. Richardson, however, noted that her findings were not independently diagnostic, and that the history and physical findings needed to be taken together. - 8 - Thereafter, Dr. Richardson had a conversation with Brittany Brooks. During this conversation Brittany "revealed to [Dr. Richardson] that J.R. put his hand in her private, in her butt and in Brandon's butt. She state[d] that J.R. had put his tongue in Brandon's mouth and Brandon's worm, which was the word she used to refer to his penis, inside J.R.'s mouth. She demonstrated to [Dr. Richardson] what part of his hand he used and she held up her index finger. She told us that he had indicated he would whip her if she told." (Tr. 310-311). Although Dr. Richardson did not engage in a conversation with Brandon, Dr. Richardson testified that when she asked Brandon if he had heard what Brittany said and if it was correct, Brandon indicated "yes". (Tr. 311). Ms. Valerie Phillips, a social worker at the Department of Children and Family Services, also testified regarding her interviews and examinations of Tyrone Gaston, Marquita Heard, Robert Heard, and Brittany Brooks. In particular, Ms. Phillips testified that she had conversations with Robert, Tyrone, and Marquita each of whom indicated to her that appellant had touched them in their private area; and that they had seen appellant touching each others private parts as well. Ms. Phillips also testified that Tyrone had indicated to her, through the use of anatomically correct dolls, that he and Marquita would suck on each others private parts. (Tr. 568). Ms. Phillips stated that she interviewed Brittany Brooks as well, and that during the interview Brittany told her that appellant touched her on her private part. - 9 - (Tr. 571). Further, Ms. Phillips stated that Brittany also told her that she saw appellant touching her brother Brandon Brooks in his rectal area. (Tr. 572). Testimony at trial further revealed that the children did not immediately disclose any of the foregoing incidents. The testimony of Sabrina Luster, however, reveals that her son Tyrone Gaston, on March 21, 1995, informed her that "[he] and Marquita was doing it." (Tr. 455). The next morning, Sabrina Luster took her son Tyrone to Marquita's home to find out what he was talking about. Subsequently, Sabrina Luster called the police, the children were questioned by the police, and appellant was arrested. III. In his first assignment of error, appellant contends that the trial court improperly allowed incompetent minor children to testify. In particular, appellant asserts that the trial court abused its discretion when it allowed Tyrone Gaston, five-years old; Brittany Brooks, six-years old; and Marquita Heard, four- years old to testify at trial. Evid. R. 601(A) provides: Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten (10) years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined or of relating them truly * * *. The competency of a child under ten years of age to testify as a witness is governed by (a) her intellectual capacity to recount the - 10 - events accurately and (b) her comprehension of the obligation to tell the truth. State v. Burns (March 14, 1991), Cuyahoga App. Nos. 58202, 58212, unreported; State v. Lee (1983), 9 Ohio App.3d 282. Thus, the determination of the competency of a witness is within the sole discretion of the trial court. State v. Frazier (1991), 61 Ohio St.3d 247; State v. Lee (1983), 9 Ohio App.3d 282. And, absent a showing of an abuse of discretion, a reviewing court will not disturb the trial court's ruling. State v. Hogan (June 8, 1995), Cuyahoga App. No. 66956, unreported. In the case sub judice, the trial court held competency hearings for each of the seven children prior to allowing them to testify in open court. During these hearings the trial court asked specific questions to each child regarding their names, address, age, and ability to discern right from wrong. After consideration of their testimony, the court determined that only three of the seven children; Brittany Brooks, Marquita Heard, and Tyrone Gaston were competent to testify. A trial court is in the best position to assess competency, therefore, a reviewing court will not disturb its determination. State v. Workman (1984), 14 Ohio App.3d 385, 389. After a complete review of the record before this court, we find that the trial court did not abuse its discretion in determining that the children were competent to testify. Accordingly, appellant's first assignment of error is overruled. - 11 - IV. In his second assignment of error, appellant asserts that the trial court erred when it admitted out-of-court statements where no exception to Evid.R. 802 applied. In particular, appellant contends that the trial court improperly admitted out-of-court statements made to Sabrina Luster, Dr. Amy Richardson, Valerie Phillips, and Officer Escano by the alleged victims in this case. "Hearsay consists of '* * * [out-of-court] statement[s] * * * offered in evidence to prove the truth of the matter asserted.'" Evid. R. 801(C); State v. Boston (1989), 46 Ohio St.3d 108, 116. Generally, hearsay is not admissible, unless one or more of the hearsay exceptions provided in Evid. R. 802, 803, 804 are shown to exist. Id. In the case sub judice, the trial court permitted Sabrina Luster, mother of Tyrone Gaston, to testify that on the evening of March 21, 1995, she entered into her apartment and that "Tyrone was, he just was saying mom, mom, and I was like, you know, I'm trying to get these bags, but I was really in kind of rush getting the bags out the car. But he was like, me and Marquita was doing it." (Tr. 455). Clearly, the testimony adduced from Sabrina Luster with regard to the statements made by the victim Tyrone Gaston was hearsay pursuant to Evid. R. 801. However, the hearsay statements of this witness were admissible pursuant to the excited utterance exception as found in Evid. R. 803(2). - 12 - The excited utterance exception as it applies to sexual abuse of young children has been widely expanded and liberalized by the Ohio Supreme Court. State v. Duncan (1978), 53 Ohio St.2d 215. In particular, the court in Duncan has stated: "'* * * An appellate court should allow a wide discretion in the trial court to determine whether in fact a declarant was at the time of an offered statement still under the influence of an exciting event.'" Id. at 219. Furthermore, the Duncan court clearly established that each case must be decided on its own circumstances, since it is patently futile to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation. Id. at 220. Thus, the trend has been to reject the contemporaneous approach and instead emphasize the spontaneous nature of the exclamation. State v. Williams (April 4, 1991), Cuyahoga App. No. 58327, unreported. In Williams, this court found that "trustworthiness of an excited utterance lies in the fact that the words are uttered while the nervous excitement may be supposed still to dominate the reflective powers to be yet in abeyance." Id. In particular, this court has stated that the limited reflective powers of a young child, as well as the child's inability to understand the enormity or ramifications of the attack upon him, sustain the trustworthi- ness of his communications. Young children truly lack the reflective capacities to prevaricate the circumstances of attack. Id. Therefore, "[t]he limited reflective powers of an infant - 13 - declarant in combination with the inability of the declarant to fully understand the ramifications of the behavior give support to the trustworthiness of the statements." State v. Williams, supra, at 12. The facts in the instant case present an indicia of reliabil- ity. Tyrone's statements to his mother were spontaneous, and dealt with a subject matter ordinarily foreign to a five-year-old child. Moreover, the record does not indicate Tyrone had an improper motive. The tender age of a declarant is a factor which militates against the possibility of an ulterior motive. State v. Wagner (1986), 30 Ohio App.3d 261. Furthermore, "the trial court is to be given wide discretion in its decision as to whether the declarant at the time of the statement was still under the influence of nervous excitement." Id. In light of the circumstances presented in the case sub judice, the trial court did not abuse its discretion in allowing Sabrina Luster to testify regarding statements made to her by her five-year-old son Tyrone. Appellant further contends that the trial court erred when it admitted testimony of Dr. Amy Richardson which contained out-of- court statements made by Brittany Brooks to Dr. Richardson during her examination of Brittany. The initial issue for our consideration is whether the trial court abused its discretion in admitting, under Evid. R. 803(4), Brittany's hearsay statement made to Dr. Richardson. - 14 - "Evid. R. 803(4) allows into evidence, as an exception to the hearsay rule, 'statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.'" State v. Dever (1992), 64 Ohio St.3d 401, 407; Evid. R. 803(4). Furthermore, the Dever court held "that a trial court does not abuse its discretion when it admits a child declarant's statements made for the purpose of medical diagnosis or treatment pursuant to Evid. R. 803(4) * * *. Once the statements are admitted, their credibility is a matter to be evaluated by the factfinder." Id. at 412. Dr. Richardson testified that her opinion regarding the abnormal findings during her examination of both Brittany and Brandon was that the abnormalities found were consistent with child sexual abuse with anal penetration. (Tr. 303). However, Dr. Richardson explained that her findings were not independently diagnostic, and that the history and physical findings needed to be taken together in order to reach a medical conclusion. (Tr. 303). Subsequently, Dr. Richardson questioned Brittany about what happened and testified at trial as to that conversation. The trial court did not abuse its discretion in admitting the statements made to Dr. Richardson by Brittany. The statements were admitted pursuant to Evid. R. 803(4) and were made for the purpose of medical diagnosis and treatment of Brittany and Brandon Brooks. - 15 - Therefore, the credibility of the statements were factual matters to be determined by the jury. Appellant further argues that the trial court erred in admitting testimony of Valerie Phillips, a social worker employed by the Department of Children and Family Services, which contained out-of-court statements made by the victims. "This court has consistently held that a young rape victim's statements to social workers, clinical therapists and other medical personnel are admissible under Evid. R. 803(4)." State v. Shepherd (July 1, 1993), Cuyahoga App. No. 62894, unreported; See State v. Duke (August 25, 1988), Cuyahoga App. No. 52604, unreported citing State v. Cottrell (Feb. 19, 1987), Cuyahoga App. No. 51576, unreported and State v. Negolfka (Nov. 19, 1987), Cuyahoga App. No. 52905. Thus, appellant's argument fails. The appellant further argues that the trial court erred in admitting testimony of Officer Joseph Escano which contained out- of-court statements made by Robert Heard. In particular, the trial court erred when it permitted Officer Escano's testimony stating "he [Robert Heard] stated the night before he was lured by the defendant over there to the side of the building, at which time, the defendant attempted to go down the back of his pants and * * * he inserted a finger up his backside and then he tried to pull away. He then grabbed the little sister, Marquita Heard and put his hands down the front part of her, his hands down the front side of her pants * * *." (Tr. 533). Statements made to police officers by child victims of sexual abuse have been characterized by this court as admissible hearsay under the excited utterance exception to the hearsay rule. State - 16 - v. Wagner (1986), 30 Ohio App.3d 261, 262; State v. Duke (August 25, 1988), Cuyahoga App. No. 52604, unreported; State v. Williams, supra, at 12. Such statements do not lack trustworthiness where they were made spontaneously and under the influence of nervous excitement. As stated supra, the trial court is given wide discretion in its decision as to whether the declarant, at the time the statement was made, was still under the influence of nervous excitement. In the case sub judice, Robert Heard told Officer Escano of an incident with appellant which had occurred the night before. The record does not indicate that Robert had an ulterior motive, nor does it does appear from the record that Robert could fully understand the ramifications of the behavior. Furthermore, Officer Escano testified that Robert appeared distraught and scared when he talked to the officer. (Tr. 537). Thus, the trial court did not abuse its discretion when it admitted out-of-court statements made by Robert Heard to Officer Escano. Accordingly, appellant's second assignment of error is not well taken. V. In his third assignment of error, appellant contends that his due process rights were violated when the state commented on his decision to invoke his right to remain silent. The conduct of a prosecuting attorney during a trial cannot be a ground of error unless the conduct deprives the defendant of a - 17 - fair trial. See State v. Keenan (1993), 66 Ohio St.3d 402, 405. As such, the initial question to consider is whether the prosecu- tor's conduct was improper and, if so, the second question is whether that conduct deprived the appellant of a fair trial. In the case sub judice, the prosecutor questioned Sergeant Walton about his conversation with appellant after he had given appellant his Miranda rights. The following testimony was elicited from Sergeant Walton at that time: Q: Did the defendant invoke his right to remain silent? A: Yes, when I asked - - MR. SHAUGHNESSY: Objection. THE COURT: The objection is sustained. Ask another question. Q: Sergeant Walton, after you gave the defendant all the rights that you mentioned, did he say anything to you? A: Yes, he did. Q: Do you recall what he said? A: Yes, as I recall, he stated to me that he did not want to make a written statement, but he had something to say about - - MR. SHAUGHNESSY: Objection. THE COURT: Sustained. That testimony will be stricken from the record. The jury is to disregard that testimony. The question is, what did he say to you verbally * * * about the incident. Q: Just specifically about the incident, Sergeant Walton, what did he say? (Tr. 546-548). - 18 - Appellant argues that his conviction is unreliable because the foregoing remarks constituted improper comments by the prosecutor on appellant's right to invoke his right to remain silent. Furthermore, the prosecutor's comments had the prejudicial effect of raising an inference of appellant's guilt. We disagree. The prosecutor's questions to Sergeant Walton did not rise the level of prosecutorial misconduct. And, reversal of appellant's conviction is not required where it is clear beyond a reasonable doubt that the jury would have convicted appellant absent the foregoing line of questioning. State v. Lawson, (1992), 64 Ohio St.3d 336. We find appellant incurred no prejudice as a result of the prosecutor's questions to Sergeant Walton. Accordingly, appellant's third assignment of error is overruled. VI. In his fourth assignment of error, appellant states the verdict is against the manifest weight of the evidence when there is no substantial evidence upon which a trier of fact could reasonably conclude that the elements of attempted aggravated burglary had been proven beyond a reasonable doubt. It appears from his fourth assignment of error that appellant is arguing that he was convicted of attempted aggravated burglary, and that his conviction was against the manifest weight of the evidence. Furthermore, appellee, in its brief, re-wrote appel- lant's assignment of error in exactly the same manner. However, this is a case of sexual abuse in which appellant was convicted of - 19 - two counts of rape, four counts of felonious sexual penetration, and two counts of gross sexual imposition. Therefore, this court will determine whether appellant's conviction on the foregoing counts was against the manifest weight of the evidence. In determining whether the decision of the trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proven; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self-serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Tucker (August 17, 1995), Cuyahoga App. No. 68206, unreported. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id.; See also Tibbs v. Florida (1982), 457 U.S. 31, 38, 42; State v. Martin (1983), 20 Ohio App.3d 172, 175. - 20 - In the case sub judice, appellant was convicted of two counts of rape in violation of R.C. 2907.02, which states, in pertinent part, as follows: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. Appellant was also charged with and convicted of four counts of felonious sexual penetration in violation of R.C. 2907.12, which states, in pertinent part, as follows: (A)(1) No person without privilege to do so shall insert any part of the body, or any instrument, apparatus, or other object into the vaginal or anal cavity of another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when either of the following apply: (b) the other person is less than thirteen years of age, whether or not the offender knows the age of such person. Furthermore, appellant was charged with and convicted of two counts of gross sexual imposition in violation of R.C. 2907.05, which in pertinent part, states the following: (A) No 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: (4) The other person, or one of the other persons, is less than thirteen years of age, - 21 - whether or not the offender knows the age of such person. The determination of whether or not the jury verdict was against the manifest weight of the evidence primarily rests upon the credibility of the witnesses at trial. Each of the four children, Robert Heard, Marquita Heard, Tyrone Gaston, and Brittany Brooks testified regarding specific occasions when appellant either touched them in his or her private areas, or when they saw appellant touch another individual in his or her private area. Each child told their story to Ms. Phillips, the social worker, as well as to the investigating police officer. Brittany Brooks also told Dr. Amy Richardson, during her physical examination, of the incidence of sexual abuse by appellant. Although each child may have had minor discrepancies in his or her testimony, each child clearly testified that he or she had been inappropriately touched by appellant in his of her private areas. Furthermore, testimony of Dr. Richardson, Ms. Phillips, Officer Escano and Sabrina Luster confirms the testimony given by the children. We find that this evidence, if believed by a jury, is sufficient to satisfy all of the necessary elements to warrant a conviction of rape by force, felonious sexual penetration, and gross sexual imposition of children under the age of thirteen. Therefore, we find that appellant's convictions are not against the manifest weight of the evidence in that there existed sufficient evidence to prove all of the elements of each crime beyond a reasonable doubt. - 22 - Accordingly, appellant's fourth assignment of error in not well taken. Judgment affirmed. - 23 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J. and ANN DYKE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .