COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71301 STATE OF OHIO: OPINION : : Plaintiff-Appellee : : vs. : MICHAEL E. VALENTINE JULY 17, 1997 Criminal appeal from Common Pleas Defendant-Appellant Court Case No. CR-336465 DATE OF ANNOUNCEMENT AFFIRMED IN PART AND REVERSED IN OF DECISION: PART AND REMANDED. CHARACTER OF PROCEEDING: JUDGMENT: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONNI DUCOFF DATE OF JOURNALIZATION: Assistant Prosecuting Attorney The Justice Center APPEARANCES: 1200 Ontario Street Cleveland, Ohio 44113 For Plaintiff-Appellee: PAUL MANCINO, JR. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 For Defendant-Appellant: : : : : JOURNAL ENTRY : : AND : 2 O'DONNELL, J.: Michael E. Valentine appeals from a judgment of the common pleas court entered pursuant to a jury finding him guilty of twenty counts of rape and twenty counts of felonious sexual penetration involving his eight-year-old stepdaughter, Victoria Woods. The record reflects that Valentine began living with Tammie Woods, Victoria's mother, in August of 1991 and married her on Valentine's Day, 1994. About a year later, on or about March 1, 1995, Valentine began sexual abusing Victoria in the family home located at 1239 West 67th Street in Cleveland, Ohio and continued doing so until January 16, 1996. On January 18, 1996, Victoria approached her second grade teacher, Ms. Linda Porter, and told her that her stepfather had been touching her down there. Porter took her to the principal, Sheila Williams, who reported the matter to Cuyahoga County Department of Family Services, and also called Victoria's mother, Tammie, who came to school in response to the call. The following day, Teriea Anderson, a social worker who specializes in child abuse, and Detective John Mulhall of the Cleveland Police Department, Sex Crimes Child Abuse Unit, interviewed Victoria about the abuse and listened to her explain, in detail, that Valentine would tell her to put his wiener in her mouth, that he would stick it in her anus and put his finger in her vagina, and she stated that this occurred over two hundred times. On February 7, 1996, Dr. Ann Reischsman, Victoria's physician, examined her, found signs of possible abuse, and 3 referred her to the Metro Health Medical Center. There, Dr. Mark Feingold examined her and reported the results to be generally normal, but could not exclude the possibility of sexual abuse. On May 25, 1996, the Cuyahoga County Grand Jury indicted Valentine on forty counts, twenty for rape and twenty for felonious sexual penetration. The case proceeded to jury trial on August 12, 1996, where, the state presented testimony from Porter, Williams, Victoria, Doctors Reischsman and Feingold, Anderson, and Detective Mulhall. Valentine testified in his own defense, as well as his brothers, Joseph and Dennis, and his wife and Victoria's mother, Tammie. On rebuttal, the state presented testimony from Andre Piskura, another social worker. The jury returned verdicts finding Valentine guilty on all forty counts and the court sentenced him to forty consecutive life terms at the Lorain Correctional Institution. It is from that entry that Valentine now appeals, assigning sixteen errors for our review. The first error states: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS ALLOWED TO BE CONVICTED UPON AN INDICTMENT WHICH DID NOT SPECIFY A DATE OR DISTINGUISH BETWEEN CONDUCT ON ANY GIVEN DATE. In his first assignment of error, Valentine contends that since the indictments in this case neither specified the dates nor the type of sexual conduct allegedly occurred, the state prejudiced his ability to present a defense which culminated in a denial of his right to due process of law. The state argues, however, that since the victim in this case, an eight-year-old child, possessed immature time reference skills, 4 and because the state provided full information during discovery regarding the dates of these occurrences, it did not violate his rights to due process. The issue presented for determination is whether the lack of specificity in the indictment as to dates and conduct resulted in a denial of Valentine's right to due process of law. It is well established that, particularly in cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or offenses oftentimes cannot be determined with specificity. State v. Daniel (1994), 97 Ohio App.3d 548, 556. This rule in Ohio has been established because [i]n many cases involving child sexual abuse, the victims are children of tender years who are simply unable to remember exact dates and times, particularly where the crimes involve a repeated course of conduct over an extended period of time. State v. Mundy (1994), 99 Ohio App.3d 275, 296. Nevertheless, the court in Mundy, supra, determined that: ***where an accused requests a bill of particulars, the state must supply specific dates and times for the alleged offense if it possesses that information. [Citation omitted.] Furthermore, even if the state is unable to supply more specific dates for the offenses because it does not posses such information, the absence of specific dates may yet be fatal to the prosecution if it results in material detriment to the accused's ability to fairly defend himself, as where the accused asserts an alibi or claims that he was indisputably elsewhere during part, but not all, of the interval specified. [Citation omitted.] Id. at 296. The victim in this case is an eight-year-old girl who may not be able to remember exact dates and times, considering that the same conduct occurred during a ten-month period of time and 5 continued until she reported it to her teacher. Further, there is no evidence that the state had any more specific information than that set forth in the indictment and could not supply information it did not possess. Finally, Valentine has failed to demonstrate any material detriment to his ability to defend himself resulting from the lack of specificity of the dates listed in the indictment. Regarding the state's failure to specify the type of sexual conduct, the Ohio Supreme Court has determined that ***Crim.R. 7(B) authorizes indictments to utilize the words of the applicable section of the statute. State v. Murphy (1992), 65 Ohio St.3d 544, 583. The indictment in this case utilizes the wording of Revised Code Sections 2907.02 and 2907.17, which provided Valentine with statutory notice of the charges against him. Consequently, the state did not deprive him of his rights to due process. Accordingly, this assignment of error is overruled. The second assignment of error states: II. THE DEFENDANT WAS DENIED HIS RIGHT TO CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT PERMITTED A SOCIAL WORKER INVESTIGATOR TERIEA ANDERSON AND OTHERS, TO RELATE WHAT VICTORIA WOODS TOLD HER IN HER INTERVIEW. Here, Valentine asserts that the trial court erred in allowing a social worker, Victoria's teacher, and her principal, to relate, at trial, statements she made to them because they are hearsay statements and their admission denied him his right to cross- examine Victoria. The state argues however, that the social worker's testimony is admissible hearsay pursuant to Evidence Rule 803(4), as a medical exception because she conducted the interview for 6 diagnostic and treatment purposes. The issue for us to decide is whether the trial court abused its discretion by allowing these three witnesses to testify as to Victoria's out of court statements to them regarding Valentine's actions. We will first address the testimony of Teriea Anderson, the social worker who interviewed Victoria on January 19, 1996. Evidence Rule 803(4) allows for the admission of hearsay statements for the purposes of medical diagnosis or treatment and states: Statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Our court has determined in Presley v. Presley (1990), 71 Ohio App.3d 34, at 38, that the testimony of a social worker as to statements made to her by a victim of sexual abuse is admissible pursuant to Evidence Rule 803(4) if their function is to diagnose or treat the victim. See State v. Chappell (1994), 97 Ohio App.3d 515, 531. Here, the record reveals the following colloquy between defense counsel and Anderson regarding the purpose of her interview with Victoria: Q. The interview wasn't for the purpose of treating her or anything. It was just to get information, is that right? A. Well, in fact, I have to come up with a plan for the child to make sure that she does get treatment as in psychological services, as well as medical services. 7 That's part of my duty. (Tr. 455) Since, Anderson's purpose involved formulating a treatment plan for Victoria, the child's statements to Anderson regarding the sexual abuse are admissible pursuant to Evidence Rule 803(4) and therefore, the trial court properly allowed their admission at trial. We next address the testimony of Porter and Williams, Victoria's teacher and principal. Evidence Rule 803(3) allows for the admission of hearsay statements that constitute excited utterances, and states: A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. The Ohio Supreme Court has determined in State v. Taylor (1993), 66 Ohio St.3d 295, at 303 that: There is no per se amount of time after which a statement can no longer be considered an excited utterance. The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be a result of reflective thought. (Emphasis in original.) The test for determining whether an excited utterance is admissible ***has been liberally applied to out-of-court statements made by child declarants who are alleged victims of sexual abuse. [Citations omitted.] Moreover, the trial court has broad discretion to determine whether a declaration should be admissible as a hearsay exception. [Citations omitted.] State v. Shoop (1993), 87 Ohio App.3d 462, 472. 8 Here, the admissibility of the testimony of Porter and Williams depends upon the court's finding that the Victoria was still under the stress of the startling occurrence. A review of the record reveals that Porter testified that Victoria had been acting poorly in school during the period of the abuse and on the day Victoria told Porter why she had been acting crazy, her lips were quivering and she began to cry. Porter further testified that even a week after Victoria first revealed the abuse, the child still experienced other emotional outbursts at school. Further, Williams supported Porter's testimony that the child was very upset when she informed them of Valentine's conduct. Based upon this testimony, we cannot conclude that the court abused its discretion by allowing both Porter and Williams to testify in court as to Victoria's statements to them regarding the sexual abuse. Accordingly, this assignment of error is overruled. Valentine's third assignment of error states: III. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED AN INVESTIGATING DETECTIVE TO VOUCH FOR THE CREDIBILITY OF VICTORIA WOODS. Valentine contends the trial court erred by allowing Detective John Mulhall to testify at trial that Victoria's testimony in court was consistent with her previous statements to him regarding the abuse because, in effect, the detective vouched for her credibility. The state asserts however, that the trial court did not err by allowing this testimony since the jury could have determined that 9 despite the consistency, Victoria lied on both occasions. We must decide here whether the trial court denied Valentine a fair trial by permitting Detective Mulhall to testify regarding consistency in Victoria's statement to him and her testimony in court. The Ohio Supreme Court stated in State v. Boston (1989), 46 Ohio St.3d 108, at syllabus: An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant. Here, the record reveals the following colloquy between the prosecutor and Detective Mulhall: Q. Were you in court when Victoria Woods testified? A. Yes. Q. And was her account in court consistent with the interview you witnessed? Mr. Mancino: Objection The Court: Overruled. A. Yes. (Tr. 484-485) The prosecutor did not ask the detective to express his opinion about Victoria's veracity. He did not state that the child's statements were credible or truthful, but merely that her statements were consistent. Therefore, we conclude that the trial court did not deny Valentine a fair trial by permitting Detective Mulhall's testimony regarding Victoria's statement and accordingly, find no merit to this assignment of error. The fourth assignment of error states: IV. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE 10 PROSECUTOR IMPROPERLY QUESTIONED THE DEFENDANT CONCERNING A CONVICTION FOR ESCAPE AND FAILED TO OFFER ANY PROOF OF IT. Here, Valentine argues that the trial court denied him a fair trial when it allowed the prosecutor to question him on cross- examination regarding a prior conviction, but failed to produce a record of proof and the trial court did not determine that the probative value of the evidence outweighed its prejudicial effect. The state contends in response, that the trial court did not err in allowing the prosecutor to question Valentine on his 1991 conviction for escape because Evidence Rules 403 and 609 allow for its admission and further, the state did not have to provide proof of the conviction because Valentine admitted to it on the witness stand. The issue for our determination then is whether the trial court abused its discretion by allowing the prosecutor to question Valentine about his 1991 escape conviction. Evidence Rule 609 states, in part: (A) For the purpose of attacking the credibility of a witness: *** (B) Notwithstanding Evid. R. 403(A), but subject to Evid. R. 403(B), evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted. Evidence Rule 403(B) states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. In balancing the probative value against the danger or unfair 11 prejudice, the trial court is vested with broad discretion and an appellate court should not interfere absent a clear abuse of discretion. State v. Harcourt (1988), 46 Ohio App.3d 52, 55. In State v. Kaiser (1978), 56 Ohio St.2d 29, the Ohio Supreme Court concluded that when a defendant takes the stand on his own behalf and on cross-examination, he is asked about prior convictions, and admits to such convictions, such cross-examination is proper. Id. at 32. The record reveals in this case that Valentine took the stand in his own defense and on cross-examination, when asked, he admitted to two prior convictions, one for attempted aggravated burglary and robbery. Then when the prosecutor asked him if there was anything else, he admitted that in 1991 he was before Judge Matia on a walkway charge from a furlough house. Since, the defendant admitted on the stand to the prior escape conviction, we conclude that the trial court did not abuse its discretion here and accordingly, overrule this assignment of error. The fifth assignment of error states: V. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF ACCESS TO EVIDENCE WHEN NOTES OF AN INTERVIEW WERE DESTROYED. In this assignment of error, Valentine asserts that since Teriea Anderson, the social worker, destroyed her original notes taken during her interview with Victoria, and only testified as to what she wrote in her report, he was denied his constitutional right to access evidence. The state argues that since Anderson destroyed her notes to 12 comply with her agency's policy of confidentiality after she completed her final report, and because she testified that the report accurately reflected her notes, Valentine's rights were not violated. The issue for our determination here is whether the destruction of Anderson's original notes violated any of Valentine's rights. Evidence Rule 1002, the best evidence rule, states: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required***. ***[A] litigant cannot invoke Evid. R. 1002 unless the opposing party is attempting to prove the content of a writing, recording, or photograph. State v. Turvey (1992), 84 Ohio App.3d 724, 735. Here, the state never attempted to prove the contents of the report or the notes. Rather, the state presented testimony from the author of the report and the notes, Anderson, herself, and her testimony was not dependent upon the existence of the report or the notes. Defense counsel had a full opportunity to cross-examine her regarding her interview with Victoria and to raise any questions regarding her credibility. In addition, the record reveals that Anderson testified, on rebuttal, that her report accurately represented what Victoria said to her, that the report was based on her notes, and that she destroyed the notes only after writing the report. Further, Valentine neither objected at trial, nor presented any proof that 13 Anderson's report did not reflect her notes or that Anderson changed Victoria's statements. Accordingly, for all of the above stated reasons, we conclude that none of Valentine's constitutional rights were violated by the fact that Anderson destroyed her original notes from her interview with Victoria and thus, overrule this assignment of error. Valentine's sixth assignment of error states: VI. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER REBUTTAL EVIDENCE ON IRRELEVANT AND IMMATERIAL MATTERS. Valentine contends the trial court erred by allowing the state's rebuttal witness Andre Piskura, a social worker, to testify as to a safety plan both Tammy and Valentine signed agreeing that Valentine would have no contact with Victoria because it constituted a collateral issue and prejudiced the defendant in that it could be used as evidence that he concurred in the allegations against him. The state argues that trial court properly admitted Piskura's testimony on rebuttal regarding the safety plan because it contradicted Tammy's testimony on direct examination for the defense that she thought Valentine could still hang out in the family home. We are called upon to decide whether the trial court abused its discretion by allowing the state to present Piskura's testimony during its rebuttal case. Rebuttal testimony is properly offered to refute evidence offered by the adversary. [Citations omitted.] State v. Hohmen 14 (1991), 81 Ohio App.3d 80, 83. A party has an unconditional right to present rebuttal testimony on matters which are first addressed in his opponent's case-in-chief***. Phung v. Waste Mgt., Inc. (1994) 71 Ohio St.3d 408, 410. The record reveals here that Tammie Valentine testified that she had not been instructed that Valentine had been precluded from the family home. He was just not to live there. He could hang out and have family time, like we normally did. (Tr. 676-677) On rebuttal, the state presented Piskura's testimony that Tammie and Valentine signed a safety plan which specified that Mr. Valentine will not have any contact with Victoria. He will remain out of the home at this time. (Tr. 706). And, that there were no exceptions to this plan. The state presented Piskura's testimony to refute testimony of Tammie's that she thought Valentine could, at times, be in the family home. We conclude that the trial court did not abuse its discretion by allowing this testimony because the state offered it to refute a defense witnesses claim. Accordingly, this assignment of error is overruled. Valentine's seventh assignment of error states: VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT ALLOW DEFENSE COUNSEL TO PARTICIPATE IN AN EXAMINATION OF WITNESS' STATEMENTS. Valentine asserts here that the trial court denied him due process when it inspected Detective Mulhall's investigation notes to determine if they were consistent with his in-court testimony 15 since the court did not allow defense counsel to participate in reviewing process. The state submits that the court acted in accordance with the Ohio Rules of Criminal Procedure in making its review regarding the notes. The issue then for our determination is whether the trial court properly excluded defense counsel from its review of Mulhall's notes. Criminal Rule 16(B)(1)(g) provides, in part: Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. However, [b]efore the document may be inspected, it must be determined whether or not it is a `statement' as used in Crim.R. 16(B)(1)(g). State v. Cummings (1985), 23 Ohio App.3d 40, 42-43. In State v. Washington (1978), 56 Ohio App.2d 129, paragraph two of the syllabus, states: Notes made by a police officer during an interview with a witness to a crime are not subject to an in camera inspection within the intent and meaning of Crim.R. 16(B)(1)(g). See also State v. Allen (1990), 69 Ohio App.3d 366, 372 (holding that a police officer's notes of an interview of a witness during an investigation do not constitute a written or recorded statement). Here, Valentine asserts error in that the trial court denied defense counsel access to and review of Detective Mulhall's notes he took during his interview with Victoria on January 19, 1996. Since these notes were made by a police officer during an interview 16 with a witness, and here, the victim, of a crime, they are not subject to an in camera inspection pursuant to Crim.R. 16(B)(1)(g). Therefore, although the court conducted its own inspection of the notes and determined that there were no inconsistencies between the notes and the officer's in court statement (Tr. 512), those same notes were not subject to inspection by defense counsel because they do not constitute statements under Crim.R. 16(B)(1)(g). Accordingly, we overrule this assignment of error. We will address the eighth and ninth assignments of error jointly. They state: VIII. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR ARGUED THE MERITS OF THE DEFENDANT'S CONVICTION TO SHOW THAT HE HAD A BAD CHARACTER. IX. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTOR DURING CLOSING ARGUMENT. In these assignments of error, Valentine complains, that during argument, the prosecutor improperly used his prior escape conviction to demonstrate his bad character and further complains about the state's argument that Victoria's mother failed to protect her because that the remark urged the jury to convict him based on Tammie's failure as a mother to protect her own child. In response, the state asserts that the argument regarding the defendant's escape conviction went to his credibility and the argument concerning Tammie accurately summarized the evidence. The issue for us to decide is whether the prosecutor's statements during closing argument were improper and denied 17 Valentine a fair trial. The prosecutor is normally entitled to a certain degree of latitude in its concluding remarks. [Citations omitted.] State v. Smith(1984), 14 Ohio St.3d 13. The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. [Citations omitted]. Id. at 14. Further, [a] closing argument is not grounds for reversal unless, based on the argument in its entirety, it denied the defendant a fair trial. [Citations omitted.] State v. Brown (1993), 85 Ohio App.3d 716, 720. Here, the prosecutor referred to Valentine's admitted prior convictions, which are properly admissible to impeach the character of a defendant who testifies at trial and may become subject of argument. Our further review of the record fails to provide support for Valentine's contention that the prosecutor's remarks concerning Tammie's failure to protect Victoria provided a basis for the jury to convict him. The precise, descriptive, and graphic testimony of Victoria independently provided a basis for the jury's decision. Finally, we note the court reminded the jury during its instructions,that the opening statements and closing arguments of counsel do not constitute evidence in the case, and should not be considered as evidence. (Tr. 808) We conclude that the closing arguments of the state did not deny Valentine a fair trial. Accordingly, we overrule both 18 assignments of error. Valentine's tenth assignment of error states: X. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AMENDED AN ALREADY AMBIGUOUS TIME FRAME ALLEGATION IN ITS INSTRUCTIONS TO THE JURY. Valentine asserts that the court denied him due process of law when it instructed the jury that it was sufficient for the state to prove that the offenses took place on the days reasonably near the dates claimed because, in effect, that instruction allowed the jury to ignore the dates alleged in the indictment, March 1, 1995 to January 16, 1996, and constituted an amendment of the indictment. In response the state submits that the trial court provided standard instructions regarding the dates of the offenses because the state needs only to prove that the offenses took place on a day reasonably near the indicted date, the jury instructions here did not constitute an amendment of the indictments resulting in the denial of due process to the defendant. We are here asked to determine whether the trial court erred in its instructions to the jury in this case regarding the dates set forth in the indictments. In State v. Smelcer (1993), 89 Ohio App.3d 155, our court, also dealing with allegations of sexual abuse of a child, concluded that a trial court did not commit error when it instructed ***the jury that the events charged in the indictment need not be shown to have occurred on a certain or exact date. Id. at 123. The instruction at issue here is as follows: The dates of the offense in this indictment allegedly occurred has previously been stated. It is not necessary 19 that the state prove that the offenses were committed on the exact days as charged in the indictment. It is sufficient to prove that the offense took place, on the days reasonably near the dates claimed. (Tr. 830) In accordance with our decision in Smelcer, supra, we conclude that the trial court did not err in its instructions to the jury and therefore, we overrule this assignment of error. The defendant's eleventh assignment of error states: XI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AMENDED THE STATUTORY DEFINITION OF FORCE IN ITS INSTRUCTIONS TO THE JURY. Here, Valentine argues that the court improperly instructed the jury by defining the element of force contrary to R.C. 2901.01(A). The state submits that the trial court followed the Ohio Jury Instructions in its charge to the jury. The issue presented is whether the trial court properly defined force in its instructions to the jury. In State v. Eskridge (1988), 38 Ohio St.3d 56, the Ohio Supreme Court stated in its syllabus: 1. The force and violence necessary to commit rape depends on the age, size and strength of the parties and their relation to each other. With the filial obligation of obedience to a parent, the same degree of force and violence may not be required upon a person of tender years, as would be required were the parties more nearly equal in age, size and strength. Further, our court has determined, in State v. Fowler (1985), 27 Ohio App.3d 149, at 154, that in the context of sexual abuse of children: Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or 20 duress, the forcible element of rape can be established. Here, the trial court gave the following instructions, in part, to the jury, regarding force : When the relationship between the victim and the defendant is one of child and step parents, the element of force, need not be openly displayed or physically brutal. It can be subtle, and emotionally. [Sic.] (Tr. 821) The language of the jury instruction is strikingly similar to the language in Fowler, supra, and is taken verbatim from the Ohio Jury Instructions Section 507.02. Accordingly, we conclude that the court's instructions were proper as they relate to force, and thus, overrule this assignment of error. The next assignment of error states: XII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CHANGED THE DEFINITION OF SEXUAL CONDUCT CONCERNING ANAL INTERCOURSE. Here, Valentine argues that the trial court denied him due process when it instructed the jury that, penetration of the buttocks is sufficient, and penetration of the anus is not required, to make a finding that the defendant engaged in anal intercourse, because that instruction blurs the distinction between anal intercourse which requires sexual conduct and gross sexual imposition which requires sexual contact. The state contends that the court's instructions to the jury regarding anal intercourse did not blur the distinction between sexual conduct and sexual contact. We must determine here, whether the trial court erred when it instructed the jury regarding anal intercourse. 21 R.C. 2907.02 defines the crime of rape and provides, in pertinent part: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender***when either of the following apply: *** (b) The person is less than thirteen years of age, whether or not the offender knows the age of such person. Sexual conduct is defined in R.C. 2907.01(A), which states: Sexual conduct means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. The instructions given by the court in this case state: Penetration of the buttocks is sufficient to prove the element of penetration. Penetration of the anus is not required. (Tr. 819) Based upon the definition of sexual conduct, that penetration, however slight, is sufficient for anal intercourse, we conclude here that the trial court gave an erroneous instructions to the jury that penetration of the buttocks is sufficient to complete anal intercourse; it is not. Thus, the court did deny Valentine due process in this regard. However, the state only charged Valentine with twenty counts of rape, but did not specify whether those counts consisted of vaginal, oral or anal intercourse. Since the state has produced evidence to establish twenty acts of fellatio (Tr. 276), the faulty court instruction regarding penetration in connection with anal intercourse, while improper, does not affect the verdicts returned by the jury which are supported by the evidence regarding twenty acts of fellatio. Accordingly, this assignment of error is well taken. 22 The thirteenth assignment of error states: XIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AUTHORIZED THE EVALUATION OF DEFENDANT'S TESTIMONY IN A MANNER DIFFERENT THAN OTHER WITNESSES. In his thirteenth assignment of error, Valentine argues that the trial court improperly instructed the jury that, in evaluating his testimony, it may consider that he had a direct interest in the outcome of the trial because it constituted prejudicial error. The state asserts however, that the court did, in fact, instruct the jury to weigh the defendant's testimony in the same manner as other witnesses and thus, there is no error in this regard. The issue for our determination is whether the trial court erred in its instructions regarding Valentine's testimony in this case. The jury instruction the court gave regarding Valentine's testimony is as follows: The defendant testified as a witness in this case. You will apply his testimony in the same manner as you weigh the testimony of other witnesses who appeared in the case. Just because one is a defendant, is no reason for you to disregard and set aside the defendant's testimony. And you will give the defendant's testimony the weight it is entitled to receive. Taking into consideration, the defendant's interest in the outcome of the case, and apply to the defendant's testimony the same rules that you will apply to the testimony of all other witnesses or who appeared in this case. It is for you to determine what weight you will give to the testimony of any witness who appeared in this case. (Tr. 829) In State v. McRae (1965), 4 Ohio App.2d 217, and again, in State v. Perkins (1994), 93 Ohio App.3d 672, we approved similar jury instructions. 23 According, we conclude that the court's instructions did not deny Valentine due process of law, and we overrule this assignment of error. Valentine's fourteenth assignment of error states: XIV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT INSTRUCT UPON THE LESSER INCLUDED OFFENSE OF GROSS SEXUAL IMPOSITION. Here, Valentine contends that the trial court denied him due process when it declined to charge the jury on the lesser included offense of gross sexual imposition because at various times during her testimony, Victoria stated that the defendant's activities consisted of touching her chest and body. The state argues however, that the trial court properly refused to give the jury instruction on the lesser included offense of gross sexual imposition because where a victim's testimony pertains to the completed act of rape, a gross sexual imposition instruction is improper in that, to effectuate a rape, there will be some incidental touching of a victim's body. The issue for us to decide is whether the trial court properly refused to instruct the jury on the lesser included offense of gross sexual imposition. Victoria's testimony at trial supported convictions for oral intercourse because she described how Valentine put his weiner in her mouth twenty times (Tr. 283); it further supported fifteen acts where he inserted his finger into her vagina (Tr. 286); it also supports a determination that on ten occasions he put his weiner in her butt (Tr. 292); and finally, it supports ten occasions 24 where he touched her chest (Tr. 323). However, the state only charged him with twenty counts of rape and twenty counts of felonious sexual penetration. The state could have added additional charges for gross sexual imposition in connection with the touching of her chest, but chose not to do so. Valentine's actions consisted of both sexual contact and sexual conduct. However, since Valentine denied any sexual contact or sexual conduct with Victoria, the jury obviously believed her testimony and rejected his. Under this circumstance, we cannot conclude the court erred by failing to instruct on the lesser included offense. Accordingly, we overrule this assignment of error. Valentine's next assignment of error states: XV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL. Valentine next argues that the trial court erred in overruling his Crim. R. 29(A) motion for acquittal because the medical evidence presented at trial did not verify any of the allegations charged in the indictment and thus, the state presented insufficient evidence to sustain his convictions. In response, the state asserts that the absence of medical evidence in this case does not demonstrate the state failed to establish the elements of the crimes and therefore, the trial court did not err in overruling the Crim. R. 29(A) motion. The issue for our determination is whether the state presented sufficient evidence to prove the charges in the indictment against Valentine. 25 The Ohio Supreme Court recently determined in State v. Taylor (1997), 78 Ohio St.3d 15, at 18: In reviewing a record for sufficiency, [t]he relevant inquiry is whether, after reviewing 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 (1991), 61 Ohio St.3d 259, paragraph two of the syllabus (in part), following Jackson v. Virginia (1979), 443 U.S. 307. R.C. 2907.02(A) defines rape, in part, as: (1) No person shall engage in sexual conduct with another who is not the spouse of the offender***, when any of the following applies: *** (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. R.C. 2907.12(A) defines felonious sexual penetration, in part, as: (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***, 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. Here, the record reveals that the medical evidence presented by the state at trial included testimony from Victoria's family doctor, Dr. Ann Reischsman, who examined Victoria on February 7, 1996. The doctor testified that the examination revealed that: ***[Victoria's] labia minora was red interiorly, and had a slight gape. Which means that the lips of the vagina which normally in a child, are expected to be really close up against each other. Hers sort of were spread apart more than one would normally expect to see. (Tr. 420) 26 Dr. Reischsman went on to testify that this made her ***suspicious of sexual abuse. (Tr. 422) In addition, the state presented Dr. Mark Feingold, the Director of the Pediatric Clinic and of Child Protective Services at the Metro Health Medical Center, who testified that he examined Victoria on February 26, 1996, and testified: ***The general physical examine (sic), the non-sexual examine (sic), was entirely normal.***The sexual examine (sic) in particular, was abnormal in a few ways, or unusual in a few ways. The first point was that there was slight irritation and redness of the outer lips of the vagina, the labia minora. The second was that the clitoris was small, but that's all right. The tissue of the hymen, the tissue that surrounds the opening to the vagina, was very unusual in its appearance. My conclusion was that this was a septated hymen.*** (Tr. 388) Dr. Feingold further went on to conclude in court that: My findings on physical exam, I would classify as a nonspecific in the case of the redness of the outer lips of the vagina. It does not prove or disprove sexual abuse. The unusual appearance of the hymen, and of the tissues around the urethra, I feel is a normal variant. In summary, my opinion, is that the findings are within normal, but do not exclude the possibility of sexual abuse. *** The reason I say that these findings neither rule, nor rule out sexual abuse, is that most children who have been sexually abused, have normal physical exams. (Tr. 391) Therefore, this medical evidence does, in fact, support the allegations charged in the indictment and such testimony is bolstered by the other evidence presented by the state at trial, including the detailed testimony of the victim about the sexual abuse and the testimony of Victoria's teacher and principal, the social workers, and Detective Mulhall. 27 After reviewing this testimony and the other evidence, in a light most favorable to the state, we conclude that any rational trier of fact could have found the essential elements of both rape and felonious sexual penetration proven beyond a reasonable doubt. Accordingly, we overrule this assignment of error. Valentine's final assignment of error states: XVI. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his final assignment of error, Valentine asserts that the jury lost its way in convicting him because the testimony presented in this case was conflicting and contradictory and therefore, his convictions should be overturned for being against the manifest weight of the evidence. In response, the state contends that Valentine has failed to allege issues that merit a reversal based upon a manifest weight argument and therefore, his convictions must stand. The issue for our determination is whether Valentine's convictions are against the manifest weight of the evidence. The standard of review in cases of this distinction was stated in State v. Martin (1983), 20 Ohio App.3d 172, at 175: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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.*** An examination of the entire record in this case reveals that the state presented the following evidence: Testimony from, Porter, Victoria's teacher, and Williams, her 28 principal, that Victoria had been having behavior problems in school, including aggression and moodiness, during the period of abuse and that Victoria told them that her stepfather had been touching her and then began to cry and became very upset. Then Victoria, the victim in this case, testified at length, and in detail, as to several incidents in which Valentine sexually abused her. Her testimony, included describing how during the day, in the living room, while her mother was working, Valentine would summon her, tell her to change into a nightgown and then when she would return to him, he would have her perform fellatio on him on twenty occasions and on other occasions he would engage in oral sex with her, and on fifteen occasions he inserted his fingers into her vagina. In addition, the state presented testimony from, Anderson, the social worker who met with Victoria the day after she told her teacher about the abuse, and Anderson related how Victoria described Valentine's actions in having her sit on his lap and how he would digitally and anally fondle her and she further described that such conduct occurred over two hundred times. Finally, Detective Mulhall testified at trial for that state that Victoria's account of the sexual abuse she gave at trial was consistent with the statement she made during Anderson's interview with her. For the defense Valentine's brothers, Joseph and Dennis, testified that Victoria acted normal towards her stepfather, she did not seem to fear him, and that there appeared to be no 29 hostility between them during the time of the alleged abuse. Thereafter, Valentine testified on his own behalf that he never molested, touched or did anything to Victoria. He further testified that even after Victoria made the allegations against him, she acted normal, would be friendly towards him, and also gave him hugs when she saw him. On cross-examination, Valentine admitted he had three prior convictions, for attempted aggravated burglary, robbery, and for escape from a halfway house. Finally, Tammie Valentine testified for the defense, and stated, at trial, that, she rarely left Victoria at home with Valentine and that during the period of alleged abuse, she never noticed a problem with Victoria and Victoria never expressed any difficulties with Valentine. She also testified that even after the allegations were made, Victoria did not seem to fear Valentine when she saw him. On rebuttal, the state presented Andre Piskura, another social worker, who testified that Tammie and the defendant both signed a safety plan for Victoria, which provided that Valentine would remain out of the family home and would not have any contact with the child. After reviewing the entire record in this case, weighing the evidence and all reasonable inferences, considering the credibility of the witnesses, including Victoria and Valentine, we conclude the twenty verdicts of rape are fully evidenced in the record and are not against the manifest weight of the evidence; the record also supports fifteen occasions when Victoria testified Valentine 30 inserted his finger into her vagina which constitutes fifteen occasions of felonious sexual penetration. Accordingly, these verdicts are not against the manifest weight of the evidence. Since no evidence supports the additional five counts of felonious sexual penetration, those five judgments of conviction are reversed and the sentences imposed for them are vacated and this matter is remanded to the court to correct the record. The judgments of the twenty counts of rape and the fifteen counts of felonious sexual penetration are affirmed. Judgment accordingly. 31 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. DYKE, P.J., and HOLMES, J., CONCUR (Justice Robert E. Holmes, Retired, the Supreme Court of Ohio, Sitting by Assignment) JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .