[Cite as State v. McKenzie,
2025-Ohio-415.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
: Case No. 22CA14
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
WILLIAM RAY McKENZIE, :
: RELEASED: 02/04/2025
Defendant-Appellant. :
APPEARANCES:
Karyn Justice, The Law Office of Karyn Justice, LLC, Portsmouth, Ohio, for
appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M.
Kratzenberg, Assistant Lawrence County Prosecuting Attorney, Ironton, Ohio, for
appellee.
Wilkin, J.
{¶1} This is an appeal from a Lawrence County Court of Common Pleas
judgment entry of conviction in which appellant, William Ray McKenzie, was
found guilty by a jury of two counts of rape and ten counts of gross sexual
imposition (“GSI”). For the two counts of rape, the jury also found that the victim,
A.J.W., was under the age of 13 years old and that McKenzie used force.
Similarly, the jury found that A.J.W. was less than 12 years old as to the
remaining GSI offenses. The additional findings by the jury of A.J.W.’s age and
the finding of the use of force enhanced the sentence that could be imposed.
Based on the jury’s guilty verdicts and additional findings, the trial court imposed
a prison term of 25 years to life on each of the rape counts to be served
Lawrence App. No. 22CA14 2
consecutively. As for the remaining GSI convictions, the trial court imposed a
prison term of 60 months for each offense. The trial court ordered that four
counts of the GSI sentences be served consecutively with the rape sentences.
The remaining six GSI sentences were ordered to be served concurrently.
{¶2} McKenzie presents two assignments of error challenging his
convictions and sentence. In the first assignment of error, McKenzie maintains
that the trial court abused its discretion when it sua sponte reconsidered its initial
denial of the State’s untimely motion to conduct A.J.W.’s testimony through a
closed-circuit television outside the presence of McKenzie and the jury. We
disagree. The trial court did not abuse its discretion and the record clearly
demonstrates good cause for the State’s untimely filing of the motion. A.J.W.
was responsive to the questions during trial preparations by the prosecution,
including when she was previously questioned by the prosecution in the same
courtroom. But at trial, A.J.W. refused to answer questions regarding the abuse
even after being prompted to do so many times by the trial court. Thus, the
elements of R.C. 2945.481(D) and (E) were met and there was no error in
conducting A.J.W.’s testimony through a closed-circuit television outside the
presence of McKenzie and the jury.
{¶3} In the second and final assignment of error, McKenzie argues that
the trial court committed error when it ordered that the sentences for the rape
and four of the GSI convictions to be served consecutively. McKenzie asserts
the offenses were allied offenses of similar import because the victim failed to
testify to separate, identifiable sexual acts that McKenzie committed. We
Lawrence App. No. 22CA14 3
disagree. The victim was less than ten years old when McKenzie, the victim’s
step-grandfather, began sexually assaulting her. During her testimony, she
testified that McKenzie forced her to perform fellatio, performed cunnilingus
twice, attempted to have intercourse with her, inserted his finger in her vaginal
area twice, and touched her vaginal area “[s]o many times, [A.J.W.] can’t count."
Therefore, we find that the rape and GSI convictions are not allied offenses of
similar import. Accordingly, we overrule this assignment of error and affirm
McKenzie’s convictions and sentence.
FACTS AND PROCEDURAL BACKGROUND
{¶4} McKenzie and A.W. married in 2017 and were residing together
before McKenzie’s sexual abuse of A.W.’s granddaughters came to light. A.W.
had custody of her six grandchildren, including three granddaughters, one of
whom is A.J.W. In June 2021, when A.J.W. was nine years old, she went to
A.W. and informed her that she had a rash in her vaginal area. But when A.W.
needed to look at her, A.J.W. ran off, but came back later and A.W. inspected the
rash. A.J.W.’s rash looked like one of the worst carpet burns A.W. had ever seen
and the area was swollen. A.W. began questioning A.J.W. as to what happened,
if she did that to herself or if someone did that to her. A.J.W. assured A.W. that
she did not do it to herself, but that she could not tell her who did it, but would
write it down.
{¶5} A.J.W. began crying, ran upstairs, and came back down with a note
saying “Papaw.” This is the nickname the grandchildren called McKenzie. A.W.
took a moment to control herself and asked A.J.W. to go into one of the
Lawrence App. No. 22CA14 4
bedrooms and A.W. asked her sister to come join them. During this private
three-person conversation, A.J.W. revealed the years of the sexual abuse she
suffered from McKenzie. A.W. testified that during this conversation, she had to
exit the room and tell McKenzie to leave as he kept standing by the door
eavesdropping. After her conversation with A.J.W., A.W. also questioned her
oldest granddaughter and then asked her sister to contact the police. A.W. also
took A.J.W. to her pediatrician for examination.
{¶6} McKenzie left the house before the police arrived. While the
investigation was pending, McKenzie kept calling A.W. and two of his phone calls
were recorded and admitted as exhibits. During the first phone call, McKenzie
stated the following after A.W. asked if he was going to tell the truth: “I’m going to
tell them that I have a problem with underage kids.” McKenzie then assured
A.W.: “I’m not going to ever touch a kid again[.]” McKenzie turned the tables on
A.W. and informed her that “I done it because I don’t get no love from you and I
mistaked (sic.) it for love.” He continued to blame A.W. for getting custody of the
grandchildren and having the kids around all the time, and how McKenzie’s input
never mattered.
{¶7} A.W. in response informed him that: “That doesn’t give you the right
to touch anybody!” McKenzie responded: “No, it don’t but it does give me…it
didn’t give me no right to do any of it.” Their phone call exchange continued with
McKenzie making the following statements:
[A.W.]: You said that little girl grabbed my dick.
[McKenzie]: Yes.
...
Lawrence App. No. 22CA14 5
[A.W.]: What went wrong is you couldn’t control yourself around
babies.
[McKenzie]: Oh yeah, well[.]
...
[A.W.]: You’re acting like [A.J.W.] asked for it.
[McKenzie]: No, she didn’t.
...
[A.W.]: Have you touched the boys any at all, Will?
[McKenzie]: HELL NO! Hell no!
[A.W.]: Just . . . [A.J.W.]?
[McKenzie]: Yes!
...
[A.W.]: So, that’s the reason why you touch girls? Touched the
children?
[McKenzie]: I got fed up and I lost my fucking mind.
...
[McKenzie]: . . . You always knew that [A.J.W.] was my pick. [A.J.W.]
has always been my pick. I love that little girl with all my heart.
Would do anything for her. I didn’t mean for this to happen.
...
[A.W.]: She said at the other house you took her into the bathroom,
and you rubbed on her while you rubbed on yourself. You asked her
to lick your penis. She told you no because she was scared.
...
[McKenzie]: What you…what you heard right there happened. What
you just said happened. But not the end. Not the last part.
{¶8} A.W. was with former Detective Joe Ross of the Ironton Police
Department when McKenzie called her. During this second recorded phone call,
McKenzie blamed A.J.W. for the sexual assault:
[McKenzie]: . . . That little girl’s come to me and whispered in my ear,
“Papaw, will you rub my bird?” Now I honestly will swear to God on
my life and everyone here and in my life and everyone that’s alive
that that little girl has done that to me.
[A.W.]: And you did it?
[McKenzie]: No, I did not do it. I’ve (unintelligible) off a couple of
times and it...I just gave in. I did. I gave in because my fucking my
mind is crazy. I don’t fucking know what I was thinking. I don’t know
what I did. She did grab my dick. There was no penetration. There
was no skin-on-skin.
...
Yes, I touched her. Yes, I rubbed her.
...
Lawrence App. No. 22CA14 6
In total, it probably happened four times.
{¶9} McKenzie was arrested ten days later when he returned back to the
house where A.W. and the children reside. After his arrest, McKenzie was
indicted with 106 counts involving A.W.’s three granddaughters. The first 102
counts involved A.J.W. and the first 2 counts accused McKenzie of rape, and the
remaining 100 counts accused him of GSI. Prior to trial, however, the State
dismissed counts 13 through 102, all of which involved A.J.W. and accused
McKenzie of GSI. At the close of the State’s case, the State dismissed counts
103 to 106 that involved A.W.’s two other granddaughters.
{¶10} During the first day of trial, A.J.W. testified on two separate
occasions, but she refused to answer any questions regarding McKenzie’s
sexual assault. After the second attempt, and after the conclusion of the first day
of trial, the State requested that A.J.W. testify through a closed-circuit television
outside the presence of McKenzie and the jury. After hearing arguments at the
start of the second day of trial, the trial court denied the State’s motion.
However, the trial court on the third day of trial, revisited the issue and granted
the State’s motion allowing A.J.W. to testify through a closed-circuit television
from the judge’s chambers. This decision was journalized by the trial court.
{¶11} During her closed-circuit television testimony, A.J.W. testified that at
the residence prior to the current one, McKenzie would tell her to come to the
bathroom and there, he would pull her pants down and would rub her vaginal
area. When asked how many times did that occur, A.J.W. testified: “[s]o many
times, I can’t count.” A.J.W. also stated that McKenzie would also insert his
Lawrence App. No. 22CA14 7
middle finger into her vagina. In another occasion, also in the bathroom,
McKenzie closed the lid of the toilet and sat on it with his pants down. McKenzie
then pulled A.J.W.’s pants down and lifted her up on his lap. A.J.W. testified that
McKenzie’s penis did not go inside because “it wouldn’t fit” and it hurt.
{¶12} A.J.W. also testified that McKenzie on two occasions licked her
vaginal area. A.J.W. continued that at the old house also in the bathroom,
McKenzie after rubbing her vaginal area, pulled his penis out and placed her
mouth on his penis. A different time, while rubbing her vaginal area, McKenzie
pulled her hand and placed it on his penis.
{¶13} The jury found McKenzie guilty of all 12 counts including the special
findings in counts 1 and 2 of McKenzie using force and A.J.W. being less than 13
years of age.
{¶14} At the sentencing hearing, McKenzie declined to address the trial
court, but his counsel requested a sentence on only one of the rape counts and
requested that the remaining counts be merged as allied offenses of similar
import. The State requested a sentence on all 12 counts and that some should
be served consecutively. The trial court disagreed with McKenzie’s counsel that
the offenses would merge since there were separate identifiable sexual acts
committed by McKenzie. The trial court for each rape count imposed a prison
term of 25 years to life, and ordered they be served consecutively with four of the
GSI counts. The trial court imposed a 60-month prison term for each GSI
conviction with 6 counts to be served concurrently. It is from this judgment of
conviction entry that McKenzie appeals.
Lawrence App. No. 22CA14 8
FIRST ASSIGNMENT OF ERROR
THE COURT ERRED WHEN IT ALLOWED A.J.W. TO BE
RECALLED TO TESTIFY IN CAMERA RATHER THAN IN OPEN
COURT.
{¶15} Under the first assignment of error, McKenzie argues that the trial
court abused its discretion when it permitted A.J.W. to testify from the judge’s
chambers through a closed-circuit television when it initially denied the State’s
motion for this testimonial procedure. McKenzie maintains that the trial court’s
decision violated his right to confront the witness and his right to a fair trial.
McKenzie contends that the error was structural, resulted in prejudice, and was
not harmless, thus, his convictions should be reversed.
{¶16} McKenzie’s argument focuses on the State’s failure to timely file the
motion for A.J.W.’s testimony to be conducted through a closed-circuit television
pursuant to R.C. 2945.481, without demonstrating good cause. According to
McKenzie, A.J.W.’s failure to testify in a trial setting should not have been a
surprise to the State. This is because the State previously filed a motion to admit
A.J.W.’s out-of-court statements in which the State argued A.J.W. would not be
available—unable to effectively communicate in a trial setting. Further,
McKenzie contends that A.J.W. failed to articulate the reason for failing to
respond to the State’s questioning when testifying in court.
{¶17} McKenzie maintains that the trial court initially agreed with his
objection and denied the State’s motion, but the trial court on the third day of trial,
sua sponte reconsidered its decision and granted the State’s motion, which he
claims is structural error. According to McKenzie, the trial court went beyond its
Lawrence App. No. 22CA14 9
role as a neutral judge and improperly gave the State a second bite at the apple,
thus, violating McKenzie’s right to a fair trial. He also asserts that even if we
consider the error under the harmless error doctrine, A.J.W.’s testimony was the
only evidence that supported the convictions, because McKenzie’s phone call
statements were insufficient to support any criminal conduct.
{¶18} In response, the State admits that it did not file its motion timely,
however, it asserts it could not have predicted A.J.W.’s failure to testify because
of the trial preparations that were involved. The State’s untimely filing was not a
tactical advantage. It occurred because A.J.W. refused to answer questions and
was crying inconsolably on the witness stand in court. Therefore, the State
demonstrated good cause for the untimely filing, and the trial court did not abuse
its discretion in reconsidering its decision and granting the motion.
{¶19} McKenzie in his reply reiterates that the State was aware of A.J.W.’s
inability to testify back in November 2021, but they waited until the last minute to
file the motion for A.J.W. to testify through a closed-circuit television. McKenzie
continues to contend that it was an abuse of discretion for the trial court to sua
sponte reconsider its decision and allow A.J.W. to be recalled as a witness. The
trial court’s reconsideration decision was a structural error and gave the State
another chance to prove their case. Further, the error was prejudicial because
during the time between A.J.W.’s initial testimony and recalling her to testify, she
may have discussed her testimony with others. McKenzie also asserts that
under a harmless error analysis, reversal is warranted.
Lawrence App. No. 22CA14 10
Law and analysis
A. Confrontation Clause
{¶20} The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” The Confrontation Clause of the
Sixth Amendment is made applicable to the states by the Fourteenth
Amendment. State v. Issa, 93 Ohio St.3d 49, fn. 4 (2001). “Consequently, this
constitutional right applies to both federal and state prosecutions, but the right of
confrontation in Article I, Section 10 of the Ohio Constitution provides no greater
right of confrontation than the Sixth Amendment.” State v. Smith, 2021-Ohio-
2866, ¶ 67 (4th Dist.), citing State v. Arnold,
2010-Ohio-2742, ¶ 12.
{¶21} “The ‘primary object’ of this provision is to prevent unchallenged
testimony from being used to convict an accused—a safeguard that applies to
both federal and state prosecutions.” State v. Carter, 2024-Ohio-1247, ¶ 27,
citing Mattox v. United States,
156 U.S. 237, 242 (1895). Additionally, “[t]he
provision encompasses the rights to have a witness physically appear in the
courtroom, to require the witness to testify under oath, and to force the witness to
be subject to cross-examination.”
Id.
{¶22} The United States Supreme Court has “never held, however, that
the Confrontation Clause guarantees criminal defendants the absolute right to a
face-to-face meeting with witnesses against them at trial.” (Emphasis in original.)
Maryland v. Craig, 497 U.S. 836, 844 (1990). In Craig, the issue involved a
Maryland law that permitted a child victim to testify against the accused through a
Lawrence App. No. 22CA14 11
closed-circuit television.
Id. at 840. The Supreme Court of Ohio reiterated the
holding in Craig approving the closed-circuit procedure emphasizing that
the “central concern” of the Confrontation Clause is to ensure the
reliability of testimony by “subjecting it to rigorous testing in the
context of an adversary proceeding before the trier of fact.” Id. at
845. The court characterized the clause as “ ‘reflect[ing] a
preference for face-to-face confrontation at trial’ ” (emphasis in
original), id. at 849, quoting Ohio v. Roberts,
448 U.S. 56, 63,
100
S.Ct. 2531,
65 L.Ed.2d 597 (1980), that “ ‘must occasionally give way
to considerations of public policy and the necessities of the case,’ ”
id., quoting
Mattox at 243. Thus, the court held that face-to-face
confrontation could be dispensed with only in limited circumstances
“where denial of such confrontation is necessary to further an
important public policy and only where the reliability of the testimony
is otherwise assured.” Id. at 850.
Carter at ¶ 28.
{¶23} In the matter at bar, we have the important public policy of
protecting child victims from facing their abuser in person while also ensuring the
defendant’s right to confront the witness is protected. The State was granted
permission to conduct A.J.W.’s testimony through a closed-circuit television
pursuant to the procedures outlined in R.C. 2945.481, which was enacted to
protect child victims. McKenzie does not present as an issue the mechanism
used to conduct A.J.W.’s closed-circuit television testimony, in which his attorney
was physically present in the same room as A.J.W., and McKenzie was able to
view the testimony through the television and had a cell phone to communicate
instantaneously with his counsel. Therefore, his rights to view A.J.W. and
correspond with his counsel for possible questions were protected.
{¶24} Moreover, “we have already rejected a Confrontation Clause
challenge to permitting a minor victim of a sex offense to testify via closed-circuit
Lawrence App. No. 22CA14 12
video under R.C. 2945.481(E)[.]” State v. Powers, 2020-Ohio-7042, ¶ 57 (4th
Dist.), citing State v. Knauff,
2011-Ohio-2725 (4th Dist.).
{¶25} Therefore, we overrule McKenzie’s claims that his right to confront
A.J.W. was violated. We now advance to McKenzie’s other assertions
challenging the trial court’s decision to grant the State’s untimely filing of the
motion pursuant to R.C. 2945.481. But first, we outline the procedural
background of the proceedings.
B. Procedural background – A.J.W.’s testimony and the State’s motion
{¶26} On the first day of the jury trial, the State called A.J.W. as a witness.
During this testimony, A.J.W. refused to provide an audible response to the
State’s questions on issues relating to the abuse. And after A.J.W. was getting
emotional and refused to answer any questions, the trial court granted the State’s
request for a brief recess. During that brief recess, the State and McKenzie
agreed to have a victim’s advocate sit directly behind A.J.W. in the hopes A.J.W.
would be able to provide audible responses. Direct examination by the State of
A.J.W. continued after the brief recess. The recess, however, did not resolve the
issue of A.J.W. declining to provide an audible response to any question posed
relating to the abuse. And A.J.W. was again emotional and crying. With the
clock approaching 5 p.m., the trial court elected to end the proceedings for the
day.
{¶27} On the morning of the second day of trial, the State filed a motion
requesting the testimony of A.J.W. be conducted through a closed-circuit
television pursuant to R.C. 2945.481. McKenzie objected to the motion for being
Lawrence App. No. 22CA14 13
untimely filed and that A.J.W.’s reluctance to respond could not be a surprise to
the prosecution since A.J.W. had an issue articulating responses in previous
interviews. The trial court held ruling on the motion as the State attempted a
third direct-examination of A.J.W. But again, A.J.W. refused to answer any
questions relating to the abuse and at the end was not responding to any inquiry
or statement.
{¶28} At this time, the trial court excused the jury and A.J.W. was
questioned to determine the reason for her inability to answer questions
regarding the abuse. Although A.J.W. was emotional at the start of this
testimony, she was able to answer the questions posed by both the prosecution
and McKenzie’s counsel. A.J.W. testified that she knows how to use her words
and tell the truth. But she could not explain why she was not responding and
could not think of what would make her more comfortable. However, when
asked by the prosecution: “you think you probably could tell the truth in a different
room with just Judge Finley and Mr. Meadows and Jenna there?” A.J.W.
responded: “Yeah.”
{¶29} After a short cross-examination, A.J.W. was excused but was
reminded she was still under oath. The trial court then heard arguments from the
prosecution and McKenzie’s counsel. McKenzie’s argument focused on the
State’s failure to timely file the motion and the State cannot claim surprise. Thus,
McKenzie maintained that the State failed to demonstrate good cause for the
untimely filing. The State countered by arguing that the surprise was
demonstrated by A.J.W.’s failure to respond to the questions and because of the
Lawrence App. No. 22CA14 14
intensity of preparing A.J.W. for her testimony. A.J.W. was responsive during the
preparation stages according to the State. McKenzie then requested that the trial
court consider the factor that he has a right to face his accuser in person.
{¶30} The trial court denied the State’s motion finding:
at this point in time the Court is going to overrule the motion as there
is not sufficient evidence in the record to support the position that the
victim is unavailable to testify in the physical presence of the
defendant, along with the Court’s consideration of the additional
arguments of counsel in review of applicable law.
{¶31} After the trial court’s denial of the motion, the State declined to recall
A.J.W. to the stand. And the second day of trial proceeded with testimony from
A.J.W.’s pediatrician, A.J.W.’s eight-year-old sibling, and former Detective Ross.
A.J.W.’s younger sibling similarly declined to respond to any questions that
related to the abuse. In her testimony, the younger sibling testified that she
previously answered these questions, but that she was nervous and there were a
lot of people in the courtroom. At the conclusion of the former detective’s
testimony, the trial court excused the jury for the day. After the jury left the
courtroom, the trial court stated: “I’m going to do a little more research on the
[State’s motion to conduct A.J.W.’s testimony through a closed-circuit television].
. . . In the interest of I just want to be sure[.]” The trial court elaborated:
It’s just…I’ve been stewing on it and the case and the statute
(unintelligible) keep looking at it and I’d rather just take some more
time to look at it and, um, so I’m likely to reconsider my decision that
I made earlier. I just want some time to research. I didn’t really have
the luxury of doing that.
{¶32} McKenzie’s counsel did not object and thanked the court. The State
moved for the admission of its four exhibits, which were admitted without
Lawrence App. No. 22CA14 15
objection. On the third day of trial, the court indicated that all parties are in
agreement that the issue of the State’s motion needs to be addressed outside
the presence of the jury. Thus, the jury was excused for the day. No further
discussion of the motion was conducted on the record.
{¶33} At the start of the fourth day of trial, the trial court placed on the
record that it advised both the prosecution and McKenzie it was reconsidering its
decision on the State’s motion to conduct A.J.W.’s testimony through a closed-
circuit television outside the presence of McKenzie and the jury. The trial court
recounted the events that previously occurred, outlined the applicable law, and
granted the motion stating the following:
The child quickly became visibly upset and started crying
while on the witness stand. The Court allowed for a break in
testimony over the objection of the Defendant in an effort to
determine whether testimony could continue. Upon resuming from
break, A.J.W. once again froze on the witness stand and began
inconsolably crying. A.J.W. struggled to answer questions verbally
and non-verbally and at times responded only non-verbally to
questions posed by counsel. After approximately one-and-a-half
hours of the prosecution attempting to elicit testimony from the
alleged victim, the Court chose to break for the day. . . . The motion
was filed on the morning of August 9th, 2022. The Court
acknowledged the filing of the motion prior to bringing in the jury on
August 9th, 2022. However, prior to hearing the motion, it was
decided that the Prosecution would attempt to continue with A.J.W.’s
testimony. A.J.W. was again unable to provide testimony related to
the crimes alleged in the indictment for which the Defendant stands
trial. A.J.W. shut down and cried when asked questions designed to
elicit testimony surrounding the crimes alleged in the indictment.
A.J.W. refused to respond to questions, even after being directed to
do so by the Court. After approximately thirty minutes, the
prosecution asked to approach the bench and requested that the
motion concerning the taking of A.J.W.’s testimony in a room other
than the courtroom be heard.
...
The Court did not find the Defendant’s argument concerning
the timeliness of the motion to be persuasive based upon the
Lawrence App. No. 22CA14 16
apparent necessity of the motion. The Court found and continues to
find that good cause exists to support the pending motion
considering the Prosecution’s good faith efforts to elicit testimony
from the child on the witness stand and the physical presence of the
Defendant and the child’s response to the Prosecution’s efforts, or
lack thereof. Initially the Court orally overruled and denied the
motion, as the Court had reviewed two 4th District Appellate cases[.]
. . . However, upon further review of the cases described herein,
which were originally relied on by the Court, the Craig and Self
decisions as cited by the 4th District Court of Appeals in Knauff and
Hammond were based on an analysis of prior statutes, which
required findings different from those required pursuant to R.C.
2945.481(E).
...
During the hearing on the pending motion, the victim admitted
that she did not know why she could not talk. Whether the cause is
fear, failure of memory, anxiety, or some other reason, the Court
finds the alleged victim is unable to communicate about the alleged
violations or offense. . . . However, it is clear from the repeated
attempts to elicit testimony from A.J.W. and her visible response
thereto that she was extremely upset or disturbed by attempts to elicit
testimony concerning the crimes alleged in the indictment. The child
again was visibly upset, crying and sobbing, and at times completely
stopped responding or communicating with counsel and/or the Court.
. . . The Court found no authority undermining the constitutionality of
R.C. 2945.481. . . . Further, the Defendant will be able to see his
accuser and hear her testimony contemporaneously as it is provided
to the Court. He will have means to communicate directly and
contemporaneously with his attorney who will be present in the room
with the alleged child victim, and he will have the right to crossexamine his accuser. In summary, the procedure to be utilized as
set forth in R.C. 2945.481 will maintain the reliability inherent in our
system of rigorous adversarial testing; thus, the Court is not
persuaded that the Defendant will be deprived of his constitutional
right to confront his accuser as afforded to him by the State and
Federal constitution. Therefore, the Court hereby grants the motion
of the prosecution requesting an order to take the testimony of A.J.W.
in a room other than the room which the trial the case is being
conducted. . . . The statute does require a, uh, written order. I am
going to have an order filed, um, immediately.
{¶34} At the conclusion of the trial court’s announcement of its decision,
McKenzie objected to recalling A.J.W. He asserted that the recall is
Lawrence App. No. 22CA14 17
inappropriate because it’s an attempt by the State to correct or change the
previous testimony. McKenzie then reiterated that the State’s motion was
untimely and further, there is an issue of what discussions A.J.W. may have had
with others during the time she testified and the time of recalling her. The trial
court overruled McKenzie’s objection and reminded him that he also previously
waived any further cross-examination of A.J.W. With regard to any witness
tampering, the trial court stated that McKenzie can address that issue during
A.J.W.’s cross-examination. The trial court reiterated:
And, so, um, in reviewing the statute, which I set forth in my
entry…in reviewing the statute, I think the statutes plain reading, I
think that they have met the burden as set forth or I can make the
findings as required in the plain reading of the statute. Uh, I needed
additional time to do research.
{¶35} The trial court journalized its decision to grant the State’s motion.
C. Sua Sponte Reconsideration
{¶36} We begin by addressing McKenzie’s argument that the trial court’s
reconsideration of its initial denial of the State’s motion was structural error. This
argument lacks merit. As the Supreme Court of Ohio reiterated:
“The purpose of the structural error doctrine is to ensure
insistence on certain basic, constitutional guarantees that should
define the framework of any criminal trial.” Weaver at ––––, 137 S.Ct.
at 1907. Structural error has therefore been recognized only
in limited circumstances involving fundamental constitutional rights,
including the denial of counsel to an indigent defendant, the denial
of counsel of choice, the denial of self-representation at trial, the
denial of a public trial, and the failure to instruct the jury that a
defendant's guilt must be proved beyond a reasonable doubt. Id. at
––––, 137 S.Ct. at 1908; United States v. Davila, 569 U.S. 597, 611,
133 S.Ct. 2139,
186 L.Ed.2d 139 (2013).
Therefore, the threshold issue in determining whether an error
is structural is whether the error deprives the accused of a
constitutional right. Perry at ¶ 21; see also State v. Payne, 114 Ohio
Lawrence App. No. 22CA14 18
St.3d 502, 2007-Ohio-4642,
873 N.E.2d 306, ¶ 18 (“all structural
errors are by nature constitutional errors”)[.]
State v. Jones, 2020-Ohio-3051, ¶ 21, 22.
{¶37} We previously overruled McKenzie’s argument that A.J.W.’s closed-
circuit television testimony violated his constitutional right to confront the witness.
Further, as we address below, the procedure followed by the trial court was
pursuant to the dictates of R.C. 2945.481 which has been found to be
constitutional. See State v. Knauff, 2011-Ohio-2725, ¶ 2 (R.C. 2945.481 “passes
constitutional muster.”) Thus, in the matter at bar, there is no constitutional
violation to apply the structural error doctrine.
{¶38} Second, we find no plain error by the trial court’s reconsideration of
the State’s R.C. 2945.481 motion. In the matter at bar, when the trial court
informed the State and McKenzie that it intended to conduct further research and
reconsider the State’s motion for A.J.W.’s testimony to be held through a closed-
circuit television, McKenzie did not object. “When a defendant fails to preserve
an objection to a particular issue at trial, ‘forfeiture’ of that issue occurs[,]” and
“[f]orfeiture waives all but plain error.” State v. Cambron, 2020-Ohio-819, ¶ 22
(4th Dist.), citing State v. Payne,
2007-Ohio-4642, ¶ 23.
{¶39} “The burden of demonstrating plain error is on the party asserting it.”
State v. Quarterman, 2014-Ohio-4034, ¶ 16. “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention
of the court.” Crim.R. 52(B). In order to establish plain error, McKenzie “must
show that (1) there was an error or deviation from a legal rule, (2) the error was
plain and obvious, and (3) the error affected the outcome of the trial.” State v.
Lawrence App. No. 22CA14 19
Mohamed,
2017-Ohio-7468, ¶ 26, citing State v. Barnes,
2002-Ohio-68, ¶ 27.
“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long,
53 Ohio St.2d 91, 97 (1978). A “substantial right” is a
“right that the United States Constitution, the Ohio Constitution, a statute, the
common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1).
{¶40} “In Ohio, trial courts may sua sponte reconsider any judgment which
is not final.” (Emphasis sic.) Slavens v. Spetnagel, 1994 WL 534888, *3 (4th
Dist. Sept. 28, 1994), citing Beim v. Jemo Assoc., Inc.,
61 Ohio App.3d 380 (10th
Dist. 1989). Further, “[t]he Ohio Rules of Criminal Procedure neither specifically
authorize nor prohibit a trial court from reconsidering interlocutory orders,
regardless of whether that reconsideration is the result of a motion or sua
sponte.” State v. Ross,
2009-Ohio-3561, ¶ 17 (9th Dist.), citing Crim.R. 58. In
the matter at bar, McKenzie fails to assert that the trial court’s initial denial of the
State’s motion pursuant to R.C. 2945.481 was not an interlocutory order that
could not be reconsidered by the trial court. And as we previously stated,
“appellate courts do not have [a] duty to construct or develop arguments to
support a defendant's assignment of error.” State v. Chapman,
2022-Ohio-2853,
¶ 43 (4th Dist.), citing McPherson v. Goodyear Tire & Rubber Co., 2003-Ohio-
7190, ¶ 31 (9th Dist.).
{¶41} Accordingly, we find that the trial court’s reconsideration of the
State’s R.C. 2945.481 motion was not a structural error and McKenzie fails to
Lawrence App. No. 22CA14 20
meet his burden that the trial court’s reconsideration was a deviation from a legal
rule.
D. R.C.2945.481 – Law and standard of review
{¶42} As applicable at the time of McKenzie’s offenses and trial, R.C.
2945.81 provided:
(D) In any proceeding in the prosecution of any charge of a
violation listed in division (A)(2) of this section or an offense of
violence and in which an alleged victim of the violation or offense
was a child who was less than thirteen years of age when the
complaint, indictment, or information was filed, whichever occurred
earlier, the prosecution may file a motion with the judge requesting
the judge to order the testimony of the child victim to be taken outside
of the room in which the proceeding is being conducted and be
recorded for showing in the room in which the proceeding is being
conducted before the judge, the jury, if applicable, the defendant, and
any other persons who would have been present during the
testimony of the child victim had it been given in the room in which
the proceeding is being conducted. Except for good cause shown,
the prosecution shall file a motion under this division at least seven
days before the date of the proceeding. . . The defendant shall be
permitted to observe and hear the testimony of the child victim who
is giving the testimony on a monitor, shall be provided with an
electronic means of immediate communication with the defendant's
attorney during the testimony, and shall be restricted to a location
from which the defendant cannot be seen or heard by the child victim
giving the testimony, except on a monitor provided for that purpose.
...
(E) For purposes of divisions (C) and (D) of this section, a
judge may order the testimony of a child victim to be taken outside
the room in which the proceeding is being conducted if the judge
determines that the child victim is unavailable to testify in the room
in the physical presence of the defendant due to one or more of the
following:
(1) The persistent refusal of the child victim to testify despite
judicial requests to do so;
(2) The inability of the child victim to communicate about the
alleged violation or offense because of extreme fear, failure of
memory, or another similar reason;
(3) The substantial likelihood that the child victim will suffer
serious emotional trauma from so testifying.
Lawrence App. No. 22CA14 21
R.C. 2945.481(D) and (E).1
{¶43} The decision to permit leave to file an untimely motion pursuant to
R.C. 2945.481 is within the trial court’s sound discretion. State v. Messenger,
2022-Ohio-3120, ¶ 43 (7th Dist.). “An abuse of discretion connotes more than a
mere error of judgment; it implies that the court’s attitude is arbitrary,
unreasonable, or unconscionable.” State v. Ables,
2012-Ohio-3377, ¶ 9 (4th
Dist.), citing State v. Adams,
62 Ohio St.2d 151, 157 (1980). We have also held
that “[t]he standard of review in determining whether a trial court has made
sufficient findings under R.C. 2945.481 to permit a child to testify via closed-
circuit video is whether those findings are ‘supported by competent, credible
evidence.’ ” State v. Powers,
2020-Ohio-7042, ¶ 61 (4th Dist.), quoting State v.
Hammond,
2019-Ohio-4253, ¶ 21 (4th Dist.).
E. Analysis
{¶44} We find that the trial court did not abuse its discretion and its
decision is supported by competent credible evidence. The State demonstrated
good cause for the untimely filing of the motion, and A.J.W. persistently refused
to testify after being requested to do so by the trial court.
{¶45} A.J.W. took the witness stand two times before the filing of the
State’s motion to conduct her testimony through a closed-circuit television, and
three times before the motion was argued by the parties. During the
approximately two-hour testimony, A.J.W. refused to answer questions relating to
the abuse approximately 130 times. Further, she was prompted by the trial court
1
R.C. 2945.481 has been amended twice since McKenzie’s convictions.
Lawrence App. No. 22CA14 22
to answer the questions six times and on three other occasions would not
respond to the trial court’s questioning. Moreover, during her testimony, A.J.W.
cried nine times and was inconsolable according to the State and trial court’s
observations.
{¶46} The prosecution’s claim that it was surprised by A.J.W.’s refusal to
answer is supported by A.J.W.’s own testimony. A.J.W. was questioned whether
she previously sat in the witness stand in the same courtroom as part of trial
preparation, and she said yes. A.J.W. also stated that she was asked the same
questions currently posed by the same assistant prosecutor and she previously
answered them with words and truthfully. But A.J.W. could not answer why she
was unable to answer them during trial. We note that in this case, the trial court
at the initial denial and when granting the State’s motion, found that the State
demonstrated good cause shown. The initial denial was because the trial court
was mistaken in that the State had to demonstrate A.J.W. was fearful of
McKenzie, which is required under R.C. 2945.481(E)(2). But the State’s motion
was pursuant to R.C. 2945.481(E)(1)—A.J.W.’s persistent reluctance to respond
to questions even after judicial requests. And R.C. 2945.481(E) is written in the
conjuncture, “one or more,” thus, only one subsection is required.
{¶47} McKenzie is correct in that the State back in November 2021, filed a
motion to use A.J.W.’s out-of-court statements because they suspected she
would not be able to articulate her words in a trial setting and thus, was
unavailable. The State withdrew that motion at the April 2022 pretrial hearing,
which was four months prior to the trial date. What we can ascertain from the
Lawrence App. No. 22CA14 23
record of the case is the extensive trial preparation that the State completed in
preparing A.J.W. to testify in a trial setting, including questioning her in court.
And based on the State’s comments, A.J.W.’s testimony and emotional reaction
on the stand, we find competent evidence that the State was surprised that
A.J.W. was not responding to the questions.
{¶48} In support of his argument, McKenzie directs our attention to the
Seventh District Court of Appeals’ opinion in Messenger, 2022-Ohio-3120 (7th
Dist.). In that case, the Seventh District reversed the trial court’s decision
granting the State’s untimely motion to conduct the child victim’s testimony
through a closed-circuit television. Id. at ¶ 55. The reversal was based on the
State’s failure to demonstrate good cause for the untimely filing of the motion,
and the conclusion that the admission of the victim’s testimony was not harmless
as the child-victim was the only witness identifying the perpetrator. Id. at ¶ 47,
48. In Messenger, the State’s reason for the untimely filing was because the
prosecution waited until the Tuesday before trial to interview the child victim.
And during that interview, the prosecution became aware of the child victim’s
inability to testify.
{¶49} Unlike the facts in Messenger, the State here met with the victim
and conducted a trial preparation interview in the same courtroom as the trial
was going to be held. There was no last minute interview of A.J.W. Further,
during the trial preparation, A.J.W. was responsive. Moreover, in the case at bar,
we also have McKenzie’s own statements admitting to sexually abusing A.J.W. at
least four times.
Lawrence App. No. 22CA14 24
{¶50} Additionally, with regard to McKenzie’s challenge to recalling A.J.W.
as a witness, Evid.R. 611(A) provides that
The court shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue
embarrassment[.]
{¶51} “Whether to permit a witness to be recalled to the stand to give
additional testimony is a matter committed to the sound discretion of the trial
court.” State v. Taylor, 2003-Ohio-7115, ¶ 18 (3d Dist.), citing State v. Sims,
3
Ohio App.3d 321 (8th Dist. 1981). We find no abuse of discretion in the matter at
bar, since A.J.W. refused to provide responses when testifying in the presence of
McKenzie and the jury, and the State demonstrated the need for a closed-circuit
television testimony to be conducted.
{¶52} Wherefore, we conclude that the trial court did not abuse its
discretion in finding that the State demonstrated good cause for the untimely
filing of the motion, and that the requirement in R.C. 2945.481(E)(1) was met in
that A.J.W. persistently refused to answer any questions at trial in the courtroom
regarding the sexual abuse even after being instructed to do so by the trial court.
McKenzie’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
THE COURT ERRED WHEN IT ORDERED MR. MCKENZIE TO SERVE
CONSECUTIVE SENTENCES.
{¶53} McKenzie argues that his consecutive sentences are contrary to law
because his convictions were allied offenses of similar import. McKenzie notes
Lawrence App. No. 22CA14 25
that his 12 convictions were based on the same time frame of over 3 years and
involved the same victim. Further, the State did not elicit testimony as to the
different sexual acts that were committed. Thus, according to McKenzie, the
State failed to demonstrate separate, identifiable harm. This is because although
the victim testified that the sexual acts were committed in two different locations,
she did not distinguish what activity occurred as part of which event. McKenzie
in conclusion also argues that “[t]he evidence did not support the court’s finding
that the consecutive sentences were warranted in this case.”2
{¶54} The State in response asserts that A.J.W. testified with specificity of
how McKenzie sexually assaulted her. A.J.W. testified that McKenzie while
naked attempted to insert his penis in her vagina but it would not fit and it hurt.
A.J.W. also testified that McKenzie committed cunnilingus twice and also placed
her mouth on his penis. Therefore, as there were multiple sexual acts committed
at different times and locations, the State maintains that the counts are not allied
offenses of similar import.
I. Law
{¶55} “The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution affords protections against the imposition of multiple criminal
punishments for the same offense.” State v. Rogers, 2015-Ohio-2459, ¶ 16,
2
We will address McKenzie’s challenge of consecutive sentence as it relates to the allied offenses
of similar import argument. We will not, however, address his one-line conclusionary statement
that the trial court’s consecutive sentence findings are not supported by the evidence of the case.
This is because McKenzie fails to expand on this argument and it is not our duty to create an
argument on his behalf. See State v. Doughman,
2017-Ohio-4253, ¶ 27 (4th Dist.); App.R.
16(A)(7).
Lawrence App. No. 22CA14 26
citing Hudson v. United States,
522 U.S. 93, 99 (1997). The prohibition against
multiple punishments is codified in R.C. 2941.25, which provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶56} The Supreme Court of Ohio elaborated that
when determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must ask three
questions when the defendant’s conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were
they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and
the import must all be considered.
State v. Ruff, 2015-Ohio-995, ¶ 31.
{¶57} “Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus. “Offenses are committed
separately within the meaning of R.C. 2941.25(B) if one offense is completed
before the other offense occurs.” State v. Fisher,
2023-Ohio-2088, ¶ 21 (6th
Dist.), citing State v. Turner,
2011-Ohio-6714, ¶ 24 (2d Dist.).
“Animus” is defined for purposes of R.C. 2941.25(B) as “
‘purpose’ or ‘more properly, immediate motive.’” “If the defendant
acted with the same purpose, intent, or motive in both instances,
Lawrence App. No. 22CA14 27
the animus is identical for both offenses.” Animus is often difficult to
prove directly, but must be inferred from the surrounding
circumstances. (Citations omitted.)
State v. Fisher, 2014-Ohio-4257, ¶ 17 (4th Dist.).
{¶58} “The defendant bears the burden of establishing his entitlement to
the protection, provided by R.C. 2941.25, against multiple punishments for a
single criminal act.” State v. Mughni, 33 Ohio St.3d 65, 67 (1987).
{¶59} We review de novo the trial court’s merger determination of allied
offenses. State v. Williams, 2012-Ohio-5699, ¶ 1. Thus, as an appellate court,
we “ ‘independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.’ ” Id. at ¶ 26,
quoting State v. Burnside,
2003-Ohio-5372, ¶ 8. “[W]hen deciding whether to
merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must
review the entire record, including arguments and information presented at the
sentencing hearing, to determine whether the offenses were committed
separately or with a separate animus.” State v. Washington,
2013-Ohio-4982, ¶
24.
{¶60} In the matter at bar, McKenzie was convicted of two counts of rape
in violation of R.C. 2907.02(A)(1)(b), which provides:
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.
Sexual conduct is defined in R.C. 2907.01(A) as:
Lawrence App. No. 22CA14 28
vaginal intercourse between a male and female; anal intercourse,
fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of
the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another. Penetration, however slight, is
sufficient to complete vaginal or anal intercourse.
{¶61} McKenzie was also convicted of GSI in violation of R.C.
2907.05(A)(4), which states:
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, whether or not the offender knows the age
of that person.
Sexual contact is defined in R.C. 2907.01(B) 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.”
II. Analysis
{¶62} At the sentencing hearing, McKenzie’s counsel argued that the rape
and GSI convictions should merge as being allied offenses of similar import.
According to McKenzie, the offenses were alleged to have been committed in the
same three-year-period and there was no evidence that he committed separate
acts that resulted in separate harm. The trial court overruled the request finding
that there was evidence demonstrating separate acts. Our de novo review of the
evidence presented at trial leads us to the same conclusion as the trial court—
McKenzie committed separate sexual acts against the minor victim A.J.W. The
two rape convictions and the four GSI convictions that were ordered to be served
Lawrence App. No. 22CA14 29
consecutively, were based on separate acts committed at separate times and
different locations.
{¶63} “Different types of rape committed within the same sexual assault
such as ‘vaginal intercourse, cunnilingus, and digital penetration constitute
separate crimes’ ‘with a separate animus,” and thus, ‘they do not constitute allied
offenses of similar import.’ ” State v. McKinney, 2024-Ohio-4642, ¶ 90 (4th Dist.),
quoting State v. Nicholas,
66 Ohio St.3d 431, 435 (1993). This view is consistent
with other appellate courts in which the Eighth District Court of Appeals in State
v. Townsend, stated that “rape involving different types of sexual activity, such as
vaginal intercourse, digital penetration, and oral intercourse, arise from distinct
conduct and are not considered allied offenses, even when committed during the
same sexual assault.”
2019-Ohio-1134, ¶ 70 (8th Dist.), aff’d,
2020-Ohio-5586.
The Third District similarly held that “[c]rimes involving distinct sexual activity, i.e.,
vaginal intercourse, cunnilingus, and digital penetration, each constitute a
separate crime with a separate animus, and they do not constitute allied offenses
of similar import.” State v. Harvey,
2010-Ohio-5408, ¶ 21 (3d Dist.).
{¶64} Moreover, the victim here is a minor, and as the Twelfth District
Court of Appeals emphasized,
[i]n sexual abuse cases involving children, this court has held
that it may be impossible to provide a specific date in the indictment.
State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-
07-113, 2014-Ohio-3449,
2014 WL 3892998, ¶ 36. 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. Id. “ ‘An allowance for reasonableness and
inexactitude must be made for such cases.’ ” State v. Birt, 12th Dist.
Butler, 2013-Ohio-1379,
5 N.E.3d 1000, ¶ 32, quoting State v.
Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226,
Lawrence App. No. 22CA14 30
2011 WL 4790887, ¶ 12. See also Collinsworth at ¶ 23 (“Under
circumstances dealing with the memory of a child, reasonable
allowances for inexact dates and times must be made”).
State v. Scott, 2020-Ohio-3230, ¶ 40 (12th Dist.).
{¶65} In the matter at bar, McKenzie resided with A.J.W. at the three
locations in which the sexual assault began and continued over the three-year-
period. A.J.W., who was ten years old at trial and about to start fifth grade,
testified that at the residence prior to the current one, McKenzie would tell A.J.W.
to come to the bathroom and there, he would pull her pants down and would rub
her vaginal area. When asked how many times did that occur, A.J.W. testified:
“[s]o many times, I can’t count.” See State v. Koster, 2024-Ohio-57, ¶ 31 (4th
Dist.) (We held that the 30 counts of unlawful sexual conduct with a minor were
not allied offenses of similar import when testimony established, in part, that the
defendant had engaged “in oral sex with [the victim] ‘over a hundred’ times,”
“vaginal sexual conduct” “ ‘a hundred or more’ times,” and “anal sex ‘twice’[.]”).
Further here, McKenzie admitted to committing several acts of GSI during his
second phone call with A.W., in which he admitted to rubbing A.J.W.’s vaginal
area and that it “probably happened four times.”
{¶66} McKenzie’s conduct was not limited to just rubbing A.J.W.’s vaginal
area, but he would also insert his middle finger into her at least two other times.
In another occasion, also in the bathroom, McKenzie closed the lid of the toilet
and sat on it with his pants down. McKenzie then pulled A.J.W.’s pants down
and lifted her up on his lap. A.J.W. testified that McKenzie’s penis did not go
inside because “it wouldn’t fit” and it hurt.
Lawrence App. No. 22CA14 31
{¶67} A.J.W. also testified that McKenzie on two occasions licked her
vaginal area. This occurred once at the previous residence and once at the
current house prior to McKenzie’s arrest. A.J.W. continued that at the old house
also in the bathroom, McKenzie after rubbing her vaginal area, pulled his penis
out and placed her mouth on his penis. This occurred only once and A.J.W.
expanded that “[s]omething came out of his middle in my mouth.” A different
time, while rubbing her vaginal area, McKenzie pulled her hand and placed it on
his penis.
{¶68} As the record demonstrates, McKenzie sexually abused A.J.W. over
a long period of time and committed different acts of sexual conduct and sexual
contact. The evidence, therefore, supports the conclusion that the two rape and
the four GSI convictions are not allied offenses of similar import. Accordingly, the
trial court’s imposition of consecutive sentences for these offenses is affirmed.
McKenzie’s second assignment of error is overruled.
CONCLUSION
{¶69} Having overruled both of McKenzie’s two assignments of error, we
affirm his convictions and sentence.
JUDGMENT AFFIRMED.
Lawrence App. No. 22CA14 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
