[Cite as State v. J.S., 2016-Ohio-8267.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :              No. 15AP-959
                                                             (C.P.C. No. 14CR-5787)
v.                                               :
                                                          (REGULAR CALENDAR)
[J.S.],                                          :

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                    Rendered on December 20, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
                 Swisher, for appellee.

                 On brief: Barnhart Law Office LLC, and Robert B.
                 Barnhart, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
          {¶ 1} This is an appeal by defendant-appellant, J.S., from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas
following a jury trial in which he was found guilty of kidnapping and rape.
          {¶ 2} On October 30, 2014, a grand jury returned an indictment charging
appellant with one count of kidnapping, in violation of R.C. 2905.01, and one count of
rape, in violation of R.C. 2907.02. The matter came for trial before a jury beginning
August 18, 2015.
          {¶ 3} The first witness for plaintiff-appellee, State of Ohio, was Reynoldsburg
Police Officer Kyle Williams. On July 25, 2014, at 5:30 a.m., Officer Williams was
No. 15AP-959                                                                                2

dispatched to the Barcelona Square Apartments, located on San Miguel Place,
Reynoldsburg. According to the dispatch, a female caller reported that "she had been
raped by her sister's ex-boyfriend." (Tr. Vol. I at 52.) The dispatch indicated that the
name of the suspect was J.S.
        {¶ 4} When Officer Williams arrived at the residence, R.B., the alleged victim, met
him at the door; according to the officer, she "appeared upset physically and emotionally."
(Tr. Vol. I at 57.) Two other police officers also arrived at the residence at approximately
that same time. The officers collected items at the apartment, including a t-shirt that "was
on the couch * * * and it had what appeared to be blood stains on it," a pair of underwear,
a bra, and several blankets from the living room couch. (Tr. Vol. I at 61.) A friend drove
R.B. to Grant Medical Center, and Officer Williams followed them in his cruiser; the
officer remained with R.B. at the hospital until police detectives arrived.
        {¶ 5} Reynoldsburg Police Officer David Burks was also dispatched to the San
Miguel Place residence at 5:30 a.m. that morning after receiving a "sexual assault or rape
call." (Tr. Vol. I at 79.) When Officer Burks arrived, Officer Williams was already
speaking to R.B. The woman told the officers "she was sexually assaulted by someone she
knew and that it happened on the couch in * * * the living room right inside the first floor
of the apartment." (Tr. Vol. I at 80.)
        {¶ 6} Officer Burks assisted the other officers in collecting evidence from the
scene, and he took photographs of the apartment, including the living room area. Officer
Burks also photographed R.B.'s neck; R.B. described being "choked during the incident,"
and the officer "noticed * * * red marks and possible bruising and * * * maybe a scratch or
two on her neck." R.B. told Officer Burks that "she had taken out a tampon; she was on
her cycle." (Tr. Vol. I at 84.) R.B. "had discarded that in the toilet upstairs." The officers
did not collect that item as evidence as "it was actually in the toilet and we felt like it
would be of no value." (Tr. Vol. I at 85.)
        {¶ 7} R.B., age 27, testified that she moved back to the Columbus area in January
2014 and was residing with her mother in a condominium on San Miguel Place,
Reynoldsburg. R.B. would often sleep on the couch at her mother's residence. She "kept
* * * blankets on it and also a throw blanket over the back of the couch." (Tr. Vol. I at
100.)
No. 15AP-959                                                                                3

       {¶ 8} R.B. has an older sister, C.B., who was dating appellant in 2014. R.B. first
met appellant approximately one month after she moved back to Columbus; appellant
would sometimes be at C.B.'s residence when R.B. visited her sister. Appellant's nickname
was "G." (Tr. Vol. I at 102.)
       {¶ 9} R.B. was employed at a shoe store located in the Easton Mall. On July 24,
2014, at approximately 11:00 p.m., R.B. met some friends after work, including an
individual named A.A.; they met at Adobe Gila's, a bar located at Easton Mall. R.B. had a
beer, and "probably had a shot of Jack [Daniels]." (Tr. Vol. I at 106.) R.B. did not have a
vehicle at the time, and her mother usually provided her transportation to and from work.
R.B.'s mother was out of town that weekend, and R.B. phoned her younger sister "and
asked if she could come get me. She didn't answer." R.B. then phoned her older sister,
C.B., who "said, [g]ive me a second and I'll call you back." (Tr. Vol. I at 107.)
       {¶ 10} C.B. called back "a few minutes later * * * and said, G is in the area and he
can pick you up and take you to mom's." (Tr. Vol. I at 107.) While waiting for a ride, R.B.
"walked over to [A.A.'s] house," and R.B. "called G a few times on my phone to let him
know that I wasn't at Adobe's, I was over at [A.A.'s]." (Tr. Vol. I at 108.) A.A. resided at a
nearby condominium, and R.B. "gave [appellant] the address of where he could pick me
up at." Appellant arrived on a Harley Davidson motorcycle and "came and knocked on
the door once he got there." (Tr. Vol. I at 108.)
       {¶ 11} R.B. rode on the back of the motorcycle with appellant to her mother's
residence in Reynoldsburg. After arriving at the residence, appellant "asked to use the
bathroom and I said, Yeah, no problem." (Tr. Vol. I at 109.) After appellant "was done
using the bathroom he came out. I was sitting on the couch and he sat on the couch." (Tr.
Vol. I at 114.) R.B. asked appellant "if he wanted something to drink." (Tr. Vol. I at 114-
15.) She did not offer him any alcohol.
       {¶ 12} R.B. testified that appellant then "leaned in to kiss me and I kind of looked
at him confused. I told him it was time for him to leave." R.B. "stood up from the couch
and asked him to go ahead and leave," and she reminded him "that he was dating my
sister." They both "headed toward * * * the hallway area and he got close to me in my
personal space as if he was going to lean in again and I pushed him." (Tr. Vol. I at 115.)
No. 15AP-959                                                                                4

After pushing appellant, R.B. "took a few steps toward the front door and that's when he
* * * choked me. He kind of pushed me up against the hallway." (Tr. Vol. I at 115-16.)
        {¶ 13} R.B. testified that appellant had his hand on her "to the point where I * * *
couldn't scream for help. He was choking me so hard it was hard to scream." Appellant
then "grabbed me by my arm and led me over toward the couch and I was screaming and
hitting, scratching, punching, everything I can do to try to get him to release me." (Tr.
Vol. I at 116.) Appellant was "holding onto my arms and pushing me on the couch." (Tr.
Vol. I at 117.)
        {¶ 14} According to R.B., "[a]fter he pushed me on the couch, he put his hand on
my thigh and moved my underwear over and I was yelling out, [s]top, don't do it. I told
him I was on my period. I told him I had a tampon in. I was trying to do anything and
everything to stop it and he didn't stop." Appellant "was laying on the couch and he
spread my underwear. He stuck his [penis] inside of me." (Tr. Vol. I at 117.) Appellant
was holding her shoulders down. R.B. "was trying to hit him and scratch him. I was
yelling. I tried to do everything I could to stop it." (Tr. Vol. I at 118.)
        {¶ 15} Appellant had a "motorcycle mask hanging * * * around his neck," and R.B.
attempted to "grab and pull and hit him with that. And * * * after that, he got up" from
the couch. R.B. "told him that I was telling my sister, and he said if you tell anyone about
what happened * * * he was going to kill my sister." (Tr. Vol. I at 118.) R.B. took the
threat seriously. Appellant pushed R.B. "up against the wall one more time, told me * * *
not to say anything to anyone, that he would kill my sister and he left * * * the house."
After appellant left, R.B. "felt weak" and "taken." (Tr. Vol. I at 119.)
        {¶ 16} R.B. phoned her older sister, C.B., and "told her what had happened." R.B.
"told her I was scared to go to the police because he made that threat of killing her." R.B.'s
sister said: "If this is what happened, then you need to go straight to the police." (Tr.
Vol. I at 120.) R.B. also phoned W.W., an individual she was dating at the time. Police
officers were called to the residence, and W.W. arrived at approximately the same time as
officers.
        {¶ 17} R.B. later went to the hospital "[s]o we could do a rape kit." (Tr. Vol. I at
122.) At the hospital, R.B. spoke with police detectives and told them what happened.
No. 15AP-959                                                                                   5

Several days after the incident, R.B. moved out of state because she "was scared." (Tr.
Vol. I at 124.) R.B. identified appellant at trial.
       {¶ 18} On cross-examination, R.B. stated she did not recall walking to the
Cheesecake Factory at the Easton Mall to wait for appellant to give her a ride. Also during
cross, defense counsel asked R.B. to review some telephone records and counsel inquired
about a phone number linked to C.B., her older sister. R.B. did not observe any calls she
made to that particular number at the time of the events; R.B. stated that she called her
sister using a different phone number. Defense counsel also questioned R.B. about telling
one of the officers that she had been "choked out" during the incident. (Tr. Vol. I at 168.)
       {¶ 19} On July 25, 2014, Reynoldsburg Police Detective Kevin McDonnell and
another detective, after receiving information of an alleged sexual assault, spoke with R.B.
at Grant Medical Center. Detective McDonnell noticed that R.B. "had three scratches on
* * * the left side of her neck." (Tr. Vol. I at 191.) After obtaining a statement from R.B. at
the hospital, detectives prepared a photo lineup. Detective McDonnell showed R.B. the
photo lineup that day, and R.B. identified appellant's photograph from the array.
       {¶ 20} Police officers arrested appellant on October 22, 2014. A DNA sample was
obtained from appellant at that time. That evidence, as well as evidence from the rape kit,
was submitted to the Ohio Bureau of Criminal Investigation ("BCI"). Detectives later
received test results indicating that appellant's DNA "matched the * * * semen that was on
the vaginal swabs" of R.B. (Tr. Vol. I at 191.)
       {¶ 21} On cross-examination, Detective McDonnell was questioned about a report
he prepared as part of the investigation, identified as State's exhibit I. Detective
McDonnell testified that he interviewed A.A. as part of the investigation. In a statement
contained in the report, A.A. related that, after he left Adobe Gila's bar on the morning of
the events, he received a text from R.B. asking for a ride; A.A. spoke with appellant on that
date to inform appellant where to pick up R.B. A.A. indicated he drove R.B. to the
Cheesecake Factory where appellant was to pick her up. The detective also reported in the
document that A.A. related R.B. was choked out three times by appellant.
       {¶ 22} Sue Ann Van Woerkom is a registered nurse trained as a sexual assault
nurse examiner. On July 25, 2014, Van Woerkom performed an examination of R.B. at
Grant Medical Center. R.B. informed Van Woerkom that her assailant was a black male,
No. 15AP-959                                                                                  6

and "her sister's ex-boyfriend." (Tr. Vol. I at 227.) R.B. told Van Woerkom: "He strangled
me on the neck." (Tr. Vol. I at 229.) R.B. related that she "tried to fight him off repeatedly
saying he was with my sister." R.B. stated that "[h]e choked me out a few times," and that
"[h]e strangled me a few times on the couch while I fought him." R.B. indicated that she
"fought him a few times between the kitchen and the doorway." R.B. "tried scratching,
hitting, punching, anything I could to get away." Her assailant "eventually pulled me back
to the couch by my throat. He threw me on the couch, took my panties off. He began to
rape me." (Tr. Vol. I at 233.) R.B. stated there had been "vaginal penetration." (Tr. Vol. I
at 228.) After the incident, R.B. "told him I was going to tell my sister," and "[h]e said, [i]f
you tell anyone, I'm going to kill her." (Tr. Vol. I at 233-34.) He then "walked out the
door." (Tr. Vol. I at 234.)
       {¶ 23} Van Woerkom noted bruising on R.B.'s left and right forearm, right chest
and on the side of her neck. The whites of R.B.'s eyes were bloodshot; according to Van
Woerkom, "[w]henever you have increased pressure, when you have a pinned victim or a
choked victim * * * part of their eyes are bright red, very red." (Tr. Vol. I at 244.) The
patient "was on day six of her period." (Tr. Vol. I at 235.) At trial, Van Woerkom
identified photographs taken of R.B. at the time of the medical examination.
       {¶ 24} Logan Schepeler is a forensic biologist with BCI.           Police investigators
submitted DNA samples to BCI, including samples obtained from appellant. Schepeler
performed DNA analysis based on the samples and prepared a forensic biology report.
The analysis of the vaginal swabs indicated the presence of DNA belonging to R.B. and
appellant.
       {¶ 25} C.B. testified on behalf of appellant. Appellant is the ex-boyfriend of C.B.;
appellant and C.B. were dating at the time of events at issue. C.B. testified that the first
time she spoke with R.B. on July 25, 2014 was "[a]fter the incident," at "about 3:00 in the
morning." R.B. told C.B. that appellant "is going to kill us all." C.B. asked her why, and
R.B. "said that he raped her and what should she do about it." (Tr. Vol. II at 288.) C.B.
"told her to immediately call the police." (Tr. Vol. II at 288-89.) C.B. denied that R.B.
phoned her earlier in the evening to get a ride home from appellant.
       {¶ 26} When asked about her current relationship with appellant, C.B. testified
that "[w]e remain friends." According to C.B., her "sister's statements that she had spoke
No. 15AP-959                                                                                7

to me about was not consistent and * * * this has happened before with a recent * * *
boyfriend." (Tr. Vol. II at 290.) C.B. testified that appellant had previously provided R.B.
with rides home from work; C.B. "called [appellant] a couple times to have him pick her
up from work." (Tr. Vol. II at 291.)
       {¶ 27} Following deliberations, the jury returned verdicts finding appellant guilty
of kidnapping and rape. The trial court merged the rape and kidnapping convictions for
purposes of sentencing. By judgment entry filed September 25, 2015, the court sentenced
appellant to eight years incarceration on the rape count.
       {¶ 28} On appeal, appellant sets forth the following assignment of error for this
court's review:
               APPELLANT'S CONVICTIONS WERE AGAINST                       THE
               MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 29} Under his single assignment of error, appellant challenges his convictions
for kidnapping and rape as being against the manifest weight of the evidence, asserting
that R.B.'s testimony was contradictory and impeached by other evidence. Specifically,
appellant contends that the convictions are against the weight of the evidence because:
(1) R.B. could not accurately describe where she went after leaving the bar, (2) R.B. did
not call her sister to request a ride from appellant but, instead, called him directly
according to her sister (C.B.) and phone records, (3) there was no damage to the
apartment despite testimony as to an alleged fight, (4) there was no damage to R.B.'s
underwear despite testimony that appellant pulled them aside, (5) R.B. indicated to her
friend A.A. that she was "choked out" three times but never reported that elsewhere, and
(6) R.B.'s own sister did not believe a rape occurred based on contradictions and a prior
incident with another boyfriend.
       {¶ 30} We note that, while appellant raises a manifest weight argument, he does
not challenge the sufficiency of the evidence supporting his convictions, i.e., "whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable
doubt." State v. Walker, 8th Dist. No. 96662, 2011-Ohio-6645, ¶ 14. While "sufficiency
tests the burden of production," a manifest weight challenge "tests the burden of
No. 15AP-959                                                                                8

persuasion." State v. Spikes, 9th Dist. No. 05CA008680, 2006-Ohio-1822, ¶ 9, citing
State v. Thompkins, 78 Ohio St.3d 380, 390 (1997).
       {¶ 31} In reviewing a manifest weight challenge, an appellate court "must review
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered." State v. Munoz, 10th Dist. No.
11AP-475, 2011-Ohio-6672, ¶ 8. Further, "[r]eversals of convictions as being against the
manifest weight of the evidence are reserved for exceptional cases where the evidence
weighs heavily in favor of the defendant." State v. Pilgrim, 184 Ohio App.3d 675, 2009-
Ohio-5357, ¶ 32 (10th Dist.), citing State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986).
       {¶ 32} As noted, appellant was convicted of one count of kidnapping and one count
of rape. R.C. 2905.01(A)(4) defines the offense of kidnapping and states in part: "No
person, by force, threat, or deception * * * shall remove another from the place where the
other person is found or restrain the liberty of the other person * * * [t]o engage in sexual
activity, as defined in section 2907.01 of the Revised Code, with the victim against the
victim's will." R.C. 2907.02(A)(2) defines the offense of rape as follows: "No person shall
engage in sexual conduct with another when the offender purposely compels the other
person to submit by force or threat of force."
       {¶ 33} Appellant first contends R.B.'s testimony was unreliable because she could
not accurately describe where she went after leaving the bar, i.e., where she was at the
time appellant arrived to give her a ride to her mother's residence. More specifically,
appellant argues R.B. could not recall whether she went to her friend A.A.'s condominium,
or whether appellant picked her up at the Cheesecake Factory at the Easton Mall.
According to appellant, A.A. denied that R.B. went to his condominium.
       {¶ 34} In response the state notes that, while appellant contends A.A. denied R.B.
was at his condominium, A.A. did not testify at trial; rather, appellant's citation is to
defense counsel's cross-examination of Detective McDonnell regarding a summary report
the detective prepared following an interview with A.A. The state further notes that the
summary report was not admitted into evidence.
No. 15AP-959                                                                               9

       {¶ 35} The record indicates that R.B. testified on direct examination that she
waited "a while at the bar," and then walked "across the way to those condominiums and
went over to my friend's and waited there for [appellant] to come pick me up." (Tr. Vol. I
at 107-08.) When questioned on cross-examination whether A.A. walked with her to the
Cheesecake Factory to wait for appellant to give her a ride, R.B. responded: "I don't
recall." Defense counsel asked R.B. why she did not recall, and she responded: "I don't
remember." (Tr. Vol. I at 140.)
       {¶ 36} As noted by the state, the statement purportedly in conflict with R.B.'s
account was that of a non-testifying witness contained in a detective's summary report.
To the extent appellant sought to impeach R.B. by showing a discrepancy between her
testimony and a statement in the summary report, any such conflict was an issue of
credibility to be resolved by the jury. See State v. Alexander, 4th Dist. No. 10CA3402,
2012-Ohio-2041, ¶ 21 (whether defense thoroughly impeached state's witness "was a
matter for the jury to decide"). Further, despite the statement attributed to A.A. in the
report, the jury could have still found R.B. to be a credible witness. See State v.
Hernandez, 10th Dist. No. 09AP-125, 2009-Ohio-5128, ¶ 17 ("Although discrepancies in
the victim's testimony may have impeached [her] credibility, the jury nonetheless chose to
believe her.").
       {¶ 37} Appellant also contends there was conflicting evidence as to whether R.B.
called her sister to request a ride from appellant. Specifically, appellant points to phone
records referenced by defense counsel as well as testimony by R.B.'s sister, C.B., who
stated that R.B. did not call her about a ride.
       {¶ 38} With respect to the testimony of C.B., the state argues that the credibility of
this witness was questionable given her allegiance to appellant. Specifically, the state
notes that C.B. is the ex-girlfriend of appellant and she acknowledged being on good
relations with appellant at the time of trial. The state further notes that the phone records
cited by appellant were not admitted at trial and are not part of the record on appeal.
       {¶ 39} As noted under the facts, defense counsel questioned R.B. about a phone
number linked to C.B.'s phone records. R.B. explained, however, that she had called her
sister using a different number. On re-direct examination, R.B. further elaborated that
her sister had "two different phones," and had more than one phone number. (Tr. Vol. I
No. 15AP-959                                                                                 10

at 172.) Thus, the jury heard testimony that R.B. may have used a different number than
the one suggested by defense counsel during cross-examination. The jury, as trier of fact,
was free to believe or disbelieve the testimony presented by the witnesses and to assess
their credibility, including R.B.'s testimony that she phoned her sister about obtaining a
ride. See State v. Erickson, 12th Dist. No. CA2014-10-131, 2015-Ohio-2086, ¶ 42 ("as the
trier of fact, the jury was free to believe or disbelieve all, part, or none of the testimony of
the witnesses presented at trial").
       {¶ 40} Appellant next contends that, despite R.B.'s testimony of a struggle, there
was a lack of evidence as to damage to her mother's residence. In a similar vein, appellant
contends there was no evidence of damage to R.B.'s underwear despite her testimony that
appellant pulled the underwear aside during the incident.
       {¶ 41} During cross-examination, defense counsel questioned R.B. about her
testimony that she struggled with appellant in the hallway prior to him forcing her onto
the living room couch. Counsel showed R.B. several photographs taken of her mother's
residence, and questioned R.B. regarding her statement to police officers that she pushed
appellant in the hallway near a picture on the wall. When shown one photograph of the
hallway, R.B. responded: "The only fighting area in this [photograph] is when he first
choked me * * * up against this wall right there (indicating) leading into the kitchen.
Where I pushed him at – you cannot tell from this picture, but on this wall to the left is a
picture." (Tr. Vol. I at 158.) R.B. also testified that her underwear was not removed during
the incident; rather, "[t]hey were slid to the left." (Tr. Vol. I at 160.)
       {¶ 42} On review, we do not find the purported absence of evidence with respect to
damage to the apartment undermines the verdict. R.B. testified that appellant began to
choke her in the hallway, and that he grabbed her arm and led her toward the couch;
according to R.B., she was struggling to get away from appellant, but he was "holding onto
my arms and pushing me on the couch." (Tr. Vol. I at 117.) The jury also saw photographs
of R.B. and heard testimony from other witnesses as to red marks and/or bruising to
R.B.'s neck following the incident. It was within the province of the jury to draw its own
conclusions as to whether a struggle took place in the residence. Finally, as noted by the
state, R.B. did not testify that her underwear was torn or damaged during the incident,
No. 15AP-959                                                                             11

and the jury was not required to accept the defense's suggestion that it should have been
damaged.
       {¶ 43} Appellant further contends that R.B. told her friend A.A. that appellant
choked her out three times, but that she did not report that elsewhere. As noted by the
state, however, A.A. did not testify at trial, and the comment cited by appellant is from a
detective's summary of a statement made by A.A. relating an account purportedly
provided by R.B.
       {¶ 44} The record indicates that defense counsel, during cross-examination,
questioned R.B. about telling one of the officers she had been "choked out," and what that
meant to her. R.B. explained: "To the point where you -- where you're being choked and
you see black, but I still had full consciousness." (Tr. Vol. I at 168.) While appellant
contends R.B. did not report being choked out three times to anyone other than A.A., we
note that Van Woerkom, the nurse examiner, testified that R.B. reported to her that
appellant "choked me out a few times," and "[h]e strangled me a few times on the couch
while I fought him." (Tr. Vol. I at 233.) On review of the record, we do not view the
statement in the report nor R.B.'s testimony on this issue as casting doubt on the jury's
verdict.
       {¶ 45} Finally, appellant points to testimony by R.B.'s older sister indicating she
did not believe R.B.'s account. The jury heard testimony, however, regarding C.B.'s close
relationship with appellant, including the fact that she was dating him at the time of the
incident, and that she acknowledged she "remain[ed] friends" with him subsequent to the
events at issue. (Tr. Vol. II at 290.) Here, the trier of fact had the task of assessing the
credibility of C.B., including her prior and current relationship with appellant and any
potential bias.
       {¶ 46} Based on this court's independent review, we find that the purported
inconsistencies cited by appellant do not undermine the jury's verdict. Under Ohio law,
"[t]he trier of fact is in the best position to take into account any inconsistencies, the
demeanor of the witnesses, and the manner of testifying to determine whether the
witnesses' testimony is credible." State v. Howard, 10th Dist. No. 15AP-444, 2016-Ohio-
7125, ¶ 23. Further, "[w]hile the jury may take note of the inconsistencies and resolve
them or discount them accordingly, * * * such inconsistencies do not render defendant's
No. 15AP-959                                                                             12

conviction against the manifest weight or sufficiency of the evidence." Id., quoting State
v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). See also State v. Raver, 10th
Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21 ("A defendant will not be entitled to reversal on
manifest weight or insufficient evidence grounds merely because inconsistent testimony
was heard at trial.").
       {¶ 47} In the instant case, defense counsel did not dispute that appellant was the
source of the DNA evidence; rather, the defense's theory was that the encounter was
consensual. As noted above, however, the jury heard contrary evidence, and the trier of
fact was free to believe or disbelieve the testimony of R.B. in which she stated appellant
grabbed her in the hallway, began to choke her, led her to the couch and engaged in sexual
intercourse without her consent. Here, the testimony of R.B., if believed, was sufficient to
support the convictions for kidnapping and rape. In addition to R.B.'s testimony, the
state also presented other evidence supporting her account, including medical and DNA
evidence, and the testimony of the nurse examiner and police personnel who described
the demeanor of R.B. after the incident and observed bruises to her neck and other areas
of her body.
       {¶ 48} On review of the record before this court, we cannot conclude that the jury
lost its way and created a manifest miscarriage of justice in returning verdicts finding
appellant guilty of kidnapping and rape. Accordingly, appellant's convictions are not
against the manifest weight of the evidence.
       {¶ 49} Based on the foregoing, appellant's single assignment of error is overruled
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                       Judgment affirmed.

                           KLATT and BRUNNER, JJ., concur.

                                 _________________