State v. Ruiter

[Cite as State v. Ruiter, 2026-Ohio-3718.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee, v. DUSTIN L. RUITER, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 26 MA 0026 Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2019 CR 00960 BEFORE: Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges. JUDGMENT: Affirmed. Atty. Lynn Maro, Mahoning County Prosecutor, Atty. Kristie M. Weibling and Atty. Caitlyn A. Andrews, Assistant Prosecuting Attorneys, for Plaintiff-Appellee and Atty. Martin E. Yavorcik, for Defendant-Appellant. Dated: September 21, 2026  –2– DICKEY, J. {¶1} Appellant, Dustin L. Ruiter, was originally convicted on 73 counts of sex offenses, including rape, attempted rape, sexual battery, and gross sexual imposition against his stepdaughter (K.F., complainant, d.o.b 12/28/2002) and two biological daughters (A.R., complainant, d.o.b. 3/30/2004, and Z.R., d.o.b. 4/11/2005) and sentenced to a total of 77 years in prison following a jury trial in 2021. {¶2} Appellant filed a direct appeal, Case No. 22 MA 0002. On September 29, 2023, this court reversed the judgment of the Mahoning County Court of Common Pleas as to all rape, attempted rape, and sexual battery convictions against Appellant and remanded the matter to the trial court to grant Appellant funds to obtain a DNA expert. This court affirmed the trial court’s judgment as to Appellant’s gross sexual imposition convictions and sentence with respect to Z.R. State v. Ruiter, 2023-Ohio- 3594, ¶ 1-4, 132 (7th Dist.) (Waite, J., dissenting). {¶3} In accordance with this court’s remand, Appellant retained an expert in the field of DNA analysis. That expert ultimately concluded she could not provide meaningful testimony on his behalf. At her suggestion, Appellant obtained an expert in the field of gynecology. However, Appellant decided not to call that expert as a witness at trial as that expert also determined he would not be helpful to Appellant’s defense. {¶4} A second jury trial was held on February 2, 2026. The jury returned guilty verdicts on the retried counts. On February 18, 2026, the trial court sentenced Appellant to 68 years on the retried counts, consecutive to the prior sentence on the affirmed gross sexual imposition counts, for a total aggregate of 77 years in prison. {¶5} Appellant filed the instant appeal, Case No. 26 MA 0026. At issue here is whether Appellee, the State of Ohio, failed to sufficiently differentiate the alleged criminal acts corresponding to the individual counts submitted to the jury and whether Appellant’s convictions are supported by sufficient evidence and are against the manifest weight of the evidence. Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY {¶6} The following facts and procedural history are taken from Appellant’s first appeal, Case No. 22 MA 0002: Case No. 26 MA 0026  –3– On November 7, 2019, a Mahoning County Grand Jury issued a secret indictment alleging that Appellant committed the following offenses against his stepdaughter K.F., which began when she was 15 years old: 21 counts of rape in violation of R.C. 2907.02[(A)(2),](B), first-degree felonies (Counts 1-21); 21 counts of sexual battery in violation of R.C. 2907.03(A)(5),(B), third-degree felonies (Counts 22-42); and 2 counts of gross sexual imposition in violation of R.C. 2907.05(A)(1), (C)(1), fourth-degree felonies (Counts 43-44). The grand jury also indicted Appellant for committing the following offenses against his biological daughter, A.R., which began when she was 14 years old: 1 count of attempted rape [in] violation of R.C. 2923.02/2907.02(A)(2),(B), second-degree felony (Counts 45); 12 counts of rape in violation of R.C. 2907.[02(A)(2),(B)], first-degree felonies (Counts 46-58). 11 counts of sexual battery in violation of R.C. 2907.03(A)(5),(B), third-degree felonies (Counts 59-69); 2 counts of gross sexual imposition in violation of R.C. 2907.05(A)(1), (C)(1), fourth-degree felonies (Counts 70-71). The Mahoning County Grand Jury further indicted Appellant for committing the following offenses against his biological daughter, Z.R., which began when she was 13 years old: 2 counts of gross sexual imposition in violation of R.C. 2907.05(A)(1)(C)(1), fourth-degree felonies (Counts 72-73). Case No. 26 MA 0026  –4– On November 6, 2020, Appellant, through counsel, requested a continuance of the November 16, 2020 trial date because he was attempting to secure the services of an expert witness to review DNA evidence that the State would introduce at trial. The trial court granted the motion and scheduled a pretrial for January 7, 2021. The pretrial was held and the court noted that matters were still unresolved in the case. After a number of pretrials and rescheduled trial dates, the transcript shows that on August 12, 2021, Appellant wished to discuss his intent to use an expert at trial. (Aug. 12, 2021 Tr. at 2). Appellant’s counsel reported that a friend of Appellant’s family agreed to pay to hire an expert and was going to provide payment the following week. (Aug. 12, 2021 Tr. at 3). The trial court noted that the case dated back to December 2019 and even though delays occurred due to COVID-19, the trial was previously set for November 2020 and the expert should have been retained before then. (August 12, 2021 Tr. at 4). The court stated that it was “not going to bend the time so that we can keep playing this game of he’s going to get an expert, he’s going to get an expert, and then no expert.” (Aug. 12, 2021 Tr. at 4). The court inquired into the purpose for an expert. (Aug. 12, 2021 Tr. at 4). Defense counsel explained that it was to address the potential transferability of semen and bodily fluids through nonsexual means. (Aug. 12, 2021 Tr. at 4). Counsel stated that he tried to contact potential experts during the COVID-19 lockdown, but offices were closed or they were not accepting cases. (Aug. 12, 2021 Tr. at 5). The trial court read its November 2020 note which indicated that Appellant had declined a plea offer and stated that he wished to hire an expert. (Aug. 12, 2021 Tr. at 5). The court concluded that Appellant therefore knew that he would have to pay for an expert almost a year ago. Case No. 26 MA 0026  –5– (Aug. 12, 2021 Tr. at 5). The court also explained that DNA evidence is submitted to the Bureau of Criminal Investigation (BCI) and BCI made independent assessments of the evidence which sometimes favored defendants. (Aug. 12, 2021 Tr. at 6). The court denied Appellant’s request to continue the trial date, finding that Appellant had not shown that hiring an expert would present any more value than having his counsel cross-examine the BCI witness and results at trial. (Aug. 12, 2021 Tr. at 7). The court concluded that, “It’s not a right you have to hire an expert. It’s a privilege, if you will, if you can afford it. And he could afford you, so he could afford whatever else he wants to do. So I’m not inclined to move this or to grant a lot of leeway with that.” (Aug. 12, 2021 Tr. at 7). The court stated that it would reconsider if Appellant notified the court within the next week that the friend gave counsel money to hire an expert. (Aug. 12, 2021 Tr. at 7). The court asked to be kept updated. (Aug. 12, 2021 Tr. at 8). On September 16, 2021, Appellant, through counsel, filed a motion for the payment of expert witness fees. Appellant asserted that he wished to retain an expert for DNA and/or a Sexual Assault Nurse Examiner (SANE). He requested fees up to $8,500 to be paid by the State. Appellant explained that he privately retained counsel through a reduced payment plan and he was in jail and indigent. He indicated that the State was going to introduce DNA evidence, forensic evaluations, and SANE examinations at trial, and the only way that he could properly prepare his defense was to retain expert witnesses in these areas. He explained that neither he nor his family could afford such services, and the family friend could no longer help him pay. On September 16, 2021, the trial court also held a pretrial. (Sept. 16, 2021 Tr. at 2). Appellant’s counsel stated that he spoke to the family friend Case No. 26 MA 0026  –6– and he was no longer able to pay legal and expert fees. (Sept. 16, 2021 Tr. at 2-3). Counsel asked to be appointed as legal counsel for Appellant. (Sept. 16, 2021 Tr. at 3). The trial court inquired of Appellant as to income sources and appointed Appellant’s attorney as legal counsel. (Sept. 16, 2021 Tr. at 6-7). The court explained that it would allow the State to submit a brief on the issue of appointing an expert. (Sept. 16, 2021 Tr. at 7). On September 27, 2021, the trial court denied Appellant’s motion for payment of expert witness fees. (Sept. 27, 2021 J.E.). The trial began on October 18, 2021. . . . ... [Following trial,] [o]n October 22, 2021, the jury found appellant guilty on all charges, which were 33 counts of rape, 33 counts of sexual battery, 1 count of attempted rape, and 6 counts of gross sexual imposition. The court held a sentencing hearing and on January 6, 2022, filed a judgment entry sentencing appellant to: 10 years of imprisonment on Counts 1, 2, and 3, to be served consecutively; 10 years of imprisonment on Counts 4-21 to be served concurrently to all other sentences; no sentence for Counts 22-42 since those Counts merged into Counts 1-21; 18 months of imprisonment each for Counts 43-44, to run consecutively to Counts 1-3, but concurrently with the rest of the sentences; 7 years of imprisonment on Count 45, to run consecutively to the sentences imposed for Counts 1-3 and 43-44; 10 years of imprisonment each for Counts 46-48, to be served consecutively to the sentences imposed for Counts 1-3, and 43-44; 10 years each for Counts 49-59, to be served concurrently to one another and the other sentences imposed; no sentence for Counts 58-69 due to merger with Counts 46-57; 18 months of imprisonment each for Counts 70-71, to run consecutively to the sentences imposed in Counts 1- 3, 43-44, and 46-48; and 18 months of imprisonment each for Counts 72 Case No. 26 MA 0026  –7– and 73, to be served consecutively to all of the other sentences. (Sent. Tr. at 31-39). Appellant was sentenced to a total of 77 years in prison and designated a Tier III Sex Offender. (Jan. 6, 2022 J.E.). On January 7, 2022, Appellant filed a notice of appeal asserting two assignments of error [(1) he was denied a fair trial because the trial court failed to provide him with a DNA expert; and (2) there was insufficient evidence to convict him of counts 72 and 73 (gross sexual imposition of Z.R.)]. Ruiter, 2023-Ohio-3594, at ¶ 2-15, 88-90 (7th Dist.). {¶7} On September 29, 2023, this court reversed the trial court’s judgment as to all rape, attempted rape, and sexual battery convictions against Appellant and remanded the matter to the trial court to grant Appellant funds to obtain a DNA expert. This court affirmed the trial court’s judgment as to Appellant’s gross sexual imposition convictions and sentence with respect to Z.R. Id. at ¶ 1-4, 132 (7th Dist.) (Waite, J., dissenting). Appellee filed an application for reconsideration which was denied by this court on January 16, 2024. State v. Ruiter, 2024-Ohio-149 (7th Dist.). Appellant appealed to the Supreme Court of Ohio which did not accept his case for review on April 16, 2024. State v. Ruiter, 2024-Ohio-1386. {¶8} Despite this court’s remand, Appellant decided not to call a DNA expert as a witness at the second jury trial which was held on February 2, 2026. The State presented 14 witnesses and nine exhibits. Appellant did not present a defense. Some of the testimony emanating from the record is graphic in nature. {¶9} By way of background, in December 2016, K.F., A.R., and their younger siblings, Z.R. and W.R., moved from Oregon to Ohio to live with Appellant. All four of the children share a biological mother and Appellant is the biological father of A.R., Z.R., and W.R. Before they moved to Ohio, none of the children had a relationship with Appellant. Because K.F. did not have a relationship with her biological father, she considered Appellant to be her father and referred to him as her dad. Initially, the four children lived in Liberty with Appellant, his girlfriend, Nicole, Nicole’s son, D., and Appellant’s and Nicole’s shared child, N. Eventually, they all moved to a house in Youngstown. Appellant Case No. 26 MA 0026  –8– was both verbally and physically abusive. K.F. and A.R. initially attempted to report the physical abuse on two occasions, but they were not removed from Appellant’s care. Because they attempted to report this, Appellant punished them. Appellant and Nicole ended their relationship in 2018. As a result, only Appellant, K.F., A.R., Z.R., and W.R. remained in the house. Soon thereafter, Appellant had K.F. move into his bedroom, where the two shared a bed. Appellant began sexually abusing K.F. and A.R. {¶10} The first witness to testify at the second jury trial was JoAnn Mauch (“Mauch”), a retired co-owner of the Outreach Center Thrift Store (“thrift store”). Mauch knew Appellant, K.F., and A.R. K.F. and A.R. were volunteers at the thrift store. Mauch described Appellant as strict and controlling. The children grew quiet when he entered a room. Appellant required the girls to wear gloves and they were not permitted to go many places. Mauch’s account of the offenses was limited to a single disclosure on the day the matter was reported to police, June 18, 2019. She testified K.F. told her that Appellant “had been molesting her, and also -- also [A.R.],” that K.F. “used the word rape[,]” and that K.F. said “[Appellant] had raped her the night before.” (2/2/2026 Jury Trial Tr., p. 244). As to A.R., Mauch testified that “she said [Appellant] orally molested her.” (Id. at p. 245). Mauch did not probe the girls for further detail. {¶11} K.F. described a controlling household in which Appellant directed the children’s movement, dress, eating, and discipline. She testified that if the girls disclosed anything, their “beatings would be worse.” (Id. at p. 265). K.F. described the first incident with particularity: in December 2018, while watching a movie, Appellant directed her to remove her pants and underwear, lie on the couch, and touch herself, and then he touched her vagina externally and internally with his hand. She testified this was not a one-time event and that the conduct was ongoing thereafter. {¶12} Asked how frequently vaginal intercourse occurred, K.F. answered, “About, I would say, every night, every other night.” (Id. at p. 273). She testified that oral sex alternated with intercourse — “it was either oral sex or intercourse” — on the same schedule, and that between December 2018 and June 18, 2019 the oral sex and vaginal intercourse were “happening every day or every other day[.]” (Id. at p. 276, 282). K.F. also described Appellant performing cunnilingus and ejaculating in her vagina, on her breasts, in her mouth, and on her face. Apart from the first incident, the only other act Case No. 26 MA 0026  –9– she anchored to a specific occasion was the assault the night before disclosure, June 17, 2019, when she testified Appellant penetrated her vagina and ejaculated inside her. {¶13} K.F. testified that when she once refused intercourse, Appellant hit her and told her that if she wanted adult privileges she had to start acting like an adult. K.F. never felt she could later resist out of fear of being hurt. K.F. deliberately preserved the underwear she wore during the last assault in order to have evidence. She did not shower and carried the underwear hidden in a lunchbox to the thrift store. K.F. disclosed the abuse to Mauch. Police were called and K.F. underwent a rape-kit examination with vaginal and anal swabs. K.F. identified Appellant in the courtroom. K.F. also said she saw Appellant with his pants down in front of A.R. and that A.R. confirmed he was hurting her too. On cross-examination, K.F. acknowledged she never disclosed the abuse to any teacher, counselor, or friend before June 18, 2019, and could not recall dates for most events. On re-direct, she reiterated that fear of further beatings deterred earlier disclosure. {¶14} A.R. testified she moved to Ohio to live with Appellant, whom she had not previously known, around age 11 or 12. She described him as the head of the household and a disciplinarian. She testified to a pattern of physical abuse and control. A.R. stated that after her stepmother moved out, Appellant began hygiene check-ups in her bedroom that involved touching her breasts and vaginal area, including digital penetration. Appellant framed sexual acts as treatments for irregular periods and for being underweight, telling A.R. he had to “ejaculate inside of [her] and [she] also had to swallow it.” (Id. at p. 340). A.R. described a recurring sequence in which she performed oral sex on Appellant to ejaculation. Asked how often this occurred, A.R. testified it happened “[m]ore than ten times.” (Id. at p. 343). As to vaginal intercourse, she testified Appellant would try to force himself inside her but was not, to her knowledge, successful sometimes. When unsuccessful, he would ejaculate onto her legs and thighs, and sometimes inside her. A.R. said Appellant never used a condom and placed her on birth control. She testified he also performed cunnilingus a few times, had her touch his testicles, and touched her breasts often. The assaults usually occurred in the living room or his bedroom while others were at school or asleep. Case No. 26 MA 0026  – 10 – {¶15} A.R. described an occasion that K.F. witnessed. She also described a dated incident on June 11, 2019, when Appellant drove her to deliver a lawnmower. He moved to the back seat, attempted to force himself on her, and ejaculated on her stomach and vaginal area. A.R. transferred what she believed was DNA evidence onto the seat and seatbelt. A.R. testified she also collected samples on Q-tips and hid them. A.R. and K.F. disclosed the incidents to Mauch on June 18, 2019 and brought the preserved items. A.R. identified Appellant in court as “the man who sexually assaulted” her. (Id. at p. 355- 356). On cross-examination, A.R. characterized the frequency of the assaults as “[m]ore than once or twice a week” and could not fix dates, testifying, “I'm not good with dates.” (Id. at p. 363, 366). A.R. acknowledged she watched the T.V. show Law & Order: SVU and testified, “[t]hat’s where I got the idea” of collecting evidence. (Id. at p. 365). {¶16} Z.R. testified principally to household conditions and to conduct she observed toward her sister, A.R. She described a household that was “like walking on eggshells[,]” in which children were “seen and not heard[,]” what happened in the house “stay[ed] in the house[,]” and Appellant was “the disciplinarian[.]” (Id. at p. 378, 380). Z.R. stated that mostly after school, Appellant would have A.R. “pull down her pants and spread her labia and check to see if she was clean.” (Id. at p. 384). {¶17} Officer Kevin Bokesch (“Officer Bokesch”), with the Youngstown Police Department (“YPD”), first responded to the thrift store on June 18, 2019 and testified to the girls’ initial disclosures. As to K.F., he testified she reported that “the day before, on 6-17,” Appellant told her to undress, masturbated in front of her, and when erect “got on top of her, had intercourse with her, and ejaculated inside of her[,]” that she had not showered, and that Appellant “ha[d] been having her sleep in his bed every night.” (Id. at p. 399). As to A.R., Officer Bokesch said she reported she also had sex with Appellant, the last time being “like, on the 11th of June[,]” in the back of his car, where he “pulled her pants down and had intercourse” and “ejaculated inside of her.” (Id. at p. 400). Both girls identified Appellant as their father. {¶18} Rebecca Haddle (“Haddle”), a Mahoning County Children Services (“Children Services”) emergency intake caseworker, testified that K.F. reported that “approximately, in December of 2018, her stepfather, whom has custody of her, had been raping her repeatedly — weekly — I mean, on a daily basis,” with “the last incident Case No. 26 MA 0026  – 11 – happen[ing] the night before[.]” (Id. at p. 411). She testified that A.R. reported “in March of 2019 is when the sexual abuse had started with her father[,]” who “would grope her and force her to have oral sex, and also tried to penetrate her.” (Id. at p. 412). Haddle further indicated Appellant ejaculated in both girls, required K.F. to take birth control and wore no condom, and that A.R. “said that his penis would not fit inside of her.” (Id. at p. 412-413). Haddle’s account described recurring conduct with onset dates. {¶19} Christine Horvath, R.N. (“Horvath”), a registered nurse and certified SANE (Sexual Assault Nurse Examiner), examined both K.F. and A.R. on June 18, 2019 and recorded their histories. She read K.F.’s history into the record, revealing: “my dad has been forcing me to have sex with him. It started last December in 2018. He says it is a treatment for my acne and . . . it usually happens every night or every other night.” (Id. at p. 452). K.F. reported the most recent assault as occurring the night before. Horvath performed a full rape-kit examination on K.F. but found no physical injury: “There was a small amount of creamy discharge, and the cervix was maybe . . . slightly reddened, but there was no injury.” (Id. at p. 459). She also read A.R.’s history, which recounted onset “the beginning of March” framed as help for her weight, and an incident in which Appellant “tried to force himself on me, but he couldn’t fit. So he masturbated and then ejaculated inside of me.” (Id. at p. 465). A.R.’s history stated Appellant “has been . . . assaulting me every other day since March through . . . June 11th[.]” (Id. at p. 466). Because the last reported assault fell outside the collection window, Horvath performed only a basic physical examination of A.R. and no rape kit. {¶20} Captain Brandon Caraway (“Captain Caraway”), with the YPD Family Investigative Services, testified largely to the investigative chronology rather than the substance of the acts. He did not personally interview the complainants. They were sent to the Child Advocacy Center for forensic interviews. During those interviews, K.F. and A.R. made disclosures of sexual assault naming their father (Appellant) as the perpetrator. Appellant had custody of the children in the home. Regarding the forensic evidence, Captain Caraway testified that a rape kit was completed only for K.F., that he later obtained buccal swabs from Appellant, and that the material was sent to the Ohio Bureau of Criminal Investigation (“BCI”). On cross-examination, he acknowledged that no search warrant was obtained for the home — reasoning that “anyone living in that Case No. 26 MA 0026  – 12 – house would have their DNA . . . throughout that house” — and that a disclosed incident in a vehicle was never independently searched or corroborated. (Id. at p. 505). {¶21} Joseph Lenzo (“Lenzo”), intake supervisor/caseworker with Children Services, testified that K.F. and A.R. disclosed they were being sexually abused by Appellant. As to timing, K.F. reported the abuse started in December 2018 with the most recent incident the night before. A.R. reported the assaults began in March 2019. Lenzo testified the girls were clear that the perpetrator was their father, identified K.F.’s relationship to Appellant as his stepdaughter, and stated that a full sexual-assault examination was performed on K.F. He testified that the girls’ subsequent Child Advocacy Center disclosures were very consistent with their initial accounts. Lenzo also related Appellant’s statements during the case, including that Appellant was “confident that the criminal investigation would clear him of any wrongdoing,” that the children would be put on punishment, and later, that he did not care about the agency’s goals and believed he was going to get his kids back. (Id. at p. 534). Lenzo testified the agency substantiated the sexual-abuse allegations. {¶22} Monique Malmer, C.N.P. (“Malmer”), a certified nurse practitioner and Child Advocacy Center medical examiner, examined both K.F. and A.R. following forensic interviews. As to K.F., Malmer testified she disclosed inappropriate touching, “penetration of a penis to her vagina[,]” and oral contact, “happening more than once, with a report of ejaculation[,]” and that if K.F. refused, “she was hit.” (Id. at p. 565-566). K.F. revealed the abuse began in December, happened almost every day, and that she had been moved to sleep in Appellant’s bed and placed on birth control. As to A.R., Malmer testified the abuse was framed as treatment, that Appellant’s “penis was attempted to penetrate [A.R.’s] vagina, but it didn’t fit[,]” that A.R. was forced to perform oral sex and swallow ejaculate, and that A.R. described a distinct incident in a car while traveling to cut grass. (Id. at p. 582). Malmer testified that her diagnosis for both girls was “highly concerning for sexual abuse.” (Id. at p. 586). {¶23} Julie Altizer (“Altizer”), a BCI forensic scientist, testified to serology testing on the rape kit collected from K.F. which contained vaginal, anal, and oral samples, two pairs of underwear, and other items. Altizer said the vaginal and anal samples and the underwear were each positive for acid phosphatase activity, with the underwear giving a Case No. 26 MA 0026  – 13 – stronger result, and that she forwarded positive cuttings for DNA analysis. On cross- examination, she acknowledged that DNA can be transferred and that contamination is possible. On re-direct, she described BCI’s contamination-prevention protocols. {¶24} Andrea Harper (“Harper”), a BCI DNA analyst, performed the DNA extraction step on the vaginal, anal, and underwear samples but did not determine whether sperm or DNA was ultimately detected, testifying that making that determination is not something she is able to do. Her testimony described laboratory methodology only and neither identified nor differentiated any charged act, and did not address force, the victims’ ages, or Appellant’s relationship to either victim. {¶25} Thomas Williams (“Williams”), a BCI analyst, performed quantification and amplification on extracts from K.F.’s rape kit and extracted, quantified, and generated a DNA profile from Appellant’s buccal-swab standard. Williams testified he performed no comparison himself and forwarded the generated profiles to the report writer, Brittani Troyer (“Troyer”), for interpretation. {¶26} Troyer, the BCI analyst who interpreted the DNA profiles, testified that the vaginal, anal, and underwear-crotch samples from K.F.’s rape kit each yielded a two- person mixture consistent with contributions from K.F. and Appellant. For each, Troyer testified that the estimated frequency of occurrence of the DNA profile in the sperm fraction was “rarer than 1 in 1 trillion unrelated individuals.” (Id. at p. 686). Her testimony concerned only K.F. and did not distinguish among the individual counts or address force, age, or relationship. {¶27} The jury returned guilty verdicts upon the retried counts. On February 18, 2026, the trial court sentenced Appellant to 68 years on the retried counts, consecutive to the prior sentence on the affirmed gross sexual imposition counts, for a total aggregate of 77 years in prison, with 2,288 days of credit for time already served. The court labeled Appellant a Tier III sex offender. The court also informed Appellant that he is subject to a five-year mandatory period of post-release control. {¶28} Appellant filed the instant appeal and raises two assignments of error. Case No. 26 MA 0026  – 14 – ASSIGNMENT OF ERROR NO. 1 APPELLANT WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT TO A UNANIMOUS JURY VERDICT WHERE THE STATE FAILED TO SUFFICIENTLY DIFFERENTIATE THE ALLEGED CRIMINAL ACTS CORRESPONDING TO THE INDIVIDUAL COUNTS SUBMITTED TO THE JURY. {¶29} In his first assignment of error, Appellant argues he was denied due process and his right to a unanimous jury verdict because the State did not sufficiently differentiate the criminal acts corresponding to the individual counts submitted to the jury. Appellant contends that the State’s proof consisted of generalized testimony describing a course of conduct but not the separate criminal acts needed to support each of the 67 retried counts. Appellant maintains that the record supplies no mechanism for determining which act supports which count and, thus, no assurance of a unanimous verdict. {¶30} Appellant did not object to the indictment, did not request a bill of particulars, and did not object to the jury instructions or the verdict forms. Accordingly, Appellant forfeited all but plain error. See Crim.R. 52(B). A three-part test is employed to determine whether plain error exists. State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, ¶ 25, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). First, there must be an error, i.e. a deviation from a legal rule. Second, the error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an error must be an “obvious” defect in the trial proceedings. Third, the error must have affected “substantial rights.” Billman at ¶ 25. In order to demonstrate that a defendant’s substantial rights have been affected he must show that, but for the error, the trial outcome would have been different. State v. Issa, 93 Ohio St.3d 49, 56, 752 N.E.2d 904 (2001). Case No. 26 MA 0026  – 15 – Plain error “is a wholly discretionary doctrine whereby the appellate court may, but need not, take notice of errors which are obvious and which affect substantial rights that are outcome determinative. . . . This elective tool is to be used with the utmost of care by the appellate court in only the most exceptional circumstances where it is necessary to avoid a manifest miscarriage of justice.” (Internal citations omitted.) State v. Jones, 7th Dist. No. 06 MA 109, 2008-Ohio-1541, ¶ 65. State v. Williamson, 2021-Ohio-3328, ¶ 37-38 (7th Dist.). State v. Levesque, 2025-Ohio-2834, ¶ 15 (7th Dist.). {¶31} The purpose of an indictment is to provide the accused with adequate notice of the charges and an opportunity to defend. State v. Sellards, 17 Ohio St.3d 169, 170 (1985). Exact dates and times are immaterial unless the nature of the offense makes exactness essential. Tesca v. State, 108 Ohio St. 287, 289 (1923). Where a defendant believes the indictment is too vague to inform him of the conduct at issue, Ohio law supplies a remedy — a bill of particulars, available on timely written request. Crim.R. 7(E); Sellards, 17 Ohio St.3d at 171. {¶32} Here, Appellant never requested a bill of particulars at any point in the more than six years this case was pending, through two trials and a prior appeal, nor did he otherwise alert the trial court that he found the counts insufficiently distinguishable. Appellant’s assertion that the State was required to tie discrete, individuated evidence to each numbered count misstates Ohio law. {¶33} The controlling authority forecloses that premise. In State v. Sowell, 2016- Ohio-8025, the Supreme Court of Ohio rejected a due process and double jeopardy challenge to a multicount indictment containing identically phrased rape counts. The Court held that the constitutional requirements were satisfied because the indictment supplied specific dates and the State presented separate evidence for each count, enabling the jury to determine which evidence supported which count. Id. at ¶ 122-123. The Court reaffirmed that principle in State v. Rodriguez, 2026-Ohio-2573, holding that “in a case involving carbon-copy counts of the same offense, the State need only present evidence of discernible facts corresponding to each count in order to obtain convictions Case No. 26 MA 0026  – 16 – on those counts.” Id. at ¶ 60. The State need not tie each count to a unique calendar date or a separately narrated episode; it must present distinct evidence from which the jury can differentiate the counts. See Id. at ¶ 32, 47. {¶34} Appellant’s reliance on Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005), does not compel a different result. Valentine is a federal habeas decision that does not bind this court, and the Supreme Court of Ohio distinguished, rather than adopted, its reasoning in Rodriguez. The court in Valentine granted relief because the counts there charged the same act occurring multiple times and the prosecution never differentiated among the counts, either before or during trial, leaving the defendant unable to know which conduct supported which count. Rodriguez at ¶ 58. This District has separately and repeatedly declined to follow Valentine, recognizing that repeated offenses may be charged in identical language where the evidence establishes a sufficient number of separate offenses. See State v. Miller, 2018-Ohio-3430, ¶ 22, 30-31 (7th Dist.); State v. Triplett, 2018-Ohio-5405, ¶ 83 (7th Dist.); State v. Thomas, 2020-Ohio-633, ¶ 14-18 (7th Dist.); State v. Palmer, 2021-Ohio-4639, ¶ 24 (7th Dist.). The concern animating Valentine is therefore absent where, as here, the State’s evidence establishes a sufficient number of separate offenses and permits the jury to differentiate the counts. {¶35} In this case, the State presented discernible facts corresponding to each count. As to K.F., the evidence did not rest on a bare estimate. K.F. testified to separate assaults occurring every day or every other day across an identifiable seven-month period, from December 2018 through June 17, 2019, and she anchored that period by describing the first incident with particularity and separately describing the final rape on the night before disclosure. The State charged 21 counts of rape and 21 counts of sexual battery from conduct the testimony established occurred with substantially greater frequency. As to A.R., she testified that she was forced to perform fellatio on Appellant more than ten times and described recurring cunnilingus and digital penetration. A.R. likewise described the first occasion and the final incident, the June 11, 2019 assault in the vehicle, to which the single attempted rape count was tied. That testimony supplied a temporal and factual framework from which the jury could find that the charged offenses were separate occurrences rather than a single act multiplied into many counts. As in Sowell, the testimony fixed identifiable temporal anchors — the first incident and the final Case No. 26 MA 0026  – 17 – assault as to each complainant — while establishing a frequency of offenses exceeding the number of counts charged, thereby supplying the discernable facts Rodriguez requires. Sowell, 2016-Ohio-8025, at ¶ 122-123; Rodriguez, 2026-Ohio-2573, at ¶ 60. Because each conviction is thus tied to conduct established on separate occasions, Appellant possesses a record identifying the conduct for which he was convicted. {¶36} Appellant’s remaining points do not establish plain error. Neither the jury instructions nor the verdict forms were required to supply the factual context for each count. Nothing in Ohio law imposes such a requirement or creates special requirements for indictments containing multiple counts of the same offense. Rodriguez at ¶ 40-41. The jury’s question — “How were the number of counts determined for each victim?” — does not demonstrate confusion warranting reversal. (2/2/2026 Jury Trial Tr., p. 814). A deliberating jury may seek clarification, and the trial court retains discretion in responding, including by directing the jury to the evidence and the instructions already given. Rodriguez at ¶ 36. Materially similar responses, referring the jury to the instructions, the testimony, and the evidence, are sufficient. Id. at ¶ 22-23, 44. {¶37} The trial court here gave the same kind of response and the jury had been instructed to consider each count separately and to state its findings as to each count uninfluenced by its verdict