State v. Wulff

[Cite as State v. Wulff, 2026-Ohio-4431.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY STATE OF OHIO, CASE NO. 2025-A-0076 Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas KENNETH JAMES WULFF, Trial Court No. 2025 CR 00290 Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: November 9, 2026 Judgment: Affirmed April R. Grabman, Ashtabula County Prosecutor, and Dane R. Hixon, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee). Eric J. Cherry, N.P. Weiss Law, 4070 Mayfield Road, South Euclid, OH 44121 (For Defendant-Appellant). ROBERT J. PATTON, J. {¶1} Defendant-appellant, Kenneth Wulff (“Wulff”), appeals the judgment of the Ashtabula County Court of Common Pleas sentencing him to an aggregate term of 56 months in prison following a jury trial where Wulff was convicted of two counts of gross sexual imposition, one count of importuning, and one count of disseminating matter harmful to juveniles. {¶2} On appeal, Wulff alleges that the trial court erred by failing to grant a mistrial when a witness testified to other acts evidence, that he was denied effective assistance of counsel, that the prosecutor representing the State of Ohio (“State”) engaged in misconduct during the trial, and that his convictions are against the manifest weight of the evidence. {¶3} Upon review, we find no abuse of discretion in the trial court’s decision to deny the request for a mistrial. The trial court promptly issued a curative instruction, which is the more appropriate remedy. Additionally, the trial court ordered the vague testimony stricken from the record. {¶4} We are unable to evaluate the majority of Wulff’s ineffective assistance of counsel claims as he refers mostly to matters outside the record. To the extent that we can review, counsel’s performance did not fall below an objective standard of reasonableness. Therefore, Wulff’s counsel was not deficient. We find no plain error in the State’s argumentation of the case, and we do not find Wulff’s convictions to be against the manifest weight of the evidence. {¶5} Accordingly, the judgment of the Ashtabula County Court of Common Pleas is affirmed. Substantive and Procedural Facts {¶6} An Ashtabula County Grand Jury indicted Wulff on four counts: two counts of gross sexual imposition, fourth-degree felonies, in violation of R.C. 2907.05(A)(1) and (C)(1); one count of disseminating matter harmful to juveniles, a fifth-degree felony, in violation of R.C. 2907.31(A)(1) and (F); and one count of importuning, a fifth-degree felony, in violation of R.C. 2907.07(B)(1) and (F)(3). Wulff pleaded not guilty to the indicted charges and proceeded to a jury trial. The following testimony was presented to the jury. {¶7} Wulff is G.B.’s brother-in-law as Wulff is married to G.B.’s older sister. In 2020 when G.B.’s schooling was conducted online, G.B. frequently babysat her two PAGE 2 OF 18 Case No. 2025-A-0076 nieces during the day while the children’s parents worked. The children were both approximately one year old. Generally, Wulff would return home around 5:30 p.m., and G.B.’s sister would return home around 11:00 p.m. G.B. testified that she babysat nearly every day. {¶8} One day when Wulff returned home, he complained that his hands were sore from working and asked G.B. for a hand massage. G.B. agreed, and this practice occurred regularly. Eventually, the series of massages progressed to G.B. massaging Wulff’s neck, back, arms, and legs using her sister’s lotion. Wulff would remove his clothing for easier access to his body. This occurred in the living room area of the house when only G.B., Wulff, and the children were home. {¶9} At some point, Wulff began reciprocating massages, which progressed in the same manner, initially consisting with G.B.’s hands only. As it progressed to G.B.’s back, Wulff complained that G.B.’s bra straps would be in the way. As it progressed to G.B.’s lower body, Wulff would roll down G.B.’s clothing waistline. Although G.B. believed this to be innocent, the massages progressed to Wulff’s bedroom. {¶10} Wulff would lock the bedroom door, turn the lights off, prepare the bed, light candles, place rose petals around the room, play spa music, and warm up a special coconut massage oil. Wulff purchased the oil, citing the need for ensuring G.B.’s sister would not notice that her lotion was being used up quickly. {¶11} G.B. explained during a whole-body massage, Wulff had her get completely naked, and all that was covered was the top of her vagina with a small, folded washcloth. Wulff began to massage as close to G.B.’s vagina as he could without touching it. However, G.B. testified that Wulff would massage her breasts and buttocks, and that PAGE 3 OF 18 Case No. 2025-A-0076 Wulff played with her nipples using a clothes pin. The bedroom massage sessions occurred almost daily when Wulff returned home from work and occurred approximately 50 times. The massages would last anywhere between 15 minutes to over an hour on some occasions. {¶12} In exchange for the massage sessions, Wulff would provide G.B. with disposable e-cigarettes, alcohol, and apparatuses for smoking marijuana. G.B. was 15 years old at the time, and Wulff was 32 years old. Wulff told G.B. not to tell her sister or parents about the massages or that he was permitting her to smoke and drink at his house. {¶13} Wulff began incorporating pornography into the massage sessions. G.B. testified on one occasion Wulff showed her a pornographic film depicting a female participant who looked similar to G.B. being tied up, gagged, and whipped. Wulff stated to G.B. that he wished he could do that to his wife, G.B.’s sister. Wulff also scrolled through numerous TikTok formatted videos of young women flashing their breasts, buttocks, and vaginas for the camera. {¶14} G.B. was also shown the website of a store selling vibrators. Wulff had explained to G.B. that he wanted to see a girl squirt sexually, so he offered to buy G.B. her choice of vibrator from that website so that she “[c]ould get a massage and an orgasm at the same time.” Wulff asked G.B. repeatedly for approximately two weeks whether she had made up her mind on choosing a vibrator and even showed G.B. her sister’s vibrator, offering to use it on her instead. {¶15} Elizabeth Wulff (“Mrs. Wulff”) testified for the defense. Mrs. Wulff testified that, from March 2020 until September 2020 she was a stay-at-home mother to her PAGE 4 OF 18 Case No. 2025-A-0076 children as she was laid off during the COVID pandemic. Mrs. Wulff explained that Wulff was employed at the Lake Erie Correctional Institution but was also not working at that time due to an injury. Wulff returned to work in December 2020. No babysitter was needed whenever at least one parent was available to watch the children. {¶16} According to Mrs. Wulff, G.B. only babysat approximately once per month when Wulff and Mrs. Wulff would have a date night. Instead, Mrs. Wulff testified that her dad or step-mother would typically babysit the children. Mrs. Wulff also explained that she did not have clothes pins in her apartment at any time, never found rose petals in her bedroom, and never noticed signs of candles recently burning. She also testified that she did all of the laundry and never noticed any oil-stained items. {¶17} In June 2024, G.B. recorded a conversation she had with Wulff where the two discussed the previous massage conduct. Wulff did not know the conversation was being recorded. G.B. later provided that recording to Detective Wesley Burns of the Ashtabula City Police Department who investigated the case. Since the events, G.B. has been going through counseling with her therapist, Shannan Farmer (“Farmer”). {¶18} At the conclusion of trial, the jury found Wulff guilty on all of the indicted charges. The trial court ordered a presentence investigation, ordered the parties to file sentencing briefs, and deferred imposing sentence for 30 days. {¶19} At sentencing, the trial court concluded that none of the indicted charges merged for the purposes of sentencing. After hearing a victim impact statement from G.B., the arguments of counsel, and considering the sentencing briefs, the trial court sentenced Wulff to 17 months in prison on each gross sexual imposition charge, 11 months in prison on the disseminating matter harmful to juveniles charge, and 11 months in prison for the PAGE 5 OF 18 Case No. 2025-A-0076 importuning charge, all to be served consecutively. Thus, Wulff’s aggregate sentence was 56 months in prison. Wulff timely appeals from the trial court’s judgment entry. The Appeal {¶20} Wulff raises the following four assignments of error for review: [1.] The trial court erred by not granting a mistrial upon the introduction of prior acts evidence. [2.] The trial court denied [Wulff] the effective assistance of counsel. [3.] The trial court erred by allowing prosecutorial misconduct in violation of [Wulff’s] due process rights. [4.] The trial court erred by entering a conviction that is against the manifest weight of the evidence. Denied Request for Mistrial {¶21} In his first assignment of error, Wulff argues that the trial court erred by denying defense counsel’s request for a mistrial following Detective Burns’s testimony that G.B. had made disclosures regarding behaviors when G.B. was 12 years old. Wulff argues that no conduct from that timeframe was charged in this case, so the jury was left to improperly infer Wulff committed other crimes in addition to those charged, permanently tainting the jury. We disagree. {¶22} The Supreme Court of Ohio has articulated that “mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Garner, 1995-Ohio-168, ¶ 39, citing State v. Franklin, 62 Ohio St.3d 118, 127 (1991). This court is to afford “great deference to the trial court’s discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial.” State v. Glover, 35 Ohio St.3d 18, 19 (1988), citing State v. Widner, 68 Ohio St.2d 188 (1981). PAGE 6 OF 18 Case No. 2025-A-0076  {¶23} An appellate court reviews an order denying a motion for a mistrial for abuse of discretion. State v. Treesh, 2001-Ohio-4, ¶ 73. An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary 11 (8th Ed.2004). {¶24} Here, Wulff takes issue with the following testimony elicited when the State called Detective Burns as a witness: PROSECUTOR: . . . how old would [G.B.] have been relative to the disclosure that she made? DETECTIVE BURNS: She have would have been 15 in 2020. She also disclosed that some behaviors that occurred when she was 12 in 2017.1 DEFENSE COUNSEL: Objection, Your Honor. May we approach? PROSECUTOR: That's fine, Your Honor. For the record, we’re only discussing these matters here in court today. THE COURT: Sustained. Members of the jury, please do not consider the last question and the answer. Go ahead. {¶25} Following the objection and trial court’s sua sponte curative instruction, a sidebar conference was held where defense counsel explained his concerns that the jury could infer that Wulff engaged in some other impropriety or some other criminal activity. The subject had been preliminarily ordered excluded by a motion in limine, and according to defense counsel, there was no way to “unring the bell.” The assistant prosecutor noted that the question was not meant to allude to matters occurring in 2017, that the witness 1. This court finds counsel’s position, as stated during oral argument, that Detective Burns deliberately sought to inflame the jury with his testimony by referencing matters outside the scope of the indictment concerning. The record contains no support for this proposition, and counsel’s sole basis for making such an allegation is predicated merely upon counsel’s personal opinion that Detective Burns “should have known better” considering his experience in testifying. Attacking an officer’s integrity where no corroborating evidence exists, and particularly where the record more reasonably reflects that his answer was a response to an inartfully worded question, is unwarranted. PAGE 7 OF 18 Case No. 2025-A-0076 had been previously instructed to refrain from discussing that subject matter, and agreed to strike the statement from the record. The trial court then gave a second curative instruction: THE COURT: Ladies and gentlemen of the jury, the last question of the State that was given here by [the prosecutor], as well as the answer that was given by the witness are ordered stricken from the record. The jury is not to consider that last question by [the prosecutor], as well as the answer by the witness. Not to consider the question, nor the answer for any purpose, for any reason. So it’s the Court orders that it not be considered by the jury. Thank you. We'll move forward here at this time . . . . {¶26} Generally, “a curative instruction is an appropriate remedy, rather than a mistrial, for inadvertent answers given by a witness to an otherwise innocent question.” State v. Mobley, 2002-Ohio-1792, ¶ 12 (2d Dist.), citing State v. Maddox, 2001 WL 726778, *6 (2d Dist. June 29, 2001). “Curative instructions are considered an effective means of remedying irregularities that occur during trial, and a jury is presumed to follow any such instructions given by the trial court.” State v. Crain, 2003-Ohio-1204, ¶ 62 (11th Dist.), citing State v. Terrell, 2000 WL 1591147, *4 (12th Dist. Oct. 23, 2000). {¶27} We further note the vague and fleeting nature of Detective Burns’s statement, which did not include any details beyond “some behaviors . . . in 2017.” Without any further details, the improper admission of vague, ambiguous, and fleeting statements generally amounts to harmless error. See State v. Glenn, 2011-Ohio-829, ¶ 49 (1st Dist.); accord State v. Trimble, 2009-Ohio-2961, ¶ 175 (“the reference to [the defendant’s] prior conviction was a brief and isolated remark that was followed by a curative instruction. The mere mention of [the defendant’s] conviction, without more, did not unfairly prejudice [him.]”) But as the State aptly notes, the trial court ordered the testimony stricken. Therefore, it was categorically not admitted. PAGE 8 OF 18 Case No. 2025-A-0076  {¶28} Accordingly, the trial court did not abuse its discretion by denying a request for a mistrial. A fair trial was not rendered impossible as the judge promptly gave two curative instructions, and there is no indication from the record that the jury disregarded the trial court’s instructions or declined to follow them. {¶29} Wulff’s first assignment of error is without merit. Ineffective Assistance of Counsel {¶30} In his second assignment of error, Wulff claims that he was denied effective assistance of counsel. Specifically, Wulff argues that his counsel failed to call witnesses that would have contradicted G.B.’s claims, did not elicit enough favorable testimony from Mrs. Wulff regarding a supposed custody dispute involving G.B.’s parents, and did not “highlight the lack of evidence offered by the State . . . .” We disagree. {¶31} “To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel’s performance fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 2000-Ohio-448, ¶ 49, citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984). “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 2006-Ohio-6679, ¶ 62, citing State v. Calhoun, 1999-Ohio- 102. “In order to rebut this presumption, the defendant must show the actions of counsel did not fall within a range of reasonable assistance.” State v. Strong, 2013-Ohio-5189, ¶ 11 (11th Dist.), citing Strickland at 689. {¶32} With respect to Wulff’s allegations that his counsel failed to call certain witnesses who could have contradicted G.B.’s claims and failed to discuss a custody PAGE 9 OF 18 Case No. 2025-A-0076 battle in the family, “this court cannot entertain on appeal an issue of excluded evidence where the excluded evidence was never proffered.” Gondor v. State, 2015-Ohio-4022, ¶ 49 (11th Dist.), citing Evid.R. 103(A). “A reviewing court cannot add matters to the record before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. {¶33} Neither Wulff nor the record provides this court with any indication of who these additional witnesses could have been. No custody battle is part of the record either. As such, we cannot readily ascertain whether this would even be relevant to the facts of this case. Accordingly, this prong of Wulff’s argument is necessarily without merit as it is not based on any information contained in the record. See App.R. 9. {¶34} Wulff further claims his counsel did not highlight the lack of evidence offered by the State and asserts that his counsel failed to cross-examine G.B. on contradictions in her testimony. We first note that counsel made a Crim.R. 29 motion for acquittal, which necessarily challenged whether there was sufficient evidence presented. Wulff has not cited to any contradictions in G.B.’s testimony, and our independent review of the testimony presents none either. See App.R. 16(A)(7). While Mrs. Wulff’s testimony contradicted some of G.B.’s claims, it was defense counsel’s effective direct examination that elicited such testimony. {¶35} We have repeatedly held that “‘“[d]ebatable strategic and tactical decisions will not form the basis for a claim of ineffective assistance of counsel, even if there had been a better strategy available.”’” State v. Norman, 2026-Ohio-779, ¶ 16 (11th Dist.), quoting State v. Kovacic, 2012-Ohio-219, ¶ 46 (11th Dist.), quoting State v. Beesler, 2003- PAGE 10 OF 18 Case No. 2025-A-0076 Ohio-2815, ¶ 13 (11th Dist.). Accordingly, we do not conclude that counsel’s performance fell below an objective standard of reasonableness. {¶36} Wulff’s second assignment of error is without merit. Prosecutorial Misconduct {¶37} In his third assignment of error, Wulff argues that the prosecutor engaged in misconduct by mischaracterizing witness testimony. We disagree. {¶38} In his brief, Wulff takes issue with three instances where he claims the State mischaracterized G.B.’s testimony. According to Wulff’s brief, they are 1. In closing [arguments] the State argued that Mrs. Wulff’s acknowledgement that there were candles in the home confirmed [G.B.’s] testimony. There are candles in nearly every American home. 2. During testimony, the State discussed the intake process for clients of the Cleveland Rape Crisis Center with therapist Farmer. The procedures described are typical of all mental health and therapeutic organizations. The State made them sound special by unnecessarily describing them as “raw” and “real.” 3. Suggesting that any imperfections in [G.B.’s] recitation of the timeline may be overlooked by the jury. The State intended to tempt the emotional response rather than to question her narrative where her reporting seems unreliable. {¶39} Wulff further claims two instances which, according to Wulff, misstated material facts in an effort to strengthen the State’s case. Wulff argues, 1. The State claimed that [Mrs. Wulff’s] acknowledgment that she worked at Molded Fiberglass in 2020 confirmed [G.B.’s] testimony regarding opportunity. [G.B.] testified that the conduct took place in the summer, fall, and winter of 2020. Mrs. Wulff testified that neither she nor [Wulff] was working from March 2020 until she went back to work in September 2020. The State improperly overlooked this portion in suggesting its corroboration of [G.B.] PAGE 11 OF 18 Case No. 2025-A-0076  2. The State argues that what Mrs. Wulff described as occasional babysitting for date night confirms the daily babysitting for employment purposes claimed by [G.B.] {¶40} However, as Wulff failed to object to any of these alleged mischaracterizations and misstatements, he has forfeited all but plain error on appeal. “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). However, “[n]otice 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 (1978), paragraph three of the syllabus. {¶41} The Supreme Court of Ohio set forth limitations on what constitutes plain error. “First, there must be an error, i.e., a deviation from a legal rule. Second, the error must be plain, i.e., the error must be an ‘obvious’ defect in the proceedings. Third, the error must have affected ‘substantial rights.’ This means that the trial court’s error must have affected the outcome of the trial or prejudiced the defendant.” State v. Dundics, 2016-Ohio-1368, ¶ 19 (11th Dist.), citing State v. Barnes, 2002-Ohio-68, ¶ 20. {¶42} Here, aside from citing case law to generally state that prosecutorial misconduct occurs when a prosecutor’s statements are improper and prejudiced a substantial right of the defendant, Wulff cites no legal authority to demonstrate how any of these instances amount to prosecutorial misconduct or affected Wulff’s substantial rights in any way. See App.R. 16(A)(7). We may not “construct legal arguments in support of an appellant’s appeal.” Whitehall v. Ruckman, 2007-Ohio-6780, ¶ 20 (10th Dist.), quoting State ex rel. Petro v. Gold, 2006-Ohio-943, ¶ 94 (10th Dist.). “If an argument exists that can support [an] assignment of error, it is not this court’s duty to root it out.” PAGE 12 OF 18 Case No. 2025-A-0076 Moyer v. Robinson, 2023-Ohio-764, ¶ 36 (11th Dist.), quoting Lloyd v. Thornsbery, 2018- Ohio-2893, ¶ 15 (11th Dist.), quoting Cardone v. Cardone, 1998 WL 224934, *8 (9th Dist. May 6, 1998). {¶43} Notwithstanding this defect, “the prosecution is entitled to a certain degree of latitude in summation.” State v. Hope, 2019-Ohio-2174, ¶ 136 (11th Dist.), citing State v. Smith, 2000-Ohio-450, ¶ 92. “There is no requirement that a prosecutor’s language must be neutral in its characterizations of the evidence or defense strategy.” State v. Novak, 2005-Ohio-563, ¶ 42 (11th Dist.), citing State v. Brown, 38 Ohio St.3d 305, 317 (1988). While the statements and arguments Wulff cites to are favorable to the State, there is no question that the State is permitted “to convincingly advance its strongest arguments and positions.” State v. Doak, 2020-Ohio-66, ¶ 50 (11th Dist.), appeal dismissed, 2020-Ohio-3677, citing State v. Phillips, 1995-Ohio-171. None of the instances Wulff cites as “mischaracterizations” misrepresented the testimony of any witness. Rather, they merely represent instances of the State arguing its position. {¶44} As Wulff has failed to demonstrate error, plain or otherwise, Wulff’s third assignment of error is without merit. Manifest Weight of the Evidence {¶45} In his fourth assignment of error, Wulff appears to argue that his convictions for importuning and disseminating matter harmful to juveniles are against the manifest weight of the evidence. Wulff speculates that G.B.’s description of the viewed pornography could have been from any number of sources, including her own accord. Wulff also argues that G.B.’s delayed disclosure undermined G.B.’s credibility, that the emotional impact of the case was improperly used as substantive proof of the charges, PAGE 13 OF 18 Case No. 2025-A-0076 and that the jury should have chosen to believe Mrs. Wulff’s testimony, instead. We disagree. {¶46} “[W]eight of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 2007-Ohio-2202, ¶ 25, citing State v. Thompkins, 1997-Ohio-52, ¶ 24 “‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” Thompkins at ¶ 25, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). {¶47} “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of the conflicting testimony.” Id., quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). However, this court may only sit as the thirteenth juror “when evidence contradicts a fact-finder’s findings . . . or when a witness’s testimony is so inconsistent as to material facts, so impeached, or so fantastical as to make it patently unbelievable.” State v. Reillo, Slip Opinion No. 2026- Ohio-2701, ¶ 3, citing State v. Martin, 2022-Ohio-4175, ¶ 26. Therefore, “‘[t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins at ¶ 25, quoting Martin, 20 Ohio App.3d at 175. {¶48} Before considering Wulff’s argument, we must note that this court is troubled by several of the citations contained in Wulff’s brief. Wulff claims that this court has previously held that a victim’s delayed disclosure always reduces their credibility. In PAGE 14 OF 18 Case No. 2025-A-0076 support, Wulff cites “State v. Rushcak [sic], 2025-Ohio-2303, ¶¶ [sic] 27-30 (11th Dist.).” As Ruschak is a 23-paragraph opinion, Wulff’s citation to paragraphs 27-30 necessarily does not exist.2 Even more concerning is that Ruschak did not involve a delayed- disclosure situation. In Ruschak, the victim testified that after being assaulted inside a gas station, she and the clerk immediately contacted law enforcement. Id. at ¶ 6. Wulff cites a second case to support his proposition, “State v. Washington, 2022-Ohio-3478, ¶ 38 (11th Dist.).” Although that citation exists, Washington did not involve a disclosure of any kind, delayed or otherwise, as it was a traffic case.3 Id. at ¶ 1. Further, the pin cite to paragraph 38 contains nothing more than this court’s recitation of the appellant’s assignment of error on a wholly unrelated issue. Id. at ¶ 38. {¶49} This court has never endorsed a position that a child’s delayed disclosure of abuse always reduces their credibility. In fact, on multiple occasions, we have held the opposite. See, e.g., In re Whitlock, 2008-Ohio-4672, ¶ 27 (11th Dist.) (“the fact that the victim did not report the sexual contact until the next day does not make her testimony incredible.”), State v. Lacamera, 2024-Ohio-899, ¶ 24 (11th Dist.) (“appellant contends [the victim’s] delay in reporting [sexual assaults] weighs heavily against her credibility. We do not agree.”) {¶50} It appears that none of our sister districts have endorsed that position either. While certainly, “‘the jury [i]s entitled to consider the credibility of the victim’s testimony and [the victim’s] explanation for the delayed disclosure,’” “simply because a victim may 2. Wulff’s citation to Ruschak is not the only inaccurate citation in his brief. Wulff also cites “State v. Janson, 2016-Ohio-5671, ¶¶ [sic] 58-60 (11th Dist.).” As Janson contains only 33 paragraphs, this citation is likewise improperly cited. 3. In Washington, the defendant was charged with operating a vehicle under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a) and speeding in violation of R.C. 4511.21. PAGE 15 OF 18 Case No. 2025-A-0076 delay reporting sexual abuse does not mean that the victim lacks credibility.” State v. McKinney, 2024-Ohio-4642, ¶ 68 (4th Dist.), appeal not accepted, 2025-Ohio-231, citing State v. Lykins, 2019-Ohio-3316, ¶ 50 (4th Dist.); accord In re C.H., 2025-Ohio-4955, ¶ 12 (8th Dist.) (“the mere fact that there was a delayed disclosure of the incident by the victim does not render the testimony incredible.”); State v. Burroughs, 1995 WL 19214, *3 (9th Dist. Jan. 18, 1995) (“delay in reporting the incident . . . does not lead to the conclusion that she was not [sexually abused.]”) {¶51} At oral argument, this court questioned the citations, and counsel averred that these are merely inadvertent typographical errors. Given the number and substantive nature thereof, we disagree and find that counsel not only submitted erroneous citations, but has also misstated the holdings of the cases cited.4 {¶52} Now, considering only the properly submitted portions of Wulff’s argument, Wulff asks this court to reverse his convictions as he believes G.B. lacked credibility. However, “[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123 (1986), citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81 (1984); accord State v. Huertas-Alicia, 2024- Ohio-2214, (11th Dist.). In other words, “[a]ppellate courts ‘should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court….’” Stiles v. Bugno, 2024-Ohio-1262, ¶ 82 (7th Dist.), quoting Seasons Coal at 81. “It is well established that the jury is in the best position 4. Later in his brief, Wulff cites to Ruschak a second time for the proposition that the Eleventh District “has held that the emotional impact of testimony is not substantive proof that criminal conduct occurred. State v. Rushcak [sic], 2025-Ohio-2303, ¶ 36 (11th Dist.).” The citation does not exist, and Ruschak does not discuss the emotional impact of testimony in any way. PAGE 16 OF 18 Case No. 2025-A-0076 to weigh the evidence placed before it.” State v. Dubois, 2024-Ohio-6115, ¶ 77 (11th Dist.). {¶53} As “‘the jury was free to believe or disbelieve the testimony of any witness as to any issue,’” we decline to disturb the jury’s verdict. State v. Neiss-Parsons, 2021- Ohio-897, ¶ 22 (11th Dist.), quoting State v. Jones, 2007-Ohio-2425, ¶ 24 (2d Dist.). This is not an “exceptional case in which the evidence weighs heavily against the conviction.” Thompkins, 1997-Ohio-52 at ¶ 24, citing Martin, 20 Ohio App.3d at 175. {¶54} Wulff’s fourth assignment of error is without merit. Conclusion {¶55} For the reasons set forth above, the judgment of the Ashtabula County Court of Common Pleas is affirmed. EUGENE A. LUCCI, J., concurs, JOHN J. EKLUND, J., concurs in judgment only. PAGE 17 OF 18 Case No. 2025-A-0076  JUDGMENT ENTRY For the reasons stated in the opinion of this court, appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Ashtabula County Court of Common Pleas is affirmed. Costs to be taxed against appellant. JUDGE ROBERT J. PATTON JUDGE EUGENE A. LUCCI, concurs JUDGE JOHN J. EKLUND, concurs in judgment only THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 18 OF 18 Case No. 2025-A-0076