State v. Bores

[Cite as State v. Bores, 2026-Ohio-3816.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY State of Ohio Court of Appeals No. {39}H-25-017 Appellee Trial Court No. CRI 2024-0668 v. Keith Bores DECISION AND JUDGMENT Appellant Decided: September 29, 2026 ***** Melissa A. Angst, Assistant Huron County Prosecuting Attorney, for appellee. Henry Shaefer, for appellant. ***** MAYLE, J. {¶ 1} Following a jury trial, defendant-appellant, Keith Michael Bores, appeals the July 1, 2025 judgment of the Huron County Court of Common Pleas, convicting him of numerous counts of rape, sexual battery, unlawful sexual conduct with a minor, and endangering children. For the following reasons, we affirm the trial court judgment. I. Background {¶ 2} A jury found Keith Michael Bores guilty of five counts of rape, violations of R.C. 2907.02(A)(2) and (B), first-degree felonies; ten counts of sexual battery, violations of R.C. 2907.03(A)(5) and (B), third-degree felonies; ten counts of unlawful sexual conduct with a minor, violations of R.C. 2907.04(A) and (B)(3), third-degree felonies; and three counts of endangering children, violations of R.C. 2919.22(B)(4) and (E)(3), third-degree felonies. These offenses involved his now-19-year-old daughter, K, and his now-17-year-old son, M. The trial court imposed an aggregate prison term of a minimum of 52 years and a maximum of 56 years. {¶ 3} K and M testified at trial, as did Bureau of Criminal Investigations DNA Analyst, Samuel Troyer; Deputy Michaela Light, Detective Frank Gleason, and Detective James Gilliam, of the Huron County Sheriff’s Department; and Angela Pocock, a supervisor with Huron County Children’s Services. The State also presented a BCI Laboratory Report; photographs of Bores’s home, property, and nearby woods; body- worn camera recordings; recordings of interviews with Bores, numerous recordings of jailhouse phone conversations between Bores and his girlfriend, A.M., and his brother; and jailhouse text messages between Bores and A.M. {¶ 4} According to the evidence presented at trial, Bores is the biological father of K and M, who are full siblings. In 2019, then-12-year-old K and ten-year-old M began living with Bores in the single-wide, two-bedroom, one-bathroom trailer that he shared with his long-time girlfriend, A.M., and their younger child, O. Bores’s other son, J, and A.M.’s son, B, also stayed at the trailer every other weekend for scheduled visitation. {¶ 5} K and M shared a bedroom that had no door. K slept on a futon and M initially had a bed, but Bores removed the bed from the children’s room and put it in the living room for O, leaving M to sleep on the floor. In 2023, Bores installed a video 2. camera in K and M’s room. There were other cameras monitoring the interior of the trailer, including in the living room and master bedroom, and one outside, pointing toward the driveway. {¶ 6} As time passed, Bores’s relationship with K and M deteriorated. Bores and A.M. began punishing K and M for bad behavior by making them do “wall stands,” forcing them to stand long periods of time while facing the wall. When imposed, this punishment lasted anywhere from hours to days, weeks, or even months, with breaks only for meals, trips to the bathroom, and sleep. {¶ 7} Bores placed a lock on the refrigerator to prevent K and M from taking food. K and M were sometimes fed bologna sandwiches that were thrown on their bedroom floor, while O was permitted snacks and fast food. On several occasions, Bores threw out M’s personal possessions like toys, Xbox controllers, bicycle parts, and bicycle gear that M had purchased with money earned mowing lawns, and slashed the tires on M’s bike. A.H. called K names and Bores threw away personal items like her books, hairbrushes, and mirrors. {¶ 8} M testified that Bores twice forcibly shaved M’s head. Likewise, K testified that Bores once shaved her head as punishment for playing with her hair during a wall stand. Other times, Bores threw M into the wall, hit his head into the wall, slapped him across the head, jerked him by the neck, placed him in a headlock, and shook him. On various occasions, M suffered bruises, cuts, and soreness. A.M. initiated pushing 3. matches with K, pulled her hair, and antagonized her. Bores pushed K down, hit her head against the wall, slapped her, and pinned her to the ground by her neck. {¶ 9} M testified that K was in Bores’s bedroom whenever A.M. was at work. He recalled one time hearing Bores moaning while K was in his room. He saw Bores and K cuddling together. Bores and K often left the trailer together on walks or went into the shed. M described that A.M. harbored jealousy towards K. Bores and A.M. fought over Bores turning or blocking the camera in the master bedroom, and the camera was eventually removed from their room and placed outside. Bores and A.M. also frequently argued about K being in their bedroom while A.M. was gone. {¶ 10} In September of 2024, K told M that Bores was sexually abusing her. After K told M about the sexual abuse, M told a resource officer at school about his physical abuse and K’s sexual abuse. Law enforcement became involved. {¶ 11} K would eventually testify at trial that before COVID, Bores began spending time with her watching movies, during which he rubbed her back and later touched her breasts and buttocks while he wore only boxers and no shirt. The touching escalated after COVID to sexual acts occurring a few times a week. {¶ 12} K testified that Bores had vaginal intercourse with her around ten times or more, sometimes using condoms and sometimes not. Vaginal intercourse occurred in the hallway a few times, in the bathroom two to three times, and in the master bedroom more than five times. Anal sex occurred in the hallway a few times. K approximated that Bores inserted his fingers into her vagina once or twice, made her touch his penis with 4. her hand a dozen times, put his penis in her mouth twice, and put his mouth on her vagina four or five times. K testified that three or four times, Bores took her into the woods near a cornfield, laid a black hoodie with gray fleece on the ground, made her undress, and instructed her to lie on it while he sexually assaulted her. Sometimes Bores would barter for sex in exchange for shopping, food from McDonald’s, or other gifts. {¶ 13} K estimated that sexual acts occurred two to three times a week and stopped sometime around August 2024. She specifically recalled that Bores engaged in sexual acts with her on August 24, 2024, because J and B were over and A.M. was shopping. Bores told K to keep the sexual activity a secret and not tell anyone. On M’s birthday, A.M.—who suspected that sexual acts were occurring—told K that if she told anyone, A.M. would get K arrested and would lie to protect Bores. {¶ 14} Huron County’s Sheriff’s Department and Children’s Services became involved once the allegations of sexual abuse surfaced. Bores told detectives that HCCS had recommended putting the lock on the refrigerator. He also claimed that he had reported to HCCS that K acted out sexually. Over the course of various interviews, Bores admitted having sexual contact with K, being “too close” with K, and “cuddling” with K. He told detectives that K “wanted him” and came on to him like he was her boyfriend. Bores eventually admitted to Detective James Gilliam that he had sex with K on a jacket in the woods and in the hallway outside the view of the cameras. {¶ 15} Detectives obtained search warrants and seized pieces of the hallway carpet and two similar-looking jackets that matched the description provided by K, including the 5. dark hoodie with gray fleece lining. Electronics were also seized. BCI determined that Bores’s semen was on the dark hoodie with fleece lining. He was the major contributor of DNA on the hoodie, with a frequency of occurrence of one in one trillion. K was found not to be a major contributor, and other DNA on the hoodie was not of a sufficient quality for comparison. The other items seized, including DVRs from the cameras in the trailer, produced no evidence of the abuse. {¶ 16} The State played for the jury and offered into evidence numerous recordings of Bores’s jailhouse phone calls and text messages sent on a jail tablet, as well as recordings of interviews and interactions with law enforcement. Bores made incriminating remarks in many of these recordings or took long pauses when asked directly whether he had had sex with K. {¶ 17} For HCCS’s part, supervisor Angela Pocock denied that HCCS would advise a parent to place a lock on a refrigerator. She also denied that Bores had come to HCCS with claims of sexual behavior by K. Pocock testified that if such a claim had been received, HCCS would have immediately responded and removed the children. She recalled that earlier in 2024, she investigated concerns of excessive discipline in the home, but after consulting the prosecutor, they declined to file criminal charges, reasoning that a parent has the right to discipline and there had been no sexual-abuse allegations at that point. Sheriff’s Deputy Michaela Light recalled that she had been to the house in October 2022, for a call of an unruly juvenile, and it had been determined that K was the aggressor. 6.  {¶ 18} As for other conditions in the home, detectives described that the home was dirty and outfitted with cameras, including a camera in K and M’s room. There was no camera in the hallway, one of the places where K reported that sexual assaults occurred, and K and M’s bedroom did not have a door or a bed. The lock for the refrigerator was observed. K walked detectives to the spot in the woods where she claimed that Bores had sexually assaulted her while she lay on the jacket. {¶ 19} After the State’s presentation of evidence, Bores moved for acquittal. The court denied the motion, except to the extent that it determined that the jury would be instructed that all the child endangering counts were third-degree felonies—one had originally been charged as a second-degree felony—because the court found there had been no evidence of serious physical harm. Bores presented no evidence, then again moved for acquittal, which was again denied. The jury found Bores guilty on all counts. His conviction and sentence were memorialized in a judgment entered on July 1, 2025. {¶ 20} Bores appealed. He assigns one error for our review: The court erred in admitting the DNA evidence and related testimony of Samuel Troyer regarding a report originally prepared by the non-testifying analyst Lindsey Deetz, thereby denying Keith Michael Bores his right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution. II. Law and Analysis {¶ 21} As alluded to above, detectives seized two similar looking jackets from Bores’s trailer because K described that when Bores had sex with her in the woods, she lay on a black jacket with gray fleece lining. One of those jackets—BCI describes it as a 7. black hoodie with gray fleece lining—tested positive for acid phosphatase (found in semen, saliva, and vaginal fluid) and was tested for DNA. Lindsey Deetz was the original BCI analyst assigned to the case who conducted testing of the hoodie and issued a report. Samuel Troyer performed a technical review of Deetz’s work. {¶ 22} Deetz’s January 13, 2025 report concluded that DNA present in a sample taken from the hoodie was consistent with Bores being the major contributor—“the estimated frequency of occurrence of the DNA profile in the sperm fraction is rarer that 1 in 1 trillion unrelated individuals”; K was not the major contributor. The remainder of the mixture contained DNA that was not of sufficient quality for comparison. {¶ 23} Deetz was originally scheduled to testify at trial, but because she was in the advanced stages of pregnancy, the State at some point decided that Troyer would testify in her place. This decision appears to have been made sometime between the final pretrial on June 3, 2025, and the date the State issued subpoenas on June 23, 2025, just before the trial began on June 25, 2025. Troyer “re-issued” Deetz’s report under his own signature on June 25, 2025—the day before he testified. The State’s brief indicates that Troyer’s report and notice of substitution of witness were sent to Bores’s attorney on June 25, 2025. {¶ 24} In his sole assignment of error, Bores claims that his Sixth Amendment right to confrontation was violated when the DNA evidence was admitted and Troyer testified in Deetz’s place. He argues that under U.S. Supreme Court and Ohio case law, a technical reviewer may not testify as a substitute for an absent certifying analyst. Rather, 8. a “defendant must be allowed to confront the person who performed the work and certified the results.” {¶ 25} Bores concedes that he did not raise this objection in the trial court, thus we are limited to a plain-error review. Plain error is error that affects substantial rights. Crim.R. 52(B). To demonstrate plain error under Crim.R. 52(B), the party asserting error has the burden of demonstrating “that an error occurred, that the error was obvious, and that there is a reasonable probability that the error resulted in prejudice, meaning that the error affected the outcome of the trial.” State v. Echols, 2024-Ohio-5088, ¶ 50, citing State v. Knuff, 2024-Ohio-902, ¶ 117. We will reverse for plain error “only in ‘exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Bond, 2022-Ohio-4150, ¶ 18, quoting State v. Long, 53 Ohio St.2d 91, (1978), paragraph three of the syllabus. A. The admission of the BCI evidence violated Bores’s right to confrontation. {¶ 26} The Sixth Amendment’s Confrontation Clause permits an accused the right to be confronted with the witnesses against him. Crawford v. Washington, 541 U.S. 36, 42 (2004). Section 10, Article I of the Ohio Constitution provides similar rights. State v. Self, 56 Ohio St.3d 73, 79 (1990). “The Clause bars the admission at trial of ‘testimonial statements’ of an absent witness unless she is ‘unavailable to testify, and the defendant ha[s] had a prior opportunity’ to cross-examine her.” Smith v. Arizona, 602 U.S. 779, 783 (2024), quoting Crawford at 53-54. In other words, statements that are “(1) introduced to prove the truth of the matter they assert (the ‘hearsay prong’), and (2) 9. testimonial in character (the ‘testimonial prong’)” must “be offered live and in the first person.” State v. Hale, 2024-Ohio-5579, ¶ 20 (1st Dist.), citing Smith at id. {¶ 27} Over the last 17 years, the U.S. Supreme Court has on several occasions addressed the Confrontation Clause in the context of presenting evidence of forensic testing. In Melendez-Diaz v Massachusetts, 557 U.S. 305 (2009), the State had introduced sworn certificates of analysis stating that substances seized from the defendant were cocaine of specified weights. These certificates were admitted under Massachusetts law as prima facie evidence of the substance’s composition. The defendant objected, arguing that admission of these certificates violated his right to confrontation and demanding that the analysts testify in court. His objection was overruled, he was convicted, and his conviction was affirmed on appeal. The U.S. Supreme Court granted certiorari. {¶ 28} The Court held that admission of the analysts’ certificates without live testimony violated the Confrontation Clause. It found that the certificates of analysis included testimonial statements and the analysts were witnesses against the defendant even if their statements were not directly accusatory and only proved a necessary fact like drug identity. The Court made clear that even the supposedly neutral scientific character of the analysts’ conclusions did not render confrontation unnecessary or exempt analysts from confrontation. The Court reversed the conviction and remanded to the state court. {¶ 29} Two years later, in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the defendant was convicted of aggravated DWI based primarily on a state lab report 10. certifying a 0.21 BAC. The report was completed, signed, and certified by analyst Curtis Caylor. At trial, the State did not call Caylor because he had been placed on unpaid leave for an undisclosed reason, nor did it assert that Caylor was unavailable. Instead, the State simply called another analyst, Gerasimos Razatos, who knew the lab procedures and instruments but did not perform or observe the test. The defendant objected, arguing that introduction of the analyst’s findings would violate his right to confrontation. The court overruled the objection, admitted the report as a business record, and allowed Razatos to testify. The jury convicted Bullcoming, and he appealed. {¶ 30} On appeal, the New Mexico Court of Appeals affirmed. So did the New Mexico Supreme Court, however, it recognized that under Melendez-Diaz, the report was testimonial evidence and was “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” (Internal quotations omitted.) Bullcoming at 657, quoting State v. Bullcoming, 226 P.3d 1, 7 (N.M. 2010), quoting Melendez-Diaz at 310-311. Nevertheless, it held that admission of the report did not violate the Confrontation Clause because (1) the analyst was a “mere scrivener” who simply transcribed the results produced by the gas chromatograph machine used to analyze the sample, and (2) while he did not participate in the testing conducted in the present case, Razatos qualified as an expert in using the gas chromatograph machine and could be cross-examined concerning the operation of the machine. {¶ 31} The U.S. Supreme Court granted certiorari. The Court held that the Confrontation Clause required confrontation of the analyst who made the testimonial 11. certification, unless that analyst was unavailable and the defendant had a prior opportunity to cross-examine. It found that admission of the report through the surrogate testimony of Razatos violated the Confrontation Clause. In rendering its decision, the Court recognized that the report was testimonial in nature because it was created solely for an evidentiary purpose in aid of a police investigation. The Court reversed the New Mexico Supreme Court’s decision and remanded for further proceedings. {¶ 32} Most recently, in Smith, 602 U.S. 779, the U.S. Supreme Court again made clear that the principles of the Confrontation Clause apply to forensic evidence. In Smith, an analyst named Rast had issued a report after concluding that samples provided to her for testing contained usable quantities of methamphetamine, marijuana, and cannabis. Before trial, Rast left the lab and the State instead presented the testimony of analyst Greggory Longoni who purported to provide an “independent opinion” based on Rast’s records. At trial, Longoni described the tests Rast said she performed, the lab protocols she said she followed, and her recorded results, then offered matching “independent” opinions identifying the substances. {¶ 33} The defendant appealed, arguing that his right to confrontation had been violated by the State’s use of Longoni as a substitute witness. The Arizona Court of Appeals affirmed, holding that an expert may testify to the substance of a non-testifying expert’s analysis if that analysis forms the basis for the testifying expert’s opinion. It reasoned that the underlying facts had been relied upon only to show the basis of the 12. testifying expert’s opinion rather than to prove the truth of the underlying facts. The U.S. Supreme Court granted certiorari. {¶ 34} The U.S. Supreme Court held that when an expert conveys an absent analyst’s out-of-court statements to support his opinion, and the statements support that opinion only if true, those statements are offered for their truth under the Confrontation Clause. Applying that rule, it concluded that Longoni’s testimony conveying Rast’s lab work was offered for its truth because his opinions and the jury’s ability to credit his opinions depended on accepting Rast’s factual assertions. The Court vacated the state court judgment and remanded for determination of whether Rast’s statements were testimonial and whether the State forfeited any argument to the contrary. {¶ 35} In sum, the U.S. Supreme Court has made clear that “a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-of-court statements to prove the results of forensic testing.” Id., citing Melendez-Diaz, 557 U.S. at 307, 329. The State argues here, however, that Troyer’s testimony did not run afoul of Smith, Melendez-Diaz, or Bullcoming because Troyer did not rely on Deetz’s report or findings—“he came to his own independent conclusions.” The State insists that Troyer “generated his own independent report from his own knowledge and conclusions of the DNA testing” and was able to testify “not just to standard laboratory practices, but what specifically happened in this case.” It also claims that Bores stipulated that no other BCI analyst needed to testify other than the forensic analyst who issued the report. It insists that Bores “waived his right to confront Ms. Deetz in the final pretrial stipulation[.]” 13.  {¶ 36} First, Bores did not stipulate that Deetz need not testify. He stipulated that BCI employees other than “the person who actually ran the analysis and generated the report” did need not to testify. We interpret this to mean that Bores would not insist upon testimony from the BCI employee(s) who (1) applied the alternative light source that detected the stain, and (2) determined that the sample taken from that stain was presumptively positive for semen. In fact, at the final pretrial, it does not appear that Bores was even on notice that the State intended to swap analysts at trial. The State didn’t file Troyer’s report or notice of substitution of witness until the day of trial. {¶ 37} Next, as to the State’s representation that Troyer issued an “independent report” from “his own knowledge and conclusions of the DNA testing,” Troyer’s testimony suggests otherwise. {¶ 38} On direct examination, Troyer described the process for identifying the presence of semen on an article of clothing, swabbing the item, analyzing the sample for DNA, issuing a statistic, and comparing the DNA found in the sample against known DNA samples provided to the lab. He explained that an analyst assigned to the case will draw conclusions during this process, make interpretations, and ultimately issue a report. He further explained that a technical reviewer is also assigned and reviews the data generated by the analyst to ensure that no errors were made and to verify that he or she would reach the same conclusions as the analyst. {¶ 39} Troyer testified that here, Lindsey Deetz was the original analyst assigned to this case and he was the technical reviewer. Deetz, therefore, authored the initial 14. report. However, Deetz was pregnant and unable to testify when the case went to trial, thus Troyer was designated to testify in her place. Because he would be testifying, Troyer issued his own report, which was admitted into evidence at trial. Troyer acknowledged that he “basically reissued [Deetz’s] report” under his own signature. Consistent with both his and Deetz’s reports, he testified to a reasonable degree of scientific certainty that Bores was the major contributor of semen identified on the hoodie, and the chances that another random person in the population would also have this same DNA profile was one in one trillion. His report was admitted as a trial exhibit. {¶ 40} On cross-examination, however, Troyer conceded that while Deetz performed the DNA analysis here, drew conclusions, made interpretations, and ultimately issued the report (“Q: And Ms. Deetz did that in this case, correct? A: Yes.”), he “just kind of checked Ms. Deetz’ work and made sure kind of the math added up and her previous conclusions were well founded.” He agreed that he “didn’t do any extra work or independent work[.]” (“A: There was no additional work done by me.”) And he confirmed that he didn’t “retest” or “redo the math”; he “basically . . . just sign[ed] off on [Deetz’s] report[.]” (“A: Basically yes.”) In fact, the report itself states that “[t]his report was re-issued due to the lack of availability for testimony purposes of the original reporting Forensic Scientist Lindsey Deetz originally issued January 13, 2025.” (Emphasis added.) It says nothing about any retesting occurring. {¶ 41} The Eighth District considered a similar issue in State v. Smiley, 2025- Ohio-2674 (8th Dist.), appeal not allowed, 2025-Ohio-5220, which also involved 15. allegations of sexual assault of a teenaged girl by her father. In Smiley, the State presented testimony from DNA analyst Christine Scott. She explained how sexual assault kits are processed, identified the victim’s sexual assault kit, and identified the DNA report. She explained that although seminal fluid had been detected in vaginal and anal swabs, a DNA profile had not been able to be obtained, and she explained the reasons for this. Scott acknowledged that she had not conducted the original testing in the case and had performed only a technical review of the original testing at the State’s direction because the original analyst was unavailable for trial. She testified that after performing the technical review, she concluded that the original testing was accurate to a reasonable probability of scientific certainty. {¶ 42} Defense counsel did not object to Scott’s testimony or the admission of the DNA report. On appeal, the defendant argued that counsel was ineffective for failing to object to this evidence as violating the Confrontation Clause. He maintained that “the Confrontation Clause protect[ed] his right to confront the analyst whose testing and statements the testifying analyst relied upon when the testifying analyst concluded that seminal fluid was detected in the victim’s sexual assault kit.” Id. at ¶ 55. {¶ 43} After reviewing Scott’s testimony, the Eighth District agreed with the defendant. It found that “the testifying DNA analyst testified to and relied upon the testing analyst’s statements and notes for their truth,” and under Smith, these statements are considered hearsay. Id. at ¶ 63. It further found that the statements of the absent analyst were testimonial in nature “because the primary purpose of such analysis [wa]s to 16. establish facts for use in a criminal prosecution.” Id. at ¶ 65. “Consequently,” the court found, “the admission of the substitute analyst’s testimony and the DNA lab report violated Smiley’s confrontation rights because the statements were testimonial hearsay.” Id. {¶ 44} This case is slightly different than Smiley because here, Troyer “re-issued” Deetz’s report under his own signature. But Troyer made clear on cross-examination that Deetz performed the DNA analysis here, he “just kind of checked” Deetz’ work to ensure that her previous conclusions were “well founded,” he performed no extra, additional, or independent work, he didn’t “retest” or “redo the math,” and he “basically . . . just sign[ed] off on [Deetz’s] report” due to Deetz’s unavailability for trial. {¶ 45} This is the functional equivalent of what occurred in Smiley. That Troyer copied Deetz’s report to put his name on it does not render his opinions independent. He still performed only a technical review of Deetz’s work, as was the case with the expert in Smiley—not an independent analysis of the evidence. As such we agree with Bores that his right to confrontation was violated when the State presented Troyer’s testimony to substitute for Deetz’s. B. Bores was not prejudiced by the admission of the BCI evidence. {¶ 46} Although we agree with Bores that his right to confrontation was violated when the State substituted analysts, as we observed above, Bores did not object in the trial court, thus limiting our review to plain error. Plain error occurs only where there is a 17. reasonable probability that the error affected the outcome of the trial. Echols, 2024- Ohio-5088, at ¶ 50, citing Knuff, 2024-Ohio-902, at ¶ 117. Here, we find no plain error. {¶ 47} Bores argues that he was prejudiced because “[t]he DNA evidence supplied the only scientific, objective corroboration of [K]’s account of the assaults on the black hoodie and lent powerful independent weight to her credibility on the precise acts underlying the five rape counts.” He claims that without the forensic evidence, “the State’s case rested almost entirely on the testimony of the two victims, the appellant’s recorded interview admissions, and jail calls-evidence[.]” While he acknowledges that this other evidence was “strong,” he insists that it “lacked the scientific certainty” and “aura of infallibility inherent in DNA results.” He believes it reasonably probable that the jury relied on this “tainted forensic corroboration” in reaching its verdicts because of the weight forensic evidence carries. Bores contends that the State’s trial strategy was to get Troyer’s testimony in front of the jury first—Troyer was the first witness to testify— so that the testimony of the succeeding witnesses would be viewed in the light cast by the existence of the DNA evidence. {¶ 48} We cannot say what the State’s strategy was in calling Troyer first. But we agree with Bores that the remaining evidence against him was “strong.” Indeed, this may be an understatement. K’s testimony coupled with Bores’s numerous admissions made during police interviews, recorded phone calls, and text messages ultimately provided the most compelling evidence against him. 18.  {¶ 49} During phone conversations from the jail—recordings of 13 phone calls, each about 15 minutes, were admitted into evidence at trial—Bores’s girlfriend, A.M., confronted Bores with the information she received from detectives. Bores in no uncertain terms admitted to sexual activity with K. When asked pointedly—and repeatedly—whether he had had sex with K, he sometimes denied penetration. Other times, he responded to questions with long pauses; said he had “not really” had sex with her; denied that it had happened “numerous” times; suggested that he had not had sex with K insofar as he had not ejaculated in or on her; insisted that whatever had happened, children’s services knew about it; said that it was “possible” he had had sex with K, but denied putting his penis or fingers in her “ass” or ejaculating inside her. {¶ 50} Other phone calls suggest that Bores believed he had not raped K because he had not been physically violent. He told A.M., “I wasn’t close enough to where I’m raping her or hurting her or making her give herself to me.” Bores claimed, “I didn’t fucking rape that girl. If anything it’s unlawful sexual conduct with a minor or something.” “I’m not raping [K]. . . . [K] wanted to do some things. . . . Now [K]’s fucking mad and throwing a fit.” He told A.M., “there was a little bit of weird shit, but it wasn’t nothing crazy. . . I wasn’t pounding this girl out on our fucking bed. Yeah, she got on top of me and laid on top of me, but it’s not like what they’re making it out to be like it was a fucking everyday occurrence.” {¶ 51} Bores spoke to detectives about K’s allegations. They questioned Bores about how many times he had sex with K or when he last had sex with her. As to the 19. latter question, Bores said that he could not remember. As to the former, when specifically asked how many times he had sex with K on the hallway floor, he said “close to a couple. . . . Say two.” Bores admitted to detectives that the reason he and K had ended up in the hallway was “maybe” because they would be “off camera”—“Yeah, that’s what it was.” Detectives questioned Bores about having sex with K on the jacket in the woods. At times, he denied this happened, but eventually he ceded, “If anything happened, maybe once”; “It happened one time.” He told them, “[K] laid on the jacket and humped me.” {¶ 52} People Bores telephoned while he was in jail chastised him for some of the incriminating statements he made to detectives. Bores acknowledged that he had talked too much, but said, “yeah, but I’m already past that point. . . . I’ve already told them we done things which doesn’t look good.” Bores agreed that when he talked to detectives, he “didn’t say the greatest things.” Bores explained, “I was trying to be fucking honest with them that there was shit going on. . . .” He conceded, “I told the cops maybe we had sexual interactions, yeah. But it didn’t get to grotesque sexual interactions.” Bores observed that when talking to the detectives, “for some reason I just couldn’t shut the fuck up.” When they asked him about the hallway, Bores recognized that he had said, “maybe I did something with her in the hallway. Maybe we humped in the hallway too. Maybe I took her to the hallway cuz the cameras weren’t there. Maybe. Maybe. Maybe. But there’s a whole lot of fucking maybes.” 20.  {¶ 53} To be fair, there were multiple times that Bores flat out denied having vaginal, anal, or oral sex with K. But some of the things he said suggest that he had a distorted view of what constitutes “sex”—tying it to whether he ejaculated inside of her (“I have not ejaculated in [K].”). Other things he said suggest that he believed that penetration must be physically forceful (“I’m not trying to force myself into [K]”; “Force wasn’t used on my behalf”; “I didn’t force [K] to do anything. K was the one who’s been persistent the whole time”; “I never fucking hurt [K].”). In any event, he backtracked from these denials at other points during questioning. He also qualified his behavior, saying things like, “I’m not having sex with [K] multiple times”; “if we did [have sex on the floor], maybe one [time]”; “I don’t do this with [K] all day every day”; denying that sex happened “numerous” times. Bores repeatedly euphemized that he and K simply “got too close.” He referred to what they did as “cuddling.” {¶ 54} Like the detectives, A.M. questioned Bores about what had happened in the woods—the only incident for which the State presented DNA evidence. A.M. told Bores, “They’re saying you had sex with her in the woods.” Bores said nothing. Later, A.M. asked again about “[t]he situation about the woods.” Bores responded, “We’ve been back in the woods. We’ve been all over in the woods. We’ve been to different woods. You know that.” {¶ 55} Bores consistently blamed K for his actions. He told A.M., “I dealt with temptation, temptation, temptation, temptation, temptation. Fucking turned it away at every turn. . . What do you do? . . . She would not fucking quit.” He said that “she 21. wanted to hump everything,” wanted to stick her hand down his pants, and wanted him to “rub her ass.” Bores claimed that K wanted to touch him “everywhere” and wanted him to touch her. According to Bores, K “[didn’t] want to quit touching [him].” “[K] was consenting to everything.” {¶ 56} Concerned about the prison term he could be facing, Bores tried to distinguish his conduct from others who have received prison terms for sex offenses. Whereas one acquaintance had been accused of offenses against multiple people, Bores said that his case simply involved “weird shit with my daughter.” Bores several times qualified that he had not done “gross crazy stuff” with K. Having said this, Bores also acknowledged that he understood the role he played “and if I gotta go to jail for it, I gotta go to jail for it.” {¶ 57} When A.M. criticized Bores for doing “shit” with K that he should not have been doing, Bores rationalized: Bores: It wasn’t like that. I didn’t see it like that. I saw it like I was trying to get [K] to grow up and love on [K]. A.M.: By letting her touch you. Bores: I mean [A.M.], we were a fucking family. We love each other. . . . I couldn’t just walk away. A.M.: . . . That’s your kid, bro. Bores: Yeah, she’s my daughter. I love her. You too. I didn’t do gross crazy shit with [K]. I love [K]. That’s it. A.M. You let things happen. . . . 22.  Bores: Yeah, some things. But not to the extent that I’m putting myself in her ass or putting myself in her and ejaculating in her. I couldn’t do that. I mean, it got sexual, yeah. . . . We let it get to the point that we were too fucking close. Her wanting to touch on me. Feel on me. Me wanting her to rub her ass. Shit like that. {¶ 58} The DNA found on the jacket did support K’s allegations that she was sexually assaulted while lying on the jacket. But Bores already admitted this during questioning by detectives. What’s more, the existence of Bores’s semen on the jacket did not establish penetration. A victim’s testimony—even by itself—may establish the element of penetration necessary to sustain a rape conviction. State v. Cowgill, 2026- Ohio-957, ¶ 63 (6th Dist.). And here, the State presented not only K’s testimony, but also Bores’s own incriminating statements during police interviews and jailhouse phone calls conceding that intercourse had occurred. Just as powerful were his long pauses and non- responses when asked directly about sexual intercourse. It is not reasonably probable that the error in admitting this evidence affected the outcome of the trial. {¶ 59} We find Bores’s assignment of error not well-taken. III. Conclusion {¶ 60} We agree with Bores that his right to confrontation was violated when the State presented the testimony and report of Samuel Troyer, who had not performed independent testing in this case, as a substitute for the BCI analyst who performed the testing. Applying plain-error review to this unobjected-to evidence, we find that the error in admitting this evidence was harmless. K’s testimony coupled with admissions made by Bores during police interviews, jailhouse phone calls, and text messages from the jail 23. strongly supported Bores’s convictions, thus there was no reasonable probability that the error affected the outcome of the trial. We find Bores’s assignment of error not well- taken. {¶ 61} We affirm the July 1, 2025 judgment of the Huron County Court of Common Pleas. Bores is ordered to pay t