State v. Nicholas, 613 N.E.2d 225 (Ohio 1993). · Go Syfert
State v. Nicholas, 613 N.E.2d 225 (Ohio 1993). Cases Citing This Book View Copy Cite
“offenses involving distinct, different sexual activity each constitute a separate crime with a separate animus, and are not allied offenses of similar import, even when they are committed in the course of the same encounter.”
437 citation events (362 in the last 25 years) across 6 distinct courts.
Strongest positive: State v. Carswell (ohioctapp, 2025-09-30)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) State v. Carswell
Ohio Ct. App. · 2025 · signal: see · quote attribution · 1 verbatim quote · confidence high
he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.
discussed Cited as authority (verbatim quote) State v. Meyerson
Ohio Ct. App. · 2023 · quote attribution · 1 verbatim quote · confidence high
he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.
discussed Cited as authority (verbatim quote) State v. E.T.
Ohio Ct. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel
examined Cited as authority (quoted) State v. Stites
unknown court · 2020 · quote attribution · 1 verbatim quote · confidence low
offenses involving distinct, different sexual activity each constitute a separate crime with a separate animus, and are not allied offenses of similar import, even when they are committed in the course of the same encounter.
examined Cited as authority (quoted) State v. McRae (2×)
Ohio Ct. App. · 2020 · signal: see · quote attribution · 2 verbatim quotes · confidence high
e have recognized that ineffective assistance does not occur when counsel decides to 9 ohio first district court of appeals rely on cross-examination of the state's expert rather than calling a separate defense expert.
examined Cited as authority (quoted) State v. Williams (2×)
Ohio Ct. App. · 2014 · quote attribution · 2 verbatim quotes · confidence low
the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.
examined Cited as authority (quoted) Adams v. Bradshaw (2×)
N.D. Ohio · 2007 · quote attribution · 2 verbatim quotes · confidence low
dna results constitute reliable evidence
discussed Cited as authority (rule) State v. Smith
Ohio Ct. App. · 2026 · confidence medium
(Tr. 619.) We note the Ohio Supreme Court has stated that “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987).
discussed Cited as authority (rule) State v. Chisenhall
unknown court · 2025 · confidence medium
"Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at paragraph two of the syllabus. {¶ 61} The Supreme Court has recognized that different types of rape, such as vaginal intercourse, cunnilingus, and digital penetration, committed within the same sexual assault, "each constitutes a separate crime with a separate animus," and thus, "do not constitute allied offenses of similar import." State v. Nichola…
discussed Cited as authority (rule) State v. Hopkins
Ohio Ct. App. · 2025 · confidence medium
We disagree. 12 {¶ 38} “‘[T]he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.’” State v. Hartman, 93 Ohio St.3d 274, 299 (2001), quoting State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
cited Cited as authority (rule) State v. Foster
Ohio Ct. App. · 2025 · confidence medium
Furthermore, “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
discussed Cited as authority (rule) State v. Greene
unknown court · 2025 · confidence medium
However, it is well-settled that “the failure to call an expert and instead rely on cross-examination does not 25. constitute ineffective assistance of counsel.” State v. Foust, 2004-Ohio-7006, ¶ 97 , quoting State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987).
discussed Cited as authority (rule) State v. McKenzie
Ohio Ct. App. · 2025 · confidence medium
The two rape convictions and the four GSI convictions that were ordered to be served Lawrence App. No. 22CA14 29 consecutively, were based on separate acts committed at separate times and different locations. {¶63} “Different types of rape committed within the same sexual assault such as ‘vaginal intercourse, cunnilingus, and digital penetration constitute separate crimes’ ‘with a separate animus,” and thus, ‘they do not constitute allied offenses of similar import.’ ” State v. McKinney, 2024-Ohio-4642, ¶ 90 (4th Dist.), quoting State v. Nicholas, 66 Ohio St.3d 431, 435 (1993…
discussed Cited as authority (rule) State v. Navarro (2×) also: Cited "see"
Ohio Ct. App. · 2025 · confidence medium
Id. at ¶ 16 (“Application of the law governing the merger of allied offenses is dependent on the specific facts of each case.”). {¶51} “Crimes involving distinct sexual activity, i.e., vaginal intercourse, cunnilingus, and digital penetration, each constitute a separate crime with a separate animus, and they do not constitute allied offenses of similar import.” State v. Harvey, 2010-Ohio-5408, ¶ 21 (3d Dist.), citing State v. Nicholas, 66 Ohio St.3d 431, 435 (1993). -18- Case No. 13-23-29 {¶52} In this case, the trial court determined that the rape convictions under Counts One and …
discussed Cited as authority (rule) State v. Thompkins
unknown court · 2024 · confidence medium
His assertions are speculative and Thompkins fails to demonstrate prejudice. {¶73} “Trial counsel’s failure to request an expert is a debatable trial tactic that does not amount to ineffective assistance.” State v. Knuff, 2024-Ohio-902, ¶ 275 , reconsideration denied, 2024-Ohio-1832 , citing, State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
discussed Cited as authority (rule) State v. McKinney
Ohio Ct. App. · 2024 · confidence medium
Her testimony describes the following instances of sexual conduct: (1) a few days after appellant first touched the victim “inappropriately,” appellant had vaginal intercourse with the victim; (2) additional acts of vaginal intercourse occurred in her bedroom or in her mother’s bedroom “four or five times” per week; (3) on the victim’s 12th birthday, appellant performed cunnilingus; (4) also on the victim’s 12th birthday, appellant engaged in vaginal intercourse with the victim, see generally State v. Nicholas, 66 Ohio St.3d 431, 435 (1993) (three separate instances of vaginal in…
discussed Cited as authority (rule) State v. Klotz
Ohio Ct. App. · 2024 · confidence medium
“To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. 5 Case No. 2023-L-111 Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. {¶21} It has been consistently held that “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), citing State v. Thompson, 33 O…
discussed Cited as authority (rule) State v. Knuff
Ohio · 2024 · confidence medium
State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11, 514 76 January Term, 2024 N.E.2d 407 (1987); see State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 97-99 (counsel’s failure to request funds for experts was not ineffective assistance, because need for experts was purely speculative and counsel’s choice to rely on cross-examination of prosecution’s expert was a legitimate tactical decision).
discussed Cited as authority (rule) Dawson-Durgan v. Warden, Warren Correctional Institution
S.D. Ohio · 2023 · confidence medium
The decision to call an expert witness is in the sound discretion of the trial counsel, and “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St. 3d 431, 436 (Ohio 1993).
discussed Cited as authority (rule) State v. Smith
Ohio Ct. App. · 2022 · confidence medium
Ultimately, Smith did not call Scales to testify during his defense case. {¶ 96} "'[T]he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.'" State v. Hunter, 131 Ohio St.3d 67 , 2011- - 24 - Clermont CA2021-02-009 Ohio-6524, ¶ 66, quoting State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
discussed Cited as authority (rule) State v. Prince
Ohio Ct. App. · 2021 · confidence medium
Hancock No. 5-10-05, 2010-Ohio-5408, ¶ 21 ; State v. Nicholas, 66 Ohio St.3d 431, 435 (1993) (vaginal intercourse, cunnilingus, and digital penetration are “three separate crimes involving distinct sexual activity. * * * Since each constitutes a separate crime with a separate animus, they do not constitute allied offenses of similar import.”). {¶14} In the case before us, the trial court determined that the Sexual-battery offenses involved “two separate identifiable instances of sexual conduct in different -7- Case No. 1-21-14 orifices of the body [i.e., separate acts].” (Apr. 6, 202…
discussed Cited as authority (rule) State v. Costell
Ohio Ct. App. · 2021 · confidence medium
However, “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio -18- Case No. 14-21-02 St.3d 431, 437, 613 N.E.2d 225, 230 (1993).
discussed Cited as authority (rule) State v. Fuell
Ohio Ct. App. · 2021 · confidence medium
However, "'the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.'" State v. Hunter, 131 Ohio St.3d 67 , 2011-Ohio-6524, ¶ 66 , quoting State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
discussed Cited as authority (rule) In re A.F.
Ohio Ct. App. · 2020 · confidence medium
Benbow, the same one depicted in Exhibit A, directly from her Snapchat account, as opposed to pulling it from her phone files, and maintained that she could not modify the time and date stamp that appeared on the picture in Exhibit A because it came directly from her Snapchat account. {¶47} The Supreme Court of Ohio has stated that “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987).
discussed Cited as authority (rule) State v. Speicher
Ohio Ct. App. · 2020 · confidence medium
Furthermore, the Supreme Court of Ohio has stated that “the failure to call an expert and instead -24- Case No.14-13-17 rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987).
cited Cited as authority (rule) State v. Cook
Ohio Ct. App. · 2020 · confidence medium
Miami No. 2003-CA-1, 2003-Ohio-4428 , ¶ 9, quoting State v. Nicholas, 66 Ohio St.3d 431, 436 (1993) and citing State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987).
cited Cited as authority (rule) State v. White
Ohio Ct. App. · 2019 · confidence medium
State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
cited Cited as authority (rule) State v. Lawrence
Ohio Ct. App. · 2019 · confidence medium
State v. Nicholas, 66 Ohio St.3d 431, 436 (1993); State v. Hartman, 93 Ohio St.3d 274, 299 (2001). {¶ 20} We also note that Y-STR DNA evidence is admissible in Ohio.
cited Cited as authority (rule) State v. Green
Ohio Ct. App. · 2018 · confidence medium
State v. Nicholas, 66 Ohio St.3d 431, 436 (1993); State v. Hunter, 131 Ohio St.3d 67 , 2011-Ohio-6524, ¶ 66 .
discussed Cited as authority (rule) State v. Grad
Ohio Ct. App. · 2016 · confidence medium
Id. at 694. {¶7} “[T]he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993); State v. Thompson, 141 Ohio St.3d 254 , 2014-Ohio-4751, ¶ 244 .
discussed Cited as authority (rule) State v. Zehenni
Ohio Ct. App. · 2016 · confidence medium
State v. Nicholas, 66 Ohio St.3d 431, 436 (1993); State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987). {¶ 58} We cannot conclude that trial counsel was ineffective for failing to secure an expert who would testify along the lines suggested by Zehenni.
discussed Cited as authority (rule) State v. Stevens
Ohio Ct. App. · 2016 · confidence medium
Allen No. 1-10-41, 2010-Ohio-6260, ¶ 16 , citing State v. Mundt, 115 Ohio St.3d 22 , 2007-Ohio-4836 , ¶ 118, State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987), and State v. Carter, 72 Ohio St.3d 545, 558 (1995). {¶50} Stevens’s sole argument that his counsel was deficient for failing to seek an expert witness is that “the trial court ordered up to $11,000 for expert assistance for defense, of which $3,000 was for an Investigator, and of which trial counsel used none for appellant’s defense or preparations for trial.” (Appellant’s Br…
discussed Cited as authority (rule) Stallworth v. State
Ala. Crim. App. · 2013 · confidence medium
Moreover, ‘[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ Strickland[ v. Washington,] 466 U.S. [668,] 689 [ (1984) ].” Brown v. State, 292 Ga. 454, 456 , 738 S.E.2d 591, 594 (2013). “[T]he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 , 613 N.E.2d 225, …
discussed Cited as authority (rule) State v. Hopkins
Ohio Ct. App. · 2013 · confidence medium
As appellant's underlying case was closed and there was nothing pending at the time State v. Johnson, 128 Ohio St.3d 153 , 2010-Ohio-6314 , was released by the Ohio Supreme Court, this court must apply the pre- Johnson allied offense analysis set forth in State v. Nicholas, 66 Ohio St.3d 431, 434 (1993).
cited Cited as authority (rule) State v. Wine
Ohio Ct. App. · 2012 · confidence medium
State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
discussed Cited as authority (rule) State v. Jones
Ohio Ct. App. · 2012 · confidence medium
Nor has he shown prejudice as a result of his counsel’s failure to retain an independent DNA expert. “[T]he failure to call an expert and instead rely on cross- examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993).
discussed Cited as authority (rule) Bryant v. State
Ala. Crim. App. · 2011 · confidence medium
Additionally, we point out that “ ‘ “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” ’ ” Davis v. State, 44 So.3d 1118, 1136 (Ala.Crim.App.2009) (quoting State v. Hartman, 93 Ohio St.3d 274, 299 , 754 N.E.2d 1150, 1177 (2001), quoting in turn State v. Nicholas, 66 Ohio St.3d 431, 436 , 613 N.E.2d 225, 230 (1993)). “ ‘ “[H]ow to deal with the presentation of an expert witness by the opposing side, including whether to present counter expert testimony, to rely upon cross-examination, to forego [sic] cro…
discussed Cited as authority (rule) Davis v. State
Ala. Crim. App. · 2009 · confidence medium
However, “‘[T]he failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.’” State v. Hartman, 93 Ohio St.3d 274, 299 , 754 N.E.2d 1150, 1177 (2001), quoting State v. Nicholas, 66 Ohio St.3d 431, 436 , 613 N.E.2d 225, 230 (1993).
cited Cited as authority (rule) State v. Williams, Unpublished Decision (9-22-2000)
Ohio Ct. App. · 2000 · confidence medium
If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses." Id. at 434.
discussed Cited "see" State v. Stevens (2×)
Ohio Ct. App. · 2023 · signal: see · confidence high
See State v. Nicholas, 66 Ohio St.3d 431 , 613 N.E.2d 225, 435 . {¶ 128} In this case, however, T.S. testified that appellant performed oral sex on him 150 times, and that he used his hands, his mouth, and the artificial vagina on T.S.’s penis in at least six different locations.
discussed Cited "see" State v. Lykins (2×)
Ohio Ct. App. · 2019 · signal: accord · confidence high
Cuyahoga No. 107186, 2019-Ohio-1134 , 2019 WL 1417862 , ¶ 70; accord State v. Nicholas, 66 Ohio St.3d 431, 435 , 613 N.E.2d 225 (1993) (stating that vaginal intercourse, cunnilingus, and digital penetration are “three separate crimes involving distinct sexual activity. * * * Since each constitutes a separate crime with a separate animus, they do not constitute allied offenses of similar import.”); State v. Peace, 11th Dist.
discussed Cited "see" State v. Berry
Ohio Ct. App. · 2017 · signal: see · confidence high
See State v. Nicholas, 66 Ohio St.3d 431, 435 (1993) (holding that three rape charges arising from vaginal intercourse, cunnilingus, and digital penetration of the vagina did not merge because they were based on separate conduct).
discussed Cited "see" State v. Simmons (2×)
Ohio Ct. App. · 2014 · signal: see · confidence high
See State v. Nicholas, 66 Ohio St.3d 431, 436 , 613 N.E.2d 225 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11 , 514 N.E.2d 407 (1987). {¶100} Failure to Demonstrate Prejudice.
discussed Cited "see" State v. Roark
Ohio Ct. App. · 2013 · signal: see · confidence high
See State v. Nicholas, 66 Ohio St.3d 431 (1993). {¶ 29} Appellant's first assignment of error is overruled. {¶ 30} Assignment of Error No. 2: {¶ 31} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT WHEN IT INTERFERED WITH AND QUESTIONED THE STATE'S KEY WITNESS. {¶ 32} Appellant next argues that the trial court improperly questioned a state witness, thereby prejudicing his rights and depriving him of due process and a fair trial.
discussed Cited "see" State v. Jillson (2×)
Ohio Ct. App. · 2012 · signal: see · confidence high
See State v. Nicholas, 66 Ohio St.3d 431, 435 , 613 N.E.2d 225 (1993).
discussed Cited "see" State v. Drummonds (2×)
Ohio Ct. App. · 2011 · signal: see · confidence high
See State v. Nicholas (1993), 66 Ohio St.3d 431, 434-435 , 613 N.E.2d 225 ; State v. Gowdy (June 26, 1998), 1st Dist.
discussed Cited "see" State v. Mitchell, 88977 (11-21-2007) (2×)
Ohio Ct. App. · 2007 · signal: see · confidence high
See State v. Nicholas (1993), 66 Ohio St.3d 431 , 436 , 613 N.E.2d 225 .
discussed Cited "see" State v. Haddox, Unpublished Decision (11-20-2006) (2×)
Ohio Ct. App. · 2006 · signal: see · confidence high
See State v. Nicholas (1993), 66 Ohio St.3d 431 , 435 , 613 N.E.2d 225 , 229 ; State v. Hill (1992), 64 Ohio St.3d 313 , 332 , 595 N.E.2d 884 , 899-900 ; State v. Jells (1990), 53 Ohio St.3d 22 , 33 , 559 N.E.2d 464 , 475 ; Newark v. Vazirani (1990), 48 Ohio St.3d 81 , 83-84 , 549 N.E.2d 520 , 522 ; State v. Powell (1990), 49 Ohio St.3d 255 , 262 , 552 N.E.2d 191 , 199 .' {¶ 69} "In Logan , we held that an offender must demonstrate the state's reliance on the same conduct to prove multiple charges before gaining the protection of R.C. 2941.25". 104 Ohio St.3d 293 , 296-297 , 2004-Ohio-6553 at…
discussed Cited "see" State v. Carter, Unpublished Decision (11-21-2005) (2×)
Ohio Ct. App. · 2005 · signal: see · confidence high
See State v. Nicholas (1993), 66 Ohio St.3d 431 , 435 , 613 N.E.2d 225 , 229 ; State v. Hill (1992), 64 Ohio St.3d 313 , 332 , 595 N.E.2d 884 , 899-900 ; State v. Jells (1990), 53 Ohio St.3d 22 , 33 , 559 N.E.2d 464 , 475 ; Newark v. Vazirani (1990), 48 Ohio St.3d 81 , 83-84 , 549 N.E.2d 520 , 522 ; State v. Powell (1990), 49 Ohio St.3d 255 , 262 , 552 N.E.2d 191 , 199 . {¶ 15} In this case, the misconduct in Champaign County and Wyandot County, respectively, may be compared factually as follows: On May 12, 2004, Defendant, Vada T.
discussed Cited "see" State v. Williams, Unpublished Decision (7-21-2005) (2×)
Ohio Ct. App. · 2005 · signal: see · confidence high
See State v. Nicholas (1993), 66 Ohio St.3d 431 , 435 , 613 N.E.2d 225 , 229 ; State v. Hill (1992), 64 Ohio St.3d 313 , 332 , 1992-Ohio-43 , 595 N.E.2d 884 , 899-900 ; State v. Jells (1990), 53 Ohio St.3d 22 , 33 , 559 N.E.2d 464 , 475 ; Newark v. Vazirani (1990), 48 Ohio St.3d 81 , 83-84 , 549 N.E.2d 520 , 522 ; State v. Powell (1990), 49 Ohio St.3d 255 , 262 , 552 N.E.2d 191 , 199." (Footnote omitted.) State v. Jones, supra at 14. {¶ 35} R.C. 2905.01 governs the crime of kidnapping and provides as follows: {¶ 36} "(A) No person, by force, threat, or deception, or, in the case of a victim …
The State of Ohio, and Cross-Appellee
v.
Nicholas, and
No. 92-194.
Ohio Supreme Court.
Jun 16, 1993.
613 N.E.2d 225
Timothy A. Oliver, Warren County Prosecuting Attorney, JoAnne V. Hash and Joan Robinson, Assistant Prosecuting Attorneys, for appellant and crossappellee., Scott Nicholas, pro se, for appellee., James Kura, Ohio Public Defender, Barbara A. Farnbacher and Kenneth R. Spiert, Assistant Public Defenders, for cross-appellant., David L. Landefeld, urging reversal on appeal for amicus curiae, Ohio Prosecuting Attorneys Association., K. Ronald Bailey and Barry W. Wilford, urging reversal on cross-appeal for amicus curiae, Ohio Association of Criminal Defense Lawyers.
Douglas, Moyer, Pfeifer, Resnick, Sweeney, Wright.
Cited by 255 opinions  |  Published
4 passages pin-cited by 4 cases
Pinpoint authority: #24,929 of 633,719
Citer courts: Ohio Court of Appeals (4) · N.D. Ohio (2)
Per Curiam.

[*434] I

The appellate court below concluded that the one count of vaginal rape, the one count of oral rape and the one count of digital felonious sexual penetration charged in the indictment of appellee are allied offenses of similar import which dictate the imposition of only one sentence with respect to all three counts. R.C. 2941.25 governs this issue. It provides:

“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

“(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”

In State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d 816, this court set forth a two-step analysis in determining whether multiple crimes for which a defendant is charged constitute allied offenses of similar import. The test proceeds as follows:

“In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant’s conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.” (Emphasis sic and citations omitted.) 38 Ohio St.3d at 117, 526 N.E.2d at 817.

Appellee was convicted of two violations of R.C. 2907.02 (i.e., vaginal and oral rape). R.C. 2907.02(A)(2) provides:

“No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.”

“Sexual conduct” is defined in R.C. 2907.01(A):

“ ‘Sexual, conduct’ means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”

Additionally, appellee was convicted of one violation of R.C. 2907.12 (i.e., digital felonious sexual penetration). R.C. 2907.12(A)(2) provides:

[*435] “No person without privilege to do so shall insert any part of the body, or any instrument, apparatus, or other object into the vaginal or anal cavity of another when the offender purposely compels the other person to submit by force or threat of force.”

Applying the holding of this court in Blankenship to the crimes with which appellee is charged, we find that they are not allied offenses of similar import. With respect to the two counts of rape, it is clear that the distinct elements of oral and vaginal rape do not “correspond to such a degree that the commission of one crime will result in the commission of the other.” Commission of oral rape will not constitute commission of vaginal rape. The converse is likewise true. Thus, regarding the two counts of rape, appellee has failed to satisfy the first step of the test in Blankenship.

With respect to the count charging a violation of R.C. 2907.12(A)(2), it is apparent that the elements which constitute a violation of this provision can, under certain circumstances, correspond to the elements which constitute a violation of R.C. 2907.02(A)(2). That is, where the body part, the insertion of which constitutes a violation of R.C. 2907.12(A)(2), is the penis or the tongue of the offender, such acts would also constitute violations of R.C. 2907.-02(A)(2), inasmuch as they would likewise amount to vaginal rape {i.e., intercourse) and oral rape (i.e., cunnilingus), respectively. Thus, appellee has satisfied the first step of the Blankenship analysis with respect to allied offenses of similar import.

However, appellee must also demonstrate that his conduct was such that the crimes were not committed separately or with a separate animus. Thus, if appellee had engaged in one act of vaginal intercourse and was charged under both statutes, it could not be contended by the state that appellee committed separate crimes or had a separate animus. That is not the situation in the present case. Appellee was charged with three separate crimes involving distinct sexual activity: vaginal intercourse, cunnilingus, and digital penetration of the vaginal cavity of Stephanie. Since each constitutes a separate crime with a separate animus, they do not constitute allied offenses of similar import.

II

Appellee cross-appealed the judgment of the court of appeals affirming the trial court’s admission of evidence linking the DNA properties of his blood with that possessed by semen found on Stephanie’s shorts. It is the contention of appellee that such evidence should not have been admitted. At the outset, it is important to recognize that appellee did not object to such evidence at trial. He has therefore waived the issue for purposes of appellate[*436] review. Accordingly, consideration of the propriety of its admission must be considered, if at all, under the plain-error rule. In State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899, this court observed:

“Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. See, e.g., State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus; State v. Greer (1988), 39 Ohio St.3d 236, 252, 530 N.E.2d 382, 401.”

Appellee contends on cross-appeal that the admission of the DNA evidence in the case at bar incorrectly identified him as the perpetrator of the sexual assaults on Stephanie. However, there existed independent evidence separate and apart from the DNA testimony linking him with the crime. The victim was able to audibly and visually identify appellee as the assailant. Appellee’s use of the words “Hammer time” both the night before and the morning of the crime also connected him to the assault. Finally, the presence of the hair of the victim in the front seat of appellee’s vehicle further corroborated Stephanie’s testimony. Accordingly, the admission of the DNA evidence, even if erroneous, did not affect the outcome of the trial.

Appellee additionally contends that the failure of his trial attorney to object to the admission of the DNA evidence and to elicit the testimony of a DNA expert on his behalf constituted ineffective assistance of counsel. In State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373, 379, this court announced the following test with respect to determining whether there has been ineffective assistance of counsel:

“ ‘When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel’s essential duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel’s ineffectiveness.’ State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910 [98 S.Ct. 3135, 57 L.Ed.2d 1154]. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].”

Judged by the foregoing standard, it is apparent that the claim of appellee regarding ineffective assistance of counsel is without merit. As an initial matter, the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel. State v. Thompson (1987), 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407, 417. Second, this court has held that[*437] DNA results constitute reliable evidence. State v. Pierce (1992), 64 Ohio St.3d 490, 501, 597 N.E.2d 107, 115. Accordingly, the failure to challenge the admissibility of such evidence cannot be considered ineffective assistance of counsel. Finally, assuming that the advocacy of counsel was somehow deficient, such deficiency constitutes reversible error only where it prejudices the rights of the criminal defendant. As we observed earlier, there was a considerable body of other evidence which identified appellee as the assailant in the present case. Accordingly, even if the DNA evidence were excluded, there was sufficient additional evidence from which the jury could have concluded that appellee committed the crimes at issue. His claim regarding the ineffective assistance of counsel must therefore fail.

For the foregoing reasons, that aspect of the judgment of the court of appeals which held that the two counts of rape and one count of felonious sexual penetration were allied offenses of similar import is reversed, and its judgment rejecting the challenge to appellee’s convictions based on the admission of the DNA evidence is affirmed. The cause is therefore remanded to the trial court for reinstatement of judgment.

Judgment reversed in part, affirmed in part and cause remanded.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.