State v. Davis
2017 Ohio 733
| Ohio Ct. App. | 2017Background
- Virginia Davis was indicted after two incidents of sexual intercourse where she did not disclose her HIV-positive status; charges included multiple counts of felonious assault and one count of falsification.
- Davis entered a Crim.R. 11 plea; she pled guilty to one amended count of felonious assault (the count was amended to include both victims) and the remaining counts were dismissed.
- At sentencing the state said it would seek four years if Davis did not request community control, and four to six years if she did; Davis requested community control.
- The prosecutor stated at sentencing that “those two men have life sentences” because they must undergo periodic HIV testing and face future uncertainty about their health. Defense counsel did not object at the hearing.
- The trial court imposed a seven-year prison term (second-degree felony range) and issued a sentencing entry that mistakenly cited R.C. 2903.11(A)(1)(D) instead of R.C. 2903.11(B)(1),(D).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s remark that the victims “have life sentences” was improper and violated due process | Remark was relevant to seriousness and potential harm to victims; prosecutor sought to explain reason for prison | Remark was baseless, inflammatory, expressed personal belief, and unfairly inflamed the judge | No plain error; remark related to R.C. 2929.12 seriousness factors and was not reversible |
| Whether seven-year sentence was contrary to law or an abuse of discretion | Sentence within statutory range and supported by record; trial court considered relevant statutes | Sentence excessive given no prior record, mitigating factors (pregnancy, mental health), and no known harm to victims | Affirmed: sentence within second-degree felony range and record supports it; not clearly and convincingly contrary to law |
| Whether court should correct clerical error in sentencing entry | N/A (court may correct clerical errors) | Sentencing entry mis-cited statute (A)(1)(D) instead of (B)(1),(D) | Modified sentencing entry to correct statutory citation |
Key Cases Cited
- Barnes v. State, 94 Ohio St.3d 21 (Ohio 2002) (plain-error standard for unobjected-to errors in criminal cases)
- Marcum v. State, 146 Ohio St.3d 516 (Ohio 2016) (appellate review standard for felony sentences; modification only if clearly and convincingly contrary to law)