State v. Davis
2017 Ohio 2916
Ohio Ct. App.2017Background
- Victim (TS), age 14, babysat at defendant Untario Davis’s home on Aug 27–28, 2016; she testified Davis solicited her multiple times and showed an explicit image and asked to "lick [her] privates."
- TS reported the incidents to her father the next morning; police charged Davis with importuning (R.C. 2907.07(B)(1)) on Aug 29, 2016.
- At trial the defense suggested in opening that Davis would testify and that evidence would show he wasn’t present at the times alleged, but Davis did not testify.
- The jury convicted Davis of importuning and found a prior sexually oriented-offense conviction; Davis was sentenced and appealed.
- On appeal Davis raised five issues: manifest-weight/sufficiency of evidence, ineffective assistance of counsel, fair-cross-section (jury composition), prosecutorial misconduct in closing, and cumulative error. The Third District affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Sufficiency / manifest weight of evidence (importuning) | State: TS’s testimony and court-admitted records establish each statutory element (solicitation, ages, prior conviction). | Davis: TS’s testimony contained inconsistencies (timing, presence of others) making conviction against manifest weight/sufficient evidence lacking. | Held: Evidence was sufficient; alleged inconsistencies were peripheral and jurors could reasonably credit TS—no manifest miscarriage of justice. |
| Ineffective assistance of counsel | State: Counsel’s choices (opening, short closing, no objection to jury list, no objection to prosecutor) were tactical and reasonable. | Davis: Counsel promised Davis would testify but he did not; brief closing; failed to object to jury pool composition and prosecutor’s closing—prejudiced defense. | Held: No deficient performance established; tactical decisions and no prejudice shown under Strickland. |
| Fair-cross-section / jury pool | State: County draws venires from voter registration lists—constitutionally acceptable; defendant produced no data of underrepresentation or systematic exclusion. | Davis: Jury pool lacked representative sample of African-Americans because it was drawn from voter registration lists. | Held: Duren test not satisfied (no evidence of underrepresentation or systematic exclusion); defendant waived plain error by not objecting; precedent upholds voter-list venires. |
| Prosecutorial misconduct (closing) | State: Prosecutor may comment on defense theory and inferences from evidence; remarks did not point to or penalize defendant’s decision not to testify. | Davis: Prosecutor’s comment that there was "nothing" showing Davis wasn’t there improperly invited jurors to infer from Davis’s silence that he was guilty (Fifth Amendment concern). | Held: Remarks were proper response to defense theory, not an improper comment on defendant’s silence; no prejudice and not plain error. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishing sufficiency and manifest-weight standards)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency of evidence in criminal convictions)
- Duren v. Missouri, 439 U.S. 357 (U.S. 1979) (three-prong fair-cross-section test for jury venires)
- Taylor v. Louisiana, 419 U.S. 522 (U.S. 1975) (right to jury drawn from representative cross-section)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- State v. Yarbrough, 95 Ohio St.3d 227 (Ohio 2002) (voter-registration lists as acceptable source for venires)