State v. Smith
2017 Ohio 9283
| Ohio Ct. App. | 2017Background
- On Aug. 23–26, 2015, incidents at a Columbus gym: Smith allegedly shouted anti-gay epithets, charged after patron Michael Harris, and later sent threatening emails to gym owner Dana Rocco. Police responded and Smith's membership was terminated.
- Smith was charged with five misdemeanors (assault, two counts of aggravated menacing, ethnic intimidation, and disorderly conduct); one aggravated-menacing count was dismissed before verdict.
- At trial, key witnesses were Harris (victim), gym employee Laverne Kemp (who heard Smith's anti-gay statements and restrained him), gym owner Rocco (received threats and emails), and Detective Larry Wilson (investigator). Kemp mentioned Smith had been in prison; defense objected.
- Jury convicted Smith of aggravated menacing (one count), ethnic intimidation, and disorderly conduct; acquitted/no verdict on other assault count.
- On appeal Smith raised sufficiency/weight, hearsay/Confrontation, improper admission of prior-bad-act/character evidence, improper opinion testimony from detective, and jury-instruction error for ethnic intimidation.
- Appellate court: affirmed aggravated menacing conviction; vacated convictions for ethnic intimidation and disorderly conduct and remanded for new trial as to those counts because of prejudicial evidence and witness-credibility bolstering errors; other challenges overruled or rendered moot.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Sufficiency/manifest weight of evidence for menacing/ethnic-intimidation/disorderly conduct | Evidence (Harris’s fear, Kemp’s account of anti-gay epithets, Rocco’s emails/response) sufficed to prove elements and motive | Evidence insufficient; hearsay and credibility problems undermine convictions; First Amendment challenge to ethnic-intimidation statute | Sufficiency and weight challenges overruled as to aggravated menacing; ethnic-intimidation and disorderly-conduct convictions vacated for other trial errors; First Amendment challenge rejected |
| Admissibility of Rocco recounting Scott’s report of Smith’s mass-shooting threat (hearsay) | Statements admissible as non-hearsay verbal act/party-opponent and Scott→Rocco layer admissible as excited utterance | Statements were inadmissible hearsay violating Confrontation/Evidence rules | Admissibility sustained: threat was verbal act/party-opponent and Scott’s report qualified as excited utterance |
| Admission of Kemp’s statement that Smith had served time in prison (other-acts/character evidence) | Prosecutor argued admission was party-opponent admission and relevant to demeanor/intent | Statement was irrelevant, prejudicial prior-bad-act evidence in violation of Evid.R. 404(B) | Trial court erred: statement was irrelevant and prejudicial; error was not harmless as to ethnic-intimidation and disorderly-conduct counts but harmless as to aggravated menacing |
| Detective Wilson’s opinion testimony about Kemp’s credibility and not needing to interview Smith (improper lay opinion) | City concedes some statements improper but argues harmless or plain error only for unobjected remarks | Testimony improperly bolstered witness credibility and infringed jury’s role; prejudicial to Smith’s right to fair trial | Error in admitting Wilson’s credibility opinions; prejudicial with respect to ethnic-intimidation and disorderly-conduct convictions (vacated), but not to aggravated menacing (affirmed) |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (distinguishes sufficiency and manifest-weight standards)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sufficiency standard for criminal convictions)
- State v. Duncan, 53 Ohio St.2d 215 (1978) (test for excited-utterance hearsay exception)
- State v. Wyant, 68 Ohio St.3d 162 (1994) (upholding Ohio ethnic-intimidation law)
- State v. Morris, 141 Ohio St.3d 399 (2014) (harmless-error framework for erroneously admitted Evid.R. 404(B) evidence)
- State v. Fisher, 99 Ohio St.3d 127 (2003) (harmless-error analysis requirements)
- State v. DeHass, 10 Ohio St.2d 230 (1967) (credibility and weight of evidence are jury functions)
- State v. Eastham, 39 Ohio St.3d 307 (1988) (lay witness may not opine on another witness’s veracity)