State v. SmithState v. Smith
JUDGMENT: AFFIRMED IN PART; VACATED IN PART; AND REMANDED
RELEASED AND JOURNALIZED: December 21, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Christine M. Vacha, Assistant Prosecuting Attorney, for appellee.
Susan J. Moran, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Antonio Smith (“Smith“), appeals from his convictions following a jury trial. He raises the following assignments of error for review:
The trial court erred in denying Smith‘s motion for acquittal pursuant to Crim.R. 29 when the state failed to submit sufficient evidence for the crimes charged, denying the appellant due process. - Smith‘s convictions are against the manifest weight of the evidence depriving Mr. Smith of due process under the law.
- The trial court erred when it failed to dismiss the gross sexual imposition conviction contained in Count 5 as being allied to the gross sexual imposition charge in Count 6, and thus violated Mr. Smith‘s rights under
R.C. 2941.25 (allied offenses) and the double jeopardy clause of Art. I., Section 10, Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
{¶ 2} After careful review of the record and relevant case law, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
I. Procedural and Factual History
{¶ 3} On October 16, 2020, Smith was named in a 23-count indictment, charging him with two counts of rape in violation of
{¶ 4} Counts 1-13 corresponded to alleged incidents of sexual assault involving Smith‘s sister, Jane Doe 1 (d.o.b. 1998). Counts 14-17 corresponded to
{¶ 5} The matter proceeded to a jury trial on August 24, 2022, where the following relevant facts were adduced.
{¶ 6} Smith, now 27 years old, is the oldest of 12 siblings, including his younger sisters, Jane Doe 1 and Jane Doe 2. As a child, Smith would often spend the night at his paternal grandmother‘s home with his siblings and cousins. During these occasions, a group of ten children or more would sleep in the common area of his grandmother‘s home.
{¶ 7} Jane Doe 1 was 24-years old at the time of trial. She testified that when she was growing up, she shared a “typical brother and sister relationship” with Smith. (Tr. 413.) Their relationship changed, however, when Smith began to engage in inappropriate behavior beginning when Jane Doe 1 was approximately nine or ten years old. Jane Doe 1 explained the first inappropriate encounter as follows:
The first thing that I remember is I remember I was asleep, we were on the floor in my grandma‘s living room, I remember feeling [Smith] pull my pubic hairs. It was like a tug at it. When I woke up, I‘m like confusion, what‘s going on. He was like, oh, I just wanted to see if that hurts.
(Tr. 414-415.)
{¶ 8} Jane Doe 1 testified that her relationship with Smith “went downhill” after this first encounter. During a subsequent sleepover at their grandmother‘s
[A]nd I remember waking up and again, he was touching me, touching my private areas, and like I could feel him like playing with himself as he was touching me.
(Tr. 425.) Jane Doe 1 testified that Smith rubbed her inappropriately again the following night. On this occasion, Jane Doe 1 believed that Smith was “trying to put himself inside of [her].” (Tr. 427.) Shortly thereafter, Jane Doe 1 felt Smith ejaculate.
{¶ 9} According to Jane Doe 1, the abuse continued until she was approximately 18 or 19 years old. Jane Doe 1 admitted that she did not tell anyone about Smith‘s conduct when it first began because she was scared and was worried no one would believe her. She recalled disclosing Smith‘s conduct to one of her cousins. However, they did not tell an adult out of fear of getting in trouble.
{¶ 10} In 2020, Jane Doe 1 was having a conversation with her younger sister, Jane Doe 2, and asked whether Jane Doe 2 had ever been touched inappropriately before. At that time, Jane Doe 2 disclosed that Smith had engaged in such conduct with her when she was younger. Jane Doe 1 later had a similar conversation with her cousin, Jane Doe 3, who similarly stated that Smith had touched her inappropriately during sleepovers at their grandmother‘s home. Based
{¶ 11} Jane Doe 2 was 15 years old at the time of trial. She testified that when she was younger, she and her siblings would have sleepovers at their grandmother‘s home. When Jane Doe 2 was 13 years old, she was watching television on the floor in her grandmother‘s home when Smith touched her legs and ran his hand up to her “butt and [her] private.” (Tr. 623-624.) Jane Doe 2 explained that Smith touched her butt and the outside of her vagina while his hand was under her clothes. Jane Doe 2 testified that she did not react or tell anyone about the incident because she was scared of her older brother. On a separate occasion, Jane Doe 2 was sleeping on the couch when she awoke to Smith touching her legs and private area. (Tr. 626-627.) Again, Jane Doe 2 did not tell Smith to stop. Nor did she immediately tell anyone about his conduct. Jane Doe 2 maintained, however, that she told her sister, Jane Doe 1, about the inappropriate touching “a couple months” after the second incident occurred. (Tr. 628.) Jane Doe 2 stated that no member of her family was directing her testimony or otherwise telling her what to say about Smith.
{¶ 12} Smith‘s cousin, Jane Doe 3, who was 28 years old at the time of trial, testified that in 2020, she fell asleep with Smith on a couch located in their grandmother‘s home. At some point, Jane Doe 3 woke up and felt Smith “touching” her. (Tr. 668.). Jane Doe 3 nudged Smith and told him to move over because he was too close. Jane Doe 3 fell back asleep but later awoke with Smith “on top of [her].” (Tr. at id.) Jane Doe 3 testified that she pushed Smith off of her and
{¶ 13} Smith‘s paternal aunt, Jane Doe 4, confirmed that it was common for Smith, his siblings, and his cousins to spend the night at their grandmother‘s house during weekends or summer breaks. In 2019 or 2020, Jane Doe 4 was sleeping next to Smith on the living room couch when she felt Smith touching her in between her legs. Jane Doe 4 testified that Smith continued to move his hands between her legs each time she attempted to move away from him. Jane Doe 4 stated that Smith‘s conduct made her feel uncomfortable. However, she did not disclose the incident to anyone until she learned that Smith had engaged in similar conduct with her nieces, Jane Doe 1 and Jane Doe 2
{¶ 14} Detective Kevin Smith (“Det. Smith“), of the Cleveland Police Department sex-crimes unit, testified that he was assigned to investigate the allegations of sexual abuse levied against Smith. In the course of his investigation, Det. Smith separately interviewed Smith as well as the alleged victims, Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4. Det. Smith testified that Smith denied the allegations of sexual abuse “which is obviously very common in interviewing a suspect.” (Tr. 723.)
{¶ 16} Smith testified on his own behalf. He confirmed that he frequently stayed at his grandmother‘s home and often had sleepovers with his siblings and cousins. Smith, however, adamantly denied engaging in any type of sexual contact with any of his family members, “whether it was at his grandmother‘s home or not.” (Tr. 894.) Smith testified that he first learned about the allegations when his father confronted him, and subsequently held him at gunpoint, in October 2020. Smith stated that prior to October 2020, “nobody had made any suggestion that [he] had done anything inappropriate.” (Tr. 903.) Smith testified that he was surprised to learn of the allegations, particularly when he, Jane Doe 1, and Jane Doe 3 went on vacation together in August 2019, and “carried on as usual” when they returned from their trip. (Tr. 905.)
{¶ 18} On October 13, 2022, Smith was sentenced to a three-year period of community-control sanctions. He was classified as a Tier II sex offender.
{¶ 19} Smith now appeals from his convictions.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 20} In the first assignment of error, Smith argues the trial court erred when it denied his motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to support his convictions.
{¶ 21} Crim.R. 29(A) provides that a court “shall order the entry of the judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion
{¶ 22} A sufficiency challenge requires a court to determine whether the state has met its burden of production at trial and to consider not the credibility of the evidence but whether, if credible, the evidence presented would sustain a conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 23} “Proof of guilt may be made by circumstantial evidence, real evidence, and direct evidence, or any combination of the three, and all three have equal probative value.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 35 (8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 18. Although circumstantial evidence and direct evidence have obvious differences, those differences are irrelevant to the probative value of the evidence, and circumstantial evidence carries the same weight as direct evidence. Id., citing State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Further, circumstantial evidence is not only sufficient, ““but may also be more certain,
{¶ 24} In this case, Smith was convicted of four counts of gross sexual imposition in violation of
No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
* * *
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
(5) The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.
{¶ 25} As previously stated, former Count 13 related to conduct committed against Jane Doe 1, and alleged, pursuant to
{¶ 26} As applicable to each conviction,
[i]n determining whether sexual contact occurred, the trier of fact may infer from the evidence presented at trial whether the defendant‘s contact with the areas of the body outlined in
R.C. 2907.01 was for thepurpose of sexual arousal or gratification. Tate at ¶ 19; State v. Cobb, 81 Ohio App.3d 179, 185, 610 N.E.2d 1009 (9th Dist.1991). The purpose of the contact may be inferred from the type, nature, and circumstances of the contact. Tate at ¶ 20, citing Meredith; see also Ohio v. Coleman, 8th Dist. Cuyahoga No. 102291, 2015-Ohio-4491, ¶ 7 (finding that purpose may also be inferred from the defendant‘s conduct as well as his or her personality). Accordingly, “[i]f the trier of fact determines that the defendant was motivated by desires of sexual arousal or gratification, and that the contact occurred, then the trier of fact may conclude that the object of the defendant‘s motivation was achieved.” Cobb at 185.
State v. Fears, 8th Dist. Cuyahoga No. 104868, 2017-Ohio-6978, ¶ 65.
{¶ 27}
{¶ 28} On appeal, Smith argues the “state failed to establish the essential element of force for all four counts” of gross sexual imposition. Smith further
{¶ 29} Preliminarily, we note that, contrary to Smith‘s assertion on appeal, the state was not required to prove the element of force for each gross-sexual-imposition conviction. The element of force only pertained to the allegations levied in former Counts 14 and 16. As previously discussed,
{¶ 30} After careful review of the record, we find the state presented sufficient evidence to support each of Smith‘s convictions. In this case, Jane Doe 1 extensively outlined the pattern of abuse Smith engaged in during sleepovers at their grandmother‘s home. As it pertains to the allegations contained in former Count 13 of the indictment, Jane Doe 1 testified that when she was between the ages of nine to eleven years old, she remembered waking up in the middle of the night to Smith “feeling on [her] butt and kind of rubbing [her] private area.” (Tr. 419.) Jane Doe 1 explained that Smith “caress[ed] [her] butt” and then started “touching [her] down there.” (Tr. 419.) Jane Doe 1 testified that this incident only involved inappropriate touching, although she maintained that Smith‘s conduct subsequently “changed from touching to something different.” (Tr. 420.) Given the type, nature, and
{¶ 31} Jane Doe 2 similarly testified that Smith touched her inappropriately over a span of several weeks during sleepovers at their grandmother‘s home. As it relates to the allegations of force or threat of force contained in former Counts 14 and 16, Jane Doe 2 testified that on separate occasions in 2020, Smith touched her buttocks and the outside of her vagina. On each occasion, Smith manipulated Jane Doe 2‘s clothing to touch her private area. (Tr. 624, 627.) Jane Doe 2 stated that she did not tell Smith to stop because she was “scared” of him because “he‘s older than [her].” (Tr. 624.) Jane Doe 2, who was 13 years old at the time of the incidents, explained that she looked up to her then 25-year old brother and viewed him as a “father figure.” (Tr. 634.) Given the nature of Smith‘s relationship with Jane Doe 2 and the disparity in their ages and sizes, we find a reasonable juror could have concluded that Smith manipulated his position of trust to overcome Jane Doe 2‘s will by fear or duress. See Eskridge, 38 Ohio St.3d at 59, 526 N.E.2d 304 (the force need not be overt or physically brutal and that subtle or psychological pressure can cause a child victim to be overcome by fear or duress.); State v. Scott, 8th Dist. Cuyahoga No. 110744, 2022-Ohio-2768, ¶ 41, citing State v. Milam, 8th Dist. Cuyahoga No. 86268, 2006-Ohio-4742, ¶ 11 (13-year-old victim); State v. Dye, 82 Ohio St.3d 323, 326, 695 N.E.2d 763 (1998).
{¶ 33} Viewing the foregoing evidence in a light most favorable to the state, we find the essential elements of
{¶ 34} The first assignment of error is overruled.
B. Manifest Weight of the Evidence
{¶ 35} In the second assignment of error, Smith argues his convictions are against the manifest weight of the evidence. Smith contends that Jane Doe 1‘s testimony lacked credibility given her reputation for untruthfulness and her willingness to socialize with him after the alleged instances of sexual abuse occurred. Smith similarly argues that Jane Doe 2‘s testimony lacked credibility where she
{¶ 36} When considering an appellant‘s claim that a conviction is against the manifest weight of the evidence, the appellate court functions as a “thirteenth juror” and may disagree “with the factfinder‘s resolution of * * * conflicting testimony.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the entire record, weighs the evidence and all reasonable inferences that may be drawn therefrom, considers the witnesses’ credibility and determines whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the “exceptional case in which the evidence weighs heavily against the conviction.” Id., quoting Martin at 175.
{¶ 37} A trier of fact is free to believe all, some, or none of the testimony of each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649, 2019-Ohio-528, ¶ 100. Thus, “[a] conviction is not against the manifest weight of the evidence simply because the jury believed the testimony of the state‘s witnesses and disbelieved the defendant.” Id.
{¶ 40} The second assignment of error is overruled.
C. Allied Offenses of Similar Import
{¶ 41} In the third assignment of error, Smith argues the trial court erred by failing to merge his two convictions for gross sexual imposition as charged in former Counts 16 and 17 of the indictment. Smith contends that the two offenses arose from the same incident and, therefore, were allied offenses of similar import.
{¶ 42} Pursuant to
[w]here 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.
{¶ 43} In determining whether offenses are subject to merger for sentencing under
{¶ 44} Offenses are dissimilar in import or significance within the meaning of
{¶ 45} Offenses are committed separately within the meaning of
{¶ 47} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{¶ 48} We review de novo whether certain offenses should be merged as allied offenses under
{¶ 50} Accordingly, we sustain Smith‘s third assignment of error as to former Counts 16 and 17. The sentences imposed on these counts are vacated, and the case is remanded for resentencing. On remand, the state has the right to elect which offense to pursue at sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 21.
{¶ 51} Judgment affirmed in part, sentence vacated in part. The matter is remanded to the trial court for the court to merge the allied offenses of similar import before resentencing Smith on the count elected by the state, and to issue a
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence, resentencing, and the issuance of a nunc pro tunc entry..
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and LISA B. FORBES, J., CONCUR