State v. Smith , 2019 Ohio 5015 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-5015.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28265
:
v. : Trial Court Case No. 2018-CR-1861
:
JUSTIN K. SMITH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 6th day of December, 2019.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
Attorney for Defendant-Appellant
.............
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FROELICH, J.
{¶ 1} Following a bench trial, Justin K. Smith was found guilty of three third-degree
felony counts of sexual battery (coach/scout leader) in violation of R.C. 2907.03(A)(9),
three third-degree felony counts of unlawful sexual conduct with a minor in violation of
R.C. 2907.04(A), and two third-degree misdemeanor counts of sexual imposition in
violation of R.C. 2907.06(A)(4). The trial court merged the unlawful sexual conduct
offenses into the corresponding sexual battery offenses and sentenced Smith to 48
months on each of the three sexual battery offenses, to run consecutively for a total of 12
years in prison.1 Smith appeals from that judgment. The judgment of the trial court will be
affirmed.
Factual and Procedural Background
{¶ 2} In early 2018, 41-year-old Smith was the president of the Southwest Soccer
Club and coached two of that club’s girls’ soccer teams. Among the members of one team
Smith coached were 14-year-old C.B. and Smith’s daughter of the same age, who were
close friends. C.B.’s mother (“Mother”) also had become friends with Smith through years
of coaching their daughters’ soccer teams together. Due to the two girls’ friendship, C.B.
slept over at the Montgomery County home of Smith, his wife, and their three children on
a monthly or more frequent basis.
{¶ 3} On March 27, 2018, Mother dropped C.B. at a soccer training session run by
a paid trainer. While waiting for the training to end, Mother looked through C.B.’s iPhone,
which she (C.B.) had left in the car. Mother found a series of “emotionally explicit” and
1
The court also sentenced Smith to 60 days of local incarceration on each of the
misdemeanor sexual imposition offenses, to run concurrent with his other sentences.
Smith has not appealed that aspect of the court’s judgment.
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“sexually explicit” text messages between C.B. and Smith. Mother texted Smith, telling
him that she had C.B.’s phone and asking, “Oh, my God, what have you done[?]” Smith
replied “with the word ‘what’ and a question mark,” to which Mother did not respond.
{¶ 4} When C.B. returned to the car and Mother told C.B. that she (Mother) had
looked through the phone, C.B. “broke down in immediate hysterics.” After questioning
C.B., Mother drove home and told her husband (“Father”) what she had discovered.
Mother and Father spoke privately with C.B., then discussed how to proceed. They
confiscated C.B.’s iPhone and canceled her activities for the coming week of spring break.
Mother and Father then had a telephone conversation with Smith in which they
“threatened * * * to go to the authorities and the soccer board should he attempt to contact
[C.B.] again.” They also demanded that Smith step down from coaching. As to why they
did not go to the police at that time, Mother explained:
We live in an extremely small town * * *
* * * [W]e thought the blowback on [C.B.], stigma, * * * would be something
that she could not escape and we thought it best that we attempt to control
the situation within the confines of our own home with our own rules put in
place * * *
(Tr., p. 119.)
{¶ 5} The following day, Smith sent “an apology text” to Mother, “begging for mercy
and asking that [Mother and Father] still allow him to coach.”2 When Mother rejected his
2
Copies of Smith’s apology were admitted into evidence at trial as State’s Exhs. 4 and
4A.
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plea, however, Smith resigned his coaching position before the end of that week. 3
Thereafter, in moments she described as “self-torture,” Mother occasionally scrolled
through C.B.’s text messages, preserving screenshots of “a handful – ten maybe” of the
more recent exchanges between Smith and C.B. and sending them to Mother’s own cell
phone, 4 as a form of “insurance” that Smith would comply with Mother and Father’s
demands. Mother returned C.B.’s iPhone to C.B. on May 6, 2018, so that C.B. would have
it for a school trip to Washington, D.C. later that week. Before doing so, Mother deleted
all of the text messages between Smith and C.B.5
{¶ 6} When Mother went to awaken C.B. on the morning of May 7, 2018, Mother
saw a Samsung cell phone6 that she did not recognize sticking out from beneath C.B.’s
pillow. C.B. at first claimed that the phone must have been left by someone attending her
sister’s birthday party the weekend prior. After demanding and entering the passcode
(which was Smith’s birthday), Mother found text messages from a telephone number that
she immediately recognized as Smith’s. In less than 24 hours between May 5 and May
6, Smith and C.B. had exchanged 3277 text messages. Mother and Father sent C.B. to
3
At trial, the State presented a copy of Smith’s resignation letter as State’s Exh. 7.
4
Printouts of the preserved exchanges were presented into evidence at trial as State’s
Exh. 1.
5
According to Mother, she mistakenly believed that copies of the deleted text messages
would be “backed up to the cloud.” (Tr., p. 133.) She said “hundreds or thousands” of
messages between Smith and C.B were deleted. (Id., p. 140.)
6 The Samsung phone was admitted as State’s Exh. 2.
7The record as to the number of text messages varies between 327 and 326. (See Tr.,
pp. 145, 251, 252, 385.)
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school; Father then called Sergeant Mark Bruner of his township’s police department,
who was the school resource officer for C.B.’s school. Together, Mother and Sgt. Bruner
determined that the text messages deleted from C.B.’s iPhone were not recoverable.
However, Mother gave Sgt. Bruner the Samsung phone and sent him copies of the
screenshots of text messages from C.B.’s iPhone.
{¶ 7} Sgt. Bruner’s police department contacted the Montgomery County Sheriff’s
Office due to jurisdictional issues in the case, and Detective Isaiah Kellar of the Sheriff’s
Office was assigned to investigate the allegations against Smith. Det. Kellar observed
remotely while C.B. went through her initial forensic interview at CARE House8 in Dayton
on May 8, 2018. Det. Kellar described C.B. as “very emotional” during that interview. He
continued:
She was upset, nervous, reluctant. You could tell she did not want to
be there. She cried. She just – her demeanor was not of a child that wanted
to be in that room.
***
* * * [S]he minimized the defendant and said several times I wanted
to do it, I never said no.
(Tr., p. 297.) Det. Kellar said that during that interview, C.B. “said multiple times how much
she loved” Smith. (Id., p. 330.) Nevertheless, according to Det. Kellar, C.B. did disclose
at that time that a sexual relationship existed between her and Smith.
8
As later explained by trial witness Dr. Brenda Miceli, CARE House represents
Montgomery County’s “approach to child abuse,” bringing together five agencies to
provide coordinated mental health and medical services to child victims of sexual abuse.
(Tr., p. 191.)
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{¶ 8} Det. Kellar next interviewed Smith, verified his cell phone number, and
collected Smith’s cell phone, which was sent to the Secret Service laboratory for help in
overriding the password protection feature.9 Det. Kellar identified the screenshots of text
messages provided by Mother and the Samsung phone recovered from C.B. He
confirmed that all text messages on the Samsung phone were to and from Smith’s cell
phone number. He also identified copies of text messages that he was able to extract
from that phone. Det. Kellar determined that the Samsung also contained numerous
images of “sexual positioning” in which C.B.’s nude breasts, vagina, legs, and buttocks
were displayed. Because C.B. had not revealed the existence of those photographs in
her initial forensic interview, Det. Kellar contacted Mother and asked her to bring C.B. to
the Sheriff’s Office for an additional interview, which occurred about a week later in May.
{¶ 9} Det. Kellar testified that, based on his training and experience, the existence
of the nude photographs led him to suspect that “there’s more to [C.B.’s] relationship” with
Smith than C.B. “originally disclosed in the forensic interview.” (Id., p. 303.) He further
indicated that it is common for crime victims to make additional disclosures over the
course of an investigation. According to Det. Kellar, his investigation revealed that the
“showcase” tournament for C.B.’s soccer team took place in Indianapolis from February
23-25, 2018. On cross-examination, Det. Kellar acknowledged that he also conducted a
third, pre-trial interview in which C.B. disclosed yet more information.
{¶ 10} Det. Kellar presented the results of his investigation to the prosecutor’s
9
Because of the password protection, no evidence from Smith’s cell phone was available
at the time of Smith’s trial in this case. On December 31, 2018, however, a new indictment
was issued based on “evidence that was [found] on [Smith’s] phone.” (Tr., pp. 467-468);
see State v. Smith, Montgomery Cty. C.P. No. 2018 CR 4830.
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office. On May 18, 2018, a Montgomery County grand jury indicted Smith on six counts:
two counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), third-
degree felonies (Counts I and II); two counts of sexual battery (coach/scout leader) in
violation of R.C. 2907.03(A)(9), third-degree felonies (Counts III and IV); and two counts
of sexual imposition in violation of R.C. 2907.06(A)(4), third-degree misdemeanors
(Counts V and VI). (Doc. #1 (“Indictment A”).) Subsequently, the indictment was amended
to add one additional count of sexual conduct with a minor and one additional count of
sexual battery (coach/scout leader). (Doc. #62 (“Indictment B”).)
{¶ 11} Smith pled not guilty and was placed on a conditional own recognizance
(“COR”) bond with electronic home detention (“EHDP”). Smith repeatedly moved for a
reduction of the bond order, including removal of the EHDP condition or expansion of his
permitted area of movement. Following a June 28, 2018 hearing, the Court set bond at
$50,000, together with the condition that Smith again be placed on COR with EHDP if he
posted the required surety bond. Smith posted bond the next day.
{¶ 12} A jury trial originally scheduled for October 2, 2018 was continued after
Indictment B was issued on September 28, 2018. On the rescheduled trial date of October
29, 2018, Smith signed a written waiver of jury, and the matter proceeded to a bench trial.
{¶ 13} At trial, Mother and Det. Kellar testified as outlined above. The State also
presented Brenda Miceli, Ph.D., a pediatric psychologist with CARE House at Dayton
Children’s Hospital, as an expert witness in the field of child sexual abuse. Dr. Miceli said
she recently had met with C.B. twice, to perform a psychological evaluation and to begin
therapy that would be ongoing, but not for the purpose of determining whether abuse had
occurred. She also had not been authorized to disclose details of C.B.’s particular case.
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{¶ 14} Generally, Dr. Miceli said that because children are “not able to fully
appreciate the circumstances” of sexual behavior between an adult and a child, consent
is immaterial to child sexual abuse. She said that secrecy and helplessness are typical
components of child sexual abuse. She also explained that adult abusers often are
“somebody who has some amount of authority or power over” the child. Dr. Miceli
described “grooming” as “the process by which the boundaries that are appropriate
become blurred over time.” She said that when sexual abuse is disclosed accidentally
before a child is ready to talk about it, he or she “will oftentimes just deny that anything
occurred.”
{¶ 15} Dr. Miceli testified that children who “are unsure how people will respond
* * * may give bits of information. The types of information they’re more likely to withhold
are things that usually involve more embarrassing acts such as anal sex or oral sex.”
According to Dr. Miceli, “the closer the relationship and the more authority that a person
has over a child the less likely they are to disclose.” She opined that child victims are
more likely to under-disclose than to embellish the details of abuse that occurred.
{¶ 16} C.B. also testified at the trial. She identified Smith as the former coach of
her club soccer team. She said she met Smith through playing soccer when she was
about eight years old, and she became friends with one of Smith’s daughters, who was
C.B.’s age, played on her soccer team, and attended her school. She said she saw the
Smiths frequently and sometimes had sleepovers at their house. C.B. said that she and
Smith began to communicate via text message. At first, “he would just like compliment
me or the way I looked or how I played and eventually there was [sic] a lot of compliments
and over time it led to a different kind of relationship.” (Tr., p. 223.)
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{¶ 17} As C.B.’s team entered the winter “showcase season,” performing before
college coaches, C.B. saw Smith more often and began to go to his house more often.
The text messages between them increased in frequency and “started to just get more
personal” (id., p. 225); “[w]e talked about kissing each other, hugging each other.” (Id., p.
227.) One evening, Smith, his daughter, and C.B. were watching a movie together in
Smith’s basement during a sleepover at Smith’s house. Smith’s daughter fell asleep and
C.B. moved to the other couch to sit next to Smith. She initiated a hug, then “[w]e were
hugging each other. He was touching my legs and my arms.” (Id.) In their texts afterward,
Smith told C.B. “[w]e should’ve kissed.” (Id., p. 228.) C.B. testified that she never had
kissed anyone before, and she felt as though kissing Smith would mean she and he were
“like dating,” an idea she didn’t like.
{¶ 18} C.B. said that when she next spent the night at Smith’s house and Smith’s
daughter again fell asleep on the couch in the basement, Smith “started kissing my cheek
and then kissed my mouth.” (Id., p. 229.) C.B. said there was “more touching the legs and
arms, hugging.” (Id., p. 230.) She said Smith then suggested “that we would be more
comfortable upstairs so we moved up there,” to the bedroom. (Id.) Smith’s wife was not
at home. Although C.B. said she didn’t remember “exactly what happened the next time,”
she said that when she and Smith were not together, they would exchange texts “about
the things that we should do the next time.” (Id., p. 231.) Ultimately, “[h]e and I both
performed oral sex on each other. He fingered me. I gave him a hand job. He’s – touching,
kissing.” (Id.) C.B. stated that Smith touched her “[e]verywhere – boobs, butt, vagina,”
both while clothed and unclothed. (Id., p. 232.) C.B. said that Smith touched both the
outside and the inside of her vagina with his hand. Although she had never performed a
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“hand job” or oral sex before, Smith instructed her by text message on what to do. Pressed
for specifics, she stated that each of them had mouth-to-genitals contact with the other,
and that Smith once ejaculated while she manipulated his penis with her hand.
{¶ 19} C.B. said that to avoid being caught, “usually I would delete my text
messages” each night, “and we would never tell anybody about our relationship or what
was going on between us.” (Id., p. 233.) C.B. testified that Mother found out about the
relationship with Smith in April 2018, when C.B. left her iPhone in Mother’s car during
soccer training and Mother read C.B.’s text messages. C.B. said that Mother took her
(C.B.’s) phone away and that the text messages had been deleted when Mother
eventually returned that phone. C.B. identified the screenshots presented into evidence
as a sample of the text messages between herself and Smith on that phone. C.B. said
that Smith’s text about “naked kissing” referred to something she and Smith actually had
done, and his text about her “kissing [Smith’s] spot” referred to a place on his neck that
she had kissed. She said Smith’s comment about her nipples also referred to something
they had done.
{¶ 20} C.B. explained that one early string of text messages was about Smith
“wanting us to be in a relationship and I didn’t want to be.” (Id., p. 245.) However, C.B.
stated that she later believed she was in love with Smith. According to C.B., she and
Smith “planned on getting married and having kids”; they even had chosen a name for
one future child. (Id., p. 241.) C.B. said that when Mother took away her iPhone, Smith
found a way to give her another cell phone so that she could continue to communicate
with him. According to C.B., at the end of a school day, Smith’s daughter told her that
Smith had something for her, so C.B. followed Smith’s daughter outside the school, where
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Smith handed his daughter an envelope that the daughter then handed to C.B. Inside
were a cell phone and charger. C.B. identified an exhibit as the cell phone Smith provided.
She said she kept it hidden inside a box in a chest in her bedroom and would use it to
text Smith every night, then she would delete the texts. C.B. said she also used the phone
to send Smith photos of her “[b]oobs, butt, vagina, legs,” and videos of her “touching
myself,” because she “thought he would like them.” (Id., pp. 248-249.) She identified
exhibits as copies of those photographs.
{¶ 21} C.B. testified that Mother found the phone provided by Smith when C.B.
overslept one morning after failing asleep with the phone in her hand. She said that the
326 text messages from May 5 to May 6 were fewer than she and Smith typically
exchanged each night because “I fell asleep that night [and] usually I would stay up a little
later and text him more than I did that night.” (Id., p. 252.) From the witness stand, C.B.
read through the text messages from that night, including texts in which Smith referred to
the phone as “a smoking gun” and suggested that he wished she had “a different carrier”
that would make their communications easier to conceal. (Id., pp. 267-268.)
{¶ 22} C.B. said that she was “[u]pset and embarrassed” during her first interview
at CARE House and did not tell the interviewer everything that had happened between
her and Smith because she didn’t want Smith “to get in trouble.” She said she later
disclosed additional information during an interview with Det. Kellar.
{¶ 23} C.B. described the negative impact on her life stemming from her
relationship with Smith:
A lot of people know and * * * treat me different because of it. * * * I didn’t
get a date to Homecoming. No boys really want to talk to me. My friend
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group that I had, it’s not really my friend group anymore. Yeah.
(Id., p. 274.)
{¶ 24} At the close of the prosecution’s case, the trial court denied Smith’s Crim.R.
29(A) motion for acquittal based on the State’s purported failure to prove proper venue.
Smith then testified as the only defense witness. Smith confirmed that he had known C.B.
and coached her in soccer since C.B. was eight. He said that C.B. was friends with both
of his daughters and frequently had stayed at his house. He said that he exchanged text
messages with all of his soccer players, but that in November and December of 2017, his
exchanges with C.B. increased. Smith said the text messages became more personal
and gradually moved into a “friendship,” then beyond.
{¶ 25} Smith recalled an occasion when he hugged C.B. while they were in his
basement watching movies. He said that on a subsequent occasion, C.B. found Smith
alone in the basement after he learned that his grandfather had died, and to console him,
C.B. “gave me a hug and kissed my forehead and rubbed the back of my head.” (Tr., p.
371.) Smith said C.B. then was simply “being kind.” On a later date, however, Smith’s
daughter fell asleep on the couch and Smith kissed C.B. on the cheek; “I don’t know who
kissed each other after that but that was the first time we actually kissed,” despite
discussing kissing in prior text messages.
{¶ 26} Smith also acknowledged that there had been times when he and C.B. had
their clothes off or “pushed to the side” in his basement and bedroom and he touched her
breasts, legs, and buttocks. (Id., p. 374.) He confirmed that C.B. also gave him a “hand
job” in his basement. However, he denied that he ever performed oral sex on C.B. or C.B.
ever performed oral sex on him in his home. He also denied ever penetrating C.B. digitally
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in his home, or ever having sexual intercourse with her.
{¶ 27} On cross examination, Smith acknowledged that he had engaged in sexual
behavior with C.B. somewhere other than in his home; he said he didn’t recall where, “but
it wasn’t in Montgomery County.” (Id., p. 377.) He also acknowledged that he purchased
a Samsung phone for C.B.to use after her parents took away her iPhone. However, Smith
said he did not use his daughter to deliver that phone, but rather texted his daughter and
asked her to have C.B. come out to his car. Smith said he labeled the envelope containing
the phone “referee money” so his daughter would not be suspicious, and he handed the
envelope directly to C.B.
{¶ 28} Confronted with copies of text messages that he and C.B. exchanged on
the Samsung phone, Smith explained that references he made to being “mad we’re not
having sex tonight” and to nights when “the sexual stuff just doesn’t work for us” probably
meant sexual texts or “touching and holding.” He acknowledged that one of C.B.’s
messages to him stated that they had “committed a crime,” but offered no explanation.
Smith also agreed that he had expressed concern to C.B. about assuring that her returned
iPhone contained no evidence of his text messages, and that he had encouraged her to
delete his texts; “I didn’t want her to get in trouble any further.” As to whether he and C.B.
thereafter had exchanged photographs and videos, Smith said, “Perhaps. Yes, I guess
we did. * * * I’m not sure. * * * I don’t recall sending her videos.” While agreeing that C.B.
had been honest about certain aspects of their relationship, Smith maintained that C.B.
lied about the two having oral sex and about Smith digitally penetrating C.B.
{¶ 29} When Smith failed to return to the courtroom following that day’s lunch
recess, an employee of the trial court’s pretrial services department was called and
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testified that Smith had tampered with his ankle monitor and his whereabouts were
unknown. Without objection, the trial continued in Smith’s absence.
{¶ 30} On November 6, 2018, the trial court found Smith guilty of all eight offenses
charged. Smith subsequently was arrested in Florida and returned to Ohio on December
20, 2018. Smith immediately requested a continuance of the January 3, 2019 sentencing
hearing, citing defense counsel’s travel plans and a psychological examination of Smith
scheduled for January 8, 2019. Smith also filed an affidavit in the Supreme Court of Ohio
to disqualify the trial judge. The trial court denied the motion for continuance and the
Supreme Court denied the affidavit of disqualification.
{¶ 31} Sentencing proceeded on January 3, 2019. Per the State’s election, the trial
court merged the three unlawful sexual conduct with a minor offenses into the three
corresponding sexual battery offenses, and sentenced Smith to 48 months on each of the
sexual battery offenses, to run consecutively for a total of 12 years in prison. Smith also
was designated a Tier I and Tier III Sex Offender and placed on five years of post-release
control.
{¶ 32} Smith appeals from that judgment, asserting these six assignments of error:
1) Smith’s felony convictions should be reversed because the State did not
establish jurisdiction or venue for any of them.
2) Because Smith was not tried in a fair tribunal, his Due Process right to
be given a “fair trial in a fair tribunal” was denied, requiring reversal of his
convictions.
3) Because the trial court revoked Smith’s bond without cause in violation
of Crim.R. 46(H), his right to Due Process, and his right against cruel and
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unusual punishment was [sic] denied.
4) The State engaged in prosecutorial misconduct in opening and close
[sic], which prejudicially affected Smith’s Due Process right to a fair trial.
5) The trial court abused its discretion by unreasonably denying Smith’s
motion to continue his sentencing hearing, requiring reversal of his
sentence.
6) The trial court’s decision to impose consecutive sentences should be
vacated.
{¶ 33} We will address those assignments of error in an order conducive to our
review.
Assignment of Error #1 – Insufficient Evidence of Venue
{¶ 34} Smith first asserts that his sexual battery convictions should be reversed
because the State failed to establish where those offenses occurred. According to Smith,
although C.B.’s testimony placed certain misdemeanor acts of sexual contact inside
Smith’s Montgomery County home, she did not identify the location at which any acts of
oral sex or digital penetration supporting the felony offenses were alleged to have taken
place. He also cites his own trial testimony for the proposition that certain sexual behavior
that took place between him and C.B. took place outside of Montgomery County.
{¶ 35} Pursuant to Article I, Section 10 of the Ohio Constitution and R.C. 2901.12,
“evidence of proper venue must be presented in order to sustain a conviction for an
offense.” State v. Hampton, 134 Ohio St. 3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20.
“It is not essential that the venue of the crime be proven in express terms, provided it be
established by all the facts and circumstances in the case, beyond a reasonable doubt,
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that the crime was committed in the county and state as alleged in the indictment.” Id. at
¶ 19, quoting State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of
the syllabus. Circumstantial evidence may be used to establish venue. State v. Brown,
2017-Ohio-8416, 99 N.E.3d 1135, ¶ 33 (2d Dist.), citing State v. May, 2015-Ohio-4275,
49 N.E.3d 736, ¶ 24 (8th Dist.).
{¶ 36} A challenge to venue raised through a Crim.R. 29 motion for a judgment of
acquittal preserves for appeal the issue of the sufficiency of the evidence regarding
venue. See State v. Hibbler, 2d Dist. Clark No. 2001-CA-43, 2002-Ohio-4464, ¶ 23.
{¶ 37} Ohio’s venue statute provides that the trial of a criminal case “shall be held
in a court having jurisdiction of the subject matter, and * * * in the territory of which the
offense or any element of the offense was committed.” R.C. 2901.12(A). That statute
further provides as follows:
(H) When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, the offender may be tried for all of those
offenses in any jurisdiction in which one of those offenses or any element
of one of those offenses occurred. Without limitation on the evidence that
may be used to establish the course of criminal conduct, any of the following
is prima-facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same type or
from the same group.
(2) The offenses were committed by the offender in the offender’s same
employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or chain
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of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender's line of travel in this
state, regardless of the offender’s point of origin or destination.
R.C. 2901.12(H).
{¶ 38} The record contains sufficient evidence to establish that venue was proper
in the trial court. In testifying about the physical and sexual aspects of her relationship
with Smith, C.B. described encounters that began in the basement of Smith’s home, and
that on at least one occasion continued after the two moved upstairs to Smith’s bedroom.
C.B. said that her encounters with Smith included her hand on Smith’s penis through
ejaculation, her mouth on Smith’s penis, Smith’s mouth on her genitals, and Smith’s
penetrating her digitally. At no time did C.B. allude to any of those acts taking place
anywhere other than inside Smith’s Montgomery County home. Although C.B. did not
state specifically that the digital penetration and oral sex occurred at Smith’s house, her
testimony was sufficient to support an inference that they did.
{¶ 39} Alternatively, C.B.’s testimony was sufficient to establish that all sexual
interaction between Smith and C.B. was part of a single “course of criminal conduct” within
the meaning of R.C. 2901.12(H). All the charged offenses involved the same victim (C.B.),
were committed by the same offender (Smith) in his capacity as or relationship to C.B. as
C.B.’s soccer coach, and were committed as part of the same chain of events in
furtherance of the same objective (a sexual relationship with C.B.). In a case where an
adult committed a series of sex offenses against the same minor victim in different
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jurisdictions, this Court concluded that venue was proper where any one of the offenses
occurred since the offenses constituted part of the same course of criminal conduct. See
State v. Weber, 2d Dist. Montgomery No. 25508, 2013-Ohio-3172, ¶ 35.
{¶ 40} Smith’s first assignment of error is overruled.
Assignment of Error #3 – Revocation of Bond
{¶ 41} In his third assignment of error, Smith argues that he was denied his right
to due process of law by the trial court’s revocation of his bond without cause. In support
of that argument, he cites Crim.R. 46(H), which provides as follows:
Unless otherwise ordered by the court pursuant to division (E) of this rule,
or if application is made by the surety for discharge, the same bond shall
continue until the return of a verdict or the acceptance of a guilty plea. In
the discretion of the court, the same bond may also continue pending
sentence or disposition of the case on review. Any provision of a bond or
similar instrument that is contrary to this rule is void.
{¶ 42} The other subsection referenced within Crim.R. 46(H) states: “A court, at
any time, may order additional or different types, amounts, or conditions of bail.” Crim.R.
46(E). Thus, under the current version of Crim.R. 46, “there is no longer a ‘right’ to the
continuation of bond as stated in former Crim.R. 46.” King v. Telb, 6th Dist. Lucas No. L-
05-0122, 2005-Ohio-800, ¶ 17.10 Smith’s argument apparently is premised on a version
of Crim.R. 46 that no longer applies. Additionally, even under the prior version of Crim.R.
10
The court in Telb noted that “[t]he prior version of Crim.R. 46(J) stated that “[u]nless
application is made by the surety for discharge, the same bond shall continue as a matter
of right until the return of a verdict or judgment by a jury * * *.” (Emphasis sic.) Id. at ¶ 16.
A July 1998 amendment to Crim.R. 46 removed the “as a matter of right” language. Id.
-19-
46, the trial court had discretion to alter a defendant’s conditions of bail “as the
circumstances may warrant, such as, where new information is presented to the trial court
regarding the likelihood that the accused may abscond.” Utley v. Kohl, 120 Ohio App. 3d
52, 55, 696 N.E2d 652 (6th Dist.1997), superseded by amendment to Crim.R. 46, as
stated in Telb at ¶ 17.
{¶ 43} The trial court acted within its discretion in revoking Smith’s bond. Crim.R.
46(E) expressly authorizes a court to order different conditions of bail. Furthermore, in
Smith’s case, the trial court did so after a hearing that included testimony from Det. Kellar
about how Smith had used his position as C.B.’s soccer coach to develop a relationship
with her, and how Smith had used his daughter to assist in providing a new cell phone to
C.B. after promising C.B.’s parents that he would have no further contact with her.11
Smith’s right to due process was not infringed by the court’s bond revocation decision.
{¶ 44} In addition, irrespective of the merits of Smith’s argument, “any error
concerning the issue of pretrial bail is moot” once a conviction has occurred. State v.
Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 206, quoting State
v. Patterson, 110 Ohio App. 3d 264, 271, 673 N.E.2d 1001 (10th Dist.1996). We have
applied that principle in finding that a trial court did not commit reversible error by revoking
a defendant’s own-recognizance bond and instead setting a surety bond without holding
a hearing. See State v. Crawford, 2d Dist. Montgomery No. 26073, 2014-Ohio-4599,
¶ 12, citing Drummond and Patterson, supra. Smith “should have raised his pretrial bail
11
To the extent that the revocation decision may have been based on the trial court’s
assessment of “the likelihood that the accused m[ight] abscond,” see Utley at 55, any
such assessment was borne out by the fact that Smith did abscond immediately after
testifying at his trial.
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claim, if at all, in a habeas corpus proceeding.” See State v. Tibbetts, 92 Ohio St. 3d 146,
152, 749 N.E.2d 226 (2001).
{¶ 45} For the foregoing reasons, Smith’s third assignment of error is overruled.
Assignment of Error #4 – Prosecutorial Misconduct
{¶ 46} Smith contends in his fourth assignment of error that he was denied a fair
trial due to “improper remarks” made by the assistant prosecutor during her opening
statement and closing argument to the court. Specifically, Smith points to the State’s
opening that termed the facts of Smith’s case “a parent’s worst nightmare” and called
Smith a “master manipulator” and “perpetrator” who “needs to be held accountable” for
“stealing [C.B.’s] innocence;” and to the State’s repeating some of the same verbiage
during closing. (See Tr., pp. 94, 100; pp. 423, 424, 425.) Smith also challenges the
prosecutor’s closing remarks that dismissed as “ludicrous” defense counsel’s suggestion
that C.B. exaggerated the extent of Smith’s actions in response to pressure from her
parents, and opined that Smith needed “a wake-up call.” (Id., pp. 425, 434.)12
{¶ 47} “In reviewing claims of prosecutorial misconduct, the test is whether the
prosecutor’s remarks were improper and, if so, whether those comments prejudicially
affected the substantial rights of the defendant.” State v. Quarles, 2015-Ohio-3050, 35
N.E.3d 616, ¶ 64 (2d Dist.), citing State v. Jones, 90 Ohio St. 3d 403, 420, 739 N.E.2d 300
(2000). The touchstone of due process analysis “is the fairness of the trial, not the
culpability of the prosecutor.” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct.
940, 71 L. Ed. 2d 78 (1982). Where it is clear beyond a reasonable doubt that the
12
Smith’s suggestion that the purported misconduct was heightened by the lack of a
“curative instruction” (see Appellant’s Brief, p. 20) is inapposite given that his case was
tried to the court rather than to a jury.
-21-
defendant would have been found guilty even absent the alleged misconduct, the
defendant has not been prejudiced, and his conviction will not be reversed. Id., citing
State v. Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.
{¶ 48} We review allegations of prosecutorial misconduct in the context of the
entire trial. State v. Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42,
citing Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). “The
prosecution is * * * entitled to significant latitude in its closing remarks,” and “may
comment freely on ‘what the evidence has shown and what reasonable inferences may
be drawn therefrom.’ ” State v. Carpenter, 116 Ohio App. 3d 615, 622, 688 N.E.2d 1090
(2d Dist.1996), citing State v. Maurer, 15 Ohio St. 3d 239, 267, 473 N.E.2d 768 (1984),
and quoting State v. Lott, 51 Ohio St. 3d 160, 165, 555 N.E.2d 293 (1990). Considerable
latitude likewise extends to a prosecutor’s opening statement. See State v. Whitfield, 2d
Dist. Montgomery No. 22431, 2009-Ohio-293, ¶ 12. “During opening statement, a
prosecutor may, in good faith, make statements as to what he expects to prove by
competent evidence.” State v. Neal, 10th Dist. Franklin No. 95APA05-542, 1996 WL
28765, *8 (Jan. 23, 1996). Such statements, even if ultimately not borne out by the
evidence actually presented, do not constitute reversible error “unless it appears that
counsel made the statement in bad faith.” (Citations omitted.) State v. Costell, 3d Dist.
Union No. 14-15-11, 2016-Ohio-3386, ¶ 112.
{¶ 49} In addition, “[t]he impact of [a prosecutor’s] remarks is lessened when they
are heard by a court, since the court is presumed to only consider relevant evidence.”
Steubenville v. Whittaker, 7th Dist. Jefferson No. 17 JE 0025, 2018-Ohio-4014, ¶ 42,
citing State v. Wiles, 59 Ohio St. 3d 71, 87, 571 N.E.2d 97 (1991). Accord State v. Boyce,
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8th Dist. Cuyahoga No. 93543, 2010-Ohio-3870, ¶ 36, citing State v. Post, 32 Ohio St. 3d
380, 384, 513 N.E.2d 754 (1987) (“There is a presumption in a bench trial in a criminal
case that the court considered only the relevant, material, and competent evidence in
arriving at its judgment unless it affirmatively appears to the contrary.”).
{¶ 50} Failure to object to prosecutorial misconduct at trial waives all but plain
error. State v. Cohen, 2d Dist. Greene No. 2001 CA 8, 2002 WL 313133, *1 (Mar. 1,
2002). This Court has stated:
We recognize plain error “ ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’ ” In
order to prevail on a claim governed by the plain error standard, [the
defendant] must demonstrate that the outcome of [his or] her trial would
clearly have been different but for the errors that [he or] she alleges. Thus,
the alleged prosecutorial misconduct constitutes plain error only if it is clear
that [the defendant] would not have been convicted in the absence of the
improper comments.
(Citations omitted.) Id., quoting Carpenter at 621. In cases where no objection was made
to alleged misconduct occurring during the State’s closing argument, “[t]he plain error
standard generally presents, in accordance with its design, an almost insurmountable
obstacle to reversal * * *.” Id., quoting Carpenter at 621.
{¶ 51} Smith did not object at trial to any of the conduct that forms the basis for this
assignment of error. As we find the specific remarks identified by Smith to have been
neither unduly inflammatory nor prejudicial, Smith has failed to establish the existence of
error, plain or otherwise.
-23-
{¶ 52} “For a prosecutor’s closing argument to be prejudicial, the remarks must be
‘so inflammatory as to render the jury’s decision a product solely of passion and
prejudice.’ ” State v. Taylor, 2d Dist. Montgomery No. 25146, 2013-Ohio-1587, quoting
State v. Arrone, 2d Dist. Greene No.2005 CA 89, 2006-Ohio-4144, ¶ 126. Labeling a
child’s seduction by her adult soccer coach as “a parent’s worst nightmare” is a vivid but
not inapt description of the allegations in Smith’s case. Likewise, characterizing Smith as
a “master manipulator” and “perpetrator” before presenting any evidence to substantiate
those opening comments did not amount to prosecutorial misconduct. Although
“prosecutors must refrain from * * * expressing personal belief or opinions regarding the
defendant’s guilt,” State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463,
¶ 60, terming Smith a “manipulator” did not equate to an opinion that he was guilty of all
the offenses charged, and Smith’s trial testimony admitting to the elements of the
misdemeanor sexual contact offenses established that he was a “perpetrator.” Especially
here, where the prosecution’s remarks were heard by the trial court rather than by a jury,
we have no basis to conclude that the guilty verdict against Smith was the product of
passion or prejudice stoked by the prosecutor’s remarks to that effect.
{¶ 53} A similar conclusion follows as to the prosecutor’s references to defense
counsel’s argument as “ludicrous” and to Smith as needing “a wake-up call.” Although
“personal attacks and accusations against defense counsel” may amount to prosecutorial
misconduct, attacking the plausibility of defense counsel’s argument rather than attacking
defense counsel personally falls within “the normal latitude allowed in closing arguments.”
See Maurer, 15 Ohio St. 3d at 267, 473 N.E.2d 768. Further, in arguing that Smith needed
“a wake-up call,” the prosecutor was echoing Smith’s own statement, in his text message
-24-
apology to C.B.’s parents, that their discovery of his relationship with C.B. had been “the
biggest wake-up call in my life.” (See Tr., p. 124, and State’s Exh. 4A.) By merely
observing that Smith apparently had not experienced a “wake-up call” despite the second
chance extended by C.B.’s parents, the prosecutor did not act improperly, and Smith was
not prejudiced by the trial court’s having heard the prosecutor’s remarks.
{¶ 54} Smith’s fourth assignment of error is overruled.
Assignment of Error #5 – Denial of Sentencing Continuance
{¶ 55} In his fifth assignment of error, Smith maintains that the trial court abused
its discretion in three respects by “unreasonably denying” his request that his sentencing
be delayed. First, Smith contends that the court erred by failing to determine that a
continuance was necessary in order for defense counsel to explore any double jeopardy
issues implicated by a new indictment against Smith stemming from nude images found
on his cell phone. Second, he asserts that the trial court improperly “elevated the State’s
position over Defense Counsel’s” by accepting the prosecutor’s representation that no
double jeopardy problem existed. Finally, Smith argues that the factors to be considered
regarding a motion to continue sentencing weighed in favor of granting a continuance in
this instance.
{¶ 56} A trial court has broad discretion to grant or deny a motion for a continuance.
State v. Danon, 2018-Ohio-419, 105 N.E.3d 596, ¶ 28 (2d Dist.), citing State v. Bones,
2d Dist. Montgomery No. 26017, 2015-Ohio-784, ¶ 61. In exercising its discretion, a trial
court should consider “the length of the delay requested; whether other continuances
have been requested and received; the inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is for legitimate reasons or whether
-25-
it is dilatory, purposeful, or contrived; whether the defendant contributed to the
circumstance which give [sic] rise to the request for a continuance; and other relevant
factors, depending on the unique facts of each case.” Id., quoting State v. Bocock, 2d
Dist. Montgomery No. 22481, 2008-Ohio-5641, ¶ 23.
{¶ 57} The term “abuse of discretion” implies that the trial court’s decision was
unreasonable, arbitrary or unconscionable. State v. Griffin, 2d Dist. Montgomery No.
24001, 2012-Ohio-503, ¶ 9. “It is to be expected that most instances of abuse of discretion
will result in decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.” (Citation omitted.) Id. “A decision is unreasonable if there is
no sound reasoning process that would support that decision. It is not enough that the
reviewing court, were it deciding the issue de novo, would not have found that reasoning
process to be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result.” Id.
{¶ 58} The trial court did not abuse its discretion by denying Smith’s motion to
continue his sentencing. Smith was absent from the trial court’s jurisdiction from October
31, 2018, when he absconded during the second day of his trial, through approximately
December 20, 2018.13 Considering the relevant factors in light of that fact leads to the
conclusion that Smith “contributed to the circumstance which g[a]ve rise to the request
for a continuance.” See Danon at ¶ 28. The court cannot be said to have acted
unreasonably by determining that Smith’s choice to absent himself from Montgomery
13
Although the record does not reveal precisely when Smith was returned to Montgomery
County following his arrest, in a motion filed on December 21, 2018, Smith’s attorney
stated that Smith was “booked into the Montgomery County Jail as of the evening of
December 20, 2018.” (Doc. #122.)
-26-
County for nearly two months outweighed the factors that otherwise might support his
request to delay his sentencing.
{¶ 59} Neither did the trial court abuse its discretion by failing to conclude that
possible double jeopardy concerns warranted a continuance of Smith’s sentencing.
Regardless of whether his sentencing in this case went forward, Smith retained the ability
to move for dismissal of the subsequently-indicted charges, on which he had not yet been
tried, on the basis of double jeopardy. The trial court’s denial of his motion to continue
sentencing on the original convictions did not infringe his right to the assistance of
counsel. For the same reason, the court cannot be said to have abused its discretion by
relying “on the statements of the State” urging that double jeopardy would not apply.
Given that Smith ultimately pled guilty to at least some of the offenses charged in the later
indictment, see Smith, Montgomery Cty. C.P. No. 2018 CR 04830, he cannot be said to
have suffered any prejudice as a result of the court’s denial of his request for a
continuance to permit his defense attorney to engage in discovery about a possible
double jeopardy defense, which, again, could have been raised in the subsequent
prosecution.
{¶ 60} Smith’s fifth assignment of error is overruled.
Assignment of Error #6 – Imposition of Consecutive Sentences
{¶ 61} Smith’s sixth assignment raises three errors allegedly committed by the trial
court in making his sexual battery sentences consecutive. Smith first asserts that the trial
court engaged in prohibited “sentence packaging” by considering Smith’s offenses as “a
single group” in order to impose “an omnibus sentence.” He next argues that the court
erred by imposing consecutive sentences based on his “general course of conduct”
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instead of considering only the conduct for which he was convicted. Finally, he contends
that his conduct “was the exact same conduct that any person [convicted] of sexual
battery necessarily commits,” and thus was not “so great or unusual” as to support
consecutive sentences.
{¶ 62} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law.
{¶ 63} In general, it is presumed that prison terms will be served concurrently. R.C.
2929.41(A); State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 16,
23 (“judicial fact-finding is once again required to overcome the statutory presumption in
favor of concurrent sentences”). However, after determining the sentence for a particular
crime, a sentencing judge has discretion to order an offender to serve individual counts
of a sentence consecutively to each other or to sentences imposed by other courts. R.C.
2929.14(C)(4) permits a trial court to impose consecutive sentences if it finds that (1)
consecutive sentencing is necessary to protect the public from future crime or to punish
the offender, (2) consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public, and (3) any of the
following applies:
(a) The offender committed one or more of the multiple offenses while the
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offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶ 64} In ordering that the sentences for Smith’s three sexual battery offenses be
served consecutively, the trial court strictly adhered to the language of R.C.
2929.14(C)(4), finding consecutive sentences “necessary to protect the public from future
crime and to punish [Smith],” and “not disproportionate to the seriousness of Mr. Smith’s
conduct and to the danger [he] poses to the public.” (Tr., p. 498.) Consistent with R.C.
2929.14(C)(4)(b), the court further found “that at least two of the multiple offenses were
committed as part of one * * * course of conduct and the harm caused [thereby was] so
great or unusual that no single prison term can adequately reflect the seriousness of
[Smith]’s conduct.” (Id.)
{¶ 65} While conceding that the court made the requisite statutory findings, Smith
suggests that those findings are unsupported by either the record or existing law. We will
examine separately each area in which Smith finds fault with those findings.
-29-
a. Sentence Packaging
{¶ 66} Sentence packaging is “a federal doctrine that requires the court to consider
the sanctions imposed on multiple offenses as the components of a single,
comprehensive sentencing plan.” State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245,
846 N.E.2d 824, ¶ 5. In Saxon, the Supreme Court of Ohio rejected a sentence packaging
approach, finding the federal doctrine to have “no applicability to Ohio sentencing laws.”
Id. at ¶ 10. Under Ohio law, a sentencing court “must consider each offense individually
and impose a separate sentence for each offense.” Id. at ¶ 9. A sentencing court thus
“lacks the authority to consider the offenses as a group and to impose only an omnibus
sentence for the group of offenses.” Id. Simply put, sentencing courts in Ohio may not
impose a single “lump” sentence for multiple offenses. Id. at ¶ 8.
{¶ 67} We have held that a trial court may consider whether multiple sentences
should be served concurrently or consecutively only after the court has “consider[ed] each
offense individually and impose[d] a separate sentence for each offense.” State v. Parker,
193 Ohio App. 3d 506, 2011-Ohio-1418, 952 N.E.2d 1159, ¶ 86 (2d Dist.), citing R.C.
2929.11 through 2929.19; see also State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856,
845 N.E.2d 470, paragraph seven of the syllabus; State v. Mathis, 109 Ohio St. 3d 54,
2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. Here, the trial court abided
by that constraint. Accordingly, the record does not support a conclusion that the trial
court imposed “only an omnibus sentence” for Smith’s sexual battery convictions in
violation of the principle against sentence packaging. See id.
{¶ 68} In sentencing Smith, the trial court separately stated the sentence imposed
for each of his individual offenses before pronouncing that his three sexual battery
-30-
sentences would be served consecutively to one another. (See Tr., pp. 496-498.) The
trial court did not engage in “sentence packaging” merely by advising Smith, before it
imposed any individual sentence, that the permissible total sentence for all of the offenses
of which he was convicted “range[d] from community control sanctions to a maximum
potential term of imprisonment of 15 years.” (Tr., p. 495.) Rather, in making that
statement, the trial court properly informed Smith of the minimum and maximum possible
sentences he faced. Unlike the circumstances in Parker, the court did not put forth an
improper reason for the length of Smith’s combined sentences. See Parker at ¶ 96 (where
trial court told sexual battery victim that it was imposing lengthy sentence to extinguish
“any glimmer of hope” that victim and offender would “wait for” each other); see also State
v. Cameron, 2d Dist. Clark No. 2012-CA-86, 2013-Ohio-4397, ¶ 18 (distinguishing Parker
because the trial court in Cameron “did not express an improper reason for the sentence
it imposed”).
{¶ 69} Smith’s “sentence packaging” argument is not well taken.
b. Course of conduct
{¶ 70} In order to find that two offenses were part of a single course of conduct, a
trial court “must * * * discern some connection, common scheme, or some pattern or
psychological thread that ties [the offenses] together.” (Brackets sic.) (Citation omitted.)
State v. Sapp, 105 Ohio St. 3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, syllabus. Although
the term “course of conduct” is not defined in R .C. 2929.14, the Ohio Supreme Court has
stated that a course of conduct may be established by factual links, including time,
location, weapon, cause of death, or similar motivation. State v. Short, 129 Ohio St. 3d
360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 144, citing Sapp at syllabus; see also State v.
-31-
Ramey, 2d Dist. Clark No. 2014-CA-127, 55 N.E.3d 542, 2015-Ohio-5389, ¶ 87.
{¶ 71} In addition, “it is well established that the court may consider information
beyond that strictly related to the offense(s) of which a defendant is convicted, even
including criminal charges and supporting facts that are dismissed under a plea
agreement and charges of which the offender is ultimately acquitted.” State v. Summers,
2d Dist. Darke No. 2013 CA 16, 2014-Ohio-2441, ¶ 15, citing State v. Bowser, 186 Ohio
App.3d 162, 2010-Ohio-951, 926 N.E.2d 714 (2d Dist.), State v. Blake, 2d Dist.
Montgomery No. 17355, 1999 WL 375576 (June 11, 1999), and State v. Wiles, 59 Ohio
St.3d 71, 78, 571 N.E.2d 97 (1991). Although Smith argues that a sentencing court may
not consider conduct outside that for which the defendant was convicted, the single case
on which he relies for that proposition does not represent the law in this jurisdiction. See
State v. Hale, 2014-Ohio-262, 7 N.E.3d 643, ¶ 37 (3d Dist.).
{¶ 72} Furthermore, this Court has affirmed trial court findings that a defendant’s
repeated sexual abuse of the same minor victim amounted to a “course of conduct”
justifying consecutive sentences. See, e.g., State v. Moore, 2019-Ohio-1671, ___ N.E.3d
___, ¶ 68, 71 (2d Dist.) (noting that “the trial court’s consecutive-sentencing decision
[apparently] was driven largely by what [defendant] did to [victim] over a period of years”);
State v. Barnett, 2d Dist. Montgomery No. 27660, 2018-Ohio-4133, ¶ 91, 93. We cannot
clearly and convincingly find that the record does not support the same result in Smith’s
case, where the evidence showed that all of Smith’s offenses involved his persistence in
a series of actions motivated by his desire to pursue a sexual relationship with C.B.
{¶ 73} Smith’s “course of conduct” argument is not well taken.
c. “Great or unusual” harm
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{¶ 74} The elements of the three sexual battery offenses of which Smith was
convicted are as follows:
(A) No person shall engage in sexual conduct with another, not the spouse
of the offender, when any of the following apply:
***
(9) The other person is a minor, and the offender is the other person's
athletic or other type of coach, is the other person's instructor, is the leader
of a scouting troop of which the other person is a member, or is a person
with temporary or occasional disciplinary control over the other person.
R.C. 2907.03(A)(9).
{¶ 75} Citing that statute, Smith maintains that the court erred in finding R.C.
2929.14(C)(4)(b)’s consecutive sentence requirements satisfied in his case, because any
conviction under R.C. 2907.03(A)(9) necessarily involves a defendant in a “position of
trust”14 and Smith’s conduct thus cannot be viewed as “so great or unusual” as to warrant
consecutive sentences. That argument misapprehends R.C. 2929.14(C)(4)(b)’s
provisions.
{¶ 76} Under the plain language of the applicable statute, the “so great or unusual”
factor applies not as to the conduct of the defendant, but as to the harm caused by such
conduct. See R.C. 2929.14(C)(4)(b). Consistent with the statutory language, the trial
court’s specific finding was that “the harm caused by one or more of [Smith’s] multiple
14
Smith observes that prior to pronouncing his sentence, the trial court commented on
Smith’s “eviscerat[ing]” his “position of trust.” (See Tr., pp. 494-495.) However, the trial
court nowhere indicated that it had considered Smith’s “position of trust” as a factor in
deciding whether to impose consecutive sentences.
-33-
offenses [was] so great or unusual that no single prison term can adequately reflect the
seriousness of the defendant’s conduct.” (Tr., p. 498.) Both Mother and C.B. testified
about some of the harm that C.B. and her family have suffered as a consequence of
Smith’s actions. Moreover, given that C.B. was only 14 years old at the time of 41-year-
old Smith’s offenses, and had been coached by him and been a teammate, classmate,
and friend of his daughter since the age of eight, we cannot clearly and convincingly
conclude that the record does not support a finding that the harm C.B. suffered was
greater or more unusual than that suffered by other “minors” (including those above the
age of consent) who may have engaged in sexual conduct with a coach.
{¶ 77} Smith’s challenge on this basis to his consecutive sentences is not well
taken.
{¶ 78} Because we do not conclude that Smith’s consecutive sentences were
contrary to law or that the record clearly and convincingly does not support the trial court's
consecutive sentence findings, we overrule Smith’s sixth assignment of error.
Assignment of Error #2 – Judicial Bias
{¶ 79} Finally, we consider Smith’s contention that he was deprived of his due
process right to a fair trial because the trial court was biased against him. In support of
that contention, Smith cites “the speech the trial court gave right before it found Smith
guilty on all counts”:
Mr. Smith was trusted by a young girl, his own daughter’s friends
[sic], to guide her on a soccer field. He was trusted by her parents to keep
her safe. He was trusted by the soccer association to use his power and
authority for good. Simply by being in the role of her coach, he made all of
-34-
those promises and for his own personal sexual gratification, he broke them.
Mr. Smith took advantage of the innocence of a child. He broke the
trust of her parents who were supposedly his friends and he abused the
authority of the position that he had been given and instead of using his role
to strengthen the confidence and character of today’s young women, Mr.
Smith indeed isolated and abused her, one of the very girls he was
supposed to protect.
Mr. Smith did, indeed, coach her but not just about soccer. He
coached her to lie. He coached her to hide things from her family and
coached her to stay silent about his abuses and manipulations.
That kind of coaching is criminal and today the Court is shedding
lights [sic] on the darkness of his deeds.
(Tr., pp. 458-459.)15
{¶ 80} Smith argues that nothing in the record supports the trial court’s conclusions
that Smith “isolated” C.B. and “coached” her to lie and stay silent, so such conclusions
must have been derived impermissibly “from some ‘extrajudicial source.’ ” He also implies
that the trial court’s comments indicate the decision in his case was motivated at least in
part by the trial judge’s desire to further his own election campaign, and urges that the
15
In an act that Smith terms “[e]qually egregious if not more so,” a slightly modified version
of the same comments allegedly thereafter was posted on a Facebook page bearing the
name of the trial judge, who at that time was running for election. Although Smith’s
appellate brief includes what purport to be links to the Facebook post about which Smith
complains and a newspaper article about the judicial election for the common pleas court
taking place at that time, we are precluded from considering matters outside the record
on this appeal. See, e.g., State v. Goney, 2d Dist. Greene No. 2017-CA-43, 2018-Ohio-
2115, ¶.60 (“A direct appeal can only refer to evidence in the trial record.”).
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judgment against him must be reversed. We determine that Smith is not entitled to the
relief he seeks.
{¶ 81} “It is well settled that a criminal trial before a biased judge is fundamentally
unfair and denies a defendant due process of law.” State v. Dean, 127 Ohio St. 3d 140,
2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting State v. LaMar, 95 Ohio St. 3d 181, 2002-
Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101,
92 L. Ed. 2d 460. The Supreme Court of Ohio has described “judicial bias” as “a hostile
feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his
attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be governed by the law and the
facts.” Id., quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191
(1956), paragraph four of the syllabus.
{¶ 82} “[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Id. at ¶ 49, quoting
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994).
Consequently, “judicial remarks during the course of a trial that are critical or disapproving
of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge.” Id., quoting Liteky at 555. However, such remarks may support a
bias challenge “if they reveal an opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of favoritism or antagonism as to make
fair judgment impossible.” (Emphasis sic.) Id.
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{¶ 83} Under Ohio law, the procedure set forth in R.C. 2701.03 provides “the
exclusive means by which a litigant may claim that a common pleas judge is biased and
prejudiced.” State v. Qualls, 2d Dist. Montgomery No. 26423, 2015-Ohio-2182, ¶ 7,
quoting Jones v. Billingham, 105 Ohio App. 3d 8, 11, 663 N.E.2d 657 (2d Dist.1995); see
also, e.g., State v. Osie, 140 Ohio St. 3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 62; State
v. Hudson, 2d Dist. Clark No. 2014 CA 53, 2014-Ohio-5363, ¶ 25; State v. Galluzzo, 2d
Dist. Champaign No. 2004-CA-25, 2006-Ohio-309, ¶ 15. “A court of appeals does not
have authority to rule on the disqualification of the trial judge or to void a judgment of the
trial court on that basis.” (Emphasis added.) In re K.B., 2d Dist. Montgomery No. 27982,
2018-Ohio-3600, ¶ 21, quoting Easterling v. Hafer, 2d Dist. Montgomery No. 24950,
2012-Ohio-2101, ¶ 9.
{¶ 84} The record discloses that Smith did seek through R.C. 2701.03 to have the
trial judge disqualified after the court issued its verdict in Smith’s case but before the court
imposed sentence, advancing the same remarks and actions that form the basis for this
assignment of error. (See Doc. #130, Affidavit of Disqualification.) The Chief Justice of
the Supreme Court of Ohio denied Smith’s affidavit of disqualification before the trial court
proceeded to sentencing. (Doc. #131 and attached Exh. A); In re Blaine, 156 Ohio St. 3d
1207, 2018-Ohio-5459, 124 N.E.3d 842. Smith has no remedy available before this Court.
{¶ 85} Furthermore, as the Chief Justice noted in that decision, “[a] judge is
presumed to follow the law and not to be biased, and the appearance of bias or prejudice
must be compelling to overcome these presumptions.” Id. at ¶ 6, quoting In re
Disqualification of George, 100 Ohio St. 3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5.
Nothing in the record before us suffices to overcome such presumptions. The testimony
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of C.B. and Mother, as illuminated by Dr. Miceli’s expert testimony regarding “grooming,”
provided evidence from which the trial court reasonably could infer that Smith had
“isolated” C.B. and “coached” her in the areas the court described. There is no indication
that the trial court impermissibly relied on “extrajudicial sources” to reach its guilty verdict.
Neither does the court’s remonstration of Smith in its pre-verdict remarks otherwise
evince “such a high degree of * * * antagonism” toward Smith “as to make fair judgment
impossible.” See Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070, 937 N.E.2d 97, at ¶ 49. On
their face, the trial court’s challenged remarks do not venture beyond opinions the judge
reasonably may have formed “on the basis of facts introduced or events occurring in the
course of the * * * proceedings.” See id. No compelling evidence of bias appears in the
record.
{¶ 86} Smith’s second assignment of error is overruled.
Conclusion
{¶ 87} For the foregoing reasons, the judgment of the trial court will be affirmed.
.............
WELBAUM, P. J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck
Heather N. Jans
April F. Campbell
Hon. E. Gerald Parker Jr.