State v. Smith , 2013 Ohio 5345 ( 2013 )


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  • [Cite as State v. Smith, 2013-Ohio-5345.]
    IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
    STATE OF OHIO                                        :
    Plaintiff-Appellee                           :            C.A. CASE NO.    25462
    v.                                                   :            T.C. NO.   12CR1894
    ISAIAH SMITH, JR.                                    :            (Criminal appeal from
    Common Pleas Court)
    Defendant-Appellant                          :
    :
    ..........
    OPINION
    Rendered on the       6th       day of         December          , 2013.
    ..........
    ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
    Third Street, 5th Floor, Dayton, Ohio 45422
    Attorney for Plaintiff-Appellee
    KATE L. BOWLING, Atty. Reg. No. 0084442, 111 W. First Street, Suite 518, Dayton, Ohio
    45402
    Attorney for Defendant-Appellant
    ..........
    DONOVAN, J.
    {¶ 1}     Defendant-appellant Isaiah Smith, Jr., appeals his conviction and sentence
    2
    for one count of rape (by force or threat of force), in violation of R.C. 2907.02(A)(2), a
    felony of the first degree; one count of kidnapping (sexual activity), in violation of R.C.
    2905.01(A)(4), a felony of the first degree; one count of attempted rape (by force), in
    violation of R.C. 2923.02(A), a felony of the second degree; and one count of assault
    (knowingly), in violation of R.C. 2903.13(A), a misdemeanor of the first degree. Smith
    filed a timely notice of appeal with this Court on November 9, 2012.
    {¶ 2}   On June 14, 2012, the victim in the instant case, D., was celebrating her
    birthday with friends. Between the hours of 3:00 and 7:00 p.m., D. testified that she drank
    approximately twenty-four ounces of Wild Irish Rose wine. At 7:00 p.m., D. testified that
    she stopped drinking and went to a gathering of “family and friends” where she smoked
    crack cocaine twice. D. further testified that she had been regularly using crack cocaine for
    approximately twenty-five years.
    {¶ 3}   After the family gathering, D. met some friends with whom she drove to the
    Dayton View area near Riverview Avenue in Dayton, Ohio. Around 11:00 p.m., D.’s
    friends dropped her off on Riverview Avenue and left her there. D. testified that she began
    walking west down Riverview Avenue towards Paul Lawrence Dunbar Street when a man,
    later identified as the defendant, Smith, approached her and began talking to her.        D.
    testified that Smith asked her if she knew where he could find some crack cocaine. D. told
    Smith that she did, and she took him to the home of a nearby drug dealer she identified as
    J.C. in order to purchase crack cocaine. D. testified that Smith was also acquainted with
    J.C. and his girlfriend, Dreya. After Smith purchased crack cocaine from J.C., he asked D.
    if she would like to come back to his apartment to have a drink and smoke crack together.
    3
    D. agreed to accompany Smith after J.C.’s girlfriend informed her that the defendant was “a
    sweet guy.” D. testified that her only intention in going with Smith was to “get high and
    drink,” not to trade sexual favors for drugs.
    {¶ 4}    After they arrived at the Terrace View Apartments, D. followed Smith up to
    his fifth floor where his unit was located. Once inside his apartment, Smith gave D. a can
    of malt liquor and let her smoke some of the crack he had purchased. After D. took a “hit”
    from the crack pipe, Smith began to act in a violent and erratic manner. Smith informed D.
    that he was “tired of bitches like y’all walking up and down the street.” Smith then
    snatched the crack pipe from D. and punched her in the face.
    {¶ 5}    Smith continued to punch D. in the head and face while she tried to get up
    and leave the apartment. D. testified that Smith told her, “You’re my bitch now. We can
    do this all night. You ain’t going nowhere.” At that point, Smith ordered D. to remove her
    clothes. Fearing further harm, D. testified that she complied. Smith approached D. from
    behind and forced his penis into her anus. Smith then turned D. over, laid on top of her, and
    attempted to penetrate her vaginally. D. testified that she began feigning an asthma attack,
    causing Smith to get off of her. D. used this opportunity to get up and run out of the front
    door and pull the fire alarm. D. testified that she was completely naked.
    {¶ 6}    Once D. reached the first floor of the building, she began knocking on
    apartment doors and asking for help. Eventually, a woman in a first-floor apartment opened
    her door and gave D. a white sheet to cover herself. D. then walked into the foyer of the
    apartment building and laid down on a couch where she passed out at approximately 5:00
    a.m.
    [Cite as State v. Smith, 2013-Ohio-5345.]
    {¶ 7}     Meanwhile, at approximately 5:10 a.m., Dayton Police Officers Joshua
    Campbell and Adam Sharp were dispatched to Terrace View Apartments on a suspicious
    circumstance complaint. Upon entering the foyer of the building, Officer Campbell testified
    that he found D. lying on a couch just inside the front entrance. Officer Campbell testified
    that D. was highly upset, shaking, crying, and unresponsive to his questions.       Officer
    Campbell further testified that the left side of D.’s face was red and swollen. Paramedics
    arrived and took D. to Miami Valley Hospital where she was examined by nurses and found
    to have injuries consistent with being anally and vaginally raped. The physical examination
    also revealed that D. had suffered severe bruising to her face and had been bitten on her
    back.
    {¶ 8}     While she was at the hospital, D. advised the police that she had been
    sexually assaulted by a man living in apartment on the fifth floor of the Terrace View
    Apartments. Dayton Police Officer Sean Humphrey returned to the apartment complex
    where Smith lived and knocked on the door to unit # 504. No one answered. Officer
    Humphrey spoke with the apartment manager and got a key to the unit, and opened the front
    door. Officer Humphrey testified that Smith, who was inside the apartment, would not
    identify himself at first. After some questioning, however, Smith admitted who he was.
    Smith was subsequently arrested and taken into custody.
    {¶ 9}     On June 28, 2012, Smith was indicted for one count of rape (by force or
    threat of force), one count of kidnapping (sexual activity), one count of attempted rape (by
    force), and one count of felonious assault (serious harm).      After a jury trial held on
    September 25 and 26, 2012, Smith was found guilty of one count of rape (by force or threat
    of force), one count of kidnapping (sexual activity), and one count of attempted rape (by
    5
    force). Smith was found not guilty of felonious assault (serious harm), but found guilty of
    the lesser included offense of misdemeanor assault. After merging the count of forcible
    rape with the kidnapping count, the trial court sentenced Smith to an aggregate eleven years
    in prison. The trial court also designated Smith a Tier III sex offender.
    {¶ 10} It is from this judgment that Smith now appeals.
    {¶ 11} Smith’s first assignment of error is as follows:
    {¶ 12} “APPELLANT’S CONVICTION WAS ENTERED AGAINST THE
    MANIFEST WEIGHT OF THE EVIDENCE.”
    {¶ 13} In his first assignment, Smith contends that his convictions for rape,
    kidnapping, attempted rape, and assault were against the manifest weight of the evidence
    because they were all dependent on the testimony of D. Specifically, Smith argues that D.’s
    testimony lacked all credibility and shouldn’t be considered for any purpose.
    {¶ 14} “‘The court, reviewing the entire record, weighs the evidence and all
    reasonable inferences, considers the credibility of witnesses and determines whether in
    resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
    miscarriage of justice that the conviction must be reversed and a new trial ordered. The
    discretionary power to grant a new trial should be exercised only in the exceptional case in
    which the evidence weighs heavily against the conviction.’” State v. McKnight, 107 Ohio
    St.3d 101,112, 2005-Ohio-6046, 
    837 N.E.2d 315
    .
    {¶ 15} The credibility of the witnesses and the weight to be given to their testimony
    are matters for the trier of facts to resolve. State v. DeHass, 
    10 Ohio St. 2d 230
    , 231, 
    227 N.E.2d 212
    (1967). “Because the factfinder * * * has the opportunity to see and hear the
    6
    witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a
    judgment is against the manifest weight of the evidence requires that substantial deference
    be extended to the factfinder’s determinations of credibility. The decision whether, and to
    what extent, to credit the testimony of particular witnesses is within the peculiar competence
    of the factfinder, who has seen and heard the witness.”             State v. Lawson, 2d Dist.
    Montgomery No. 16288, 
    1997 WL 476684
    (Aug. 22, 1997).
    {¶ 16} This court will not substitute its judgment for that of the trier of facts on the
    issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
    arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 
    1997 WL 691510
    (Oct. 24, 1997).
    {¶ 17} In the instant case, Smith asserts that D.’s testimony is rendered “void of
    credibility” by her admitted history of drug use, drug use on the day of the incident, lengthy
    criminal history, and conflicting details in her trial testimony. Smith argues that all that
    D.’s testimony establishes is that she was prostituting on the night of the incident, and that
    the only reason she went with Smith to his apartment was to trade drugs for sex.
    {¶ 18} Upon review, we conclude that Smith’s multiple convictions are not against
    the manifest weight of the evidence. The credibility of the witnesses and the weight to be
    given their testimony were matters for the court to resolve. The jury did not lose its way
    simply because it chose to believe the testimony of the victim, D., who testified at length
    regarding Smith punching her in the face and head, forcing her to remain in his apartment
    after she tired to leave, anally raping her, and attempting to vaginally rape her. D. admitted
    during her testimony that she had been using crack cocaine for approximately twenty-five
    7
    years. D. testified that she had even smoked crack twice on the day that the incident
    occurred. D. also testified that she has been convicted of several felonies. Significantly,
    when she was cross-examined by defense counsel, D. specifically denied that she went with
    Smith to his apartment to trade sex for drugs. D. testified that she only went to Smith’s
    apartment to “get high and drink.”             Defense counsel had ample opportunity to
    cross-examine D. and undermine her story. Finally, Cindy Jennings, the trauma nurse who
    examined D. after she was admitted to Miami Valley Hospital testified that her injuries were
    consistent with an individual who had been forcibly raped. Having reviewed the entire
    record, we cannot clearly find that the evidence weighs heavily against a conviction, or that a
    manifest miscarriage of justice has occurred.
    {¶ 19} Smith’s first assignment of error is overruled.
    {¶ 20} Smith second assignment of error is as follows:
    {¶ 21} “THE STATE COMMITTED REVERSIBLE MISCONDUCT.”
    {¶ 22} In his second assignment, Smith argues that the prosecutor made several
    remarks during the course of the trial that were improper and prejudicial. Specifically,
    Smith asserts that the prosecutor made certain remarks during his opening and closing
    statements that deprived him of the right to a fair trial.
    {¶ 23} Generally, prosecutors are entitled to considerable latitude in opening and
    closing arguments. Maggio v. Cleveland, 
    151 Ohio St. 136
    , 140, 
    84 N.E.2d 912
    (1949);
    State v. Ballew, 
    76 Ohio St. 3d 244
    , 255, 
    667 N.E.2d 369
    (1996). A prosecutor may freely
    comment on what the evidence has shown and what reasonable inferences the prosecutor
    believes may be drawn therefrom. State v. Lott, 
    51 Ohio St. 3d 160
    , 165, 
    555 N.E.2d 293
                                                                                                    8
    (1990). Indeed, in our adversarial system, prosecutors are not only permitted but also
    encouraged to argue fervently for conviction. State v. Stephens, 
    24 Ohio St. 2d 76
    , 82, 
    263 N.E.2d 773
    (1970). It is improper, however, for an attorney to express his personal belief or
    opinion as to the credibility of a witness or as to the guilt of the accused. State v. Smith, 
    14 Ohio St. 3d 13
    , 13-14, 
    470 N.E.2d 883
    (1984).               The prosecution must also avoid
    insinuations and assertions which are calculated to mislead the jury. 
    Id. at 15.
    {¶ 24} The test for prosecutorial misconduct is whether the remarks were improper
    and, if so, whether they prejudicially affected substantial rights of the accused. State v. Bey,
    
    85 Ohio St. 3d 487
    , 494, 
    709 N.E.2d 484
    (1999); 
    Smith, 14 Ohio St. 3d at 14
    . The focus of
    that inquiry is on the fairness of the trial, not the culpability of the prosecutor. Bey, 85 Ohio
    St.3d at 495. In determining whether the prosecutor's remarks were prejudicial, the state's
    argument must be viewed in its entirety. 
    Ballew, 76 Ohio St. 3d at 255
    .
    {¶ 25} Defense counsel did not object to any of the instances of alleged
    prosecutorial misconduct during trial. Thus, we must review this entire assignment under a
    plain error analysis. Crim. R. 52(B) allows a reviewing court to consider errors committed
    at trial, upon which appellant did not object, only if such errors affected the substantial rights
    of the appellant. A reviewing court should use the utmost caution in taking notice of plain
    error and should do so only if it is clear that, but for the error, the result in the trial court
    would have been different. State v. Long, 
    53 Ohio St. 2d 91
    , 
    372 N.E.2d 804
    (1978),
    paragraph 2 of syllabus.      Notice of plain error should be taken only in exceptional
    circumstances and only to prevent a manifest miscarriage of justice. 
    Id., paragraph 3
    of
    syllabus.
    9
    {¶ 26} Initially, Smith argues that the prosecutor committed misconduct when he
    made the following statement to the jury during opening statement:
    At the conclusion of this case, once you’ve heard all of the evidence,
    once all of the testimony has been presented to you, there will be only but one
    choice for you to make, and that choice will be clear. That choice will be to
    find this Defendant guilty and hold him accountable and responsible for what
    he did to [D.] on June 15, 2012.
    {¶ 27} Upon review, we conclude that the prosecutor’s remarks during his opening
    statement were not improper, but were simply a summary of what he expected the evidence
    to establish at the end of the trial. The jury was instructed numerous times throughout the
    trial that they alone were the trier of fact who would ultimately determine Smith’s guilt or
    innocence. The prosecutor’s remarks were not a mandate to the jury that they were required
    to find Smith guilty. Moreover, there is nothing in the record to suggest that the result of
    the trial would have been any different had the prosecutor not made the statement in
    question.
    {¶ 28} Smith next takes issue with the following remarks made by the prosecutor
    during his closing argument:
    The true measure of a society is to look at the way that the society
    treats its weakest, most vulnerable members. I don’t think there is anyone
    who has sat through this trial that can deny that [D.] is one of society’s
    weakest and most vulnerable members.
    ***
    10
    Don’t reward Isaiah Smith, Jr. for selecting such a weak and pitiful
    victim. Don’t reward Isaiah Smith, Jr. for selecting a victim that we may
    find so morally reprehensible as to want to pretend that people like that don’t
    even exist. But there’s no denying that [D.] exists, just as there’s no denying
    the consistency, the corroborating evidence of her story.
    ***
    [Smith] was talking to her about using crack cocaine. So she agreed
    to go with him to the dealer’s house. A poor choice, certainly. A choice
    that any of us would want a friend or family member to make, certainly not.
    But that’s the choice that [D.] made. She further agreed to go back to the
    Defendant’s apartment on the Terrace View apartment building ***. Again,
    admittedly, a poor choice.
    ***
    Look at the way in which this Defendant treated one of our most
    vulnerable people. No one is asking you to like her. No one is asking you
    to be [D.’s] friend. No one is asking you to allow [her] into your home.
    The only thing that’s being asked of you is to apply the law to the facts in this
    case.
    {¶ 29} Smith argues that when all of these statements are viewed cumulatively, they
    improperly establish the personal opinion of the prosecutor regarding the societal value of
    the victim. Smith further asserts that the prosecutor’s remarks “placed himself on a moral
    high ground, and he took the jury up to the summit with him.”
    [Cite as State v. Smith, 2013-Ohio-5345.]
    {¶ 30} Initially, we note that Smith’s defense consisted of trying to convince the
    jury that the only reason D. accompanied him to his apartment was to trade sex for drugs.
    Defense counsel attempted to accomplish this by repeatedly reiterating throughout the trial
    that D. was a long-term drug abuser with an extensive history of criminal behavior. It was,
    therefore, not improper for the prosecutor to point out D.’s perceived vulnerability,
    especially when the prosecutor linked his closing argument to the evidence presented at trial.
    In State v. Simes, 2d Dist. Montgomery No. 10985, 
    1989 WL 35889
    (April 11, 1989), we
    found that it was fair for the prosecutor, in his closing, to comment that the victim of a
    robbery in the parking lot of a grocery store was pregnant and particularly vulnerable to the
    actions of the defendant. Thus, in the instant case, it was not improper for the prosecutor to
    discuss in his closing argument D.’s vulnerability to the actions of Smith in light of her
    lifelong problems with drug addiction. Moreover, Smith has failed to establish that a
    manifest miscarriage of justice occurred as a result of the prosecutor’s closing remarks
    regarding D.’s vulnerability.
    {¶ 31} Finally, Smith maintains that the prosecutor improperly commented upon his
    failure to testify at trial when he made the following statement at the end of his initial
    closing argument:
    The facts of this case clearly show, on June 15, 2012, [D.] was held
    against her will, and she was beaten, and she was raped. You haven’t heard
    a single witness that’s told you otherwise. Think about that for a moment.
    Not a single witness has taken the stand in this case and told you anything
    different.
    {¶ 32} It is well-settled that a prosecutor may not comment on a defendant’s failure
    12
    to testify. State v. Twyford, 
    94 Ohio St. 3d 340
    , 355, 2002-Ohio-894, 
    763 N.E.2d 122
    . In
    determining whether a defendant’s Fifth Amendment rights were violated, we consider
    “whether the language used was manifestly intended or was of such character that the jury
    would naturally and necessarily take it to be a comment on the failure of the accused to
    testify.” 
    Id. Significantly, isolated
    remarks by a prosecutor should not be taken out of
    context and given their most damaging interpretation. 
    Id. at 356,
    763 N.E.2d 122
    .
    {¶ 33} In support of its argument that the prosecutor’s statement did not denigrate
    Smith for failing to testify, the State cites two cases, to wit: State v. Gapen, 
    104 Ohio St. 3d 358
    , 2004-Ohio-6548, 
    819 N.E.2d 1047
    ; and State v. Webb, 
    70 Ohio St. 3d 325
    , 
    638 N.E.2d 1023
    (1994). These cases stand for the proposition that when a prosecutor’s remark is
    placed in the context of his overall argument, both in the first instance and in rebuttal, the
    remark was clearly not “manifestly intended” to be a negative comment on a defendant’s
    decision to not testify during his or her trial. 
    Id. {¶ 34}
    In Gapen, however, the Ohio Supreme Court found that the statements made
    by the prosecutor in which he stated that the defendant was the “best witness for what he
    did” referred to the defendant’s confession made to police and not his failure to testify.
    Moreover, in Webb, during his closing argument, the prosecutor stated the defendant “killed
    his son” and “tried to kill every single person in the house.” At that point, the defendant
    interrupted the prosecutor, saying “You’re wrong,” to which the prosecutor replied “He
    spoke.” The defendant claimed that the prosecutor’s statement “He spoke” was an implied
    comment on the fact the defendant had not testified at trial. The Ohio Supreme Court found
    that a jury would not naturally or necessarily interpret the words “He spoke” as a comment
    13
    on the defendant’s failure to testify. Accordingly, these cases are distinguishable and do not
    support the State’s argument that the prosecutor’s remark in the instant case was not directed
    at Smith’s failure to testify.
    {¶ 35} Upon review, we find that the prosecutor’s statement was inferentially
    directed at Smith’s failure to testify. The prosecutor’s statement was made at the end of his
    initial closing argument, and not on rebuttal. The statement clearly insinuates that Smith
    offered no testimony which contradicted the State’s position that Smith beat, kidnapped, and
    raped D. Thus, the prosecutor’s statement could have been understood by the jury to be a
    comment on Smith’s failure to testify and defend himself against D.’s accusations. After
    all, whether consensual sex or forcible rape occurred was known only to D. and Smith.
    {¶ 36} Nevertheless, even assuming that the prosecutor’s remarks were improper,
    such comments neither materially prejudiced nor denied Smith a fair trial. Furthermore, the
    trial court instructed the jury not to consider Smith’s decision not to testify for any purpose,
    and “[a] jury is presumed to follow the instructions given to it by the trial judge.” 
    Id., citing State
    v. Loza, 
    71 Ohio St. 3d 61
    , 75, 641, N.E.2d 1082, 1100 (1994). Accordingly, while we
    certainly do not condone such argument, the prosecutor’s isolated statement during closing
    does not require reversal because Smith was not denied a fair trial. Finally, in light of
    defense counsel’s failure to object to any of the alleged instances of prosecutorial
    misconduct, Smith has failed to demonstrate plain error.
    {¶ 37} Smith’s second assignment of error is overruled.
    {¶ 38} All of Smith’s assignments of error having been overruled, the judgment of
    the trial court is affirmed.
    14
    ..........
    FAIN, P.J. and WELBAUM, J., concur.
    Copies mailed to:
    Andrew T. French
    Kate L. Bowling
    Hon. Michael W. Krumholtz