State v. Smith , 2023 Ohio 3135 ( 2023 )

[Cite as State v. Smith, 2023-Ohio-3135.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30022
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
PRENTICE SMITH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 05 1705
DECISION AND JOURNAL ENTRY
Dated: September 6, 2023
HENSAL, Presiding Judge.
{¶1} Prentice Smith appeals his convictions for multiple rapes and kidnappings in the
Summit County Court of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} A.C. testified that she was walking home on Christmas morning when a man pulled
up in his car near her and offered her a ride. She accepted because it was cold. Instead of stopping
at A.C.’s house, the man drove past it to the parking lot of a closed warehouse and demanded to
have oral and vaginal sex with A.C. According to A.C., she complied because she did not want
the man to hurt her and she could not get out because he had stopped the car with the passenger
side against a wall. She memorized the license plate of the car and preserved some of the man’s
semen, however, after he dropped her off.
{¶3} Based on the evidence A.C. provided, the police identified Mr. Smith as her
assailant. Mr. Smith’s DNA also matched three other alleged rape victims: V.G., T.S., and M.S.
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According to V.G., she was walking along a road when Mr. Smith stopped his vehicle near her
and brandished a firearm at her, directing her to get in his car. He drove to a nearby vacant lot and
ordered her to get in the backseat where he had vaginal sex with her. According to T.S., she was
working as a prostitute when Mr. Smith picked her up and offered to pay her for sex. He drove
behind a building and stopped with the passenger side against the building, then refused to pay.
He overpowered T.S. until she removed her clothes and had vaginal and anal sex with him.
According to M.S., she also agreed to have sex for money with Mr. Smith. He drove them under
a bridge and parked against a wall. When Mr. Smith grabbed drugs that M.S. had from her, she
began fighting with him. Mr. Smith prevailed, and forced M.S. to have oral, vaginal, and anal sex
with him. Eventually, M.S. was able to climb out the driver’s side door and escape.
{¶4} A Grand Jury indicted Mr. Smith for six counts of rape and four counts of
kidnapping. The rape charges included sexually-violent-predator specifications, and the charges
related to V.G. included firearm specifications. Mr. Smith’s trial date was continued numerous
times because of motions filed by him, the unavailability of his attorney, and courtroom
availability during the COVID-19 pandemic. Mr. Smith moved to dismiss the charges multiple
times on speedy trial grounds, but the trial court denied his motions. The court also denied Mr.
Smith’s motion to sever the charges.
{¶5} At trial, Mr. Smith admitted that he had sex with all the women but alleged that
they were prostitutes and that the sex was part of their consensual business transactions. A jury
found him guilty of all but one of the rape offenses, guilty of all the kidnapping offenses, and guilty
of the firearm specifications. The trial court found the sexually-violent-predator specifications
proven beyond a reasonable doubt and sentenced Mr. Smith to a total of 81 years to life
imprisonment. Mr. Smith has appealed, assigning four errors.
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II.
ASSIGNMENT OF ERROR I
PRENTICE SMITH WAS DENIED DUE PROCESS AND A SPEEDY TRIAL
UNDER THE 5TH AND 6TH AMENDMENTS TO THE U.S. CONSTITUTION,
ARTICLE 1, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION, AND R.C.
2945.71.
{¶6} In his first assignment of error, Mr. Smith argues that the trial court denied him the
right to a speedy trial. Specifically, he argues that he was not brought to trial within 270 days as
required by Revised Code Section 2945.71, which was only 90 days for him because he was held
in jail on the charges before trial. R.C. 2945.71(C)(2), (E). “Review of a speedy-trial claim
involves a mixed question of law and fact.” State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363,
¶ 15. “Therefore, we defer to the trial court’s factual findings if they are supported by competent,
credible evidence, but we review the application of the law to those facts de novo.” Id.{¶7} Although Section 2945.71 imposes deadlines for bringing a defendant to trial, the
General Assembly has recognized that some flexibility is required. Section 2945.72 “contains an
exhaustive list of events and circumstances that extend the time within which a defendant must be
brought to trial.” State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶ 24. The extension at
issue in this case is under Section 2945.72(H), which provides that the time within which an
accused must be brought to trial may be extended by “[t]he period of any continuance granted on
the accused’s own motion, and the period of any reasonable continuance granted other than upon
the accused’s own motion.”
{¶8} Mr. Smith argues that, between the time he was arrested to the time when the Ohio
Supreme Court tolled all time limits because of the COVID-19 coronavirus pandemic, 18 of his
90 speedy trial days had run. Mr. Smith’s tally includes four days between the hearing on his
motion to suppress and the Ohio Supreme Court’s tolling order because the trial court announced
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that it was going to deny the motion at the conclusion of the hearing. A court of record, however,
“speaks only through its journal and not by oral pronouncement or mere written minute or
memorandum.” Schenley v. Kauth, 160 Ohio St. 109 (1953), paragraph one of the syllabus. The
trial court did not enter its written denial of Mr. Smith’s motion to suppress until three days after
the Ohio Supreme Court issued its tolling order. Accordingly, only 14 of the 90 speedy trial days
passed before the tolling period went into effect.
{¶9} The Ohio Supreme Court’s tolling order ended on July 30, 2020, and Mr. Smith
was initially scheduled for trial on August 10, 2020. On August 3, 2020, the trial court continued
the trial sua sponte until September 28, 2020, explaining that the court’s administrative judge had
issued an order indicating that, because of continuing pandemic-related health concerns, a trial
could only proceed if a defendant’s case was within a week of the speedy trial deadline. On
September 22, 2020, the trial court continued the trial again for a similar reason. Although the
administrative judge at that point was allowing trials to proceed if the defendant was 14 days from
the speedy trial deadline, Mr. Smith’s case was still outside that window. Mr. Smith does not
challenge the August and September continuances as being unreasonable.
{¶10} The trial court re-set Mr. Smith’s trial for October 19, 2020. On October 1, 2020,
however, the administrative judge issued an updated order that suspended criminal trials through
November 6, 2020, unless they were specifically authorized by the administrative judge.
According to the trial court, it sought but was denied authorization to hold Mr. Smith’s trial on
October 19, 2020, making the court unavailable that day. In its journal entry continuing the
October 19, 2020 trial date, the court incorporated the administrative judge’s miscellaneous orders
related to the pandemic. It also incorporated an email it had received from the administrative
judge, explaining that its request to hold Mr. Smith’s trial was denied because “Summit County
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has increased to level 3 Red, the significant increase of Covid-19 cases over the last week, the at-
risk victims, out of state witness, and the current policy requiring court personnel/judges to self-
quarantine for 14 days after out of state travel[.]” The trial court attached a copy of the email as
an exhibit to its entry.
{¶11} Mr. Smith argues that the October continuance was not reasonable. He argues that
the courthouse was not closed, pandemic safety precautions were in place in the courtrooms, and
a judge, all counsel, and all witnesses were available. He, therefore, argues that the trial court
should have granted his motion to dismiss under Section 2945.73.
{¶12} The Ohio Supreme Court has recognized that “continuing a trial because of a
pandemic state of emergency is ‘reasonable’” under Section 2945.72(H). In re Disqualification of
Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, ¶ 7, quoting R.C. 2945.72(H). In Fleegle, it
explained that a judge’s priority during a public-health emergency “must be the health and safety
of court employees, trial participants, jurors, and members of the public entering the courthouse.”
Id. at ¶ 8. It also explained that “trial judges have the authority to continue trials for defendants
on a case-by-case basis without violating speedy-trial requirements.” Id. at ¶ 7.
{¶13} The administrative judge’s refusal to let Mr. Smith’s trial proceed was based on
that judge’s idea of the pervasiveness of COVID-19 in the area, including information expressed
by the administrative judge, but not in the record, of a significant rise in number of diagnosed
cases, which the administrative judge believed would place the alleged victims and other
witnesses, some of whom who had to travel from out of state, at increased risk of contracting
coronavirus. Although Mr. Smith alleges that pandemic-safety precautions were in place in the
courthouse, he has not cited anything in the record that establishes the extent of those precautions
or whether they were adequate to keep jurors and witnesses protected from COVID-19, thereby
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making the administrative judge’s order prohibiting the trial from going forward unreasonable.
The trial court found, based on the standing order of the administrative judge and that judge’s
specific refusal to let Mr. Smith’s trial proceed, that it was “unavailab[le].” Mr. Smith has not
pointed to any contrary information in the record that would disprove the court’s unavailability.
{¶14} Upon review of the record, we conclude that Mr. Smith has not established on
appeal that the trial court’s factual findings are not supported by competent, credible evidence.
See State v. Morehead, 9th Dist. Medina No. 22CA0021-M, 2023-Ohio-1314, ¶ 17, State v.
Thomas, 9th Dist. Summit No. 29497, 2020-Ohio-3539, ¶ 21. He also has not established that the
continuance of the October 19, 2020, trial date was unreasonable under Section 2945.72(H). The
trial court, therefore, did not err when it denied Mr. Smith’s motion to dismiss. Mr. Smith’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
PRENTICE SMITH WAS DENIED DUE PROCESS AND A FAIR TRIAL BY
PREJUDICIAL JOINDER OF THE OFFENSES, IN VIOLATION OF THE 5TH,
6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE 1, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶15} In his second assignment of error, Mr. Smith argues that the trial court incorrectly
denied his motion to sever. In particular, he argues that the counts related to V.G. should have
been tried separately because V.G.’s allegation that a firearm was involved made those offenses
dissimilar to the ones involving the other victims.
{¶16} “The law favors joining multiple criminal offenses in a single trial[.]” State v.
Franklin, 62 Ohio St.3d 118, 122 (1991). Notwithstanding that policy, Criminal Rule 14 provides
that, “[i]f it appears that a defendant * * * is prejudiced by a joinder of offenses * * *, the court
shall order an election or separate trial of [the] counts * * *.” To prevail on a claim that the trial
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court erred in denying a motion to sever, the defendant normally “has the burden of demonstrating
three facts.” State v. Schaim, 65 Ohio St.3d 51, 59 (1992).
He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at
the time of the motion to sever he provided the trial court with sufficient
information so that it could weigh the considerations favoring joinder against the
defendant’s right to a fair trial, and (3) that given the information provided to the
court, it abused its discretion in refusing to separate the charges for trial.
Id.{¶17} The State can overcome a defendant’s claim that he was prejudiced by the joinder
of offenses by showing that it could have introduced evidence of the joined offenses as “other acts”
evidence under Evidence Rule 404(B). Id. at ¶ 62. It can also overcome a claim of prejudice if
the evidence of each crime was simple and direct, such that “the jury is believed capable of
segregating the proof on each charge.” State v. Roberts, 62 Ohio St.2d 170, 175 (1980). “For the
appellate court to reverse a trial court ruling that denies severance, the accused must show that the
trial court abused its discretion.” Franklin at 122.
{¶18} “A motion to sever made under Criminal Rule 14, however, requires that the
defendant renew [his] motion either at the close of the State’s case or at the conclusion of all the
evidence.” State v. Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 26. “A renewal of the
motion is necessary because a [Criminal Rule] 14 analysis examines any prejudice resulting from
the joinder in light of the evidence introduced at trial.” State v. Hoffman, 9th Dist. Summit No.
26084, 2013-Ohio-1021, ¶ 8. “If a defendant fails to renew his motion, he forfeits the issue for
appeal, save for a claim of plain error.” State v. Garcia, 9th Dist. Summit Nos. 27810, 27811,
2016-Ohio-4667, ¶ 14, citing Bean at ¶ 27.
{¶19} Although Mr. Smith filed a pre-trial motion to sever, he did not renew it at either
the close of the State’s case or the conclusion of all the evidence. He, therefore, has forfeited
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review of his motion except for plain error. In order to establish plain error, Mr. Smith “must
establish that an error occurred, it was obvious, and it affected his * * * substantial rights.” State
v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, ¶ 64. “Notice of plain error * * * is to be
taken with the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶20} Mr. Smith argues that the circumstances of the counts involving V.G. were different
because they did not involve an allegation that Mr. Smith blocked V.G’s escape through the
passenger side door of his car. The other cases also did not involve any threats against the women
and the sexual conduct occurred in the front passenger seat of the car instead of the backseat. He,
therefore, argues that they would not have constituted “other acts” evidence under Evidence Rule
404(B). Mr. Smith further argues that the testimony about the alleged use of a firearm during that
incident was so inflammatory that it unfairly prejudiced him as to the other counts, even if the
evidence related to each incident was simple and distinct.
{¶21} Regarding whether Mr. Smith was prejudiced by the joinder of all the counts, Mr.
Smith merely speculates that V.G.’s testimony that he threatened her with a firearm to get her to
comply was prejudicial as to the other offenses. Upon review of the record, we conclude that this
speculation is insufficient to establish that there was an obvious error that affected Mr. Smith’s
substantial rights as well as the extraordinary circumstances under which this Court would notice
such error. Mr. Smith’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
PRENTICE SMITH’S CONVICTIONS FOR RAPE AND KIDNAPPING AND
RELATED SPECIFICATIONS VIOLATED DUE PROCESS AND WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, CONTRARY TO
THE 5TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE 1, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
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{¶22} In his third assignment of error, Mr. Smith argues that his convictions were against
the manifest weight of the evidence. When considering a challenge to the manifest weight of the
evidence, this Court is required to consider the entire record, “weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine 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.” State v. Otten,
33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the greater amount
of credible evidence produced in a trial to support one side over the other side. State v. Thompkins,
78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its power to reverse a
judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson, 9th
Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.
{¶23} Mr. Smith argues that his testimony provided a more consistent explanation of the
evidence. Regarding V.G., he argues that there was no corroborating evidence that he had ever
owned or possessed a firearm, let alone that he threatened her with one during their encounter.
Regarding A.C., M.S., and T.S., he notes that it was undisputed that all the women willingly got
into Mr. Smith’s car. Two of the women also admitted that they agreed to have sex with him. He
argues that none of the alleged victims had any bruises or other signs of physical injury, including
to their private areas, despite claims by T.S. and M.S. that they fought with him and that he forced
them to have non-consensual vaginal and anal sex with him. According to Mr. Smith, the time of
day, location, and manner of initial contact with the women was also consistent with prostitution.
{¶24} Mr. Smith has not identified any significant inconsistencies between what the
women initially reported to law enforcement or medical personnel and their testimony at trial. The
fact that the women did not have visible injuries does not mean that they did not fight with Mr.
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Smith, and they all testified that they relented to the sexual conduct after Mr. Smith threatened,
scared, or overpowered them. Although two of the women acknowledged that they initially agreed
to have sex for money with Mr. Smith, they had changed their mind before the sexual conduct
occurred. Mr. Smith also admitted that he would sometimes trick prostitutes by misleading or
refusing to pay them after engaging in sexual conduct.
{¶25} The jury was in the best position to assess the credibility of the witnesses and decide
whether the women were telling the truth when they stated that they did not consent to sexual
intercourse with Mr. Smith. State v. Piatt, 9th Dist. Wayne No. 19CA0023, 2020-Ohio-1177, ¶
36. Upon review of the record, we conclude that Mr. Smith has not established that this is the
exceptional case where the evidence weighs heavily against his convictions. See id. at ¶ 37. Mr.
Smith’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
PRENTICE SMITH WAS DENIED DUE PROCESS WHEN THE TRIAL
COURT IMPOSED CONSECUTIVE SENTENCES FOR KIDNAPPING, IN
VIOLATION OF THE 5TH AND 14TH AMENDMENTS OF THE U.S.
CONSTITUTION AND ARTICLE 1, SECTIONS 1, 6, AND 10 OF THE OHIO
CONSTITUTION.
{¶26} In his fourth assignment of error, Mr. Smith argues that the trial court incorrectly
sentenced him to consecutive sentences. He argues that the trial court failed to make the findings
required by Section 2929.14(C)(4) to impose consecutive sentences, which violated his due
process rights. When reviewing a felony sentence, “[t]he * * * standard for review is not whether
the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court may vacate
or modify a felony sentence on appeal only if it determines by clear and convincing evidence”
that: (1) “the record does not support the trial court’s findings under relevant statutes[,]” or (2)
“the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
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1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the trier of
facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161
Ohio St. 469 (1954), paragraph three of the syllabus.
{¶27} Section 2929.14(C)(4) provides that, “[i]f multiple prison terms are imposed on an
offender for convictions of multiple offenses,” the sentencing court may require the offender to
serve the terms consecutively “if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses
to the public[.]” The court must also find “any” of the following:
(a) The offender committed one or more of the multiple offenses while the 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.
R.C. 2929.14(C)(4)(a-c).
{¶28} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, the Ohio Supreme Court
held that Section 2929.14(C)(4) “requires the trial court to make statutory findings prior to
imposing consecutive sentences,” and that Criminal Rule 32(A)(4) “directs the court to state those
findings at the time of imposing sentence.” Id. at ¶ 26. It explained, however, that a “word-for-
word recitation of the language of the statute is not required[.]” Id. at ¶ 29. Instead, “as long as
the reviewing court can discern that the trial court engaged in the correct analysis and can
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determine that the record contains evidence to support the findings, consecutive sentences should
be upheld.” Id.
{¶29} Mr. Smith notes that the trial court made the specific findings required under
Section 2929.14(C)(4)(b) in its sentencing entry. He argues, however, that it did not make the
requisite findings at the sentencing hearing.
{¶30} At the sentencing hearing, the trial court found that Mr. Smith was the worst form
of the offender and a threat to the community if he were ever allowed to walk free. We, therefore,
agree with the State that the court adequately found that consecutive sentences are necessary to
protect the public from future crime and that they are not disproportionate to the seriousness of
Mr. Smith’s conduct and to the danger he poses to the public. Regarding subsection (C)(4)(b), the
State argues that the court found that Mr. Smith committed at least two of the offenses as part of a
course of conduct because it commented on the fact that Mr. Smith would “pick up a woman who’s
in a vulnerable circumstance alone at night or in the morning walking by themselves.” The court
also found that Mr. Smith believed that just because a woman is walking along a street, that if she
would get into his car then it meant she was consenting to sex. The State argues that the court
found that the harm committed was so great that no single prison term would adequately reflect
the seriousness of Mr. Smith’s conduct when it stated that Mr. Smith’s conduct was some of the
“most egregious that I have ever witnessed” and he was “the worst form of the offender and a
threat to our community if you ever walk free.”
{¶31} Although the trial court did not use the exact language of the statute, we conclude
that it engaged in the correct analysis when it determined whether to order consecutive sentences.
Mr. Smith has not established that the trial court failed to comply with Section 2929.14(C)(4) or
violated his due process rights. Mr. Smith’s fourth assignment of error is overruled.
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III.
{¶32} Mr. Smith’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
FLAGG LANZINGER, J.
CONCURS.
STEVENSON, J.
CONCURS IN JUDGMENT ONLY.
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APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.