State v. Smith ( 2023 )

[Cite as State v. Smith, 2023-Ohio-3973.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112233
v. :
ALYSIA SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 2, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-639730-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michael Timms, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, Alysia Smith (“Smith”), appeals from her
conviction following a jury trial. She raises the following assignments of error for
review:
1. Appellant’s conviction is against the manifest weight of the evidence
because the record establishes that appellant acted in self-defense and
the convictions are otherwise against the manifest weight of the
evidence.
2. The court erred in denying appellant’s motion to dismiss in violation
of appellant’s due process rights under Article I, Section 10 of the Ohio
Constitution and under the Fifth and Fourteenth Amendments to the
United States Constitution.
3. It was plain error and the appellant’s state and federal constitutional
right to the effective assistance of counsel was violated when evidence
was admitted without objection in violation of evidence rules 401, 402,
403, and 404.
4. Appellant’s sentence is contrary to law because the imposition of an
indefinite sentence is unconstitutional.
After careful review of the record and relevant case law, we affirm
Smith’s conviction and sentence.
I. Procedural and Factual History
On May 14, 2019, Smith was named in a single-count indictment,
charging her with felonious assault in violation of R.C. 2903.11(A)(1). The
indictment stemmed from allegations that Smith physically assaulted her coworker,
A.G., on May 3, 2019. Following multiple continuances, the matter proceeded to a
jury trial on October 24, 2022.
At trial, A.G. testified that on May 3, 2019, she was working as a dancer
at the Hustler Club in Cleveland, Ohio. During her shift, A.G. performed a private
dance with an unidentified male in exchange for $150. A.G. testified that the male
became upset with her when she refused his attempts to engage in further sexual
conduct in the private room. The male began calling A.G. names and later
complained about her to his friend, Smith, who was also working as a dancer at the
Hustler Club that evening.
At the conclusion of her shift, A.G. was confronted by Smith in the
employee’s locker room. A.G. testified that Smith was “yelling and screaming,” and
threatened to “kick [her] ass” for “taking advantage” of Smith’s friend. (Tr. 188.)
A.G. described the events that transpired as follows:
So everyone in the locker room went silent. Said shut up, stop yelling
at her, and leave her alone and [Smith] wouldn’t. She comes around
the corner and starts yelling and screaming, you fucking bitch, you
cannot — you took advantage of him. That was my money for drugs —
all this shit.
***
[Smith] says that was my money you took. And I’m, like, I ignored it
for a few minutes. I just kept my head down and she wouldn’t stop. I
had to leave the locker room and I knew I had to walk past her and she
just wouldn’t shut up. I’m, like, everyone kept telling her stop, Alysia,
leave her alone because they knew I’m not like that. I don’t fight or
anything. * * * And then she — I kind of poked my head around the
corner and I said that’s what we do for men here, we dance for them,
and they pay us. I didn’t steal anything. And then she charged at me.
And then all I remember was trying to block my face because I had just
gotten a rhinoplasty, a nose job, four months prior, which I saved up a
long time for. * * * I couldn’t believe, like, what the hell is going on?
* * * I was protecting my face. She kept trying to — she was just, like,
swinging and kicking and I — I never fought anyone. I was trying to
protect my face and trying to push her away and screaming at her to
stop, leave me alone, and she wouldn’t.
The other girls jumped in and pulled her off me and both of us had our
arms to our sides by the other girls holding us back. And then all of a
sudden, she gets her arm out of the grip and jacks me in the face while
my arms are to my side. I just hear my nose crack. * * * There’s blood
everywhere. And, yeah, that’s it.
(Tr. 189-191.)
Following the altercation, A.G. called 911 to report the assault. The
police arrived at the scene and took pictures of A.G.’s face and the injury to her nose.
A.G. later drove herself to MetroHealth Hospital, where it was determined that she
had a fractured nasal bone.
The incident was captured by the club’s surveillance monitoring system
in its entirety. The video, marked state’s exhibit No. 1, was played for the jury while
A.G. narrated the events as they transpired. In relevant part, A.G. maintained that
she did not initiate, provoke, or otherwise participate in the physical altercation with
Smith. Rather, A.G. testified that she was only concerned with protecting her face,
stating, “I didn’t want to hit her. I didn’t want to fight her. I wanted it to stop. I
didn’t want anyone to get hurt.” (Tr. 196.)
On cross-examination, A.G. admitted that her medical records
indicated that she tested positive for ETOH (alcohol). She maintained, however,
that she was not impaired at the time of the altercation. Regarding the physical
altercation, A.G. reiterated that she did not wish to fight Smith and was attempting
to defuse the situation. A.G. clarified that although she was primarily concerned
with the single punch that broke her nose, Smith also pulled her hair, struck her on
the side of the head, and kicked her during the altercation. Finally, A.G. denied
defense counsel’s suggestion that she initiated the physical confrontation by
“coming at [Smith]” while raising her hands in a “threatening” manner. A.G.
explained that she was “verbally telling [Smith] to stop” and “was holding [her]
hands in the air kind of exasperated. I wanted to leave.” (Tr. 244, 248.)
Detective Bruce Garner (“Det. Garner”) of the Cleveland Police
Department testified that he was assigned to investigate the allegations of assault
levied against Smith in this matter. In the course of his investigation, Det. Garner
conferred with A.G., gained access to A.G.’s medical records, obtained a copy of the
surveillance video from the Hustler Club, and interviewed Smith while she was in
county jail. During the interview, which was captured by Det. Garner’s body camera,
Smith indicated that she did not recall the physical altercation with A.G. and did not
even know A.G.’s name. (Tr. 291.)
At the conclusion of the state’s case, Smith made a motion for acquittal
pursuant to Crim.R. 29, which the trial court denied.
Smith testified on her own behalf. She confirmed that she was working
as a dancer at the Hustler Club on May 3, 2019, and that she was familiar with the
male A.G. had approached in the club that evening. Smith maintained that the
unidentified male alleged that A.G. had stolen money from him during a private
dance. Smith testified that when she confronted A.G. in the employee locker room,
A.G. denied stealing money from the male. Smith admitted that she did not believe
A.G. and called her a “money hungry * * * B word.” (Tr. 303.) According to Smith,
the verbal argument escalated into a physical dispute once A.G. came around the
corner of the locker room and “charged at [her]” while holding something in her
hand. (Tr. 304.) Smith testified that she had no intention of fighting A.G. and that
she was acting in self-defense when she first kicked A.G. She explained her reaction
as follows:
I reacted. I was afraid. I mean, this is my first fight — outside of martial
arts. We’re taught self-defense and discipline. That’s the first time I
had to use it and you cannot be the aggressor.
(Tr. 311.) Smith maintained that she unknowingly made contact with A.G.’s nose
while she was attempting to shove A.G. away from her while they were on the
ground.
At the close of the defense’s case, Smith renewed her motion for
acquittal, which the trial court denied.
On October 26, 2022, the jury found Smith guilty of felonious assault,
a felony of the second degree. Over defense counsel’s objection, Smith was
sentenced to an indefinite prison term of 4 to 6 years pursuant to the Reagan Tokes
Law, effective March 22, 2019.
Smith now appeals from her conviction and sentence.
II. Law and Analysis
A. Sufficiency of the Evidence
We address Smith’s assignments of error out of order for the ease of
discussion. In the second assignment of error, Smith argues the trial court erred
when it denied her motion for acquittal under Crim.R. 29 because the state failed to
present sufficient evidence to support her conviction. Smith contends that the
evidence “fails to establish beyond a reasonable doubt that [she] possessed the
required mental state that is a necessary element of the conviction for felonious
assault.”
Crim.R. 29(A) provides that a court “shall order the entry of the
judgment of acquittal of one or more offenses * * * if the evidence is insufficient to
sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion
questions the sufficiency of the evidence, ‘[w]e apply the same standard of review to
Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.’”
Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37,
quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
A sufficiency challenge requires a court to determine whether the state
has met its burden of production at trial and to consider not the credibility of the
evidence but whether, if credible, the evidence presented would sustain a conviction.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273,
574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979).
“‘Proof of guilt may be made by circumstantial evidence, real evidence,
and direct evidence, or any combination of the three, and all three have equal
probative value.’” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 35 (8th
Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 18.
Although circumstantial evidence and direct evidence have obvious differences,
those differences are irrelevant to the probative value of the evidence, and
circumstantial evidence carries the same weight as direct evidence. Id., citing State
v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Further,
circumstantial evidence is not only sufficient, “‘“but may also be more certain,
satisfying, and persuasive than direct evidence.’”” Id. at ¶ 36, quoting State v.
Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, quoting Michalic v.
Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
As stated, Smith was convicted of felonious assault in violation of R.C.
2903.11(A)(1). The statute provides that “[n]o person shall knowingly * * * [c]ause
or attempt to cause serious physical harm to another * * *.”
“A person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B).
Serious physical harm is defined in R.C. 2901.01(A)(5) as any of the
following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged
or intractable pain.
Although the definition of serious physical harm is given in the
statute, “‘[t]he degree of harm that rises to the level of “serious” physical harm is not
an exact science, particularly when the definition includes such terms as
“substantial,” “temporary,” “acute,” and “prolonged.’”” State v. Montgomery, 8th
Dist. Cuyahoga No. 102043, 2015-Ohio-2158, ¶ 11, quoting State v. Miller, 8th Dist.
Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18, quoting State v. Irwin, 7th Dist.
Mahoning No. 06MA20, 2007-Ohio-4996, ¶ 37. Because the element of serious
physical harm is fact dependent, it must be reviewed on a case-by-case basis and
under the totality of the circumstances presented therein.
This court has recognized “that the element of serious physical harm
is satisfied when the evidence shows that the victim sustained injuries requiring
medical treatment, including stitches.” State v. Williams, 8th Dist. Cuyahoga No.
98210, 2013-Ohio-573, ¶ 19. Similarly, Ohio courts have repeatedly stated that
“where the assault causes a bone fracture, the element of serious physical harm is
met.” Montgomery at ¶ 13, quoting State v. Lee, 8th Dist. Cuyahoga No. 82326,
2003-Ohio-5640, ¶ 24, citing State v. Thomas, 9th Dist. Summit No. 18881, 1999
Ohio App. LEXIS 489 (Feb. 19, 1999); State v. Childers, 4th Dist. Jackson No. 96 CA
785, 1997 Ohio App. LEXIS 2599 (June 11, 1997); State v. Manning, 4th Dist. Adams
No. 94 CA 582, 1995 Ohio App. LEXIS 2311 (May 26, 1995). See also State v. Noah,
8th Dist. Cuyahoga No. 110664, 2022-Ohio-1315, ¶ 10 (“a broken nose is sufficient
to constitute serious physical harm”), citing State v. Daniels, 14 Ohio App.3d 41, 469
N.E.2d 1338 (1st Dist.1984) (evidence of broken nose and swollen face sufficient to
support the element of “serious physical harm.”).
After careful review of the record, we find that the state presented
sufficient evidence to support Smith’s felonious-assault conviction. In this case,
A.G. testified that Smith started an unprovoked verbal altercation that became
physical once A.G. made a statement concerning her interaction with Smith’s male
acquaintance. According to A.G., Smith kicked her and then “took [her] by the head
and threw [her] to the ground.” (Tr. 196.) Smith then pulled A.G.’s hair and “kept
pummeling [her] back” while A.G. attempted to “protect [her] head.” (Tr. 197.) A.G.
explained that once she and Smith were separated, Smith broke free and punched
A.G. “in the face while [her] arms were to [her] side.” (Tr. 190.) A.G. stated that she
heard her nose crack, and immediately felt like her face “was on fire.” (Tr. 191.) A.G.
explained that her nose was swollen, bleeding excessively, and “twisted to the left.”
(Tr. 204.)
A.G.’s testimony was corroborated by surveillance video footage taken
from inside the club’s employee locker room. In relevant part, the video depicts
Smith verbally accosting A.G. while A.G. was getting dressed after her shift. The
confrontation remained verbal until A.G. stood up from her chair and turned
towards Smith. At that time, Smith immediately “charged at [A.G.]” and kicked her
in the midsection. (Tr. 189.) A.G. and Smith then engaged in a tussle that caused
them each to fall to the ground. When the two women were separated by their
colleagues and the confrontation ended, A.G. was bleeding from her nose. A.G.
subsequently sought emergency medical treatment and was diagnosed with a
fractured nasal bone.
Viewing the evidence in the light most favorable to the state, we find
a reasonable tier of fact could find, beyond a reasonable doubt, that Smith knowingly
struck A.G. in the face, causing serious physical harm, i.e., physical harm that
“involves some temporary, serious disfigurement.” R.C. 2901.01(A)(5). Contrary to
Smith’s position on appeal, the trier of fact was justified in inferring that Smith was
aware her conduct would probably cause serious physical harm when she struck
A.G. in the face while she was in a defenseless position.
The second assignment of error is overruled.
B. Manifest Weight of the Evidence
In the first assignment of error, Smith argues her conviction is against
the manifest weight of the evidence. She contends “that the jury’s conclusion that
the state met its burden of persuasion and had disproved the affirmative defense of
self-defense beyond a reasonable doubt [is] against the manifest weight of the
evidence.”
Under Ohio law, a person is permitted to act in self-defense. R.C.
2901.05(B)(1). In cases involving the use of nondeadly force, the affirmative defense
of self-defense applies where:
(1) the defendant was not at fault in creating the situation giving rise to
the affray in which the use of force occurred, (2) the defendant had
reasonable grounds to believe and an honest belief, even if mistaken,
that he or she was in imminent danger of bodily harm and (3) the only
means to protect himself or herself from such danger was the use of
force not likely to cause death or great bodily harm, i.e., the defendant
did not use more force than was reasonably necessary to defend against
the imminent danger of bodily harm.
State v. Jacinto, 2020-Ohio-3722, 155 N.E.3d 1056, ¶ 43 (8th Dist.), citing Ohio Jury
Instructions, CR Section 421.19 (Rev. Apr. 13, 2019); State v. Kilbane, 8th Dist.
Cuyahoga No. 106753, 2019-Ohio-863, ¶ 13; State v. Hunt, 8th Dist. Cuyahoga No.
94534, 2011-Ohio-92, ¶ 20; Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-
6441, 863 N.E.2d 1125, ¶ 19 (8th Dist.); State v. Chavez, 3d Dist. Seneca Nos. 13-19-
05, 13-19-06, and 13-19-07, 2020-Ohio-426, ¶ 40. There is no duty to retreat to
avoid the danger in cases involving the use of nondeadly force, even if retreat is
possible. Welms at ¶ 19; Chavez at ¶ 40.
Pursuant to R.C. 2901.05(B)(1), if evidence is presented at trial “that
tends to support that the accused person used the force in self-defense” then “the
prosecution must prove beyond a reasonable doubt that the accused person did not
use the force in self-defense.” In other words, if the accused satisfies the burden of
presenting evidence that tends to support that they acted in self-defense, the burden
shifts to the state to disprove at least one of the elements above. Jacinto at ¶ 46. The
state’s burden of persuasion is subject to a manifest-weight review on appeal. State
v. Smith, 8th Dist. Cuyahoga No. 111593, 2023-Ohio-1296, ¶ 52, citing State v.
Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 27.
When considering a defendant’s claim that a conviction is against the
manifest weight of the evidence, the appellate court functions as a “thirteenth juror”
and may disagree “with the factfinder’s resolution of * * * conflicting testimony.”
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S.
31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the
entire record, weighs the evidence and all reasonable inferences that may be drawn
therefrom, considers the witnesses’ credibility and determines whether, in resolving
conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983). Reversal on manifest weight grounds is reserved for the
“‘exceptional case in which the evidence weighs heavily against the conviction.’” Id.,quoting Martin at 175.
In addition, a trier of fact is free to believe all, some, or none of the
testimony of each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No.
108371, 2020-Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649,
2019-Ohio-528, ¶ 100. Thus, “[a] conviction is not against the manifest weight of
the evidence simply because the jury believed the testimony of the state’s witnesses
and disbelieved the defendant.” State v. Jones, 8th Dist. Cuyahoga No. 108371,
2020-Ohio-3367, ¶ 85.
On appeal, Smith suggests that the greater weight of the evidence
demonstrates that she acted in self-defense during the physical confrontation with
A.G. on May 3, 2019. Alternatively, Smith contends that the jury clearly lost its way
in finding her guilty of felonious assault because “there is no evidence that she acted
knowingly or with any specific purpose to cause injury or harm to [A.G].” Smith
asserts that she was merely attempting to push A.G. away and did not intend to
strike her nose.
We disagree with Smith’s interpretation of the relevant evidence
adduced at trial. Viewing the record in its entirety, we cannot say the jury lost its
way when it negated Smith’s self-defense claim and found any one of the following
to be true: (1) Smith was at fault in creating the situation giving rise to the affray, or
(2) Smith did not have a bona fide belief that she was in imminent danger of bodily
harm, or (3) Smith’s only means to protect herself from such danger was the use of
nondeadly force. In this case, the jury heard directly from Smith and A.G.
concerning their roles in the physical altercation and the events immediately
preceding and following the incident. The altercation was captured by the club’s
surveillance system in its entirety, and the jury was capable of comparing the video
evidence to the conflicting testimony offered by A.G. and Smith. As previously
discussed, the video footage captured the parties’ movements and demonstrated
that Smith not only escalated the situation by verbally threatening A.G., but further
initiated the physical altercation by closing the space between her and A.G. and
kicking A.G. in the midsection. A.G. testified that during the scuffle that then
ensued, Smith deliberately struck her in the face while she was in a defenseless
position, resulting in a fractured nasal bone. Under these circumstances, the jury’s
determination that the state’s evidence was more credible than Smith’s was not
against the manifest weight of the evidence and did not result in a miscarriage of
justice. This is not the exceptional case in which the evidence weighs heavily against
Smith’s conviction for felonious assault.
Smith’s first assignment of error is overruled.
C. Admission of Evidence
In the third assignment of error, Smith argues defense counsel
rendered ineffective assistance of counsel by failing to object to the state’s
introduction of irrelevant, other-acts evidence. Alternatively, Smith contends that
the trial court committed plain error by admitting the disputed testimony into
evidence.
A criminal defendant has the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 685-686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). As a general matter, to establish ineffective assistance of counsel, a
defendant must demonstrate (1) deficient performance by counsel, i.e., that
counsel’s performance fell below an objective standard of reasonable
representation; and (2) that counsel’s errors prejudiced the defendant, i.e., a
reasonable probability that but for counsel’s errors, the outcome of the proceeding
would have been different. Id. at 687-688, 694; State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.”
Strickland at 694.
In Ohio, a properly licensed attorney is presumed to be competent.
State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Because there are
“countless ways to provide effective assistance in any given case,” the court must
give great deference to counsel’s performance and “indulge a strong presumption”
that counsel’s performance “falls within the wide range of reasonable professional
assistance.” Strickland at 689; see also State v. Powell, 2019-Ohio-4345, 134
N.E.3d 1270, ¶ 69 (8th Dist.) (‘“A reviewing court will strongly presume that counsel
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.’”), quoting State v. Pawlak, 8th Dist. Cuyahoga
No. 99555, 2014-Ohio-2175, ¶ 69.
In this case, Smith’s evidentiary arguments rely on the introduction of
the following evidence (1) testimony that Smith “was out of her mind on drugs and
drinking,” (2) testimony that Smith is a “wild uncaged animal,” (3) testimony that
Smith is “unhinged,” and (4) testimony that Smith previously engaged in sex in
exchange for money. (Tr. 196, 198-199, 248.) Smith contends that the foregoing
testimony was irrelevant and otherwise constituted unsubstantiated other-acts
evidence.
Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” In general, “[e]vidence that [a defendant] committed a
crime other than the one for which he is on trial is not admissible when its sole
purpose is to show the accused’s propensity or inclination to commit crime or that
he acted in conformity with bad character.” State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. However, evidence of other crimes,
wrongs, or acts may be admissible “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Evid.R. 404(B).
To determine whether other-acts evidence is admissible, the court
considers whether (1) the other-acts evidence is relevant to making any fact that is
of consequence to the determination of the action more or less probable than it
would be without the evidence (Evid.R. 401); (2) the evidence of the other crimes,
wrongs, or acts is presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts evidence is presented for
a legitimate purpose, such as those stated in Evid.R. 404(B); and (3) the probative
value of the other-acts evidence is substantially outweighed by the danger of unfair
prejudice. Williams at ¶ 20.
The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is
a question of law. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161
N.E.3d 651, ¶ 22. The court is precluded from admitting improper character
evidence under Evid.R. 404(B), but it has discretion to allow other-acts evidence
that is admissible for a permissible purpose. Hartman at ¶ 22, citing Williams at
¶ 17.
Viewing the challenged testimony in context, we are unable to
conclude that defense counsel rendered ineffective assistance of counsel by failing
to raise timely objections to the state’s evidence. Preliminarily, we note that defense
counsel did, in fact, successfully object to A.G.’s speculation that Smith was “out of
her mind on drugs and drinking.” (Tr. 196-197.) The court later instructed the jury
that disregarded answers do not constitute evidence and that the jury is not to
speculate as to why the court sustained an objection raised by either side. (Tr. 353.)
Counsel was not deficient in this instance.
With respect to A.G.’s testimony that (1) Smith met the stereotype of
an unhinged dancer, and (2) she learned from the unidentified male that “[Smith]
gets money from him for sex,” we note that these statements were elicited by defense
counsel on cross-examination. (Tr. 248.) It is apparent that defense counsel raised
the foregoing issues on cross-examination in an attempt to emphasize that despite
A.G.’s generally unfavorable opinions of exotic dancers, she too was also employed
as a dancer at the Hustler Club at the time of the incident. We have held that “trial
counsel’s decision to cross-examine a witness and the extent of such cross-
examination are tactical matters.” State v. Russell, 2d Dist. Montgomery No. 21458,
2007-Ohio-137, ¶ 55. “A reviewing court may not second-guess decisions of counsel
which can be considered matters of trial strategy.” State v. Conley, 2015-Ohio-2553,
43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d
1128 (1985). “Debatable strategic and tactical decisions may not form the basis of a
claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better
strategy had been available.” Id., citing State v. Cook, 65 Ohio St.3d 516, 524, 605
N.E.2d 70 (1992).
Nevertheless, even if this court were to construe A.G.’s isolated
reference to Smith’s alleged sexual practices at the club and her characterization of
Smith as an intoxicated, unhinged, wild animal as irrelevant or otherwise
inadmissible other-acts evidence, we are unable to conclude that, but for the
challenged testimony, the outcome of Smith’s trial clearly would have been different.
While A.G.’s unprompted insinuations about Smith’s character were unnecessary
and, perhaps, inappropriate, A.G.’s statements did not negate the evidence
demonstrating that Smith initiated a fight with A.G. over money that resulted in A.G.
suffering a broken nose. Under these circumstances, Smith has failed to
demonstrate the requisite level of prejudice to establish an ineffective assistance of
counsel claim. For these same reasons, we reject Smith’s alternative position that
the trial court committed plain error by admitting the disputed portions of A.G.’s
testimony.
The third assignment of error is overruled.
D. The Reagan Tokes Law
In this fourth assignment of error, Smith argues the trial court erred
in sentencing her to an indefinite sentence under the Reagan Tokes Law. Smith
contends that the Reagan Tokes Law violates constitutional guarantees of both
substantive and procedural due process, the separation-of-powers doctrine, and the
right to trial by jury. In State v. Hacker, Slip Opinion No. 2023-Ohio-2535, the Ohio
Supreme Court upheld the constitutionality of the Reagan Tokes Law. The
arguments presented in this case do not present novel issues or any new theory
challenging the constitutional validity of any aspect of the Reagan Tokes Law left
unaddressed by the Ohio Supreme Court’s decision in Hacker.
The fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
SEAN C. GALLAGHER, J., CONCUR