[Cite as State v. Smith, 2018-Ohio-4615.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                              :         APPEAL NO. C-170335
                                                       TRIAL NO. B-160893
        Plaintiff-Appellee,                 :
                                                          O P I N I O N.
  vs.                                       :

MICHAEL SMITH,                              :

     Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 16, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
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M OCK , Presiding Judge.

       {¶1}    Defendant-appellant Michael Smith was indicted on two counts of

rape, in violation of R.C. 2907.31(A)(2), three counts of gross sexual imposition, in

violation of R.C. 2907.02(A)(4), and one count of disseminating matter harmful to a

juvenile, in violation of R.C. 2907.21(A)(1). Smith was originally tried on the charges

contained in the indictment in late January 2017. The case was presented to a jury,

but the jurors were unable to reach a verdict. The trial court declared a mistrial, and

the matter proceeded to a second jury trial before a visiting judge. At the conclusion

of the second trial, Smith was found guilty of three counts of gross sexual imposition

and one count of disseminating matter harmful to a juvenile, and was sentenced

accordingly.

       {¶2}    In five assignments of error, Smith claims that he was improperly

convicted. We affirm.

                         Granddaughter Claims Molestation

       {¶3}    V.M. was Smith’s daughter. She testified that Smith had molested her

over the course of several years in the 1980s. She said that he had shown her

photographs of her mother naked, as well as pornographic material. One instance

was witnessed by V.M.’s sister, L.S. L.S. testified that she had seen Smith fondle

V.M.’s breasts and vagina. When V.M. told her mother about the incident, Smith was

arrested and charged with two counts of sexual battery. The matter proceeded to

trial in 1986, and Smith was acquitted of both charges.

       {¶4}    Over 19 years later, Smith was involved in another incident involving

a minor, female relative. R.E. was the ten-year-old daughter of M.S., V.M.’s niece,

and Smith’s granddaughter. M.S. allowed R.E. to spend the night at Smith’s home

with the understanding that Smith would be taking her to see a movie. R.E. testified

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that, during the evening of that visit, Smith rubbed oil on her buttocks, breasts, and

vagina under the guise of applying it to her skin to help with itching. She testified

that Smith also licked her breasts and vagina, and that he showed her a pornographic

movie. She further testified that Smith later rubbed her vagina again as she was

falling asleep. R.E. testified that the next morning, Smith put her hand on his penis,

pushed his penis against her buttocks, and then tried to pull down her underwear.

Later that day, R.E. told her mother what had happened.

       {¶5}    R.E.’s mother testified that she had been estranged from Smith for

many years, but had been trying to reconnect with him. She recounted that her sister

had told her that Smith had molested her, but she did not believe that it had

occurred. She testified that she noticed that R.E. was acting strangely after having

been to Smith’s home. She said that Smith was also acting strangely. R.E.’s mother

then testified that R.E. told her what she claimed Smith had done. R.E.’s mother

called Smith and asked him about what R.E. had told her. In the call, which R.E.’s

mother recorded, Smith insisted that, if anything had happened, it was accidental.

       {¶6}    Smith testified that while he had rubbed oil on R.E.’s body, he had not

done so with a sexual motivation. He also denied showing R.E. a pornographic

movie, claiming that he accidently played a sex scene from an R-rated movie while

trying to play a children’s program.

       {¶7}    Cincinnati Police Detective Sharon Johnson testified about her

investigation of the incident.         She testified that, during the course of her

investigation, she made reference to reviewing an “old office file,” which was

presumably the police file from the 1986 investigation involving V.M. and Smith. At

trial, after the parties had rested their cases, but before closing argument, defense

counsel raised the issue that the 1986 police file had not been turned over during


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discovery, but did not seek a sanction for this omission. Counsel “just wanted to

place it on the record.”

                            Testimony About Prior Conduct

         {¶8}    In his first assignment of error, Smith argues that the trial court erred

when it allowed testimony relating to his alleged conduct that had been the subject of

his 1986 prosecution for sexual battery—a prosecution that had resulted in his

acquittal.

         {¶9}    Generally, evidence of other crimes, wrongdoing, or acts is not

admissible to prove that an individual acted in conformity with that past conduct.

Evid.R. 404(B). But the rule provides certain exceptions for when such evidence is

admitted to establish proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Id. The admission of other-

acts evidence under Evid.R. 404(B) rests within the broad discretion of the trial

court.    State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528,

syllabus. We review the trial court's decision under an abuse-of-discretion standard.

Id.

         {¶10}   The Ohio Supreme Court has set forth a three-part test to determine

when a trial court may allow testimony about the actions of a defendant in a prior

incident involving a different victim. State v. Smith, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278. When making that decision, the court must consider: (1)

whether the other-acts evidence is relevant to making a finding that is of

consequence more or less probable than it would have been without the evidence; (2)

whether the evidence is presented to prove the character of the accused in order to

show action in conformity therewith or whether it was presented for a legitimate




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purpose; and (3) whether the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice. Id. at ¶ 20.

       {¶11}    As to the first step, we conclude that the evidence was relevant. The

evidence from the witnesses tended to show the motive Smith had, and the

preparation and plan he exhibited when targeting young, female family members

under his care. In both instances, Smith had waited until the children were isolated,

showed them pornographic images, rubbed their bodies with his hand first, and

progressed to involving his genitals in the abuse. This evidence was also relevant to

counter his assertion that any inappropriate touching had been accidental, and had

not been motivated by a desire for sexual gratification.

       {¶12}   We next conclude that the evidence was properly admitted under the

exceptions to Evid.R. 404(B). The evidence was admitted to show motive, intent,

and absence of a mistake. The trial court repeatedly warned the jury that it was to

consider the evidence only for that limited purpose and that it could not consider the

evidence as improper character evidence.         A jury is presumed to follow the

instructions given it by a trial judge. State v. Garner, 74 Ohio St.3d 49, 59, 656

N.E.2d 623 (1995).

       {¶13}   Finally, we conclude that the probative value of the evidence was not

substantially outweighed by unfair prejudice to Smith. The trial court’s repeated

instructions on the limited use of the evidence guarded against the danger of undue

prejudice. See Smith, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 24.

The effect of the testimony presented by V.M. and L.S. was not so unfairly prejudicial

that the trial court abused its discretion when admitting it.

       {¶14}   Smith also argues that the state should have been estopped from

presenting this evidence because he had been acquitted of the charges associated


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with that conduct. But this court has held that “collateral estoppel does not bar the

state’s use of other acts evidence pursuant to Evid.R. 404(B), when the evidence

relates to alleged criminal conduct of which the accused has previously been

acquitted.” In re Burton, 160 Ohio App.3d 750, 2015-Ohio-2210, 828 N.E.2d 719, ¶

14 (1st Dist.). This is because “the relevance of evidence offered under Rule 404(B)

[is] governed by a lower standard of proof than that required for a conviction.”

United States v. Felix, 503 U.S. 378, 386, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992).

       {¶15}   As the Ohio Supreme Court stated, Evid.R. 404(B) precludes the

admission of

       evidence of crimes, wrongs, or acts offered to prove the character of an

       accused in order to demonstrate conforming conduct, and it affords

       the trial court discretion to admit evidence of other crimes, wrongs, or

       acts for “other purposes,” including, but not limited to, those set forth

       in the rule. Hence, the rule affords broad discretion to the trial judge

       regarding the admission of other acts evidence.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 17. In

this case, the trial court did not abuse its discretion when it allowed the testimony of

V.M. and L.S. relating to Smith’s prior conduct.           We overrule Smith’s first

assignment of error.

                            Discovery of 1986 Police File

       {¶16}   In his second assignment of error, Smith claims that the trial court

erred when it failed to order the state to turn over a copy of the police report from the

1986 incidents that made up the testimony of V.M. and S.L. We disagree.

       {¶17}   During the course of the trial, Detective Johnson testified that she had

found a copy of the 1986 file while investigating the allegations involving R.E. After

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the proceedings had concluded that day, counsel for Smith “informally requested” a

copy of the file by text message. Nothing more came of the matter until counsel met

with the trial court in chambers to discuss closing arguments, after both parties had

rested. The following exchange took place:

               Defense Counsel: As was discussed preliminarily, and [to]

       place [it] on the record now, Detective Johnson testified yesterday

       with regards to her investigation and then in testifying, she made

       reference to examining [an] “old office file” on the case that [lead] to

       the charge from 1986 [case].

               That material was not provided to defense counsel. I don’t

       know what the matter - - that the evidence - - that that file was actually

       presented to the Prosecutor on this case as well.

               But in any case, it wasn’t presented to us. We made efforts to

       obtain various documents from the case in 1986[:] transcript, police

       reports, clerk’s records, things of that nature[. W]e were very limited

       in our ability to get those materials, and certainly we did not, [to]

       reiterate, did not get anything that we believe was in the office file that

       Detective Johnson referenced. Thank you.

               The Court: You are not asking for a remedy? I didn’t hear a

       request for a remedy?

               Defense Counsel: We are not asking for a remedy at this

       time. Just wanted to place it on the record.

       {¶18}   In this case, Smith has not established that the state was aware of the

1986 police file, has not established that he was entitled to its contents as part of the

normal discovery process, did not involve the trial court in seeking to obtain a copy


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of the police report, and sought no remedy from the trial court in light of his failure

to obtain the report. While Smith characterizes the above colloquy as a “second

request for the police file,” nothing in that exchange can be read as a request for the

file, and Smith requested no remedy for the state’s alleged failure to disclose it. We

overrule Smith’s second assignment of error.

                                  Prosecutorial Misconduct

       {¶19}    In his third assignment of error, Smith claims that his convictions

should be reversed because of misconduct by the prosecuting attorney. Generally,

prosecutorial misconduct will not provide a basis for overturning a conviction unless,

on the record as a whole, the misconduct can be said to have deprived the defendant

of a fair trial. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d

508, ¶ 257. The test for whether prosecutorial misconduct mandates reversal is

whether the prosecutor's remarks or actions were improper, and, if so, whether they

prejudicially affected the substantial rights of the accused. State v. Smith, 97 Ohio

St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45.

       {¶20}    Smith first submits that the prosecutor violated the rules of discovery

when the state failed to produce a copy of the 1986 police file referenced by Detective

Johnson. But we are unable to determine what information was contained in that

file, so we cannot say that the state was obligated to produce it in discovery. While

Smith argues that the file could have contained police reports, witness statements,

and medical records, there is nothing in the record to support that supposition. The

detective was not questioned about the details of the contents, Smith did not ask that

the file be presented to the trial court for review, and Smith did not ask that the file

be preserved in the record for this court to review. Smith never made a formal

discovery request for the file.

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       {¶21}    The appellant has the burden on appeal to establish error in the trial

court. State v. Carter, 9th Dist. Summit No. 21622, 2003-Ohio-7170, ¶ 6, citing Knapp

v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). On this

record, Smith has failed to demonstrate that the 1986 police record contained

information that the state was required to produce in discovery.

       {¶22}    Smith also claims that the state engaged in misconduct when it “failed

to correct false testimony in the second trial.” In a claim of prosecutorial misconduct

based on the use of false or perjured testimony, the defendant has the burden to

“show that (1) the statement was actually false; (2) the statement was material; and

(3) the prosecution knew it was false.” State v. Iacona, 93 Ohio St.3d 83, 97, 752

N.E.2d 937 (2001), quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th

Cir.1989).

       {¶23}    In this case, Smith bases his claim on the assertion that, during the

first trial, M.S. testified that V.M. had “told me the full, everything, when she told me

everything what [sic] happened.” During the second trial, on the other hand, V.M.

testified that she had told no one about what had happened to her except the jurors

during the 1986 trial. Also, during the second trial, M.S. testified that that she had

not heard the specifics of what allegedly had happened to V.M. at the hands of Smith.

The state relied on this testimony during closing arguments to rebut the defense

theory that the details from V.M.’s accounts had been used to enhance or create the

account of what had happened to R.E.

       {¶24}    “Mere inconsistencies in testimony do not establish the knowing use of

false testimony by the prosecutor.” State v. Buck, 2017-Ohio-8242, 100 N.E.3d 118, ¶ 76

(1st Dist.), quoting State v. Widmer, 12th Dist. Warren No. CA2012-02-008, 2013-Ohio-

62, ¶ 41. Additionally, the fact “that a witness contradicts [herself] or changes [her] story


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also does not establish perjury.” Id. As the state points out, there are reasons that M.S.

could have characterized what V.M. had told her in different ways without

demonstrating that one of the versions is false. Further, examining the Iacona factors,

Smith has not established that the second version of M.S.’s testimony was false, just that

it could be read as inconsistent with her first statement. That is insufficient to establish

that the state engaged in misconduct when presenting and relying upon the testimony.

       {¶25}    Finally, Smith argues that statements made by the prosecutor during

closing arguments were improper. The test regarding prosecutorial misconduct in

closing arguments is whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant. State v. Smith, 14 Ohio St.3d

13, 14, 470 N.E.2d 885 (1984). “[T]he touchstone of due process analysis in cases of

alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the

prosecutor.” Smith v. Phillips, 455 U.S. 209, 220, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

“A prosecutor is entitled * * * to ‘wide latitude in summation as to what the evidence has

shown and what reasonable inferences may be drawn therefrom.’ ” State v. McKelton,

148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 274, quoting State v. Stephens,

24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970).

       {¶26}    Defense counsel offered no objection to these alleged instances of

prosecutorial misconduct. Smith is thus precluded from predicating error on these

alleged improprieties, unless they rise to the level of plain error. See Crim.R. 52(B);

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23. To

constitute plain error, an error must be an obvious defect that would clearly, but for the

error, have resulted in a different outcome of the trial. State v. Neyland, 139 Ohio St.3d

353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 177, quoting State v. Long, 53 Ohio St.2d 91, 97,

372 N.E.2d 804 (1978).


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       {¶27}     During the state’s rebuttal closing argument, the prosecutor said that

                 I’ve been doing this for a very long time. I can’t tell you of a

       number of trials where a jury, much like yourselves have come back and

       said not guilty. Just because a jury says not guilty doesn’t mean it didn’t

       happen.

                 I can tell you from my own experience, juries say not guilty for a

       variety of reasons. Some of them are logical. Some of them, in my

       opinion, are not so logical, and it’s frustrating. Just because a group of

       people said not guilty doesn’t mean it didn’t happen.

       {¶28}     These comments were made by the state in response to defense counsel’s

argument, which had attempted to discredit the state’s other-acts evidence involving the

1986 investigation and trial. Defense counsel had argued that

                 Now what angers me as a defense attorney is that we even have to

       talk about that case from 1986. We live in a country where you stand

       accused. You face your accuser, you have your day in Court, you clear

       your name. The end. It’s over.

                 But the State of Ohio’s found [a way] to make that not the case.

       That Michael Smith essentially has to stand trial not just for these

       allegations here, but also for that case back in 1986.

                 And that, folks, not guilty verdicts have to mean something.

                 And again, from my humbled position as a defense attorney, I

       think that’s fundamentally unfair, but, yet, that’s what he does, okay? He

       stands up back then, he stands up now defending himself. He puts that

       case from 1986 behind him. End of story.




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                I find it fundamentally unfair but I acknowledge the State has

       used it today. But ask yourself, why did the State use it? Okay.

                The State has to use it because they know the case they currently

       have before you, this current case, January 26th, it feels thin, okay?

       There’s no physical evidence. We have the allegations. We don’t have

       anything concrete in your hand to back it up. So, yeah, let’s strengthen

       our case, let’s bring in these old allegations, and that’s what they’ve done.

       {¶29}    In light of the context of the argument of counsel, we conclude that the

statements made by the prosecutor were ill-advised but did not rise to the level of plain

error. The prosecutor was making the point that the failure of a jury to convict is not the

same as establishing that the underlying events did not occur. The same argument could

have—and perhaps should have—been made by reference to the jury instructions on

reasonable doubt, the state’s burden, and the jury’s role without reference to the

prosecutor’s personal experience. We do not agree with Smith that the argument

introduced facts that were not presented during the course of the trial.

       {¶30}    Smith next cites comments that the prosecutor made relating to a delay

between when the incident was first investigated and when the prosecution commenced.

Smith’s counsel had cited the delay as evidence of sloppy police work during defense’s

closing argument. In rebuttal, the prosecutor discussed the delay, saying that

                I’ll tell you all right now, I’m the one who scheduled the grand

       jury.   The reason the case came over in February and did not get

       scheduled until April was because it sat on my desk. It had absolutely

       nothing to do with poor police work, with us not thinking we have a good

       case, I just had other stuff going on and it sat on my desk. It had




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       absolutely nothing to do with the strength of my case, and anything [the

       investigator] did wrong. That is on me.

       {¶31}    The difference between this example and the previous one is that this

statement by the prosecutor injects a specific series of events into the timeline of the case

that was not presented to the jury in the form of admissible evidence. The specific facts

surrounding any preindictment delay were not testified to. The prosecutor asked the

jury to accept as true statements about the course of events that had no direct or

inferential support from the evidence that had been submitted. This was improper.

       {¶32}    But establishing that a remark was improper is insufficient to establish

that the convictions must be reversed. Smith must also establish prejudice. “In general

terms, the conduct of the prosecuting attorney cannot be the ground for error unless

such conduct deprives the defendant of a fair trial.” State v. Evans, 63 Ohio St.3d 231,

240, 586 N.E.2d 1042 (1992), quoting State v. Maurer, 15 Ohio St.3d 239, 266, 473

N.E.2d 768 (1984). This isolated comment, about an auxiliary issue to the core issues in

the case, was insufficient to rise to a level where we question the fairness of the trial. So,

while the comments were improper, Smith was not prejudiced by them.

       {¶33}    Since neither statement by the prosecutor clearly deprived Smith of a

fair trial, the trial court’s failure to sua sponte admonish the state and instruct the jury to

disregard the comments did not amount to plain error. We overrule Smith’s third

assignment of error.

                            Ineffective Assistance of Counsel

       {¶34}    In his fourth assignment of error, Smith claims that his trial counsel

was ineffective and, as a result, his right to due process was violated. To prove

ineffective assistance of counsel, a defendant generally has to demonstrate that

counsel's performance was deficient and that the deficient performance was

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prejudicial. Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).

Prejudice results when there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.

Bradley at 142.

       {¶35}   Smith first argues that trial counsel did not adequately cross-examine

the state’s witnesses. The scope of cross-examination, however, falls within the

ambit of trial strategy. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, ¶ 101. This is particularly true in sex cases with minor victims where

counsel may be wise to tread lightly in questioning. State v. Johnson, 2016-Ohio-

4934, 69 N.E.3d 143, ¶ 29 (1st Dist.), citing State v. Diaz, 9th Dist. Lorain No.

04CA008573, 2005-Ohio-3108, ¶ 26 (failure to cross-examine child victims of sex

abuse is a matter of trial strategy and does not constitute ineffective assistance). We

find nothing deficient in Smith’s attorney’s cross-examination.

       {¶36}   Smith next argues that counsel was ineffective for failing to object to

the state’s failure to produce the 1986 police file, and for failing to pursue sanctions

for the alleged discovery violation. But there is nothing in this record to establish

that Smith would have been entitled to the information. Even if we were to assume

for the purpose of this argument that the material was subject to discovery, we

conclude that Smith cannot show prejudice as a result. The 1986 police file related to

the allegations involving Smith and V.M., not the allegations in this case.         The

material was secondary to the main issues of the case which were the conduct of

Smith with R.E. Having more information about the 1986 incidents, in light of the

fact that those incidents were testified to, would not have changed the outcome of the

proceedings below.


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         {¶37}   Finally, Smith argues that trial counsel was ineffective for failing to

object to the statements made by the prosecutor during closing arguments that

formed the basis for the third assignment of error. For the reasons that have been

set forth above, Smith failed to show that either comment prejudiced him such that

he was denied a fair trial. Had counsel objected to the statements, our decision

would not have changed. We overrule Smith’s fourth assignment of error.

                                     Cumulative Error

         {¶38}   In his final assignment of error, Smith claims that the cumulative

effect of the errors outlined in his first four assignments of error entitles him to a

new trial, even if the effect of each individual error would be insufficient on its own.

Under the doctrine of cumulative error, a conviction may be reversed if the

cumulative effect of errors deemed separately harmless is to deny the defendant a

fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph

two of the syllabus. But we have not found multiple instances of harmless error in

this case, so the doctrine does not apply. We overrule Smith’s fifth assignment of

error.

                                        Conclusion

         {¶39}   Having considered and overruled all five assignments of error, we

affirm the judgment of the trial court.

                                                                       Judgment affirmed.

MILLER and DETERS, JJ., concur.

Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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