[Cite as State v. Smith, 2020-Ohio-4008.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :     CASE NO. CA2019-10-075

                                                   :            OPINION
     - vs -                                                      8/10/2020
                                                   :

 JEREMY M. SMITH,                                  :

        Appellant.                                 :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2018CR00235


D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

The Law Office of John D. Hill, LLC, John D. Hill, Jr., 125 East Court Street, Suite 1000,
Cincinnati, Ohio 45202, for appellant



        RINGLAND, J.

        {¶1}     Appellant, Jeremy Smith, appeals his conviction in the Clermont County Court

of Common Pleas for multiple sexual offenses. For the reasons detailed below, we affirm.

        {¶2}     This case involves allegations of sexual abuse committed by Smith against

his former girlfriend's daughter. As relevant here, Smith was in an on-again, off-again

relationship with Brittany since November 2011. At the time, Brittany had three children:
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K.D., H.H., and G.S. Smith is the biological father of only one of those children, the

youngest, G.S.

           {¶3}   The abuse came to light shortly after H.H. turned 13 years old when Brittany

discovered concerning messages between H.H. and Smith in a Google Hangouts

messaging platform. Prior to the revelation, H.H.'s family members had noticed that Smith

was very "touchy" with H.H. and had also observed Smith attempting to look down the

minor's shirt.

           {¶4}   After the allegations of sexual abuse came to light, Brittany took H.H. to the

emergency room and, later, the Mayerson Center for Safe and Healthy Children. There,

H.H. was interviewed by social workers, Beth Buelterman and Traci Colliers, who conducted

forensic interviews with H.H.

           {¶5}   Smith was indicted on four counts of gross sexual imposition and two counts

of rape. Though H.H. recalled multiple instances of sexual abuse committed by Smith, the

state chose to proceed on just four of the charged counts. The matter proceeded to a jury

trial. 1

           {¶6}   The state presented evidence from Brittany, H.H., and other family members

about their living arrangements during the time of the alleged abuse. In 2015, Brittany and

Smith resided with the children at Brittany's parents' home in Milford until they moved to a

trailer for a short period. Later, Brittany and the children moved back to her parents' home

in Milford. Though Smith would occasionally stay in the Milford home, most of the testimony

revealed that Smith would often rent hotel rooms in the surrounding area, particularly on

the weekends.

           {¶7}   H.H. testified that she initially had a good relationship with Smith and viewed



1. The state dismissed one count of GSI and rape prior to trial.

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him as a father figure. H.H. stated that one night when she was 11 years old, she awoke

to Smith rubbing her buttocks and using his fingers to rub her vagina in a circular motion.

When H.H. woke up, Smith told her "good morning, beautiful."

       {¶8}   From then on, the relationship between H.H. and Smith changed.            H.H.

testified that she would communicate with Smith mainly through Google Hangouts where

he would often request nude photographs of herself, which she would then send him. H.H.

identified one such nude photograph she sent to Smith. H.H. testified that Smith would

constantly direct her to delete their messages.

       {¶9}   Throughout 2016 and 2017, H.H. testified that she had several sexual

encounters with Smith at an Ameristay in Batavia, the Mason Inn in Mason, and the Travel

Inn in Sharonville.

       {¶10} At the Ameristay, Smith rented a room that had a hot tub. H.H. recalled an

incident where she was in the hot tub with Smith and her sister, K.D. That night, K.D.

complained of a headache and Smith suggested that she take a hot shower. While K.D.

was in the shower, Smith pulled H.H. over him, rubbed her buttocks, and told her that if he

was her age, he would be "all over" her. In another instance, H.H. testified that Smith asked

her to shave his head for him. Though initially reluctant, H.H. agreed and the two went into

the bathroom together where Smith proceeded to close and lock the door. While inside,

Smith touched H.H.'s buttocks and breasts.

       {¶11} While at the Mason Inn, H.H. recalled two specific sexual encounters with

Smith. The first incident happened when she had just gotten out of the shower and put on

her clothes. Smith asked why she had put on clothes and then attempted to remove them.

After some initial resistance, H.H. submitted, but then placed a blanket over herself and

complained about being cold. Smith then convinced her to remove the blanket by promising

to turn off the air conditioner. When H.H. removed the blanket, Smith asked if she knew

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what masturbation was, which she denied knowing about.              Smith then pulled up a

pornographic website showing a woman masturbating, which Smith then demonstrated on

H.H. by rubbing her vagina like the woman in the video. Smith then asked H.H. if she liked

it.   Separately, H.H. recalled instances at the Mason Inn where they would take

"shower/baths" where they would sit together in the bath with the shower on. H.H. testified

that she would play video games on Smith's phone as he would rub her vagina in a circular

motion.

       {¶12} At the Travel Inn, H.H. stated that she had been drinking alcohol and

pretended to be asleep as she was lying naked on the bed. When H.H. heard Smith take

a photograph of her, she pretended to wake up. H.H. stated that Smith would often buy

alcohol and that he touched her almost every time she stayed with him in a hotel.

       {¶13} In addition to the touching, Smith made H.H. perform oral sex on him on at

least three separate occasions at the Milford residence. On the first occasion, H.H. was

playing video games with Smith in the back bedroom. Smith began pressuring H.H. to

perform oral sex on him, calling her a "scaredy-cat." H.H. testified that she placed Smith's

erect penis in her mouth but stopped when she heard her grandfather start to come towards

the bedroom. As a result, H.H. stopped what she was doing, and Smith pulled a blanket

over himself.

       {¶14} The second incident of oral sex also occurred in the back bedroom. H.H.

testified that she was trying to get lunch ready for her siblings when Smith started calling

for her. After initially ignoring him, H.H. later gave in. Smith closed the door and placed a

crib in front of the door to restrict entry. H.H. then testified that she performed oral sex on

Smith as he sat in the computer chair. H.H. stated that she stopped after the "stuff" came

out of Smith's penis and into her mouth and that the "stuff" did not taste very good and

Smith shook just before it came out.

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      {¶15} The last time H.H. had to perform oral sex on Smith took place in the Milford

living room. H.H. testified that she was alone in the house with Smith and she was listening

to music with her headphones. H.H. indicated that Smith messaged her on Google Chat to

take her headphones off and come over to him. Smith then asked for oral sex, but H.H.

declined. However, Smith persisted, and H.H. finally submitted. H.H. testified that she once

again performed oral sex on Smith until "the stuff" came out of Smith's penis. H.H. stated

that each instance of oral sex occurred prior to her 13th birthday in early November 2017.

      {¶16} Following H.H.'s account, the state presented additional corroborative

testimony from K.D., H.H.'s sister, who would also go to the hotel rooms with Smith. K.D.

corroborated H.H.'s testimony regarding the hotel, noting that they would always stay in

room 264 at the Mason Inn, that Smith would always sleep in the bed with H.H., and that

Smith would often be alone for periods of time with H.H.        Additionally, K.D. recalled

instances where Smith would suggest that she leave the room to get ice or go to the pool,

thus allowing him to be alone with H.H.

      {¶17} Thereafter, the state introduced testimony from law enforcement regarding

their investigation and the testimony of the social workers at the Mayerson Center. As

relevant here, the testimony from the social workers recalled their forensic interviews with

H.H. where H.H. explained the manner of sexual abuse, that Smith had shown her

pornography, and would often supply her with alcohol. Following the introduction of the

evidence, the state rested. Thereafter, Smith made a Crim. R. 29 motion for acquittal, which

the trial court denied. Smith then rested and the matter was submitted to the jury.

      {¶18} Following deliberations, the jury found Smith guilty of all offenses. The trial

court sentenced Smith to a prison term of 19 years to life. Smith now appeals, raising six

assignments of error for review.

      {¶19} Assignment of Error No. 1:

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       {¶20} JEREMY'S CONVICTION FOR GROSS SEXUAL IMPOSITION AND RAPE

WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶21} In his first assignment of error, Smith argues that his convictions for gross

sexual imposition and rape were against the manifest weight of the evidence. We find

Smith's arguments to be without merit.

       {¶22} A manifest weight challenge concerns the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 78. In determining

whether the conviction is against the manifest weight of the evidence, an appellate court

"must weigh the evidence and all reasonable inferences from it, consider the credibility of

the witnesses and determine whether in resolving conflicts, the [fact finder] 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. Sheldon, 12th Dist. Brown No. CA2013-12-018, 2014-

Ohio-5488, ¶ 13. "This discretionary power should be exercised only in the exceptional

case where the evidence weighs heavily against conviction." Id.

       {¶23} Rape is defined under R.C. 2907.02 and provides "[n]o person shall engage

in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he

other person is less than thirteen years of age[.]" Sexual conduct includes, inter alia, vaginal

intercourse, fellatio, cunnilingus, and anal intercourse. R.C. 2907.01(A).

       {¶24} In addition, gross sexual imposition is defined in R.C. 2907.05, which states:

              (A) No person shall have sexual contact with another, not the
              spouse of the offender; cause another, not the spouse of the
              offender, to have sexual contact with the offender; or cause two
              or more other persons to have sexual contact when any of the
              following applies:

              ***

              (4) The other person, or one of the other persons, is less than

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              thirteen years of age, whether or not the offender knows the age
              of that person.

The Revised Code defines "sexual contact" as "any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic region, or, if the

person is a female, a breast, for the purpose of sexually arousing or gratifying either

person." R.C. 2907.01(B).

       {¶25} A precise time and date are not ordinarily essential elements of an alleged

offense. State v. Vunda, 12th Dist. Butler Nos. CA2012-07-130 and CA2013-07-113, 2014-

Ohio-3449, ¶ 36. In sexual abuse cases involving children, it may be impossible to provide

a specific date. Id. "The problem is compounded where the accused and the victim are

related or reside in the same household, situations which often facilitate an extended period

of abuse. An allowance for reasonableness and inexactitude must be made for such

cases." State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 12.

       {¶26} On appeal, Smith suggests the jury should have weighed the evidence in his

favor. Specifically, Smith argues that the notion that he was able to have the opportunity to

commit these sexual abuses "strains credulity" because he lived in a "cramped one-

bedroom trailer" and, at other times, in a hotel. To the contrary, Smith maintains that nobody

witnessed any inappropriate behavior between him and H.H. and submits that the jury failed

to consider his relationship with Brittany and the questionable circumstances under which

the allegations against him arose. Finally, Smith argues that his conviction is against the

manifest weight of the evidence because of "the complete dearth of concrete evidence."

       {¶27} Following review, we find Smith convictions are supported by the manifest

weight of the evidence. In this case, Smith was charged with four counts: (1) gross sexual

imposition occurring at H.H.'s grandparents' residence in Milford, (2) gross sexual

imposition occurring at the Ameristay in Batavia, (3) gross sexual imposition occurring at


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the Mason Inn, and (4) rape where H.H. performed fellatio on Smith at H.H.'s grandparents'

residence in Milford.

       {¶28} As previously noted, H.H. testified that she had a typical relationship with

Smith until she turned approximately 11 years old. Around that time, Smith began taking a

sexual interest in H.H. where he began touching her buttocks and vagina in her sleep. H.H.

had specific recollections of sexual abuse at each of the locations alleged in the indictment.

H.H. specifically recalled Smith touching her vagina and buttocks at her grandparents'

residence, as well as specific recollections of sexual contact at both the Ameristay and the

Mason Inn. H.H. also testified about the multiple occasions that Smith requested, and

received, oral sex from her at her grandparents' Milford residence. H.H. testified that the

sexual abuse occurred while she was under 13 years old.

       {¶29} H.H.'s specific memories of Smith's sexual abuse were corroborated by her

sister, mother, and grandmother.       Those witnesses testified about the disconcerting

closeness between H.H. and Smith. H.H.'s grandmother testified about observing the two

cuddling underneath a blanket and H.H's mother testified about how she would regularly

see H.H. sitting in Smith's lap. K.D. further explained that she caught Smith looking down

H.H.'s shirt on a number of occasions.

       {¶30} The state further presented the Google Hangouts conversation between H.H.

and Smith where he stated that he wanted her to come over and keep him warm, while she

wished that she could keep him warm "all over." Smith's response was to call her a "tease."

The state also put forth a message from Smith to H.H. directing her to delete her messages,

which H.H. testified was a common request.          In addition, the state presented other

corroborating evidence, such as a nude photograph that H.H. sent Smith.

       {¶31} Based on the evidence presented at trial, we conclude the jury's verdict was

not against the manifest weight of the evidence. The jury did not clearly lose its way in

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concluding that Smith was guilty of three counts of gross sexual imposition and one count

of rape. While Smith argues differently, the jury, as trier of fact, was in the best position to

judge the credibility of the witness. Sheldon, 2014-Ohio-5488 at ¶ 25. As his conviction

was not against the manifest weight of the evidence, Smith's first assignment of error is

overruled.

       {¶32} Assignment of Error No. 2:

       {¶33} JEREMY'S CONVICTION FOR GROSS SEXUAL IMPOSITION AS

CHARGED IN COUNT III OF THE INDICTMENT WAS NOT SUPPORTED BY LEGALLY

SUFFICIENT EVIDENCE.

       {¶34} In his second assignment of error, Smith argues that his conviction for gross

sexual imposition in count three was not supported by sufficient evidence because the

offense occurred in Warren County and therefore venue in Clermont County was improper.

We find no merit to Smith's argument.

       {¶35} "Venue commonly refers to the appropriate place of trial for a criminal

prosecution within a state." State v. Meridy, 12th Dist. Clermont. No. CA2003-11-091,

2005-Ohio-241, ¶ 12. "The importance of venue is to give the defendant the right to be tried

in the vicinity of his alleged criminal activity." State v. Workman, 12th Dist. Clermont Nos.

CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 58. "Venue is not a material

element of any offense charged." State v. Davis, 12th Dist. Clinton No. CA2015-12-022,

2017-Ohio-495, ¶ 22. However, although not a material element of any offense, venue is

nevertheless "a fact that the state must prove beyond a reasonable doubt." State v.

McCollum, 12th Dist. Clermont No. CA2014-11-077, 2015-Ohio-3286, ¶ 8. "When the state

fails to prove venue with respect to a charged criminal offense, the defendant is entitled to

be discharged from that offense." State v. Baker, 12th Dist. Butler No. CA2019-08-146,

2020-Ohio-2882, ¶ 20.

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         {¶36} Although it is undisputed that count three occurred in Warren County, Ohio's

venue statute provides that when an offender commits offenses in different jurisdictions as

part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in

which the offender committed one of the offenses or any element of one of those offenses.

R.C. 2901.12(A), (H).

         {¶37} In this case, the state proved a continuing course of conduct involving the sex

offenses committed against H.H. The state demonstrated that Smith committed a number

of sex offenses against the same victim, H.H., when she was 11 and 12 years old. The

sexual acts took place at a number of locations where Smith would arrange to be alone with

H.H. and engage in sexual contact or sexual conduct with her. Though it is undisputed that

count three for gross sexual imposition occurred in Warren County, the state presented

ample testimony that several other counts of gross sexual imposition and rape occurred in

Clermont County. As a result, venue was appropriate in Clermont County for all offenses.

E.g., Workman, 2017-Ohio-8638 at ¶ 60. Smith's second assignment of error is without

merit and is hereby overruled.

         {¶38} Assignment of Error No. 3:

         {¶39} THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING BETH

BUELTERMAN AND STACY COLLIERS TO TESTIFY REGARDING INADMISSIBLE

HEARSAY STATEMENTS ELICITED DURING THEIR FORENSIC INTERVIEWS OF

[H.H.]

         {¶40} In his third assignment of error, Smith argues that the trial court erred by

permitting social workers, Beth Buelterman and Stacy Colliers, to testify about certain

statements H.H. made during forensic interviews. Smith's argument is without merit.

         {¶41} Evid.R. 803(4) provides that "[s]tatements made for purposes of medical

diagnosis or treatment and describing medical history, or past or present symptoms, pain,

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or sensations, or the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis or treatment" are admissible in court as

exceptions to the hearsay rule.

      {¶42} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, the Ohio Supreme

Court considered the admissibility of statements given during interviews at child advocacy

centers. In that case, the Ohio Supreme Court differentiated between statements made for

medical diagnosis and those for investigatory purposes during a forensic interview at a

treatment center. State v. Turner, 12th Dist. Brown No. CA2019-05-005, 2020-Ohio-1548,

¶ 53. "The court held that the child-victim's statements to the social worker were for the

purpose of medical diagnosis when the child identified the perpetrator, discussed the type

of abuse alleged, gave a time frame of the alleged abuse, and identified the areas where

the child had been touched." Id.

      {¶43} As previously noted, H.H. was interviewed by two social workers, Buelterman

and Colliers. Buelterman testified that she interviewed H.H. at the emergency room as part

of a multidisciplinary team of professionals specializing in child safety issues. Buelterman

confirmed that the information she received from H.H. was used for the purpose of medical

treatment and diagnosis and was further provided to medical staff at Cincinnati Children's

Hospital. Buelterman testified that H.H. stated that Smith had touched her private areas,

including her vagina and buttocks, and that he had asked her to do things that she didn't

want to do. Based on the information she received during the course of the forensic

interview, Buelterman testified that she was not concerned about any further imminent

concerns for H.H.'s safety, given that Smith was no longer in the home, but was concerned

about her emotional health and referred her for follow-up counseling.

      {¶44} Colliers separately interviewed H.H. at a later date at the Mayerson Center.

Colliers testified that H.H. explained to her that Smith had inappropriately sexually touched

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her multiple times, and reported that he had fondled her chest, buttocks, and touched the

inside and outside of her vagina. H.H. also reported that Smith had made her perform oral

sex on him. Colliers also testified that H.H. told her that Smith had requested that she take

pornographic pictures of herself. H.H. also indicated that Smith had masturbated in front of

her and asked her to do the same. When she explained to him that she did not want to,

H.H stated that Smith had shown her a video of a woman masturbating. H.H. also told

Colliers that Smith would provide her with beer and whiskey to the point where she could

not remember things afterwards. Colliers testified that the information related to H.H.

consuming alcohol was provided to medical staff to determine potential medical treatment.

       {¶45} On appeal, Smith argues that the trial court erred by overruling his objections

to statements made by H.H. involving his request for nude photographs, that he had shown

her pornography, had given her alcohol, and taught her how to masturbate. Smith alleges

that the statements were of "no value for the diagnosis or treatment of any affliction relating

to any alleged abuse."

       {¶46} However, the information given to Buelterman and Colliers are the types of

statements discussed in Arnold and found admissible by the Ohio Supreme Court. That

Smith requested nude photographs, showed pornography to H.H., supplied her with

alcohol, and taught her how to masturbate were all answers to questions designed to

determine the extent of the abuse by Smith and were made for the purpose of forming a

medical diagnosis. See, e.g., State v. Watts, 10th Dist. Franklin No. 15AP-951, 2016-Ohio-

5386, ¶ 21-24. Moreover, because H.H. testified and the statements elicited were merely

cumulative of statements H.H. made during her testimony, their admission would be

harmless even if they had been admitted in error. State v. Sims, 12th Dist. Butler No.

CA2007-11-300, 2009-Ohio-550, ¶ 17. Therefore, Smith's third assignment of error is

overruled.

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       {¶47} Assignment of Error No. 4:

       {¶48} THE TRIAL COURT ERRED TO THE [sic] JEREMY'S PREJUDICE BY

ALLOWING THE STATE TO PRESENT INADMISSIBLE EVIDENCE OF UNCHARGED

ALLEGED ABUSE AGAINST [H.H.] THAT OCCURRED OUTSIDE OF CLERMONT

COUNTY PURSUANT TO EVID.R. 404(B).

       {¶49} In his fourth assignment of error, Smith argues the trial court erred by allowing

the state to introduce evidence of other bad acts he committed against H.H. In particular,

Smith argues that the state should not have been permitted to introduce testimony

concerning abuse that occurred at the Travel Inn and for soliciting nude photographs from

H.H. We disagree.

       {¶50} Evidence that an accused 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.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶

40. Therefore, pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that a person acted in

conformity therewith on a particular occasion. State v. Hart, 12th Dist. Warren No. CA2008-

06-079, 2009-Ohio-997, ¶ 11. Such evidence, however, is permitted for other purposes,

including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the

absence of mistake or accident. State v. Thomas, 12th Dist. Butler No. CA2012-11-223,

2013-Ohio-4327, ¶ 22.

       {¶51} That being said, Evid.R. 404(B) only applies to limit the admission of so-called

"other acts" evidence that is "extrinsic" to the crime charged. State v. Stallworth, 11th Dist.

Lake No. 2013-L-122, 2014-Ohio-4297, ¶ 37. In other words, "Evid.R. 404(B) does not

apply when the acts are intrinsic as opposed to extrinsic, i.e., the acts are part of the events

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in question or form part of the immediate background of the alleged act which forms the

basis for the crime charged." State v. Wainscott, 12th Dist. Clermont No. CA2015-07-056,

2016-Ohio-1153, ¶ 19, citing State v. Crew, 2d Dist. Clark No. 2009 CA 45, 2010-Ohio-

3110, ¶ 99. Thus, "evidence of other crimes or wrongs may be admitted when such acts

are so inextricably intertwined with the crime as charged that proof of one involves the other,

explains the circumstances thereof, or tends logically to prove any element of the crime

charged." Id.

       {¶52} Although Smith characterizes the evidence as "other acts" evidence, the

record reflects that the evidence that Smith sexually abused H.H. at the Travel Inn and

solicited nude photographs from her were part and parcel of the underlying case. Though

the state chose to proceed on only four counts, H.H. testified about many more instances

of sexual abuse that could have been pursued. As noted earlier, Smith's offenses were

part of a course of conduct related to the grooming and sexual abuse of H.H. Evidence of

his abuse and manner of abuse was relevant and admissible in this case. Therefore,

Smith's fourth assignment of error is overruled.

       {¶53} Assignment of Error No. 5:

       {¶54} THE PROSECUTING ATTORNEY COMMITTED MISCONDUCT BY

PRESENTING IMPROPER ARGTUMENT [sic] TO THE JURY DURING CLOSING

ARGUMENT.

       {¶55} In his fifth assignment of error, Smith alleges the state committed

prosecutorial misconduct. We do not find any merit to Smith's argument.

       {¶56} The state is entitled to a certain degree of latitude in making its concluding

remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 58.

A court will find prosecutorial misconduct only when the remarks made during closing were

improper and those improper remarks prejudicially affected substantial rights of the

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defendant. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62. "The focus of an

inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon

the culpability of the prosecutor." Vunda, 2014-Ohio-3449 at ¶ 66. Therefore, a finding of

prosecutorial misconduct will not be grounds for reversal unless the defendant has been

denied a fair trial because of the prosecutor's prejudicial remarks. Layne at ¶ 60.

        {¶57} The record indicates that Smith did not object to the state's closing argument.

In failing to object, Smith has waived all but plain error. See Crim.R. 52(B). Plain error

exists where there is an obvious deviation from a legal rule which affected the defendant's

substantial rights, or influenced the outcome of the proceeding. State v. McCrone, 12th

Dist. Warren No. CA2018-01-007, 2019-Ohio-337, ¶ 28. Notice of plain error is taken with

the utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice. State v. Grisham, 12th Dist. Warren No. CA2013-12-118, 2014-

Ohio-3558, ¶ 38. Therefore, we will not reverse the trial court's decision unless the outcome

of trial would have been different but for the alleged error. State v. Dougherty, 12th Dist.

Preble No. CA2013-12-014, 2014-Ohio-4760, ¶ 54.

        {¶58} Smith first argues the prosecutor committed misconduct in rebuttal by stating:

                There's a couple adages in the law in listening to [defense
                counsel], they kind of come to mind. One starts with if you don't
                have the facts, you argue the law. If you don't have the law, you
                argue the facts. If you don't have either, you yell really loudly.
                And that's essentially what you heard [defense counsel] do.

        {¶59} Smith also argues the prosecutor committed misconduct when he stated:

                The law demands that we protect our children. The law
                demands that if you are under the age of 13 [sic] and you
                engage in sexual touching or sexual conduct with a child, that *
                * * is a crime. And we all know it should be.2

2. We note that the prosecutor misspoke and stated that "if you are under the age of 13 and you engage in
sexual touching or sexual conduct with a child," that is a crime. Thus, the wording confuses the age of the
victim and the offender. Nevertheless, when read in context, it is clear the prosecutor is arguing that Smith
committed the charged offenses of gross sexual imposition and rape by engaging in sexual contact and
conduct with the victim, a child under the age of 13. R.C. 2907.02(A)(1)(b); R.C. 2907.05(A)(4).

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       {¶60} Based on our review, we find the prosecutor's statements did not deprive

Smith of a fair trial. We do not find that either remark is particularly reactionary, much less

constituting plain error. As to the first statement, the prosecutor was plainly addressing the

arguments made by defense counsel in his closing argument and why the state had

presented its case beyond a reasonable doubt. State v. Cassano, 96 Ohio St.3d 94, 2002-

Ohio-3751, ¶ 101 ("[a] prosecutor can respond to issues raised by an accused.") In fact,

the Ohio Supreme Court has found similar statements to be "dismissive and reductive," but

do not constitute plain error. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 376.

We similarly find that the second statement does not constitute prosecutorial misconduct.

The prosecutor's statement reflects the law that it is unlawful to engage in such sexual

behaviors with children under the age of 13. It is not, as Smith argues, an improper appeal

to the jury's sentiment based on their relative age disparities.

       {¶61} In sum, the statements merely reflected the state's argument that sufficient

and substantial evidence had been presented for the jury to return a guilty verdict.

Accordingly, we find no merit to Smith's argument that he received an unfair trial on the

basis of prosecutorial misconduct. Smith's fifth assignment of error is overruled.

       {¶62} Assignment of Error No. 6:

       {¶63} THE CUMULATIVE EFFECT OF THE PRECEDING ERRORS DENIED

JEREMY OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

       {¶64} In his sixth assignment of error, Smith argues that he received an unfair trial

based on the number of alleged errors during the course of the proceeding and therefore

he is entitled to a new trial. We find Smith's argument to be meritless.

       {¶65} According to the cumulative error doctrine, "a conviction will be reversed

where the cumulative effect of errors in a trial deprives a defendant of the constitutional


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right to a fair trial even though each of numerous instances of trial court error does not

individually constitute cause for reversal." State v. McClurkin, 12th Dist. Butler No. CA2007-

03-071, 2010-Ohio-1938, ¶ 105. However, because we have found that no errors occurred

during Smith's trial, we find that he was not deprived of a fair trial and the cumulative error

doctrine is inapplicable. Smith's sixth assignment of error is overruled.

       {¶66} Judgment affirmed.


       S. POWELL, P.J., and PIPER, J., concur.




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