[Cite as State v. Smith, 2014-Ohio-5267.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                       :
                                                    :         Appellate Case No. 26079
        Plaintiff-Appellee                          :
                                                    :         Trial Court Case No. 2013-CR-3038
v.                                                  :
                                                    :
TRAVIS SMITH                                        :         (Criminal Appeal from
                                                    :         (Common Pleas Court)
        Defendant-Appellant                 :
                                                    :

                                                ...........
                                                OPINION
                         Rendered on the 26th day of November, 2014.
                                                ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

CHRISTOPHER W. THOMPSON, Atty. Reg. #0055379, 130 West Second Street,
Suite 1444, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

                                                         .............
                                                                                                   2


HALL, J.

        {¶ 1}   Travis S. Smith appeals from his conviction and sentence on three counts of

rape of a child under age ten and one count of importuning.

        {¶ 2}   In his sole assignment of error, Smith contends the convictions are against the

manifest weight of the evidence.

        {¶ 3}   The record reflects that Smith was convicted based primarily on the testimony

of the victim, who had turned eleven years old shortly before trial. She testified that on three

occasions Smith, her mother’s former boyfriend, had engaged in vaginal intercourse with her.

She also testified that on one occasion he had asked her to perform oral sex on him. According

to the victim, these incidents occurred at three different residences (hereinafter, Residence 1,

2, and 3) her mother had shared with Smith when the victim was between the ages of six and

nine.

        {¶ 4}   In addition to the victim’s testimony, the State presented testimony from the

victim’s mother, a police officer, a child psychologist, and a medical doctor. None of these

witnesses had any direct knowledge about the alleged sexual abuse. The victim’s mother

testified about the circumstances surrounding her daughter’s disclosure of the allegations. The

police officer merely testified about completing a report concerning the allegations. The child

psychologist, who did not interview the victim, testified generally about the dynamics of child

sexual abuse and delayed disclosure. Finally, the medical doctor testified about her

examination of the victim following the allegations. The results of the examination were

normal, and the doctor neither could confirm nor rule out the occurrence of prior

penile-vaginal penetration.
                                                                                                  3


       {¶ 5}     For his part, Smith testified in his own defense and denied the victim’s

allegations. He also presented testimony from a children-services caseworker and a police

detective. The caseworker testified that she interviewed the victim after the allegations.

According to the caseworker, the victim stated that the sexual abuse had occurred two or three

times at one residence and three or four times at another one. Smith used this testimony to

impeach the victim’s trial testimony that only one sex act had occurred at each of the three

residences. Finally, the detective testified about interviewing Smith, who she described as

cooperative, and obtaining a DNA sample from him. The detective explained that the DNA

sample proved unhelpful because police never obtained any other physical evidence with which

to compare it.

       {¶ 6}     After hearing the evidence, a jury convicted Smith on all four counts. The trial

court imposed an aggregate sentence of thirty years to life in prison and designated him a Tier III

sex offender. This appeal followed.

       {¶ 7}     As set forth above, Smith contends his convictions are against the manifest

weight of the evidence. The essence of his argument is that the victim’s testimony lacked

credibility. Specifically, he claims her testimony was “formulaic,” lacked detail, contained

inconsistencies, and at times was incredible.

       {¶ 8}     When a conviction is challenged as being against the weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable inferences,

consider witness credibility, and determine whether, in resolving conflicts in the evidence, the

trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380,
                                                                                                     4


387, 678 N.E.2d 541 (1997). In a manifest-weight analysis, the credibility of the witnesses and

the weight to be given to their testimony are primarily for the trier of facts to resolve. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the factfinder * * * has the

opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a

court of appeals to find that a judgment is against the manifest weight of the evidence requires

that substantial deference be extended to the factfinder’s determinations of credibility. The

decision whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witnesses.” State v. Lawson,

2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). This court will not

substitute its judgment for that of the trier of fact on the issue of witness credibility unless it is

patently apparent that the trier of fact lost its way. State v. Bradley, 2d Dist. Champaign No.

97-CA-03, 1997 WL 691510 (Oct. 24, 1997).

       {¶ 9}    With the foregoing standards in mind, we do not find Smith’s convictions to be

against the weight of the evidence. In reaching this conclusion, we believe it is appropriate to

defer to the jury’s assessment of the victim’s credibility.

       {¶ 10} The victim testified at trial that the first incident of rape occurred at her

apartment, “Residence 1.” (Tr. at 84). On that occasion, her mother was taking a shower in a

bathroom off of the main hallway. The victim went into her mother’s bedroom to retrieve nail

polish. Smith was sitting on a “couch bed” in the bedroom watching television. (Id. at 85-87).

According to the victim, he told her to “come here” and proceeded to pull down her pajama

bottoms and underwear. (Id. at 88-89). He then pulled down his own shorts, placed her on her

back, and inserted his penis into her vagina. (Id. at 89-93). She described his penis or “private
                                                                                                     5


part” as “hairy” near his body and “nasty” looking. (Id. at 91). The victim testified that Smith

moved “up and down” while having sex with her and that the experience was painful. (Id. at

93-94). She explained that he was on top of her but did not put his full weight on her. Instead, he

held himself up somewhat and had his arms by her sides. (Id. at 94-95). The victim stated that

Smith stopped having sex with her when her mother turned off the bathroom light. Her additional

testimony suggested, however, that what happened first was she heard her mother turn off the

shower water. (Id. at 95). At that point, Smith pulled up his shorts and told her to pull up her

clothes. (Id. at 95). The victim had to clean “white stuff” off of her thighs after the incident. (Id.

at 99). She identified it as having come from Smith’s “private part.” (Id.).

        {¶ 11} The victim testified that the second incident of rape occurred at her house,

“Residence 2.” On that occasion, Smith was babysitting her while her mother worked. (Id. at

106). The victim recalled watching a Sponge Bob cartoon in the living room before turning off

the television, going to her own bedroom, and closing the door. (Id. at 107). She testified that

Smith came into her bedroom and pulled down her pants and underwear. (Id. at 108-109). He

proceeded to pull down his own shorts, “lean [her] over” on her back, and place his penis inside

her vagina. (Id. at 110). He moved “up and down,” and his penis “came in and out” of her

“private part.” (Id. at 111). The victim found the experience painful. (Id.). Smith stopped after the

victim saw “white stuff” come out of his “private part.” (Id. at 112). Apparently on the same

occasion, Smith also engaged in an act of importuning by asking the victim to put her “mouth on

his penis.” (Id. at 134). The victim testified that she refused, and he left the room. (Id.).

        {¶ 12} The victim testified that the third incident of rape occurred at her apartment,

“Residence 3.” Once again, Smith was babysitting her while her mother was out of the house.
                                                                                                  6


The victim recalled being in Smith’s bedroom with him. (Id. at 119). She was wearing her school

uniform, and he was wearing shorts and a t-shirt. (Id. at 119-120). Smith proceeded to remove the

bottom part of her uniform and his own shorts. (Id. at 120-121). He then placed her on her back,

got on top of her, and inserted his penis into her vagina. (Id. at 121-122). He was “moving up and

down” with his “private part” going “in and out.” (Id. at 122). As before, the victim found the

experience painful and saw “white stuff” on her thigh and near her vagina. (Id. at 121-123). The

victim initially stated that the incident stopped when she heard her mother coming in the door.

She then clarified that what prompted Smith to stop may have been her mother’s car pulling up

outside. (Id. at 122).

        {¶ 13} The victim described a final incident where Smith tried to remove her clothes. On

that occasion, she resisted by retreating to her bedroom. (Id. at 125). He did not follow her and

never tried anything like that again. (Id. at 126). The victim explained that she initially did not

disclose any of Smith’s acts of sexual abuse because he told her not to tell and she was afraid.

(Id. at 97-98, 112-114, 123-124). The victim acknowledged that her mother had inquired on other

occasions whether anyone ever had touched her inappropriately. (Id. at 127). The victim admitted

previously lying and saying no. (Id. at 128). She eventually told her mother the truth when her

mother asked her to swear on her great-grandmother’s grave that nobody had touched her. (Id. at

129-131). The victim explained that she told the truth then because “it’s not good to lie on

somebody’s grave.” (Id. at 131). The victim and her mother both described the victim as crying

when she disclosed what Smith had done. (Id. at 42, 131). The victim’s mother further testified

that she had been suspicious of something before her daughter’s revelation. Specifically, she had

noticed that her daughter had “started going to her room and closing the door behind her every
                                                                                                    7


time” Smith was around. (Id. at 44).

       {¶ 14} Although the victim’s testimony undoubtedly was legally sufficient to support

Smith’s convictions (a conclusion he does not challenge), he argues that the convictions are

against the weight of the evidence because her testimony lacked credibility. As noted above, he

claims her testimony was formulaic, lacked detail, contained inconsistencies, and at times was

incredible. Therefore, he argues that the jury clearly lost its way in believing the victim. We do

not agree.

       {¶ 15} While the sequence of events was similar in each instance, the victim provided

fairly detailed testimony about what happened on each occasion, including how and where each

act occurred, what she and Smith were wearing, how they were positioned, what they did, how

each act ended, and what she did afterward. We are unconvinced that the victim’s testimony was

so formulaic as to render it inherently suspicious or unworthy of belief.

       {¶ 16} Smith also suggests that the victim’s responses were “taught” to her by someone

because she used the word “rape” to describe one of the incidents. He reasons that “rape” is not a

word one would expect a girl her age to utter. But he also correctly acknowledges that she

passively may have picked up or overheard the word during the investigation into her allegations.

       {¶ 17} We do agree with Smith, however, the victim’s version of events raised some

apparent or potential inconsistencies. For example, her testimony on direct examination

suggested that Smith had ejaculated on each of the three occasions at issue and that on two of

those occasions he had stopped upon hearing the victim’s mother—once turning off the shower

water and once pulling into the driveway. On direct examination, the victim did not mention

Smith stopping any of the sex acts at her request. On cross examination, however, she was asked
                                                                                                  8


whether she ever had told Smith to stop. She responded affirmatively and stated that Smith had

stopped at her request. (Tr. at 163-164). The victim also testified that the three acts of sexual

intercourse she described at trial were the only three times Smith ever had touched her

inappropriately. (Id. at 168-169). Caseworker Jamie Fricke testified, however, that the victim had

told her about two or three incidents of sexual intercourse with Smith at one residence and three

or four more such incidents at another residence. (Id. at 262).

       {¶ 18} Finally, Smith contends the victim’s claim about having sex with him while her

mother was in the shower was simply incredible. He argues that the bathroom at issue was

relatively close to the bedroom where the sexual assault allegedly was occurring. He reasons that

if the victim’s mother’s act of turning off either the water or the bathroom light caused him to

discontinue the rape, the victim’s mother almost certainly would have seen something when she

exited the bathroom. Similarly, he reasons that if the third incident stopped when the victim’s

mother either pulled her car in the driveway or started to open the front door, it is nearly

impossible to believe that she would not have seen something—the sex act itself, pants being

pulled up, or the clean up. Therefore, he asserts that the victim’s testimony about these alleged

incidents defies belief.

       {¶ 19} Although the record does contain some uncertainty or conflict about (1) whether

the victim asked Smith to stop the sexual assaults and (2) how many times those assaults

occurred at each location, these were issues for the jury to consider in assessing the victim’s

credibility. We are unconvinced that any such discrepancies were so substantial as to make it

patently apparent that the jury lost its way in believing the victim. This remains true even taking

into account Smith’s additional argument that the victim provided incredible testimony about
                                                                                                  9


being sexually assaulted while her mother was nearby in the shower and while her mother pulled

a car into the driveway. Despite Smith’s arguments, we do not agree that it would have been

nearly impossible for him to rape the victim under such circumstances without being detected.

       {¶ 20} With regard to the shower incident, the jury reasonably could have concluded that

the sexual activity stopped when the victim’s mother turned off the water. The record does not

reflect how long the victim’s mother remained in the bathroom after turning off the water.

Therefore, Smith and the victim may have had time to stop what they were doing, put their

clothes back on, and clean up without being detected. While the actions the victim ascribed to

Smith on that occasion certainly qualify as reckless, they do not defy belief. We reach the same

conclusion regarding the incident where the victim’s mother returned home. The jury reasonably

could have concluded that the sexual activity stopped when she pulled into the driveway. The

record does not reflect how long it took her to enter the house or to encounter Smith and the

victim once inside. Here too Smith and the victim may have had time to stop what they were

doing before being seen.

       {¶ 21} In short, the victim gave a fairly detailed account of being raped by Smith on

three occasions and of him once seeking oral sex. She also gave a reasonable explanation why

she initially failed to disclose the incidents but then decided to reveal them after being asked to

swear on her great-grandmother’s grave. The victim’s mother testified that the victim was crying

when she made the disclosure. In addition, the victim’s mother testified that, prior to the

disclosure, the victim had started avoiding Smith by going to her room and closing her door. We

note too that the record reveals little if any motive for the victim to fabricate sexual-abuse

allegations against Smith. Although he described some animosity with the victim’s mother’s
                                                                                                  10


family, Smith admitted being happy with the victim and her mother. (Tr. at 317-318). He

acknowledged not having any real problems with the victim, who he had helped raise and had

treated as his daughter. (Id. at 317-319).

       {¶ 22} After considering all of the evidence, and notwithstanding the inconsistencies and

other issues raised by Smith, we do not believe that the jury clearly lost its way in crediting the

victim’s testimony and finding him guilty of three counts of rape and one count of importuning.

His convictions are not against the manifest weight of the evidence.

       {¶ 23} The assignment of error is overruled, and the trial court’s judgment is affirmed.

                                                   .............




FROELICH, P.J., and FAIN, J., concur.


Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
Christopher W. Thompson
Hon. Michael Tucker
