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State v. Davis

Court of Appeals of Ohio, Seventh District, Mahoning

February 28, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
VIRGINIA DAVIS DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 84

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Ronald D. Yarwood DeGenova & Yarwood, Ltd.

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Virginia Davis appeals an August 21, 2015 Mahoning County Common Pleas Court sentencing entry. Appellant argues that a statement made by the prosecutor was improper and only served to inflame the judge against her. Appellant additionally argues that her sentence is contrary to the law. For the reasons that follow, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} The charges at issue stem from two incidents where Appellant had sexual intercourse without informing either man that she is HIV positive. The record shows that on January 29, 2015, Appellant was indicted on two counts of felonious assault, a felony of the second degree in violation of R.C. 2903.11(B)(1), (D), and one count of falsification, a misdemeanor of the first degree in violation of R.C. 2921.13(A)(2), (F)(1). Although Appellant contends that one of the felonious assault counts involved a non-HIV offense, this is not supported by the record.

         {¶3} Appellant entered into a Crim.R. 11 plea agreement with the state. Pursuant to its terms, Appellant pleaded guilty to one count of felonious assault. The count was amended to add both victims. The remaining counts of felonious assault and falsification were dismissed. On the same day, the trial court conducted a plea hearing and, after a colloquy with Appellant, accepted her guilty plea.

         {¶4} On August 20, 2015, the trial court held a sentencing hearing. The state agreed to seek a four-year sentence of incarceration, unless Appellant requested community control. In that event, the state would seek four to six years of incarceration. Appellant requested community control. Ultimately, the trial court imposed a seven-year incarceration term on Appellant. This timely appeal followed.

         ASSIGNMENT OF ERROR NO. 1

Appellant was denied her right to a fair trial and due process when the State made improper remarks during the sentencing hearing that were baseless, inflammatory and expressed his personal beliefs.

         {¶5} Appellant argues that the prosecutor's statement "[t]o me those two men have life sentences" was prejudicial. (Appellant's Brf., p. 2.) Appellant claims that the statement is baseless, as neither victim has experienced symptoms of HIV. Appellant argues that the statement was not derived from evidence contained in the record, expressed a personal belief, and only served to inflame the judge against her at sentencing.

         {¶6} In response, the state argues that Appellant pleaded guilty to a violation of R.C. 2903.11(B)(1). An element of this offense includes that the defendant engaged in sexual intercourse with another with knowledge that she is a carrier of the HIV virus. As such, the state contends that the ...


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