Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 15 CR 84
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Ronald D. Yarwood DeGenova &
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol
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
and Procedural History
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.
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.
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.
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.
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.
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