Court of Appeals of Ohio, Seventh District, Belmont
Appeal from the Court of Common Pleas of Belmont County, Ohio
Case No. 15-CR-138(B)
Plaintiff-Appellee: No Brief Filed.
Defendant-Appellant: Atty. Sandra Nicholoff.
Defendant-Appellant William Douglas Smith appeals his
conviction in the Belmont County Common Pleas Court of
complicity to rape of a child under ten years of age. He
first argues the court should not have admitted evidence as
to portions of his conversation with the principle offender.
He also contests the court's decision to overrule his
suppression motion. Lastly, he challenges the sufficiency of
the evidence and the weight of the evidence. For the
following reasons, the trial court's judgment is
OF THE CASE
On July 2, 2015, Appellant and co-defendant Peggy Sue
Horstman were jointly indicted for rape of a child under the
age of ten. See R.C. 2907.02(A)(1)(b), (B). The
indictment alleged the sexual conduct occurred on or about
February 1, 2015 through May 1, 2015; the child was
approximately ten months old at the beginning of this time
range. A motion for severance was mooted by Horstman's
guilty plea. The state proceeded against Appellant based on
complicity under R.C. 2923.03(A)(1) (soliciting or
Appellant filed a motion to suppress any verbal and written
statements made to law enforcement at his residence on June
17, 2015 and over the telephone on June 18, 2015. Although he
signed a Miranda rights waiver form, he alleged he
did not knowingly, voluntarily, or intelligently waive his
Miranda rights. The detective who interviewed
Appellant testified at the suppression hearing. On August 20,
2015, the court overruled the motion to suppress, finding
there was no custodial interrogation.
Appellant filed a motion in limine asking to exclude all
evidence of his conversations with Horstman, except the
specific evidence required to prove he told Horstman to
insert her finger into the child's vagina and to prove
she then did so. He claimed this contextual evidence was
"other acts" evidence prohibited by Evid.R. 404(B)
and was unfairly prejudicial under Evid.R. 403(A). His motion
was denied preliminarily and again at trial.
The case was tried to a jury on September 10 and 11, 2015.
Horstman's boyfriend testified he lived with Horstman for
eight years and was the father of the victim. At the
beginning of 2015, he became suspicious of Horstman's
phone habits. He discovered her phone's screen lock
password and looked through her phone. He observed sexually
explicit conversations between Horstman and other men. (Tr.
One night in May of 2015, this witness discovered
Horstman's new password, waited for Horstman to fall
asleep, and drove away from the house with the phone so he
would have time to view its contents. (Tr. 152-153). He
accessed a social media application ("app") where
he saw photographs of and sexual discussions about the
victim. (Tr. 155-156). When Horstman noticed her phone was
gone, she frantically called him using her mother's
phone. The victim's father returned home in the early
morning hours and went to sleep without telling Horstman what
he found. He confronted her later, and filed a police report
the next day. Before her phone was confiscated, Horstman
deleted the app containing conversations which the police
could not recover. However, the victim's father provided
police with digital copies of a conversation he read. (State
Exhibit 2). He explained how he took screenshots of a
conversation on Horstman's phone, transmitted them to his
own phone, and then deleted the screenshots on her phone.
(Tr. 156-157, 161).
At her May 15, 2015 interview, Horstman admitted she inserted
her finger into the child's vagina. She disclosed she
performed the act and photographed it on Appellant's
request. She said she deleted the evidence. Her phone was
sent to a task force dealing with internet crimes against
children. A member of this task force testified how he was
able to retrieve some deleted data stored in Horstman's
phone; it was retrievable as it had not yet been overwritten
by the phone's memory. (Tr. 180-182). He recovered five
images, which were admitted at trial, including one showing
penetration of the child's vagina by Horstman's
finger and others depicting her progress leading up to the
act. (State Exhibits 4, 5, 7, 8, 9). The task force member
also extracted a brief series of text messages to and from
Appellant's phone number. (Tr. 186-187); (State Exhibit
Horstman testified she pled guilty to the rape of her
daughter and was expecting to receive a sentence of fifteen
years to life. (Tr. 192). It was pointed out her maximum
sentence was life without parole, and her plea was
conditioned on full cooperation in Appellant's case. (Tr.
259, 260). She confirmed testimony presented by the
victim's father. She explained she met Appellant online
in mid-February of 2015 on a dating website. They never met
in person but regularly spoke on the phone, texted, and
communicated online through a dating app and then through the
social media app discovered by the victim's father. (Tr.
200, 204). Horstman regularly deleted communications so her
boyfriend would not discover them. (Tr. 209, 238).
Horstman said Appellant brought the topic of her daughter
into their sexual conversations and she did not stop it
because she liked the attention. (Tr. 208). Appellant
referred to himself as "daddy, " referred to
Horstman as "Babygirl, " and referred to the victim
as "little babygirl." (Tr. 216). Horstman reviewed
some messages Appellant sent to her, which were obtained from
her phone by the victim's father. (Tr. 216-231); (State
Exhibit 2). For instance, Appellant wrote: "Have you
been playing with little babygirl pussy?"; "You
miss playing with her pussy?"; "And I want to see
little baby girl young pussy. In the am. Night";
"Keep them coming wear little babygirl. Want to see
little babygirl young pussy"; and "You better have
daddy some pics and video of u and little babygirl."
Horstman then identified photographs she took at
Appellant's request. There was one of the naked child on
her lap. (Tr. 233). Other photographs showed her finger near
or touching the child's vaginal area. She testified:
"He said you can do better than that. Just stick your
finger a little bit inside." (Tr. 235). She then put
"a little bit" of her finger inside the child's
vagina as requested by Appellant. (Tr. 235, 280). Addressing
the photograph showing the penetration, which was recovered
from her phone by law enforcement, Horstman admitted she took
the photograph and later deleted it. (Tr. 236, 263, 265). She
acknowledged Appellant's specific request for her to
insert her finger was not contained in the conversation
captured by the victim's father or recovered from her
phone when police retrieved some of her deleted files. (Tr.
262). She also testified Appellant asked her to place a
pacifier in her own vagina and give it to the baby; she said
she pretended to do this. (Tr. 247-248).
After the victim's father confronted her and she deleted
the social media app from her phone, Appellant texted her to
request she reactivate the app. She responded in the negative
and Appellant replied, "You don't tell Daddy
no." (Tr. 242). He also said: "where Daddy pics of
little babygirl with no pants?" and "You better get
Daddy some pics of you and lit * * *." (Tr. 241, 243,
279). When she sent him a picture of the child in clothing,
he responded, "But no little babygirl young pussy."
(Tr. 246). When Horstman told him her boyfriend was turning
her in, Appellant called her and told her to dispose of her
phone. (Tr. 247).
A detective from the Belmont County Sheriff's Department
testified to his interviews with Horstman and Appellant and
to his investigation. He noted Appellant used his real name
and birthdate in his screen name and used an actual
photograph of himself as his profile picture. (Tr. 297-298).
Upon finding Appellant's Chillicothe address from a
database, the detective asked the local authorities to obtain
a search warrant for evidence of child pornography. The
detective accompanied the local officers as they executed the
search warrant. A member of a child exploitation task force
testified he was unable to retrieve deleted information from
Appellant's phone, noting Appellant had a data-wiping app
on a pre-paid phone. (Tr. 369, 371).
During the search, the detective spoke to Appellant in the
front yard (while the local officers ensured the residence
was safe) and then in Appellant's bedroom. Appellant
signed a Miranda rights waiver. The detective
recorded the conversation using a recorder located in his
pocket. (Tr. 310). He explained his interview technique of
comforting the suspect and downplaying the suspect's
offense. The detective testified to the progression of
Appellant's statement, e.g., he admitted Horstman sent
him unsolicited photographs of her daughter (which he
deleted), he then said he did not think he asked her to do
anything, and he soon revealed he asked her to put her
fingertip inside her daughter. (Tr. 315-319, 351-352). When
asked about a pacifier, Appellant disclosed he asked Horstman
to put it in her own vagina before giving it to the baby.
(Tr. 322, 357).
Before the detective left, Appellant wrote a letter of
apology while on his front porch. (State Exhibit 18). He
apologized for asking for pictures of the baby, stating he
"just wanted to see how much she would do." (Tr.
327). The detective called Appellant at home the next day to
confirm Appellant "asked" Horstman to insert her
finger but did not order her (with threat of force). (Tr.
330, 344-345). This call was recorded as well.
Appellant testified in his own defense. He confirmed meeting
Horstman online in early 2015, after which they talked on the
phone, texted, and communicated via social media. He admitted
some of his sexual comments referred to the victim whom he
called "little babygirl." (Tr. 395, 405). He denied
asking for photographs of Horstman inserting her finger into
the child's vagina. He acknowledged he asked for naked
photographs of the child and noted the recovered messages did
not show him asking Horstman to insert her finger into the
child. (Tr. 404-405, 416-417). When asked why he confessed to
the detective (by saying he asked Horstman to insert her
fingertip into the victim's vagina), he said the
detective wanted him to admit it and the detective suggested
he would not be in trouble (since he never traveled to see
the victim). (Tr. 396-397, 410). Appellant insisted Horstman
performed the act and sent the photograph of the rape on her
own, stating he did not want the pictures she "kept
sending." (Tr. 416). Appellant's sister testified he
generally tries to fit in during conversations and he is
easily intimidated by authority. (Tr. 382-386).
The jury found Appellant guilty of complicity to rape of a
child under ten years of age. In a September 22, 2015
sentencing entry, the trial court sentenced Appellant to
fifteen years to life in prison and labeled him a Tier III
sex offender. Appellant filed a timely notice of appeal. His
appointed counsel was replaced multiple times, and the period
for submitting briefs closed at the end of 2016.
OF ERROR ONE: ADMISSIBILITY OF EVIDENCE
Appellant sets forth three assignments of error, the first of
"The trial court abused its discretion and committed
reversible error when it permitted the introduction by the
state of other crimes, wrongs, or acts to show proof of
appellant's common plan or scheme in violation of Rules
of Evidence 404(B) and 403."
As aforementioned, Appellant filed a motion in limine asking
to exclude all evidence except the specific evidence showing
(1) Appellant asked Horstman to insert her finger in the
child and (2) Horstman complied with the request. In other
words, he did not believe other portions of the conversations
between himself and Horstman should be admitted, including
requests for naked photographs of the child. (Supp.Tr.
49-54). He argued his statements represented "other bad
acts" under Evid.R. 404(B) and were unfairly prejudicial
under Evid.R. 403(A). The motion in limine mentioned
statements obtained in discovery but did not specifically
state which statements were inadmissible. At the suppression
hearing where this motion in limine was first discussed, the
state suggested the conversations could fall under the
exception in Evid.R. 404(B) regarding a plan or scheme. The