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State v. Smith

Court of Appeals of Ohio, Seventh District, Belmont

April 28, 2017


         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15-CR-138(B)

          For Plaintiff-Appellee: No Brief Filed.

          For Defendant-Appellant: Atty. Sandra Nicholoff.


          ROBB, P.J.

         {¶1} 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 affirmed.


         {¶2} 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 procuring).

         {¶3} 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.

         {¶4} 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.

         {¶5} 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. 150).

         {¶6} 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).

         {¶7} 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 15).

         {¶8} 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).

         {¶9} 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."

         {¶10} 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).

         {¶11} 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).

         {¶12} 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).

         {¶13} 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).

         {¶14} 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.

         {¶15} 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).

         {¶16} 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.


         {¶17} Appellant sets forth three assignments of error, the first of which contends:

"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."

         {¶18} 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 ...

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