from Seneca County Common Pleas Court Trial Court No.
W. Fruth for Appellant
W. DeVine for Appellee
Defendant-appellant Untario A. Davis ("Davis")
appeals the judgment of the Court of Common Pleas of Seneca
County alleging that (1) the trial court entered a conviction
against the manifest weight of the evidence; (2) he was
denied the effective assistance of counsel; (3) the trial
court failed to provide a representative sample of
African-Americans in the jury pool; (4) the State engaged in
prosecutorial misconduct during closing arguments; and (5)
the cumulative effect of the errors of trial counsel was
prejudicial. For the reasons set forth below, the judgment of
the lower court is affirmed.
and Procedural History
At the time of the incident forming the basis of this case,
Davis lived in Seneca County with his girlfriend, Jessica
Slater ("Slater"), and three of her children. Trial
Tr. 102. Davis's house was down the street from Jeremy
Sauber's ("Sauber") family, and Slater would
frequently ask Sauber's fourteen-year-old daughter
("TS") to babysit her children. Id. at 85,
104, 125, 146. On the evening of August 27, 2016, Davis
walked up to Sauber outside of Sauber's house in between
8:30 and 9:00 p.m. and asked if TS could babysit that
evening. Id. at 83-85. TS agreed to watch
Slater's two young daughters that evening and walked over
to Davis's house within four or five minutes of being
asked to babysit. Id. at 103.
Shortly after TS got to Davis's house, Davis told her
that he was going to the store and that he would return.
Id. at 105. At trial, TS testified that Davis left
the house and returned twenty to thirty minutes later with
some cash to pay TS for babysitting. Id. at 106.
Davis then left the house again and, according to TS,
returned again ten to twenty minutes later. Id.
108-109. When Davis returned to the house, TS was watching
television in the living room with Slater's two girls.
Id. at 110. Davis, who was in another room, told TS
to "come here." Id. at 110. TS then walked
into the room where Davis was. According to TS, Davis asked
her if she had ever watched pornography, showed her a picture
on his phone of a man groping a woman, and said,
"[W]ould you ever do that[?]" Id. at 111,
137-138. TS pushed the phone away, told him that she had not
viewed pornography before, and went back into the living room
where she later fell asleep on the couch with the two girls.
Id. . at 111.
TS testified at trial that she was later awoken by Davis
tapping her on her upper thigh. Id. Davis then asked
TS to come with him to the entryway between the living room
and the dining room. Id. at 113. According to TS,
once she had reached the entryway, Davis asked her if
"he could lick [her] privates." Id. TS
testified that she refused and walked back to the couch where
the two girls were still sleeping. Id. After TS
refused, Davis left the house again. Id. at 138-139.
While Davis was away, TS's mom stopped by the house to
check on her. Id. at 136. TS asked her mom to buy
her some Oreos with the money Davis had paid her for
babysitting. Id. at 130. TS's mom then went to
the store, bought some Oreos, and returned to the house.
Id. at 137. At this time, TS did not mention to her
mother that Davis had solicited her or shown her an adult
image on his phone. When asked at trial why she did not tell
her mom about this situation, TS said, "I wasn't
thinking about it then. * * * I was trying to get it out of
my head." Id. at 139. After being away for
about an hour, Davis returned to his house where TS was
sleeping on the couch with the two girls. Id. at
128. At several more points that night, Davis woke TS up and
solicited her. Id. at 114. TS described one of these
And he told me that I was pretty and not to tell Jessica. And
then * * * we stood there for a second and then he grabbed my
shirt right here. And then * * * he started pulling me
closer. And then I pushed off of him * * * and then he said,
what? I said, nothing. He said, what, you think I'm going
to kiss you or something? And I said, yeah. Because
that's what normally happens when people pull people
closer like that.
Id. at 115. According to Taylor, Davis woke her up
and solicited her a total of six or seven times that night.
Id. at 115, 132.
The next morning-which was August 28, 2016-TS woke up around
8:20 a.m. Id. at 116. She had planned to get up
earlier because she was going to help her father reseal a
parking lot that morning. Id. at 119. When she
realized she was running late, she rushed home. Id.
at 116. TS testified that Davis was asleep in his bedroom at
the time that she left. Id. at 117. When she got
home, she and her father departed for the worksite.
Id. at 119-120. After they arrived, TS worked for
about five minutes before she told her father that she needed
to talk to him. Id. at 120. She then told him that
Davis had solicited her the previous evening. Id. at
121. Sauber then called Davis's girlfriend, Slater, who
reported Davis to the police. Id. at 122, 149.
On August 29, 2016, the police filed a criminal complaint
against Davis for importuning in violation of R.C.
2907.07(B)(1), which is a fourth degree felony. Doc. 1. The
jury trial was held on October 1, 2016. Trial Tr. 1. During
defense counsel's opening statements, he said,
When [TS] came to babysit, Mr. Davis went to get some money
for her to pay her, and then he left because he had a
babysitter. He did not return until very early or late,
depending on how you want to look at it, the next morning. He
wasn't there. He's going to testify for you. He's
going to make that extremely clear, okay. State's asked
you to pay particular attention to [TS's] testimony. I
ask you to give that same courtesy to Mr. Davis'
testimony. He's going to tell you exactly where he was.
Exactly what he was doing. It was not at that house. And he
certainly was not propositioning [TS].
Id. at 79. Consequently, when Sauber, TS, and Slater
testified, defense counsel questioned them on the timing of
their various interactions with Davis on the night of August
27, 2016. Id. at 81, 97, 142. At the time of the
defense's case-in-chief, however, Davis did not testify.
Id. at 170.
When Sauber testified, he said that he did not see Davis
after Davis left the Sauber's house between 8:30 and 9:00
p.m. on August 27, 2016. Id. at 88. Slater testified
that she was "gone the entire evening" and was not
aware that TS was babysitting for Davis until Sauber called
her on August 28, 2016. Id. at 147. Slater was
briefly in contact with Davis on the phone and saw him once
while she was driving through town, but she was unable to
remember the times when these events occurred. Id.
When TS testified during direct examination, she stated that
she did not have a cell phone on which she could check the
time, was not looking at a clock while she was babysitting,
and was unaware of the exact times when Davis was home.
Id. at 114. During cross examination, defense
counsel questioned TS about the times at which different
events occurred that night.
Q. How long was he gone between the - -
A. * * * [H]e was gone for about an hour.
Q. Okay. About an hour, okay. So if you told officers another
time, amount of time, would that be an issue?
Q. Okay. If you said that he was gone longer than that, or
you're just not really sure how long he was gone?
A. I really wasn't sure how long he was gone.
Id. at 128. Later, defense counsel questioned TS
about the time she left Davis's house on the morning of
August 28, 2016.
Q. Okay. And what time on the next day in the morning, what
time did you leave the house?
Q. Eight-twenty[.] Okay. So if in your statement you said you
left the house at 7:30, which, which would be right?
A. I left at 8:20.
Q. Okay. So in your statement officers said 7:30, that's,
that's not correct?
A. That should have been an eight.
Id. at 128-129.
Defense counsel also asked whether any of TS's brothers
were with her and her father at the job site. TS stated that
her brother was not present. This line of questioning
continued as follows:
Q. Okay. And, and if your dad said [your brother] had gone,
would that be correct, incorrect?
* * *
A. Oh, I don't know. He might have went [sic] to go pick
him up after, but when I was there, [my brother] was there.
My brother was there.
Q. So he was already at the site?
A. Yeah. He didn't go with us the first time, though.
When we first got picked up, he didn't go.
Q. First got picked up?
A. When we, when I got home, I got ...