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State v. Davis

Court of Appeals of Ohio, Third District, Seneca

May 22, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
UNTARIO A. DAVIS DEFENDANT-APPELLANT.

         Appeal from Seneca County Common Pleas Court Trial Court No. 16-CR-0186

          James W. Fruth for Appellant

          Derek W. DeVine for Appellee

          OPINION

          WILLAMOWKSI, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 interactions, saying

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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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. at 152.

         {¶8} 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?
A. Yeah.
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?
A. Eight-twenty.
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. No.
Q. Okay.
A. That should have been an eight.

Id. at 128-129.

         {¶9} 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 ...

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