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State v. Smith

Court of Appeals of Ohio, Tenth District

May 17, 2018

State of Ohio, Plaintiff-Appellee,
v.
Anthony Smith, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-2007

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

         On brief:

          Wolfe Law Group, LLC, and Stephen T. Wolfe, for appellant.

          DECISION

          HORTON, J.

         {¶ 1} Defendant-appellant, Anthony Smith, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty of aggravated burglary, rape, and kidnapping. At the request of the state, we modify the judgment of the trial court to reflect consecutive sentences of 10 years each for appellant's convictions for aggravated burglary and rape, resulting in a total sentence of 20 years, to run consecutive to prior sentences for convictions in Michigan and Cuyahoga County, Ohio, as stated in the trial court's judgment entry. In all other respects, we affirm the judgment of the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On April 13, 2016, appellant was indicted on one count each of aggravated burglary, rape, and kidnapping. On August 7, 2017, the case proceeded to a jury trial. As relevant to this appeal, the following evidence was presented.

         {¶ 3} On July 20, 1996, the victim, J.W., was alone at home with her two-year old daughter. J.W. and her daughter were sleeping in the same bed when J.W. was awoken by a man sitting on the side of the bed. J.W. had never seen this man before and he had not been invited into the home. J.W. observed the man for about ten seconds before he shoved a T-shirt into her mouth to muffle her screaming. The T-shirt also covered J.W.'s face. J.W.'s daughter started to wake up and the man asked J.W. to hug him so that the daughter would not be alarmed. J.W. did so, but only because the man kept reaching beside the bed for what he said was a gun. J.W. did not actually see a gun.

         {¶ 4} The man told J.W. to take her daughter to another room, and J.W. testified that when she returned the man "proceeded to rape me." (Tr. at 95-96.) Asked to clarify what she meant by "raped, " J.W. stated that the man had "sex without [her] permission." (Tr. at 96.) J.W. indicated to the man that she "did not want this to happen." (Tr. at 98.) At some point, the T-shirt was removed from her mouth and face. J.W. asked the man not to kill her, and he responded that "he doesn't kill, he rapes." (Tr. at 97.) The man did not wear a condom and ejaculated inside her. He then put a shirt over J.W.'s face, told her he did not want her to see him, and left. J.W. called the police.

         {¶ 5} The police soon arrived at the scene and determined that the man entered the home by climbing up a board to a first floor window and then cutting the screen. J.W. told the police responders that she could not identify or describe the man. The investigating detective testified that victims of traumatic events often take time for their memory to come into focus.

         {¶ 6} J.W. was taken to the hospital to have a rape kit performed. At the hospital, J.W. described the man as a "[m]ale black, 20 to 23 years of age, 5'9", approximately 175 pounds, black hair, brown eyes wearing a dark green shirt and blue jean shorts." (Tr. at 25.) Police would later ask J.W. to see a sketch artist, but J.W. did not follow up with police regarding the investigation because the father of her daughter told her that he had the man killed, apparently to give J.W. some peace of mind, so J.W. assumed the man was already dead.

         {¶ 7} Meanwhile, lab analysis showed that sperm was present on the vaginal swab from the rape kit and also on J.W.'s bed sheets. Because the police had no profile to compare the DNA against, the case went inactive. In 2002, DNA from the rape kit was re-tested and entered into a database and, in 2013 or 2014, a match was discovered between the DNA and appellant. Police located J.W. and showed her a photo array containing a 1996 BMV photo of appellant, and J.W. identified him from the array. Updated DNA samples were ...


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