from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
Law Group, LLC, and Stephen T. Wolfe, for appellant.
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.
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
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