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State v. Sarr

Court of Appeals of Ohio, Second District, Montgomery

August 23, 2019

STATE OF OHIO Plaintiff-Appellee
SAMBA SARR Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2018-CR-2347

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          CHARLES W. SLICER, III, Atty. Reg. No. 0059927, Attorney for Defendant-Appellant


          TUCKER, J.

         {¶ 1} Defendant-appellant Samba Sarr appeals from his conviction and sentence for kidnapping, gross sexual imposition and assault. Sarr contends that he was denied the effective assistance of counsel at trial. He further contends that his convictions were not supported by sufficient evidence and that they were against the manifest weight of the evidence. Finally, Sarr claims that the trial court erred in instructing the jury and in failing to merge the offenses of kidnapping and gross sexual imposition.

         {¶ 2} We conclude that trial counsel did not render ineffective assistance. We further conclude that the convictions were supported by sufficient evidence and were not against the weight of the evidence. We find no error in the jury instructions. However, we agree that the trial court erred in failing to merge the offenses of kidnapping and gross sexual imposition.

         {¶ 3} Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and remanded for resentencing.

         I. Facts and Procedural History

         {¶ 4} The incident which forms the basis for Sarr's appeal occurred during the early morning hours of June 15, 2018, at Sarr's residence in Dayton. At that time, Sarr and the victim, T.W, had been acquaintances for approximately six years. Their relationship was sexual, and they would meet approximately every five or six months to engage in sexual relations. Their relationship was not exclusive. T.W. only knew Sarr as "Amir."

         {¶ 5} On June 14, 2018, Sarr telephoned T.W. and asked her if she wanted to meet him. The two arranged to meet after T.W.'s work shift ended. At approximately 12:30 a.m. on June 15, T.W. drove from her workplace in Troy and met Sarr, who was in his own vehicle, in the parking lot of a store near Sarr's home. T.W. followed him to his residence on Brooklyn Avenue.[1] The two entered an alley and parked behind Sarr's home.

         {¶ 6} The pair entered Sarr's home through the back door. T.W. had a purse as well as an overnight bag in which she had a change of clothes and some toiletries. T.W. asked to take a shower. After showering and putting on fresh clothes, T.W. walked into the living room where Sarr was watching television.

         {¶ 7} Sarr asked T.W. to perform oral sex on him. After doing so, T.W. asked him if they could move to an adjacent room where Sarr had placed some sheets and blankets on the floor. The two moved into the other room and began engaging in vaginal intercourse. After approximately five minutes, Sarr stopped and his demeanor changed. He asked T.W. if she had been smoking crack with an individual named Dave.[2] T.W. denied doing so, but Sarr continued to accuse her. Sarr sat on top of T.W., who was lying on her back, and began to choke her. He also slapped her on the face multiple times.

         {¶ 8} Eventually, T.W. was able to free herself. She then ran to the back door. As T.W. got to the door, Sarr grabbed her and forced her back onto the floor in the room where the blankets were located. Sarr forced T.W. onto her back and told her that he was going to sit on her face and make her lick his "ass." He then turned his back toward the top of her head and exposed his anus to her face. Sarr told her to lick his "ass," and his genitals. T.W. complied.

         {¶ 9} T.W. was again able to escape Sarr's grasp, and she attempted to leave through the back door. Sarr caught up to her as she opened the door. As he began pulling her away from the door, the two fell to the floor. After wrestling away, T.W. was able to get to her feet and run out the door.

         {¶ 10} T.W., who was naked, ran down the street screaming for help. She knocked on the doors of several homes, but no one answered. T.W. came upon a man who was standing in the yard of a home. She asked him for help and the man took her into the home where approximately ten other people were gathered. T.W. was provided with clothing. She asked the people to call 911, but no one complied. However, the people agreed to accompany her back to Sarr's home. When they returned to the house, T.W. found her purse, keys and cellular telephone sitting on top of her car. Sarr's vehicle was gone.

         {¶ 11} T.W. drove herself to a gas station on Brown Street where she called her aunt. T.W. then drove to her aunt's home and the two proceeded to Good Samaritan Hospital. T.W. informed hospital staff of the assault, but was told that they could not help her.[3] T.W. and her aunt left the hospital. After dropping off her aunt, T.W. went home.

         {¶ 12} T.W. was not sure she wanted to make a police report, but, she ultimately called the Dayton Police Department. She met with officers Bradon Halley and Brandon Morse as well as Sergeant Thomas Schloss. She informed them that her friend "Amir had sexually assaulted her. Officer Halley took pictures of the visible injuries which included bruising and abrasions. T.W. provided the officers with Amir's address. T.W. was then escorted to Miami Valley Hospital.

         {¶ 13} At the hospital, T.W. was examined by Kathryn Ball, a registered nurse who was working as a sexual assault examiner when T.W. reported to the emergency room. Ball examined T.W. and observed bruising and abrasions to her left cheek and below her mandible as well as bruising and burst capillaries all along her neck. T.W. also had bruising on her back, right posterior shoulder, both hips and her right shin. T.W.'s voice was very raspy and hoarse. T.W. indicated that her voice did not normally sound that way.

         {¶ 14} After speaking to T.W., the officers went to Sarr's residence. The officers knocked on the door, but Sarr did not respond for approximately five minutes. When he did open the door, one of the officers stated that they were looking for Amir. Sarr indicated that Amir was his roommate and that he was not home. Sarr permitted the officers to enter the home to look for Amir. Sarr then asked them if they were there because of something that happened with "old girl." Tr. 281, 310. The officers informed Sarr that a woman had made allegations against Amir. Sarr then admitted that he was Amir. Sarr was arrested. He executed a written consent for a search of his home. The police found T.W.'s clothing, shoes and toiletries.

         {¶ 15} Sarr was indicted on two counts of kidnapping, one count of gross sexual imposition and one count of assault. Following a trial, the jury convicted Sarr on all charges. At sentencing, the trial court merged the two kidnapping convictions and the State elected to proceed on the second count of kidnapping (sexual activity) for purposes of sentencing. The trial court imposed a four-year prison term for kidnapping and a six- month term for gross sexual imposition; the two sentences were ordered to be served consecutively. The court imposed a concurrent 180-day sentence on the assault conviction for an aggregate prison term of four years and six months. Finally, the court designated Sarr as a Tier I and II sex offender. Sarr appeals.

         II. Ineffective Assistance of Counsel

         {¶ 16} Sarr's first assignment of error states as follows:


         {¶ 17} Under this assignment of error, Sarr contends that trial counsel rendered ineffective assistance for failing to object to statements made by the prosecutor during closing argument.

         {¶ 18} "Claims of ineffective assistance of trial counsel are reviewed under the analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989)." State v. Sewell, 2d Dist. Montgomery No. 27562, 2018-Ohio-2027, ¶ 63. "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." Id., quoting Bradley at paragraph two of the syllabus. In order to establish prejudice, "the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." Id., quoting Bradley at paragraph three of the syllabus.

         {¶ 19} The sole issue before us relates to whether counsel improperly failed to object to alleged prosecutorial misconduct during closing argument.

         {¶ 20} In Ohio, "[t]he test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial." State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001), citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). When reviewing a claim of prosecutorial misconduct in the context of closing argument, we note that prosecutors are given "wide latitude in closing argument, and the effect of any conduct of the prosecutor during closing argument must be considered in light of the entire case to determine whether the accused was denied a fair trial." (Citation omitted.) State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149. "[T]he touchstone of a due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

         {¶ 21} The specific portion of the prosecutor's argument to which Sarr objects occurred during rebuttal closing argument wherein the prosecutor stated, "Don't be afraid to go back into that room and do your job and find this man guilty." Tr. 472. Sarr argues that this statement indicated to the jurors that their only option following deliberation was to convict on all charges.

         {¶ 22} The State, however, contends that Sarr fails to provide the context for the statement. Specifically, the State notes that, in his closing argument, Sarr's counsel made the following statement:

So here's the deal. Rough sex was her secret. That was her secret life. That was her private life. When she went home or went to work or met up with Dave and had these marks, these marks, she had to start explaining. She had to start explaining to somebody who went, where'd those come from? Now, I'm a victim.
** *
The judge will tell you in a moment that in order to decide this case, you have to decide, if you can, what are the facts? What do we believe happened? Maybe you can, maybe you can't. You might go back and talk with each other and some of you might say I can't figure this out. I don't know what happened. I can't tell what happened. Guess what that is? It's called reasonable doubt.
** *
[The judge] will tell you that you may not convict anyone of any crime unless and until you are firmly convinced of the truth of the charges. What's that mean? Firmly convinced. That means you don't convict him today or tomorrow and then go home and sit back and watch television and think you know, I wonder if there really was an aunt. I wonder if there really were ten people. I wonder if they really did have rough sex in the past. Too late. You found him guilty, too late.
If you have any doubts, it's right now. Now, or never. That's what firmly convinced means. Firmly convinced means you're so decisive, you can't change your mind. You can't wonder tomorrow night did I do the right thing. Too late for this man.
So you have more power right now than you'll ever have over another human being. Do you realize that? You are 12 judges. Each of you gets a vote and each vote is equal to every other vote. You decide for yourself what is the right thing to do here. You talk to each other, but you don't change your vote or change your mind or change your opinion or surrender just because you're outnumbered, just because someone tells you you don't know what you're talking about, just because someone tells you they know better than you. The judge will tell you that. He'll say don't surrender.

Tr. 454-456.

         {¶ 23} The State contends that this argument was intended to scare the jurors and to make them doubt their ability to assess the reasonable doubt standard. Thus, the State contends that the ...

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