Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
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
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
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. The two entered an alley and parked behind
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
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. 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
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.
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
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. T.W. and her aunt
left the hospital. After dropping off her aunt, T.W. went
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
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
Ineffective Assistance of Counsel
16} Sarr's first assignment of error states as
COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE AS TRIAL COUNSEL
DUE TO HIS FAILURE TO MAKE PROPER OBJECTIONS.
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
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
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
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 ...