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State v. Smith

Court of Appeals of Ohio, Second District, Montgomery

December 6, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JUSTIN K. SMITH Defendant-Appellant

          Criminal Appeal from Common Pleas Court, Trial Court Case No. 2018-CR-1861.

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

          APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Attorney for Defendant-Appellant.

          OPINION

          FROELICH, J.

         {¶ 1} Following a bench trial, Justin K. Smith was found guilty of three third-degree felony counts of sexual battery (coach/scout leader) in violation of R.C. 2907.03(A)(9), three third-degree felony counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), and two third-degree misdemeanor counts of sexual imposition in violation of R.C. 2907.06(A)(4). The trial court merged the unlawful sexual conduct offenses into the corresponding sexual battery offenses and sentenced Smith to 48 months on each of the three sexual battery offenses, to run consecutively for a total of 12 years in prison.[1] Smith appeals from that judgment. The judgment of the trial court will be affirmed.

         Factual and Procedural Background

         {¶ 2} In early 2018, 41-year-old Smith was the president of the Southwest Soccer Club and coached two of that club's girls' soccer teams. Among the members of one team Smith coached were 14-year-old C.B. and Smith's daughter of the same age, who were close friends. C.B.'s mother ("Mother") also had become friends with Smith through years of coaching their daughters' soccer teams together. Due to the two girls' friendship, C.B. slept over at the Montgomery County home of Smith, his wife, and their three children on a monthly or more frequent basis.

         {¶ 3} On March 27, 2018, Mother dropped C.B. at a soccer training session run by a paid trainer. While waiting for the training to end, Mother looked through C.B.'s iPhone, which she (C.B.) had left in the car. Mother found a series of "emotionally explicit" and "sexually explicit" text messages between C.B. and Smith. Mother texted Smith, telling him that she had C.B.'s phone and asking, "Oh, my God, what have you done[?]" Smith replied "with the word 'what' and a question mark," to which Mother did not respond.

         {¶ 4} When C.B. returned to the car and Mother told C.B. that she (Mother) had looked through the phone, C.B. "broke down in immediate hysterics." After questioning C.B., Mother drove home and told her husband ("Father) what she had discovered. Mother and Father spoke privately with C.B., then discussed how to proceed. They confiscated C.B.'s iPhone and canceled her activities for the coming week of spring break. Mother and Father then had a telephone conversation with Smith in which they "threatened * * * to go to the authorities and the soccer board should he attempt to contact [C.B.] again." They also demanded that Smith step down from coaching. As to why they did not go to the police at that time, Mother explained:

We live in an extremely small town * * *
* * * [W]e thought the blowback on [C.B.], stigma, * * * would be something that she could not escape and we thought it best that we attempt to control the situation within the confines of our own home with our own rules put in place * * *

(Tr., p. 119.)

         {¶ 5} The following day, Smith sent "an apology text" to Mother, "begging for mercy and asking that [Mother and Father] still allow him to coach."[2] When Mother rejected his plea, however, Smith resigned his coaching position before the end of that week.[3] Thereafter, in moments she described as "self-torture," Mother occasionally scrolled through C.B.'s text messages, preserving screenshots of "a handful - ten maybe" of the more recent exchanges between Smith and C.B. and sending them to Mother's own cell phone, [4] as a form of "insurance" that Smith would comply with Mother and Father's demands. Mother returned C.B.'s iPhone to C.B. on May 6, 2018, so that C.B. would have it for a school trip to Washington, D.C. later that week. Before doing so, Mother deleted all of the text messages between Smith and C.B.[5]

         {¶ 6} When Mother went to awaken C.B. on the morning of May 7, 2018, Mother saw a Samsung cell phone[6] that she did not recognize sticking out from beneath C.B.'s pillow. C.B. at first claimed that the phone must have been left by someone attending her sister's birthday party the weekend prior. After demanding and entering the passcode (which was Smith's birthday), Mother found text messages from a telephone number that she immediately recognized as Smith's. In less than 24 hours between May 5 and May 6, Smith and C.B. had exchanged 327[7] text messages. Mother and Father sent C.B. to school; Father then called Sergeant Mark Bruner of his township's police department, who was the school resource officer for C.B.'s school. Together, Mother and Sgt. Bruner determined that the text messages deleted from C.B.'s iPhone were not recoverable. However, Mother gave Sgt. Bruner the Samsung phone and sent him copies of the screenshots of text messages from C.B.'s iPhone.

         {¶ 7} Sgt. Bruner's police department contacted the Montgomery County Sheriff's Office due to jurisdictional issues in the case, and Detective Isaiah Kellar of the Sheriff's Office was assigned to investigate the allegations against Smith. Det. Kellar observed remotely while C.B. went through her initial forensic interview at CARE House[8] in Dayton on May 8, 2018. Det. Kellar described C.B. as "very emotional" during that interview. He continued:

         She was upset, nervous, reluctant. You could tell she did not want to be there. She cried. She just - her demeanor was not of a child that wanted to be in that room.

* * * [S]he minimized the defendant and said several times I wanted to do it, I never said no.

(Tr., p. 297.) Det. Kellar said that during that interview, C.B. "said multiple times how much she loved" Smith. (Id., p. 330.) Nevertheless, according to Det. Kellar, C.B. did disclose at that time that a sexual relationship existed between her and Smith.

         {¶ 8} Det. Kellar next interviewed Smith, verified his cell phone number, and collected Smith's cell phone, which was sent to the Secret Service laboratory for help in overriding the password protection feature.[9] Det. Kellar identified the screenshots of text messages provided by Mother and the Samsung phone recovered from C.B. He confirmed that all text messages on the Samsung phone were to and from Smith's cell phone number. He also identified copies of text messages that he was able to extract from that phone. Det. Kellar determined that the Samsung also contained numerous images of "sexual positioning" in which C.B.'s nude breasts, vagina, legs, and buttocks were displayed. Because C.B. had not revealed the existence of those photographs in her initial forensic interview, Det. Kellar contacted Mother and asked her to bring C.B. to the Sheriff's Office for an additional interview, which occurred about a week later in May.

         {¶ 9} Det. Kellar testified that, based on his training and experience, the existence of the nude photographs led him to suspect that "there's more to [C.B.'s] relationship" with Smith than C.B. "originally disclosed in the forensic interview." (Id., p. 303.) He further indicated that it is common for crime victims to make additional disclosures over the course of an investigation. According to Det. Kellar, his investigation revealed that the "showcase" tournament for C.B.'s soccer team took place in Indianapolis from February 23-25, 2018. On cross-examination, Det. Kellar acknowledged that he also conducted a third, pre-trial interview in which C.B. disclosed yet more information.

         {¶ 10} Det. Kellar presented the results of his investigation to the prosecutor's office. On May 18, 2018, a Montgomery County grand jury indicted Smith on six counts: two counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), third-degree felonies (Counts I and II); two counts of sexual battery (coach/scout leader) in violation of R.C. 2907.03(A)(9), third-degree felonies (Counts III and IV); and two counts of sexual imposition in violation of R.C. 2907.06(A)(4), third-degree misdemeanors (Counts V and VI). (Doc. #1 ("Indictment A").) Subsequently, the indictment was amended to add one additional count of sexual conduct with a minor and one additional count of sexual battery (coach/scout leader). (Doc. #62 ("Indictment B").)

         {¶ 11} Smith pled not guilty and was placed on a conditional own recognizance ("COR") bond with electronic home detention ("EHDP"). Smith repeatedly moved for a reduction of the bond order, including removal of the EHDP condition or expansion of his permitted area of movement. Following a June 28, 2018 hearing, the Court set bond at $50, 000, together with the condition that Smith again be placed on COR with EHDP if he posted the required surety bond. Smith posted bond the next day.

         {¶ 12} A jury trial originally scheduled for October 2, 2018 was continued after Indictment B was issued on September 28, 2018. On the rescheduled trial date of October 29, 2018, Smith signed a written waiver of jury, and the matter proceeded to a bench trial.

         {¶ 13} At trial, Mother and Det. Kellar testified as outlined above. The State also presented Brenda Miceli, Ph.D., a pediatric psychologist with CARE House at Dayton Children's Hospital, as an expert witness in the field of child sexual abuse. Dr. Miceli said she recently had met with C.B. twice, to perform a psychological evaluation and to begin therapy that would be ongoing, but not for the purpose of determining whether abuse had occurred. She also had not been authorized to disclose details of C.B.'s particular case.

         {¶ 14} Generally, Dr. Miceli said that because children are "not able to fully appreciate the circumstances" of sexual behavior between an adult and a child, consent is immaterial to child sexual abuse. She said that secrecy and helplessness are typical components of child sexual abuse. She also explained that adult abusers often are "somebody who has some amount of authority or power over" the child. Dr. Miceli described "grooming" as "the process by which the boundaries that are appropriate become blurred over time." She said that when sexual abuse is disclosed accidentally before a child is ready to talk about it, he or she "will oftentimes just deny that anything occurred."

         {¶ 15} Dr. Miceli testified that children who "are unsure how people will respond * * * may give bits of information. The types of information they're more likely to withhold are things that usually involve more embarrassing acts such as anal sex or oral sex." According to Dr. Miceli, "the closer the relationship and the more authority that a person has over a child the less likely they are to disclose." She opined that child victims are more likely to under-disclose than to embellish the details of abuse that occurred.

         {¶ 16} C.B. also testified at the trial. She identified Smith as the former coach of her club soccer team. She said she met Smith through playing soccer when she was about eight years old, and she became friends with one of Smith's daughters, who was C.B.'s age, played on her soccer team, and attended her school. She said she saw the Smiths frequently and sometimes had sleepovers at their house. C.B. said that she and Smith began to communicate via text message. At first, "he would just like compliment me or the way I looked or how I played and eventually there was [sic] a lot of compliments and over time it led to a different kind of relationship." (Tr., p. 223.)

         {¶ 17} As C.B.'s team entered the winter "showcase season," performing before college coaches, C.B. saw Smith more often and began to go to his house more often. The text messages between them increased in frequency and "started to just get more personal" (id., p. 225); "[w]e talked about kissing each other, hugging each other." (Id., p. 227.) One evening, Smith, his daughter, and C.B. were watching a movie together in Smith's basement during a sleepover at Smith's house. Smith's daughter fell asleep and C.B. moved to the other couch to sit next to Smith. She initiated a hug, then "[w]e were hugging each other. He was touching my legs and my arms." (Id.) In their texts afterward, Smith told C.B. "[w]e should've kissed." (Id., p. 228.) C.B. testified that she never had kissed anyone before, and she felt as though kissing Smith would mean she and he were "like dating," an idea she didn't like.

         {¶ 18} C.B. said that when she next spent the night at Smith's house and Smith's daughter again fell asleep on the couch in the basement, Smith "started kissing my cheek and then kissed my mouth." (Id., p. 229.) C.B. said there was "more touching the legs and arms, hugging." (Id., p. 230.) She said Smith then suggested "that we would be more comfortable upstairs so we moved up there," to the bedroom. (Id.) Smith's wife was not at home. Although C.B. said she didn't remember "exactly what happened the next time," she said that when she and Smith were not together, they would exchange texts "about the things that we should do the next time." (Id., p. 231.) Ultimately, "[h]e and I both performed oral sex on each other. He fingered me. I gave him a hand job. He's - touching, kissing." (Id.) C.B. stated that Smith touched her "[everywhere - boobs, butt, vagina," both while clothed and unclothed. (Id., p. 232.) C.B. said that Smith touched both the outside and the inside of her vagina with his hand. Although she had never performed a "hand job" or oral sex before, Smith instructed her by text message on what to do. Pressed for specifics, she stated that each of them had mouth-to-genitals contact with the other, and that Smith once ejaculated while she manipulated his penis with her hand.

         {¶ 19} C.B. said that to avoid being caught, "usually I would delete my text messages" each night, "and we would never tell anybody about our relationship or what was going on between us." (Id., p. 233.) C.B. testified that Mother found out about the relationship with Smith in April 2018, when C.B. left her iPhone in Mother's car during soccer training and Mother read C.B.'s text messages. C.B. said that Mother took her (C.B.'s) phone away and that the text messages had been deleted when Mother eventually returned that phone. C.B. identified the screenshots presented into evidence as a sample of the text messages between herself and Smith on that phone. C.B. said that Smith's text about "naked kissing" referred to something she and Smith actually had done, and his text about her "kissing [Smith's] spot" referred to a place on his neck that she had kissed. She said Smith's comment about her nipples also referred to something they had done.

         {¶ 20} C.B. explained that one early string of text messages was about Smith "wanting us to be in a relationship and I didn't want to be." (Id., p. 245.) However, C.B. stated that she later believed she was in love with Smith. According to C.B., she and Smith "planned on getting married and having kids"; they even had chosen a name for one future child. (Id., p. 241.) C.B. said that when Mother took away her iPhone, Smith found a way to give her another cell phone so that she could continue to communicate with him. According to C.B., at the end of a school day, Smith's daughter told her that Smith had something for her, so C.B. followed Smith's daughter outside the school, where Smith handed his daughter an envelope that the daughter then handed to C.B. Inside were a cell phone and charger. C.B. identified an exhibit as the cell phone Smith provided. She said she kept it hidden inside a box in a chest in her bedroom and would use it to text Smith every night, then she would delete the texts. C.B. said she also used the phone to send Smith photos of her "[b]oobs, butt, vagina, legs," and videos of her "touching myself," because she "thought he would like them." (Id., pp. 248-249.) She identified exhibits as copies of those photographs.

         {¶ 21} C.B. testified that Mother found the phone provided by Smith when C.B. overslept one morning after failing asleep with the phone in her hand. She said that the 326 text messages from May 5 to May 6 were fewer than she and Smith typically exchanged each night because "I fell asleep that night [and] usually I would stay up a little later and text him more than I did that night." (Id., p. 252.) From the witness stand, C.B. read through the text messages from that night, including texts in which Smith referred to the phone as "a smoking gun" and suggested that he wished she had "a different carrier that would make their communications easier to conceal. (Id., pp. 267-268.)

         {¶ 22} C.B. said that she was "[u]pset and embarrassed" during her first interview at CARE House and did not tell the interviewer everything that had happened between her and Smith because she didn't want Smith "to get in trouble." She said she later disclosed additional information during an interview with Det. Kellar.

         {¶ 23} C.B. described the negative impact on her life stemming from her relationship with Smith:

A lot of people know and * * * treat me different because of it. * * * I didn't get a date to Homecoming. No boys really want to talk to me. My friend group that I had, it's not really my friend group anymore. Yeah.

(Id., p. 274.)

         {¶ 24} At the close of the prosecution's case, the trial court denied Smith's Crim.R. 29(A) motion for acquittal based on the State's purported failure to prove proper venue. Smith then testified as the only defense witness. Smith confirmed that he had known C.B. and coached her in soccer since C.B. was eight. He said that C.B. was friends with both of his daughters and frequently had stayed at his house. He said that he exchanged text messages with all of his soccer players, but that in November and December of 2017, his exchanges with C.B. increased. Smith said the text messages became more personal and gradually moved into a "friendship," then beyond.

         {¶ 25} Smith recalled an occasion when he hugged C.B. while they were in his basement watching movies. He said that on a subsequent occasion, C.B. found Smith alone in the basement after he learned that his grandfather had died, and to console him, C.B. "gave me a hug and kissed my forehead and rubbed the back of my head." (Tr., p. 371.) Smith said C.B. then was simply "being kind." On a later date, however, Smith's daughter fell asleep on the couch and Smith kissed C.B. on the cheek; "I don't know who kissed each other after that but that was the first time we actually kissed," despite discussing kissing in prior text messages.

         {¶ 26} Smith also acknowledged that there had been times when he and C.B. had their clothes off or "pushed to the side" in his basement and bedroom and he touched her breasts, legs, and buttocks. (Id., p. 374.) He confirmed that C.B. also gave him a "hand job" in his basement. However, he denied that he ever performed oral sex on C.B. or C.B. ever performed oral sex on him in his home. He also denied ever penetrating C.B. digitally in his home, or ever having sexual intercourse with her.

         {¶ 27} On cross examination, Smith acknowledged that he had engaged in sexual behavior with C.B. somewhere other than in his home; he said he didn't recall where, "but it wasn't in Montgomery County." (Id., p. 377.) He also acknowledged that he purchased a Samsung phone for C.B.to use after her parents took away her iPhone. However, Smith said he did not use his daughter to deliver that phone, but rather texted his daughter and asked her to have C.B. come out to his car. Smith said he labeled the envelope containing the phone "referee money" so his daughter would not be suspicious, and he handed the envelope directly to C.B.

         {¶ 28} Confronted with copies of text messages that he and C.B. exchanged on the Samsung phone, Smith explained that references he made to being "mad we're not having sex tonight" and to nights when "the sexual stuff just doesn't work for us" probably meant sexual texts or "touching and holding." He acknowledged that one of C.B.'s messages to him stated that they had "committed a crime," but offered no explanation. Smith also agreed that he had expressed concern to C.B. about assuring that her returned iPhone contained no evidence of his text messages, and that he had encouraged her to delete his texts; "I didn't want her to get in trouble any further." As to whether he and C.B. thereafter had exchanged photographs and videos, Smith said, "Perhaps. Yes, I guess we did. * * * I'm not sure. * * * I don't recall sending her videos." While agreeing that C.B. had been honest about certain aspects of their relationship, Smith maintained that C.B. lied about the two having oral sex and about Smith digitally penetrating C.B.

         {¶ 29} When Smith failed to return to the courtroom following that day's lunch recess, an employee of the trial court's pretrial services department was called and testified that Smith had tampered with his ankle monitor and his whereabouts were unknown. Without objection, the trial continued in Smith's absence.

         {¶ 30} On November 6, 2018, the trial court found Smith guilty of all eight offenses charged. Smith subsequently was arrested in Florida and returned to Ohio on December 20, 2018. Smith immediately requested a continuance of the January 3, 2019 sentencing hearing, citing defense counsel's travel plans and a psychological examination of Smith scheduled for January 8, 2019. Smith also filed an affidavit in the Supreme Court of Ohio to disqualify the trial judge. The trial court denied the motion for continuance and the Supreme Court denied the affidavit of disqualification.

         {¶ 31} Sentencing proceeded on January 3, 2019. Per the State's election, the trial court merged the three unlawful sexual conduct with a minor offenses into the three corresponding sexual battery offenses, and sentenced Smith to 48 months on each of the sexual battery offenses, to run consecutively for a total of 12 years in prison. Smith also was designated a Tier I and Tier III Sex Offender and placed on five years of post-release control.

         {¶ 32} Smith appeals from that judgment, asserting these six assignments of error:

1) Smith's felony convictions should be reversed because the State did not establish jurisdiction or ...

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