Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court, Trial Court Case No.
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
F. CAMPBELL, Atty. Reg. No. 0089541, Attorney for
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. Smith appeals from that judgment. The
judgment of the trial court will be affirmed.
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
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." When Mother rejected his plea, however,
Smith resigned his coaching position before the end of that
week. 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,  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
6} When Mother went to awaken C.B. on the morning of
May 7, 2018, Mother saw a Samsung cell phone 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 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 in Dayton on May 8, 2018. Det. Kellar
described C.B. as "very emotional" during that
interview. He continued:
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. 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
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
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
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 ...