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State v. Smith

Court of Appeals of Ohio, Tenth District

December 17, 2019

State of Ohio, Plaintiff-Appellee,
Rafael A. Smith, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas, No. 17CR-6231

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.

          Dennis C. Belli, for appellant.


          Barbara A. Farnbacher.

          Dennis C. Belli.


          BRUNNER, J.

         {¶ 1} Defendant-appellant, Rafael A. Smith, appeals a judgment of the Franklin County Court of Common Pleas entered on May 30, 2018, sentencing him to serve 16 years for two consecutively sentenced counts of felonious assault perpetrated against his girlfriend. Because we find that none of Smith's four assignments of error are well-taken, we overrule each of them and affirm.


         {¶ 2} On November 16, 2017, a Franklin County Grand Jury indicted Smith for attempted murder, three counts of felonious assault, kidnapping, domestic violence, and violation of a protective order. (Nov. 16, 2017 Indictment.) Most of the charges stemmed from a single evening in which Smith administered a savage beating to his girlfriend, D.M. Id.; see also State's Exs. A-C. Smith initially pled not guilty, but on April 16, 2018, he changed his plea to guilty of two counts of felonious assault in exchange for dismissal of the remaining counts. (Nov. 20, 2017 Plea Form; Apr. 16, 2018 Plea Form.)

         {¶ 3} Following Smith's guilty plea, the trial court ordered a presentence investigation. (Apr. 16, 2018 Plea Tr. at 13, filed July 2, 2018.) In addition, the prosecution filed a sentencing memorandum requesting maximum consecutive sentences and submitted exhibits directly to the trial court's chambers. (May 18, 2018 Sentencing Memo. at 2.) The exhibits include a police report of two interviews with Smith's girlfriend, D.M., in which she explained that on the night in question, Smith beat her with his fists, slammed her face into bedposts, and eventually strangled her into unconsciousness. (State's Ex. A at 2-3.) She said she felt "he was killing me, I thought he did kill me." Id. at 4. The exhibits also include medical records and pictures of D.M.'s face taken at the hospital in the immediate aftermath of the beating, together with her Georgia photo ID. (State's Exs. B-C.) The list of D.M.'s injuries alone is four pages long and, due to the swelling, discoloration, and other facial damage, the pictures of her in the hospital are unrecognizable as the same woman pictured in the photo ID. (State's Exs. B-C.)

         {¶ 4} Six days after the prosecution filed its sentencing memorandum and exhibits, the trial court held a sentencing hearing. During the sentencing hearing, the defense characterized Smith's crimes as an "anger management issue that his family has recognized and has counseled him to seek help for." (May 24, 2018 Sentencing Tr. at 3, filed July 9, 2018.) Smith's attorney noted that the victim had requested that Smith not be prosecuted and then he called the victim to give a statement at the sentencing hearing. (Sentencing Tr. at 3.)

         {¶ 5} D.M. challenged a number of factual assertions in the prosecution's sentencing memorandum, portraying the event as a mutually intoxicated altercation that got out of hand and downplaying the nature of her injuries. Id. at 4-6. She explained that she and Smith love each other very much and minimized the abuse, saying that they have "gone through things together. All couples do." Id. at 6. She closed by begging that Smith be released without further punishment so that they could "work this out as a family." Id. at 6-7.

         {¶ 6} Smith's father spoke next. He opined that when his son and his girlfriend go "out to party, they go through these problems. I don't know if it's the alcohol or, like, certain medications or what; but they both attack each other. It happens numerous times." Id. at 7-8. He opined that as long as his son is on his proper medication, though, "he'll be all right." Id. at 8. Following these remarks, Smith's attorney clarified that Smith was on anxiety and depression medications, Buspar and Lexapro. Id.

         {¶ 7} The State then introduced the three exhibits it had previously submitted to chambers in support of its sentencing memorandum. Id. at 9. The prosecutor pointed out that in the recitation of events D.M. "initially" gave to police, she articulated two specific types of assaults: blunt force trauma (from fists and slamming her head into bed posts) and strangulation to the point of unconsciousness. Id. In that initial recitation, D.M. reported that the assaults occurred over a significant period of time and resulted in several distinct injuries: a broken hand, numerous facial fractures, broken orbital bones, and loss of consciousness. Id. The prosecution accordingly argued that the two felonious assault counts should not be merged into a single offense for conviction and sentencing purposes. Id. The prosecution also noted Smith's extensive history of allegations of domestic violence against D.M. and other women (most but not all of which were dismissed). Id. at 9-10. The prosecution called attention to a statement allegedly made by Smith during his arrest, "[t]hat bitch won't file charges on me. She knows better[;] just like last time." Id. at 10. The State further mentioned that Smith had accumulated several charges for violating protection orders in the aftermath of the incident because he would not stop contacting D.M. Id. The State closed by requesting a significant prison sentence. Id. at 11.

         {¶ 8} Smith's attorney responded that this crime was a single assaultive incident in a bedroom and that this was, as a consequence, really a single felonious assault. Id. at 12. The defense therefore argued that the two counts should merge into one. Id. The defense also suggested that the statements Smith made to the police may have been "fueled by alcohol." Id.

         {¶ 9} The court then inquired whether Smith, himself, "want[ed] to say anything before [the court] impose[d] sentence?" Id. Smith said he would and began by suggesting that there was a great deal of confusion about what happened that evening and that really the fault lay in both D.M. and himself. Id. at 12-13. He suggested that she "got into something with somebody else and me" (meaning another altercation with a female assailant) on the night in question. Id. at 13-14. The trial court suggested, in light of his statement, that Smith clarify the extent of his participation in the beating by circling the injuries he believed he inflicted on the photographs of D.M.'s injuries. Id. at 14. Smith complied and circled virtually all the injuries to D.M.'s face and neck. Id. at 14-15; see also State's Ex. C. Smith further said that this was not a one-way street and that he too had suffered injuries in the form of scratches on his lips. Id. at 15-16. The trial court asked if D.M. had been charged for the injuries she inflicted upon him and he indicated she had not. Id. The trial court then inquired if there was "anything else you want to say to me?" Id. At 16. Smith responded, "No, ma'am." Id.

         {¶ 10} The trial court then pronounced sentence and, in so doing, expressed personal outrage:

THE COURT: It is rare that I come into a sentencing circumstance where I am literally shaking because I am so outraged by what I have heard and by what I have seen. I am rarely speechless when it comes to what I must do as a judge here in this courthouse, but I am literally furious and speechless.
Let me say to you first, [D.M.], I don't normally address victims. You are a beautiful woman, and I am concerned by the fact that you are investing so much time and energy in managing Mr. Smith's choices versus finding and releasing the powerful and beautiful woman that you are.
The fact that you have done so much research to assist Mr. Smith when he has conceded what he has done to you hurts my heart, and I know that you don't want to hear anything that I have to say because love is a very powerful thing. And, candidly, the psychology of abuse is an even more powerful thing. But I am hopeful that one day you will come to the realization that you do not have to subject yourself to this kind of behavior because this is not what love is. This is not what companionship is. This is not what care is. This is not what concern is. This is nothing to which you should have to be subjected.
As to you, Mr. Smith, you, sir, are one of the most narcissistic defendants that I have ever had the great displeasure of having in my courtroom. Your arrogance is astounding. Don't shake your head no at me like I don't know exactly what I'm talking about.
I have read your presentence report, and I absolutely believe the version of events that was first provided to police officers. They have absolutely no incentive to suggest that you would say -- and I hate this word -- That bitch won't press charges just like the last time. She knows better just like last time.
I have no reason to believe that anybody would manufacture these kinds of facts, that you would drag this woman up the stairs, that you would pick her up by her throat and throw her on a bed and assault her to the point that she reported to police originally that you believed that you had killed her.
You can shake your head no. I don't believe you.
[SMITH]: Ms. Cocroft, [D.M.] is right here. You can ask her.
THE COURT: You don't need to point out who is here because I've been doing this work long enough to know that the psychology of abuse suggests that an abused person will always defend the abuser. And there is a pattern of behavior out of Georgia which suggests that there have been incidents that have not resulted in convictions where there have been violations of protection orders; there has been physical abuse. And I am certain that [D.M.] recanted those allegations in an effort to protect you and really to protect herself.
So you don't need to point out to me that [D.M.] is here and that she can refute that which has been established by your own circling of the damages that you've done to her. You've already admitted to me what you did to her, so hearing from her is not going to change the narrative to which you've already agreed to today, sir.
[SMITH]: Ms. Cocroft.
[SMITH]: She and I were involved in this together. This was not just something that happened.
THE COURT: I'm not interested in hearing about your argument of mutual combat when this woman was beaten into unconsciousness, when her eye was protruding from the socket.
[SMITH]: Ms. Cocroft.
THE COURT: I don't want you to say anything else to me to attempt to justify your physical brutality. I don't want to hear it. There is no excuse. I will not permit you to continue to violate [D.M.]. Even though she doesn't want my protection necessarily today, I'm not going to permit you to continue to use her as a shield for your willful actions. That day is over.
You are an abuser. You are a violent man. You have absolutely no regard for the women in your life.
You have a history of violating women because you punched the mother of your child. That is what you do, and you were convicted, so don't try to tell me it didn't happen.
And you have a 7-year-old son who is watching you, who is learning how to treat people based on how you treat people. And do you think I'm anything close to eager to allow you to be in his life so that he can watch you continue to brutalize people?
I have never been so furious. The way that you have orchestrated all of this, the strings that you are pulling, the way that you are manipulating people and situations to advance your own selfish motives is outrageous to me. You are completely offensive to me, and I'm just going to get to the factors for felony sentencing so that I can move on.

Id. at 16-20.

         {¶ 11} The court then catalogued and applied the sentencing factors, finding several factors marking the crime a more serious version of the offense. Id. at 21-24. The court found that the mismatch in strength and inebriation of the victim made the victim physically vulnerable, that the victim suffered serious physical and psychological harm, that Smith's relationship with D.M. facilitated the offense, that the crime was perpetrated against a household member, and that the offense was motivated by prejudice against females (as illustrated by Smith's history of abuse against women). Id. The trial court said it found no factors indicating the offense was less serious because it entirely disbelieved the version of the offense Smith and D.M. presented during the hearing. Id. at 24-25, 27. The trial court also found that Smith's conduct, lack of remorse, and criminal history of abusing women made it likely he would reoffend. Id. at 27-28. At one point during the court's recitation, Smith interrupted to indicate that he had also fought with a man and that he had not punched, but only pushed, the mother of his child. Id. at 25-26. The trial court discussed the matter with Smith then indicated, "Okay. So I just want you to be quiet for now. I do. I want you to be quiet. I do." Id. at 26.

         {¶ 12} The trial court found no reason to depart from the presumption of prison time, stating, "I've never had a case where it's been so clear-cut about what it is that I'm going to do." Id. at 28-29. It then found that the offenses did not merge based on the fact that there were several species of assault perpetrated against D.M., each with a distinct animus. Id. at 30. The trial court imposed the maximum of eight years on each of the felonious assault counts. Id. at 31. Then the court found:

[B]ecause the Court believes that no single sentence can satisfy that course of conduct, because of the danger that the conduct poses to the safety of the community, because of the seriousness of the injuries, and in order to ensure the safety of the community, those sentences will run consecutive with each other for a total of 16 years of incarceration with the Department of Rehabilitation and Correction with 198 days of jail ...

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