from the Franklin County Court of Common Pleas, No. 17CR-6231
O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher,
C. Belli, for appellant.
Barbara A. Farnbacher.
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.
FACTS AND PROCEDURAL HISTORY
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."
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
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
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
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.
THE COURT: What?
[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
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 ...