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State v. Smith

Court of Appeals of Ohio, First District, Hamilton

December 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
KENT SMITH, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas Trial Nos. B-1507289, B-1601998.

         Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause Remanded

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Kent Smith, pro se.

          OPINION

          Crouse, Judge.

         {¶1} Defendant-appellant Kent Smith committed a string of burglaries, robberies, and felonious assaults in December 2015. Many of the crimes were violent and caused serious harm to the victims, including a 14-year-old boy who was shot in the chest by Smith, and a victim who suffered physical injuries and emotional distress after being assaulted and robbed by Smith twice in a ten-day period. Smith was charged with 19 counts in two indictments. After some of the counts were merged, Smith was convicted of 15 counts and six accompanying firearm specifications. The trial court then imposed the maximum sentence on each count and firearm specification, and ordered all counts and specifications to run consecutively to each other, for a total sentence of 101 years in prison.

         {¶2} Smith has appealed, arguing in seven assignments of error that (1) several of his convictions were based on insufficient evidence; (2) he was denied due process of law when the trial court failed to give an accomplice jury instruction concerning the testimony of codefendant Michele Brown; (3) he was denied a fair trial and due process when the state solicited false testimony; (4) he was deprived of the effective assistance of counsel; (5) his right to be free from double jeopardy was violated when the trial court instructed the jury to convict him of burglary in counts seven and eight in the case numbered B-1507289; (6) the trial court deprived Smith of his right to counsel by imposing sentences outside of his presence and the presence of his counsel; and (7) the trial court erred by imposing consecutive sentences without making the required findings under R.C. 2929.14(C)(4) to support consecutive sentences.

         {¶3} There was insufficient evidence to support Smith's convictions in count two of the case numbered B-1507289A ("B-15") and count nine of the case numbered B-1601998 ("B-16"), and so we sustain Smith's first assignment of error in part, and overrule it in part. We sustain Smith's sixth and seventh assignments of error and remand the cause to the trial court for a new sentencing hearing. We overrule the remainder of Smith's assignments of error and affirm the judgment of the trial court in all other respects.

         The Duck Creek Apartment Crimes

         {¶4} Smith committed a number of crimes at the same apartment complex on Duck Creek Road. Bitwoded Gebregiorigis lived at the Duck Creek apartments. He was assaulted and robbed twice by Smith. The first assault and robbery occurred on December 8. Gebregiorigis testified that as he approached the front door to his apartment, a man jumped out of the bushes, hit him in the head with a gun, and then stole his ID, credit cards, and $500 before fleeing in a car. At trial, Gebregiorigis testified that a picture of Michele Brown's (Smith's girlfriend and codefendant) car looked like the car in which the robber had fled.

         {¶5} The second assault and robbery occurred on December 18. Gebregiorigis was approaching his apartment door when he noticed the lock broken and a light on in his apartment. He started to run away, but a man came out of his apartment, knocked him down, and pulled him into the apartment. He put a gun to Gebregiorigis's head and took $200 and a cell phone. The man's face was uncovered. Gebregiorigis selected Smith's photo from a photo array. He told police that he was 60 percent certain that Smith was the man who robbed him, although his confidence in his identification dipped to 40 percent when he testified at trial. State's exhibit eight depicted a white Samsung phone recovered from Smith's house after police executed a search warrant. Gebregiorigis identified the white phone in state's exhibit eight as the phone taken from him during the robbery. Also, Detective Joseph Coombs testified that the white Samsung in exhibit eight had Gebregiorigis's SIM card in it.

         {¶6} Christopher Fitch also lived at the Duck Creek apartments. He testified that his apartment was burglarized, and that a television, Xbox, chess board with a wooden case, and video games were stolen. Finch identified state's exhibits 26-29 as photographs depicting video games that were stolen from him. The same video games were recovered from Smith's house when police executed a search warrant.

         {¶7} Samantha Herchik was another resident of the Duck Creek apartments. She had asked her friend, Penelope Houk, to look after her cat while she was out of town. Houk testified that when she went to Herchik's apartment to check on the cat, she found the apartment had been burglarized. She discovered that Herchik's guitar and some cat supplies were missing.

         {¶8} The state alleged that Smith committed his crimes with the assistance of his girlfriend Michele Brown, who was a key witness against Smith at trial. Brown testified that she drove Smith to the apartment complex on Duck Creek Road several times during December 2015 for the purpose of committing robberies and burglaries. She could not remember dates for most of the offenses, but remembered many of the items that were stolen.

         {¶9} Brown testified that Smith robbed a man whom Brown described as "Indian," with a "long, weird name." Gebregiorigis testified that he is from Ethiopia. Brown testified that after she drove Smith to the Duck Creek apartments, Smith went into the apartment after the "Indian guy" and was gone for a couple of minutes. When Smith came back to the car, he told Brown that he had attacked the man as he was walking into his apartment, and took his wallet and cell phone. Brown identified the white Samsung phone in state's exhibit eight as the phone stolen from the "Indian guy."

         {¶10} Brown testified that after one of the robberies at the Duck Creek apartments, Smith returned to the car with a television, crock pot, Xbox, and chess board with a wooden case. On another occasion, Smith came back out with "some cat items," a television, and a guitar. As they were leaving the apartments, Brown saw a lady on her balcony taking a photograph of them. Brown identified state's exhibit 41 as a photograph of her and Smith as they were carrying stolen items to her car.

         {¶11} Brown testified that after Smith was arrested and police searched his house, Smith asked Brown to go to his house and clean out his room to get rid of items from the burglaries that the police had not found during the search. Brown testified that she got rid of "the Indian guy's wallet, the one with the weird name," along with a chess board and other stolen items.

         Victims Sam Abernathy, Andrew Smith, and Samuel Simpson

         {¶12} Samuel Simpson testified that he returned to his home on Marshall Avenue on December 19 after a friend told him his apartment had been broken into. Simpson identified the camera, portable hard drive, computer, and the watches in state's exhibits 53, 57, 58, and 135 as items stolen from his home. Detective Coombs testified that all of those items were recovered during the search of Smith's house.

         {¶13} Brown testified that on December 19, she drove Smith to a house on Marshall Avenue. Smith went behind the house and returned ten minutes later with stolen items which included a camera and a computer, which she identified in state's exhibits 53 and 58.

         {¶14} Sam Abernathy and Andrew Smith lived together on East Eastwood Circle. Andrew testified in his deposition[1] that when he returned home he discovered a large hole in the glass door in the back of the house and glass all over the ground. He testified that two laptops, a hard drive, an AR-15 rifle, and two guitars, among other items, had been stolen from the home. He later found one of the laptops at a pawn shop. He testified that when he turned the laptop on he saw a Google account of Smith's on it. The account included a photo, and during his deposition Andrew identified Smith as the man in the photo on the Google account. Andrew also identified state's exhibits 46 and 48 as the stolen AR-15 and its case. Detective Coombs testified that the AR-15 and case in exhibits 46 and 48 were recovered during the search of Smith's house.

         {¶15} Brown testified that she drove Smith to a house on East Eastwood Circle. Smith told Brown that he broke into the house by throwing a spark plug through a glass door in the back of the house. He returned with a long, black case, which Brown identified at trial as state's exhibit 48. After the burglary, Brown became aware that there was a rifle in the case.

         Victims Tony Graves and His Son

         {¶16} Tony Graves testified that when he returned home on December 19, his back door had been kicked in. His sons were in the house at the time, but did not hear anything because they were upstairs wearing headphones. Graves testified that he walked across the street to his aunt's house to see if his aunt or uncle had seen anything. After talking with his aunt and uncle, he started to walk back across the street to his house with his Uncle Luther Gilbert when he ran in to Smith on the street. Smith asked Graves and Gilbert if they had seen anybody run down the street, because, as he claimed, someone had kicked in his mother's door. Then, Smith ran away. Graves drove around the block, but did not see anyone, and so he went back into his house. He was on his phone preparing to call the police when his son came downstairs. His son saw the doorknob twisting on the back door, and reached for it. Graves heard a gunshot and his son scream. He turned around to catch his son as he was falling to the floor with a gunshot wound to his chest.

         {¶17} Gilbert testified at trial that shortly before the shooting he was walking his dog and saw a man and a woman arguing in a gray SUV parked in the church parking lot behind Graves's house. When shown a picture of Brown's vehicle, Gilbert identified it as the one he saw in the church parking lot, noting the leopard print steering wheel cover. Gilbert identified Smith as the man who was arguing with the woman in the church parking lot, and as the man who approached him and Graves on the street.

         {¶18} Brown testified that she and Smith drove to Graves's house with the intent to steal money from Graves. They parked in a church parking lot directly behind Grave's house. Brown testified that Smith always carried a gun. Smith went to Graves's house with his gun, kicked in the door, but then returned to the car because dogs started barking. While they were sitting in the car, they started arguing because Brown wanted to leave, but Smith wanted to go back to Graves's house to attempt the robbery again. Smith returned to Graves's house, and this time Brown heard a gunshot while he was gone. She drove off, and texted Smith to meet her at a nearby store. Smith met her at the store and got into the car, telling Brown, "I think I popped that n-----," and that he shot through the door of the house. Brown also testified that she remembered a guy walking his dog through the church parking lot while she and Smith were parked there.

         {¶19} Brown was questioned by police, and initially stated she had nothing to do with the crimes. She eventually confessed to being involved when the police told her that they had evidence against her. Once Brown was forthcoming with police, she drove around with them and showed them where the crimes occurred.

         {¶20} Brown called Smith on a recorded line with detectives listening in. She told Smith that she had talked to police and that they had collected shell casings from the gun used to shoot Graves's son. Smith told her that the shell casings don't come out of the gun he used, and that he had already gotten rid of the gun anyway. Brown also told Smith that police had told her that there were video cameras in the church parking lot, and that she was concerned that the cameras had recorded them. Smith told her that he did not think there were any cameras in the church parking lot, and not to worry.

         {¶21} Brown testified regarding text messages sent between her and Smith. When Smith found out that the police had asked Brown to speak with them, he texted her and urged her not to talk. Smith told Brown that the police did not know anything, and that he would give her money for her bills if she did not talk to the police. They also texted about future robberies. In Facebook messages, Smith discussed various items stolen in the burglaries and how to sell them. After Smith was arrested, Brown and Smith talked over a recorded jail phone line, when Smith mentioned something about "when I shot that dude," but did not name who was shot or when it happened.

         {¶22} Brown was arrested for her part in the burglaries, and was detained in the county jail at the time of trial. She testified that while detained, Smith and Smith's father contacted her and told her not to testify. At trial, Brown read several letters from Smith in which he urged her not to testify and told her that the police cannot prove anything. She also read two notes Smith snuck to her in jail in which he again urged her not to testify, and told her that the police do not have enough evidence against them.

         First Assignment of Error

         {¶23} Smith argues that six of his convictions were based on insufficient evidence. The test for determining whether the evidence was sufficient to sustain a conviction is if "after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question of law for the court to determine, the court is not to weigh the evidence. Id.

         1. Count One in B-15-Aggravated Burglary (R.C. 2911.11(A)(2))

         {¶24} We do not address Smith's sufficiency challenge to count one of B-15 because Smith does not actually stand convicted of count one due to the fact that count one was merged with count two by the trial court, and Smith was sentenced on count two. See State v. Cooper, 1st Dist. Hamilton No. C-180401, 2019-Ohio-2813, ¶ 15 (where the court merged count three with count two, the defendant was not convicted of count three and so the appellate court did not consider the defendant's sufficiency challenge as to count three).

         2. Count Two in B-15-Aggravated Burglary (R.C. 2911.11(A)(1))

         {¶25} As charged in the indictment, to convict Smith of aggravated burglary, the state was required to prove that by force, stealth, or deception, he trespassed in an occupied structure when another person other than an accomplice was present, with purpose to commit any criminal offense in the structure, and he inflicted, or attempted or threatened to inflict, physical harm on another. See R.C. 2911.11(A)(1).

         {¶26} Count two was based upon Smith returning to Graves's house a second time to attempt to steal from Graves. The state argues that Smith committed a trespass when he twisted the doorknob, but it fails to cite any case law in support. In fact, our case law indicates that twisting the doorknob is not sufficient to establish a trespass under R.C. 2911.11. See In re M.B., 1st Dist. Hamilton Nos. C-140405 and C-140406, 2015-Ohio-1912, ¶ 9 (the defendant's conviction for breaking and entering was based upon insufficient evidence where the only evidence presented was that the defendant damaged the door by attempting to pry it open; no evidence was presented indicating that any part of the defendant's body trespassed into the structure).

         {¶27} There is no indication that any part of Smith's body trespassed into the house when he returned to the house a second time to attempt to rob Graves. Our decision in In re M.B. indicates that merely attempting to gain entry, without actually entering or crossing the threshold, does not satisfy the trespass element of R.C. 2911.11(A). Therefore, we find that the trespass element was not proved as to count two of B-15. Smith's conviction on count two of B-15 is based upon insufficient evidence.

         3. Count Three in B-15-Aggravated Robbery (R.C. 2911.01(A)(1))

         {¶28} As charged in the indictment, to convict Smith of aggravated robbery, the state was required to show that Smith attempted to commit a theft offense, and displayed, brandished, indicated that he possessed, or used a deadly weapon. See R.C. 2911.01(A)(1).

         {¶29} Smith argues that the state failed to prove that he committed or attempted to commit a theft from Graves. It is undisputed that Smith did not actually commit a theft from Graves. So the state was required to show that he attempted to commit a theft.

         {¶30} To show an attempt, the state must prove that the offender purposely did or omitted to do something that constituted a substantial step in a "course of conduct planned to culminate in the commission of the crime." State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 95. To count as a substantial step, the conduct need not be the last proximate act prior to commission of the offense, but "must be strongly corroborative of the actor's criminal purpose." State v. Elahee, 1st Dist. Hamilton No. C-160640, 2017-Ohio-7085, ¶ 16.

         {¶31} Smith took a substantial step in his attempt to commit theft when he returned to the house after his initial botched robbery attempt with the intent to try again. He then went even further when he attempted to open the door, and shot Graves's son. The testimony from Brown, Graves, and Gilbert, and the recorded phone calls between Brown and Smith, were sufficient evidence for the jury to find Smith guilty of aggravated robbery in count three of B-15.

         4. Count Six in B-16-Weapon Under Disability (R.C. 2923.13(A)(3))

         {¶32} Smith argues that an error in the indictment means that the state failed to prove count six in B-16. Count six reads "[Smith] knowingly acquired, had carried, or used a firearm or dangerous ordnance, to wit: a firearm, and at the time the defendant was under indictment for a felony offense * * *." (Emphasis added.)

         {¶33} Smith was not under indictment for a felony, rather the offense which put him under disability was a 2007 conviction for possession of drugs. Since Smith did not object to the defective indictment at trial, he has forfeited all but plain-error review. State v. Biros, 78 Ohio St.3d 426, 436, 678 N.E.2d 891 (1997). "Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise." Id.

         {¶34} Smith stipulated at trial to having been under a disability due to the 2007 conviction. He has not shown that the outcome of his trial would have clearly been otherwise had the indictment read that he had been convicted of the 2007 offense instead of being under indictment. Accordingly, there was sufficient evidence to sustain a conviction for count six in B-16.

         5. Count Nine in B-16-Burglary (R.C. 2911.12(A)(2))

         {¶35} Count nine concerned the burglary of Christopher Fitch's apartment. As charged in the indictment, the state was required to prove that Smith, by force, stealth, or deception, trespassed into Fitch's apartment when any person other than an accomplice was present or likely to be present, with the purpose to commit any criminal offense inside. See R.C. 2911.12(A)(2). Smith argues that the state failed to prove that someone was present or likely to be present in Fitch's apartment at the time of the burglary. Simply showing that a permanent or temporary habitation has been burglarized does not give rise to the presumption that a person was present or likely to be present. State v. Wilson, 58 Ohio St.2d 52, 59, 388 N.E.2d 745 (1979).

         {¶36} In a determination of whether a person was present or likely to be present under R.C. 2911.12(A)(2), the question is not whether the offender subjectively believed that someone was likely to be there, but whether it was objectively likely. State v. Brown, 1st Dist. Hamilton No. C-980907, 2000 WL 492054, *2 (Apr. 28, 2000).

The significant inquiry is the probability or improbability of actual occupancy which in fact exists at the time of the offense, determined by all the facts surrounding the occupancy. Merely showing that people dwelled in the residence is insufficient. Instead, the state must adduce specific evidence that the people were present or likely to be present.

Id., quoting State v. Cravens, 1st Dist. Hamilton No. C-980526, 1999 WL 567098, *1 (June 25, 1999).

         {¶37} When a resident is on vacation when the burglary occurs, courts have looked at the schedule and intention of the resident, specifically circumstances demonstrating whether it was likely that the resident could abruptly return, or another person could have been present. State v. Cantin, 132 Ohio App.3d 808, 813-814, 726 N.E.2d 565 (8th Dist.1999). In Cantin, the Eighth District found that there was not an objective likelihood that someone would be present in the home at the time it was burglarized. Id. at 814. The homeowner had abruptly left town four days before the burglary, had not asked anyone to look after the house while he was gone, and had not given anyone keys to the house. Id. at 810.

         {¶38} On the other hand, where neighbors are given keys to the house and enter periodically to check its condition, there is sufficient evidence that someone is likely to be present. State v. Gulley, 1st Dist. Hamilton No. C-850179, 1986 WL 958, *3 (Jan. 22, 1986); State v. Weber, 10th Dist. Franklin No. 97APA03-322, 1997 WL 798299, *3 (Dec. 23, 1997).

         {¶39} Fitch testified that he left for vacation around December 22, and did not return until January 2 or 3, when he discovered the burglary. The exact date of the burglary is unknown. No evidence was presented that anyone but Fitch lived in the apartment, that Fitch had left his key with anyone, or that anyone was allowed to be in the apartment while he was gone.

         {¶40} The state presented no evidence that someone was likely to be present in Fitch's apartment, and so Smith's conviction for burglary in count ...


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