Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
Trial Nos. B-1507289, B-1601998.
Appealed From Are: Affirmed in Part, Reversed in Part, and
T. Deters, Hamilton County Prosecuting Attorney, and Mary
Stier, Assistant Prosecuting Attorney, for
Smith, pro se.
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.
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.
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
Duck Creek Apartment Crimes
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.
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
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.
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.
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.
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."
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.
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.
Sam Abernathy, Andrew Smith, and Samuel Simpson
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.
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.
Sam Abernathy and Andrew Smith lived together on East
Eastwood Circle. Andrew testified in his
deposition 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.
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
Tony Graves and His Son
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.
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.
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
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
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.
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
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.
Assignment of Error
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
Count One in B-15-Aggravated Burglary (R.C. 2911.11(A)(2))
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 Two in B-15-Aggravated Burglary (R.C. 2911.11(A)(1))
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).
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).
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.
Count Three in B-15-Aggravated Robbery (R.C. 2911.01(A)(1))
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).
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
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.
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.
Count Six in B-16-Weapon Under Disability (R.C.
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.)
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."
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
Count Nine in B-16-Burglary (R.C. 2911.12(A)(2))
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).
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
Id., quoting State v. Cravens, 1st Dist.
Hamilton No. C-980526, 1999 WL 567098, *1 (June 25, 1999).
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.
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.
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.
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 ...