State v. Smith

2013 Ohio 756

STATE OF OHIO, PLAINTIFF-APPELLEE,

v.SAMMIE SMITH, DEFENDANT-APPELLANT.

CASE NO. 11 MA 120

STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

Dated: March 1, 2013

OPINION

CHARACTER OF PROCEEDINGS:

Criminal Appeal from Common Pleas

Court, Case No. 09CR1197.

JUDGMENT:

Affirmed in part; Reversed in Part;

Remanded.

APPEARANCES:

For Plaintiff-Appellee:

Attorney Paul Gains

Prosecuting Attorney

Attorney Ralph Rivera

Assistant Prosecuting Attorney

For Defendant-Appellant:

Attorney Lynn Maro

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Mary DeGenaro

VUKOVICH, J.

{¶1} Defendant-appellant Sammie Smith appeals after being convicted of multiple crimes in the Mahoning County Common Pleas Court. He raises nine assignments of error, querying: whether the DNA analyst's supervisor could testify in place of the analyst; whether a witness was qualified to lay the foundation for introducing appellant's time sheets as business records; whether the sentences on the repeat violent offender specifications were proper; whether the kidnapping charges should have been merged with the rape charges; whether the court's curative instruction mitigated the victim's disclosure that the suspect was in jail when the police told her of the DNA match; whether it was improper for the prosecutor to comment that the defense could have retested the sample; whether we can review the motion in limine ruling admitting appellant's prior convictions, even though appellant never ended up testifying; whether counsel was ineffective with regards to two failures to object; and whether appellant's conviction was against the manifest weight of the evidence.

{¶2} All assignments of error, except the one involving sentencing, are overruled, and appellant's convictions are upheld. The additional five-year enhanced sentences for the repeat violent offender specifications on counts six and seven are reversed as they are unauthorized where the court did not impose a maximum sentence on either count. And, the five-year concurrent sentences on these counts are reversed and remanded for a limited resentencing hearing where the state can elect which offense it wishes the court to enter the five-year sentence on because two merged offenses cannot both receive sentences. The sentences on the other counts are affirmed.

STATEMENT OF THE CASE

{¶3} According to the testimony, a man broke into the victim's duplex in Youngstown, Ohio in the early morning hours of October 13, 2003. The victim was sleeping with her two-year-old son when the intruder shook her awake. (Tr. 471-472). He pulled a bandana over her eyes that she had been wearing on her hair. She did not fight or scream so as not to wake her child. (Tr. 477). The intruderpulled her out of bed by her arms and walked her down the hallway and into the dining room. (Tr. 473, 475).

{¶4} At that point, the victim turned the light on and pulled the bandana down. (Tr. 474). She briefly glimpsed a black male. (Tr. 475). He smelled strongly of alcohol and a certain type of cigar. (Tr. 477). The intruder replaced the bandana over her eyes, grabbed her neck, and threatened to kill her. (Tr. 474-475, 477). He brought her into the living room, took off her clothes, and attempted unsuccessfully to vaginally rape her. (Tr. 475-476). He then forced her to perform oral sex on him. (Tr. 476).

{¶5} Thereafter, the intruder brought her back to her bedroom and put her in the closet while he rummaged through her bedroom drawers and stole her jewelry. (Tr. 478-479). He also stole money from her purse, which he emptied in her son's room. (Tr. 479). While the victim was in the closet, appellant ran a bath.

{¶6} He thereafter retrieved the victim from the closet and brought her into the hallway where he anally and then vaginally raped her. He used lotion from her closet and did not use a condom. (Tr. 480-481).

{¶7} Finally, he made her take a bath and wash herself. He watched her for a short time and then left. (Tr. 482). She estimated that the incident took place over the course of an hour.

{¶8} After ensuring the intruder was gone, the victim called her husband to come get their son and then called the police, who arrived with an ambulance that took her to the hospital. (Tr. 484). The police discovered evidence such as a broken window pane in a door, broken trim around the door, a bathtub with water and a cloth in it, a bottle of lotion in the hallway, and the victim's sweatpants on the floor in the living room.

{¶9} The victim was examined by an emergency room doctor and nurse, who were both involved in preparing the rape kit and who testified about the victim's statements and condition. The physician disclosed that the victim had tears on both sides of her vagina and around her rectum. These areas were swollen and tender,establishing a recent trauma. (Tr. 324). He described it as the worst trauma to those areas that he had yet encountered. (Tr. 325).

{¶10} The nurse noted that the victim had additional bruising around her left nostril. (Tr. 336, 357). She also related that the victim was experiencing pain in her rectum. (Tr. 337). The nurse opined that the victim seemed to be in need of emotional support. (Tr. 336-337).

{¶11} The rape kit was sent to BCI. An analyst testified that she opened the kit to test for the presence of sperm on the swabs. (Tr. 287, 289). She found sperm on the vaginal and rectal swabs. (Tr. 290). The swabs were then sent to BCI's outsourcing provider at the time, Bode Technology. Said company generated a DNA profile from the sperm found on the vaginal swab and returned it to BCI, who entered the profile into their database. (Tr. 365, 368). The supervisor of the analyst who generated the profile presented that profile at trial.

{¶12} It was not until 2008 that a match occurred as appellant's DNA had been recently entered in the database. (Tr. 578). Officers showed the victim a photographic array containing appellant's picture. She could not positively identify appellant, but she narrowed the six suspects down to two, one of whom was appellant. (Tr. 581).

{¶13} Officers then obtained a new sample of DNA from appellant, which they submitted to BCI. (Tr. 583). A BCI analyst testified that she generated appellant's DNA profile from the new sample and compared it the DNA profile of the sperm generated by Bode from their analysis of the vaginal swab. (Tr. 368). She found to a reasonable degree of scientific certainty that all core locations on the two profiles matched. (Tr. 375, 380). She explained that this match results in a conclusion that the person tested "cannot be excluded as the source," noting that such matching between individuals has never been observed except in identical twins. (Tr. 375-376, 378). She further testified that the frequency of this match was one in 15 quadrillion 450 trillion, pointing out that Earth's population was 6.5 billion. (Tr. 381).

{¶14} As a result of this evidence, appellant was indicted on eight counts: aggravated burglary; rape (fellatio); rape (vaginal); rape (anal); kidnapping (tofacilitate a felony); aggravated robbery; robbery (as an alternative to aggravated robbery); and kidnapping (to engage in sexual activity against the victim's will). A repeat violent offender specification was added to each count. A jury found appellant guilty as charged.

{¶15} The state agreed aggravated robbery and robbery were tried in the alternative and would merge. In an August 8, 2011 entry, the court sentenced appellant to ten years on each count except the merged counts on which the court entered five-year concurrent sentences. The court ran the ten-year sentence on aggravated burglary, the ten-year sentences on the three rapes, and the five-year year sentence on the merged offenses consecutively and ran the two kidnapping sentences concurrently to each other and to the other sentences. This amounted to an aggregate sentence of 45 years. The court then found that appellant was a repeat violent offender and imposed an additional five years on each count, increasing the aggregate sentence by 35 years to a total of 80 years.

{¶16} Appellant filed a timely notice of appeal. Appellant received leave to file a forty-seven page brief containing nine assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

{¶17} Appellant's first assignment of error contends:

{¶18} "APPELLANT WAS DENIED DUE PROCESS AND CONFRONTATION WHEN THE TRIAL COURT PERMITTED WITNESSES TO OFFER EXPERT TESTIMONY ABOUT DNA TESTS NOT PERFORMED BY THEM IN VIOLATION OF [THE CONSTITUTION]."

{¶19} In order to conclude that appellant's DNA matched the sperm found on the vaginal swab from the rape kit, the BCI analyst, who profiled appellant's known sample in 2008, compared that sample to the DNA profile from the rape kit, which had been generated by Bode Technology and returned to BCI. Appellant argues that the BCI analyst's testimony (finding that appellant's DNA matched the profile of the sperm from the rape kit) was improperly admitted because that testimony relied on the DNA profile of the sperm, but the analyst who generated that profile did not testify.

{¶20} Instead, the state presented the testimony of Mr. Cariola, Bode's senior vice-president of forensic operations. At the time the rape kit was profiled, Mr. Cariola was the technical leader of Ms. Lawsen, the analyst who worked on that sperm sample and who no longer worked for Bode. In general, Mr. Cariola oversaw all technical aspects of the analysts' work, approved procedures, assured reliability, reviewed protocols, approved the hiring analysts, conducted DNA analysis, and reviewed the final product of analysts. (Tr. 411). He presented the DNA profile generated by Bode. State's Exhibit 32.

{¶21} Appellant focuses on the fact that Ms. Lawsen separated the sperm from the nonsperm, quantitated the DNA to see how much was there, amplified the DNA, and put the DNA into the analyzer to generate the results. (Tr. 431-436). Mr. Cariola did not participate in or watch...