State v. Davis
| Decision Date | 22 May 2017 |
| Docket Number | CASE NO. 13-16-30 |
| Citation | 2017 Ohio 2916 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. UNTARIO A. DAVIS DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
Appeal from Seneca County Common Pleas Court
Judgment Affirmed
APPEARANCES:
James W. Fruth for Appellant
Derek W. DeVine for Appellee
{¶1} Defendant-appellant Untario A. Davis ("Davis") appeals the judgment of the Court of Common Pleas of Seneca County alleging that (1) the trial court entered a conviction against the manifest weight of the evidence; (2) he was denied the effective assistance of counsel; (3) the trial court failed to provide a representative sample of African-Americans in the jury pool; (4) the State engaged in prosecutorial misconduct during closing arguments; and (5) the cumulative effect of the errors of trial counsel was prejudicial. For the reasons set forth below, the judgment of the lower court is affirmed.
{¶2} At the time of the incident forming the basis of this case, Davis lived in Seneca County with his girlfriend, Jessica Slater ("Slater"), and three of her children. Trial Tr. 102. Davis's house was down the street from Jeremy Sauber's ("Sauber") family, and Slater would frequently ask Sauber's fourteen-year-old daughter ("TS") to babysit her children. Id. at 85, 104, 125, 146. On the evening of August 27, 2016, Davis walked up to Sauber outside of Sauber's house in between 8:30 and 9:00 p.m. and asked if TS could babysit that evening. Id. at 83-85. TS agreed to watch Slater's two young daughters that evening and walked over to Davis's house within four or five minutes of being asked to babysit. Id. at 103.
{¶3} Shortly after TS got to Davis's house, Davis told her that he was going to the store and that he would return. Id. at 105. At trial, TS testified that Davis leftthe house and returned twenty to thirty minutes later with some cash to pay TS for babysitting. Id. at 106. Davis then left the house again and, according to TS, returned again ten to twenty minutes later. Id. 108-109. When Davis returned to the house, TS was watching television in the living room with Slater's two girls. Id. at 110. Davis, who was in another room, told TS to "come here." Id. at 110. TS then walked into the room where Davis was. According to TS, Davis asked her if she had ever watched pornography, showed her a picture on his phone of a man groping a woman, and said, "[W]ould you ever do that[?]" Id. at 111, 137-138. TS pushed the phone away, told him that she had not viewed pornography before, and went back into the living room where she later fell asleep on the couch with the two girls. Id. at 111.
Id. at 115. According to Taylor, Davis woke her up and solicited her a total of six or seven times that night. Id. at 115, 132.
{¶5} The next morning—which was August 28, 2016—TS woke up around 8:20 a.m. Id. at 116. She had planned to get up earlier because she was going to help her father reseal a parking lot that morning. Id. at 119. When she realized she was running late, she rushed home. Id. at 116. TS testified that Davis was asleep in his bedroom at the time that she left. Id. at 117. When she got home, she and her father departed for the worksite. Id. at 119-120. After they arrived, TS worked for about five minutes before she told her father that she needed to talk to him. Id. at 120. She then told him that Davis had solicited her the previous evening. Id. at 121.Sauber then called Davis's girlfriend, Slater, who reported Davis to the police. Id. at 122, 149.
Id. at 79. Consequently, when Sauber, TS, and Slater testified, defense counsel questioned them on the timing of their various interactions with Davis on the night of August 27, 2016. Id. at 81, 97, 142. At the time of the defense's case-in-chief, however, Davis did not testify. Id. at 170.
{¶7} When Sauber testified, he said that he did not see Davis after Davis left the Sauber's house between 8:30 and 9:00 p.m. on August 27, 2016. Id. at 88. Slater testified that she was "gone the entire evening" and was not aware that TS was babysitting for Davis until Sauber called her on August 28, 2016. Id. at 147. Slater was briefly in contact with Davis on the phone and saw him once while she wasdriving through town, but she was unable to remember the times when these events occurred. Id. at 152.
{¶8} When TS testified during direct examination, she stated that she did not have a cell phone on which she could check the time, was not looking at a clock while she was babysitting, and was unaware of the exact times when Davis was home. Id. at 114. During cross examination, defense counsel questioned TS about the times at which different events occurred that night.
Id. at 128. Later, defense counsel questioned TS about the time she left Davis's house on the morning of August 28, 2016.
{¶9} Defense counsel also asked whether any of TS's brothers were with her and her father at the job site. TS stated that her brother was not present. This line of questioning continued as follows:
Id. at 131-132. During closing arguments, defense counsel referenced these exchanges as evidence of inconsistencies in TS's testimony that establish reasonable doubt. Id. at 187-189. As appellant, Davis again points to these exchanges to argue that his conviction is against the manifest weight of the evidence.
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