State v. Smetana , 2013 Ohio 2376 ( 2013 )

[Cite as State v. Smetana, 2013-Ohio-2376.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010252
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ADAM R. SMETANA COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 11CR083135
DECISION AND JOURNAL ENTRY
Dated: June 10, 2013
HENSAL, Judge.
{¶1} Adam Smetana appeals from a judgment of the Lorain County Common Pleas
Court convicting him of sexual battery and sexual imposition. For the reasons set forth below,
this Court affirms.
I.
{¶2} Mr. Smetana and K.C. met in 2005 and became friends. They began dating near
the end of 2009, but broke up in January 2011. They resumed their friendship shortly thereafter.
Mr. Smetana claims that they also recommenced having sexual relations, which K.C. denies.
{¶3} On May 11, 2011, Mr. Smetana went to a park with K.C. and their mutual friend
Mike Brooks. After hiking for a couple of hours, they got some food and beer and drove to Mr.
Smetana’s house to enjoy them. According to K.C., after eating and sitting around a campfire
for a few hours, her back began to hurt, so she went inside to take a muscle relaxant and lie down
on a couch. Although the pills make her extremely sleepy, K.C. was not concerned about falling
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asleep at Mr. Smetana’s house because she did not have anything to do in the morning and had
spent the night on Mr. Smetana’s couch on other occasions following their breakup.
{¶4} Around the time that K.C. went inside, Mr. Brooks asked Mr. Smetana to take
him home. According to K.C., while Mr. Smetana was gone, she took her pants off so that she
would be more comfortable, and then fell asleep under a blanket. K.C. testified that, when she
woke up a few hours later, Mr. Smetana was on the couch with her, had pulled her underwear
aside and was penetrating her with his fingers. He was also taking pictures of it with his camera
phone. She immediately got up, put her pants back on, and left. She started to drive home, but
ended up going to a friend’s house instead, where she called the police.
{¶5} The Grand Jury indicted Mr. Smetana for one count of sexual battery and one
count of sexual imposition. Mr. Smetana waived his right to a jury trial. At trial, Detective
Gregory Hudson testified that the day after the incident he spoke to Mr. Smetana. Detective
Hudson further testified that Mr. Smetana admitted to him that he had touched K.C., that she was
not awake when he did it, and that he did not have permission to touch or to take pictures of her.
{¶6} Mr. Smetana testified that when he got back from taking Mr. Brooks home K.C.
was laying on the couch with her eyes closed. He said that, as he often did, even after their
breakup, he laid down next to her when she slept on his couch. Because of where she was
positioned, there was not enough room for him so he asked her to move and she complied by
scooting closer to the edge. After he got behind her, he began rubbing her back while watching
television. After about an hour and a half, K.C. asked him for a glass of water, so he got her one.
About 20 minutes later, she asked for a blanket. A little while after that, she stood up to take her
pants off. They laid back down in a spooning position, and he resumed rubbing her lower back.
As he moved to different areas, she began making soft moaning sounds, which became more
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intense when he reached her erogenous zones. He said that he thought she was awake the entire
time and only got upset when she discovered that he had been taking pictures. Mr. Smetana also
testified that he misunderstood the questions that the detective asked him. According to Mr.
Smetana, when the detective asked if he had permission to touch K.C., he thought he was asking
whether K.C. had given express verbal permission as opposed to implicit consent through her
sounds and conduct. When the detective asked if K.C. was “up,” he thought he was asking if she
was sitting up during the sexual conduct, not whether she was awake.
{¶7} The trial court determined that Mr. Smetana’s testimony was not credible and
found him guilty of the offenses. It sentenced him to 180 days in jail and three years of
community control. Mr. Smetana has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
{¶8} APPELLANT’S CONSTITUTIONAL GUARANTEE TO DUE
PROCESS OF LAW WAS VIOLATED WHEN THE TRIAL COURT DENIED
THE APPELLANT AN IMPARTIAL TRIER OF FACT.
{¶9} Mr. Smetana argues that the trial judge was biased. He contends that the judge
made inappropriate statements that demonstrate that he did not maintain an open mind during the
trial and was not an impartial trier of fact. He also argues that the judge overstepped his bounds
and became an advocate for the prosecution by attempting to impeach his testimony.
{¶10} If a party believes that a common-pleas-court judge is prejudiced or has exhibited
bias, he may file an affidavit of disqualification under Section 2701.03 of the Ohio Revised
Code. Shih v. Byron, 9th Dist. No. 25319, 2011–Ohio–2766, ¶ 24; R.C. 2701.03(A). An Ohio
district court of appeals “has no authority to render a decision with regard to disqualification, or
to void a trial court’s judgment on the basis of personal bias or prejudice on the part of a trial
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judge.” (Citation omitted.) State v. Hunter, 151 Ohio App.3d 276, 2002–Ohio–7326, ¶ 18 (9th
Dist.) citing Beer v. Griffith, 54 Ohio St.2d 440, 441–442 (1978). Consistent with our precedent,
we conclude that we do not have authority to address Mr. Smetana’s bias arguments or to
overturn the court’s judgment on that basis. Shih at ¶ 24 (“It is not the role of this Court to make
a determination as to whether the trial court exhibited a bias against a party.”). Mr. Smetana’s
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF GUILT
AND THEREFORE IT WAS ERROR TO HAVE FOUND DEFENDANT
GUILTY BEYOND A REASONABLE DOUBT AS TO EVERY ELEMENT OF
SEXUAL BATTERY AND SEXUAL IMPOSITION.
{¶11} Mr. Smetana argues that his convictions are not supported by sufficient evidence.
Whether a conviction is supported by sufficient evidence is a question of law, which we review
de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we
must view the evidence in the light most favorable to the prosecution:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶12} The trial court found Mr. Smetana guilty of sexual battery, a violation of Revised
Code Section 2907.03(A)(3), and sexual imposition, a violation of Section 2907.06(A)(3).
Under Section 2907.03(A)(3), “[n]o person shall engage in sexual conduct with another, not the
spouse of the offender, when * * * [t]he offender knows that the other person submits because
the other person is unaware that the act is being committed.” Under Section 2907.06(A)(3),
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“[n]o person shall have sexual contact with another, not the spouse of the offender * * * when *
* * [t]he offender knows that the other person * * * submits because of being unaware of the
sexual contact.”
{¶13} Mr. Smetana argues that there was insufficient evidence to convict him of the
offenses because the State presented no evidence to corroborate K.C.’s testimony. While he
concedes that “there is no requirement the State proffer corroborating evidence in this instance,”
he asserts that he credibly testified that he had the good faith belief that K.C. was aware of his
actions. He also argues that K.C.’s testimony was unreliable.
{¶14} Mr. Smetana’s arguments go to the weight of the evidence, not its sufficiency.
Viewing the evidence in a light most favorable to the prosecution, K.C.’s testimony that Mr.
Smetana moved her underwear aside and digitally penetrated her while she was sleeping and
Detective Hudson’s testimony that Mr. Smetana told him that he knew K.C. was not awake are
sufficient to support his convictions for sexual battery and sexual imposition. Mr. Smetana’s
second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE VERDICT OF GUILTY AS TO EACH COUNT OF SEXUAL BATTERY
AND SEXUAL IMPOSITION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶15} Mr. Smetana also argues that his convictions were against the manifest weight of
the evidence. If a defendant asserts that his convictions are against the manifest weight of the
evidence, “an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.
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Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). In making this determination, we are mindful
that “[e]valuating [the] evidence and assessing credibility are primarily for the trier of fact.”
State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994). “Absent extreme circumstances, an
appellate court will not second-guess determinations of weight and credibility.” Id.{¶16} Mr. Smetana argues that K.C.’s testimony was not credible. He notes that, while
she claims to have taken an entire muscle-relaxer pill before lying down, Mr. Brooks testified
that he saw her break the pill in half. Mr. Smetana argues that her behavior was also consistent
with only having taken half a pill. According to K.C., the pills act like a tranquilizer. If she
takes a full pill, “I fall asleep almost instantly * * * I’m too tired to physically get up and move.”
Mr. Smetana notes that, after she learned that he was photographing her, she was able to get up
immediately and drive her car. He asserts that she would not have been able to do those things if
she had taken an entire pill as she alleged.
{¶17} Mr. Smetana argues that there were other inconsistencies in K.C.’s testimony.
Although she testified that she was not dating anyone on May 11, 2011, her boyfriend’s
Facebook page indicated that they had been together since April 20, 2011. In fact, it was the
new boyfriend’s house that she drove to after leaving his house. According to K.C., although she
drove to the new boyfriend’s house, they were still just friends at that point. She claimed that
they began dating near the end of May, but picked April 20 as the starting point because the day
has significance in drug culture.
{¶18} Mr. Smetana argues that, not only was K.C. not credible, his testimony about her
reactions to his touching was credible. He contends that the only reason K.C. got upset is
because she did not know that he was taking pictures and was concerned that her new boyfriend
might find out. According to Mr. Smetana, except for the picture taking, it does not make sense
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for K.C. to take a muscle relaxant in preparation of sleeping over at his house, to remove her
pants, to interact with him physically, and then object to his sexual contact. He argues that, at
the very least, there is reasonable doubt with respect to whether he knew that K.C. did not know
what was happening.
{¶19} Mr. Smetana does not dispute that it was around 3:00 a.m. when the sexual
conduct occurred. Despite the uncertainty over whether K.C. took a whole pill or only half a
pill, he has not challenged K.C.’s testimony that, even if she takes only half a pill, she becomes
“really sleepy.” Although Mr. Smetana testified that K.C. moaned in reaction to his touch, the
trial judge had the opportunity to view his testimony and did not “believe one word he said
where it departs from the testimony of the victim[.]” That includes his alleged misunderstanding
of Detective Hudson’s question about whether K.C. was “up” during the conduct.
{¶20} Upon review of the record, we conclude that the trial judge did not lose his way
when he found K.C. and Detective Hudson’s testimony credible and Mr. Smetana’s testimony
not credible. Mr. Smetana’s convictions, therefore, are not against the manifest weight of the
evidence. His third assignment of error is overruled.
III.
{¶21} We do not have authority to review Mr. Smetana’s bias claim. His convictions
are supported by sufficient evidence and are not against the manifest weight of the evidence.
The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
CARR, P. J.
CONCURRING.
{¶22} I concur in substantial part with the majority’s opinion. I write separately,
however, regarding the majority’s resolution of the first assignment of error. I agree that an
appellate court lacks the authority to determine whether a trial court judge should be disqualified
for bias or whether a judgment must be vacated on that basis, as those matters are left exclusively
for determination by the Chief Justice of the Supreme Court of Ohio. Beer v. Griffith, 54 Ohio
St.2d 440, 441-442 (1978). However, this Court has the authority to consider whether a party’s
due process rights have been violated. State v. Payne, 149 Ohio App.3d 368, 2002-Ohio-5180, ¶
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11 (7th Dist.) (“An appellate court can review the fairness of the trial to determine whether due
process rights were violated and remand for a new trial.”).
{¶23} Smetana argues that the trial court’s comments and conduct during trial evidenced
bias that deprived him of due process. “‘It is well settled that a criminal trial before a biased
judge is fundamentally unfair and denies a defendant due process of law.’” State v. Dean, 127
Ohio St.3d 140, 2010-Ohio-5070, ¶ 48, quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-
2128, ¶ 34. Furthermore, “[j]udicial bias has been described as ‘a hostile feeling or spirit of ill
will or undue friendship or favoritism toward one of the litigants or his attorney, with the
formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from
an open state of mind which will be governed by the law and the facts.’” Dean at ¶ 48, quoting
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four of the syllabus.
Accordingly, this Court has authority to consider the merits of the first assignment of error.
However, upon consideration, I would conclude that there was no due process violation.
APPEARANCES:
JACK W. BRADLEY, MALLORY J. HOLMES, and MARY BETH DIGRAVIO, Attorneys at
Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.