State v. Smith

Citations

• 2018 Ohio 4615

Syllabus

EVID.R. 404(B) – OTHER-ACTS EVIDENCE – PROSECUTOR – COUNSEL – CUMULATIVE ERROR: The trial court did not err in admitting testimony about instances of defendant's prior conduct, even though defendant was acquitted of the criminal charges associated with that conduct, because the testimony was proper under Evid.R. 404(B) to show motive, intent and lack of mistake. Defendant failed to establish prosecutorial misconduct in the state's failure to produce a copy of a 1986 police file where there had been no showing that the file contained material that the state was required to disclose in discovery. Defendant failed to establish prosecutorial misconduct in the state's eliciting and relying upon witness testimony that was inconsistent with the witnesses' testimony in an earlier trial: showing that the testimony was merely inconsistent was insufficient to show that the prosecutor knowingly used false testimony. The prosecutor engaged in misconduct during closing arguments when offering the jury an explanation of the timeline of the investigation that was not testified to during the trial but because it was an isolated comment about a matter not central to the case, defendant was not prejudiced. The failure to cross-examine witnesses fully is a matter of trial strategy and will not form the basis for ineffective assistance of defense counsel, especially in cases involving the sexual assault of a child in which the issue of sensitivity to the victim is an important consideration. Defendant was not prejudiced by his counsel's failure to more aggressively seek a copy of a 1986 police file that involved an incident between defendant and another victim where the information was about a tertiary issue and the incident was testified to by the parties involved. There can be no finding of cumulative error in the absence of multiple instances of harmless error.