[Cite as State v. Davis, 2017-Ohio-2916.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 CASE NO. 13-16-30 

 PLAINTIFF-APPELLEE, 

 v. 

UNTARIO A. DAVIS O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 16-CR-0186 

Judgment Affirmed 

Date of Decision: May 22, 2017 

 

APPEARANCES: 

James W. Fruth for Appellant 

Derek W. DeVine for Appellee 

 
Case No. 13-16-30 

-2- 

WILLAMOWKSI, J. 

{¶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. 

Facts and Procedural History

{¶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 left 
Case No. 13-16-30 

-3- 

the 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. 

{¶4} TS testified at trial that she was later awoken by Davis tapping her on 

her upper thigh. Id. Davis then asked TS to come with him to the entryway between 

the living room and the dining room. Id. at 113. According to TS, once she had 

reached the entryway, Davis asked her if “he could lick [her] privates.” Id. TS 

testified that she refused and walked back to the couch where the two girls were still 

sleeping. Id. After TS refused, Davis left the house again. Id. at 138-139. While 

Davis was away, TS’s mom stopped by the house to check on her. Id. at 136. TS 

asked her mom to buy her some Oreos with the money Davis had paid her for 

babysitting. Id. at 130. TS’s mom then went to the store, bought some Oreos, and 

returned to the house. Id. at 137. At this time, TS did not mention to her mother 
Case No. 13-16-30 

-4- 

that Davis had solicited her or shown her an adult image on his phone. When asked 

at trial why she did not tell her mom about this situation, TS said, “I wasn’t thinking 

about it then. * * * I was trying to get it out of my head.” Id. at 139. After being 

away for about an hour, Davis returned to his house where TS was sleeping on the 

couch with the two girls. Id. at 128. At several more points that night, Davis woke 

TS up and solicited her. Id. at 114. TS described one of these interactions, saying 

And he told me that I was pretty and not to tell Jessica. And then 

* * * we stood there for a second and then he grabbed my shirt 

right here. And then * * * he started pulling me closer. And then 

I pushed off of him * * * and then he said, what? I said, nothing. 

He said, what, you think I’m going to kiss you or something? And 

I said, yeah. Because that’s what normally happens when people 

pull people closer like that. 

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. 
Case No. 13-16-30 

-5- 

Sauber then called Davis’s girlfriend, Slater, who reported Davis to the police. Id. 

at 122, 149. 

{¶6} On August 29, 2016, the police filed a criminal complaint against Davis 

for importuning in violation of R.C. 2907.07(B)(1), which is a fourth degree felony. 

Doc. 1. The jury trial was held on October 1, 2016. Trial Tr. 1. During defense 

counsel’s opening statements, he said, 

When [TS] came to babysit, Mr. Davis went to get some money 

for her to pay her, and then he left because he had a babysitter. 

He did not return until very early or late, depending on how you 

want to look at it, the next morning. He wasn’t there. He’s going 

to testify for you. He’s going to make that extremely clear, okay. 

State’s asked you to pay particular attention to [TS’s] testimony. 

I ask you to give that same courtesy to Mr. Davis’ testimony. He’s 

going to tell you exactly where he was. Exactly what he was doing. 

It was not at that house. And he certainly was not propositioning 

[TS]. 

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 was 
Case No. 13-16-30 

-6- 

driving 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. 

Q. How long was he gone between the - - 

A. * * * [H]e was gone for about an hour. 

Q. Okay. About an hour, okay. So if you told officers another 

time, amount of time, would that be an issue? 

A. Yeah. 

Q. Okay. If you said that he was gone longer than that, or you’re 

just not really sure how long he was gone? 

A. I really wasn’t sure how long he was gone. 

Id. at 128. Later, defense counsel questioned TS about the time she left Davis’s 

house on the morning of August 28, 2016. 

Q. Okay. And what time on the next day in the morning, what 

time did you leave the house? 

 A. Eight-twenty. 

Q. Eight-twenty[.] Okay. So if in your statement you said you left 

the house at 7:30, which, which would be right? 

 

A. I left at 8:20. 
Case No. 13-16-30 

-7- 

Q. Okay. So in your statement officers said 7:30, that’s, that’s not 

correct? 

A. No. 

Q. Okay. 

A. That should have been an eight. 

Id. at 128-129. 

{¶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: 

Q. Okay. And, and if your dad said [your brother] had gone, 

would that be correct, incorrect? 

 * * * 

A. Oh, I don’t know. He might have went [sic] to go pick him up 

after, but when I was there, [my brother] was there. My brother 

was there. 

 Q. So he was already at the site? 

A. Yeah. He didn’t go with us the first time, though. When we 

first got picked up, he didn’t go. 

 Q. First got picked up? 

 A. When we, when I got home, I got dressed. 

 Q. Okay. 

A. And then the boss came to pick us up. And when he picked us 

up, my brothers didn’t go. 

 Q. Okay. So he, but was he already gone? 
Case No. 13-16-30 

-8- 

 * * * 

 A. No. He was asleep when me and my dad left the first time. 

 Q. Okay. 

A. So when we were at the police station, the boss might have went 

to go pick him up to have the work done. 

 

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. 

{¶10} During the State’s closing arguments, the prosecution referenced a 

statement in defense counsel’s opening arguments in which defense counsel told the 

jurors that the trial would show that Davis was not present with TS when the alleged 

crime occurred. The prosecutor stated, 

Now, what has the [d]efense been in this case? Well, during 

opening statements, we heard from Mr. Smith [defense counsel]—

and again, I’m not a good notetaker. She is, but I’m not. But my 

recollection was that he said the evidence was going to show that 

his client wasn’t even there. What evidence have you heard or 

seen that he wasn’t there? I would suggest that you’ve heard 

nothing supporting that defense that he wasn’t there. 

Id. at 183. At trial, no objection was made to this comment, but Davis now 

challenges this statement on appeal. Id. 

{¶11} On November 1, 2016, the jury found Davis guilty of importuning and 

made the additional finding that Davis had been previously convicted of a sexually 
Case No. 13-16-30 

-9- 

oriented offense. Doc. 21, 22. Davis was sentenced on November 1, 2016. Doc. 

24. Davis a filed notice of appeal on November 22, 2016. Doc. 30. Davis raises 

the following five assignments of error on appeal. 

First Assignment of Error 

The appellant was denied due process and a fair trial pursuant to 

U.S. Constitutional Amendments 5, 6, and 14 and Ohio 

Constitution Article 1, Section 10 because his conviction for 

importuning was against the manifest weight of the evidence and 

the jury’s verdict was inconsistent with the evidence and 

testimony presented. 

Second Assignment of Error 

The appellant was denied his constitutional right to effective 

assistance of counsel when the appellant’s trial counsel failed to 

protect appellant’s rights at trial. 

Third Assignment of Error 

The trial court failed to ensure a representative sample of 

African-Americans in the jury pool, in violation of U.S. 

Constitution, Amendment 6, which guarantees the right to a jury 

trial by peers. 

Fourth Assignment of Error 

The appellant was denied due process and a fair trial pursuant to 

U.S. Constitutional Amendments 5, 6, and 14 and Ohio 

Constitution Article 1, Section 10 when the prosecutor engaged in 

misconduct in his closing argument at trial, which conduct 

substantially prejudiced the appellant. 

Fifth Assignment of Error 

The cumulative effect of trial counsel’s errors amounted to 

ineffective assistance of counsel, thereby prejudicing appellant 

Davis and violating his 5th, 6th & 14th Amendment rights to the 
Case No. 13-16-30 

-10- 

U.S. Constitution and violating his rights under Article 1, Section 

1, 10, & 16 of the Ohio Constitution. 

For clarity of analysis, we will consider the first, third, and fourth assignments of 

error before we proceed to the second and fifth assignments of error. 

First Assignment of Error 

{¶12} Here, Davis contends that his conviction for importuning should be 

overturned because the verdict was against the manifest weight of the evidence. 

While Davis uses the words “manifest weight” to label his first assignment of error, 

he sets forth the standard for sufficiency of the evidence in his brief and frames his 

entire argument around this standard. Since the “weight of the evidence and [the] 

sufficiency of the evidence are clearly different legal concepts,” we will evaluate 

the facts of this case under both standards. State v. Thompkins, 78 Ohio St.3d 380, 

389, 678 N.E.2d 541 (1997). We will first review the record to determine whether 

the verdict was supported by sufficient evidence; we will then determine whether 

the conviction is consistent with the manifest weight of the evidence. 

Sufficiency of the Evidence Review 

{¶13} “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.” State v. Walters, 3d Dist. 

Defiance No. 4-16-17, 2017-Ohio-793, ¶ 6, quoting State v. Jenks, 61 Ohio St.3d 
Case No. 13-16-30 

-11- 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state 

constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684 

N.E.2d 668 (1997). This analysis does not attempt to “resolve evidentiary conflicts 

nor assess the credibility of witnesses, as both are functions reserved for the trier of 

fact.” State v. Eckard, 3d Dist. Marion No. 9-15-45, 2016-Ohio-5174, ¶ 9, citing 

State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, 

¶ 33. 

{¶14} Under the sufficiency of the evidence standard, “[t]he 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.” Eckard at ¶ 9, quoting Jenks at paragraph two of the 

syllabus. Whether evidence is legally sufficient to support a verdict is a question of 

law and a “test of adequacy rather than credibility or weight of the evidence.” State 

v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19, citing Thompkins

at 386. Here, Davis was convicted of importuning in violation of R.C. 

2907.07(B)(1). Thus, the State had to prove that Davis 

[1] solicit[ed] another, not the spouse of the offender, [2] to engage 

in sexual conduct with the offender, [3] when the offender is 

eighteen years or older [4] and four or more years older than the 

other person, [5] and the other person is thirteen years of age or 

older but less than sixteen years of age, whether or not the 

offender knows the age of the other person. 

R.C. 2907.07(B)(1). 
Case No. 13-16-30 

-12- 

Legal Analysis 

{¶15} After reviewing the record, we find that the State presented evidence 

for each of the essential elements for the offense of importuning. Regarding the 

first element, TS said at the outset of her testimony that she had never been married. 

Trial Tr. 99. She also testified that Davis approached her and woke her up around 

“seven times” to solicit her. Id. at 115. Second, TS testified that Davis requested 

that she engage in sexual conduct with him on at least one of these occasions. Id. 

at 113. She said that he “asked [her] if he could lick [her] privates.” Id. For the 

third element, Detective Bryant testified that Davis’s driver’s license showed that 

Davis was thirty-six years old at the time of the incident. During the course of his 

investigation, Detective Bryant verified Davis’s age on his driver’s license by 

running his license through a government records database. Id. at 158. For the 

fourth and fifth elements, TS, Sauber, and Detective Bryant testified that TS was 

fourteen on the date of the incident. Id. at 85, 100, 157. This places TS within the 

protected age range and places Davis outside of the statutory exception for those 

who are less than four years older than the solicited minor within the protected age 

range. 

{¶16} In viewing all of the evidence in a light most favorable to the 

prosecution, we see evidence for each of the essential elements of importuning in 

violation of R.C. 2907.07(B)(1). Without considering the weight or credibility of 

the evidence presented at trial, we find that the State produced adequate evidence 
Case No. 13-16-30 

-13- 

that, if believed by the jury, could support a finding of guilty. Thus, Davis’s 

conviction is supported by sufficient evidence. 

Manifest Weight of the Evidence Review 

{¶17} Under the manifest weight standard, “the appellate court sits as a 

‘thirteenth juror’ * * *,” Thompkins, supra, at 387, and 

must review the entire record, weigh the evidence and all of the 

reasonable inferences, consider the credibility of witnesses, and 

determine whether in resolving conflicts in the evidence, the 

factfinder ‘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. Plott, 2017-Ohio-38, --- N.E.3d ---, at ¶ 73 (3d Dist.), quoting Thompkins, 

supra, at 387. “When applying the manifest weight standard, a reviewing court 

should only reverse a trial court's judgment ‘in exceptional case[s]’ when the 

evidence ‘weighs heavily against the conviction.’” State v. Gervin, 3d Dist. Marion 

No. 9-15-52, 2016-Ohio-8399, ¶ 138, quoting State v. Martin, 20 Ohio App.3d 172, 

175, 485 N.E.2d 717 (1st Dist.1983). 

Legal Analysis 

{¶18} Davis’s contention that his conviction is inconsistent with the manifest 

weight of the evidence primarily addresses the credibility of TS’s testimony. In 

particular, Davis alleges that TS’s account is inconsistent at points with Sauber’s 

testimony and the information she provided to law enforcement as recorded in the 

initial police report. Since TS’s testimony was the only direct evidence of several 
Case No. 13-16-30 

-14- 

essential elements of this offense, Davis argues that his conviction was based on 

evidence that was not credible and that the verdict returned against him was, 

therefore, against the manifest weight of the evidence. 

{¶19} Davis points to three exchanges between TS and defense counsel 

during cross examination to support his argument. Id. at 128, 129, 131. The first 

exchange defense counsel identifies addresses how long Davis was gone during one 

of his absences while TS was babysitting. Id. at 128. TS stated that Davis was gone 

“[a]bout an hour,” but defense counsel implied that the police report gave a different 

length of time. Id. However, TS explained that she did not have a cell phone on 

which she could check the time and “really wasn’t sure how long he was gone.” Id. 

at 114, 128, 130. During the second exchange, TS stated that she left the house at 

8:20 a.m. Id. at 128. The defense counsel, however, referenced the police report, 

which stated that she left around 7:35 a.m. Id. at 129. TS explained twice that the 

seven in the police report “should have been an eight.” Id. In the third alleged 

inconsistency, defense counsel points to an apparent conflict between TS’s 

testimony and Sauber’s testimony. During direct examination, TS stated that her 

brother was not present at the jobsite, but her father had stated earlier at trial that 

her brother was present at the jobsite. Id. at 90, 131. TS, however, resolved this 

apparent contradiction when she explained that her brother did not come in the 

morning to the jobsite and came later in the day. Id. at 131-132. Thus, it appears 
Case No. 13-16-30 

-15- 

that she and her father were speaking about whom was present at the jobsite during 

different periods of time. 

{¶20} As we evaluate these exchanges, we note that “the mere existence of 

inconsistencies in the testimony of different witnesses does not mandate that an 

appellate court reverse a conviction on manifest weight grounds.” State v. 

Wareham, 3d Dist. Crawford No. 3-12-11, 2013-Ohio-3191, ¶ 24. The jurors, as 

the triers of fact, are entitled to rely on what they find to be credible in a witness’s 

testimony as they reach a verdict. In this case, the three exchanges that defense 

counsel identified for review discuss peripheral details and do not implicate the 

material facts of this case. Further, TS had a plausible explanation for each of these 

alleged inconsistencies during cross examination that the jurors could have 

reasonably believed. Id. at 128, 129, 131-132. These alleged inconsistencies do not 

undermine TS’s credibility to such an extent that a rational juror could not have 

found that her testimony was trustworthy as to the elements of the crime. We also 

do not see any other indication in the record that the jury lost its way and returned a 

verdict against the manifest weight of the evidence. Thus, Davis’s first assignment 

of error is overruled. 

Third Assignment of Error 

{¶21} Under this assignment of error, Davis, who is an African-American, 

argues that the trial court failed to provide a representative sampling of AfricanAmericans in the jury pool and, in so doing, violated his Sixth Amendment right to 
Case No. 13-16-30 

-16- 

be tried by a jury of his peers. Specifically, Davis argues that Seneca County’s 

practice of drawing a jury pool from voter registration lists effectively prohibited 

him from having a jury of his peers in this case.1

 On appeal, he cites societal change 

as the basis for urging this court to reconsider its previous decisions on this issue, 

which have held that a jury selection process that randomly picks the jury pool from 

voter registration lists is permissible. See State v. Cosey, 3d Dist. Marion No. 9-86-

29, 1988 WL 32982, 8-9 (March 28, 1988); State v. Garcia, 3d Dist. Putnam No. 

12-11-07, 2012-Ohio-1795, ¶ 33-34. We are not persuaded by this argument. 

Standard of Review 

{¶22} “[T]he selection of a petit jury from a representative cross section of 

the community is an essential component of the Sixth Amendment right to a jury 

trial.” Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). 

“[D]efendants are not entitled to a jury of any particular composition, * * * but the 

jury wheels, pools of names, panels, or venires from which juries are drawn must 

not systematically exclude distinctive groups in the community and thereby fail to 

be reasonably representative thereof.” State v. Jones, 91 Ohio St.3d 335, 339-340, 

744 N.E.2d 1163 (2001), quoting Taylor at 528. The United States Supreme Court 

has set forth the Duren test to evaluate claims of fair-cross-section violations. 

 

1

 Appellant limits the scope of his argument to the effects of this jury selection method in his specific case. 

His argument does not address whether this court should consider any systematic issues with this process. 
Case No. 13-16-30 

-17- 

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). This 

test reads as follows: 

To establish a prima facie violation of the fair-cross-section 

requirement * * * a defendant must prove that: (1) a group 

qualifying as “distinctive” (2) is not fairly and reasonably 

represented in jury venires, and (3) “systematic exclusion” in the 

jury-selection process accounts for the underrepresentation. 

Berghuis v. Smith, 559 U.S. 314, 327, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010), 

citing Duren at 364. 

“[O]nce the defendant has made a prima facie showing of an 

infringement of his constitutional right to a jury drawn from a 

fair cross section of the community, it is the State that bears the 

burden of justifying this infringement by showing attainment of a 

fair cross section to be incompatible with a significant state 

interest.” 

State v. Stockton, 3d Dist. Shelby No. 17-96-15, 1997 WL 232245, 3 (May 5, 1997), 

quoting Duren, supra, at 368. 

{¶23} Additionally, if defense counsel failed to object to an alleged 

impropriety below, all but plain error is waived on appeal. Crim.R. 52(B). Under 

the plain error standard, “the defendant bears the burden of demonstrating that a 

plain error affected his substantial rights.” State v. Ireland, --- N.E.3d ---, 2017-

Ohio-263, ¶ 17 (10th Dist.). “Even if the defendant satisfies this burden, an 

appellate court has discretion to disregard the error and should correct it only to 

‘prevent a manifest miscarriage of justice.’” State v. Perry, 101 Ohio St.3d 118, 

2004-Ohio-297, 802 N.E.2d 643, ¶ 14, quoting State v. Barnes, 94 Ohio St.3d 21, 
Case No. 13-16-30 

-18- 

27, 759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 

372 N.E.2d 804 (1978), paragraph three of the syllabus. “We may reverse only 

when the record is clear that defendant would not have been convicted in the absence 

of the improper conduct.” State v. Smith, 3d Dist. Hardin No. 6-14-14, 2015-Ohio2977, ¶ 62. 

Legal Analysis 

{¶24} We begin our analysis by noting that Davis’s trial counsel did not 

object to the selection method of the jury pool below. Thus, we will only review 

for plain error as we apply the Duren test. Davis’s case satisfies the first prong of 

this test as “African-Americans are a distinctive group” under the fair-cross-section 

analysis. Jones, supra, at 340, citing U.S. v. Rioux, 97 F.3d 648, 654 (2d Cir.1996). 

However, Davis fails to provide any data that would demonstrate that jury venires 

do not represent the population as a whole. He also does not present any information 

that suggests the alleged underrepresentation of African-Americans in the jury pool 

is the result of systematic exclusion in the jury selection process. Absent evidence 

showing underrepresentation of African-Americans in jury venires and systematic 

exclusion of African-Americans in the process of jury selection, Davis cannot 

satisfy the second and third prongs of the Duren test. He cannot, therefore, carry 

the burden of showing that his Sixth Amendment rights were substantially 

prejudiced under a plain error standard. 
Case No. 13-16-30 

-19- 

{¶25} Further, we decline to reconsider our prior precedent regarding the 

jury selection process employed by Seneca County in this case because “[t]he Ohio 

Supreme Court has consistently upheld the calling of venires from voter registration 

lists as in conformity with the Sixth Amendment right to a jury drawn from a faircross-section of the community.” State v. Satta, 3d Dist. Marion No. 9-01-38, 2002-

Ohio-5049, ¶ 54, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, 

767 N.E.2d 216, ¶ 106; State v. Moore, 81 Ohio St.3d 22, 28, 689 N.E.2d 1 (1998); 

State v. Johnson, 31 Ohio St.2d 106, 285 N.E.2d 751 (1972), paragraph two of the 

syllabus. For these reasons, Davis’s third assignment of error is overruled. 

Fourth Assignment of Error 

{¶26} As the basis of this argument, Davis asserts that the prosecution 

engaged in prosecutorial misconduct by making the following comment during 

closing statements: 

Now, what has the [d]efense been in this case? Well, during 

opening statements, we heard from Mr. Smith [defense counsel]—

and again, I’m not a good notetaker. She is, but I’m not. But my 

recollection was that he said the evidence was going to show that 

his client wasn’t even there. What evidence have you heard or 

seen that he wasn’t there? I would suggest that you’ve heard 

nothing supporting that defense that he wasn’t there. 

Trial Tr. 183. Davis contends that this comment prejudiced his Fifth Amendment 

right not to testify by leading jurors to “make inferences about Davis’s lack of 

testimony” and, in so doing, violating his right to a fair trial. Appellant’s Brief, 17. 

We find this argument to be unpersuasive. 
Case No. 13-16-30 

-20- 

Standard of Review 

{¶27} “A prosecutor is entitled * * * to ‘wide latitude in summation as to 

what the evidence has shown and what reasonable inferences may be drawn 

therefrom.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 

508, ¶ 274. State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). In 

these cases, the standard of review “is [1] whether remarks are improper and, if so, 

[2] whether they prejudicially affected substantial rights of the accused.” State v. 

Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), citing State v. Smith, 14 Ohio 

St.3d 13, 14-15, 470 N.E.2d 883 (1984). State v. Sommerfield, 3d Dist. Union No. 

14-07-09, 2007-Ohio-6427, ¶ 6. “The touchstone of analysis ‘is the fairness of the 

trial, not the culpability of the prosecutor.’” State v. Cornwell, 86 Ohio St.3d 560, 

571, 715 N.E.2d 1144, 1154 (1999), quoting Smith v. Phillips, 455 U.S. 209, 219, 

102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87 (1982). 

{¶28} “We evaluate the allegedly improper statements in the context of the 

entire trial.” State v. Klein, 3d Dist. Union No. 14-12-09, 2013-Ohio-2387, ¶ 60, 

citing, State v. Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001), citing State 

v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). In this determination, 

an appellate court should consider [four factors:] (1) the nature 

of the remarks, (2) whether an objection was made by counsel, (3) 

whether corrective instructions were given by the court, and (4) 

the strength of the evidence against the defendant. 
Case No. 13-16-30 

-21- 

State v. Johnson, 3d Dist. Allen No. 1-13-45, 2014-Ohio-4750, ¶ 87, quoting State 

v. Braxton, 102 Ohio App.3d 28, 41, 656 N.E.2d 970 (8th Dist. 1995). 

{¶29} “For a conviction to be reversed on the basis of prosecutorial 

misconduct, a defendant must prove the prosecutor’s acts were improper and that 

they prejudicially affected the defendant's substantial rights.” State v. 

Merriweather, 12th Dist. Butler No. CA2016-04-077, 2017-Ohio-421, ¶ 45, citing 

State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 62. “To 

establish prejudice, a defendant must show that a reasonable probability exists that, 

but for the prosecutor’s improper remarks, the result of the proceeding would have 

been different.” State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31, 

quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012–Ohio–1526, ¶ 20. “If, 

in the context of the entire trial, it appears clear beyond a reasonable doubt that the 

jury would have found the defendant guilty, even without the improper remarks, 

then the trial will not be deemed unfair.” State v. Tenace, 109 Ohio St.3d 255, 2006–

Ohio–2417, 847 N.E.2d 386, ¶ 45. 

{¶30} Further, if the defense counsel did not object at trial to the allegedly 

prejudicial remarks, then all but plain error is waived. State v. Potts, 69 N.E.3d 

1227, 2016-Ohio-5555, ¶ 85, citing Smith, 2015-Ohio-2977, at ¶ 63. Crim.R. 52(B). 

“A court recognizes plain error with the utmost caution, under exceptional 

circumstances, and only to prevent a miscarriage of justice.” State v. Stevens, 58 

N.E.3d 584, 2016-Ohio-446, ¶ 55, quoting Smith, 2015-Ohio-2977, at ¶ 63. Under 
Case No. 13-16-30 

-22- 

the plain error standard, “[w]e may reverse only when the record is clear that 

defendant would not have been convicted in the absence of the improper conduct.” 

Smith, 2015-Ohio-2977, at ¶ 63, citing State v. Williams, 79 Ohio St.3d 1, 12, 679 

N.E.2d 646, (1997). 

Legal Analysis 

{¶31} We begin by applying the four factors to be considered by appellate 

courts in evaluating allegedly improper comments. First, these remarks were stated 

during the State’s closing arguments, which are not evidence. Trial Tr. 174. The 

State’s allegedly improper comments were made in reference to the defense 

counsel’s opening statement in which defense counsel claimed that the trial would 

show that Davis was not present at the time of the alleged incident. Id. at 79-80. 

Davis’s testimony was mentioned as part of what would establish that he was not 

present at the time of the alleged offense. Id. at 79. In the end, however, Davis did 

not testify in his own defense. 

{¶32} Second, we note that defense counsel did not object at trial to these 

statements by the prosecution. Id. at 183. Thus, all but plain error is waived. State 

v. Manley, 3d Dist. Allen No. 1-11-04, 2011-Ohio-5082, ¶ 13. Third, no curative 

instructions were issued to address the specific comment at issue on appeal, but no 

objection was raised by defense counsel to prompt such an instruction. Trial Tr. 

183. The jurors were, however, instructed not to consider closing arguments as 

evidence. Id. at 174. Fourth, TS’s testimony provided evidence for all of the 
Case No. 13-16-30 

-23- 

essential elements of the offense except the age of the defendant. Id. at 98, 113-

115. Portions of TS’s testimony were corroborated by the testimony of Sauber and 

Slater. The testimony from Detective Jonathan Bryant regarding government 

records of TS’s age and the defendant’s age established these essential elements of 

the crime. Id. at 157-158. See R.C. 2907.07(B)(1). Further, the additional 

finding—that Davis had been previously convicted of a sexually oriented offense—

was supported by the admission of Davis’s prior record. Ex. 1. 

{¶33} After examining these statements under these four factors, we find that 

these comments were not improper. In opening statements, the Defense announced 

that the primary thrust of their argument at trial would be that Davis was not at home 

during the times he was alleged to have committed the crime of importuning. Here, 

the prosecution was merely addressing the Defense’s main argument. This 

comment does not explicitly address Davis’s Fifth Amendment rights or his decision 

not to testify. We do not believe that the wording of these statements would have 

caused the average juror to focus their attention on Davis’s decision not to testify at 

trial or prompted them to make negative inferences against Davis for exercising his 

Fifth Amendment rights. Rather, these comments were general statements that 

pointed to the weaknesses in the Defense’s arguments. Since these comments were 

not improper, they did not prejudice Davis’s substantial rights and do not amount to 

plain error. For these reasons, Davis’s fourth assignment of error is overruled. 

 
Case No. 13-16-30 

-24- 

Second Assignment of Error 

{¶34} Here, Davis alleges that his defense counsel committed four errors 

during the course of his trial that denied him his right to the effective assistance of 

counsel. First, in his opening statement, defense counsel told the jurors that Davis 

was going to testify but did not call a single witness for the Defense’s case-in-chief. 

Trial Tr. 79, 170. Second, defense counsel gave a short closing argument in which 

he did not explain why Davis did not testify. Id. at 187-190. Third, defense counsel 

did not challenge the jury pool under Crim.R. 24 on the grounds that no AfricanAmericans were included. Fourth, defense counsel did not object during the State’s 

closing arguments when the prosecutor allegedly committed prosecutorial 

misconduct. Davis argues that his defense counsel’s failures deprived him of a fair 

trial. We disagree. 

Standard of Review 

{¶35} In Strickland v. Washington, the Supreme Court of the United States 

established a two-prong test for determining whether a criminal defendant was 

denied the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Under the first prong of 

the Strickland test, 

the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment. 
Case No. 13-16-30 

-25- 

State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.3d 905 (1999), quoting 

Strickland at 687. “In order to show deficient performance, the defendant must 

prove that counsel’s performance fell below an objective level of reasonable 

representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 

810, ¶ 95. “Debatable strategic and tactical decisions may not form the basis of a 

claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better 

strategy had been available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 

56, citing State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992). “A 

reviewing court may not second-guess decisions of counsel which can be considered 

matters of trial strategy.” Conley at ¶ 56, citing State v. Smith, 17 Ohio St.3d 98, 

477 N.E.2d 1128 (1985). 

{¶36} To satisfy the second prong of the Strickland test, 

the defendant must show that the deficient performance 

prejudiced the defense. This requires showing that counsel's 

errors were so serious as to deprive the defendant of a fair trial, a 

trial whose result is reliable. 

Calhoun at 289, quoting Strickland at 687. “To show prejudice, the defendant must 

show a reasonable probability that, but for counsel’s errors, the result of the 

proceeding would have been different.” State v. Bibbs, 3d Dist. Hancock No. 5-16-

11, 2016-Ohio-8396, ¶ 13, quoting Conway at ¶ 95. Appellate courts examine the 

record to determine “whether the accused, under all the circumstances, * * * had a 

fair trial and substantial justice was done.” State v. Rodriquez, 3d Dist. Defiance 
Case No. 13-16-30 

-26- 

No. 4-16-16, 2017-Ohio-1318, ¶ 9, quoting State v. Hester, 45 Ohio St.2d 71, 74 

O.O.2d 156, 341 N.E.2d 304 (1976), paragraph four of the syllabus. 

{¶37} In Ohio, a licensed attorney is presumed to be competent. State v. 

Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.), citing Calhoun at 289. 

For this reason, the petitioner has the burden of proving that counsel was ineffective 

at trial. Id. “The failure to prove either 1) a substantial violation or 2) prejudice 

caused by the violation makes it unnecessary for a court to consider the other prong 

of the test.” Walker at ¶ 20, citing State v. Anaya, 191 Ohio App.3d 602, 2010-

Ohio-6045, 947 N.E.2d 212, ¶ 25. 

Legal Analysis 

{¶38} Defense Counsel’s Opening Statement: Davis claims that defense 

counsel’s statements in opening arguments constitute ineffective assistance of 

counsel because defense counsel told the jurors that the defendant would testify but 

never called Davis as a witness. “[S]trategic choices made after thorough 

investigation of law and facts relevant to plausible options are virtually 

unchallengeable.” State v. Cepec, 2016-Ohio-8076, --- N.E.3d ---, ¶ 123, quoting 

Strickland, supra, at 690-691. “[C]ounsel’s decision whether to call a witness falls 

within the rubric of trial strategy and will not be second-guessed by a reviewing 

court.” Cepec at ¶ 123, quoting Treesh, supra, at 490. Further, “a midtrial change 

in strategy [does not] necessarily constitute deficient performance.” Id. at ¶ 111, 

quoting State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 134. 
Case No. 13-16-30 

-27- 

Defense counsel’s statements during opening arguments revealed his overall 

strategy for this case. For some reason—not apparent from the record—this initial 

strategy was revised. Regardless of whether Davis chose not to testify or was 

advised not to testify, defense counsel had to exercise his judgment to adjust the 

trial strategy as the circumstances required. See State v. Carter, 5th Dist. Stark No. 

2002CA00125, 2003-Ohio-1313, ¶ 31-32. These types of tactical adjustments are 

not grounds for an ineffective assistance of counsel claim. We do not see from the 

record how this adjustment falls below the standard of reasonable representation, 

and Davis has not demonstrated how omitting these few phrases from the Defense’s 

opening arguments would have changed the outcome of the trial. 

{¶39} Defense Counsel’s Closing Argument: Davis argues that the brevity 

of defense counsel’s closing argument and the absence of an explanation providing 

the reasons that Davis did not testify constitutes ineffective assistance of counsel. 

However, “the manner and content of trial counsel’s closing arguments are a matter 

of strategy * * *.” State v. Turks, 3d Dist. Allen No. 1-08-44, 2009-Ohio-1837, ¶ 

40-41. See State v. Burke, 73 Ohio St.3d 399, 406, 653 N.E.2d 242 (1995). Defense 

counsel’s closing arguments focused on the credibility of TS, whose testimony 

provided the only evidence for several of the essential elements of the crime. Trial 

Tr. 187. The closing arguments highlighted a consistent theme in the defense’s 

strategy and did not fall below the standard of reasonableness required of attorneys. 

Further, Davis has not demonstrated how this is an “[error] so serious that counsel 
Case No. 13-16-30 

-28- 

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment” or how a longer closing argument that explained why Davis did not 

testify would have changed the result of the trial. State v. Carter, 64 Ohio St.3d 

218, 224, 594 N.E.2d 595, 600 (1992). See State v. Dunlap, 10th Dist. Franklin No. 

03AP-481, 2003-Ohio-6830, ¶ 29-30; State v. Guysinger, 4th Dist. Ross No. 

15CA3514, 2017-Ohio-1167, ¶ 33-34. 

{¶40} Failure to Challenge the Jury Pool: Davis argues that defense 

counsel’s failure to object to the racial composition of the jury pool constituted 

ineffective assistance of counsel. We addressed the substance of this argument in 

our analysis of the third assignment of error. The Ohio Supreme Court and this 

Court have consistently held that the jury selection process employed by Seneca 

County is compatible with the constitutional requirements of the Sixth Amendment. 

Yarbrough, supra, at ¶ 106; Moore, supra, at 28; Johnson, 31 Ohio St.2d 106, 285 

N.E.2d 751 at paragraph two of the syllabus; Satta, supra, at ¶ 54; Cosey, supra, at 

8-9; Garcia, supra, at ¶ 33-34. In not objecting to the racial composition of the 

jury pool, defense counsel’s representation was not deficient because he made a 

tactical decision that was logically consistent with the legal precedent in this district. 

Further, Davis cannot demonstrate that an objection to the jury pool at trial would 

have likely resulted in a different outcome because the trial court had no obligation 

to choose a different jury pool. State v. Howard, 4th Dist. Scioto No. 11CA3415, 
Case No. 13-16-30 

-29- 

2012-Ohio-4690. See State v. Walton, 4th Dist. Ross No. 03CA2716, 2003-Ohio6514, ¶ 22-25. 

{¶41} Failure to Object to Prosecutor’s Closing Argument: Davis argues 

that defense counsel erred by failing to object during the prosecution’s closing 

statement. This argument was the subject of the fourth assignment of error. In that 

analysis, we determined that the State did not engage in prosecutorial misconduct 

in closing arguments by making improper comments. We cannot here find that 

defense counsel was ineffective for failing to object to a closing argument that we 

have found not to be objectionable. Additionally, the choice to object or remain 

silent during closing arguments falls squarely “within counsel’s realm of tactical 

decision-making.” State v. Brown, 12th Dist. Warren No. CA2002-03-026, 2002-

Ohio-5455, ¶ 22. See State v. Coben, 2d Dist. Greene No. 2001 CA 8, 2002 WL 

313133, 3 (March 1, 2002). 

{¶42} On appeal, Davis points to four instances in which he alleges his 

counsel was ineffective, but he does not move beyond these bare allegations by 

explaining how his counsel’s decisions were deficient or how he was prejudiced by 

defense counsel’s actions. Thus, Davis has not carried the burden of showing that 

he was denied his right to the effective assistance of counsel at trial. For these 

reasons, his second assignment of error is overruled. 

 
Case No. 13-16-30 

-30- 

Fifth Assignment of Error 

{¶43} In his fifth assignment of error, Davis argues that the cumulative effect 

of the errors committed at trial by defense counsel not only denied him the effective 

assistance of counsel but also denied him a fair trial. As the basis of this argument, 

Davis points to the claims of ineffective assistance of counsel that were raised on 

appeal. Having considered these alleged errors under the second assignment of 

error, we find this argument to be unpersuasive. 

Standard of Review 

{¶44} The constitutional “guarantee of a fair trial does not mean an errorfree or perfect trial * * *.” City of Columbus v. Forest, 36 Ohio App.3d 169, 171, 

522 N.E.2d 52, 55, (10th Dist.1987), citing United States v. Hasting, 461 U.S. 499, 

508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). Under the doctrine of cumulative 

error, “a conviction will be reversed where the cumulative effect of errors in a trial 

deprives a defendant of the constitutional right to a fair trial even though each of 

numerous instances of trial court error does not individually constitute cause for 

reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623, 637 (1995). “To 

find cumulative error, a court must first find multiple errors committed at trial and 

determine that there is a reasonable probability that the outcome below would have 

been different but for the combination of the harmless errors.” State v. Stober, 3d 

Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist. 

Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36. 
Case No. 13-16-30 

-31- 

Legal Analysis 

{¶45} In this case, Davis pointed to four instances in which alleges his 

counsel was ineffective. In our analysis of his second assignment of error, we 

determined that counsel’s representation in these four situations was not deficient 

against the standard of reasonableness to which attorneys are held. The record 

shows that these choices were tactical decisions and were not errors. Since these 

situations do not present evidence of harmless error when considered individually, 

they cannot present grounds for reversible error when considered cumulatively. For 

these reasons, the doctrine of cumulative error is not applicable to this case. See 

State v. Markley, 3d Dist. Marion No. 9-14-39, 2015-Ohio-1890, ¶ 56. Davis’s fifth 

assignment of error is overruled. 

Conclusion

{¶46} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Court of Common Pleas of Seneca County 

is affirmed. 

Judgment Affirmed 

ZIMMERMAN and SHAW, J.J, concur. 

/hls