[Cite as State v. Smith, 2024-Ohio-497.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO,

Appellee,

 - vs -

STEVEN A. SMITH,

Appellant.

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CASE NO. CA2023-05-041

O P I N I O N

2/12/2024

APPEAL FROM WARREN COUNTY COURT

Case No. 2022CRB000529

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant 

Prosecuting Attorney, for appellee.

Rittgers & Rittgers, and Neal D. Schuett, for appellant.

PIPER, J.

{¶ 1} Appellant, Steven A. Smith, timely appeals his conviction for sexual 

imposition, a third-degree misdemeanor, after a jury trial.

Factual Background and Procedural Posture

{¶ 2} On May 22, 2022, Sam Parlett, his family, and friends were celebrating his 

high school graduation at The Barrell in Springboro, Ohio. In attendance at the graduation 
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party was Kaitlyn Yates, Parlett's girlfriend. They had been dating for approximately six 

or seven months. Also in attendance was Steven Smith, Parlett's step-grandfather. Yates 

was acquainted with Smith from having attended prior gatherings of Parlett's family but 

had limited contact with Smith. 

{¶ 3} Smith and his wife Kimberly, Parlett's grandmother, were making their 

goodbyes to others and preparing to leave the party. Kimberly approached Yates for a 

goodbye hug. As this was happening, Smith also initiated contact with Yates by pushing 

her on the shoulder and then doing so again while Kimberly was hugging Yates. When 

Kimberly had concluded hugging Yates and moved away, Smith continued touching 

Yates. Yates testified:

* * * [Kimberly] went away to go hug somebody else, and he 

pushed me, I believe, one more time on my shoulder, and then 

he pushed me on my chest, and then the next was [sic] he 

grabbed my boobs. And all the while, I was backing away.

And then he proceeded to turn around and, like, nudge me 

with his back side into the corner *** 

Yates did not believe this incident was an accident because Smith repeatedly advanced 

and touched her as she tried backing away. Yates also demonstrated to the jury with her 

hand how Smith touched her breast. The physical contact ended when she put her hand 

up to remove his hand from her breast. 

{¶ 4} Yates testified that while she was offended and "couldn't believe what had 

just happened," she did not yell or cause a scene because she wanted to make a good 

impression with Parlett's friends and family and did not want to ruin the party. However, 

Yates did discuss what happened with Sam's mother and as well as the girlfriend of 

Parlett's brother. 

{¶ 5} Christine Parlett, Sam's mother, reported the incident to the Springboro 

police department, and the matter was investigated by Detective Drew Pyles. According 
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to Detective Pyle's report, Yates stated that Smith "did not squeeze" her breast, but that 

he "grabbed" it or placed his hand "firmly across her breast." At trial, Yates maintained 

"it wasn't so much of a squeeze; it was a grip. Not just a push * * *." 

{¶ 6} In addition to speaking with Yates, Detective Pyles obtained a copy of the 

security footage from The Barrel and arranged for Smith to be interviewed at the 

Springboro police department. Smith initially told Detective Pyles that he did not 

remember touching Yates, but after Detective Pyles had Smith review the security camera 

footage, Smith exclaimed "Jesus, Christ, I owe her an apology." Detective Pyles testified 

that Smith also acknowledged that, depending on the circumstances, such conduct by 

others could be viewed as inappropriate. 

{¶ 7} Kimberly Smith testified at trial that her husband is a "goofball" and jokes 

around with people often. She stated that when she initially went in to hug Yates, Smith 

shoved Yates and said to her "No hugs for you." Kimberly stated they all laughed and 

believed they "were having fun" during this initial exchange. 

{¶ 8} Smith was charged with a single count of sexual imposition. Smith pled not 

guilty, and the matter proceeded to a jury trial. The jury returned a guilty verdict, and 

Smith was sentenced to 60 days in jail (with 45 days suspended), one year of community 

control, and a $300.00 fine. Smith was also ordered to stay away from and have no 

contact with Yates. 

{¶ 9} Specific aspects of the trial that are raised within Smith's assignments of 

error will be discussed in further detail below.

{¶ 10} Smith's first and second assignments of error will be discussed together.

{¶ 11} Assignment of Error No. 1:

THE STATE PRESENTED INSUFFICIENT EVIDENCE TO 

CONVICT APPELLANT OF SEXUAL IMPOSITION.
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A. FIRST ISSUE PRESENTED FOR REVIEW AND 

ARGUMENT: The trial court erred when it denied trial 

counsel's Crim.R. 29 Motion.

B. SECOND ISSUE PRESENTED FOR REVIEW AND 

ARGUMENT: The jury's guilty verdict on Count One, 

sexual imposition, was not supported by sufficient 

evidence.

{¶ 12} Assignment of Error No. 2:

APPELLANT'S CONVICTION WAS ENTERED AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 13} Smith argues that there was insufficient evidence he touched Yates's breast 

for purposes of sexual arousal or gratification and that his conviction was against the 

manifest weight of the evidence. Specifically, Smith makes several arguments: (1) the 

mere touching of Yates's breast proves nothing about his purpose for doing so; (2) Smith, 

consistent with his character, was joking around in a jovial atmosphere at the time the 

touching occurred; (3) Smith only touched Yates's breast in the last of the six times he 

touched her; and (4) Yates described the touch as a "firm press" or push as opposed to 

a grab, fondle, or grope.

A. Standard of Review

{¶ 14} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its 

own motion, after the evidence on either side is closed, shall order the entry of a judgment 

of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or 

offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the 

same standard as that used to review a sufficiency-of-the-evidence claim. State v.

Maloney, 12th Dist. Butler No. CA2022-07-069, 2023-Ohio-2711, ¶ 40, citing State v.

Mota, 12th Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5; State v. Huston, 12th 

Dist. Fayette Nos. CA2006-05-021 and CA2006-06-022, 2007-Ohio-4118, ¶ 5.

{¶ 15} When reviewing the sufficiency of the evidence presented at trial "[t]he 
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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. Essentially, "the test for sufficiency focuses on whether the state met 

its burden of production at trial * * *." State v. Paul, 12th Dist. Fayette No. CA2011-10-

026, 2012-Ohio-3205, ¶ 10. 

{¶ 16} However, a manifest weight of the evidence determination must examine 

"the inclination of the greater amount of credible evidence, offered at a trial, to support 

one side of the issue rather than the other." State v. Thompkins, 78 Ohio St.3d 380, 387, 

(1997), quoting Black's Law Dictionary (6th Ed.1990). The Thompson court further 

observed, "When a court of appeals reverses a judgment of a trial court on the basis that 

the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth 

juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id. at 

387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 2218 (1982); See also State 

v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. 

{¶ 17} Stated differently, during this examination, appellate courts "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 jury clearly 

lost its way and created such a manifest miscarriage of justice" that a new trial must be 

ordered. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168. 

{¶ 18} As a result of the foregoing, if a conviction is supported by the manifest 

weight of the evidence, it will also be supported by sufficient evidence and satisfy Criminal 

Rule 29. Maloney, 2023-Ohio-2711 at ¶ 40, 43.

B. Analysis

{¶ 19} Smith's conviction for sexual imposition was not against the manifest weight 
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of the evidence. Under R.C. 2907.06(A)(1), "No person shall have sexual contact with 

another * * * [when] [t]he offender knows that the sexual contact is offensive to the other 

person, or one of the other persons, or is reckless in that regard." "Sexual Contact" is 

defined as the "touching of an erogenous zone of another * * * [including a female's breast] 

for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). 

{¶ 20} Smith's appeal focuses on whether his conduct constitutes purposeful, 

sexual contact. We have previously observed that, "[w]hether the touching or contact 

was performed for the purpose of sexual arousal or gratification is a question of fact to be 

inferred from the type, nature, and circumstances of the contact." State v. Long, 12th 

Dist. Warren No. CA2019-08-078, 2020-Ohio-2678, ¶ 22, citing In re A.L., 12th Dist. Butler 

No. CA2005-12-520, 2006-Ohio-4329, ¶ 19-20. "If the trier of fact determines that the 

defendant was motivated by desires of sexual arousal or gratification, and that the contact 

occurred, then the trier of fact may conclude that the object of the defendant's motivation 

was achieved." Id. at ¶ 23, quoting State v. Cobb, 81 Ohio App.3d 179, 185 (9th 

Dist.1991). 

{¶ 21} Ultimately, "[T]he essential question is, '* * * would an ordinary, prudent 

person or a reasonable person sitting as a juror perceive from the defendant's actions, 

and all of the surrounding facts and circumstances, that the defendant's purpose or 

specific intention was arousal or gratification of sexual desire." State v. Meredith, 12th 

Dist. Warren No. CA2004-06-062, 2005-Ohio-062, ¶ 19, quoting State v. Mundy, 99 Ohio 

App.3d 275, 289 (2nd Dist.1994). 

{¶ 22} Here, consideration of several pieces of evidence and testimony convince 

us that Smith's conviction is not against the manifest weight of the evidence. First, the 

record included video evidence that Smith repeatedly advanced toward and touched 

Yates on or about her breast before Yates used her own hand to remove Smith's. Smith 
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then proceeded to push toward Yates with his back side until she was up against a wall. 

Second, while various verbs were used to attempt to discern how exactly Smith placed 

his hand upon Yates' breast, including "grabbed," "squeezed," or "firmly pressed," Yates 

always maintained the touching was, in her opinion, not accidental because Smith 

repeatedly advanced toward her and touched her before ultimately touching her breast in 

a manner that made her forcibly remove it. Third, the testimony presented at trial also 

demonstrated Smith and Yates's relationship had not progressed beyond being 

acquaintances. Finally, Smith indicated he could not remember touching Yates. 

However, after seeing the security, he exclaimed he owed Yates an apology and 

acknowledged that such conduct could, under certain circumstances, be considered 

inappropriate. 

{¶ 23} Upon consideration of the evidence presented at trial, the jury cannot be 

said to have lost its way simply because it found Smith's conduct culpable and did not 

agree with his argument that he was joking around and accidentally touched Yates'

breast. Therefore, the jury's determination that the touching of Yates' breast by Smith 

was for the purpose of sexual arousal or gratification was not a miscarriage of justice. We 

therefore conclude that Smith's conviction for sexual imposition was supported by 

sufficient evidence and not against the manifest weight of the evidence. 

{¶ 24} Assignment of Error No. 3:

THE PROSECUTOR'S MISCONDUCT DEPRIVED 

APPELLANT OF HIS RIGHT TO A FAIR TRIAL.

{¶ 25} Smith contends that the prosecutor's remarks during closing argument 

misstated the facts and law to such an extent as to constitute prosecutorial misconduct 

and deprived Smith a fair trial. 

A. Background and Smith's Arguments
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{¶ 26} During closing arguments and rebuttal, the prosecutor made several 

statements Smith takes issue with. First, the prosecutor stated that Smith "groped [Yates'] 

breast. He grabbed her." Smith argues this is impermissibly contradicted by Yates'

testimony that characterized Smith's conduct as a "firm press" as opposed to a "squeeze." 

Next, the prosecutor stated, "We proved * * * that [Smith] engaged in sexual contact by 

touching [Yates'] breast." Smith argues that this and similar statements made by the 

prosecutor during closing remarks misstates the law because the law does not assume a 

purpose of sexual arousal or gratification from the mere touching of an erogenous zone.

{¶ 27} Third, the prosecutor also asserted:

I do not have to prove that [the touching] lasted an extended 

duration, that he touched her breast multiple times, that he 

engaged in any kind of flirtation, or that he made comments 

to her. I do not have to prove any of those things. 

So when you're back deliberating and someone says, ["]Well, 

he didn't do this,["] remind yourselves that's not required. 

These elements are required for us to prove sexual 

imposition, but please do not add to that burden. Please do 

not raise the bar. 

Smith argues that while the state does not have to prove such details, the prosecutor's 

comments effectively prohibited the jury from considering other relevant circumstances. 

{¶ 28} Finally, the prosecutor said to the jury, "Think of every reason you can think 

of for a 50-some-year-old man to touch an 18-year-old girl's breast." This statement was 

immediately objected to by Smith's counsel. After a sidebar, the prosecutor continued by 

eliminating contexts in which Smith's touching of Yates' breast would be innocent or 

otherwise permissible before arguing the touching could not be interpreted as two people 

joking or an accident because if it had been, Smith would not have initially denied touching 

Yates during his interview with Detective Pyles. Smith argues the initial comment 

encouraged the jury to "assume criminal behavior" because Smith is an older man and 
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Yates is a younger woman. 

B. Applicable Law

{¶ 29} Where there was no objection to the prosecutor's purported misconduct, 

courts review only for plain error. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 

52. "To prevail, appellant must show that an error occurred, that the error was plain, and 

that the error affected his substantial rights * * *" by affecting the outcome of trial. Id. 

{¶ 30} Similarly, "[t]he test regarding prosecutorial misconduct in closing 

arguments is whether the remarks were improper and, if so, whether they prejudicially 

affected substantial rights of the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984); 

State v. Miller, 12th Dist. Preble No. CA2019-11-010, 2021-Ohio-162, ¶ 44. "The focus 

of an inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, 

not upon the culpability of the prosecutor." State v. Combs, 12th Dist. Clermont No. 

CA2020-01-004, 2020-Ohio-5397, ¶ 19; Miller, 2021-Ohio-162, at ¶ 45. Importantly, 

attorneys are "granted latitude in closing arguments," and where "it is clear beyond a 

reasonable doubt that, absent the prosecutor's comments, the jury would have found 

appellant guilty * * *" a conviction will not be disturbed. State v. Loza, 71 Ohio St.3d 61, 

78 (1994).

C. Analysis

{¶ 31} As to the first three statements Smith takes issue with, which were not 

objected to, we find no error, plain or otherwise. As discussed above, Yates did 

characterize Smith's touching of her breast as a grab or grip. Additionally, she indicated 

to the jury with her own hand how Smith touched her breast. Based upon Yates' testimony 

and demonstrative gesture, the prosecutor's characterization of Smith's conduct as a 

"grab" or "grope" were not unfair comments. Furthermore, the jury was clearly instructed 

that arguments made in closing by the attorneys are not to be considered as evidence. 
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{¶ 32} Next, although the prosecutor argued that the state had proved "sexual 

contact" by touching Yates's breast and that the state did not have to prove other 

circumstances such as duration or prior interaction between the parties, review of the 

prosecution's entire closing argument and rebuttal demonstrates the state consistently 

asked the jury to also consider the surrounding circumstances of the case, including the 

fact that Yates stepped back from the initial touching, that Smith moved forward and 

continued touching Yates until she removed Smith's hand from her breast, and that Smith 

initially denied touching Yates at all. For the same reasons, we do not find that the 

prosecutor asked the jury to consider only Smith's and Yates' age and to assume criminal 

behavior.

{¶ 33} Therefore, upon consideration of the entire trial record, none of the remarks 

made by the prosecutor amounted to prosecutorial misconduct or denied Smith a fair trial. 

{¶ 34} Assignment of Error No. 4: 

THE APPELLANT WAS DEPRIVED OF HIS RIGHT TO A 

COUNSEL THROUGH INEFFECTIVE ASSISTANCE OF 

COUNSEL.

{¶ 35} Smith argues that his counsel's failure to object to the prosecutor's improper 

remarks during closing argument was ineffective assistance of counsel. To demonstrate 

ineffective assistance of counsel, Smith must show that his "counsel's performance fell 

below an objective standard of reasonableness and resulting prejudice, i.e., a reasonable 

probability the result of the proceeding would have been different." State v. Childers, 12th 

Dist. Butler No. CA2023-01-006, 2023-Ohio-2436, ¶ 4, citing Strickland v. Washington, 

466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v. Vore, 12th Dist. Warren No. 

CA2012-06-049, 2013-Ohio-1490, ¶ 14. As our analysis of Smith's third assignment of 

error makes clear, the prosecutor's remarks during closing argument were not improper, 

meaning Smith's counsel did not prejudice Smith by failing to object to them. 
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{¶ 36} Assignment of Error No. 5: 

THE APPELLANT WAS DEPRIVED OF HIS RIGHT TO A 

FAIR TRIAL THROUGH CUMULATIVE ERROR.

{¶ 37} Smith argues on appeal that the assignments of error above resulted in 

cumulative error meriting reversal, even if none of them did individually. Under the 

cumulative error doctrine, an appellate court will reverse a conviction if the collective 

effect of trial errors prevented a defendant from having a fair trial, even if each error 

individually did not. State v. Akladyous, 12th Dist. Butler No. CA2021-12-164, 2023-Ohio3105, ¶ 60, citing State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 140. As stated 

above, we have found no error in this case and therefore need not consider the cumulative 

error doctrine. 

{¶ 38} In conclusion, we overrule Smith's assignments of error.

{¶ 39} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.