Youngstown Daily Legal News

After three trials, kidnapper's convictions stick

ANNIE YAMSON
Special to the Legal News
Published: April 7, 2016

A panel of three judges in the 2nd District Court of Appeals recently affirmed the convictions of a man who was tried three times for kidnapping a woman and her son.

Theodore Smith was indicted in the Montgomery County Court of Common Pleas on one count each of kidnapping with purpose to terrorize or to inflict serious harm, kidnapping to facilitate the offense of aggravated robbery, aggravated robbery with a deadly weapon and kidnapping of a person under the age of 13 with purpose to hold for ransom, as a shield or hostage.

The charges stemmed from events that took place on Nov. 28, 2007, around 9 a.m., when Smith entered the apartment of Cassie Davis and woke her by dragging her by her hair down the hallway and into the living room.

Smith was apparently looking for a man named Anthony, who owed him money. Davis testified that Smith demanded the money from her and threatened her and her 18-month-old son, who was in the apartment at the time.

Davis did not have a phone in her apartment so she concocted a story and told Smith that she had to use the phone in her sister’s downstairs apartment in order to call her workplace and see about her paycheck so that she could pay Smith. When Davis went to use the phone, Smith held a knife to her son’s neck and ordered Davis to return with his money or he would hurt the child.

Davis ran down to her sister’s apartment and called the police. Shortly after she returned to her own apartment, the police burst through the door and arrested Smith.

At his original trial, Smith was convicted of kidnapping with purpose to terrorize and kidnapping of a child under 13 years of age. After he was sentenced to 15 years in prison, the court of appeals reversed his convictions due to a violation of Smith’s constitutional rights at trial.

A second jury trial resulted in similar guilty verdicts and an identical sentence. The 2nd District court again reversed his convictions, this time due to the improper exclusion of a prospective juror.

The third time around, only the kidnapping counts on which Smith was originally convicted were tried to a jury with a different judge presiding over the case. He was found guilty and sentenced to two, concurrent eight-year prison terms.

The most recent appeal from Smith challenged the convictions on double jeopardy grounds. According to Smith, he should not have been retried on the kidnapping charges because they were the same as the single kidnapping charge on which he was previously acquitted.

The court of appeals found otherwise, citing the intent behind the kidnapping counts as dispositive of the issue.

“Count one alleges that Smith’s purpose in restraining Davis’ liberty was to terrorize her,” Judge Michael Hall wrote on behalf of the court of appeals. “And count four alleges that Smith’s purpose in restraining Davis’ son’s liberty was to hold him for ransom or as a shield or hostage.”

The jury in Smith’s first trial found him not guilty of count two, which alleged that Smith’s purpose in restraining Davis’ liberty was to facilitate the commission of aggravated robbery.

“The prosecutions for counts one and four do not require relitigating any factual issue that the jury necessarily decided in Smith’s favor when it found him not guilty of count two,” Hall wrote. “Neither count one nor count four charges the same offense as count two, therefore, Smith’s double jeopardy protections were not violated.”

The appellate panel overruled Smith’s assignment of error and let his convictions stand. It also overruled a cross appeal from the state alleging that the trial court erred by sentencing Smith to only eight years in prison and calling for a longer sentence.

The court of appeals pointed out that the trial court considered the purposes and principles of sentencing and explained its reasoning at the sentencing hearing. The appellate panel also noted that the sentence was not contrary to law since it fell within the statutory range of three to 11 years for a first-degree felony.

“After reviewing the record, we cannot say that the record clearly and convincingly fails to support the trial court’s findings,” Hall wrote.

Judges Mike Fain and Jeffrey Froelich joined Hall to form the majority.

The case is cited State v. Smith, 2016-Ohio-1269.

[Back]