Login | August 02, 2025
7th District: Rapist to be resentenced over added RVO specifications
TRACEY BLAIR
Legal News Reporter
Published: March 26, 2013
A convicted rapist must be resentenced because a Mahoning County trial court improperly added repeat violent offender specifications, the 7th District Court of Appeals recently ruled.
Sammie Smith, 44, was indicted on charges of aggravated burglary, rape (fellatio), rape (vaginal), rape (anal), kidnapping (to facilitate a felony), aggravated robbery, robbery and kidnapping (to engage in sexual activity against the victim’s will).
A jury found Smith guilty as charged in 2011, and the court sentenced him to 45 years in prison. A five-year repeat violent offender specification was added to each count, resulting in a total of 80 years.
According to case summary, the saga began in the early morning hours on Oct. 13, 2003, after a Youngstown woman sleeping with her 2-year-old son was shaken awake by a male intruder who had broken a window pane to get inside.
The woman told police he pulled a bandana over her eyes, pulled her out of bed, threatened to kill her and raped her without using a condom.
After reportedly stealing her jewelry and money from her purse, the man forced her to take a bath.
The victim was examined by a doctor who described her injuries as recent trauma, and the worst vaginal and anal injuries he had ever encountered. A rape kit analyst testified she found sperm on the vaginal and rectal swabs, and a DNA profile was entered into BCI’s database.
Five years later, Smith’s DNA was entered in the database. The victim then narrowed six suspects down to two in a photo lineup, one of whom was Smith.
A new DNA sample was taken from Smith that was compared to sperm taken from the victim. The analyst testified Smith could not be excluded as the source, noting that only an identical twin could provide such a match.
Smith later appealed his conviction and sentence, citing nine assignments of error in a 47-page brief.
A three-judge panel overruled all but Smith’s third assignment of error – that the trial court erred in imposing additional punishment on the repeat violent offender specification.
Smith successfully argued the court was not permitted to impose additional sentences for aggravated robbery and robbery because they were merged.
“Here, the trial court only imposed five years for aggravated robbery, which had a maximum sentence of ten years, and the court only imposed five years for robbery, which had a maximum sentence of eight years,” 7th District Judge Joseph J. Vukovich wrote in a 3-0 opinion.
The court’s repeat violent offender sentences on those two counts is reversed and remanded to delete the additional sentences.
“As this court and the Ohio Supreme Court have stated multiple times, two merged counts cannot both receive sentence, even concurrent sentences,” Vukovich stated. “This is said to constitute plain error. “The remedy is to remand for a limited resentencing hearing so that the prosecution can select which of the merged offenses it wishes the court to proceed on for sentencing.”
The panel did overrule part of the third assignment of error that stated the trial court denied Smith due process when it found him to be a repeat violent offender.
At sentencing, the state presented a certified copy showing prior convictions of aggravated robbery, kidnapping and rape from 1986. Smith claimed the state’s proof was insufficient because a judgment entry showing a prior conviction for a “Sam Smith” does not establish the person on trial is the same person.
The appellate court found that portion of the argument to be without merit, noting that the PSI contained a photo of Smith, his date of birth and his social security number, as well as his prior convictions.
Smith also unsuccessfully argued that the trial court erred by:
*Allowing witnesses to offer expert testimony about DNA tests not performed by them
* Permitting hearsay evidence of appellant’s payroll records
* Denying appellant’s request to merge the kidnapping counts with the rape counts because they were allied offenses of similar import with no separate animus
* Improperly allowing Smith to be impeached with prior convictions without taking the stand, and permitting the jurors to convict him on less than the full complement of evidence required for proof beyond a reasonable doubt.
* Denying due process of law and a fair trial by reason of improper prosecutorial argument
* Abusing their discretion by allowing Smith to be impeached with prior convictions and denying him the right to defend himself
* Denying appellant effective assistance of counsel
* Convicting him against the manifest weight of the evidence
“It is not rare that the suspect’s fingerprints are not discovered at a crime scene or are lifted but do not contain sufficient ridge detail for comparison,” according to the appellate opinion. “The eyewitness could not make a positive identification because she had a bandana over her face during all but a moment of the attack which happened five years prior.
“Also notable is the fact that the DNA at issue was from sperm rather than blood or saliva. Thus, there could have been no mix-ups with the female victim’s DNA. Moreover, appellant was not a suspect until years after the DNA profile of the sperm sample was generated. That an analyst in Virginia would make a mistake resulting in the analyzer generating the DNA profile of appellant (someone who happened to have previously lived on the same street as the victim) is a theory that a rational juror can assign little credit.”
7th District judges Gene Donofrio and Mary DeGenaro concurred.
The case, State V. Sammie Smith, No. 11 MA 120, was posted March 5.