State v. Smothers

2025 Ohio 5250

• Court: Ohio Court of Appeals
• Decided: November 21, 2025
• Docket: C-230663
• Status: Published

Opinion

[Cite as State v. Smothers, 2025-Ohio-5250.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230663 TRIAL NO. B-1800336 Plaintiff-Appellee, :

vs. : JUDGMENT ENTRY BRIAN SMOTHERS, :

Defendant-Appellant. :

This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 11/21/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Smothers, 2025-Ohio-5250.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230663 TRIAL NO. B-1800336 Plaintiff-Appellee, :

vs. : OPINION BRIAN SMOTHERS, :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 21, 2025

Connie Pillich, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant. [Cite as State v. Smothers, 2025-Ohio-5250.]

MOORE, Judge.

{¶1} On the morning of January 1, 2018, police were called to a mobile-home

park in Sharonville, Ohio. They were responding to a report that the nude body of a

woman was lying behind a dumpster near one of the trailers.1 While police were

conducting their investigation, defendant-appellant Brian Smothers came out of his

trailer. Smothers explained to the officers that he needed to leave for work and asked

if the police and emergency vehicles blocking his car could be moved. Smothers’

request was accommodated, the vehicles were moved, and he drove off—but not to

work. Instead, Smothers drove to his father’s home in Grant County, Kentucky.

{¶2} After Smothers drove off, the investigating officers learned that the dead

woman was Smothers’ wife, L.S. A police broadcast was made to be on the lookout for

Smothers and the dark blue Hyundai Santa Fe he was driving, and warrants were

issued for his arrest and for the search of his car. When the police broadcast reached

the Grant County Sheriff’s Office, they sent an officer to the house of Smothers’ father,

where Smothers was found and arrested. Smothers’ car was parked in the driveway of

his father’s house. The Grant County Sheriff seized the vehicle and held it until it was

transported to the Sharonville Police Department where it was searched.

{¶3} In this appeal, Smothers challenges his convictions for murder, gross

abuse of a corpse, and tampering with evidence in seven assignments of error, alleging

(1) the trial court erred by denying his motion to suppress, (2) he was prejudiced by

prosecutorial misconduct, (3) the admission of L.S.’s autopsy photos unfairly inflamed

the passions of the jury, (4) his convictions were based on insufficient evidence, (5)

the State committed a Brady violation by destroying an untested sexual-assault kit,

1 According to the affidavit to the arrest warrant, a neighbor and her nine-year-old daughter saw

the body lying behind the dumpster which prompted the call to police. OHIO FIRST DISTRICT COURT OF APPEALS

(6) the trial court erred by denying Smothers’ proposed jury instruction regarding the

alleged Brady violation, and (7) the trial court erred by overruling his motion for a

new trial based on juror misconduct.

{¶4} For the reasons stated herein, we affirm the trial court’s judgment.

I. Factual and Procedural History

{¶5} Smothers was indicted for two counts of murder, special felonies, in

violation of R.C. 2903.02(A) and (B), one count of felonious assault, a second-degree

felony, in violation of R.C. 2903.11(A)(1), one count of gross abuse of a corpse, a fifth-

degree felony, in violation of R.C. 2927.01(B), and two counts of tampering with

evidence, third-degree felonies, in violation of R.C. 2921.12(A)(1).

A. The Hearing on Smothers’ Motion to Suppress

{¶6} Smothers filed a motion to suppress citing Collins v. Virginia, 584 U.S.

586 (2018), and arguing that the automobile exception to the warrant requirement

does not permit an officer to enter a home or its curtilage to search a vehicle. Id. at

600. Smothers asserted that the affidavit in support of the warrant was defective

because his car was not located in the jurisdiction of the issuing judge when the

warrant was issued on January 1, 2018. Instead, his car was at his father’s home in

Grant County, Kentucky. Smothers argued that the Sharonville police conducted a

warrantless search of his car because it did not arrive at the police department until

January 2, 2018.

Detective Brad Hondorf’s Testimony

{¶7} Sharonville Police Detective Brad Hondorf assisted with the

investigation of L.S.’s death. Hondorf testified that during the initial investigation,

Smothers came out of his trailer as the paramedics were leaving and asked the officers

to move their cars. After they did, he left the scene. Hondorf explained that at that

4 OHIO FIRST DISTRICT COURT OF APPEALS

point, L.S.’s identity was unknown. Hondorf explained that after the police cars and

emergency vehicles were moved, the officers saw “drag marks” in the snow leading

from where L.S.’s body was found to Lot 15—Smothers’ trailer.

{¶8} After searching their database, the officers learned that police had

recently responded to a report of domestic violence at the Smotherses home. Hondorf

also testified that based on previous photos, they were able to identify L.S. by her

“distinct tattoos.” They used a photo of Smothers to confirm his identity with the

officer whom Smothers spoke to prior to driving away. Smothers’ neighbors also

reported to the officers that they saw Smothers leaving in his car.

{¶9} Hondorf explained that Smothers was permitted to leave because

neither he nor the body of L.S. had been identified at that point. Hondorf testified that

Smothers became a suspect after he had left and the officers saw the drag marks and

identified the body. He further explained that the investigators became interested in

the car after they reviewed the video from a neighbor’s surveillance camera. That

footage showed a “subject throughout the night going back and forth” “dragging

something the size of a body,” and the pathway indicated that the subject made several

trips from the dumpster to the area where Lot 15 was, including carrying what looked

like a garbage bag towards the dumpster.

{¶10} A warrant was issued for Smothers’ arrest for abuse of a corpse. Hondorf

testified that the Grant County Sheriff’s Department was notified that Smothers’ father

lived in that county, and on January 1, 2018, a Grant County deputy sheriff went to the

home of Smother’s father where Smothers and his car were found. Hondorf explained

that Sharonville police believed that L.S.’s missing clothes, blood, or other evidence

could be in Smothers’ car. After Smothers was arrested, his car was impounded at the

Grant County Sheriff’s Department.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} During his testimony, Hondorf conceded that Smothers’ car was not in

Hamilton County when he submitted the affidavit for a search warrant for the car on

January 1, 2018. He also conceded that the car did not arrive at the Sharonville Police

Department until January 2, 2018. t. Hondorf testified, however, that the police had

no intention of executing the search warrant on Smothers’ car until it was in Hamilton

County.

{¶12} Hondorf testified that the warrant to search Smothers’ car was obtained

because, once the car was found, it would be seized and transported to the Sharonville

Police Department to be searched for evidence. He explained that probable cause to

search the car arose when Smothers, later identified as a suspect, had left the scene in

his car.

Detective Scott Conrad’s Testimony

{¶13} Detective Scott Conrad, with the Grant County Sheriff’s Office, testified

that their dispatch received a call from Sharonville police asking for assistance in

locating Smothers and his car. Conrad conceded that the car was parked on private

property when the Grant County sheriffs seized it, and they did not have a search

warrant issued by a judge in Kentucky. Conrad, however, explained that, at that point,

Smothers had been charged in Grant County as a fugitive from another state, and there

was a National Crime Information Center (“NCIC”) warrant for his arrest.

{¶14} Conrad testified that the Grant County deputy sheriffs went to the

address given by Sharonville police and saw Smothers walking to the front door and

his car parked in the driveway. Conrad explained that the vehicle was not searched in

Grant County and that the sheriff’s office taped the doors of the car shut to ensure that

it was not searched until it was in Sharonville.

The Trial Court Denies Smothers’ Motion to Suppress

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} The trial court, referring to the “Ohio Arrest Search and Seizure”

manual, stated that there are not “any rules [under the automobile exception] that

bear a magic line, at the border of Ohio, and they can’t go into another jurisdiction,

like Kentucky.” The court stated that “the whole idea about the auto[mobile] exception

was to give officers an opportunity to follow a very inherent mobility of a vehicle,”

which “creates circumstances of such exigency that it is practically a necessity.” The

court added that individuals have a reduced expectation of privacy where a warrantless

search is based on probable cause. The court stated that there was probable cause to

search Smothers’ car because L.S.’s body was found behind the dumpster, tracks led

back to the Smotherses trailer, the video showed someone dragging something to the

dumpster, and Smothers, the main suspect, left the scene in his car. The court further

stated that no warrant was needed to seize the vehicle and hold it pending the search

as the “Supreme Court has said that a car that has been seized and brought to police

headquarters and even sits as long as two weeks, there was no need for a search

warrant.” The trial court denied the motion to suppress, and the case proceeded to

trial.

B. The Trial

K.C.’s Testimony

{¶16} K.C. testified that she knew Smothers and L.S. She testified that around

9:30 a.m. on January 1, 2018, she looked outside of her window and saw a body lying

by the dumpster. She stated that she went to see if the person was okay but saw red

spots in the snow, that the woman was naked, and there was blood going down her

chest and nose. Realizing that the woman was dead, she called 9-1-1.

Greg Shewbridge’s Testimony

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} Greg Shewbridge, an EMT with the Sharonville Fire Department,

testified that once the emergency vehicles and police cars were moved to allow

Smothers to leave, an officer showed Shewbridge that there were drag marks coming

from Trailer 15, which was the trailer that Smothers came out of and lived in.

Shewbridge stated that this caused him concern that “the suspect of a crime had just

fled the scene.”

Officer David Landsberg’s Testimony

{¶18} Officer Landsberg, a Cincinnati police criminalist, was called to the

scene by Sharonville officers. He testified about what he observed at the scene and

identified the photographs taken at the scene as they were introduced into evidence.

Officer Landsberg described the drag marks and blood found along the trail from

Trailer 15 to the dumpster and described the shoe prints found in the snow along the

trail and at the base of the steps of Trailer 15. Officer Landsberg testified that the police

and medical responders were careful not to disturb the shoe imprints. Officer

Landsberg also explained that there were no signs of forced entry into the trailer.

{¶19} Officer Landsberg also participated in the search of Smothers’ car—

which had crime tape around it before the search began—at the Sharonville police

station. Officer Landsberg testified that L.S.’s cell phone was found on the front

passenger seat, and “reddish stains” were found on and above the dials used to adjust

the driver’s seat. A navy-blue sweatshirt with different stains was found in the back of

the car along with green towels with reddish stains that were found in the trunk.

Officer Landsberg testified that the shoe print that he obtained from the floor mat of

the driver’s side matched the shoe prints found on the trail of drag marks at the scene.

Officer Lee Jacobs’ Testimony

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶20} Officer Lee Jacobs testified that L.S.’s purse was found in the front room

of Smothers’ trailer and that Smothers’ blood was found on the purse strap. Officer

Jacobs described seeing a “person walking back and forth” and what appeared to be a

“body or something very large” near the dumpster on the surveillance video from a

neighboring trailer, which prompted the officers to search the dumpster. Jacobs

testified that the contents in the garbage bag recovered from the dumpster included

jeans that had a “seeping brown stain,” a soiled pair of women’s underwear that had

been torn or cut, and mail belonging to Smothers. He also testified that soiled towels

and L.S.’s cell phone were found in Smothers’ car.

Michael Trimpe’s Testimony

{¶21} Michael Trimpe, a trace evidence examiner with the Hamilton County

Coroner’s crime laboratory, testified that he determined that the boot prints found at

the scene matched the boots that Smothers was wearing when he was arrested.

E.M.’s Testimony

{¶22} E.M. was the neighbor whose surveillance camera captured the person

dragging what was discovered to be L.S.’s body to the dumpster and walking back and

forth. E.M. testified that in reviewing his surveillance footage, he noticed that his

maroon truck looked gray due to the infrared lights on the camera.

Dr. Karen Looman’s Testimony

{¶23} Dr. Karen Looman was a deputy coroner with the Hamilton County

Coroner’s Office when she conducted L.S.’s autopsy. Dr. Looman testified that, while

the coroner’s office typically conducts an autopsy within 24 hours of receiving a

decedent’s body, L.S.’s autopsy could not be performed for two days because her body

was completely frozen after being left outside in the cold.

The Autopsy Photographs

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶24} Dr. Looman testified to the condition of L.S.’s body and identified

photographs and diagrams of the autopsy, which were introduced into evidence. The

photographs showed that L.S.’s body was nude when it arrived at the coroner’s office,

had to be thawed, and reflected injuries that had occurred both before and after death.

{¶25} Defense counsel objected to the photographs at sidebar, arguing that

they were cumulative and the probative value was not outweighed by prejudice. The

trial court overruled the objection, stating that the State was putting on evidence

regarding the count for gross abuse of a corpse, and there had been “very few

photographs that would be duplicative.”

{¶26} Dr. Looman continued to testify to the injuries found on L.S.’s legs,

heels, and various areas of her face and head. Dr. Looman noted there was dirt on each

heel which was consistent with the body being dragged. Dr. Looman testified that, due

to the injuries on L.S.’s face and hemorrhaging in her eyes, she conducted a forensic

neck dissection to determine whether L.S. had been strangled. Photographs depicting

hemorrhaging of the muscle of L.S.’s throat, thyroid cartilage, and hyoid2 along with

diagrams of the human throat were introduced as Dr. Looman explained the process

of the forensic neck dissection. The photograph of L.S.’s throat showed trauma and

that the thyroid cartilage was broken. Autopsy photographs showing the examination

of L.S.’s head and exposure of her skull were introduced to help Dr. Looman explain

the blunt force trauma that L.S.’s head sustained prior to her death.

{¶27} Dr. Looman testified that the injuries that L.S. sustained showed that

she died due to asphyxia by strangulation. She explained that a strangling victim tends

2 The hyoid bone is a crescent-shaped bone at the front of the neck. Seehttps://my.clevelandclinic.org/health/body/hyoid-bone (accessed Oct. 20, 2025) [https://perma.cc/Y58D-8L86].

10 OHIO FIRST DISTRICT COURT OF APPEALS

to struggle with their assailant, including scratching them. Dr. Looman testified there

were signs that L.S. attempted to fight off her assailant, and that her fingernails were

cut to test for DNA. As discussed in more detail below, Dr. Looman also testified that

she performed a sexual-assault examination, swabbing different parts of L.S.’s body

and placing those swabs in a “sexual-assault kit” before washing the body off.

{¶28} Dr. Looman testified that the coroner’s lab was relocated from Eden

Avenue in Avondale to the city of Blue Ash. Dr. Looman further explained that in

preparation for that move, the untested sexual-assault kit was destroyed. Dr. Looman

added that she typically would not have the kit destroyed with a homicide case, and no

other evidence in this case was destroyed.

Jennifer Dillon’s Testimony

{¶29} Jennifer Dillon, a Cincinnati police criminalist, testified to conducting a

cell-phone analysis on Smothers’ and L.S.’s cell phones. She testified that the phone

records that she reviewed showed that neither phone was moved from the vicinity of

the Smotherses trailer overnight, prior to L.S.’s body being discovered.

Tracy Sundermeier’s Testimony

{¶30} Tracy Sundermeier, a forensic biologist with the Hamilton County crime

laboratory, recalled conducting DNA testing on swabs from blood found along the drag

marks in the snow, a purse strap, a black T-shirt, a pair of boots, blue jeans, a black

hooded sweatshirt, towels, swabs labeled to have been taken from Smothers, fingernail

clippings from L.S., and bodily fluids from L.S. and Smothers. She explained that the

blood found in the drag marks and on Smothers’ jeans and boots belonged to L.S., and

the blood on the black T-shirt belonged to Smothers.

C. The Hearing on Smothers’ Motion to Dismiss

{¶31} Smothers moved to dismiss the charges against him or, in the

11 OHIO FIRST DISTRICT COURT OF APPEALS

alternative, sanction the State’s failure to preserve the untested sexual-assault kit.3 He

argued that R.C. 2933.82 required the State to preserve the swabs for 30 years

following a conviction or as long as the “act” remains unresolved, and, the destruction

of the untested kit warranted dismissal of his charges or “other appropriate sanctions.”

Dr. Looman’s Testimony

{¶32} Dr. Looman testified that she conducted the sexual-assault examination

before L.S.’s body left the coroner’s office “out of an abundance of caution” that L.S.

could have been a victim of sexual homicide as her body was found nude. Dr. Looman

again testified that the autopsy revealed no signs of sexual assault—particularly, no

injuries to L.S.’s genitals. She testified that results from the swabs would not have

determined whether any sexual contact was consensual. Dr. Looman further testified

that only L.S.’s and Smothers’ DNA were found on L.S.’s body.

{¶33} Dr. Looman explained that swabs from the kit are stored and would

have been tested at the request of the police department or the State, but since there

was no request, the swabs were never tested. Dr. Looman further explained that the

coroner’s office needed to determine what materials did not need to go to the new

facility when the office moved.

{¶34} Dr. Looman testified that either the “evidence receiving” or “DNA”

department at the coroner’s office requested that the sexual-assault kit for L.S. be

destroyed. Dr. Looman explained that she reviewed Smothers’ case and, as it had been

pending for nearly three years and she had no indication from the police reports or the

State that sexual assault was alleged, the kit was destroyed in December 2020. Dr.

Looman testified that the kit was the only item that she permitted to be destroyed in

3 It is not readily apparent from the record whether he made an oral motion or if a clerical error

resulted in the motion not being entered on the docket.

12 OHIO FIRST DISTRICT COURT OF APPEALS

Smothers’ case.

{¶35} While Dr. Looman stated that authorizing the destruction of the kit was

a mistake, she also testified that any results from the test would be purely speculative

even if L.S. had engaged in sexual activity prior to her death.

Detective Hondorf’s Testimony

{¶36} Hondorf testified that he was present during the autopsy, the decision

to conduct a sexual-assault examination was the coroner’s decision, and he had not

asked that the sexual-assault kit be tested for DNA. He added that no one from the

police department requested that the kit be destroyed.

The Trial Court Denies Smothers’ Motion to Dismiss

{¶37} Defense counsel argued in closing that the sexual-assault kit was

destroyed in violation of R.C. 2933.82. Counsel asserted that the coroner failed to

provide the proper notifications, and the kit would not have been impractical to store.

Counsel initially expressed uncertainty that the evidence would have been exculpatory

but later stated it would have been exculpatory evidence if it showed that L.S. had

engaged in intercourse with someone other than Smothers prior to her death.

{¶38} The State countered that any evidence derived from testing the kit

would be purely speculative, and thus, not materially exculpatory but rather

potentially useful. The State added that there was no bad faith on Dr. Looman’s part;

citing Arizona v. Youngblood, 488 U.S. 51 (1988), the State asserted that Smothers

failed to show otherwise because Dr. Looman’s testimony that it was a mistake to

destroy the kit did not demonstrate bad faith, which requires dishonesty, conscious

wrongdoing, or an ulterior motive.

{¶39} The trial court stated that it “wholeheartedly” agreed with the State’s

position and denied Smothers’ motion to dismiss.

13 OHIO FIRST DISTRICT COURT OF APPEALS

D. The Trial Continues

{¶40} Hondorf testified that L.S.’s blood was found on Smothers’ jeans, left

boot, jacket, and the strap of the purse found in the Smotherses trailer. He further

testified that there were scratches on Smothers’ face when he was arrested and

Smothers’ DNA was found underneath L.S.’s fingernails. Hondorf recalled

participating in the search inside the dumpster that L.S. was found lying near, and that

the garbage bag matched those found inside of the Smotherses trailer.

{¶41} Hondorf stated that officers had no reason to believe that a sexual

assault took place. He testified that officers investigated R.P.–an alleged paramour of

L.S.–as a potential suspect in L.S.’s death but they found no evidence regarding R.P.

Smothers’ Testimony

{¶42} Smothers testified that L.S. scratched his face around 9:30 p.m. on New

Year’s Eve during a disagreement about Smothers’ father having the phone numbers

of the mothers of Smothers’ other children. Smothers asserted that L.S. scratched his

face because he laughed at her after she told his father that, unlike those women, she

“wasn’t going anywhere.” Smothers testified that L.S. then told him that she was going

to “drink all the alcohol” and have sex with someone else.

{¶43} Smothers testified that he had fallen asleep at 7:30 p.m., and L.S. was

sitting in the back bedroom of the trailer when he woke up at 9:30 p.m. He stated that

he asked L.S. to wake him up at 11:30 p.m. and then went back to sleep.

{¶44} Smothers testified that L.S. was supposed to wake him at 5:45 a.m. so

he could drive her to work, and he had plans to visit his father in Williamstown,

Kentucky. Smothers stated that he woke up at 3:00 a.m. and the front door of the

trailer was “standing wide open and the heater had been turned off.” He testified that

14 OHIO FIRST DISTRICT COURT OF APPEALS

he assumed that L.S. was in the back bedroom where the curtain was “closed all the

way” and that L.S. must have left the door open to “freez[e] [him] out.”

{¶45} Smothers testified that when he did not see L.S. in the back bedroom at

6:30 a.m. he figured she had gone to work. He testified that he saw her cell phone and

“started to go through” it. He stated that he saw messages between L.S. and her friend,

and L.S. stated that she was fed up with Smothers passing out and she was planning

on leaving to be with another man, so Smothers figured that was where she went.

{¶46} Smothers testified that the person dragging “something” in the footage

from the neighbor’s home-surveillance camera was a different person than shown in

the State’s four subsequent videos, but it was not him. On cross-examination,

Smothers testified that the person in the video appeared to be wearing a hoody, pants,

and “shoes of some kind” and “dragging” his wife but refuted that they were wearing

the same clothing as he was when he was arrested because the colors were “reversed.”

He conceded that the footage shows a person carrying a bag in the direction of the

dumpster, and the person looked directly at the camera. He agreed that the drag marks

found by police came from his trailer but contended that the marks started in the front

yard and L.S. was killed in the “general vicinity” of his trailer versus inside of it. He

asserted that he was asleep at the time the activity that was caught on video occurred.

{¶47} Smothers testified that, by the time the police arrived, he had “smoked

a joint” and had three shots of vodka so he wanted to “get away from” them as he had

previously been arrested while being intoxicated around the police. He testified that

Officer Bookman was putting up crime-scene tape when he asked if he could leave

because he needed to go to work. Smothers stated that he did not tell the police that

he really was going to visit his father because the police would be more likely to allow

him to leave if he had to go to work.

15 OHIO FIRST DISTRICT COURT OF APPEALS

{¶48} Smothers testified that he was halfway to his father’s house when he

realized L.S.’s phone was in his pocket, which was a “force of habit” because he had

disconnected his cell phone and only used her phone. He stated that he planned to

return to Sharonville to pick L.S. up from work around 2:00 p.m. or 3:00 p.m.

{¶49} Smothers testified that he was sitting on his father’s couch when the

Grant County sheriffs called him out of the house and arrested him. He stated that he

did not know why he was being arrested until he got to the sheriff’s office, and a deputy

told him there was a felony warrant from “another state” for abuse of a corpse. He

testified that he discovered that he was arrested for killing L.S. after he was placed in

a holding cell. Smothers repeatedly denied killing L.S. during his testimony.

The State Refers to Smothers as a Liar

{¶50} While cross-examining Smothers about his infidelity in his marriage

with L.S., the prosecutor stated that Smothers “quite frankly just cheated in almost

every relationship that [he] ever had.” The prosecutor asked, “You have lied over and

over and over to the most important people in your life; is that correct?” and “You lied

to [the police], hey, I’m going to work?” The prosecutor also stated that Smothers had

lied in his “most important relationships” to cheat, and, referring to the trial, that he

could not “think of a better time to lie . . . .” Smothers did not object to either statement.

Counsel Asserts that the State Violated Smothers’ Fifth Amendment Rights

{¶51} The following exchange also took place during cross-examination:

Q. Yesterday, sir, was the first time that anyone heard any of this

information that you gave us; isn’t that correct?

A. Other than my lawyers, yes.

Q. Right. Why didn’t you tell anybody about this stranger that killed

your wife sir?

16 OHIO FIRST DISTRICT COURT OF APPEALS

A. Because I didn’t know anything about the stranger that killed my wife

until I got the discovery. I didn’t even know my wife was dead until I got

arrested.

Q When you found out she was dead, why didn’t you share any of this

information?

A. Because I’m constitutionally protected to only have to speak to my

attorney.

Q. Don’t you want to find your wife’s killer, sir?

A. Absolutely.

Q. Don’t you think law enforcement’s job is to find [L.S.’] killer, sir?

A. I do believe it is.

Q. You want to help, correct?

A. I would help them if they came to me. Never once did law

enforcement try and re-interview me.

Q. They are not allowed to contact you.

{¶52} At sidebar, defense counsel asserted that being asked why he did not tell

law enforcement a stranger killed his wife violated Smothers’ right to remain silent

and moved for a mistrial. In response to the State’s argument that Smothers waived

his right to remain silent by taking the stand, defense counsel argued that Smothers’

right to remain silent upon his arrest is distinguishable from waiving this right by

testifying in his own defense. The trial court, while cautioning the State in its line of

questioning, concluded that, by bringing up the new theory that a stranger killed L.S.,

the State had the right to ask why Smothers did not share this information before.

The Jury Finds Smothers Guilty

{¶53} The jury found Smothers guilty on all six counts. The trial court merged

17 OHIO FIRST DISTRICT COURT OF APPEALS

the second count of murder and the felonious-assault count with the first count of

murder for sentencing purposes. Smothers was ordered to serve the sentence for

murder consecutively to the sentence for gross abuse of a corpse and serve the

sentences for both counts of tampering with evidence concurrently with the sentences

in the other counts, for an aggregate sentence of 16-years-to-life imprisonment with a

jail-time credit of 1,675 days.

E. Smothers’ Motion for a New Trial

{¶54} During the polling of the jury, juror T.L. made a statement to the effect

that she could see how the infrared feature on her own home-surveillance footage

affects the colors of objects. Smothers filed a motion for a new trial, alleging that T.L.

conducted an experiment that affected the outcome of the trial.

{¶55} The trial court held an evidentiary hearing on Smothers’ motion for a

{¶56} During the hearing, T.L. testified that, after deliberations, she had

discussed with some jurors that she was looking at camera footage on her cellular

phone from her Ring camera recordings and noticed the colors were different “on

infrared,” which she believed turns on at night. She stated it was not an experiment,

and that she looked at footage from the Ring camera from her phone all the time. T.L.

explained that she mentioned what she saw on her camera footage while the jurors

were talking to the attorneys, not while watching the video evidence or during

deliberations. She denied looking at the cameras just to see if “they reversed colors.”

{¶57} On cross-examination, T.L. clarified that the jury was waiting to be

called back into the courtroom to deliver the verdicts when she mentioned that she

had noticed that the colors were different in the footage of her cameras. T.L. testified

that the colors of the camera did not impact her conclusions of Smothers’ guilt, and

18 OHIO FIRST DISTRICT COURT OF APPEALS

the evidence she considered was Smothers’ possession of L.S.’s cell phone, Smothers’

version of his wife’s whereabouts, and the evidence found in the garbage bag with

L.S.’s soiled undergarments. She added that she was tasked with going through the

evidence which would point to Smothers’ innocence, but the other evidence showed

that he was guilty of murder.

{¶58} The other 11 jurors were also questioned during the hearing about T.L.’s

comments. Three of the other jurors stated that they were unaware of the comments

and all the remaining jurors denied that T.L.’s comments impacted their decision.

{¶59} The trial court found that Smothers was not prejudiced by the juror

misconduct as all 12 jurors testified that T.L.’s alleged experiment with an infrared

camera at home did not influence their decisions.

{¶60} This appeal followed.

II. Analysis

A. The Trial Court did not Err by Denying the Motion to Suppress

{¶61} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. The trial court—the trier of fact

at a suppression hearing—is in the best position to resolve questions of fact and

evaluate witness credibility. Id. A reviewing court must defer to the trial court’s factual

findings if competent, credible evidence exists to support them. Id.

{¶62} We review a trial court’s decision on a motion to suppress de novo. Id.;

State v. Calo-Jiminez, 2023-Ohio-2562, ¶ 27 (1st Dist.). We must accept the facts as

true and, without deference to the conclusion of the trial court, independently

determine whether the facts satisfy the applicable legal standard. Id.

The Automobile Exception

{¶63} The Fourth Amendment to the United States Constitution and Article I,

19 OHIO FIRST DISTRICT COURT OF APPEALS

Section 14 of the Ohio Constitution protects individuals against unreasonable searches

and seizures by the government where an individual has a reasonable expectation of

privacy. See State v. Evenson, 2022-Ohio-1336, ¶ 31 (1st Dist.) (The Fourth

Amendment to the United States Constitution protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.”); Smith v. Maryland, 442 U.S. 735, 740 (1979) (the application of the Fourth

Amendment depends on whether the person invoking its protection can claim a

justifiable, reasonable, legitimate expectation of privacy that has been invaded by

government action). An expectation of privacy exists where an individual has

manifested a subjective expectation of privacy and that expectation is one that society

recognizes as reasonable. State v. Barnes, 2017-Ohio-7284, ¶ 9 (3d Dist.); see Smith

at 740. While the Fourth Amendment does not specifically provide that unlawful

searches and seizures will result in the suppression of ill-gotten evidence, the United

States Supreme Court has held that the exclusion of evidence is an essential part of the

Fourth Amendment. Id.; see Mapp v. Ohio, 367 U.S. 643, 649 (1961).

{¶64} Smothers contests the seizure of his car from Grant County, Kentucky,

arguing that the affidavit that was signed by the judge failed to cite specific reasons

why the police believed Smothers’ car contained any evidence of the crime. This

argument is meritless as the bases stated in the affidavit were that L.S. was found

deceased, Sharonville police had previously been called to Smothers’ residence for a

domestic dispute, there were reports of “yelling and fighting” coming from the

Smotherses trailer followed by “a loud bang” hours before L.S.’s body was discovered,

there were drag marks and a trail of blood leading from the dumpster back to the

Smotherses trailer, and Smothers left the scene in his car, which could contain

evidence of L.S.’s murder.

20 OHIO FIRST DISTRICT COURT OF APPEALS

{¶65} Smothers also argues that the affidavit contained a materially false

statement because it stated that his car was at the Sharonville Police Department when

the judge signed the warrant while his car was actually in Grant County, Kentucky. The

trial court, however, determined that Smothers’ car was searched pursuant to the

automobile exception to the search-warrant requirement, not the search warrant.

{¶66} Under the automobile exception to the warrant requirement, officers

may search a vehicle without obtaining a warrant when they have probable cause to

believe the vehicle contains evidence of illegal activity. State v. Jackson, 2022-Ohio-

4365, ¶ 28. Probable cause is “a belief, reasonably arising out of circumstances known

to the seizing officer, that an automobile or other vehicle contains that which by law is

subject to seizure and destruction.” State v. Turner, 2016-Ohio-7983, ¶ 24 (2d Dist.),

quoting State v. Kessler, 53 Ohio St.2d 204, 208 (1978). An automobile may be seized

from private property and searched. See State v. Parsons, 2017-Ohio-1315, ¶ 25 (3d

Dist.); State v. Miller, 2007-Ohio-6909, ¶ 19 (4th Dist.); United States v. Graham, 275

F.3d 490, 509 (6th Cir. 2001).

{¶67} While courts have historically held that the legality of a search

conducted under the automobile exception turns on the mobility of the vehicle, see

Turner at ¶ 22; Parsons at ¶26, 28; Graham at 509, recent holdings reflect that

mobility is no longer a factor. The Sixth Circuit recently held:

Where probable cause exists, ‘officers may conduct a warrantless search

of the vehicle, even after it has been impounded and is in police custody.’

Michigan v. Thomas, 458 U.S. 259, 261 . . . (1982) (per curiam). ‘There

is no requirement that the warrantless search of a vehicle occur

contemporaneously with its lawful seizure.’ United States v. Johns, 469

U.S. 478, 484 . . . (1985). ‘[N]or does it depend upon a reviewing court’s

21 OHIO FIRST DISTRICT COURT OF APPEALS

assessment of the likelihood . . . that the car would have been driven

away, or that its contents would have been tampered with, during the

period required for the police to obtain a warrant.’ Thomas, 458 U.S. at

261. Only probable cause is required because ‘the “automobile

exception” has no separate exigency requirement.’ Maryland v. Dyson,

527 U.S. 465, 466-67 . . . (1999).

United States v. Vance, 2021 U.S. App. LEXIS 33034, *12-13 (6th Cir. Nov. 4, 2021),

quoting California v. Acevedo, 500 U.S. 565, 579-580 (1991); see State v. Warnick,

2020-Ohio-4240, ¶ 30 (2d Dist.), quoting State v. Russell, 2004-Ohio-1700, ¶ 34 (2d

Dist.) (Generally, “[t]he immobilization of the vehicle or low probability of its being

moved or evidence being destroyed does not remove the officers’ justification to

conduct a search pursuant to the automobile exception.”); In re L.S., 2016-Ohio-5582,

¶ 10 (1st Dist.) (An inventory search of a lawfully-impounded vehicle is an exception

to the general prohibition against warrantless searches; constitutionally, there is no

difference between seizing and holding a vehicle while waiting for a search warrant

and immediately searching the vehicle, so long as probable cause exists.).

Probable Cause Existed to Search Smothers’ Car

{¶68} Probable cause was evident from the facts and as reflected in the

affidavit for the search warrant. Further, yellowish fluid was found near the steps of

the Smotherses trailer, surveillance footage from a neighbor depicted someone

dragging “something heavy” from the Smotherses lot, and a trash bag was recovered

from the dumpster containing L.S.’s soiled underwear and Smothers’ mail. There was

probable cause to believe that the car contained evidence related to L.S.’s murder, as

police suspected that Smothers was the person dragging the body on the neighbor’s

surveillance video and he had left the scene in his car.

22 OHIO FIRST DISTRICT COURT OF APPEALS

{¶69} The Grant County Sheriff’s Office received the broadcast from

Sharonville police to be on the lookout for Smothers and his car, which was potentially

at his father’s address. That, coupled with the NCIC warrant, involved the Grant

County Sheriff’s Office in a common investigation with the Sharonville police. Thus,

the seizure did not run afoul of the Fourteenth Amendment because police are

permitted to rely on the collective knowledge of officers in a common investigation to

establish probable cause for a stop and arrest. State v. Fisher, 2024-Ohio-3164, ¶ 18

(1st Dist.).

{¶70} As the trial court found that the search was legal under the automobile

exception and we agree, we decline to address the validity of the search warrant.

Accordingly, the trial court did not err by overruling Smothers’ motion to suppress.

Smothers’ first assignment of error is overruled.

B. The State’s Comments did not Amount to Prosecutorial Misconduct

{¶71} In determining whether prosecutorial misconduct has occurred, the test

is whether (1) the prosecutor’s remarks were improper, and, if so, (2) “whether they

prejudicially affected the accused’s substantial rights.” State v. Howard, 2014-Ohio-

655, ¶ 31 (1st Dist.), quoting State v. Jones, 2012-Ohio-5677, ¶ 200. The test gauges

the fairness of the trial versus the culpability of the prosecutor. State v. Godfrey, 2025-

Ohio-1575, ¶ 20 (1st Dist.); see Jones at ¶ 200. Prosecutorial misconduct only creates

reversible error when it deprives the defendant of a fair trial. Godfrey at ¶ 20; see State

v. Knuff, 2024-Ohio-902, ¶ 238, quoting United States v. Hasting, 461 U.S. 499, 511-

512 (1983) (new trial unwarranted despite prosecutor’s improper argument because

of “overwhelming evidence of guilt and the inconsistency of the scanty evidence

tendered by the defendants”). The remarks must be evaluated in the context of the

entire trial rather than individually. Godfrey at ¶ 20. Under this test, defendant must

23 OHIO FIRST DISTRICT COURT OF APPEALS

demonstrate that there is a reasonable probability that, but for the prosecutor’s

misconduct, the outcome of the proceedings would have been different. See id.

Referring to Smothers as a Liar

{¶72} Smothers argues that the State made inflammatory comments during

cross-examination and closing arguments and shifted the burden of proof to Smothers

by calling him a liar and implying that defense counsel concealed facts. As Smothers

failed to object to the State’s references to him as a liar, this issue is reviewed for plain

error. Plain error does not exist unless it can be said that but for the error, the outcome

of the trial would clearly have been otherwise. State v. Grubbs, 2025-Ohio-2756, ¶ 60

{¶73} Smothers cites to State v. Hall, 2019-Ohio-2985 (1st Dist.), in which this

court held that prosecutors must not vouch for the credibility of the witnesses or

express a personal opinion as to the guilt of the accused, and the prosecutor’s

references to the defendant as a “wolf” and “predator” without physical evidence

prejudiced the jury against the defendant. Id. at ¶ 29-39. The instant case, however, is

distinguishable from Hall.

{¶74} Although prosecutors may not state their personal beliefs regarding

guilt and credibility, they may characterize a witness as a liar, or claim the witness lied,

if the evidence reasonably supports that characterization. Grubbs at ¶ 83. The State

calling Smothers a liar was supported by the evidence. Smothers admitted that he lied

when he cheated on his previous wives and L.S., and when he told the police that he

was going to work when he left his trailer when his true intention was to drive to his

father’s house in Williamstown, Kentucky. As discussed below, Smothers’ conviction

is supported by the remaining evidence. The characterization as a liar, therefore, did

not the outcome of the trial.

24 OHIO FIRST DISTRICT COURT OF APPEALS

Smothers’ Newly-Raised Theory at Trial that a Stranger Killed L.S.

{¶75} Smothers asserts he was prejudiced by the line of questioning regarding

his assertion that a stranger killed L.S., and the trial court’s failure to rule on Smothers’

motion for a mistrial prejudiced him by shifting the burden of proof to him. Smothers

objected to the State’s questions concerning Smothers’ assertion that a stranger killed

L.S., but the trial court allowed cross-examination to proceed after cautioning the

State it was “treading” a “delicate line.”

{¶76} In Knuff, the Ohio Supreme Court found a number of the prosecutor’s

comments to be improper, but ultimately determined that, except for a statement that

was objected to, which was sustained, the comments were harmless beyond a

reasonable doubt because “the overwhelming evidence of Knuff’s guilt” was such that

even if the comments had not been made, it was “clear beyond a reasonable doubt that

the jury would have returned a verdict of guilty.” Knuff, 2024-Ohio-902, at ¶ 246-247.

Post-Arrest Silence can be Used for Impeachment

{¶77} The State argues that Smothers’ post-arrest silence—his failure to assert

the theory that a stranger killed his wife—could be used to impeach his version of the

events since he testified in his own defense. The State’s argument has merit. Ohio

courts have consistently held that while prearrest silence may not be used as

substantive evidence of guilt, it can be used to impeach a defendant’s testimony at trial

because it “furthers the truth-seeking process.” State v. Leach, 2004-Ohio-2147, ¶ 33;

State v. Slusarczyk, 2024-Ohio-4790, ¶ 30 (8th Dist.); State v. Hodge, 2022-Ohio-

1780, ¶ 32 (2d Dist.). Here, there is no indication that the State’s use of Smothers’ post-

arrest silence to impeach his testimony on a new defense theory prejudiced Smothers.

The State’s Closing Arguments

{¶78} The State’s remarks during closing arguments are also reviewed for

25 OHIO FIRST DISTRICT COURT OF APPEALS

plain error as Smothers failed to object to the State’s comments that (1) Smothers

“fooled” the jury by testifying that he was going through L.S.’s phone “while going to

the toilet,” (2) Smothers had four years to “concoct a story and come up with

something plausible” that someone else killed L.S., and (3) defense counsel’s assertion

that there was evidence that should have been tested did not explain L.S.’s blood being

on the green towel and Smothers’ clothing. Smothers asserts these comments were

improper and improperly shifted the burden of proof to Smothers because it implied

that Smothers and his counsel were not being truthful.

{¶79} In State v. Truesdell, 2024-Ohio-5376 (1st Dist.), the appellant took

issue with the prosecutor’s statement:

Man, the way you hear [defense counsel] talk, I’d have to prove this pool

actually existed or that he went to a specific casino. That’s defense

smoke and mirrors . . . That’s why I want you to pay attention to the

evidence. Don’t pay attention to anything else that’s a red herring . . .

Because the defense wants you to believe [G.M.’s] own messed up

timeline . . . .

Id. at ¶ 41. This court held that the prosecutor’s statements were made in response to

defense counsel’s argument and were based on the evidence. Id.

{¶80} The same reasoning applies here. The prosecutor made the comments

to refute Smothers’ assertion that the State’s evidence did not support a finding that

he killed L.S., or his assertion that a stranger killed her. The prosecutor’s comments

that the defense was concocting a story and questioning the untested sexual-assault

kit in the face of the remaining evidence were also made to refute Smothers’ theory of

defense. The prosecutor’s comments, therefore, were based on the evidence and did

not amount to prosecutorial misconduct. Further, Smothers fails to show how the

26 OHIO FIRST DISTRICT COURT OF APPEALS

comments shifted the burden of proof to him, or that he would not have been convicted

if the prosecutor had not made the comments. Additionally, the trial court instructed

the jury that closing arguments are not evidence.

{¶81} Smothers’ second assignment of error is overruled.

C. The Autopsy Photographs

{¶82} Smothers asserts that the trial court abused its discretion by admitting

inflammatory, gruesome, repetitive, and cumulative photographs of L.S., and that it

unfairly inflamed the passions of the jury. The State counters that the photographs

that were admitted illustrated the coroner’s testimony about the condition of L.S.’s

body and depicted the cause of death. It further argues that Smothers has not

demonstrated undue prejudice.

{¶83} The admission or exclusion of evidence is generally committed to the

sound discretion of the trial court. State v. Miller, 2002-Ohio-3296, ¶ 13-15 (1st Dist.).

Gruesome photographs are admissible at trial if their probative value outweighs the

danger that the accused will be unfairly prejudiced. Id.

{¶84} Under Evid.R. 403, a trial court must reject an otherwise admissible

photograph where its probative value is substantially outweighed by the danger of

unfair prejudice, and the trial court may reject an otherwise admissible photograph

where its probative value is substantially outweighed by its cumulative nature. A

photograph is not inadmissible merely because it is gruesome. Knuff, 2024-Ohio-902,

at ¶ 172, quoting State v. Kirkland, 2020-Ohio-4079, ¶ 101, quoting State v. Maurer,

15 Ohio St.3d 239 (1984). (“Properly authenticated photographs, even if gruesome, are

admissible in a [prosecution] if relevant and of probative value in assisting the trier of

fact to determine the issues or are illustrative of testimony and other evidence, as long

as the danger of material prejudice to a defendant is outweighed by their probative

27 OHIO FIRST DISTRICT COURT OF APPEALS

value and the photographs are not repetitive or cumulative in number.”).

{¶85} In Knuff, the trial court admitted 51 photographs the defense

considered to be gruesome because it showed the deterioration of the victims’ bodies.

Knuff at ¶ 174. The Court disagreed because the fact of decomposition was relevant to

the coroner’s findings. Id. The Court, concluding that the photographs illustrated the

medical examiner’s testimony, documented her handling of the bodies, and showed

the victims’ numerous stab wounds, held that the fact of decomposition was relevant

to the coroner’s findings. Id. The Court determined that the photographs were not

repetitive or cumulative as each were depicted twice to show the location of each

wound with a close-up to show the characteristics of the wounds, and both bodies were

photographed from several different angles. Id. at ¶ 175. The Court held that each

photograph possessed unique probative value, thus, the trial court did not abuse its

discretion in deciding that the admission of the photographs did not materially

prejudice appellant. Id. at ¶ 176.

{¶86} Here, the State offered approximately 48 photos of L.S.’s autopsy during

Dr. Looman’s testimony, which was offered to support the elements of murder and

gross abuse of a corpse. Like in Knuff, the photographs were not inadmissible simply

because they were gruesome, nor were they cumulative or repetitive where multiple

photographs of the same area of L.S.’s body showed different injuries to those areas.

The photographs depicting postmortem injuries were introduced to show that those

injuries were caused by dragging her body through the snow after she died, and that

her body later froze solid due to weather conditions. Some of the photographs were

introduced to show that the body had been thawed so the autopsy could be performed.

Smothers’ argument is meritless as each photograph was presented to corroborate Dr.

Looman’s testimony that L.S. suffered multiple injuries due to being beaten from head

28 OHIO FIRST DISTRICT COURT OF APPEALS

to toe and strangled to death.

{¶87} The trial admission of the photographs, therefore, was not arbitrary,

unreasonable, or unconscionable. As Smothers failed to show the trial court abused its

discretion in admitting the photographs, his third assignment of error is overruled.

D. Sufficiency and Manifest Weight

{¶88} Smothers argues his convictions for murder, gross abuse of a corpse,

and tampering with evidence were based on insufficient evidence. While not explicitly

stated in this assignment of error, Smothers also argues that his convictions should be

overturned as they are contrary to the manifest weight of the evidence.

Smothers’ Convictions were Supported by Sufficient Evidence.

{¶89} A challenge to the sufficiency of the evidence tasks the reviewing court

with determining whether the State satisfied its burden of production. State v. Harper,

2025-Ohio-2059, ¶ 12 (1st Dist.). To determine whether a conviction is supported by

sufficient evidence, we “assess whether, construing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the necessary

elements of a given crime to have been proved beyond a reasonable doubt.” State v.

Rodriguez, 2024-Ohio-5832, ¶ 8 (1st Dist.).

{¶90} Circumstantial evidence and direct evidence inherently possess the

same probative value and therefore should be subjected to the same standard of proof.

State v. Robinson, 2023-Ohio-2312, ¶ 19 (1st Dist.). Direct evidence exists when a

witness testifies about a matter within the witness’ personal knowledge such that the

trier of fact is not required to draw an inference from the evidence to the proposition

that it is offered to establish. State v. Jones, 2024-Ohio-1987, ¶ 24 (8th Dist.). In

contrast, circumstantial evidence requires the drawing of inferences that are

reasonably permitted by the evidence. Id. Circumstantial evidence is the proof of facts

29 OHIO FIRST DISTRICT COURT OF APPEALS

by direct evidence from which the trier of fact may infer or derive by reasoning other

facts in accordance with the common experience of mankind. Id. Circumstantial

evidence is sufficient to sustain a conviction if that evidence would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. Robinson at ¶ 19.

{¶91} Smothers was convicted of murder, gross abuse of a corpse, and

tampering with evidence. To prove murder, the state had to show that Smothers

purposely caused L.S.’s death. R.C. 2903.02(A). To prove gross abuse of a corpse, the

State had to show that Smothers treated L.S.’s corpse in a way that would outrage

reasonable community sensibilities. R.C. 2927.01(B). To prove tampering with

evidence, the State had to show that Smothers altered, destroyed, concealed, or

removed any items related to the crime “with purpose to impair its value or availability

as evidence” knowing that an investigation was in progress. R.C. 2921.12(A)(1).

{¶92} In determining who strangled L.S. to death, the evidence consisted of

Smothers’ blood on L.S.’s purse, Smothers having fresh scratches on his face when he

was arrested, his DNA found under L.S.’s fingernails, and L.S.’s blood that was found

on the pants and boots Smothers was wearing when he was arrested—which matched

the boot prints in the drag marks in the snow. The jacket Smothers was wearing when

he was arrested resembled the jacket worn by the figure in the neighbor’s surveillance

video and L.S.’s blood was found on it. Phone records indicated the neither Smothers

nor L.S.’s phones had been moved from the lot overnight, which is evidence that

neither of them left the trailer while L.S. was still alive and refutes Smothers’

suggestion that L.S. went to be with R.P. at any point that night.

{¶93} The coroner testified that the antemortem injuries showed that L.S. died

by strangulation after being beaten, and the postmortem marks and tracks in the snow

leading from the Smotherses trailer lot to the dumpster showed that L.S. was dragged

30 OHIO FIRST DISTRICT COURT OF APPEALS

to the dumpster from where the Smotherses lived. A neighbor’s video captured a figure

dragging what Smothers conceded was L.S.’s body between the Smotherses lot and the

dumpster prior to it being discovered. Dragging a deceased person and leaving her

naked, beaten, and bloodied body in a place where it is easily discoverable—by her

neighbors no less—is certainly enough to outrage reasonable community sensibilities.

{¶94} A white trash bag matching those found in the Smothers’ trailer

containing the Smotherses mail and L.S.’s soiled underwear was found in the

dumpster. L.S.’s cell phone was found in Smothers’ car along with towels that had

L.S.’s blood on them. Coupled with the other evidence, it is sufficient to show that

Smothers tampered with evidence related to L.S.’s murder.

{¶95} The State, therefore, presented sufficient evidence to prove that

Smothers was guilty of murder, gross abuse of a corpse, and tampering with evidence

beyond a reasonable doubt.

Smothers’ Convictions Were Not Against the Manifest Weight of the Evidence

{¶96} When applying the manifest-weight standard of review, a reviewing

court reviews the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the finder of fact clearly lost its way and created such a manifest

miscarriage of justice that the judgment must be reversed, and a new trial ordered.

State v. Champion, 2021-Ohio-4002, ¶ 14 (1st Dist.), citing State v. Thompkins, 78

Ohio St.3d 380, 387 (1997).

{¶97} “A manifest-weight-of-the-evidence argument challenges the

believability of the evidence.” State v. Strietelmeier, 2022-Ohio-2370, ¶ 7 (1st Dist.),

quoting State v. Staley, 2021-Ohio-3086, ¶ 10 (1st Dist.). It concerns the plaintiff's

31 OHIO FIRST DISTRICT COURT OF APPEALS

burden of persuasion. State v. Brown, 2025-Ohio-2351, ¶ 17 (1st Dist.). The trier of

fact is in the best position to judge the credibility of the witnesses; thus, we afford

substantial deference to the trier of fact’s credibility determinations. Id.

{¶98} A conviction may only be reversed under a manifest-weight review in

exceptional cases where the evidence weighs heavily against the conviction. Id. A

conviction is not against the manifest weight of the evidence simply because the fact

finder believed the prosecution testimony. Id. Thus, a defendant is not entitled to a

reversal on manifest-weight grounds merely because inconsistent evidence was

presented at trial; the trier of fact is free to believe some, all, or none of any witnesses’

testimony. State v. Ridley, 2022-Ohio-2561, ¶ 25 (1st Dist.).

{¶99} The only evidence Smothers offered to refute the State’s physical and

testimonial evidence was his own testimony painting his version of the events. It was

the jury’s prerogative to believe the State’s physical and testimonial evidence and

disbelieve Smothers’ testimony, particularly that a stranger killed L.S.

{¶100} Smothers’ fourth assignment of error is overruled.

E. The Sexual-Assault Kit

{¶101} Smothers argues that the trial court abused its discretion by denying his

motion to dismiss the case based on Brady violations, including the State’s failure to

preserve and disclose the existence and destruction of the victim’s sexual-assault kit,

which could have been exculpatory evidence in the murder case.

Due Process, the Fourteenth Amendment, and Brady v. Maryland

{¶102} The Due Process Clause of the Fourteenth Amendment to the United

States Constitution protects a criminal defendant from being convicted when the

government fails to preserve materially exculpatory evidence or when it destroys

evidence in bad faith that is potentially useful to the defense. State v. Palmer, 2023-

32 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio-1554, ¶ 9 (1st Dist.); State v. Brown, 2019-Ohio-1615, ¶ 10 (1st Dist.).

{¶103} A Brady violation occurs when the State fails to disclose evidence

materially favorable to the accused. State v. Bevins, 2006-Ohio-6974, ¶ 47. Evidence

suppressed by the State is material within the meaning of Brady only if a reasonable

probability exists that the result of the trial would have been different had the evidence

been disclosed to the defense. Id. “The mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the outcome of the

trial, does not establish ‘materiality’ in the constitutional sense.” Id. A due-process

violation does not result from the State’s failure to preserve evidence “of which no

more could be said than that it could have been subjected to tests, the results of which

might have exonerated the defendant.” Id. at ¶ 48.

Exculpatory Evidence

{¶104} Evidence is materially exculpatory if it (1) “possesses ‘an exculpatory

value that was apparent before the evidence was destroyed’” and (2) is “‘of such a

nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means.’” Palmer at ¶ 10, quoting State v. Powell, 2012-Ohio-

2577, ¶ 74, quoting California v. Trombetta, 467 U.S. 479, 489, (1984). “The

possibility that [evidentiary material] could have exculpated [the defendant]

if preserved or tested is not enough to satisfy the standard of constitutional

materiality.” Id., quoting Youngblood, 488 U.S. at 56.

{¶105} Materially exculpatory evidence can include evidence that has an

exculpatory value solely because of its tendency to impeach the credibility of a

government witness. Id. at ¶ 11; see United States v. Bagley, 473 U.S. 667, 676 (1985);

Strickler v. Greene, 527 U.S. 263, 280-282 (1999). Generally, the defendant bears the

burden to show that the evidence was materially exculpatory. Id. at ¶ 12; Powell at ¶

33 OHIO FIRST DISTRICT COURT OF APPEALS

74; Brown, 2019-Ohio-1615, at ¶ 12 (1st Dist.).

{¶106} However, this court has previously held that the burden shifts to the to

the State show the evidence was “solely inculpatory” if the defendant requests

preservation of the evidence and the State subsequently fails to preserve it. Id.; see

Brown at ¶ 12.

Potentially-Useful Evidence

{¶107} If the missing evidence is not materially exculpatory, but “potentially

useful,” then a different rule applies. Brown at ¶ 15, quoting Powell, 2012-Ohio-2577,

at ¶ 77. Unless a criminal defendant can show bad faith on the part of the police, failure

to preserve potentially useful evidence does not constitute a denial of due process of

law. Youngblood, 488 U.S. at 58. “The term bad faith generally implies something

more than bad judgment or negligence.” (Internal citations and quotations omitted.)

Powell at ¶ 81. “It imports a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior motive or ill will partaking

of the nature of fraud.” Id. “It also embraces actual intent to mislead or deceive

another.” Id.

{¶108} An appellate court reviews a trial court’s decision on a motion to dismiss

to determine whether the State failed to preserve materially exculpatory evidence or

destroyed potentially useful evidence in bad faith de novo. Brown, 2019-Ohio-1615, at

¶ 9 (1st Dist.). “Bad faith” suggests actions based on more than bad judgment or

negligence. State v. Nicholson, 2024-Ohio-604, ¶ 118. In Nicholson, the Ohio Supreme

Court stated that it had “never held that bad faith can be inferred based simply on the

state’s failure to preserve potentially useful evidence.” Id. at ¶ 119.

{¶109} Smothers argues that this court’s holding in State v. Green, 2024-Ohio-

3260 (1st Dist.), supports his proposition that the destruction of the sexual-assault kit

34 OHIO FIRST DISTRICT COURT OF APPEALS

undermines confidence in Smothers’ murder conviction and creates a reasonable

probability of acquittal had it been properly disclosed. In Green, this court held that

the disclosure of the police department’s incident report, which only referenced the

recorded statement of a witness, did not give sufficient notice because the summary of

the recording failed to sufficiently apprise the defense that it revealed that the witness

and appellant had work-related issues, which would serve to impeach the witness’

testimony at trial. Id. at ¶ 23, 26-29. This court held that the State unlawfully withheld

the recording where it is required to disclose material evidence in its possession that

is favorable to the defense. Id. at ¶ 30-31.

{¶110} Although Smothers filed a request to preserve evidence and requested

that exculpatory evidence be turned over to him, he has not shown that the results

from the untested sexual-assault kit had exculpatory value that was apparent before

the evidence was destroyed. Smothers’ theory that the untested kit was exculpatory

was a mere possibility and therefore, not enough to satisfy the standard of

constitutional materiality. In other words, ascertaining whether L.S. had another

sexual partner has no apparent exculpatory value, and, as Smothers knew this other

alleged sexual partner by name, he could have obtained comparable evidence by other

reasonably available means. Further, the testimonial evidence confirmed that the

police investigated other potential suspects, but there was no evidence tying any other

persons to the crime.

The Untested Kit Would Have Been Potentially Useful, Not Exculpatory

{¶111} Dr. Looman testified that it is common for a strangulated victim to fight

with their assailant, including scratching to fend off the assailant. The only DNA found

on L.S.’s body belonged to her and Smothers, and the lab results revealed that only his

DNA was under her fingernails. The testimonial evidence revealed that L.S. struggled

35 OHIO FIRST DISTRICT COURT OF APPEALS

with her assailant, and Smothers had “fresh” scratch marks on his face when he was

arrested—the same day L.S.’s body was discovered. As the State argues, and as Dr.

Looman testified, any information from the DNA kit would be speculative; even if DNA

were found to show she had sexual relations with someone else, Smothers fails to show

how that would impeach Dr. Looman’s testimony.

{¶112} The destroyed sexual-assault kit fits the “potentially useful” category.

Dr. Looman testified she only collected samples for the sexual-assault kit as a

precaution due to the undressed state of the body and because she would not be able

to collect samples once the body left the coroner’s office. The autopsy revealed,

however, that L.S. had not been sexually assaulted. Dr. Looman admitted that

destroying the kit was a “mistake,” which is akin to “bad judgment” or “negligence.”

Notwithstanding statutory requirements or in-house policies governing the

maintenance of such kits, Dr. Looman testified that she did not know Smothers or L.S.

personally, the sexual-assault kit was destroyed solely for storage reasons as the office

was moving to a new location, and she acted unilaterally and did not notify the

prosecutor or the police that she was destroying the kit. Smothers, therefore, failed to

show the coroner destroyed the sexual-assault kit in bad faith; he provided no evidence

of “dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty

through some ulterior motive or ill will partaking of the nature of fraud.”

{¶113} The instant case, therefore, is distinguishable from Green. The State did

not knowingly withhold evidence in its possession that could be favorable to Smothers’

defense. Whether results of the untested kit would be favorable to Smothers’ defense

is purely speculative. Ultimately, Smothers failed to show that his due-process rights

were violated by the destruction of potentially-useful evidence.

{¶114} Smothers’ fifth assignment of error is overruled.

36 OHIO FIRST DISTRICT COURT OF APPEALS

F. Adverse-Inference Instruction

{¶115} Smothers argues that the trial court erred by not giving his proposed

adverse-inference jury instruction regarding the State’s destruction and nontesting of

the sexual-assault kit. A trial court must give the defendant’s requested instructions to

the jury if they are correct, pertinent statements of law and are appropriate under the

facts of the case. State v. Houston, 2020-Ohio-5421, ¶ 34 (1st Dist.). Such an

instruction is provided where there is a showing of the other party’s malfeasance or

gross neglect. State v. O.E.P.-T., 2023-Ohio-2035, ¶ 90 (10th Dist.); see Crim.R.

30(A).

{¶116} We review a trial court’s decision granting or denying a defendant’s

proposed jury instruction for an abuse of discretion. Id. A reviewing court will not

reverse a criminal conviction due to jury instructions unless the defendant was

prejudiced. State v. Standifer, 2012-Ohio-3132, ¶ 53 (12th Dist.).

{¶117} Smothers asserted that the destruction of the sexual-assault kit during

the pendency of the case was gross negligence and requested that the trial court

instruct the jury pursuant to Crim.R. 30(A). Smothers asserted that the destruction of

the kit was intentional, and an adverse instruction could permit the jury to draw an

inference unfavorable to the State, which had control of the evidence.

{¶118} While addressing Smothers’ proposed jury instruction at sidebar, the

trial court raised the fact that Smothers’ first two teams of attorneys sought the

strangulation kit—but not the sexual-assault kit—based on the initial defense theory

that while Smothers “did indeed strangle” L.S., it occurred by accident while the couple

was having sex. The court highlighted that, pursuant to that theory, Smothers sought

expert testimony based on the strangulation kit and asserted that he was entitled to a

not-guilty verdict based on his initial defense theory. The court pointed to the fact that

37 OHIO FIRST DISTRICT COURT OF APPEALS

Smothers, however, did not seek a sexual-assault kit, which was available at the time

he requested the strangulation kit. As the court reiterated, “at no time was the rape kit

zeroed in” between 2018 and 2020 as the trial was pending. The court noted that the

defense theory changed with the change of counsel, and it “realized [that] theories

change,” but it could not find malfeasance or gross neglect regarding the destruction

of the sexual-assault kit.4

{¶119} Here, the State provided a satisfactory explanation for the destruction

of the kit—it was due to the need for storage space where there was no allegation of

sexual assault. There is no dispute that R.C. 2933.82 requires evidence in criminal

cases to be stored until either the case is resolved or 30 years following a conviction,

and the coroner’s policy that the evidence remains stored in case a defendant is

granted a new trial. The trial court finding, however, that there was no malfeasance or

gross neglect was supported by Dr. Looman’s testimony that the decision was a

mistake and was based on storage purposes versus some malicious intent to affect

Smothers’ defense. Even if the trial court erred by rejecting Smothers’ proposed jury

instruction, Smothers fails to show how the results of a test of the sexual-assault kit

would have changed the outcome of the trial. Smothers’ sixth assignment of error is

overruled.

G. Juror Misconduct

{¶120} Smothers argues that the trial court abused its discretion by overruling

his motion for a new trial based on juror misconduct. He asserts that he demonstrated

that he was presumptively prejudiced by juror misconduct that occurred during

deliberations and, therefore, was entitled to a new trial.

4 Of note, the court also denied the State’s request for a flight instruction regarding Smothers

traveling to his father’s home.

38 OHIO FIRST DISTRICT COURT OF APPEALS

{¶121} When reviewing a motion for a new trial based on juror misconduct, an

appellate court must conduct a two-tier analysis: (1) determine whether there was

juror misconduct and (2) if juror misconduct is found, determine whether it materially

affected the defendant’s substantial rights. State v. McGail, 2021-Ohio-231, ¶ 27 (2d

Dist.). The burden is on the party alleging juror misconduct to establish prejudice.

State v. Adams, 2004-Ohio-5845, ¶ 42. The Adams Court stated, “We have repeatedly

rejected [the proposition that all juror misconduct is rebuttably presumed to be

prejudicial] and have held that a reviewing court will not reverse a judgment based on

juror misconduct unless the complaining party demonstrates prejudice.” Id. at ¶ 195.

{¶122} A trial court may rely on a juror’s testimony in determining whether

juror misconduct affected their impartiality. State v. Dukes, 2019-Ohio-2893, ¶ 19 (9th

Dist.). A trial court is entitled to believe or disbelieve all or part of the jurors’

statements in determining whether there was juror misconduct. Id.

{¶123} Here, the misconduct regarded a juror’s statement to other jurors that

she saw that the colors of objects were inverse on her own surveillance camera. Each

juror—except for the three jurors who testified that they were unaware of any

experiment—testified that his or her findings were not based on that statement. Some

testified that the issue of the infrared camera’s effect on colors was discussed and

resolved before the juror made the comment. The trial court was entitled to believe the

jurors’ testimonies. It based its decision to overrule Smothers’ motion for a new trial

on each juror’s testimony. Smothers, therefore, failed to meet his burden to show the

alleged misconduct was prejudicial.

{¶124} Smothers’ seventh assignment of error is overruled.

III. Conclusion

{¶125} We affirm the trial court’s judgment.

39 OHIO FIRST DISTRICT COURT OF APPEALS

Judgment affirmed.

ZAYAS, P.J., and NESTOR, J., concur.