A 58-year-old Mansfield man sentenced last year to 64 years to life in prison in a child rape case will get a new trial.
Bret Smith was found guilty at the end of a seven-day trial on three counts of rape and two counts of gross sexual imposition.
But the Fifth District Court of Appeals ruled he should get a new trial, saying the judge should not have allowed the jury to hear that Smith retained an attorney before he was arrested, that the attorney told detectives on the case that any requests to speak to Smith should go through him and no attorney representing Smith ever provided a statement about the facts of the case.
As a defendant, Smith has a right to remain silent.
“The state did, in our view, use Smith’s silence and his invocation of his right to counsel as substantive evidence,” the court of appeals wrote in its 21-page ruling.
Richland County Common Pleas Judge Phil Naumoff presided over the case. Former Assistant Prosecutor Chris Brown represented the state, while Jerry Thompson was the defense attorney.
“The state may not use a defendant’s silence to lead the jury to the conclusion that innocent people speak to the police to clear up misunderstandings, while guilty people consult with their attorneys,” judges wrote.
The accusers in the case were two teenage girls, with the rape charges related to the younger girl and the gross sexual impositions charges tied to the older girl.
Prosecutors allege the rape involved digital penetration of the younger girl’s vagina. The gross sexual imposition charges allege improper touching of the older girl.
Further, the court of appeals ruled there was not enough evidence to prove gross sexual imposition and threw out the charges. The older girl testified at the trial.
“Though (alleged victim) was one of the state’s witnesses at the trial, her testimony was not helpful to the state’s case,” the ruling noted. “When reviewing the sufficiency of the evidence, the appellate court does not ask whether the evidence should be believed but, rather, whether the evidence ‘if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.”’
The court of appeals concluded that the older girl’s testimony could not support either gross sexual imposition conviction.
“Her testimony supplied no evidence from which a rational juror could conclude that her will was overcome by fear or duress,” judges wrote. “She described a single touch of her buttocks and characterized it as accidental.”
Because of the reversal, those two counts were “effectively an acquittal, retrial is prohibited by double jeopardy.”
As a result, Smith will face three counts of rape at his July 7 retrial.
He appeared by Zoom from the county jail on May 28 for a bond hearing. Defense Attorney Joseph Patituce asked for bond consistent with what was set on June 27, 2024.
Naumoff set a $500,000 cash or surety bond, plus a personal recognizance bond. If Smith posts bond, he will be on electronic monitoring and cannot have contact with the alleged victim or any minors.
Reach Mark Caudill at 419-521-7219 or via X at @MarkCau32059251.
This article originally appeared on Mansfield News Journal: Man sentenced to 64 years to life in rape case to get new trial
Reporting by Mark Caudill, Mansfield News Journal / Mansfield News Journal
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