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Ruling in rape case is appealed
YOUNGSTOWN
The Mahoning County prosecutor has appealed a visiting judge’s ruling that a statement to police by a former Canfield physician charged with raping a female patient is inadmissible in his trial.
Ralph M. Rivera, an assistant county prosecutor, filed the notice of appeal Wednesday with the 7th District Court of Appeals, saying the prosecution has no reasonable chance of success in its case against Larry Lee Smith unless Smith’s statement can be admitted as evidence in the trial.
The ruling excluding Smith’s Oct. 8, 2010, statement from evidence was filed March 28 by visiting Judge Thomas J. Pokorny of Mahoning County Common Pleas Court. Smith is charged with raping the patient during an office visit Oct. 4, 2010.
“A false promise was made to the defendant that, if he admitted consensual sex with his patient, it would not be considered a crime,” and Smith then admitted consensual sexual contact with the patient, Judge Pokorny wrote in his decision.
“These false representations undermined Smith’s capacity for self-determination and impaired his decision to make incriminating statements,” the judge wrote.
Canfield Police Detective Brian McGivern, who conducted and secretly recorded the interrogation, has admitted he was mistaken as to the law, the judge noted.
Defense lawyer Mark Hanni asked that the doctor’s statement to police be excluded from evidence because it was improperly obtained.
Michael J. McBride, an assistant county prosecutor, said, however, the statement should be admissible because the interview with police was “knowing, willing and voluntary” and given by a well- educated man, who was able to understand the effect of his statement.
Smith, 72, was never handcuffed or threatened with arrest, never requested a lawyer and was told he was free to leave the police station at any time, McBride added.
The Ohio State Medical Board revoked Smith’s medical license May 12, 2011.
That revocation was based on Smith’s misdemeanor conviction related to his personally furnishing a controlled substance to a patient and on the board’s determination he engaged in sexual misconduct with two patients to whom he provided Suboxone as a treatment for drug addiction.