STATE OF OHIO, Plаintiff-Appellee, v. JESUS GARCIA, Defendant-Appellant.
No. 107027
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 27, 2019
2019-Ohio-4885
ANITA LASTER MAYS, J.
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 27, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622561-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Holly Welsh and Tasha Forchione, Assistant Prosecuting Attorneys, for appellee.
Britt Newman, for appellant.
ANITA LASTER MAYS, J.:
{¶ 1} Defendant-appellant Jesus Garcia (“Garcia“) appeals his jury trial convictions for multiple counts arising from the sexual assault of his 13-year-old daughter Jane Doe (“Doe“) on two occasions during the summer оf 2017.
I. Background and Facts
{¶ 3} Doe was indicted on October 27, 2017, on the following 10 counts:
- Count 1: Rape, a first-degree felony,
R.C. 2907.02(A)(2) ; - Count 2: Gross sexual imposition, a fourth-degree felony,
R.C. 2907.05(A)(1) ; - Count 3: Kidnapping, a first-degree felony,
R.C. 2905.01(A)(4) ; - Count 4: Illegal use of a minor in nudity-oriented material or performance, a second-degree felony,
R.C. 2907.323(A)(l) ; - Count 5: Endangering children, a second-degree felony,
R.C. 2919.22(B)(1) ; - Count 6: Rape, a first-degree felony,
R.C. 2907.02(A)(2) ; - Count 7: Gross sexual imposition, a fourth-degree felony,
R.C. 2907.05(A)(1) ; - Count 8: Kidnapping, a first-degree felony,
R.C. 2905.01(A)(4) ; - Count 9: Illegal use of a minor in nudity-oriented material or performance, a second-degree felony,
R.C. 2907.323(A)(l) ; and - Count 10: Endangering children, a second-degree felony,
R.C. 2919.22(B)(1) .
The indictments included two sexual motivation specifications pursuant to
{¶ 4} Doe was 14 years old at the time of the March 2018 trial. Doe has always resided with her maternal grandparents. Doe‘s mother and her biological father Garcia married several years after Doe‘s birth, and the couple bore three
{¶ 5} At approximately 10:00 a.m. on July 7, 2017, Garcia picked up Doe from her grandmother‘s house to take her to breakfast. He then took Doe to his house where the two were alone, watching television, when Garcia pulled Doe‘s shirt up and gave her a “mean look” when she told him “no” and tried to pull her shirt back down. (Tr. 352.)
{¶ 6} Doe said that Garcia made her put on her mother‘s lingerie and “that‘s when he started touching me.” (Tr. 353.) Garcia touched Doe‘s breasts and “[he] stuck two fingers in me.” (Tr. 353.) He also took pictures of Doe using a silver camera, and warned her that he would post the pictures on the internet if she told anyone about the incident, and that her mother and siblings would hate her. (Tr. 354.)
{¶ 7} On the morning of July 17, 2017, Garcia took Doe and her eight-year-old brother C.G. to Garcia‘s automobile repair garage that was located several doors from Garcia‘s residence. Garcia locked the garage doors to prevent C.G. from entering. He removed Doe‘s shirt, pulled down her pants and underwear, and touched her breasts. Garcia also took photographs and made Doe “touch him.” (Tr. 356.)
{¶ 9} Doe‘s mother testified that she began dating Garcia at the age of 14 and gave birth to Doe at 16. Doe‘s grandparents are her legal guardians. Doe‘s mother subsequently married Garcia, and they had three sons. Doe‘s mother confirmed that Garcia owned the automotive garage and that, when the grandmother and Doe called her in October 2017, Doe was very upset. Her mother said that she did not discuss the conversation with Garcia and did not tell her son C.G. not to speak with anyone about the case. The defense had no questions for the witness.
{¶ 10} The grandmother testified that she allowed Doe to go to breakfast with Garcia the morning of July 7, 2017, and that Doe returned to the grandmother‘s house a little after 1:00 p.m. She also confirmed that Garcia picked up Doe and her brother C.G. at about 10:00 a.m. on July 17, 2017, and they returned about 7:30 p.m.
{¶ 11} The grandmother confirmed that Doe was very upset when she returned from a church service about telling the truth and shared the abuse information with her grandparents who contacted the police. The grandmother insisted that Doe had no reason to fabricate the allegations. “She lost her mother. She doesn‘t have a father. She is losing her brothers.” (Tr. 342.) “She wanted [Garcia] in her life. She was happy.” Id. “She was happy because they were doing things as a family. Even the brothers are upset now because they can never do anything as a family together.” Id. The grandmother was also upset that Doe‘s mother was not supportive of her.
{¶ 12} Det. McNeely, with the CPD Sex Crimes and Child Abuse Unit, and a rape crisis victim‘s advocate interviewed Doe and her grandmother on October 8, 2017. Search warrants for Garcia‘s home and the automotive garage were executed on October 19, 2017. Multiple cameras were discovered including several silver cameras as well as storage device cards and flash drives were recovered from the locations. Det. McNeely confirmed during cross-examination that no corroborative evidence was discovered as a result of the searches.
{¶ 13} Garcia‘s friend David LaFraniere (“LaFraniere“) testified for the defense. LaFraniere said that he has known Garcia for about 20 years and also
{¶ 14} LaFraniere said the case allegations were ridiculous and that Doe and Garcia appeared to get along well. LaFraniere also saw Doe and Garсia at the shop at least three or four times after the trip but never observed anything inappropriate. Doe‘s siblings were also present during those visits.
{¶ 15} During cross-examination, LaFraniere admitted that he knew about Garcia‘s 2002 conviction for unlawful sexual conduct with a minor and his 2015 conviction for carrying a concealed weapon. LaFraniere was not aware of allegations that Garcia was involved in gang activities.
{¶ 16} Garcia testified in his defense and denied molesting Doe. He explained that the 2002 conviction stemmed from his premarital relationship with Doe‘s mother, and that the grandmother introduced the then 27-year-old Garcia to Doe‘s mother who was 14 years-old. Garcia denied knowing that her mother had been registered as a runaway at the time of the introduction.
{¶ 17} According to Garcia, the only time that he was alone with Doe was during the June 30, 2017 trip with LaFraniere to the Amish country and he had cell phone photogrаphs of the trip showing that Doe was enjoying herself. Garcia also challenged the accuracy of the home security video indicating that he picked Doe up at her grandmother‘s house on July 17, 2017. He did not deny that Doe had been to
{¶ 18} Garcia was at home on October 7, 2017, when grandmother and Doe contactеd her mother about the assault allegations. He also said that grandmother placed several calls to Doe‘s mother asking her to search for the photographs of Doe.
{¶ 19} At the close of the state‘s case, Garcia moved for judgment of acquittal of all charges pursuant to Crim.R 29. The trial court ruled that the motion was “unopposed and granted with regard to Count 6” and overruled for “Counts 1-5 and 7-10.” Journal entry No. 102818155 (Mar. 06, 2018). Garcia‘s renewed Crim.R. 29 motion was overruled.
{¶ 20} The counts were renumbered due to the dismissal of Count 6. The state‘s unopposed motion to dismiss the “furthermore” clauses for the “resulting in serious physical harm” portions of Counts 5 and 9 (formerly Count 10)” were granted. Id. As a result, one of the sexually violent predator specifications was removed.
{¶ 21} Garcia was convicted of:
Rape,
R.C. 2907.02 (A)(2) , a first-degree felony with a sexually violent predator specification as charged in Count 1 of the indictment;Gross sexual imposition,
R.C. 2907.05(A)(1) , a fourth-degree felony with a sexually violent predator specification as charged in Counts 2 and 6 (formerly Count 7) of the indictment;Kidnapping,
R.C. 2905.01(A)(4) , a first-degree felony with a sexual motivation specification, and a sexually violent predator specification as charged in Counts 3 and 7 (formerly Count 8) of the indictment;
Endangering children,
R.C. 2919.22 (B)(1) , a first-degree misdemeanor as amended in Counts 5 and 9 (formerly Count 10) of the indictment (minus the furthermore clause(s) dismissed by the state); andIllegal use of a minor in nudity-oriented material or performance,
R.C. 2907.323(A)(1) , a second-degree felony as charged in Count 8 (formеrly Count 9) of the indictment.
Journal entry No. 102952867 (Mar. 8, 2018). The jury returned a verdict of not guilty of illegal use of a minor in nudity-oriented material or performance,
{¶ 22} Garcia was sentenced to life with parole eligibility after 20 years and adjudged to be a Tier I, II, and III registered sex offender. The instant appeal followed.
II. Assignments of Error
{¶ 23} Garcia poses five assigned errors for analysis.
- The evidence was insufficient to support appellant‘s convictions for rape, kidnapping, gross sexual imposition and illegal use of a minor in nudity-oriented material or performance.
- Appellant was denied effective assistance of counsel due to the cumulative effect of defense counsel‘s errors during the pretrial phase, the trials on the underlying charges and sexually violent predator specifications, and the sentencing hearing.
- The trial court erred in sentencing appellant to consecutive prison terms because the statutory requirements for imposing consecutive service werе not present in the record.
- The trial court erred in ordering appellant to pay the maximum $20,000 fine without determining his ability to pay and because the record demonstrates that appellant is indigent.
- The trial court erred in ordering appellant to pay the costs of prosecution in its sentencing order due to the court‘s failure to
advise him that he is liable for court costs at the sentencing hearing.
III. Missing Evidence
{¶ 24} On appeal, the transcript, jury charge, and jury questions were filed with this court. The transcript index states that any exhibits that did not accompany the transcript were retained by the state. After a series of informal requests to the state, this court sua sponte issued an order for exhibits that were missing from the record.
Sua sponte and pursuant to App.R. 9(E), the appellee Cuyahoga County Prosecutor is ordered to deliver to the clerk of the Eighth District Court of Appeals, under seal, the following exhibits that were admitted into evidence in the undеrlying criminal case of State v. Garcia, Cuyahoga C.P. No. CR-17-622561: (1) state‘s exhibit Nos. 1 thru 23 (search warrant and photographs); (2) state‘s exhibit Nos. 40 thru 48 (surveillance videos); (3) exhibit Nos. 49 thru 50 (search warrant inventories); (4) exhibit Nos. 51 thru 57 (cameras and SD cards); and (5) exhibit No. 60 (journal entry of defendant‘s prior conviction). All of the aforesaid exhibits shall be delivered to the clerk of the Eighth District Court of Appeal, under seal, by May 31, 2019.
{¶ 25} This court granted an extension of time at the state‘s request, and on June 17, 2019, the state filed a notice of submission and delivered exhibit Nos. 40-48 (surveillance videos); exhibit Nos. 51, 52, and 53 (Nikon camera, Olympus camera and Kodak camera); exhibit No. 54 (Nikon camera box and receipt); exhibit No. 55 (envelope containing 4 SD cards); exhibit No. 56 (an SD card adaptor); and exhibit No. 57 (a USD card reader). This court already had on file exhibit Nos. 49 and 50 (search warrant inventory lists), and exhibit No. 60 (the journal entry of Garcia‘s prior conviction).
{¶ 27} The state then argued that the burden is on Garcia to provide the requisite record for review.
The burden is on [a]ppellant to provide the Court with the necessary transcript for appellate review. State v. Cross, 8th Dist. Cuyahoga No. 58646, 1991 Ohio App. LEXIS 2752, *4, 1991 WL 106040 (June 13, 1991). “This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384, 385 (1980).
Under
App.R. 9(B) , this duty includes the obligation to order a transcript of any proceedings [a]ppellant considers necessary for inclusion in the record and to ensure that the transcript of the proceedings required byApp.R. 9(B) is filed with the clerk of the trial court underApp.R. 10(A) .
Notice of Submission, p. 3.
{¶ 28} Finally, the state concluded that, due to Garcia‘s failure to provide a complete trial record that includes the “items nеcessary to the resolution of the assigned errors, the reviewing ‘court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.‘” Notice of Submission, p. 3, quoting Knapp v. Edwards Laboratories, 61 Ohio St. 197, 199, 400 N.E.2d 384 (1980).
{¶ 29} On September 30, 2019, this court issued a second sua sponte order that requested, in pertinent part, that the parties brief the following issue:
This court sua sponte ordered the state to submit for the record exhibits that were admitted into evidence during trial, were returned to the state after trial, but are missing from the record, * * *
Under
App.R. 9(B) and9(B)(4) , the burden is on a criminal defendant to provide a complete record that includes all evidence relevant to an assignment of error that challenges the sufficiency or manifest weight of the evidence. A criminal defendant may be entitled to a new trial where the failure to provide a complete record is not the fault of the defendant. State v. Jones, 71 Ohio St.3d 293, 297, 643 N.E.2d 547 (1994); Knapp v. Edwards Laboratоries, 61 Ohio St. 197, 199, 400 N.E.2d 384 (1980).Where the state has conceded that it has exhausted all efforts to recover the evidence and the rules require that the evidence relevant to challenges of sufficiency and manifest weight of the evidence are included in the record what, if any, is the scope of this court‘s inquiry?
{¶ 30} Condensed, Garcia responded that the case should be remanded to the trial court to determine whether Garcia was substantially responsible for the missing evidenсe pursuant to Jones, Knapp, and State v. Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430 (case remanded to determine whether defendant was substantially responsible for the missing photographic exhibits). If the trial court were to find that Garcia is not responsible, Garcia requested that the trial court vacate the convictions or grant a new trial.
{¶ 31} Distilled, the state‘s argument cites Tiedjen for the proposition that this court‘s focus should be on whether the missing evidence is material to the case. It also advises, in contrast with the state‘s prior rеpresentation that the exhibits could not be located, that it “has digital, full color copies of all twenty-three Search Warrant photographs, which depict the original photographs in detail” and that the digital photographs were produced to Garcia during discovery.
{¶ 33} As the state has suggested was indeed Garcia‘s duty, at the time that Garcia filed this appeal, he instructed the office of the clerk to prepаre and submit the papers, exhibits, and transcript pursuant to
{¶ 34} It is true that a “criminal defendant must suffer the consequences of nonproduction of an appellate record where such nonproduction is caused by his or
[the] absence of the record may require reversal of the underlying conviction and the grant of a new trial.” [State v.] Jones, 71 Ohio St.3d 293, 297, [643 N.E.2d 547 (1994)]. See also Knapp v. Edwards Laboratoriеs, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) (a new trial may be granted if it is determined, after an evidentiary hearing, that the record is incomplete and the moving party is not at fault); State v. Polk, 8th Dist. Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991) (granting a new trial when the transcript was unavailable through no fault of the parties).
Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430, ¶ 21.
{¶ 35} Tiedjen involved a defendant‘s motion for a new trial based on newly discovered photographic evidence that was missing from the appellate record. This court determined that “[w]hile а trial court record need not be perfect for appellate review, we must balance adequacy of the record with the deprivation of a defendant‘s due process rights.” Id. at ¶ 15, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 161.2 This court also determined that attempted compliance with
for either: (1) an evidentiary hearing based on State v. Jones, 71 Ohio St.3d 293, 643 N.E.2d 547 (1994), to determine whether Tiedjen is substantially responsible for the missing evidence if the evidence is, in fact, still missing; or (2) a full hearing on Tiedjen‘s motion for a new trial if the evidence is located.
{¶ 37} Pursuant to
{¶ 38} Employing the fact as a shield and a sword, the state also shares that the digital records were provided to Garcia during discovery. However, the state says that it created the exhibits from the digital record and introduced them into evidence. According to the transcript, the еxhibits were returned to the state after the trial. Further to the issue of Garcia‘s responsibility in this situation, the appellate docket indicated that the transcript and envelope of exhibits were filed with the appellate court. The Ohio Supreme Court
rejected the notion that an appellant has the duty to supervise the actions of a trial court clerk to ensure the proper transmission of the record. This court held that placing that duty on an appellant “‘would
render meaningless the duty imposed upon the clerk, by App.R. 10(B) , to transmit the record to the Court of Appeals.‘”
In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d 568, ¶ 17, quoting Cobb v. Cobb, 62 Ohio St.2d 124, 125, 403 N.E.2d 991 (1980).
{¶ 39} Typically, pursuant to Tiedjen, Jones, and Knapp, we would reverse the conviction and remand the case to the trial court to determine whether Garcia is “substantially responsible” for the inability to produce a complete record in light of the missing exhibits. Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430, at ¶ 28. We would advise the trial court that if Garcia is determined to be substantially responsible, “his appeal should proceed only on such record as the trial court can settle, or on only those issues for which a [complete] factual record is unnecessary.” Id.
{¶ 40} We would further inform the trial court that if Garcia is not substantially responsible for the incomplete record, a new trial would be in order:
App.R. 9 does not explicitly provide the appellate court with the authority to grant a new trial. However, per Knapp v. Edwards Laboratories, supra, an appellant is entitled to a new trial where, after an evidentiary hearing, a record cannot be settled and it is determined that the appellant is not at fault. See also State v. Polk, [8th Dist.] Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991).
Jones, 71 Ohio St.3d at 298, 643 N.E.2d 547.
{¶ 41} However, this case poses a distinct set of facts. Exhibits 1-23 consists of photographs introduced during the testimony of Doe and Det. McNeely. The exhibits were also displayed on the computer screen for the jury.
{¶ 43} There is no evidence in the record or before this court of any wrongdoing on the part of Garcia for thе failure to provide a complete record. Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430, at 28.3 According to the trial transcript, the trial exhibits admitted in the case were in the state‘s possession. The state concedes in the Notice of Submission that the exhibits are necessary for Garcia to address the assigned errors, and further that it has exhausted all efforts to locate the evidence. The grounds “for reversal only arise ‘after all reasonable solutions are exhausted.‘” State v. Keeney, 4th Dist. Lawrence No. 08CA36, 2009-Ohio-3094, ¶ 21, quoting State v. Jones, 71 Ohio St.3d 293, 298, 643 N.E.2d 547 (1994). Thus, an evidentiary hearing is not required.
{¶ 44} We reverse the judgment and remand the case for a new trial.
{¶ 45} Judgment is reversed, and the case remanded for proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleаs court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
JUDGE ANITA LASTER MAYS
MARY EILEEN KILBANE, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR