Case Information
*1
[Cite as
State v. Hernandez
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104976
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
ALFONSO E. HERNANDEZ
DEFENDANT-APPELLANT JUDGMENT: AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case No. CR-15-601004-A
BEFORE: Kilbane, P.J., Stewart, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 1, 2018 *2 ATTORNEY FOR APPELLANT
Brian R. McGraw
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Frank Romeo Zeleznikar
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Alfonso E. Hernandez (“Hernandez”), appeals his jury conviction for rape, kidnapping, and gross sexual imposition. For the reasons set forth below, we affirm.
{¶2} In December 2015, Hernandez was charged in an eight-count indictment with two counts of rape, four counts of kidnapping, and two counts of gross sexual imposition (“GSI”). Each count carried a sexually violent predator specification. The indictment alleged that Hernandez sexually assaulted two young girls: his great-niece, K.T., and her cousin, M.R.
{¶3} In May 2016, Hernandez moved to sever Counts 1 through 4 from Counts 5 through 8, effectively moving for separate trials on the allegations of each victim. The trial court denied this motion. Prior to jury selection, and again after the close of all evidence, the defense renewed its motion to sever and the trial court denied the renewed motion. The parties stipulated that Hernandez’s immigration status would not be mentioned in the presence of the jury. The following evidence was adduced at trial.
Allegations of K.T.
Twelve year-old K.T. described in detail two separate instances where she testified that Hernandez sexually assaulted her. K.T. testified that the first sexual assault occurred when she was about five years old. At that time, she lived with her parents in the downstairs unit of a triple house. K.T.’s grandmother and great-grandmother lived in *4 the second floor unit. Hernandez, as well as K.T.’s other great-uncle and his wife, J.H., lived upstairs in the third floor unit.
{¶6} K.T. explained that the first instance of sexual assault took place while she was visiting the third floor unit of the home with her mother, N.H. N.H. went into the living room to talk with J.H. Hernandez called K.T. to his room, telling her that he had something to show her. She explained that once inside Hernandez’s room, Hernandez proceeded to lay her on the bed, pull down her pants and his own pants, put a condom on, and put his penis inside her vagina. K.T. testified that at some point, J.H. began knocking on the door, telling
K.T. that her mother was waiting and wanted her to come out of the room. K.T. explained that Hernandez took off the condom and pulled up his pants and K.T.’s pants. He then gave K.T. a small toy, told her “not to tell anyone,” and sent her out of the room. K.T. testified that she was confused and scared so she told Hernandez that she would not tell anyone what had happened. K.T. explained that the second sexual assault occurred years later when she
was in the fifth grade. At that time, K.T. and her immediate family lived in a new home in the downstairs unit of a double house owned by her grandmother Hernandez’s sister. K.T. testified that Hernandez would come to this house a few times each week to visit his mother K.T.’s great-grandmother who lived in the second-floor unit with Hernandez’s sister.
{¶9} K.T. testified that a few weeks before Hernandez raped her a second time, Hernandez snuck up on her while she was in the basement doing laundry. K.T. explained that she ran upstairs and into her mother’s room. She forgot to lock the door, so Hernandez came in, tried to touch her, and asked her “why are you ignoring me?” She testified that Hernandez forcefully pulled her pants down, whispered in her ear “don’t ignore me again or I’m going to do the same thing to your [younger] sister,” and then walked away. A few weeks later, K.T. went up to the second-floor. K.T. testified that her
parents were at work and her great-grandmother was in the basement of the home. K.T. noticed that Hernandez was in one of the bedrooms. She testified that he began to walk toward her; she tried to walk away, but he followed her into the living room. Once in the living room, K.T. sat on the couch and covered herself with a
blanket. Hernandez took the blanket off of her and began to pull down her pants. He then lifted her up and put her on the ground. He unzipped his pants, put on a condom that he had retrieved from his wallet, put his penis inside her vagina, and “started thrusting for about three minutes.” K.T. testified that during this second rape she was scared and thought “it happened again, * * * I didn’t want it to, and I couldn’t do anything about it.” K.T. explained that Hernandez stopped when he heard the kitchen door
creaking, as if someone was coming in. He took the condom off, put it in a small plastic *6 bag in his wallet, and put it in his back pocket. Hernandez then left K.T. lying on the floor. K.T. testified that she first told her cousin, M.R., about the sexual assaults,
and eventually, she also told her mother.
Allegations of M.R.
Eleven-year-old M.R. also testified that Hernandez had sexually assaulted her on two separate occasions. M.R. explained that K.T. is her cousin and “good friend.” Through the testimony of adults in the family it was established that M.R. is not related to Hernandez, but their families are close. K.T.’s father and M.R.’s mother are brother and sister, whereas Hernandez is K.T.’s maternal great-uncle. M.R. testified that when she was younger Hernandez’s mother K.T.’s
great-grandmother — cared for her five days a week while her parents were at work. Hernandez’s mother would care for M.R. in the home Hernandez shared with his brother and his brother’s family. M.R. testified that while in this home, she was in Hernandez’s room with his
nephews playing on Hernandez’s computer. M.R. testified that she was sitting on Hernandez’s lap. His nephews left the room. M.R. testified that Hernandez pushed her against the door and began touching her breasts both over and under her shirt. She testified that eventually Hernandez’s nephews knocked on the door, so Hernandez stopped touching her and let the boys in the room. M.R. testified that she could not remember how old she was or how long ago this happened.
{¶17} M.R. also testified to a second incident when she was in Hernandez’s room sitting on his lap. Hernandez grabbed her hand and attempted to put her hand on his penis. M.R. testified that she told Hernandez she had to go to the bathroom. Hernandez let her go, and she ran out of his room to the bathroom. She testified that this second incident occurred when she was around five-years old.
Testimony of N.H.
{¶18} N.H., K.T.’s mother, testified that in November 2015, she and K.T. had an argument while preparing to go to a family picnic. N.H. had noticed that K.T. had recently been withdrawn and would not leave her bedroom. N.H. explained that K.T. did not want to go to family functions and was upset that she had to go to this particular family picnic. K.T. told N.H. that she wanted to stay home, and N.H. and K.T. began fighting. During the argument, K.T. told N.H. that Hernandez had sexually assaulted her. K.T. also told N.H. that she had confided in M.R. about the assaults. N.H. and K.T. then went to M.R.’s home. Once at M.R.’s home, M.R. confided in N.H., her aunt, that Hernandez had sexually assaulted her as well. That same day, K.T.’s father called Cleveland police to report Hernandez’s sexual assaults of both K.T. and M.R. The investigating detective, Traci Hill (“Detective Hill”), testified about her
investigation of the girls’ allegations of sexual abuse by Hernandez. The defense called Hernandez’s sister-in-law, J.H., his niece, as well as his
sister K.T.’s grandmother. Notably, J.H. testified that she did not remember having knocked on Hernandez’s bedroom door and asking K.T. to come out of his room, as K.T. *8 had testified.
{¶21} At the conclusion of the trial, the jury returned guilty verdicts on Counts 1 through 4 and Counts 7 and 8. The jury found Hernandez not guilty of Counts 5 and 6, which related to M.R.’s first sexual assault allegation. The trial court held a hearing on the sexually violent predator
specifications. [1] The trial court found Hernandez not guilty on all sexually violent predator specifications and proceeded to sentence Hernandez to life in prison with parole eligibility after 25 years. Hernandez now appeals his convictions, raising the following assignments
of error for our review:
Assignment of Error One
The court abused its discretion in denying repeated defense motions to sever, allowing the joinder [of] the individually weak [K.T.] and [M.R.] allegations [in one trial].
Assignment of Error Two
The manifest weight of the evidence was not established to allow for convictions in any of the crimes.
Assignment of Error Three
The court abused its discretion when it admitted “other acts” evidence pursuant to [Evid.R. 404(B)]; evidence of other alleged sexual acts by [Hernandez] upon [K.T.] deemed to be too weak to indict.
Assignment of Error Four
*9 [Hernandez] was denied a fair trial when his status as a non-citizen was hinted at by Detective Hill after motion in limine prohibiting introduction. Assignment of Error Five
[Hernandez] was denied a fair trial when the trial court denied [Hernandez’s] attempts to review [K.T. and M.R.’s] statements through testimony of [Detective Hill]. For ease of analysis, we address Hernandez’s assignments of error out of
order.
Manifest Weight
In the second assignment of error, Hernandez argues that his convictions are against the manifest weight of the evidence because they were “depend[ent] upon the cloudy and shaky testimony of two young girls.” Hernandez contends that K.T.’s and M.R.’s testimony lacks credibility, pointing to inconsistencies in their testimony. The Ohio Supreme Court has addressed the standard of review we must apply for a criminal manifest weight challenge:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins
(1997),
State v. Wilson
,
evidence and the credibility of the witnesses are matters primarily for the factfinder to
assess.
State v. Bradley
, 8th Dist. Cuyahoga No. 97333,
evidence solely because the jury heard inconsistent or contradictory testimony.”
State v.
Rudd
, 8th Dist. Cuyahoga No. 102754,
instances when Hernandez sexually assaulted them. The jury also heard corroborating testimony from the girls’ parents, the investigating officer, and Detective Hill. Hernandez argues that inconsistencies in K.T.’s and M.R.’s testimony indicate their lack of credibility. However, other than Hernandez’s general statement that “[K.T.’s and *12 M.R.’s family members] were not living in certain homes when the girls alleged these crimes to have occurred,” he does not specify any particular inconsistencies between the statements K.T. and M.R. made to police and their trial testimony. We note that defense counsel cross-examined both K.T. and M.R. in the presence of the jury as to the inconsistencies between their statements given to Cleveland police and their trial testimony. Hernandez also points to the following contradictory testimony of K.T. and
J.H.: K.T. testified that Hernandez was interrupted the first time he raped her when J.H. knocked on the door, whereas J.H. testified that she did not remember ever having done so. As discussed above, inconsistent and contradictory testimony alone does not render Hernandez’s convictions against the manifest weight of the evidence. The jury heard the direct testimony and cross-examination of all witnesses, thus the members of the jury were in the best position to determine the credibility of each witness in light of any inconsistent or contradictory testimony. Based on the foregoing, we cannot conclude that the jury “clearly lost its
way” and created such a manifest miscarriage of justice that Hernandez’s convictions are against the manifest weight of the evidence. Accordingly, the second assignment of error is overruled.
Right to a Fair Trial
*13 {¶33} Throughout his first, third, fourth, and fifth assignments of errors, Hernandez argues that certain trial court rulings and testimony introduced at trial cumulatively amounted to a denial of his right to a fair trial.
Joinder of Offenses for Trial
In the first assignment of error, Hernandez argues that he was prejudiced by having to defend himself against the separate allegations of two victims in one trial, and that the trial court erred in denying his motions to sever. We note that Ohio law favors joining multiple offenses in a single trial if the
requisites of Crim.R. 8(A) are fulfilled.
State v. Ferrell
, 8th Dist. Cuyahoga No. 100659,
Two or more offenses may be charged in the same indictment * * * if the offenses charged, * * * are of the same or similar character, * * * or are based on two or more acts or transactions connected together * * * or are part of a course of criminal conduct. This court has held “[j]oinder is liberally permitted to conserve judicial
resources, reduce the chance of incongruous results in successive trials, and diminish
inconvenience to the witnesses.”
State v. Wilson
,
offenses were permissibly joined under Crim.R. 8 these offenses were of similar
character, based on two or more acts or transactions connected together, and were part of
*14
a course of criminal conduct. Both K.T. and M.R. were young children at the time of the
offenses. K.T. was related to Hernandez, and he was very close with M.R.’s family.
Crim.R. 14 provides that a trial court may grant a severance “[i]f it appears
that a defendant * * * is prejudiced by a joinder of offenses.”
State v. Diar
, 120 Ohio
St.3d 460,
A defendant claiming error in the trial court’s refusal to allow separate trials of multiple charges under Crim.R. 14 has the burden of affirmatively showing that his rights were prejudiced; he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant’s right to a fair trial, and he must demonstrate that the court abused its discretion in refusing to separate the charges for trial.
Id.
at syllabus. “The term ‘abuse of discretion’ connotes more than an error of law or
judgment;
it
implies
that
the court’s attitude
is unreasonable, arbitrary or
unconscionable.”
Blakemore v. Blakemore
, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983), quoting
State v. Adams
,
state may counter a claim of prejudicial joinder in one of two ways:
The first is the “other acts” test, where the State can argue that it could have introduced evidence of one offense in the trial of the other severed offense under the “other acts” portion of Evid.R. 404(B). The second is the “joinder” test, where the state is merely required to show that evidence of each of the crimes joined at trial is simple and direct. If the state can meet the “joinder” test, it need not meet the stricter “other acts” test. Thus, an accused is not prejudiced by joinder when simple and direct evidence exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B).
State v. Solomon
, 8th Dist. Cuyahoga Nos. 85303, 85304, 85305,
the offenses against both K.T. and M.R. because the state presented simple and direct evidence as to each instance of sexual assault. We note that the evidence as to each count was clearly delineated between each victim and based upon specific time frames, such that it is unlikely that the jury would confuse the evidence proving the separate offenses. At trial, K.T. and M.R. each detailed two distinct instances of sexual assault. The state provided time frames for each count for which the jury found Hernandez guilty. [2] The jury found Hernandez not guilty of M.R.’s first allegation of sexual assault *16 in Counts 5 and 6, presumably because she testified that she could not remember a time frame for that particular sexual assault. Based on the foregoing, we find that the trial court did not abuse its
discretion in denying Hernandez’s motion to sever. Accordingly, the first assignment of error is overruled.
Other Acts Evidence
{¶44}
In the third assignment of error, Hernandez argues that the trial court abused
its discretion in allowing the state to introduce evidence of an act of sexual assault of K.T.
that was not indicted. He asserts that this ruling, “along with all other rulings made
against the defense,” cumulatively resulted in the denial of his right to a fair trial.
At trial, K.T. testified that there were instances between the first and second
sexual assault when Hernandez would try to grab her and that he had touched her breasts.
In addressing Hernandez’s motion in limine as to this evidence, the assistant county
prosecutor explained to the trial court that these allegations were ultimately not indicted
because K.T. could not remember a specific enough time frame for the state to seek an
indictment of this conduct. The assistant prosecutor argued that the state’s purpose for
eliciting this testimony was to “prove[] the element of force” and “to establish the
defendant’s plan or motive and his pattern of conduct of abuse.”
The Ohio Supreme Court has held that
v. Yaacov
, 8th Dist. Cuyahoga No. 86674,
[a] trial court has broad discretion in the admission of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should not disturb the decision of the trial court.
State v. Issa
,
{¶47} As a general rule, “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” Evid.R. 404(A). However, Evid.R. 404(B) provides, in relevant part, that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of other acts may also be admissible to establish an element of the
crime.
State v. Piert
, 8th Dist. Cuyahoga No. 89803,
[r]egarding the applicability of Evid.R. 404(B) to course-of-conduct sexual abuse cases, extensive presentation of evidence of other acts for which a defendant was not indicted can become so pervasive as to deny that defendant a fair trial. See , e.g. , State v. Shaw , 2d Dist. Montgomery No. 21880,2008-Ohio-1317 ; see also State v. Meador , 12th Dist. Warren No. CA2008-03-042,2009-Ohio-2195 , ¶ 12. However, where the testimony is minimal and vague, no error will be found. See, e.g. , State v. Heft , 3d Dist. Logan No. 8-09-08,2009-Ohio-5908 .
State v. Czech
, 8th Dist. Cuyahoga No. 100900,
by Czech’s victim of sexual assault that occurred outside the indictment was so prejudicial that it resulted in a denial of his right to a fair trial. In Czech , we distinguished Shaw from Heft in order to explain the point at which other acts testimony of sexual abuse becomes so pervasive and extensive that it results in the denial of a defendant’s right to a fair trial.
In Shaw , the defendant was indicted for fifteen counts of rape and ten counts of sexual battery against three different victims. At trial, the state elicited testimony about several specific instances of abuse, in addition to “extensive” testimony from each victim that she was abused multiple times each week for several years. On appeal, the state argued that the testimony about the unindicted offenses was admissible under Evid.R. 404(B) because it demonstrated why the victims tolerated the abuse. The Second District disagreed, finding that the state’s reasoning at trial for the testimony was different than argued on appeal and failed to establish any of the exceptions under Evid.R. 404(B). The court reversed the defendant’s convictions, finding that the “extensive” and “pervasive” testimony about other acts had denied the defendant a fair trial, especially because no limiting instruction regarding the evidence was given. Shaw at ¶ 14.
In Heft , the defendant was indicted for rape, sexual battery, and gross sexual imposition. At trial, the victim testified that Heft abused her on “multiple occasions.” She further testified that there were “many” instances of sexual abuse and then explained how the incidents would occur. The Third District recognized that Heft had been charged with multiple sex abuse offenses and that the victim’s testimony about “multiple occasions” could have referenced the indicted offenses. Id . at ¶ 63. The *19 court ultimately found that “these minimal, vague references” did not reach the extensive and pervasive nature of the testimony at issue in Shaw and thus found no abuse of discretion in allowing the testimony.
Czech at ¶ 31-32. In Czech , this court, reviewing the admissibility of other acts evidence under
a plain error standard, found that Czech’s victims’ isolated references to the timing and frequency of the unindicted sexual abuse by Czech were not extensive and did not amount to a denial of Czech’s right to a fair trial. Similarly, in the instant case, the testimony elicited by the state from K.T. as
to the unindicted sexual assault by Hernandez was limited and vague as to when and how often this conduct occurred. K.T. testified:
[THE STATE]: Okay. Now, after the first time when [Hernandez sexually assaulted you] at that house, okay, were there other times that you remember when he would do things like that?
[DEFENSE COUNSEL]: Objection, your honor.
[K.T.]: He would —
THE COURT: Overruled.
[K.T.]: He would only — look at me weird, and there was [sic] times where he tried to touch me but he didn’t get a chance to.
* * *
[THE STATE]: Okay. And you said he would try to grab you. What was he doing?
[K.T.]: He, like, if you don’t know he’s there, he would like, come up behind me and he would just touch me but only for a short amount of time. *20 [THE STATE]: Where on your body would he touch you?
[K.T.]: On my breast.
[THE STATE]: Was it on top of your clothes or underneath?
[K.T.]: On top of.
[THE STATE]: And do you remember, was this close to the first time of it [the sexual assault] happening or was it a long time after?
[K.T.]: A long time after. We find that K.T.’s testimony alleging unindicted sexual abuse by Hernandez was both minimal and vague, akin to the other acts testimony at issue in Czech and Heft . Therefore, we do not find that the trial court abused its discretion in allowing the state to elicit this other acts testimony from K.T., nor do we conclude that Hernandez was prejudiced. Accordingly, the third assignment of error is overruled.
Immigration Status
In the fourth assignment of error, Hernandez argues that he was denied a fair trial because his status as a noncitizen was “hinted at by Detective Hill” in her direct examination. Prior to jury selection, the parties stipulated that Hernandez’s immigration
status would not be mentioned in the presence of the jury. The state confirmed to the trial court that it would “instruct witnesses * * * not to make any reference [to Hernandez’s immigration status], and certainly no questions will address the topic.” However, Detective Hill, a state witness, made an umprompted reference to Hernandez’s immigration status.
[THE STATE]: And are you able to obtain information from [K.T.] that you then used in your investigation?
[Detective Hill]: Yes.
[THE STATE]: Following that interview [of K.T.], what did you do next? [Detective Hill]: I spoke to, I believe it was our Intelligence Unit, due to the suspect’s status.
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Sustained.
As illustrated above, Detective Hill’s reference to Hernandez’s immigration
status was vague and was clearly not prompted by the state. Hernandez recognizes that
this testimony merely “hinted at” his immigration status. Defense counsel objected to
and cut off Detective Hill’s testimony before she could elaborate as to what she meant
when she mentioned Hernandez’s “status.” The trial court properly sustained the
objection, and no further mention was made of Hernandez’s noncitizen status.
The objection to Detective Hill’s comment was sustained. Consequently,
there was no error.
State v. Hale
,
Cross-Examination of Detective Hill In the fifth assignment of error, Hernandez argues that he was denied a fair trial because the trial court denied his attempts to attack inconsistencies in K.T. and M.R.’s testimony and the credibility of these victims through the cross-examination of *22 Detective Hill. The trial court ruled that Hernandez’s defense counsel could elicit general testimony from Detective Hill that K.T. and M.R.’s statements were inconsistent with their trial testimony, but did not allow the defense to explore the specific inconsistencies through her cross-examination. Evid.R. 701 limits the testimony of lay witnesses “to those opinions or
inferences which are (1) rationally based on the perception of the witness and (2) helpful
to a clear understanding of the witness’ testimony or the determination of a fact in issue.”
This court has held that “lay witnesses are prohibited from testifying as to another
witnesses’s veracity.”
State v. Pawlak
, 8th Dist. Cuyahoga No. 99555,
indeed inquire of K.T. and M.R. as to inconsistencies between statements they made to Detective Hill and their trial testimony. Therefore, Hernandez’s claim that he was prejudiced by the trial court’s refusal to allow defense counsel to explore these inconsistencies through the cross-examination of Detective Hill is unpersuasive. Ultimately, such a line of questioning would have been an improper attempt to illicit a lay witness to comment on the veracity and credibility of another witness. Pawlak at ¶ 113. Based on the foregoing, we find that the trial court properly limited Hernandez’s defense counsel’s attempts to attack the credibility of K.T. and M.R. through the cross-examination of Detective Hill. Accordingly, the fifth assignment of error is overruled. Judgment is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
Notes
[1] Prior to trial, Hernandez filed a jury waiver as to the sexually violent predator specifications in each of the eight counts of the indictment.
[2] We note that an indictment charging sexual offenses against children “need not state with specificity the dates of alleged abuse, so long as the prosecution established that the offense was committed within the time frame alleged.” State