State v. HernandezState v. Hernandez
{¶1} A jury found defendant-appellant Humberto Hernandez guilty of committing multiple counts of rape, kidnapping, and gross sexual imposition against a girl and boy siblings, both of whom were under 13 years оf age at the time the offenses occurred. The victims were the stepchildren of Hernandez‘s son. The victims and their parents lived with Hernandez at the time the crimes were committed. The girl testified that Hernandez vaginally raped her, digitally raped her, and forced her to touch his penis as he watched pornography. The boy testified that he was made to touch Hernandez‘s penis and that Hernandez then touched the boy‘s penis.
{¶2} In this appeal, Hernandez complains that the court erroneously allowed the state to offer other acts evidence in the form of unindicted conduct pеrpetrated against the boy; that trial counsel failed to seek the exclusion of the other acts evidence; that the court allowed a police officer to give testimony that improperly bolstered the boy‘s testimony; that there was insufficient evidence to prove the charged сrimes; and that the jury‘s verdict is against the weight of the evidence. We find no error and affirm.
I. Other Acts Evidence
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{¶4} “It is hornbook law that a defendant may not on appeal urge a new ground for his objection.” State v. Milo, 10th Dist. Franklin No. 81AP-746, 1982 Ohio App. LEXIS 12440, 15 (Sep. 30, 1982), citing Yuin v. Hilton, 165 Ohio St. 164, 134 N.E.2d 719 (1956). This is because a party objecting to the admission of evidence must state the speсific ground of objection at the time a ruling admitting evidence is made. See
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{¶6} In addition, the record shows that Hernandez did not ask the court to instruct the jury on the use of other acts еvidence under
II. Ineffective Assistance of Counsel
{¶7} Hernandez maintains that defense counsel was ineffective for failing to seek exclusion of uncharged conduct prior to the start of trial. He also complains that dеfense counsel failed to cross-examine the girl, a tactic that he claims was not a viable trial strategy.
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{¶9} Defense counsel had no obligation to proactively seek exclusion of other acts evidence.
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III. Bolstering Testimony
{¶11} Hernandez argues that the state improperly used testimony from the victims’ mother and a police detective to bolster the girl‘s testimony. He also argues that the detective testified that child-victims of sexual abuse commonly delay disclosures, a statement that fell within the realm of expert testimony, but that the court did not qualify the detective as an expert.
{¶12} “[B]olstering is an implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury.” United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). See also Black‘s Law Dictionary 176 (6th Ed.1990) (defining the term bolstering as “when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party“).
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{¶14} The second instance occurred in the context of the girl‘s disclosing to her mother Hernandez‘s sеxual abuse. The mother testified that she did not want to take the girl to the police at the time of disclosure because “[i]t was very painful for her and I and everyone else in the household that we lived in. She had kept this inside for a very long time and I don‘t think that she was ready to come out but because of the situation * * *.”
{¶15} The third instance occurred in the context of the boy disclosing to his father Hernandez‘s acts of abuse. When the mother learned of this disclosure, she decided to report it to the police. When asked if her husband accompanied her to the police station, the mother replied, “[h]e said he was humiliated and he left and said he was going to fix this.”
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{¶17} The girl did not disclose Hernandez‘s acts until 2016, by which time she was 20 years old. The police detective testified that “a lot of typical cases” involving child victims of sexual abuse are not immediately reported by children because they are scared: they might be scared that they will not be believed; they are scared that it will cause family infighting; and they are scared that they could be removed from their parents and placed in foster care. Hernandez did not object to this answer, so he has forfeited all but plain error on appeal. State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 80. Likewise, Hernandez did not object on grounds that the detective was giving an expert opinion when testifying to the circumstances that might have compelled the girl to disclose Hernandez‘s conduct (the family had moved away, creating a safe space for the girl and the girl had reached the age of majority). This claimed error, too, has been forfeited and is subject only to plain error review.
{¶18} To prevail on a plain error claim, Hernandez must show that “an error occurred, that the error was plain, and that the error affected his substantial rights.” State v. Wilks, Slip Opinion No. 2018-Ohio-1562, ¶ 52. The detective testified that hе had investigated over 2,500 sexual abuse cases. There is little reason to think that the court would not have qualified the detective as an expert on those matters had an objection been made.
IV. Manifest Weight of the Evidence
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{¶20} The manifest weight of the evidence standard requires the reviewing cоurt to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). This is a difficult burden for an appellant to overcome because the trier of fact has the sole responsibility to resolve factual issues. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Because the standard of review uses the word “manifest,” it means that wе can only reverse the trier of fact if its decision is very plainly or obviously contrary to the evidence.
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{¶22} We summarily reject Hernandez‘s argument that the jury‘s verdict was tainted by improper evidence. Having forfeited the right to challenge the propriety of the evidence by failing to object, he has not demonstrated that the evidence was improper for purposes of raising it as part of an assigned error going to the weight of the evidence.
V. Sufficiency of the Evidence
{¶23} Hernandez claims that the state failed to offer sufficient evidence to prove the charge of gross sexual imposition against the boy because it did not offer any evidence to show that Hernandez touched the boy for purposes of sexual gratification.
{¶24} The state charged Hernandez with violating
{¶25} The boy testified that Hernandez “asked me to come here and I went with him to his room and we went on the bed and he — he — he pulled my shorts down and touched my penis and then he made me tоuch his penis.” The boy characterized this incident as being “molested” and “touched.” A rational trier of fact could infer the same from the circumstances because there was no innocent explanation for the mutual touching.
{¶26} Judgment affirmed.
It is ordered that appellee recover of appеllant 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR