STATE OF OHIO, Plaintiff-Appellee, v. ERIC HUNTER, Defendant-Appellant.
No. 108684
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 30, 2020
[Cite as State v. Hunter, 2020-Ohio-2718.]
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 30, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-627084-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Chadwick P. Cleveland, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.
{¶ 1} Eric Hunter appeals his conviction for rape in violation of
{¶ 2} Hunter and his wife temporarily lived with Hunter‘s in-law, who owned the two-story, three-bedroom home where the events occurred. The Hunters were staying with Hunter‘s in-law for a couple of weeks until they “passed on to where they were going.” There was only one bedroom in the second story that was occupied by the victim, who had known the family since she was five years old and who had also been staying in the home for an extended period of time. The victim was 22 years old at the time. Hunter and his wife shared a room on the first floor. On the evening of the rape, the occupants of the home were sitting in the garage or outside the back of the garage listening to music.
{¶ 3} Hunter, his wife, and the victim stayed awake the longest, and the Hunters were having drinks as the night continued. The victim drank a single beer. Eventually, Hunter‘s wife went into her bedroom. After she departed, Hunter started telling the victim about “something sexual that he did with
{¶ 4} Regardless, the victim left Hunter alone and went to her bedroom to fall asleep. The next thing the victim remembers is waking up while lying on her back, feeling pressure inside her vagina, and seeing Hunter‘s face between her legs with his mouth on her vagina. On this point, Hunter claims that the victim provided a different account to the investigating police officer. In the police report, the victim was recorded as stating that she awoke with Hunter on her back while he had his head between her legs. The jury was presented both versions.
{¶ 5} As soon as the victim awoke, Hunter ran toward the steps and yelled an expletive. Although the victim gave differing accounts of what expletive was used in her trial testimony, as compared to the statements provided the investigating police officer, the general theme was the same — Hunter immediately fled the room and shouted an expletive upon the victim‘s waking up. The victim was still wearing underwear and a menstrual pad, which had been displaced by Hunter‘s conduct.
{¶ 6} The victim immediately disclosed the events to Hunter‘s in-law, who called the police and described the victim as being hysterical. Hunter‘s wife
{¶ 7} In the first two assignments of error, Hunter claims that his conviction is against the weight of the evidence or is based on insufficient evidence. Neither claim has merit.
{¶ 8}
{¶ 9} “Sexual conduct” under
{¶ 10} In this case, Hunter‘s argument relies on the victim‘s arguably inconsistent trial testimony. Because the victim‘s credibility is the primary issue, we need not consider Hunter‘s sufficiency argument. A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Because the victim‘s credibility is primarily an issue for the trier of fact with respect to the sufficiency of the evidence, the victim‘s testimony that she awoke feeling pressure inside her vagina as Hunter‘s head and mouth were on it is sufficient evidence of penetration.
{¶ 12} When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of the 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. Thompkins at 387. In undergoing this review, appellate courts must “ask whose evidence is more persuasive — the state‘s or the defendant‘s?” Id. This means that
The [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001). “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 14} The jury considered and resolved the conflicts in the testimony and record, and Hunter has not demonstrated this to be the exceptional case warranting appellate intervention. The first and second assignments of error are overruled.
{¶ 15} In the third and fourth assignments of error, Hunter claims that the trial court erred by denying an oral motion for a mistrial that was based on several statements not admitted into evidence after objections were sustained. According to Hunter, the lead investigator testified or attempted to testify (1) to inquiring
{¶ 16} Trial courts are entitled to “wide latitude” when considering motions for a mistrial. State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, ¶ 28. Irregularities or errors in the trial process will not automatically require the trial court to order a mistrial. State v. A.M., 8th Dist. Cuyahoga No. 106400, 2018-Ohio-4209, ¶ 23, quoting State v. Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490 (2d Dist.1988), paragraph two of the syllabus. A mistrial should be granted only if the substantial rights of the accused are affected. Id. “In determining whether a defendant was deprived of a fair trial, [appellate courts] must determine whether, absent the error or irregularity, ‘the jury would have found the appellant guilty beyond a reasonable doubt.‘” State v. Junod, 3d Dist. Mercer No. 10-18-08, 2019-Ohio-743, ¶ 44, quoting State v. Morris, 10th Dist. Franklin Nos. 18AP-208 and 18AP-209, 2018-Ohio-5252, ¶ 44, and State v. Maurer, 15 Ohio St.3d 239, 267, 473 N.E.2d 768 (1984). In order to “determine whether the error resulted in prejudice, [appellate courts] must consider (1) the nature of the error, (2) whether an objection was made, (3) whether the trial court provided corrective instructions,
{¶ 17} In this case, the unsolicited statements were immediately addressed and, when relevant, curative instructions were provided to the jury. The state did not rely on any of the isolated statements throughout the remainder of the trial. In light of the overwhelming evidence, the victim‘s testimony, and the DNA evidence implicating Hunter, we cannot say that the trial court abused its discretion in denying the motion for a mistrial.
{¶ 18} In the alternative, Hunter claims that the trial court erred by admitting “overview” testimony from the “professional witnesses.” “Overview” testimony, according to Hunter, is testimony from a “professional” witness such as an investigating police officer who lacks direct knowledge of the facts of consequence. We summarily overrule Hunter‘s argument. Hunter claims that the unsolicited statements from the investigating officer that were the basis of the mistrial discussion were erroneously admitted through the guise of the state providing “overview” evidence to explain the course of investigation.
{¶ 19} The trial court sustained objections to the identified statements, and therefore, there can be no error in the admission of such evidence. The third and fourth assignments of error are overruled.2
It is ordered that appellee recover from appellant 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR