State v. Hernandez

2018 Ohio 5031

Opinion

[Cite as State v. Hernandez, 2018-Ohio-5031.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106577

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

HUMBERTO HERNANDEZ

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-614400-A

BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: December 13, 2018 ATTORNEYS FOR APPELLANT

Joseph C. Patituce Trisha M. Breedlove Megan Patituce Patituce & Associates 26777 Lorain Road, Suite 1 North Olmsted, OH 44070

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

Aqueelah A. Jordan Saleh Awadallah Mahmoud S. Awadallah Kristen L. Sobieski Geoffrey S. Minter Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶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 of 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 perpetrated 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 crimes; and that the jury’s verdict is against the weight

of the evidence. We find no error and affirm.

I. Other Acts Evidence {¶3} Apart from giving testimony directly related to the specific counts of the indictment,

the girl testified that Hernandez took her and her brother on bicycle rides to a local park, and on

one such occasion, he put his hands down her pants and digitally penetrated her. Hernandez

objected on grounds that the indictment did not contain any charges relating to the incident in the

park. He further complained that the girl had testified that “almost every day” Hernandez would

wait for her to come home from school and make her stroke his penis while he watched

pornography. The court said that “child sexual assault is a very fluid sort of thing[,]” and that

Hernandez had the power to cross-examine the girl on her credibility. It stressed that “this is a

pattern of conduct and this pattern of conduct is clearly pervasive based on her testimony.”

Hernandez argues that the girl’s testimony was irrelevant other acts testimony admitted in

violation of Evid.R. 404(B).

{¶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 specific ground of objection

at the time a ruling admitting evidence is made. See Evid.R. 103(A)(1); State v. Bentz,

2017-Ohio-5483, 93 N.E.3d 358, ¶ 127 (3d Dist.). {¶5} Hernandez did not use Evid.R. 404(B) as grounds for objecting to the girl’s

testimony — defense counsel stated that “I was objecting because it’s outside of the confines of

what they’re trying to prove.” This objection on grounds of relevancy does not trigger Evid.R.

404(B), which prohibits proof of a defendant’s uncharged wrongful acts for the purpose of

establishing his propensity to commit the charged offense, but allows the court to admit such

evidence for another purpose, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident. To be sure, the text of Evid.R.

404(B) states that evidence of other acts “may be relevant” for proving “motive or intent, the

absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing

the act in question.” But Hernandez’s objection was so general that at no point in the sidebar

conference at which the parties discussed the objection did Hernandez mention Evid.R. 404(B)

and other acts evidence. We can only conclude that the objection was based on Evid.R. 401,

which states that “relevant” evidence is “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.”

{¶6} In addition, the record shows that Hernandez did not ask the court to instruct the jury

on the use of other acts evidence under Evid.R. 404(B), nor did the court give an other acts

evidence instruction on its own initiative. Hernandez forfeited the right to argue Evid.R. 404(B)

as a ground for appeal.

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 defense

counsel failed to cross-examine the girl, a tactic that he claims was not a viable trial strategy. {¶8} A defendant claiming ineffective assistance of counsel must show that trial counsel

was deficient for failing to raise the issues he presents on appeal and that there was a reasonable

probability of success had those issues been presented at trial. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶9} Defense counsel had no obligation to proactively seek exclusion of other acts

evidence. Evid.R. 404(B) states: “In criminal cases, the proponent of evidence to be offered

under this rule shall provide reasonable notice in advance of trial, or during trial if the court

excuses pretrial notice on good cause shown, of the general nature of any such evidence it

intends to introduce at trial.” The record on appeal does not show that the state gave notice of

its intent to offer evidence of Hernandez’s uncharged conduct at trial, so defense counsel could

reasonably believe that such evidence would not be offered. DuBray v. Pringle, D.N.D. No.

3:16-cv-29, 2016 U.S. Dist. LEXIS 133370, 25 (Aug. 30, 2016). In addition, defense counsel’s

pretrial focus was on Hernandez’s competency to stand trial — he had been ruled incompetent,

provided treatment, and restored to competency. Counsel does not violate a duty to a client by

focusing on one issue to the exclusion of another. Harrington v. Richter, 562 U.S. 86, 109, 131

S.Ct. 770, 178 L.Ed.2d 624 (2011), quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1,

157 L.Ed.2d 1 (2003) (per curiam) (“There is a ‘strong presumption’ that counsel’s attention to

certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.’”). {¶10} Defense counsel’s decision not to cross-examine the girl fell within the realm of

trial strategy. Our review of trial counsel’s performance is highly deferential and we refrain

from second-guessing tactical decisions of trial counsel. State v. Hand, 107 Ohio St.3d 378,

2006-Ohio-18, 840 N.E.2d 151, ¶ 231. As an appellate court reviewing a trial transcript, we are

at a disadvantage — we have no way of knowing how the girl testified and, equally important,

how the jury perceived her and her testimony. These were considerations that defense counsel

had to weigh in deciding whether to engage in a vigorous cross-examination. As such, they fell

within the realm of trial tactics that we will not second-guess.

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”). {¶13} None of the three instances that Hernandez claims amounted to bolstering truly is

such. The first instance occurred when the victims’ mother testified that after living with

Hernandez (at which time the crimes occurred), the family moved out. She testified that at the

time they moved out, she and her husband (Hernandez’s son) were unaware of what Hernandez

had done. Financial circumstances then arose in which they contemplated moving back in with

Hernandez. When the girl learned this, she became upset over the prospect of living with

Hernandez again and said that she “would get a job and help us pay the bills, that she was not

going” back to live with Hernandez.

{¶14} The second instance occurred in the context of the girl’s disclosing to her mother

Hernandez’s sexual 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.” {¶16} The second and third claimed instances of bolstering do not directly implicate the

credibility of the sexual abuse allegations made by the victims — they explain actions taken by

the parents in response to the victims’ disclosure of Hernandez’s acts. A parent can state that

the police were contacted after allegations of sexual abuse without that statement being viewed

as a comment on the credibility of the accuser. The first instance does involve a statement made

by the girl victim, but it did not involve her credibility — it instead described the context in

which the girl disclosed the acts perpetrated on her.

{¶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 he 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

{¶19} Hernandez argues that the jury’s verdict is against the manifest weight of the

evidence because his witnesses contradicted testimony by the victims. He maintains that these

conflicts, taken in conjunction with “improper testimony” related to unindicted allegations and

improper bolstering, show that the jury lost its way and a miscarriage of justice resulted.

{¶20} The manifest weight of the evidence standard requires the reviewing court 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 we can only reverse the trier of fact if its decision is very plainly

or obviously contrary to the evidence. {¶21} The girl testified that on one occasion when Hernandez had just finished molesting

her in his bedroom, Hernandez’s wife came home and found them in the bedroom. Hernandez’s

wife did not directly testify to this incident, but testified that she never saw any inappropriate

interactions between Hernandez and the children. This was not particularly compelling

testimony: the victims testified that Hernandez perpetrated his acts of abuse when they arrived

home from school and Hernandez’s wife conceded that her work hours meant that the children

arrived home from school well before her shift ended and she would return home. The wife’s

testimony did not detract from the state’s evidence showing that Hernandez committed his crimes

when no other adult was present in the house.

{¶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 R.C. 2907.05(A)(4): that he had sexual

contact with the boy knowing that the boy was less than 13 years of age. “Sexual contact”

means “any touching of an erogenous zone of another, including without limitation the thigh,

genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually

arousing or gratifying either person.” R.C. 2907.01(B). The trier of fact may infer a purpose of

sexual arousal or gratification from the nature and circumstances of the conduct. State v. Finklea, 8th Dist. Cuyahoga No. 100066, 2014-Ohio-1515, ¶ 17; State v. McShaffrey, 9th Dist.

Summit No. 28539, 2018-Ohio-1813, ¶ 11.

{¶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 touch 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 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.

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