[Cite as State v. Hernandez, 2019-Ohio-5242.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108265 v. :
NELSON HERNANDEZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 19, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630116-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Aqueelah A. Jordan, Assistant Prosecuting Attorney, for appellee.
Brett M. Mancino, for appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant, Nelson Hernandez (“Hernandez”), appeals his
convictions for gross sexual imposition and kidnapping with a sexual motivation
specification and his 18-years-to-life prison sentence. Finding merit to the appeal,
we reverse and remand for a new trial. In 2018, Hernandez was charged with two counts of rape with
sexually violent predator specifications, eight counts of gross sexual imposition with
sexually violent predator specifications, and two counts of kidnapping with sexual
motivation and sexually violent predator specifications. The indictment lists the
dates of the offenses from 2006 to 2012.
Prior to trial, the state filed a notice of intent to use Evid.R. 404(B)
evidence of prior acts, specifically, evidence that Hernandez had sexually assaulted
a family member more than two decades prior to committing the acts that formed
the basis of his current indictment. Hernandez filed a motion to exclude the
evidence, and the trial court held a hearing on the matter. The trial court denied
Hernandez’s motion, and the matter proceeded to a jury trial.
The following pertinent evidence was presented at trial.
D.V. testified that she was currently 17 years old and Hernandez is her
grandfather. D.V. was adopted by her parents at the age of three. D.V. testified to
the following sexual assaults. When D.V. was five, D.V.’s mother gave birth to a child
but experienced health complications so D.V. went to stay with her grandparents.
On D.V.’s first night at her grandparents’ house, while her grandmother was away,
Hernandez went into D.V.’s room while D.V. was “half asleep.” D.V. testified that
Hernandez started touching her on her breasts and buttocks and digitally raped her.
Hernandez realized D.V. was not asleep and told her that she was only dreaming.
D.V. told her parents what had happened, but her parents did not believe her. When D.V. was six years old, Hernandez took her into the computer
room and sexually assaulted her by touching her vagina. When D.V. was nine years
old, Hernandez sexually assaulted her by touching her breasts and vagina. When
D.V. was ten years old, Hernandez sexually assaulted her by inserting a piece of
plastic into her vagina.
At some point, D.V. testified, Hernandez told her that “something bad
would happen” and “he would hurt” either her parents or her sister if she told anyone
about the abuse. D.V. testified that all the assaults occurred when D.V.’s
grandmother was not home. She further testified that Hernandez never forced D.V.
to touch him.
The grandmother died in 2012, and D.V. testified that Hernandez did
not sexually assault her after her death. D.V. again disclosed the abuse, this time in
2017, to a family friend. In January 2018, D.V. told her close cousin. Her cousin
told another family member and that family member, N.G., disclosed that she too
had been sexually abused as a child by Hernandez.
N.G. testified at trial. Hernandez married her mother shortly after
they moved to the United States from Puerto Rico when she was nine years old. N.G.
testified that Hernandez sexually assaulted her from age 9 until age 17. Hernandez
forced “oral sex” on her, forcibly touching her vagina, and forced her to touch his
penis until he ejaculated. The abuse occurred when they were alone together and
“every few weeks,” but decreased as she got older. N.G. told her mother about the abuse when she was 18. The abuse was never reported, and Hernandez was never
charged in connection with the assaults against N.G.
Cleveland Police Detective Richard Durst (“Detective Durst”) testified
that he was assigned the investigation into the alleged sexual assaults against D.V.
As part of his investigation, he interviewed N.G. Detective Durst testified that when
he arrested Hernandez, he asked about N.G. According to Detective Durst,
Hernandez told the detective, “that act occurred more than 25 years ago.”
The jury convicted Hernandez of six counts of gross sexual imposition
with sexually violent predator specifications and one count of kidnapping with
sexual motivation and sexually violent predator specifications. Prior to sentencing,
the state moved to dismiss the sexually violent predator specifications. The court
sentenced Hernandez to an aggregate sentence of 18 years to life in prison and
classified him as a Tier II sex offender.
Hernandez filed a timely notice of appeal, raising five assignments of
error for our review. The first assignment of error is dispositive of this appeal.
Assignments of Error
I. The trial court denied the appellant his constitutional right to due process under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 16 of the Ohio Constitution when it admitted other acts evidence from 30 years prior as to sexual acts committed by the appellant when he was thirty years old.
II. The trial court denied the appellant his constitutional right t0 due process under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 16 of the Ohio Constitution when it denied the appellant’s moti0n for judgment of acquittal as t0 the kidnapping, count 4.
III. The appellant’s conviction for kidnapping was against the manifest weight of the evidence.
IV. The trial court denied the appellant his constiuti0nal right to due process under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 16 of the Ohio Constituti0n when it did not properly instruct the jury as to the kidnapping counts because it did not instruct the jury with regard to leaving the victim in a safe place unharmed.
V. The trial court denied the appellant his constitutional right to due process under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 16 of the Ohio Constitution because it did not instruct the jury that any restraint or removal needed to be significant.
Improper Other Acts Evidence
In the first assignment of error, Hernandez claims that the trial court
erred when it admitted evidence in violation of Evid.R. 404(B).
The admission of evidence lies within the broad discretion of a trial
court, and a reviewing court should not disturb evidentiary decisions in the absence
of an abuse of discretion that has created material prejudice. State v. Hart, 2018-
Ohio-3272, 118 N.E.3d 454, ¶ 28 (8th Dist.), citing State v. Noling, 98 Ohio St.3d
44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43.
Pursuant to Evid.R. 404(B), evidence that an accused committed a
crime other than the one for which the accused is on trial is not admissible when its
sole purpose it to show the accused’s propensity or inclination to commit a crime, or that the accused acted in conformity with bad character. Hart at ¶ 29, citing State
v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15.
R.C. 2945.59 and Evid.R. 404(B) provide exceptions that allow other
acts of wrongdoing to be admitted into evidence. R.C. 2945.59 provides:
In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his [or her] part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his [or her] motive or intent, the absence of mistake or accident on his [or her] part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Evid.R. 404(B) provides that evidence of other crimes, wrongs, or
acts is permitted to show proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or the absence of mistake or accident.
To determine whether other acts evidence is admissible, the court
conducts a three step analysis: (1) the court considers whether the other acts
evidence is relevant to making any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence (Evid.R.
401); (2) the court considers whether evidence of the other crimes, wrongs, or acts
is presented to prove the character of the accused in order to show activity in
conformity therewith or whether the other acts evidence is presented for a legitimate
purpose, such as those stated in Evid.R. 404(B); and (3) finally, the court considers
whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. (Evid.R. 403). Williams, 134 Ohio St.3d 521,
2010-Ohio-5695, 983 N.E.2d 1278, at ¶ 20.
In this case, the state alleged that the other acts evidence was
admissible under the exceptions of (1) scheme or plan to show identity or (2) to show
Hernandez’s intent.
Scheme, Plan, or System
In State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), the Ohio
Supreme Court explained that evidence of a defendant’s “scheme, plan, or system”
in doing an act is relevant in only two situations: (1) when the other acts are part of
one criminal transaction such that they are inextricably related to the charged crime,
or (2) when a common scheme or plan tends to prove the identity of the perpetrator.
Id. at 72-73.
At the hearing, the state argued that the other acts evidence should be
admissible to show identity, arguing that “when the defendant denies a crime being
committed, identity actually becomes a material issue of fact” and the evidence
should be allowed “in order to establish common scheme, plan, system that support
the defendant’s identity[.]”
Counsel for Hernandez disagreed, arguing that other acts evidence
that is admissible to show identity is admissible when the identity of the perpetrator
is unknown to show that the perpetrator committed a “signature crime,” that is, that
the perpetrator committed a previous crime in the same manner as the current
crime. Defense counsel argued that, in this case, the identity of the perpetrator was not unknown; no one was questioning the identity of who sexually abused D.V. ─
Hernandez was outright denying he had committed these acts.
The trial court ruled that it would allow the other acts into evidence,
stating:
I think it is somewhat of a signature crime, given the age of the victims, the nature of the alleged sexual conduct, the relationship between the defendant and the alleged victims, as well as the manner of grooming and statements concerning consequences if one were to disclose this information.
The trial court ruled the other acts evidence was admissible because
the assaults against D.V. and N.G. were “signature crimes” based on the (1) age of
the victims; (2) nature of the alleged sexual conduct; (3) familial relationship; (4)
grooming of the victims; and (5) statements he made to N.G. and D.V. to keep them
from telling anyone about the abuse.
As stated above, evidence of other acts may prove the issue of identity
in two instances. The first instance, which does not apply to this case, is when the
other acts ‘“form part of the immediate background of the alleged act which forms
the foundation of the crime charged in the indictment,’ and which are ‘inextricably
related to the alleged criminal act.’” State v. Lowe, 69 Ohio St.3d 527, 531, 634
N.E.2d 616 (1994), quoting Curry, 43 Ohio St.2d at 73, 330 N.E.2d 720.
The second instance is when the evidence of other acts establishes a
modus operandi, a “unique, identifiable plan of criminal activity[,]” that is
applicable to the crime with which the defendant is charged. Lowe at id., citing State
v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus. A certain modus operandi provides a “behavioral fingerprint which, when compared to the
behavioral fingerprints associated with the crime in question, can be used to identify
the defendant as the perpetrator.” Lowe at id. But identity is an issue only when
the fact of the crime is open and evident but the perpetrator is unknown and the
accused denies that he or she committed the crime. State v. Ogletree, 8th Dist.
Cuyahoga No. 94512, 2011-Ohio-819, ¶ 36, citing State v. Smith, 84 Ohio App.3d
647, 666, 617 N.E.2d 1160 (2d Dist.1992). In this case, there was never an issue as
to the identity of the alleged perpetrator ─ the victim readily identified Hernandez
as her abuser.
Thus, the other acts evidence was not admissible to show identity.
Intent
The state also argues that the other acts evidence was admissible to
show Hernandez’s intent. We disagree.
The state contends that Hernandez’s intent was one of sexual
gratification, and his plan was to “target young females” he was related to in order
to fulfil that intent. This court has held, however, that the intent to obtain sexual
gratification is inherent in the crimes of rape. Hart, 2018-Ohio-3272, 118 N.E.3d
454, at ¶ 39. We find the same to be true for the crime of gross sexual imposition of
a child under the age of 13, R.C. 2907.05(A)(4), as charged in this case, because
consent is not at issue. Compare Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,
983 N.E.2d 1278 (finding testimony that the defendant received “some type of
sexual gratification” was relevant to show that the defendant’s intent was sexual gratification. See R.C. 2907.01; 2907.05(A)(1)). Therefore, the state did not need
any extrinsic evidence to prove Hernandez’s intent to commit the crimes of rape or
gross sexual imposition.1
Motive, Preparation, Plan
Although not succinctly stated as such in its brief, the state appears to
argue that the evidence was properly admitted to show Hernandez’s motive,
preparation, and plan to target young female children he was related to and sexually
assault them.
N.G. alleged that Hernandez sexually assaulted her more than two
decades prior to sexually assaulting D.V. Although there was a familial relationship
between Hernandez and the victims, there was no evidence that he “groomed” his
victims, let alone that he “groomed” D.V. in a same or similar manner as he
“groomed” N.G. See Williams at ¶ 21 (The state offered other acts evidence to
demonstrate the motive, preparation, and plan of the accused to target teenage
males who had no father figure and to gain their trust and confidence for the purpose
of grooming them for sexual activity with the intent for the accused to be sexually
gratified.); see also United States v. Chambers, 642 F.3d 588, 593 (7th Cir.2011)
(“Grooming refers to deliberate actions taken by a defendant to expose a child to
sexual material; the ultimate goal of grooming is the formation of an emotional
1The state does not argue that the other acts evidence was admissible to show Hernandez’s intent to kidnap D.V. with a sexual motivation; we will not consider an argument not made. connection with the child and a reduction of the child’s inhibitions in order to
prepare the child for sexual activity.”). Although Hernandez used his relationship
with D.V. to facilitate the abuse, the abuse began the first time D.V. remembered
being alone with him when she went to stay with her grandparents after her little
sister was born. Likewise, N.G. testified that Hernandez began abusing her soon
after she moved to Cleveland. There was no evidence presented that he “groomed”
either child prior to the abuse.
There were also differences between the frequency and type of the
sexual assaults. D.V. testified to a few separate and distinct occurrences over a five
year period of sexual assault that included the forcible touching of her breasts,
buttocks, and vagina; digital penetration; and penetration using a piece of plastic.
N.G. testified that Hernandez sexually assaulted her “every few weeks” over an eight
year period by forcing cunnilingus on her and forcing her to touch his penis until he
ejaculated. Unlike N.G., D.V. testified that Hernandez never forced her to touch
him.
Finally, Hernandez allegedly told D.V. and N.G. not to disclose the
abuse. The court stated that this was part of Hernandez’s unique plan and therefore
admissible as other acts evidence. On appeal, the state contends that Hernandez’s
efforts to prevent his victims from disclosing the abuse because of family
relationship is “common” and “what we typically see through the process of
grooming.” We agree with the state to a point; certainly it is not rare for a
perpetrator, especially one who is abusing a young family member, to warn his or her victim about consequences of disclosing the abuse. However, as mentioned
above, there was no evidence of “grooming.” Thus, we conclude that Hernandez’s
efforts to prevent D.V. and N.G. from disclosing the abuse are neither evidence of
grooming nor evidence of his “plan.”
Thus, while the other acts evidence may be relevant, it does not show
Hernandez’s preparation and plan or targeting or grooming of D.V.
Next, we consider whether the other acts evidence was presented to
prove the character of the accused in order to show activity in conformity therewith,
or whether the other acts evidence is presented for a legitimate purpose. After a
thorough review of the record, and noting the 25 year difference between when the
abuse of N.G. and D.V. allegedly occurred, we find no legitimate purpose for which
the evidence was admitted in this case other than to show Hernandez acted in
conformity with his alleged past behavior.
The final step is to consider whether the probative value of the other
acts evidence is substantially outweighed by the danger of unfair prejudice. The
state argues that any unfair prejudice was mitigated by the limiting instruction the
court gave to the jury with regard to the other acts evidence. We disagree. The other
acts evidence, that being N.G.’s testimony, as well as Detective Durst’s testimony
that Hernandez told him that the “act” involving N.G. occurred more than 25 years
ago, was of very little relevance in this case other than to demonstrate that
Hernandez acted in conformity with his alleged pattern of having committed prior
acts of sexual abuse. The admissibility of other acts evidence is carefully limited because of
the substantial danger the jury will convict the defendant solely because it assumes
the defendant has a propensity to commit criminal acts, or deserves punishment
regardless of whether he or she committed the crime charged in the indictment. See
Curry, 43 Ohio St.2d at 68, 330 N.E.2d 720. This danger is particularly high when
the other acts are similar to the charged offense, or of an inflammatory nature.
Ogletree, 8th Dist. Cuyahoga No. 94512, 2011-Ohio-819, at ¶ 39, citing State v.
Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). “Because of the severe social
stigma attached to crimes of sexual assault and child molestation, evidence of these
past acts poses a higher risk, on the whole, of influencing the jury to punish the
defendant for the similar act rather than the charged act.” State v. Miley, 5th Dist.
Richland No. 2005-CA-67, 2006-Ohio-4670, ¶ 59. In a case where the evidence is
of a particularly inflammatory nature, a curative instruction may be insufficient to
cure the prejudicial effect. State v. Patterson, 5th Dist. Stark No. 2017CA00022,
2017-Ohio-8970, ¶ 36-37.
This case involved other acts evidence of prior acts of alleged sexual
abuse against a family member, the defendant’s stepdaughter, which were of limited
probative value to the charged acts of sexual abuse against D.V., but highly
prejudicial due to the age of the victim and the inflammatory nature of the evidence.
Although the court’s limiting instruction may have lessened the impact of the
evidence to some extent, we find the instruction insufficient to cure the prejudicial
effect. The exceptions offered by the state for admission of the other acts
evidence are inapplicable to this case and no other exception applies. Accordingly,
the trial court abused its discretion in allowing the other acts testimony. We
therefore sustain the first assignment of error and reverse and remand for a new
trial.
The second through fifth assignments of error are moot based on our
disposition of the first assignment of error. See App.R. 12(A)(1)(C).
Judgment reversed; case remanded.
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
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.
LARRY A. JONES, SR., JUDGE
PARTICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR