State v. Hunter , 2020 Ohio 2718 ( 2020 )

[Cite as State v. Hunter, 2020-Ohio-2718.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108684
v. :
ERIC HUNTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
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.
SEAN C. GALLAGHER, J.:
Eric Hunter appeals his conviction for rape in violation of R.C.
2907.02(A)(1)(c), a felony of the first degree, following a jury trial that resulted in a
six-year term of imprisonment.1 We affirm.
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.
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
1 Although the jury found Hunter guilty of rape in violation of R.C. 2907.02(A)(2)
(forcible rape), the trial court merged that finding of guilt into the substantial
impairment rape under R.C. 2941.25 before imposing the sentence. Because Hunter
was not convicted of forcible rape (in other words there is no sentence imposed on that
count as required for a conviction to be final under State v. Whitfield, 124 Ohio St.3d
319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 12) and because we affirm the resulting conviction
for the substantial impairment rape, we need not consider the merged offense in this
appeal. State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 16; State v.
Young, 10th Dist. Franklin Nos. 18AP-630 and 18AP-631, 2020-Ohio-462, ¶ 86.
someone else.” Hunter went so far as to stand and mimic the sexual movement.
The victim felt uncomfortable with the turn in the conversation and excused
herself. Hunter claims that the victim’s retelling of the events introduced
competing excuses that the victim offered when leaving. The victim claims to have
said she was going inside to check on her infant son, while Hunter claims that the
victim also said that she was going inside to text or talk to her boyfriend.
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.
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.
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
apparently left the house with Hunter at that time — neither was present when
police officers responded. The victim was taken to the hospital for evaluation and
preservation of evidence. DNA implicating Hunter was discovered on the victim’s
menstrual pad, a portion of which was preserved by the healthcare professional.
Upon this evidence, the jury found Hunter guilty of forcible and substantial
impairment rape, although only the substantial impairment conviction survived
merger.
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.
R.C. 2907.02(A)(1)(c) provides that “no person shall engage in
sexual conduct with another who is not the spouse of the offender or who is the
spouse of the offender but is living separate and apart from the offender,” if “the
other person’s ability to resist or consent is substantially impaired because of a
mental or physical condition” and the offender is aware of the impairment. Rape
under R.C. 2907.02 can occur through the act of penetration or cunnilingus.
Penetration is not required to demonstrate cunnilingus. State v. Lynch, 98 Ohio
St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 86. “[T]he act of cunnilingus is
completed by the placing of one’s mouth on the female’s genitals.” Id., citing State
v. Ramirez, 98 Ohio App.3d 388, 393, 648 N.E.2d 845 (3d Dist.1994), and State v.
Bailey, 78 Ohio App.3d 394, 395, 604 N.E.2d 1366 (1st Dist.1992). In this case,
however, the indictment included the element of vaginal penetration as it relates to
proving sexual conduct.
“Sexual conduct” under R.C. 2907.02 is an element of rape. R.C.
2907.01(A) provides that “sexual conduct” is defined such that vaginal intercourse
includes “‘the insertion, however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal cavity of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.’” State v.
Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 84, quoting R.C.
2907.01(B).
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.
The sole issue is whether the victim’s ambiguous testimony
regarding penetration and the slight inconsistencies in her retelling of the events
demonstrate that Hunter committed the substantial impairment rape beyond a
reasonable doubt — a matter that must be solely addressed under the weight-of-
the-evidence standard of review.
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).
In this case, the victim’s testimony was largely consistent with the
version of events she provided the healthcare professional and the investigating
police officer. The minor discrepancies in the expletive she remembers Hunter
yelling is of little consequence. Further, the difference between the reports of the
victim being awoken with the defendant on her back, but with his head between
the victim’s legs, as opposed to the victim’s trial testimony stating that she awoke
on her back to find Hunter’s head between her legs was considered and resolved by
the trier of fact. On the basic events, the victim’s retelling of the story was largely
consistent and there was evidence of Hunter’s DNA on the menstrual pad within
the victim’s undergarment, in part corroborating the victim’s testimony. And
finally, although the victim could not specifically testify to the penetration because
she was asleep when the rape was committed, she unambiguously testified to
feeling pressure inside her vagina and seeing Hunter’s face between her legs
immediately upon waking up.
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.
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
about Hunter’s wife’s safety as he interviewed her; (2) to calling additional officers
to accompany him for officer safety to arrest Hunter; and (3) to a belief that
Hunter was “on the run” (which came out at the time the officer was testifying
about evaluating a phone to determine Hunter’s location). Importantly, all the
objections to the three isolated, unsolicited statements were sustained, and the
trial court provided the curative instruction for the jury to disregard the
inadmissible statements.
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,
and (4) the strength of the evidence against the defendant.” Junod, citing Morris at
¶ 44.
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.
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.
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
2In light of the fact that Hunter has not demonstrated any reversible errors, we
need not consider the fifth and final assignment of error in which Hunter claims his
convictions should be reversed based on the cumulative-error doctrine. Cumulative
effect of errors may constitute an independent ground for reversal even though each
instance of trial-court error does not in and of itself constitute cause for reversal. State
Hunter’s conviction is affirmed.
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
v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 277, quoting State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. Thus, the starting
premise of a cumulative-error claim is that the defendant has demonstrated multiple
instances of error.