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State of Ohio v. Harold Benitez

October 27, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
HAROLD BENITEZ DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-532753

The opinion of the court was delivered by: Mary J. Boyle, P.J.:

Cite as State v. Benitez,

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

BEFORE: Boyle, P.J., Sweeney, J., and Jones, J.

{¶1} Defendant-appellant, Harold Benitez, appeals his gross sexual imposition and kidnapping convictions. He raises four assignments of error for our review:

{¶2} "[1.] Prosecutorial misconduct denied appellant his constitutional right to a fair trial.

{¶3} "[2.] The trial court erred when it permitted testimony of other crimes, acts, or wrongs, attributed to defendant-appellant to be introduced without objection and by its failure to give a limiting instruction during the course of trial and in the general charge to the jury, the purposes for which evidence presented by the prosecutor could be used.

{¶4} "[3.] The court erred by the court's own abuse of discretion in failing to allow defendant-appellant to present witnesses that the state had called in the case in chief.

{¶5} "[4.] Defendant-appellant's convictions were contrary to the manifest weight of the evidence."

{¶6} Finding no merit to his appeal, we affirm.

Procedural History and Factual Background

{¶7} In January 2010, Benitez was indicted on 32 counts: ten counts of rape, with notice of prior conviction, repeat violent offender, and sexually violent predator specifications; ten counts of gross sexual imposition, with sexually violent predator specifications; ten counts of kidnapping, with notice of prior conviction, repeat violent offender, and sexual motivation specifications; and two counts of disseminating matter harmful to juveniles, with a furthermore clause that the victim was under 13. The notice of prior conviction, repeat violent offender, and sexually violent predator specifications were bifurcated and tried to the court. The following facts were presented to a jury.

{¶8} Selena Perez ("Selena") had five children when she met Benitez, although she did not have custody of them at that time; their father did. Selena moved in with Benitez in September 2005, soon after she met him. In June 2007, Selena regained custody of her five children, and they moved in with her and Benitez at that time.

{¶9} Selena's daughter, A.F., who was 11 years old at the time of the trial, testified that within "a few weeks" after she and her siblings moved in with Selena and Benitez, Benitez began to come to her bedroom at night. A.F. explained that Benitez would remove her from her top bunk bed and carry her to his bedroom that he shared with Selena, and he would lock the door. Selena worked nights most of the time, and was not home when this happened.

{¶10} A.F. testified that Benitez would remove her pants, underwear, and shirt, and touch her with "his mouth and his hands," on her chest and her "two private parts." She demonstrated on a koala bear how Benitez would "rub" her chest and "private parts" with his hands. A.F. said that Benitez would touch her chest with his mouth like "a baby does to a mom." She further stated that Benitez would touch her between her legs with his tongue "like he keeps licking a lollipop." A.F. denied that Benitez ever touched her on the inside of her vagina, nor did he ever touch her with his penis. But A.F. did state that Benitez tried to get her to touch his "private parts," which she did "sometimes," but other times she just "held [her] arms closed."

{¶11} A.F. testified that Benitez did this "almost every night," and it happened "more than 30 times, *** maybe even more than 50."

{¶12} A.F. further testified that Benitez would also come into the bathroom when she was taking a shower and "open up the curtains." And other times, when Benitez was taking a shower, A.F. would have to use the bathroom when Benitez was showering because it was the only bathroom, and he would open the curtain and show her "everything."

{¶13} A.F. also testified that "a few times" Benitez showed her pornographic material on the internet. He showed her a naked photo of an actress from High School Musical and told A.F. that she looked like the actress. Another time, Benitez showed her a video of a man and a woman who were not wearing clothes, and said, "that's what me and your mom did, and that's what your grandma and grandpa did."

{¶14} In the summer of 2009, A.F. began to tell her mother and her paternal aunt, Megan Fallon, that she wanted to move to Arizona to live with her aunt. A.F.'s mother agreed to let her move to Arizona with Fallon. A.F. moved to Arizona in September 2009.

{¶15} In December 2009, right before Fallon was going to bring A.F. back to Ohio to visit for Christmas, Fallon testified that A.F. began acting "odd." Although A.F. was excited to go back to Ohio to visit her family, she did not want to stay at Selena's and Benitez's home. A.F. wanted to stay with Fallon at A.F.'s paternal grandmother's home and just visit her mother, Benitez, and her siblings.

{¶16} Then, one evening, two days before they left for Ohio, Fallon testified that she and A.F. were watching Law and Order Special Victims Unit. Fallon testified that A.F. got angry at one point while watching the show. Fallon explained that there was an "episode where a little girl was being questioned and being prompted, to *** tell the detective that was questioning her that it would be okay if she just, you know -- just go ahead and tell us. Everything will be okay." Fallon said that A.F. got angry, and said, "I hate when they tell little kids that stuff. So I don't know why they would tell somebody that when that's not true." Fallon asked her if something was wrong. Eventually, A.F. began crying and told Fallon what Benitez had done to her.

{¶17} A.F. testified that she never told anyone before she told her aunt because she was afraid of Benitez. A.F. said that Benitez had told her that "he had shot a guy and that --- one time he said that people from Puerto Rico don't mess around with people." A.F. also said that Benitez told her not to tell her mom "because [her] mom's happy now and that it would break her heart." A.F. further explained that for a long time, she thought it was her fault that it happened because she "didn't do anything. I could have yelled. I could have screamed, but I didn't."

{¶18} A.F. further testified that when she and Fallon came to Ohio for Christmas, her mom "barely wanted to see [her] or look at [her]." A.F. talked to the police, doctors, and social workers while she was in Ohio.

{¶19} A.F.'s older brother, A.U., testified. He was 13 years old at the time of trial. He stated that when he lived with his mother and Benitez, Benitez showed him "pornographical material." Most of the time, A.U. would "walk in" on Benitez viewing pornographic material and Benitez would allow him to see it, but "a couple times," Benitez asked him to look at it.

{¶20} Selena testified that she did not believe A.F. was telling the truth about Benitez sexually abusing her. For that reason, Children and Family Services removed all of her children from her custody for "failure to protect." Selena did find out that Benitez was showing A.U. pornographic material after Children and Family Services became involved with the family, and told her about it. Selena further testified that she received a letter from Benitez admitting that he had shown A.U. pornographic material, but he said he did it for sex education purposes.

{¶21} Sheryl Zubal, social worker at Children and Family Services, testified that she became involved with Selena, Benitez, and the children in the fall of 2009, after A.F. had moved to Arizona. Selena explained that it was her younger son's (A.V.'s) daycare worker who called Children and Family Services on the family. Later, in December 2009, Zubal learned of A.F.'s sexual abuse allegations against Benitez. Soon after that, Zubal also learned from A.U. that Benitez had been showing him pornographic material.

{¶22} Kathleen Goelnetz, a sexual assault nurse examiner, testified that she examined A.F. in December 2009. Although there was no physical evidence of sexual abuse, she testified as to what A.F. told her about what Benitez had done to her. A.F. told Goelnetz nearly the same story as to what she testified to in court.

{¶23} Benitez testified on his own behalf and presented three other witnesses: his nieces, Myra and Giezi Latorre, and Karen Perez (Selena's sister). All three women testified that they used to help Benitez and Selena take care of the children. They all testified that they had babysat the children and had seen A.F. watching Law and Order Special Victims Unit many times. They also testified that Benitez had never done anything inappropriate to them, nor had they seen him do anything inappropriate to A.F.

{¶24} Benitez testified that he had never done anything to A.F. He said that he was the one who suggested that she go to Arizona to live with her aunt. Benitez admitted to showing pornographic material to A.U., but said that it was only for educational purposes.

{ΒΆ25} The jury found Benitez not guilty of the rape counts, but guilty of the gross sexual imposition, kidnapping counts with sexual motivation specifications, and disseminating matter harmful to juveniles. The trial court found defendant guilty of the repeat violent offender, sexually violent predator, and notice of prior conviction specifications. The court then sentenced Benitez to 40 years to life in prison, and advised Benitez that he would be subject to a mandatory five years of postrelease control upon his release from ...


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