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State v. Nguyen

Court of Appeals of Ohio, Fourth District

July 11, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
CHARLES H. NGUYEN, Defendant-Appellant.

Elizabeth Gaba, Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecutor, and George J. Reitmeier, Athens County Assistant Prosecutor, for appellee.

DECISION AND JUDGMENT ENTRY

William H. Harsha, Judge.

{¶1} Charles Nguyen appeals his convictions for rape, kidnapping, aggravated burglary, and tampering with evidence. Nguyen contends the trial court violated his constitutional rights when it permitted expert testimony from Dwayne Winston, Derek Shoemaker, and Natalie Saracco, in violation of Evid.R. 702 and 705. However, Saracco did not act as an expert on the matters Nguyen complains about. Therefore, that testimony could not have violated Evid.R. 702 or 705. Moreover, Nguyen fails to adequately explain how the testimony of Winston and Shoemaker violated the rules of evidence and how those violations in turn resulted in a violation of his constitutional rights.

{¶2} Nguyen also argues the court erred when it denied his pre-trial request for a rape shield hearing. However, this request was untimely. And the court did ultimately conduct the hearing during trial, so we fail to see how Nguyen suffered any prejudice.

{¶3} In addition, Nguyen contends the court erred when it did not let him make inquiries during trial about the victim's sexual past. However, Nguyen did or could have asked several of the questions he claims the court prohibited. Moreover, the court did not err when it excluded evidence that the victim and Nguyen engaged in sexual activity one time prior to the rape. The court could reasonably conclude the inflammatory or prejudicial nature of this evidence outweighed its slight probative value and that the State's interests advanced by the rape shield law outweighed the probative value of the evidence.

{¶4} Next, Nguyen contends the court violated Evid.R. 403(A) and 611(A) when it admitted into evidence enlarged photos, which purportedly depict bruising of the victim's cervix. However, the trial court reasonably concluded the probative value of the photos was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. And the admission of the photos did not make the presentation of evidence ineffective for ascertainment of the truth. Therefore, we find no abuse of discretion occurred.

{¶5} Nguyen also claims the court erroneously let the jury see exhibits in bags with "testimonial statements" written on the bags. Even if we presume error occurred, it was harmless beyond a reasonable doubt. The legible statements Nguyen objects to are duplicative of other evidence at trial. Moreover, the illegible statements Nguyen also objects to could not have influenced the jury because they had no discernible meaning.

{¶6} In addition, Nguyen contends the court violated his rights under the Confrontation Clause when it prohibited him from asking the victim certain questions to determine whether she had been coached. However, Nguyen did elicit testimony on this point - the victim denied discussing her testimony with anyone. Because a defendant has no right to ask a witness repetitive questions until he gets an answer that he likes, the court's restrictions were proper and did not violate his right of confrontation.

{¶7} Next, Nguyen argues the court also violated his Confrontation Clause rights when it refused to let him cross-examine a deputy about a police report used to refresh his memory. Nguyen claims Evid.R. 612 permitted his questions but again fails to explain how a violation of the rule constitutes a Sixth Amendment violation. Moreover, he vaguely claims the report contradicted the deputy's testimony without explaining what the purported contradictions were or why they are significant. It is not this court's function to construct an appellant's arguments for him.

{¶8} In addition, Nguyen argues the court erred when it permitted the prosecutor, under the guise of refreshing the victim's memory, to have the victim read four exhibits to the jury. Even if the court erred in this regard, and even if that error was of constitutional magnitude, it was harmless beyond a reasonable doubt. Another witness also read two of the exhibits to the jury without objection. And the information in the other two exhibits was duplicative of other evidence adduced at trial.

{¶9} Nguyen contends his convictions are against the manifest weight of the evidence and insufficient evidence supports them. He implicitly concedes the victim's testimony alone, if believed, supports the rape, kidnapping, and aggravated burglary convictions. His explicit argument simply attacks her credibility and that of other State's witnesses. But we leave credibility determinations to the trier of fact. For the tampering with evidence conviction, Nguyen again attacks the victim's credibility and also argues that no evidence supports his conviction. However, the State presented evidence for each element of the offense, so we cannot say the jury clearly lost its way and created a manifest miscarriage of justice when it found Nguyen guilty. His convictions are not against the manifest weight of the evidence and are supported by sufficient evidence.

{¶10} Nguyen also complains the court committed reversible error when, prior to the trial date, it sua sponte excused several prospective jurors for various reasons, like vacations and medical issues. However, this is not grounds for reversal - the discharge of a prospective juror on grounds of personal excuse is solely a matter between the court and juror. Absent a systematic abuse, the parties cannot interfere with the court's discretion. Moreover, the court's actions did not deprive Nguyen of the essential benefits of voir dire.

{¶11} Next, Nguyen contends the court erred when it removed a prospective juror for cause - financial hardship - as she expressed a willingness to serve on the jury and said she would "get by somehow." However, the court was free to conclude she had a financial hardship because she lived paycheck to paycheck, would miss two-thirds of her work week for each week of trial, and suggested that to "get by" she might have to take out a loan. Therefore, the court's decision to remove her for cause was reasonable and did not constitute an abuse of discretion.

{¶12} In addition, Nguyen argues that the court erred when it failed to merge certain convictions. We agree that rape and kidnapping are offenses of similar import; but we also agree with the court's conclusion that Nguyen had a separate animus for each crime. In addition, we agree that kidnapping and aggravated burglary are offenses of similar import and that rape and aggravated burglary are also offenses of similar import. We remand so the trial court can make an initial determination of whether these pairs of offenses were committed separately or with a separate animus and if necessary, resentence Nguyen accordingly.

{¶13} Finally, Nguyen complains that the court erred when it imposed maximum and consecutive sentences. We decline to address his arguments at this time about the rape, kidnapping, and aggravated burglary offenses because they may be rendered moot on remand. For tampering with evidence, the court imposed the maximum sentence but ordered Nguyen to serve it concurrently to the other sentences. This sentence is neither clearly and convincingly contrary to law, nor did the court demonstrate an unreasonable, arbitrary, or unconscionable attitude when it imposed the sentence. Accordingly, we reject Nguyen's argument.

I. Facts

{¶14} A grand jury indicted Nguyen for rape, kidnapping, aggravated burglary, and tampering with evidence. He pleaded not guilty, and a jury trial ensued.

{¶15} The State presented the following version of events. Nguyen and the victim, Hong "Jenny" Nguyen (who is not related to the appellant), met online on VietSingle.com. Nguyen lived in New York City, and Jenny lives in Athens, Ohio. Near the end of March 2009, Jenny went on vacation to New York City and met Nguyen in person. On the second day of the trip, Jenny told Nguyen she just wanted to be friends. But they continued to communicate, and Nguyen visited her in Ohio from May 9, 2009, to May 17, 2009. During the visit, Jenny realized they could not be friends because Nguyen still wanted a romantic relationship. When she drove him to the airport on May 17th, Jenny ended the friendship. She tried to give Nguyen a goodbye hug at the airport, but he turned and walked away.

{¶16} On May 19, 2009, Nguyen unexpectedly came to Jenny's apartment where she was, along with her three-year-old nephew, Kayden. Nguyen told her that he wanted to apologize for his behavior at the airport and stepped into the apartment. Jenny went to her bedroom to change because she felt exposed in her pajamas. Nguyen followed, so she sat on the edge of her bed and used her arms to cover herself. Nguyen sat and told her that he wanted them to be together. When she rejected him, he took white rope from his pocket. She asked what he was doing, and he told her not to scream. Jenny begged him not to "do this, " but he took off her shorts and ripped her shirt off. He spread her legs and examined her to see if she had "had sex with anybody."

{¶17} Later, Nguyen told Jenny to turn around so he could tie her hands with the rope. She kept saying "please don't, " and Nguyen told her not to scream or he would kill Kayden. After he tied her hands up, he told her to lie on the bed so he could tie her ankles together. When she begged him to not kill her, he replied he would not because he loved her. Jenny tried to fight, but he said, "I am not kidding around, I am going to kill Kayden." When Jenny continued to fight, Nguyen said, "I swear I have scissors in my pockets I will slit his throat." She lay on the bed, and he tied her ankles together. Jenny tried to calm Nguyen down while she worked one of her wrists free. Nguyen made her promise to give their relationship another chance and said if she broke her promise, her family would "die a horrible death." Then he used scissors and cut the ropes off her ankles and other wrist. But when Jenny sat up, Nguyen took off his pants and said "I am just gonna do this." Jenny begged him to stop, but he threatened Kayden again. Nguyen let Jenny check on Kayden in another room, but when she returned to the bedroom, he told her to "lay down, we are gonna do this." Then he inserted his penis into her vagina. A few minutes later, he ejaculated on her stomach, and she used a scarf to wipe off the ejaculate.

{¶18} Nguyen told Jenny he was taking her to New York. He made her pack and get dressed, and he used medical tape to bind her arms together. He also tried to blindfold her with a tie and tape her mouth shut but took the items off when Jenny protested. He took her to the living room and asked if she was going to call the police. After Jenny promised she would not, he used the scissors to cut her free. He let Jenny get in her car with Kayden around 9:45 a.m. so she could go to work. Jenny drove to work, where she told her sister's boyfriend what happened and called 911. Then she went to the police station. Before Jenny left the house, she saw Nguyen pick up pieces of the rope and stuff them in his pockets. She thought he also put the scissors and medical tape in his pockets. Law enforcement did not find the scissors or tape at the crime scene and only found what Jenny identified as a portion of the rope Nguyen used. The State presented evidence that Nguyen's semen was in Jenny's vagina after the incident, and his cell phone was in the Athens area around the time of the rape.

{¶19} Nguyen did not testify or call any witnesses on his behalf.

{¶20} A jury found Nguyen guilty on all counts. The court sentenced him to 10 years each for rape, kidnapping, and aggravated burglary and five years for tampering with evidence. The court ordered that the sentences for rape, kidnapping, and aggravated burglary run consecutive to each other and the sentence for tampering with evidence run concurrent to the other sentences, for an aggregate 30-year sentence. Nguyen filed an appeal, which we dismissed for lack of a final order because the trial court had not ruled on a motion for a new trial. State v. Nguyen, 4th Dist. No. 10CA43, 2012-Ohio-2488. After the court denied the motion, Nguyen filed this appeal.

II. Assignments of Error

{¶21} Nguyen assigns nine errors for our review:[1]

1. "THE TRIAL COURT ERRED TO THE PREJUDICE OF DR. NGUYEN AND INFRINGED UPON HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION (CONFRONTATION AND DUE PROCESS), WHEN IT PERMITTED EXPERT TESTIMONY CONTRARY TO RULES 702 AND 705 OF THE OHIO RULES OF EVIDENCE [Day 3, Vol. 2, pp. 279-344; Day 4, Vol. 1, pp. 6-167; Day 5, Vol. 1, pp. 38-40]."
2. "THE TRIAL COURT ERRED TO THE PREJUDICE OF DR. NGUYEN WHEN IT FAILED TO A HOLD A RAPE SHIELD HEARING BEFORE TRIAL AND DURING TRIAL, AT DR. NGUYEN'S REQUEST, IN VIOLATION OF R.C. 2907.02 AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION [Final Pre-Trial, pp. 36-47: 8/2/10; Day 2, Vol. 1, pp. 61-68, 70]."[2]
3. "THE TRIAL COURT ERRED WHEN IT PERMITTED ENLARGED PHOTOGRAPHS OF THE ALLEGED RAPE VICTIM'S CERVIX AND EXHIBIT BAGS LABELED WITH TESTIMONIAL STATEMENTS TO BE USED IN JURY DELIBERATIONS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ALONG WITH RULES 403(B) AND 611(A) OF THE OHIO RULES OF EVIDENCE [Day 5, Vol. 2, pp. 277-278; Day 9, Vol. 1, pp. 105-121]."
4. "THE TRIAL COURT ERRED WHEN IT DID NOT PERMIT DEFENSE COUNSEL TO FULLY CROSS-EXAMINE THE ALLEGED RAPE VICTIM CONCERNING CONVERSATIONS SHE HAD ABOUT HER TESTIMONY DURING A RECESS AND PROHIBITED CROSS-EXAMINATION OF AN OFFICER ABOUT A POLICE REPORT USED DURING TESTIMONY AND TO PREPARE UNDER OHIO EVIDENCE RULE 612, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. [Day 7, Vol. 1, p. 165-166; Day 4, Vol. 1, p. 246, Vol. 2, p. 302-303]."
5. "DR. NYUGEN'S CONVICTIONS AND SENTENCES ON THE RAPE, KIDNAPPING AND AGGRAVATED BURGLARY VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION [Sentencing Transcript. 8/18/10]."
6. "THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING MAXIMUM, CONSECUTIVE SENTENCES WITHOUT ADEQUATE JUSTIFICATION [Sentencing Transcript. 8/18/10]."
7. "THE CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION [Day 6, Vol. 1, pp. 27 - Day 7, p. 182]."
8. "THE TRIAL COURT ERRED IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION (DUE PROCESS) AND RULE 612 OF THE OHIO RULES OF EVIDENCE WHEN IT PERMITTED THE PROSECUTOR, UNDER THE GUISE OF REFRESHING A WITNESS'S MEMORY, TO PUT BEFORE THE JURY CONTENTS OF AN INADMISSIBLE DOCUMENT [Day 6, Vol. 1, p. 119-131]."
9. "THE TRIAL COURT ERRED WHEN IT EXCUSED JURORS, EX PARTE, WITHOUT THE PRESENCE OF DEFENSE COUNSEL OR DR. NGUYEN AND ONE FOR CAUSE, VIOLATING DEFENDANTS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, R.C. 2945.27, ALONG WITH RULES 24 & 43 OF THE OHIO RULES OF CRIMINAL PROCEDURE [Final Pre-Trial Transcript, p. 26 seq.-8/2/10]."

III. Expert Testimony and the Sixth Amendment

{¶22} In his first assigned error, Nguyen complains the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it permitted expert testimony from three people contrary to Evid.R. 702 and 705. In a footnote, he states that each constitutional claim "invokes both the federal constitutional provision and its Ohio constitutional counterpart." (Appellant's Br. 5). However, because he does not separately argue the state constitutional issue, we reject it summarily. See App.R. 16(A); App.R. 12(A)(2); and paragraph 31 below.

{¶23} Evid.R. 702 provides:

A witness may testify as an expert if all of the following apply:
(A)The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B)The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C)The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1)The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2)The design of the procedure, test, or experiment reliably implements the theory;
(3)The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

{¶24} Evid.R. 705 states: "The expert may testify in terms of opinion or inference and give the expert's reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise."

{¶25} Under the rules of evidence, "[t]he determination of the admissibility of expert testimony is within the discretion of the trial court. Evid.R. 104(A). Such decisions will not be disturbed absent abuse of discretion." Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. The phrase "abuse of discretion" implies the court's attitude is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶26} However, the Sixth Amendment guarantees a criminal defendant the right "to be confronted with the witnesses against him." Implicit in this guarantee is the right to cross-examine adverse witnesses. State v. Keck, 4th Dist. No. 09CA50, 2011-Ohio-1643, ¶ 16. This guarantee applies to the states through the Fourteenth Amendment. State v. Keairns, 9 Ohio St.3d 228, 229, 460 N.E.2d 245 (1984), citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.E.2d 923 (1965). Section 10, Article I, Ohio Constitution also guarantees the defendant's right to "meet the witnesses face to face." It provides no greater right of confrontation than the Sixth Amendment. State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990). " '[Q]uestions of the scope and effect of constitutional protections, such as the Sixth Amendment, are matters of law and therefore reviewed de novo.' " State v. Dorsey, 5th Dist. No. 11CA39, 2012-Ohio-611, ¶ 19, quoting State v. Dunivant, 5th Dist. No. 2003CA00175, 2005-Ohio-1497, ¶ 7. Thus, our review is not limited by the normal deferential standard that applies to simple claims of violations of evidentiary rules.

A. Testimony of Dwayne Winston

{¶27} Nguyen claims the trial court improperly permitted testimony from Dwayne Winston, a laboratory technical director. However, Nguyen did not object to the testimony and has forfeited all but plain error. See Crim.R. 52(B). "A silent defendant has the burden to satisfy the plain-error rule[, ] and a reviewing court may consult the whole record when considering the effect of any error on substantial rights." State v. Davis, 4th Dist. No. 06CA21, 2007-Ohio-3944, ¶ 22, citing United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). For us to find plain error: 1.) there must be an error, i.e., "a deviation from a legal rule"; 2.) the error must be plain, i.e., "an 'obvious' defect in the trial proceedings"; and 3.) the error must have affected "substantial rights, " i.e., it must have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Plain error not only applies to purported evidentiary violations but also to purported constitutional errors. See State v. Butts, 4th Dist. 11CA22, 2012-Ohio-571, ¶ 22 (applying plain error review to an alleged constitutional violation not objected to at the trial level).

{¶28} "Even if a forfeited error satisfies these three prongs, however, Crim.R. 52(B) does not demand that an appellate court correct it." Barnes at 27. The Supreme Court of Ohio has "acknowledged the discretionary aspect of Crim.R. 52(B) by admonishing courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " Id., quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶29} Nguyen complains that during direct and part of cross-examination, Winston testified as if he personally received and tested swabs and a blood sample taken in this case for DNA. Later, Winston explained that under his company's protocol, a lab assistant would have received the items, and a "technologist" would have tested the items to develop raw DNA data for analysis. Winston did not conduct the tests himself or observe when the technologist conducted them. He just interpreted the raw data.

{¶30} Nguyen characterizes Winston's initial testimony as "deceptive, " but the State claims Nguyen simply misinterprets it. Nguyen makes no effort to explain how Winston's testimony violated Evid.R. 702 and 705 or why those violations also are a violation of the federal or state constitutions; instead, he focuses on the "deceptive" nature of Winston's testimony. We do likewise. However, any "deception" was subject to clarification or exploitation on cross-examination.

{¶31} In addition, Nguyen complains the "deception" kept him "from objecting to Winston's testimony on hearsay, foundation, or confrontation clause grounds." (Appellant's Br. 7). However, once defense counsel became aware of the "deception, " counsel could have objected to Winston's prior testimony and asked the court to strike it from the record. Counsel did not. Moreover, Nguyen's argument about his inability to object goes to the standard of appellate review, i.e., plain error, and does not explain how Winston's testimony violated evidentiary rules or constitutional provisions. " 'If an argument exists that can support [an] assignment of error, it is not this court's duty to root it out. * * * It is not the function of this court to construct a foundation for [an appellant's] claims[.]' " In re A.Z., 4th Dist. No. 11CA3, 2011-Ohio-6739, ¶ 18, quoting Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶ 13. "In other words, '[i]t is not * * * our duty to create an argument where none is made.' " In re A.Z. at ¶ 18, quoting Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. No. 25281, 2011 -Ohio-435, ¶ 7.

{¶32} Nguyen also argues that the "testing standards could not be tested via cross-examination due to [Winston's] deception." (Appellant's Br. 7). We find this statement confusing. Counsel could not cross-examine Winston about how the tests were performed in this case because Winston lacked personal knowledge of that matter, not because Winston was "deceptive."

{¶33} In his reply brief, Nguyen suggests for the first time that the State, through Winston, improperly admitted testimonial statements of the technician who created the raw data that Winston analyzed. And Nguyen complains that because the "technologist" did not testify, he could not question that person's proficiency, etc., and therefore, Winston could not testify about his interpretation of the technologist's raw data. Nguyen also argues that his "entire defense may have been different" if he knew before trial that the State did not plan to call the technician as a witness. (Reply Br. 9).

{¶34} However, "[a] reply brief gives an appellant the opportunity to respond 'to the brief of the appellee.' App.R. 16(C). The appellant cannot raise an issue for the first time in a reply brief, and thus effectively deny the appellee an opportunity to respond to it." Nemeth v. Nemeth, 11th Dist. No. 2007-G-2791, 2008-Ohio-3263, ¶ 22. Therefore, we decline to address these arguments. See In re Haubiel, 4th Dist. No. 01CA2631, 2002-Ohio-4095, ¶ 25.

{¶35} Because Nguyen failed to demonstrate that any error, plain or otherwise occurred, we overrule the first assignment of error as it ...


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