Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Edward F. Borkowski, Jr.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Adam M. Chaloupka T. Allan Regas
Assistant Prosecuting Attorneys
BEFORE: S. Gallagher, J., McCormack, P.J., and E.T.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Emilio Nunez, Jr., appeals his felonious assault conviction.
Nunez was sentenced to an eight-year term of imprisonment,
but does not challenge his sentence, only the finding of
guilt. We affirm.
Nunez was charged in a two-count indictment with one count of
felonious assault, in violation of R.C. 2903.11(A)(1), and
one count of domestic violence, in violation of R.C.
2919.25(A). The domestic violence count alleged that Nunez
had two prior domestic violence convictions that elevated the
charge from a first-degree misdemeanor to a third-degree
Nunez had a long-standing relationship with K.K., who became
pregnant during their relationship. One of the prior domestic
violence incidents happened in August 2015, when K.K. was
eight months pregnant. Lakewood police officers responded to
a report of a domestic dispute. K.K. was found outside the
apartment building with her belongings and a bruise under her
left eye, and was visibly distraught. She told the officers
she had been arguing with the father of her unborn baby. A
surveillance video of the incident, played for the jury in
the instant case, depicts the prior assault. Photographs of
K.K.'s injuries at the time of the 2015 assault were also
admitted into evidence. On cross-examination, Nunez admitted
that he threw K.K. into the door "intentionally, "
and that he pleaded guilty to one count of domestic violence
as a result of the prior incident. Tr. 372, 392.
The incident giving rise to this case occurred in January
2016. At that time, K.K. was subleasing an apartment from
Matthew Allen because she needed a place to stay. Sarah
Brandenburg, the victim's friend, testified that on the
evening of January 24, 2016, she and Nunez went to visit K.K.
at her apartment. K.K. appeared weak and had a blackened
right eye from another incident that occurred between K.K.
and another person weeks earlier. K.K. asked them to leave
almost immediately, and when Nunez refused, K.K. chased him
from the room, striking his back multiple times.
Later that night, Allen called the Lakewood police for
assistance in removing K.K. from the apartment because he
learned some disturbing information about K.K. and he wanted
her out of the apartment. One of the officers observed that
K.K. had an old bruise on her right eye and some old scrapes
and bruises on her arm that showed signs of healing. Tr. 189.
Two hours later, Lakewood police received a call from a
nearby Walgreens store at the corner of Detroit Avenue and
West 117th Street in Lakewood, Ohio, concerning a woman who
had been assaulted. In the 911 call, which was played for the
jury and made part of the record, K.K. told the dispatcher
that she had been assaulted by her boyfriend, Nunez, twice in
the last 24 hours, and that they had a prior domestic
violence case together. The 911 recording was played for the
jury, and K.K. confirmed it was her voice.
The same officers from earlier in the evening responded to
the Walgreens store and spoke with K.K., who had obviously
sustained new injuries, including additional swelling and
redness around her eye. An ambulance transported K.K. to
Lakewood Hospital where she was diagnosed with a broken nose,
multiple rib fractures, and a contused sacrum. She told a
nurse and physician's assistant in the emergency room
that her "boyfriend" had beaten her that day, as
well as the day before. K.K., in a written statement for
police officers, indicated Nunez had beaten her and caused
her injuries. Tr. 246-250.
K.K. testified that she did not remember calling 911 or
making a written statement for police because she was
intoxicated and on prescription medication at that time.
However, the attending physician and physician's
assistant testified that if K.K. had been intoxicated, they
would have noticed and documented that fact in K.K.'s
chart. They also testified that if K.K. was grossly
intoxicated, they would have kept her in the hospital
overnight. Nunez was subsequently arrested and charged with
domestic violence and felonious assault.
K.K.'s friend, Gale Sinopoli, testified that Nunez called
her cell phone several times from jail because he wanted to
speak with K.K., in violation of a no-contact order.
According to Sinopoli, K.K. answered at least one of these
phone calls and spoke with Nunez, who called from the jail
under another inmate's name and personal identification
number to avoid detection.
Nunez testified at trial. He admitted that he instructed K.K.
(1) not to sign a medical release for the Lakewood Hospital
medical records; (2) not to appear for trial; (3) to refuse
to testify pursuant to the Fifth Amendment; and (4) to
testify that she had no recollection of the events of January
26, 2016, because she was intoxicated. On cross-examination,
Nunez testified that K.K.'s lack of memory and claim of
intoxication or influence from pain medication all mirrored
what Nunez had told K.K. to do at trial because Nunez did not
want the jury hearing any of the statements or evidence. Tr.
402-403, 413-414. Nunez also admitted that he pleaded guilty
to one count of domestic violence in Nevada in 2005 and one
count of domestic violence with respect to the August 2015
assault. Despite these admissions, Nunez denied assaulting
K.K. in January 2016. He claimed the victim had lied and that
Nunez was elsewhere on the night in question.
After considering all the evidence, the jury returned guilty
verdicts on both counts. The parties agreed the counts were
allied offenses of similar import that merged for purposes of
sentencing. The state elected to proceed on the felonious
assault charge, and the court sentenced Nunez to the maximum
prison term of eight years. Nunez now appeals his conviction
for felonious assault claiming that (1) the evidence of the
August 2015 domestic violence crime was inadmissible under
Evid.R. 404(B), and (2) that his conviction for felonious
assault is against the manifest weight of the evidence.
Within the framework of the first assignment of error, Nunez
also claims that the trial court erred by admitting (1)
jail-house recorded phone conversations between Nunez and
K.K., (2) hearsay evidence within K.K.'s medical records,
and (3) the victim's recorded recollection to police
officers on the night of the assault. Neither assignment of
error has merit.
Before oral argument, Nunez filed a notice of supplemental
authority seeking our consideration of State v.
Creech, Slip Opinion No. 2016-Ohio-8440, in which it was
concluded a trial court abuses its discretion by refusing a
defendant's offer to stipulate to the fact of a prior
conviction "when the sole purpose of the
evidence is to prove the element of the defendant's prior
conviction or indictment." (Emphasis added.)
Creech at ¶ 40. The supplemental authority has
no bearing on the arguments advanced in the assignments of
error presented for our review, which focus on the
applicability of Evid.R. 404(B) as a basis for admitting the
other acts evidence. In Old Chief v. United States,
519 U.S. 172, 190, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997),
which supplied the rationale adopted in Creech, it
was specifically noted that the "issue of substituting
one statement for the other normally arises only
when the record of conviction would not be admissible
for any purpose beyond proving status, so that excluding it
would not deprive the prosecution of evidence with multiple
utility." (Emphasis added.) If the state is justified in
admitting the evidence of prior acts on some issue other than
status - for example, to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident - Evid.R. 404(B) along with its federal
counterpart "guarantees the opportunity to seek its
admission." Id. We see no reason to adopt the
proposition of law from Old Chief to the exclusion
of the limitations noted therein.
The purpose of the evidence demonstrating the past conduct in
this case was not solely to prove status or the element of
the defendant's prior conviction. The challenged evidence
was useful for multiple purposes. The state introduced the
other acts evidence under Evid.R. 404(B) for the express
purpose of demonstrating modus operandi or identity. Tr.
139:4-19; state's notice of intent to introduce evidence
of prior domestic violence conviction at trial, dated May 16,
2016. Nunez's reliance on Creech is misplaced
and not in line with the arguments presented in his brief.
Furthermore, even if Creech could apply, Nunez did
not orally stipulate to the prior convictions when given the
opportunity to do so. Tr. 139:4-19 (the state asked for a
stipulation for the domestic violence count that was not
provided). It was not until the state called its first
witness that Nunez first attempted to "stipulate, "
but at that point the state was using the prior acts to prove
identity or modus operandi, not for the purpose of proving
his status. Tr. 138. The state most likely would have
preferred Nunez to stipulate to being the person who ...