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State v. Nunez

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603121-A

          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. Gallagher, J.


          SEAN C. GALLAGHER, J.

         {¶1} 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.

         {¶2} 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 felony.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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[1] 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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 ...

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