Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Thomas A. Rein.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Oscar Albores Assistant Prosecuting
BEFORE: E.T. Gallagher, P.J., Boyle, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, P.J.
Defendant-appellant, Lamar Lundy, appeals his convictions and
sentence. He raises four assignments of error:
1. The trial court erred by failing to grant a judgment of
acquittal, pursuant to Crim.R. 29(a), on the charges,
thereafter entering a judgment of conviction on those
offenses as those charges were not supported by sufficient
evidence, in violation of the defendant's right to due
process, as guaranteed by the Fourteenth Amendment to the
United States Constitution.
2. Appellant's convictions are against the manifest
weight of the evidence.
3. The trial court committed plain error by ordering
convictions for separate counts because the trial court
failed to make a proper determination as to whether those
offenses are allied offenses pursuant to R.C. 2941.25 and
they are not part of the same transaction under R.C. 2929.14.
4. The trial court erred by ordering appellant to pay costs
in the sentencing journal entry when it waived court costs on
the record and in open court.
We find some merit to the appeal and affirm Lundy's
convictions, but remand the case to the trial court for
Facts and Procedural History
Lundy was charged with two counts of rape, two counts of
kidnapping, one count of aggravated robbery, and one count of
robbery. The kidnapping counts included sexual motivation
specifications, and the rape counts included firearm and
sexually violent predator specifications. The charges
resulted from an incident that occurred in the early morning
hours of November 27, 2005.
The victim, G.H., testified at trial that she was waiting for
a bus at approximately 5:00 a.m. on November 27, 2005, when
an unfamiliar man approached her and asked if she had a
light. G.H. replied that she did not. The man held a knife to
G.H.'s throat, forced her into the yard of a nearby
house, and vaginally raped her. When she yelled for help, the
man smacked G.H.'s face and said "Bitch, shut up or
I'll kill you."
According to G.H., the rape lasted five minutes, and the man
ejaculated inside her. When it was over, the man ordered G.H.
"to pee out the come." (Tr. 249.) When asked why he
told her to pee, G.H. explained "because they
wouldn't get his DNA from me." (Tr. 249.) Although
G.H. refused to urinate, the man left her alone, and walked
down the street.
G.H. immediately knocked on the door of the nearby house. A
lady answered and helped G.H. call 911. Paramedics
transported G.H. to St. Vincent Charity Hospital where a rape
kit was collected. G.H. reported to the paramedics and the
sexual assault nurse examiner ("SANE nurse") that
she had been raped. Upon discharge from the hospital, G.H.
took a bus home and subsequently moved to Lisbon, Ohio to
live with her sister.
G.H. did not pursue prosecution in 2005. Although she denied
telling police that she refused to prosecute, she explained,
"I just wanted to just forget it, you know." (Tr.
253.) Detective Keith Hunter, of the Cleveland Police
Department, Sex Crimes Unit, testified that in 2005, BCI did
not test rape kits unless the victim wanted to prosecute the
assailant. (Tr. 211.) In 2013, that policy changed, and now
all rape kits are tested. (Tr. 212.) G.H.'s rape kit was
tested in 2014. Although G.H. did not prosecute her attacker
in 2005, at the time of trial in 2016, G.H. testified that
she wanted to see justice done, and that she did not want
anyone else to be raped. (Tr. 253.)
Sahir Hasan, a special investigator in the Cuyahoga County
Prosecutor's Office, met with G.H. as part of the rape
investigation in September 2015. (Tr. 316.) Hasan acted as a
blind administrator and presented a photo lineup of suspects
to G.H. that included a photograph of Lundy, but G.H. was
unable to identify him from the lineup. G.H. explained that
she did not "pay attention" to his appearance and
that it was dark at the time of the rape. She also explained
that the incident occurred 11 years before trial and thus ten
years before she saw the lineup. (Tr. 244, 267, 269.)
Melissa Zielaskiewicz, a forensic scientist at the Ohio
Bureau of Criminal Investigation ("BCI"), performed
DNA analysis on sperm cells and other human cells found in
the rape kit. She testified that she compared DNA in the
cells found in the rape kit to known standards taken from
G.H. and Lundy. Based on the national database provided by
the Federal Bureau of Investigation, the frequency of
occurrence of the DNA profile found in the sperm cells was
"one in 445 quintillion ...