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State v. Lundy

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601331-A

          ATTORNEY FOR APPELLANT Thomas A. Rein.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Oscar Albores Assistant Prosecuting Attorney

          BEFORE: E.T. Gallagher, P.J., Boyle, J., and Laster Mays, J.



         {¶1} 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.

         {¶2} We find some merit to the appeal and affirm Lundy's convictions, but remand the case to the trial court for resentencing.

         I. Facts and Procedural History

         {¶3} 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.

         {¶4} 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."

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.)

         {¶8} 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.)

         {¶9} 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 ...

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