Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Brian R. McGraw
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Frank Romeo Zeleznikar Assistant County
Prosecutor The Justice
BEFORE: Kilbane, P.J., Stewart, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE.
Defendant-appellant, Alfonso E. Hernandez
("Hernandez"), appeals his jury conviction for
rape, kidnapping, and gross sexual imposition. For the
reasons set forth below, we affirm.
In December 2015, Hernandez was charged in an eight-count
indictment with two counts of rape, four counts of
kidnapping, and two counts of gross sexual imposition
("GSI"). Each count carried a sexually violent
predator specification. The indictment alleged that Hernandez
sexually assaulted two young girls: his great-niece, K.T.,
and her cousin, M.R.
In May 2016, Hernandez moved to sever Counts 1 through 4 from
Counts 5 through 8, effectively moving for separate trials on
the allegations of each victim. The trial court denied this
motion. Prior to jury selection, and again after the close of
all evidence, the defense renewed its motion to sever and the
trial court denied the renewed motion. The parties stipulated
that Hernandez's immigration status would not be
mentioned in the presence of the jury.
The following evidence was adduced at trial.
Twelve year-old K.T. described in detail two separate
instances where she testified that Hernandez sexually
assaulted her. K.T. testified that the first sexual assault
occurred when she was about five years old. At that time, she
lived with her parents in the downstairs unit of a triple
house. K.T.'s grandmother and great-grandmother lived in
the second floor unit. Hernandez, as well as K.T.'s other
great-uncle and his wife, J.H., lived upstairs in the third
K.T. explained that the first instance of sexual assault took
place while she was visiting the third floor unit of the home
with her mother, N.H. N.H. went into the living room to talk
with J.H. Hernandez called K.T. to his room, telling her that
he had something to show her. She explained that once inside
Hernandez's room, Hernandez proceeded to lay her on the
bed, pull down her pants and his own pants, put a condom on,
and put his penis inside her vagina.
K.T. testified that at some point, J.H. began knocking on the
door, telling K.T. that her mother was waiting and wanted her
to come out of the room. K.T. explained that Hernandez took
off the condom and pulled up his pants and K.T.'s pants.
He then gave K.T. a small toy, told her "not to tell
anyone, " and sent her out of the room. K.T. testified
that she was confused and scared so she told Hernandez that
she would not tell anyone what had happened.
K.T. explained that the second sexual assault occurred years
later when she was in the fifth grade. At that time, K.T. and
her immediate family lived in a new home in the downstairs
unit of a double house owned by her grandmother
_ Hernandez's sister. K.T. testified
that Hernandez would come to this house a few times each week
to visit his mother _ K.T.'s
great-grandmother _ who lived in the
second-floor unit with Hernandez's sister.
K.T. testified that a few weeks before Hernandez raped her a
second time, Hernandez snuck up on her while she was in the
basement doing laundry. K.T. explained that she ran upstairs
and into her mother's room. She forgot to lock the door,
so Hernandez came in, tried to touch her, and asked her
"why are you ignoring me?" She testified that
Hernandez forcefully pulled her pants down, whispered in her
ear "don't ignore me again or I'm going to do
the same thing to your [younger] sister, " and then
A few weeks later, K.T. went up to the second-floor. K.T.
testified that her parents were at work and her
great-grandmother was in the basement of the home. K.T.
noticed that Hernandez was in one of the bedrooms. She
testified that he began to walk toward her; she tried to walk
away, but he followed her into the living room.
Once in the living room, K.T. sat on the couch and covered
herself with a blanket. Hernandez took the blanket off of her
and began to pull down her pants. He then lifted her up and
put her on the ground. He unzipped his pants, put on a condom
that he had retrieved from his wallet, put his penis inside
her vagina, and "started thrusting for about three
minutes." K.T. testified that during this second rape
she was scared and thought "it happened again, * * * I
didn't want it to, and I couldn't do anything about
K.T. explained that Hernandez stopped when he heard the
kitchen door creaking, as if someone was coming in. He took
the condom off, put it in a small plastic bag in his wallet,
and put it in his back pocket. Hernandez then left K.T. lying
on the floor.
K.T. testified that she first told her cousin, M.R., about
the sexual assaults, and eventually, she also told her
Eleven-year-old M.R. also testified that Hernandez had
sexually assaulted her on two separate occasions. M.R.
explained that K.T. is her cousin and "good
friend." Through the testimony of adults in the family
it was established that M.R. is not related to Hernandez, but
their families are close. K.T.'s father and M.R.'s
mother are brother and sister, whereas Hernandez is
K.T.'s maternal great-uncle.
M.R. testified that when she was younger Hernandez's
mother _ K.T.'s great-grandmother -
cared for her five days a week while her parents were at
work. Hernandez's mother would care for M.R. in the home
Hernandez shared with his brother and his brother's
M.R. testified that while in this home, she was in
Hernandez's room with his nephews playing on
Hernandez's computer. M.R. testified that she was sitting
on Hernandez's lap. His nephews left the room. M.R.
testified that Hernandez pushed her against the door and
began touching her breasts both over and under her shirt. She
testified that eventually Hernandez's nephews knocked on
the door, so Hernandez stopped touching her and let the boys
in the room. M.R. testified that she could not remember how
old she was or how long ago this happened.
M.R. also testified to a second incident when she was in
Hernandez's room sitting on his lap. Hernandez grabbed
her hand and attempted to put her hand on his penis. M.R.
testified that she told Hernandez she had to go to the
bathroom. Hernandez let her go, and she ran out of his room
to the bathroom. She testified that this second incident
occurred when she was around five-years old.
N.H., K.T.'s mother, testified that in November 2015, she
and K.T. had an argument while preparing to go to a family
picnic. N.H. had noticed that K.T. had recently been
withdrawn and would not leave her bedroom. N.H. explained
that K.T. did not want to go to family functions and was
upset that she had to go to this particular family picnic.
K.T. told N.H. that she wanted to stay home, and N.H. and
K.T. began fighting. During the argument, K.T. told N.H. that
Hernandez had sexually assaulted her. K.T. also told N.H.
that she had confided in M.R. about the assaults. N.H. and
K.T. then went to M.R.'s home. Once at M.R.'s home,
M.R. confided in N.H., her aunt, that Hernandez had sexually
assaulted her as well. That same day, K.T.'s father
called Cleveland police to report Hernandez's sexual
assaults of both K.T. and M.R.
The investigating detective, Traci Hill ("Detective
Hill"), testified about her investigation of the
girls' allegations of sexual abuse by Hernandez.
The defense called Hernandez's sister-in-law, J.H., his
niece, as well as his sister _ K.T.'s
grandmother. Notably, J.H. testified that she did not
remember having knocked on Hernandez's bedroom door and
asking K.T. to come out of his room, as K.T. had testified.
At the conclusion of the trial, the jury returned guilty
verdicts on Counts 1 through 4 and Counts 7 and 8. The jury
found Hernandez not guilty of Counts 5 and 6, which related
to M.R.'s first sexual assault allegation.
The trial court held a hearing on the sexually violent
predator specifications. The trial court found Hernandez not
guilty on all sexually violent predator specifications and
proceeded to sentence Hernandez to life in prison with parole
eligibility after 25 years.
Hernandez now appeals his convictions, raising the following
assignments of error for our review:
Assignment of Error One
The court abused its discretion in denying repeated defense
motions to sever, allowing the joinder [of] the individually
weak [K.T.] and [M.R.] allegations [in one trial].
Assignment of Error Two
The manifest weight of the evidence was not established to
allow for convictions in any of the crimes.
Assignment of Error Three
The court abused its discretion when it admitted "other
acts" evidence pursuant to [Evid.R. 404(B)]; evidence of
other alleged sexual acts by [Hernandez] upon [K.T.] deemed
to be too weak to indict.
Assignment of Error Four
[Hernandez] was denied a fair trial when his status as a
non-citizen was hinted at by Detective Hill after motion in