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State v. Hernandez

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2018


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601004-A

          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.



         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} The following evidence was adduced at trial.

         Allegations of K.T.

         {¶5} 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 floor unit.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 walked away.

         {¶10} 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.

         {¶11} 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 it."

         {¶12} 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.

         {¶13} K.T. testified that she first told her cousin, M.R., about the sexual assaults, and eventually, she also told her mother.

         Allegations of M.R.

         {¶14} 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.

         {¶15} 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 family.

         {¶16} 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.

         {¶17} 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.

         Testimony of N.H.

         {¶18} 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.

         {¶19} The investigating detective, Traci Hill ("Detective Hill"), testified about her investigation of the girls' allegations of sexual abuse by Hernandez.

         {¶20} 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.

         {¶21} 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.

         {¶22} The trial court held a hearing on the sexually violent predator specifications.[1] 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.

         {¶23} 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 ...

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