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State v. Hunt

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROBERT N. HUNT DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610111

          ATTORNEYS FOR APPELLANT Aaron J. Brockler Erin R. Flanagan

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel A. Cleary Assistant County Prosecutor

          BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE.

         {¶1} Robert N. Hunt ("Hunt") appeals his convictions for various sex related offenses and assigns the following errors for our review:

I. Trial counsel rendered ineffective assistance of counsel.
II. The state committed prosecutorial misconduct when it made improper statements in closing argument, played to the jury's sympathies, broke the golden rule, and commented on the defendant's post-arrest silence during the rebuttal portion of its summation.
III. Even if the errors complained of in the foregoing assignments are not, by themselves, deemed sufficiently prejudicial to warrant reversal, their cumulative effect requires it.

         {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

         {¶3} On August 1, 2016, B.B. went to the leasing office of her apartment building to pay rent and take her ex-boyfriend's name off the lease. Hunt, who was the leasing manager for the complex, and a woman named Latoya, were in the office at the time, and the three had a conversation. Immediately after B.B. left the office, Hunt texted her asking if he could come over and talk to her. B.B. said, "Yes, " walked back to her apartment, and smoked marijuana. B.B. then went into her bathroom, and when she walked back into her living room, Hunt was standing there. Hunt approached B.B. and began kissing her "all over." B.B. asked Hunt to stop. The two ended up on B.B.'s couch, with Hunt still kissing B.B. and B.B. still asking him to stop. Hunt removed B.B.'s pants and rubbed her vagina. B.B. continued to ask Hunt to stop, and although Hunt said he would stop, he did not. B.B. eventually "zoned out, " and Hunt continued to kiss and rub her body including her thighs, chest, and breasts. Hunt attempted to penetrate her vagina with his penis, but she resisted.

         {¶4} Hunt asked B.B. to go into the bedroom. B.B. went into her bedroom with Hunt and showed him where the condoms were. Hunt and B.B. had sex. Hunt left her apartment and B.B.'s sister arrived. When B.B. opened the door, she was wearing a sheet around her waist and testified that she was "lost" and "not there." B.B. went to the hospital where a rape kit was performed.

         {¶5} On October 18, 2016, Hunt was charged with three counts of rape, one count of kidnapping with a sexual motivation specification, and one count of burglary. On March 3, 2017, a jury found Hunt not guilty of rape, but convicted him of gross sexual imposition ("GSI"), kidnapping, and burglary. On April 6, 2017, the court merged the GSI and kidnapping counts, and sentenced Hunt to three years in prison for the kidnapping and two years for the burglary. The court ran Hunt's sentences concurrently for a total of three years in prison.

         I. Ineffective Assistance of Counsel

         {¶6} To succeed on a claim of ineffective assistance of counsel, a defendant must establish that his or her attorney's performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance." Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743 (1989).

         {¶7} In the case at hand, Hunt argues that trial counsel failed to object to the nurse's testimony as well as the prosecutor's improper remarks during closing arguments. The parties agree that we review failure to object arguments under a plain error standard. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." A "[p]lain error is an obvious error or defect in the trial proceedings that affects a substantial right. Under this standard, reversal is warranted only when the outcome of the trial would have been different without the error." State v. Wilcox, 8th Dist. Cuyahoga No. 96079, 2011-Ohio-5388, ¶ 7.

         {¶8} Hunt also argues that trial counsel was ineffective when it "barred" him from ...


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