Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE.
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
Having reviewed the record and pertinent law, we affirm the
decision of the trial court. The apposite facts follow.
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
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.
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.
Ineffective Assistance of Counsel
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).
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.
Hunt also argues that trial counsel was ineffective when it
"barred" him from ...