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State v. Moore

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603417-A

          ATTORNEYS FOR APPELLANT Tyresha Brown-O'Neal Allison F. Hibbard

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Carl Mazzone Assistant County Prosecutor The Justice Center

          BEFORE: Keough, J., Kilbane, P.J., and Laster Mays, J.



         {¶1} Defendant-appellant, Cecil Moore appeals his conviction for sexual battery. Finding merit to the appeal, we reverse and remand for further proceedings.

         {¶2} In March 2016, Moore was charged rape, sexual battery, and kidnapping; the kidnapping offense contained a sexual motivation specification. The case proceeded to a jury trial where the following evidence was presented.

         {¶3} During a lunch hour in the summer of 2015, the victim first met Moore in line at a Wendy's restaurant on the west side of Cleveland. Moore bought her lunch, and the two ate their lunches together, discussed jobs, and exchanged contact information.

         {¶4} They spoke a few days later and agreed to meet again. Moore picked the victim up at her apartment, and during the ride to a bar on Euclid Avenue, advised her that he had his firearm on him and showed her his concealed carry license. He stated he told her about the firearm because he did not know if she was comfortable being around a firearm or if she was legally allowed to be around firearms. According to Moore, the victim indicated she had no problem being around the firearm; this was not disputed by the victim.

         {¶5} Once at the bar, however, the evening turned out poorly. Moore attempted to purchase the victim a specific drink she wanted. When the victim received her drink, she indicated that it was not the drink she wanted. She attempted to return the drink to the bar, and the victim admittedly got into a verbal altercation with the bartender and manager. When Moore attempted to calm her down and order her another drink, the victim indicated that a new drink was unacceptable and left the establishment. Although the victim called her brother to pick her up, she ultimately agreed to let Moore take her home. Once at her apartment building, the victim was insistent that they go somewhere else because it was still early. However, Moore did not want to go anywhere else, and instead tried to calm her down by telling her she should just go home. Annoyed, the victim exited Moore's car and drove off in her own car.

         {¶6} The victim testified that she subsequently felt bad about how the evening went. On Sunday, August 18, 2015, she contacted Moore to apologize to him and asked him to come over. Moore agreed and arrived at her apartment late that evening. They went to a local store where the victim bought some personal household items, and they each purchased alcoholic beverages. Both testified that a disagreement occurred over purchasing light bulbs - the victim did not want or need Moore to pay for them.

         {¶7} Once they arrived back at her apartment, they talked at the kitchen table. Moore was legally carrying his firearm on his hip, and after asking the victim if he could take it off, he placed his gun on the counter. The conversation then continued on the couch. At this point, the version of events is in dispute.

         {¶8} According to the victim, the conversation turned to flattery and then sexual. They began kissing and getting undressed. When she asked Moore if he had a condom, he said "no." The victim told him that she would not have unprotected sex with him. According to the victim, Moore became irate and hostile, telling her that unprotected sex was not a big deal. She suggested that he go to the store to purchase a condom.

          {¶9} The victim testified that instead of leaving, Moore refused to go to the store and began cursing at her about her philosophy of safe sex. She stated that Moore became more hostile, refusing to leave, yelling that he would leave when he was ready to leave, and that he was not going anywhere. The victim testified that she felt fearful because he was yelling and because she knew he had a gun. Although she said that Moore did not threaten her with the gun, she felt that if she made him angrier, "something [could] happen." (Tr. 186.)

         {¶10} The victim stated that she tried to calm Moore down but he became more verbally aggressive toward her, calling her names and berating her about not having condoms herself. Not wanting things to escalate further, she went into her bedroom, disrobed, and offered to perform oral sex on Moore. She testified that she felt that if Moore was sexually gratified, he would leave. Although she did not want to perform oral sex on Moore, she did so out of fear. She stated that Moore was not satisfied by fellatio, critiqued her ability, and wanted sexual intercourse. Unable to get aroused and becoming more fearful, she suggested that they watch pornography on her cell phone. On cross-examination, the victim testified for the first time that following oral sex, Moore digitally penetrated her vagina, causing her pain.

         {¶11} The victim testified that Moore, without consent, engaged in sexual intercourse with her. She stated she did not want to have sex with him, but did not say anything and did not fight him off her; however, she testified that she did say "no" at some point. She stated she was "just numb" and kept thinking that Moore had a gun. Therefore, she felt that if Moore "get[s] what he want[s], " he would leave, and she would be alive. (Tr. 191.) When asked why she did not call for help on her phone instead of viewing pornography, she stated she was too scared - she was afraid he would use his gun.

         {¶12} The victim stated that after Moore removed himself from on top of her, he continued to berate her about her sexual abilities and belittle her in general. When Moore went to the bathroom to wash up, the victim repeatedly asked him to leave. Moore eventually left her apartment, but not before he threw bottles of wine coolers at her door and at her. The content of the bottles spilled on the floor and all over her. The victim stated that the entire incident lasted until 3 a.m. on August 19, 2015. Once Moore left, she called her cousin and told her what had happened. Following her conversation with her cousin, she went to bed because she had to go to work that morning.

         {¶13} The next morning, the victim took a shower and readied herself for work. She stated that she just wanted to get out of her apartment because of what had happened the night before; she did not want to be there. After working the entire day, she called her brother and her cousin. Based on those conversations, the victim decided to report the incident to Euclid police. At the suggestion of the investigating officer, she also went to Hillcrest Hospital for an ...

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