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State v. Burks

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 28, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609476-A

          ATTORNEY FOR APPELLANT John Spellacy John J. Spellacy & Associates

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Andrew F. Rogalski Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., Blackmon, P.J., and Laster Mays, J.



         {¶1} Defendant-appellant, Glen Burks (hereinafter "appellant") brings this appeal challenging his convictions for kidnapping, gross sexual imposition, and sexual imposition. Specifically, appellant argues that the trial court abused its discretion when it permitted the state to introduce "other acts" evidence under Evid.R. 404(B); that the evidence was insufficient to support his convictions; that the convictions were against the manifest weight of the evidence; and that the trial court committed plain error by failing to properly instruct the jury as to the kidnapping count. After a thorough review of the record and the law, this court affirms.

         I. Factual and Procedural History

         {¶2} On September 14, 2016, appellant was indicted for three offenses against two victims. Count 1, gross sexual imposition, a fourth-degree felony in violation of R.C. 2907.05(A)(1); and Count 2, kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(4), with a sexual motivation specification; involved a single victim, (hereinafter "M.W."). Count 3, gross sexual imposition, a fourth-degree felony in violation of R.C. 2907.05(A)(5), involved a second victim (hereinafter "C.W.").

         {¶3} Counts 1 and 2 stem from an incident at appellant's home that occurred on April 29, 2016. M.W. was a technician who primarily installed and repaired internet services at customers' homes. On this particular date, M.W. traveled alone to appellant's house to perform repair services to appellant's internet router. As he arrived at appellant's home, M.W. was greeted at the front door by appellant. While greeting M.W., appellant said to him: "[m]y wife would have been here, but I let her run some errands because she didn't want to be here with a big black guy or a too smart white guy. You're the perfect one." (Tr. 485-486.) Appellant then escorted M.W. downstairs into the basement of the home to a small office which included a desk and an internet router that M.W. was assigned to repair.

         {¶4} M.W. testified that the office was small, 5 feet by 8 feet, and it contained a small desk and two chairs. Upon entering the room, M.W. "sat in the further chair to the wall away from the door * * * and [appellant] sat down right next to me." (Tr. 488-489.) M.W. further explained that "[appellant] reached over, * * * and [appellant] just screamed out of nowhere, "I ain't trying to kiss you, man." (Tr. 489.) M.W. detailed that appellant, with his right hand, leaned over and touched "a little bit of [M.W.'s] private area" and appellant's "thumb [was] just over [M.W.'s] belt and [appellant's] hand on the upper thigh [of M.W.] and [appellant's] fingers pointed in the direction of the area of [M.W.'s] private parts or crotch." (Tr. 492.) M.W. further testified that:

[Appellant] sat back down. So at this point, I'm in alert mode. I'm scared of him honestly, so I get to moving over more to the left, but I couldn't move over any more. He kept moving closer to me. So again, I see him, I keep inching over. [Appellant] then reaches his left hand right here in my pants and I legit froze for about two seconds * * * I jumped up and [appellant] clenched my pants and [appellant] ripped [the pants] open.

(Tr. 489-490.)

         {¶5} M.W. then attempted to leave the office, and appellant, who was a "big guy," about 6'2" and 270 pounds, stood up and blocked the door. (Tr. 490.) As he was trying to exit the basement office room, M.W. went on to detail that he had to physically squeeze past appellant, as appellant stood in the door blocking his exit. M.W. stated that he "had to rub against [appellant] and [appellant] jammed against [M.W.]." (Tr. 490-491.) M.W. made an attempt to beat appellant up the stairs to the first floor of the home, but appellant got in front of him, and appellant went up the stairway first.

          {¶6} Appellant then "sprints from the hallway all the way to the front door and makes a football stance * * * and [appellant] said, 'please, man, give me five minutes.'" (Tr. 491.) M.W. further testified that appellant continued to "beg" and that appellant's begging "sounded like a little kid asking like a parent for some candy" and continued to beg for approximately "35 to 40 seconds." (Tr. 491.) Appellant then charged at M.W., and he avoided appellant and ran out the front door. M.W. then got into his service vehicle, drove off, and stopped approximately four streets away from appellant's house and called his manager to report that he had been "sexually assaulted in the private area." (Tr. 493.) M.W. then drove to the police station to file a police report.

         {¶7} Count 3 stems from a incident that occurred at appellant's workplace. Appellant was working as an emergency medical technician and was employed by the city of Cleveland's Emergency Medical Services. During the first week of January 2014, C.W. was completing his field training duties and responsibilities as a new emergency medical technician and met appellant on his first day on the job. Upon first meeting appellant, appellant stated to C.W. "whatever you heard about me, don't believe it." (Tr. 588.)

         {¶8} On his first day, C.W., his field training officer, and appellant responded to a 911 call of an elderly woman in need of medical attention. During the call, the men utilized a device known as a "lift chair" because the patient was discovered in a confined area. In removing the patient, C.W. and his field training officer handled the lift chair and appellant was to assist C.W. and support him if necessary. C.W. testified that he:

[W]as at the bottom [of the lift chair] * * * [and appellant] was behind me. [Appellant] was supporting my back, making sure I didn't bump into anything or fall. In the process, I did feel [appellant's] hands start on my back and move to my buttocks.

(Tr. 592.)

         {¶9} After the call, appellant and C.W. spoke about the above incident. C.W. asked appellant "[w]ere you getting a little comfortable at the call?" Appellant then "laughed about it" and stated "what do you mean?" C.W. testified that he also laughed and said "I felt your hand on my a[**]" To which appellant replied "we just want to made cadets feel more comfortable" and "we like to joke around here." (Tr. 596.)

         {¶10} Additionally, C.W. testified to other incidents that made C.W. feel "uncomfortable" around appellant. One incident occurred while C.W. and appellant were at the station together lounging around enjoying downtime on a 24-hour shift. At approximately 1:00 a.m., appellant suggested to C.W. that the two of them watch a movie that involved "two male best friends" and that "one friend did not know the other friend was gay" and the friend "went around having oral sex with other men." Appellant then asked C.W. if he would pull his penis out and appellant would pull his penis out and "we can rub and tug." (Tr. 602.) C.W. testified that he took this as a suggestion that appellant wanted the two men to masturbate together.

         {¶11} During the pendency of the instant case, on March 15, 2017, the state filed a notice of intent to use other acts evidence pursuant to Evid.R. 404(B). The state sought to introduce at trial testimony from a third victim (hereinafter "J.W.") who had made sexual assault claims against appellant eight years ago. The state argued that the testimony was to be offered in order to provide evidence probative of appellant's intent, motive, and purpose of sexual gratification. In response, appellant's trial counsel filed a motion in limine seeking to exclude the introduction of the other acts evidence.

         {¶12} On May 15, 2017, the first day of trial, the trial court heard arguments from the parties concerning the state's motion for other acts evidence and appellant's motion in limine. The trial court ultimately made a preliminary ruling allowing the other acts testimony and denying appellant's motion in limine.

         {¶13} After a jury trial, the jury returned a not guilty verdict as to the gross sexual imposition offense charged in Count 1. However, the jury returned a guilty verdict on the lesser included offense of sexual imposition, a third-degree misdemeanor in violation of R.C. 2907.06. The jury returned a guilty verdict on Count 2, kidnapping, a first-degree felony; a verdict of not guilty as to the underlying sexual motivation specification; and a guilty verdict on Count 3, gross sexual imposition, a fourth-degree felony. Appellant was thereafter sentenced to prison for an aggregate sentence of four years. Appellant filed the instant appeal assigning the following errors for our review:

I. The trial court abused its discretion and committed error when it admitted evidence of other crimes, wrongs and acts under Evid.R. 404(B).
II. The trial court committed plain error and prejudiced the defendant by the manner it instructed the jury on evidence of other crimes, wrongs and acts under Evid.R. 404(B).
III. The trial court committed plain error by failing to instruct the jury that kidnapping is a second degree felony if the victim was left in a safe place unharmed.
IV. The evidence was insufficient to support the convictions in this case.
V. The convictions in this case were against the manifest weight of the evidence.

         II. Law and Analysis A. Evid.R. 404(B) Other Acts Evidence

         {¶14} In his first assignment of error, appellant argues the trial court committed prejudicial error by allowing J.W. to testify about a similar act occurring approximately eight years earlier, in violation of Evid.R. 404(B).

          {¶15} The trial court has broad discretion in the admission and exclusion of evidence, including evidence of other acts under Evid.R. 404(B). State v. Morris,132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ΒΆ 22. Unless the trial court has "clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere" with ...

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