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State v. Moore

Court of Appeals of Ohio, Eleventh District, Lake

June 17, 2019

STATE OF OHIO, Plaintiff-Appellee,
CARLOS D. MOORE, Defendant-Appellant.

          Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR 001353.

          Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant Prosecutor, and Jenny B. Azouri, Assistant Prosecutor, (For Plaintiff-Appellee).

          Thomas Rein, (For Defendant-Appellant).


          MARY JANE TRAPP, J.

         {¶1} Appellant, Carlos D. Moore ("Mr. Moore"), appeals from the judgment of the Lake County Court of Common Pleas, which sentenced him to 20 years imprisonment and labeled him a Tier 3 sex offender registrant after the court found him guilty of aggravated burglary, three counts of kidnapping, felonious assault with a pregnancy specification, rape, sexual battery, and intimidation of a victim or witness in a criminal case.

         {¶2} Mr. Moore contends there was insufficient evidence to convict him and that the manifest weight of the evidence does not support a finding of guilty. He also argues the trial court erred in allowing the state to impeach its own witness, the victim, with prior inconsistent statements and in admitting her statements as substantive evidence. Lastly, Mr. Moore contends the trial court erred in ordering him to serve a consecutive sentence without making the appropriate findings pursuant to R.C. 2929.14 and HB 86 and that the court costs imposed by the trial court violated his constitutional and statutory rights.

         {¶3} We affirm the judgment of the Lake County Court of Common Pleas. A thorough review of the record does not support Mr. Moore's contentions because there was sufficient evidence from which any rational trier of fact could have found all the elements of the offenses proven beyond a reasonable doubt and the manifest weight of the evidence heavily supports the verdict. Moreover, we do not find the trial court abused its discretion in granting the state's pretrial motion to call the victim as a court witness and then in allowing the state to cross-examine the victim and use her prior inconsistent statements for impeachment purposes. In addition, a review of the sentencing transcript and the sentencing entry reveals the trial court made the appropriate findings pursuant to R.C. 2929.14 in sentencing Mr. Moore to consecutive sentences. Lastly, a remand in this case is unnecessary in order for him to file a motion to waive costs since the trial court retains jurisdiction to do so.

         Substantive and Procedural History

         {¶4} On October 30, 2017, a warrant was issued for Mr. Moore's arrest following a violent incident that included the assault and rape of the victim, Ceaira Fluellen ("Ms. Fluellen"), on the previous evening. Mr. Moore was arrested one month later while he was being held in th ail on an unrelated charge.

         {¶5} Mr. Moore was subsequently indicted by the Lake County Grand Jury on eight counts: (1) aggravated burglary, a first degree felony, in violation of R.C. 2911.11(A)(1); (2) kidnapping, a first degree felony in violation of R.C. 2905.01 (A)(2); (3) kidnapping, a first degree felony, in violation of R.C. 2905.01(A)(3); (4) felonious assault, a second degree felony, in violation of R.C. 2903.11 (A)(1), with a pregnancy specification; (5) kidnapping, a first degree felony, in violation of R.C. 2905.019(A)(4); (6) rape, a first degree felony, in violation of R.C. 2907.02(A)(2); (7) sexual battery, a third degree felony, in violation of R.C. 2907.03(A)(1); and (8) intimidation of victim or witness in a criminal case, a first degree misdemeanor, in violation of R.C. 2921.04(A).

         {¶6} Mr. Moore waived his right to be present at his arraignment and entered a plea of not guilty. The court continued his bond at $250, 000 cash/surety, and he was ordered to have no contact with the victim.

         {¶7} Ms. Fluellen wrote a letter to the court on December 14, 2017, to inform the court that Mr. Moore did not rape, assault, or kidnap her. Rather, she claimed the altercation between them was simply a "misunderstanding." Several weeks before trial, the state filed a motion pursuant to Evid.R. 614(A) for calling of court witness in order to be able to cross-examine Ms. Fluellen. The state explained in its motion that Ms. Fluellen had made many incriminating statements against Mr. Moore to police officers, paramedics, and medical personnel the day after the incident. On the date of Mr. Moore's arrest, however, Ms. Fluellen recanted her initial statements and claimed that two unknown females attacked her, causing her injuries. The trial court found the state's motion well-taken and ordered Ms. Fluellen to be called as a court witness.

         {¶8} Mr. Moore waived his right to a jury trial and elected to be tried by a judge pursuant to R.C. 2945.05.

         {¶9} The trial court heard the testimony of firefighter/paramedic Sean F. Lawlor, who attended to Ms. Fluellen when she appeared at the police department to report damage to her apartment; and Patrolman Michael J. Walsh, who first interacted with Ms. Fluellen at the police department and summoned the paramedic. He also recorded Ms. Fluellen's various statements and interviewed Mr. Moore. The trial court also heard the testimony of Heather Kovach, R.N., Kelly Lott, R.N., regarding observed injuries, the procedures followed, and the results from the sexual assault examination. Karen Zavarella, Ph.D. of the Lake County Crime Laboratory, presented the DNA testing results. Radiologist David Horejs, M.D. presented the findings as to the injuries sustained in the assault, and Detective Ronald Parmertor described his investigation of the crime scene and his interview with Mr. Moore. Mr. Moore also testified. The court considered physical evidence, including photographs of Ms. Fluellen's injuries and apartment, jail house calls, including those between Ms. Fluellen and Mr. Moore, the victim's rape kit, DNA test results, and hospital images and records.

         {¶10} The testimony and evidence at trial revealed that Mr. Moore forced his way into Ms. Fluellen's apartment in Willoughby Hills, Ohio. He violently assaulted her for more than two hours, which included punching, kicking, strangling, and raping her. Ms. Fluellen was pregnant at the time. A few hours later, in the early morning hours, Ms. Fuellen awoke and drove to her friend's house where she slept on the couch. When Ms. Fluellen returned to her apartment the following morning, Mr. Moore had left, and her belongings were strewn about and the apartment damaged. A knife was stuck in a vertical position in her kitchen counter.

         {¶11} Ms. Fluellen drove directly to the Willoughby Hills Police Department, and after a few questions by Officer Walsh who noticed her injuries, the paramedics were called to transport her to Lake West Hospital emergency department. From there she was transported to Hillcrest Hospital for purposes of a sexual assault exam. The DNA samples in the rape kit matched the swabs taken from Mr. Moore. Ms. Fluellen suffered two nasal fractures, extensive bruising, including strangulation marks to her neck, in addition to the rape and sexual assault.

         {¶12} There are numerous recorded conversations between Mr. Moore and Ms. Fluellen in regard to the incident, her statements to the police, and her upcoming trial testimony. In those calls, Mr. Moore pressured Ms. Fluellen to recant her statements and relay a different story when she testified. Ms. Fluellen expressed concern that their stories did not match.

         {¶13} When she did take the stand and the state cross-examined her, Ms. Fluellen claimed she could not recall her earlier statements to the police, paramedics, or hospital personnel, and when her recorded statements were played in an attempt to refresh her recollection, her recollection did not improve, but she did identify her voice on the recordings. She denied that Mr. Moore had strewn her belongings all over the apartment, testifying the items had been there before and that the two holes in the wall were from when she thought she "threw something."

         {¶14} Mr. Moore's counsel then cross-examined Ms. Fluellen. Ms. Fluellen began to give Mr. Moore's version of events. When she was asked whether she lied to the police and hospital personnel about what happened, she said, "yes." The trial court then stopped her and inquired whether she would be able to obtain an attorney because the questions defense counsel was posing may cause her to commit the crime of perjury. The trial court informed Ms. Fluellen if she did not hire counsel, the trial court was going to call a public defender to counsel her so the trial could continue.

         {¶15} A public defender was summoned, who counseled Ms. Fluellen for 45 minutes and represented her for the remainder of her testimony. When her testimony resumed, she denied being raped or assaulted and pleaded the Fifth Amendment when questioned about her different statements to the grand jury and the police. She said Mr. Moore never told her what to say and that when she first went to the police, she was angry with Mr. Moore for cheating on her.

         {¶16} Mr. Moore's version of that night was that he, his friend "Chum-Chum" (aka Reginald Witherspoon), and two women went to Ms. Fluellen's apartment to leave Ms. Fluellen some money. They had all been drinking, and Mr. Moore was highly intoxicated. Ms. Fluellen arrived home unexpectedly, was upset to find the women in her home, and all three women began viciously fighting. Mr. Moore broke up the altercation and left with the two women. Ms. Fluellen called Chum-Chum, and Mr. Moore returned to her apartment. He found her laying there and attended to her injuries, after which they had consensual sex and fell asleep.

         {¶17} Mr. Moore did not call the two unknown women (he claimed to not know their names) or Chum-Chum to testify on his behalf (because he had outstanding warrants). He explained that his testimony was inconsistent from his prior statements to the detective because he "didn't want to make it seem like I was killing myself with my parole."

         {¶18} The trial court found Mr. Moore guilty on all eight counts, deferred sentencing, and referred Mr. Moore to the adult probation department for a presentence investigation report and a victim impact statement.

         {¶19} A sentencing hearing was held on May 3, 2018. The trial court denied Mr. Moore's motion to vacate sentence and conviction/motion to dismiss. The trial court found that for sentencing purposes, Counts 2 and 4 (kidnapping and felonious assault) merged with Count 3 (kidnapping), and that Counts 5 and 7 (kidnapping and sexual battery) merged with Count 6 (rape). The trial court sentenced Mr. Moore to 3 years on Count 1 (aggravated burglary), 8 years on Count 3 (kidnapping), 9 years on Count 6 (rape), and 90 days in jail on Count 8 (intimidation of witness/victim in a criminal case). The sentences on Counts 1, 3, and 6 were ordered to be served consecutively and concurrent to the sentence on Count 8, for a total term of imprisonment of 20 years.

         {¶20} The trial court also ordered Mr. Moore to pay all court costs and the costs of prosecution in the amount certified by the Lake County Clerk of Courts.

         {¶21} Mr. Moore now timely appeals, raising the following ...

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