Court of Appeals of Ohio, Eleventh District, Lake
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).
Rein, (For Defendant-Appellant).
JANE TRAPP, J.
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
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
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.
and Procedural History
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.
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
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.
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.
Mr. Moore waived his right to a jury trial and elected to be
tried by a judge pursuant to R.C. 2945.05.
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
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.
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
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.
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
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
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.
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.
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."
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.
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.
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.
Mr. Moore now timely appeals, raising the following ...