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State v. Heard

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
DON M. HEARD, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-624270-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Marcus A. Henry, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant



         {¶ 1} Defendant-appellant, Don Heard, appeals from his rape conviction following a jury trial. He raises the following assignments of error for review:

1. There was insufficient evidence produced at trial to support a finding of guilt on all counts.
2. Appellant's convictions were against the manifest weight of the evidence.
3. Appellant was denied his Sixth Amendment right to the effective assistance of counsel in his trial.
4. The cumulative errors committed during trial deprived appellant of a fair trial.

         {¶ 2} After careful review of the record and relevant case law, we affirm Heard's conviction.

         I. Procedural and Factual History

         {¶ 3} In December 2017, Heard was named in a six-count indictment, charging him with three counts of rape in violation of R.C. 2907.02(A)(2), and three counts of kidnapping in violation of R.C. 2905.01(A)(4), each with a sexual motivation specification. The matter proceeded to a jury trial in July 2018, where the following evidence was adduced.

         {¶ 4} In 2017, Heard, then 22 years old, began a romantic relationship with K.D. ("Mother"), who had two minor daughters, L.D. and E.D. During her relationship with Heard, K.D. was involved in divorce proceedings with her ex-husband, El.D. ("Father"). Father was designated as the children's residential parent and Mother was granted visitation rights. Father's fiancée, L.G., testified that Mother was experiencing financial difficulties during 2017, and periodically lived in hotel rooms.

         {¶ 5} E.D. (d.o.b. 02/10/03) testified that in the summer of 2017, she was 14 years old. During this relevant time period, Mother did not have permanent housing and "would bounce around going from motels, my grandmother's house, or [my oldest] sister." E.D. testified that she and L.D. frequently spent nights in hotel rooms during their scheduled visits with Mother. However, when Mother could not stay at a family member's home or could not afford a hotel room for the evening, they would sleep in Mother's van. E.D. testified that she first met Heard in December 2016. E.D. stated that she liked Heard and that they shared common interests given their relative proximity in age.

         {¶ 6} E.D. testified that over time, Heard began doing things that made her feel "uncomfortable." On the first occasion, Heard asked E.D. if she was wearing underwear while they were together at a mall. On the second occasion, Heard was alleged to have "touched [E.D.'s] vagina with his hand" while they were in Mother's van one evening. E.D. testified that Mother was sleeping in the back of the van at the time of the incident. When asked to describe Heard's specific actions, E.D. stated that Heard placed his hand inside her underwear and penetrated her vagina with his fingers. The incident lasted approximately 45 seconds and E.D. "stayed still" because she was "in shock of what was happening." Once Heard removed his hand, he "grabbed the back of [E.D.'s] neck and pushed [her] head down" towards his penis. E.D. testified that Heard made her "give him oral until he ejaculated." E.D. stated that she did not fight back or tell Heard "no" because she was scared.

         {¶ 7} On a third occasion, E.D. was staying overnight with L.D., Mother, and Heard in a hotel room located in Westlake, Ohio. Earlier in the evening, Heard and Mother went to a nightclub together and had been drinking. E.D. testified that when Heard returned to the hotel room, he approached her as she was sleeping in a bed with L.D. Heard then "pulled the blanket off of [E.D.] and [gave her] oral." E.D. explained that Heard's "mouth touched her vagina." The following morning, E.D. was washing her face in the hotel room sink when Heard "grabbed her" and "moved her" into the bathroom. Heard then pulled down E.D.'s sweatpants and inserted his penis into her vagina until he ejaculated. E.D. stated that she did not fight Heard off or tell him to stop because she was scared her sister would see or hear what was occurring. She further stated that she was afraid and "felt like [she] couldn't talk, move, or anything."

         {¶ 8} E.D. testified the she did not immediately tell anyone about the incident because she was "nervous to say something about it" and did not "want to explain what happened." Eventually, however, E.D. told Mother about what had occurred. E.D. stated that Mother began crying and went to confront Heard. However, when Mother returned from speaking with Heard, she was angry with E.D. and left to spend the evening with Heard. Several days later, E.D. told her younger sister, L.D., about what Heard had done to her in the hotel room bathroom. L.D. testified that E.D. warned her "not to tell anyone." Despite E.D.'s request, however, L.D. eventually told father's ...

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