Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
Stanton, Cuyahoga County Public Defender, and Francis
Cavallo, Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
T. GALLAGHER, PRESIDING JUDGE.
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.
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
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
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